Notice2022-05961
Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 21, 2022
Effective
March 21, 2022
Issuing agencies
Homeland Security Department
Abstract
This Notice rescinds the July 23, 2019 Notice, Designating Aliens for Expedited Removal, which expanded to the maximum extent permitted by the Immigration and Nationality Act (INA) the application of expedited removal procedures to noncitizens not already covered by previous designations. The INA expressly authorizes the application of expedited removal procedures to noncitizens "arriving in the United States," while also authorizing the Secretary of Homeland Security to extend (by designation) such procedures to certain other categories of noncitizens present in the United States. The INA permits the Secretary, in her or his sole and unreviewable discretion, to modify any such designations at any time. By rescinding only the designation of the class of noncitizens covered by the July 23, 2019 Notice, this Notice leaves in effect the prior discretionary designations that have, for over two decades, extended expedited removal to additional categories of noncitizens.
Full Text
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<title>Federal Register, Volume 87 Issue 54 (Monday, March 21, 2022)</title>
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[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Pages 16022-16024]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05961]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
RIN 1601-ZA22
Rescission of the Notice of July 23, 2019, Designating Aliens for
Expedited Removal
AGENCY: Office of the Secretary, Department of Homeland Security.
ACTION: Notice.
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SUMMARY: This Notice rescinds the July 23, 2019 Notice, Designating
Aliens for Expedited Removal, which expanded to the maximum extent
permitted by the Immigration and Nationality Act (INA) the application
of expedited removal procedures to noncitizens not already covered by
previous designations. The INA expressly authorizes the application of
expedited removal procedures to noncitizens ``arriving in the United
States,'' while also authorizing the Secretary of Homeland Security to
extend (by designation) such procedures to certain other categories of
noncitizens present in the United States. The INA permits the
Secretary, in her or his sole and unreviewable discretion, to modify
any such designations at any time. By rescinding only the designation
of the class of noncitizens covered by the July 23, 2019 Notice, this
Notice leaves in effect the prior discretionary designations that have,
for over two decades, extended expedited removal to additional
categories of noncitizens.
DATES: The rescission of the Notice published at 84 FR 35409 on July
23, 2019, is effective on March 21, 2022.
FOR FURTHER INFORMATION CONTACT: Ihsan Gunduz, Office of Strategy,
Policy, and Plans, Department of Homeland Security, Washington, DC
20528, (202) 282-9708.
SUPPLEMENTARY INFORMATION:
I. Background
A. DHS Statutory Authority Over Expedited Removal Procedures
Under section 235(b)(1) of the Immigration and Nationality Act
(INA), 8 U.S.C. 1225(b)(1), the Department of Homeland Security (DHS or
Department) \1\ may remove certain noncitizens \2\ without a hearing
before an immigration judge under what are known as ``expedited
removal'' procedures. The INA itself authorizes immigration officers to
apply expedited removal procedures to noncitizens ``arriving in the
United States.'' The INA also grants the Secretary authority to apply
expedited removal procedures (by designation) to ``any or all''
noncitizens referred to in the statute as ``certain other aliens.'' INA
235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I). A noncitizen is
within the class of ``certain other aliens'' if the noncitizen ``has
not been admitted or paroled into the United States, and . . . has not
affirmatively shown, to the satisfaction of an immigration officer,
that the alien has been physically present in the United States
continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility.'' INA 235(b)(1)(A)(iii)(II), 8 U.S.C.
1225(b)(1)(A)(iii)(II). Such designation ``shall be in the sole and
unreviewable discretion'' of the Secretary and ``may be modified at any
time.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR
235.3(b)(1)(ii). Those noncitizens ``arriving in the United States''
and those covered by an expedited removal designation must be
determined to be inadmissible under INA 212(a)(6)(C), 8 U.S.C.
1182(a)(6)(C), for fraud or willful misrepresentation, or INA
212(a)(7), 8 U.S.C. 1182(a)(7), for lack of valid immigration
documents, to be amenable to expedited removal. INA 235(b)(1)(A)(ii), 8
U.S.C. 1225(b)(1)(A)(ii).
