BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service and
Executive Office for Immigration Review
8 CFR Parts 1, 3, 103, 204, 207, 208, 209, 211, 212, 213, 214, 216, 217, 221,
223, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246,
248, 249, 251, 252, 253, 274a, 286, 287, 299, 316, 318, and 329
[INS No. 1788-96; AG ORDER No.]
RIN 1115-AE47
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures
AGENCY: Immigration and Naturalization Service, Justice, and Executive Office
for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
SUMMARY: This interim rule amends the regulations of the Immigration and
Naturalization Service (Service) and the Executive Office for Immigration Review
(EOIR) to implement the provisions of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) governing expedited and regular
removal proceedings, handling of asylum claims, and other activities involving
the apprehension, detention, hearing of claims and ultimately the removal of
inadmissible and deportable aliens. This rule incorporates a number of changes
which are a part of the Administration s reinvention and regulation streamlining
initiative.
DATES: Effective date: This interim rule is effective April 1, 1997.
Comment date: Written comments must be submitted on or before [Insert date 120
days from date of publication in the FEDERAL REGISTER].
ADDRESSES: Please submit written comments, in triplicate, to the Director,
Policy Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW, Room 5307, Washington, DC 20536. To ensure proper
handling, please reference INS number 1788-96 on your correspondence. Comments
are available for public inspection at the above address by calling (202) 514-
3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: For matters relating to the Executive Office for
Immigration Review - Peggy Philbin, General Counsel, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041,
telephone number (703) 305-0470; for asylum issues - Michael Shaul, Field Manual
Project Office, Immigration and Naturalization Service, 425 I Street NW, ULLB-
4th Floor, Washington, DC 20536, telephone number (202) 616-7439; for
inspections issues - Linda Loveless, Office of Inspections, Immigration and
Naturalization Service, 425 I Street NW, Room 4064, Washington, DC 20536,
telephone number (202) 616-7489; for detention and removal issues - Len
Loveless, Office of Detention and Deportation, Immigration and Naturalization
Service, 425 I Street NW, Room 3008, Washington, DC 20536, telephone number (202)
616-7799.
SUPPLEMENTARY INFORMATION:
Background
The Immigration and Naturalization Service and the Executive Office for
Immigration Review jointly published a proposed rule on January 3, 1997 (62 FR
443-517 (1997)), to implement sections of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. 104-208, which was enacted on
September 30, 1996. This legislation significantly amended the Immigration and
Nationality Act (Act) by revising the asylum process and providing a mechanism
for the determination and review of certain applicants who demonstrate a credible
fear of persecution if returned to their own country; expanding the grounds of
inadmissibility; redefining applicants for admission to include aliens who
entered the United States without inspection; creating new expedited removal
procedures for aliens attempting to enter the United States through fraud or
misrepresentation or without proper documents; consolidating the former exclusion
and deportation proceedings into one unified removal proceeding; and reorganizing
and renumbering numerous provisions of existing law.
The effective date of most of the provisions affecting asylum, inspection, and
removal processes is April 1, 1997, and implementing regulations must be in place
by March 1, 1997. The proposed rule allowed only a 30-day comment period. The
limited comment period was necessary, given the short statutory deadline and the
time needed to draft the rule, coordinate with interested agencies, and complete
the regulatory review process by the Office of Management and Budget. In order
to meet the statutory deadline for an implementing regulation and yet provide
adequate opportunity for public input on the issues addressed in this rulemaking,
this rule is being published as an interim rule with an additional 120-day
comment period.
The Department received 124 comments on the proposed rule. Most of the
commenters represented either attorney organizations or voluntary organizations
predominantly involved with refugees and asylum claimants. Commenters addressed
a variety of topics, with much of the focus on asylum, expedited removal, and
voluntary departure. The Department also received comments from individual
members of Congress and Congressional subcommittees. Since many of the comments
were duplicative or endorsed the submissions of other commenters, they will be
addressed by topic, rather than referencing each specific comment and commenter.
Also, because many of the comments were complex and dealt with issues that may be
better addressed after the Department has had a period of time to gain
operational experience under the new law, suggestions that were not adopted for
the interim period will be further considered when a final rule is prepared. A
number of comments were received concerning sections of the regulations that were
not specifically changed by the proposed rule, but were simply moved to new
sections. The Department has not addressed these comments at this time, but will
consider them either as part of separate rulemaking initiatives or as part of the
final rule rather than the interim rule, after the Service and EOIR more closely
study the proposals. This supplementary information will identify significant
changes made to the proposed rule and briefly discuss reasons why many other
major suggestions were not adopted at this time.
