[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Pages 16022-16024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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]
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