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\1\ Section 235 of the INA continues to refer to the Attorney
General, but the Homeland Security Act of 2002 (HSA), Public Law
107-296, 116 Stat. 2135, transferred immigration enforcement
authorities to the Secretary of Homeland Security and provided that
any reference to the Attorney General in a provision of the INA
describing functions that were transferred from the Attorney General
or other Department of Justice officials to DHS by the HSA ``shall
be deemed to refer to the Secretary'' of Homeland Security. 6 U.S.C.
557 (codifying HSA sec. 1517); see also 6 U.S.C. 542 note; 8 U.S.C.
1551 note.
\2\ For purposes of this Notice, DHS uses the term
``noncitizen'' to mean any person as defined in section 101(a)(3) of
the INA, 8 U.S.C. 1101(a)(3).
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Previous Secretaries--and, prior to enactment of the HSA, the
Attorney General and the Commissioner of the former Immigration and
Naturalization Service (INS)--have exercised their statutory authority
to facilitate the application of expedited removal procedures to
certain categories of noncitizens. In 1997, the Department of Justice
issued regulations implementing the application of expedited removal
procedures to ``arriving aliens.'' \3\ 62 FR 10312, 10313-14 (Mar. 6,
1997). In 2002, the INS Commissioner designated as amenable to
expedited removal noncitizens who arrive in the United States by sea,
are not paroled or admitted into the United States, and ``have not been
physically present in the United States continuously for the two-year
period prior to the determination of inadmissibility under'' the
Notice. 67 FR 68924 (Nov. 13, 2002). In 2004, the Secretary designated
as amenable to expedited removal a category consisting of noncitizens
encountered within 100 air miles of the border and within 14 days of
their date of entry regardless of the noncitizen's method of arrival.
69 FR 48877 (Aug. 11, 2004).\4\
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\3\ ``Arriving alien'' is defined in regulations as ``an
applicant for admission coming or attempting to come into the United
States at a port-of-entry, or an alien seeking transit through the
United States at a port-of-entry, or an alien interdicted in
international or United States waters and brought into the United
States by any means, whether or not to a designated port-of-entry,
and regardless of the means of transport.'' 8 CFR 1.2, 1001.1(q).
\4\ See also 82 FR 4902, 4904 (Jan. 17, 2017) (eliminating
regulatory exceptions in the 2002 and 2004 notices to expedited
removal for Cuban nationals encountered in the United States or
arriving by sea).
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In 2019, the Department issued a notice, Designating Aliens for
Expedited Removal, 84 FR 35409 (July 23, 2019), expanding expedited
removal procedures to noncitizens not already covered by previous
designations. This new designation expanded the permissible use of
expedited removal procedures to all amenable noncitizens not covered
under previous designations found anywhere in the United States who
have not been admitted or paroled and have not been physically present
in the United States continuously for the 2-year period prior to the
date of determination of inadmissibility. See 84 FR 35413-35414.
The authority to designate certain noncitizens to whom expedited
removal procedures may be applied is entrusted by statute to the ``sole
and unreviewable discretion'' of the Secretary. INA
235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR
235.3(b)(1)(ii). The statute provides that the Secretary may apply (by
designation) expedited removal to any noncitizen ``who has not been
admitted or paroled into the United States, and
[[Page 16023]]
who has not affirmatively shown, to the satisfaction of an immigration
officer, that the alien has been physically present in the United
States continuously for the 2-year period immediately prior to the date
of the determination of inadmissibility. . . .'' INA
235(b)(1)(A)(iii)(II), 8 U.S.C. 1225(b)(1)(A)(iii)(II). Congress
provided that such designation ``may be modified at any time.'' INA
235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR
235.3(b)(1)(ii).
The Secretary's ``sole and unreviewable'' discretion was recently
affirmed by the U.S. Court of Appeals for the District of Columbia
Circuit, which, along with the D.C. District Court, has exclusive
jurisdiction over any challenge to implementation of the expedited
removal procedures. INA 242(e)(3), 8 U.S.C. 1252(e)(3). The court of
appeals held that the ``sole and unreviewable'' and ``may be modified
at any time'' language of the statute ``could hardly be a more
definitive expression of congressional intent to leave the decision
about the scope of expedited removal, within statutory bounds, to the
Secretary's independent judgment,'' Make the Road New York v. Wolf, 962
F.3d 612, 632 (D.C. Cir. 2020), and courts lack any basis to
``substantively superintend the Secretary's designation judgment.'' Id.