Although the Department has addressed the major comments received, there will
be further detailed analysis of these comments, as well as consideration of the
additional comments received during the 120-day comment period following
publication of the interim regulation. This will ensure every suggestion is more
fully explored. Commenters responding to the interim rule may choose to amend or
expand on prior comments or address other areas not raised by commenters during
the first comment period.
Definitions
Several sections of the statute, such as sections 212(a)(9), 240B, and 241 of
the Act, refer to arriving aliens, even though this term is not defined in
statute. After carefully considering these references, the Department felt that
the statute seemed to differentiate more clearly between aliens at ports-of-entry
and those encountered elsewhere in the United States. For clarity, arriving
alien was specifically defined in 8 CFR part 1, and the Department invited
commentary on the proper scope of the regulatory definition.
One commenter suggested that aliens interdicted in United States waters should
not be included in the definition because persons arriving in United States
waters have already legally arrived in the United States. The Board of
Immigration Appeals (BIA) has consistently held that the mere crossing into the
territorial waters of the United States has never satisfied the test of having
entered the United States. See Matter of G, 20 I&N Dec. 764 (BIA 1993). Aliens
who have not yet established physical presence on land in the United States
cannot be considered as anything other than arriving aliens. In addition, the
Department has for years relied on interdiction efforts to stem the flow of
inadmissible aliens and attempted illegal entries by sea. The inclusion of
aliens interdicted at sea in the definition of arriving alien will support the
Department s mandate to protect the nation s borders against illegal immigration.
These provisions in no way alter the Department s current interdiction policy and
should not be construed as to require that all interdicted aliens be brought to
the United States. Only when an express decision is made, in accordance with
existing interdiction policies, to transport an interdicted alien to the United
States, will that alien be considered an arriving alien for purposes of the Act.
Another commenter suggested that the definition be expanded to include aliens
who have been present for less than 24 hours in the United States without
inspection and admission. The Department extensively considered this and similar
options, such as a distance-based distinction. For the reasons discussed below
relating to the decision not to apply the expedited removal provisions at this
time to certain aliens who entered without inspection, and considering the
difficulty not only in establishing that the alien entered without inspection,
but also in determining the exact time of the alien s arrival, the Department
continues to believe the position taken in the proposed rule is correct and will
not modify this definition in the interim rule. The definition of arriving
alien will be given further consideration in the final rule, however, drawing
upon the experience of the early implementation of the interim rule.
One commenter objected to the inclusion of parolee in the definition of
arriving alien. The definition in the proposed rule states An arriving alien
remains such even if paroled pursuant to section 212(d)(5) of the Act. The
inclusion of paroled aliens was based on the statutory language in section
212(d)(5) of the Act, which states . . . but such parole of such alien shall not
be regarded as an admission of the alien and when the purposes of such parole
shall, in the opinion of the Attorney General, have been served the alien shall
forthwith return or be returned to the custody from which he or she was paroled
and thereafter his case shall continue to be dealt with in the same manner as
that of any other applicant for admission to the United States. Existing
regulations at _ 212.5(d) relating to termination of parole echo this provision,
stating . . . he or she shall be restored to the status he or she had at the
time of parole. The Department feels there is solid statutory basis for
inclusion of certain paroled aliens in the definition of arriving alien, and so
will retain this provision.
The Department has added two additional definitions for the sake of clarity.
The term Service counsel has been added to clarify that although the term
refers to any immigration officer designated to represent the Service before the
Immigration Court or the BIA. Existing regulations interchangeably use this term
and a variety of other terms, including trial attorney, district counsel and
assistant district counsel. The term aggravated felony has also been defined
by reference to section 101(a)(43) of the Act as amended by IIRIRA. The
regulatory definition clarifies that the amended section 101(a)(43) applies to
any proceeding, application, custody determination or adjudication.
Parole of Aliens
This interim rule modifies _ 212.5(a) to comport with the statutory change
made by IIRIRA to section 212(d)(5)(A) of the Act.
