16022 Federal Register / Vol. 87, No. 54 / Monday, March 21, 2022 / Notices 

1Section 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. 

2For 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). 

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). 

4See 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). 

Presidentially Declared Disaster Assistance— 

Disaster Housing Operations for Individuals 

and Households; 97.050, Presidentially 

Declared Disaster Assistance to Individuals 

and Households—Other Needs; 97.036, 

Disaster Grants—Public Assistance 

(Presidentially Declared Disasters); 97.039, 

Hazard Mitigation Grant. 

Deanne Criswell, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2022–05912 Filed 3–18–22; 8:45 am] 

BILLING CODE 9111–23–P 

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. 

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). 

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 twoyear 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

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 


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Federal Register / Vol. 87, No. 54 / Monday, March 21, 2022 / Notices 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-andcomment 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 


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16024 Federal Register / Vol. 87, No. 54 / Monday, March 21, 2022 / Notices 

and in furtherance of border security 

aims. Retaining the expanded expedited 

removal authority would require timeand 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 

DEPARTMENT OF HOMELAND 

SECURITY 

U.S. Citizenship and Immigration 

Services 

[OMB Control Number 1615–0068] 

Agency Information Collection 

Activities; Extension, Without Change, 

of a Currently Approved Collection: 

Registration for Classification as a 

Refugee 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security. 

ACTION: 30-Day notice. 

SUMMARY: The Department of Homeland 

Security (DHS), U.S. Citizenship and 

Immigration Services (USCIS) will be 

submitting the following information 

collection request to the Office of 

Management and Budget (OMB) for 

review and clearance in accordance 

with the Paperwork Reduction Act of 

1995. The purpose of this notice is to 

allow an additional 30 days for public 

comments. 

DATES: Comments are encouraged and 

will be accepted until April 20, 2022. 

ADDRESSES: Written comments and/or 

suggestions regarding the item(s) 

contained in this notice, especially 

regarding the estimated public burden 

and associated response time, must be 

submitted via the Federal eRulemaking 

Portal website at http://

www.regulations.gov under e-Docket ID 

number USCIS–2007–0036. All 

submissions received must include the 

OMB Control Number 1615–0068 in the 

body of the letter, the agency name and 

Docket ID USCIS–2007–0036. 

FOR FURTHER INFORMATION CONTACT: 

USCIS, Office of Policy and Strategy, 

Regulatory Coordination Division, 

Samantha Deshommes, Chief, 

Telephone number (240) 721–3000 

(This is not a toll-free number; 

comments are not accepted via 

telephone message.). Please note contact 

information provided here is solely for 

questions regarding this notice. It is not 

for individual case status inquiries. 

Applicants seeking information about 

the status of their individual cases can 

check Case Status Online, available at 

the USCIS website at http://

www.uscis.gov, or call the USCIS 

Contact Center at (800) 375–5283; TTY 

(800) 767–1833. 

SUPPLEMENTARY INFORMATION: 

Comments 

The information collection notice was 

previously published in the Federal 

Register on September 8, 2021, at 86 FR 

50368, allowing for a 60-day public 

comment period. USCIS did receive one 

comment in connection with the 60-day 

notice. 

You may access the information 

collection instrument with instructions, 

or additional information by visiting the 

Federal eRulemaking Portal site at: 

http://www.regulations.gov and enter 

USCIS–2007–0036 in the search box. 

The comments submitted to USCIS via 

this method are visible to the Office of 

Management and Budget and comply 

with the requirements of 5 CFR 

1320.12(c). All submissions will be 

posted, without change, to the Federal 

eRulemaking Portal at http://

www.regulations.gov, and will include 

any personal information you provide. 

Therefore, submitting this information 

makes it public. You may wish to 

consider limiting the amount of 

personal information that you provide 

in any voluntary submission you make 


khammond on DSKJM1Z7X2PROD with NOTICES