at 633. Moreover, the Secretary's ``judgment is committed to agency
discretion by law and, under Section 701 of the Administrative
Procedure Act (APA), there is no cause of action to evaluate the merits
of the Secretary's judgment under APA standards.'' Id. Finally, the
authority to issue such designations is exempt from notice-and-comment
procedures as the Secretary may ``expand[ ] or contract[ ] the scope of
[any] designation'' and ``is under no duty to consider the views of
others in expanding or contracting the scope of the designation.'' Id.
at 634-35. As the Secretary ``would be free to ignore the comments,''
requiring the Secretary to utilize the notice-and-comment process
``would be an empty, yet time-consuming, exercise--all form and no
substance.'' Id. at 635. Accordingly, ``there is no cause of action
under the [APA] to scrutinize the Secretary's designation decision so
long as it falls within statutory and constitutional bounds.'' Id. The
Secretary is now choosing to exercise his discretionary authority
afforded by the statute to rescind the July 2019 Notice and the
expanded designation it effectuated.
B. Reasons for Rescinding the July 2019 Notice Designating Aliens for
Expedited Removal
As noted above, the Secretary's designation authority is
``committed to agency discretion by law'' and the scope of expedited
removal is left to the Secretary's ``independent judgment,'' id. at
632-34--that is, it is well within the Secretary's authority to make
this determination without offering justification. See id. at 633
(``Congress deliberately chose in the Designation Provision to commit
such enforcement and resource judgments to the Secretary's `sole and
unreviewable discretion[.]' ''). Nevertheless, this section explains
the Department's reasoning in rescinding the July 2019 Notice and
returning the application of expedited removal to the longstanding
parameters that were in place prior to that date.
On February 2, 2021, President Joseph R. Biden, Jr. issued an
Executive Order on Creating a Comprehensive Regional Framework to
Address the Causes of Migration, to Manage Migration Throughout North
and Central America, and to Provide Safe and Orderly Processing of
Asylum Seekers at the United States Border (``E.O. on Migration''). See
E.O. 14010, 86 FR 8267 (Feb. 5, 2021). The E.O. on Migration directs
the Secretary of Homeland Security to promptly review and consider
whether to modify, revoke, or rescind the July 2019 Notice regarding
the geographic scope of expedited removal pursuant to INA section
235(b)(1), 8 U.S.C. 1225(b)(1), consistent with applicable law. It also
directed that the review shall consider our legal and humanitarian
obligations, constitutional principles of due process and other
applicable law, enforcement resources, the public interest, and any
other factors consistent with this order that the Secretary deems
appropriate. Additionally, if the Secretary determines that modifying,
revoking, or rescinding the designation is appropriate, it directs the
Secretary to do so through publication in the Federal Register. See 85
FR 8270-8271.
As directed by the E.O. on Migration, the Department conducted its
review of the July 2019 Notice. The Secretary determined that
maintaining the authority to apply expedited removal to the maximum
extent provided by statute is inadvisable at this time due to the
Department's need to prioritize the use of its limited enforcement
resources, as well as the operational complexities of implementing the
July 2019 Notice. The Department believes that expedited removal is
best focused as a border enforcement tool on recent entrants
encountered in close proximity to the border or its functional
equivalent (e.g., air and land ports of entry), rather than on
individuals apprehended throughout the United States without
geographical limitation, who may have developed significant ties to the
community. This is consistent with prior determinations made by DHS and
INS. See, e.g., 69 FR 48879 (``In the interests of focusing enforcement
resources upon unlawful entries that have a close spatial and temporal
nexus to the border, this notice does not implement the full nationwide
expedited removal authority available . . . . It is anticipated under
this designation that expedited removal will be employed against those
aliens who are apprehended immediately proximate to the land border and
have negligible ties or equities in the U.S.''); 62 FR 10313 (``The
Department [of Justice] acknowledges that application of the expedited
removal provisions to aliens already in the United States will involve
more complex determinations of fact and will be more difficult to
manage[.]'').
The Department notes the high number of encounters along the
Southwest land border, and the continually shifting demographic
characteristics of noncitizens encountered. The high number of
apprehensions overall require significantly more DHS resources to
process and adjudicate. A substantial number of border encounters are
now children and family units, and the overall volume of children and
family unit encounters has been increasing, representing a major break
from historical trends, with substantial repercussions for immigration
enforcement. Humanitarian concerns and legal protections make
processing children and family units much more complex and resource-
intensive than processing single adults. In addition, as U.S.