Withdrawal of Application for Admission
The proposed rule contains provisions to implement the longstanding practice
used by the Service to permit applicants for admission to voluntarily withdraw
their application for admission to the United States in lieu of removal
proceedings, now included in section 235(a)(4) of the Act. The withdrawal
provisions in the proposed rule were written to conform with rulings of the BIA
on withdrawal and with standard practice in many jurisdictions. Several
commenters suggested that every alien subject to the expedited removal provisions
should automatically be offered the opportunity to withdraw his or her
application for admission prior to the secondary inspection interview.
Permission to withdraw an application for admission is solely at the discretion
of the Attorney General and is not a right of the alien, a premise that has been
consistently upheld by the BIA. Only the Attorney General may decide whether to
pursue removal charges against an alien who has violated the immigration laws.
Withdrawal of application for admission is only one of several discretionary
options that may be considered by the Service once the facts of the case are
known, and so will not automatically be offered to all aliens subject to
expedited removal.
The Department does, however, share the concern of several commenters that
aliens who may be inadvertently or unintentionally in violation of the
immigration laws or regulations should not be subject to the harsh consequences
of a formal removal order. The Department also wishes to ensure that the
expedited removal provisions and the discretionary option to permit withdrawal
are applied consistently and fairly throughout the nation. Although not included
in the regulations at this time, the Department intends to formulate policy
guidance and criteria for determining the types of cases in which such permission
should or should not be considered.
Classes Subject to Expedited Removal
The Department requested public comment regarding the appropriate use of the
authority conferred by the statute upon the Attorney General to expand the class
of aliens subject to expedited removal. Most commenters commended the Department
on its decision not to apply at this time the expedited removal provisions to
aliens in the United States who have not been admitted or paroled and who cannot
establish continuous physical presence in the United States for the previous two
years. At this time, the Department will apply the provisions only to arriving
aliens, as defined in _ 1.1(q). The Department 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,
and therefore wishes to gain insight and experience by initially applying these
new provisions on a more limited and controlled basis.
The Department does, however, reserve the right to apply the expedited removal
procedures to additional classes of aliens within the limits set by the statute,
if, in the Commissioner's discretion, such action is operationally warranted. It
is emphasized that a proposed expansion of the expedited removal procedures may
occur at any time and may be driven either by specific situations such as a
sudden influx of illegal aliens motivated by political or economic unrest or
other events or by a general need to increase the effectiveness of enforcement
operations at one or more locations.
Although several commenters suggested that imposition of the provisions should
only occur after publication of a proposed rule followed by a comment period,
the statute does not impose any specific notice requirement in connection with
the Attorney General's designation under section 235(b)(1)(A)(3), and certainly
does not impose the requirement of a full administrative rulemaking. Indeed,
such a requirement would defeat a major purpose of this provision: to allow the
Attorney General to respond rapidly, effectively, and flexibly to situations of
mass influx or other exigencies. The Attorney General has elected to exercise
this authority in connection with publication of a notice in the Federal Register
(in advance, where practicable) simply as a matter of sound administration and
policy. The provisions contained in _ 235.3(b) of this interim rule will apply
for now only to arriving aliens.
Several commenters suggested that certain classes of individuals, such as
minors, certain nonimmigrant classifications, and aliens claiming to be lawful
permanent residents or U.S. citizens, should not be subject to expedited removal,
or that it should not be applied where resources or location do not permit
optimal inspection conditions. Some stated that aliens in expedited removal
should be entitled to a full hearing before an immigration judge. The statute is
clear that the expedited removal provisions apply to all aliens inadmissible
under sections 212(a)(6)(C) or (7) of the Act, and that such aliens are not
entitled to further hearing or review with specific limited exceptions. Although
the statute does not require it, the Department has provided for supervisory
review and concurrence on all expedited removal orders. The statute itself
provides for review of a claim to lawful permanent resident, refugee, or asylee
status. In addition, the Department has a certain amount of prosecutorial
discretion provided by statute. It may, in lieu of instituting removal
proceedings, permit an alien to withdraw his or her application for admission in
those cases where there is no fraudulent intent and the alien is inadmissible
only through inadvertent error or misinformation. There are also discretionary
waivers available in certain cases.
Reorganization of _ 235.3(b)(1) and (2)
In order to provide a more logical discussion of the applicability of the
expedited removal provisions and the procedures for applying them, _ 235.3(b)(1)
(determination of inadmissibility) and _ 235.3(b)(2) (applicability) as they
appeared in the proposed regulation have been interchanged and revised as
discussed below.