Immigration and Customs Enforcement (ICE) and U.S. Customs and Border
Protection (CBP) have limited facilities set aside for women or family
units (or children, in the case of CBP), both are dealing with much
more diverse demographic profiles than their infrastructures were
designed to manage.
Given the operational constraints associated with current encounter
trends and the Department's limited enforcement resources, the
Secretary believes that expedited removal is best applied at or along
the border or its functional equivalent (e.g., air and land ports of
entry) and for noncitizens who entered the United States recently,
consistent with longstanding practice
[[Page 16024]]
and in furtherance of border security aims. Retaining the expanded
expedited removal authority would require time- and fact-intensive
training for all current officers, agents, and supervisors that would
detract from multiple new initiatives presently being introduced to the
workforce to better serve enforcement priority mission areas.
Additionally, as the use of expanded expedited removal would involve
complex new challenges for the ICE workforce, it would come with
increased risk of otherwise avoidable legal challenges to the agency's
enforcement actions. The fact that the expanded expedited removal
authority was used so rarely by ICE officers during the approximately
one year that it was available to them reflects the operational
complexities and limited utility that it presented in practice.
Because the July 2019 Notice did not rescind or modify any earlier
designation, its rescission has the effect of restoring the limitations
on the applicability of expedited removal procedures that applied
before the date of its adoption (July 23, 2019). The Secretary reserves
his prerogative to determine in the future whether and to what extent
new designations or further discretionary modifications of designations
under INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii), and 8 CFR
235.3(b)(1)(ii) may be undertaken.
C. This Rescission Is Immediately Effective
This Rescission is effective without prior notice and comment or a
delayed effective date. Congress explicitly authorized the Secretary to
designate categories of noncitizens to whom expedited removal
procedures may be applied. It also made clear that ``[s]uch designation
shall be in the sole and unreviewable discretion of the [Secretary] and
may be modified at any time.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C.
1225(b)(1)(A)(iii)(I). Therefore, the Secretary's designation, within
statutory bounds, is ``committed to agency discretion by law and . . .
there is no cause of action to evaluate the merits of the Secretary's
judgment under APA standards.'' Make the Road, 962 F.3d at 633-34.
Furthermore, as the D.C. Circuit held, based on the statutory language
allowing for modification of the designation ``at any time'' and in his
``sole and unreviewable discretion,'' the Department does not have to
undertake the notice-and-comment rulemaking process. Id. at 635.
In keeping with the practice followed in announcing previous
designations, consistent with the statute at INA 235(b)(1)(A)(iii)(I),
8 U.S.C. 1225(b)(1)(A)(iii)(I) and implementing regulations at 8 CFR
235.3(b)(1)(ii), and for the reasons explained above, this designation
is effective without prior notice and comment or a delayed effective
date. See, e.g., 67 FR 68925; 69 FR 48880; 82 FR 4769; 82 FR 4902; 84
FR 35413. As discussed above, the rulemaking procedures of the APA do
not apply to this Notice and the expansion or contraction of a
designation may be made ``at any time.'' Make the Road, 962 F.3d at
634-35 (internal quotations omitted).
II. Rescission of the Notice of July 23, 2019, Designating Aliens for
Expedited Removal
Pursuant to INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii), and
8 CFR 235.3(b)(1)(ii), I order, in my sole and unreviewable discretion,
as follows:
(1) The Notice titled Designating Aliens for Expedited Removal, 84
FR 35409 (July 23, 2019), is hereby rescinded, effective immediately.
(2) With the exception of the July 23, 2019 Notice rescinded above,
this Rescission Notice does not supersede, abrogate, amend, or modify
any of the previous designations under INA 235(b)(1)(A)(iii), 8 U.S.C.
1225(b)(1)(A)(iii). See 82 FR 4902 (Jan. 17, 2017); 69 FR 48877 (Aug.
11, 2004); 67 FR 68924 (Nov. 13, 2002). They shall remain in full force
and effect in accordance with their respective terms.
Signed at Washington, DC.
Alejandro N. Mayorkas,
Secretary, Department of Homeland Security.
[FR Doc. 2022-05961 Filed 3-18-22; 8:45 am]
BILLING CODE 9110-9M-P
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</html>Indexed from Federal Register on March 21, 2022.
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