Expedited Removal Procedures
Many commenters stated that the provisions in _ 235.3(b) were not sufficiently
explicit to ensure that the expedited removal provisions are fairly and
consistently applied. Because most of these commenters represented organizations
primarily concerned with refugee and asylum issues, we have addressed this topic
in detail below in the section relating to credible fear determinations and
claims of asylum or fear of persecution by aliens subject to expedited removal.
Review of Claim of Status as Lawful Permanent Resident, Asylee, or Refugee
Several commenters suggested provisions of _ 235.3(b)(5) were not
sufficiently clear to provide adequate review of claims by returning lawful
permanent residents, asylees, or refugees who are subject to expedited removal.
Specifically, the commenters asserted that _ 235.3(b)(5)(ii) could be interpreted
to imply that an alien whose claim to lawful permanent residence is verified and
is not granted a discretionary waiver or provided an opportunity through deferred
inspection to present the required documents could be ordered removed under
section 235(b) of the Act. These commenters requested that _ 235.3(b)(5)(iv) of
the proposed regulation be amended to allow that claimed lawful permanent
residents, asylees, or refugees (who the Service has been unable to verify ever
was admitted in such status) be referred directly to removal proceedings under
section 240 of the Act.
For the following reasons, these sections of the proposed regulation will not
be changed in the interim rule. Section 235.3(b)(5)(ii) of the proposed
regulation relates to those arriving aliens whose prior admission as a lawful
permanent resident has been verified by the immigration officer by referring to
official Service records. The Department intends that when such a prior
admission is verified, the individual will not be removed under the expedited
removal provisions of section 235(b) of the Act, regardless of the officer s
determination as to the individual s current admissibility and/or retention of
such lawful permanent status. For that reason the first sentence of _
235.3(b)(5)(ii) sets forth this prohibition. Since the removal provisions under
section 235(b) of the Act are not available, the only actions left for the
examining officer are to: admit the individual (through the grant of a waiver if
need be); defer inspection to allow the individual to retrieve the appropriate
documents; or place the person in removal proceedings under section 240 of the
Act. This process will allow those individuals verified as having once been
admitted as a lawful permanent resident, asylee, or refugee a full evidentiary
hearing in removal proceedings under section 240 of the Act before an immigration
judge to address the heavily fact-based issues of abandonment of status or other
issues concerning loss of status. The language may initiate proceedings was
used here to indicate that the officer is not required to initiate any
proceedings but may opt to admit the individual into the United States.
As for those individuals claiming to be returning lawful permanent residents,
asylees, or refugees, but who are not verified by the Service as having ever been
admitted in such status, the referral to the immigration judge in _
235.3(b)(5)(iv) is for the purpose of allowing the individual to establish such a
prior admission in such status, nothing more. If the individual establishes such
a prior admission, the immigration judge will terminate the expedited removal
order and at that point that person will be in the same position as the person
whose prior admission was verified by the inspecting Service officer: the Service
can admit the individual or contest his or her current retention of such status
in the context of removal proceedings under section 240 of the Act.
Another commenter contended that it is not appropriate to refer aliens who are
verified as having been admitted or establish that they were once admitted as
lawful permanent residents, asylees, or refugees to proceedings under section 240
of the Act. Section 235(b)(1)(C) of the Act states that the Attorney General
shall provide regulations for administrative review of an expedited removal order
entered against an alien who claims under oath. . . to have been lawfully
admitted as a lawful permanent resident, asylee, or refugee. The statute
provides no further directive as to how aliens who actually have been admitted in
such status are to be processed if, in fact, the Service believes that such
status may no longer be valid. If that claim is never verified or established
before the inspecting Service officer or an Immigration Judge, the expedited
removal order entered against the alien will be effected and the alien will be
removed from the United States. However, once an alien establishes admission in
such status, it is not inconsistent with the statute for further proceedings
against an alien known to have been lawfully admitted as a permanent resident,
asylee, or refugee to occur in the context of proceedings under section 240 of
the Act. Further, given the greater interests and ties to the United States
normally at stake for such aliens compared to those arriving without any previous
status, the Department considers it appropriate that verified arriving permanent
residents, asylees, and refugees be accorded the protections inherent in
proceedings under section 240 of the Act.
Review of Claim to U.S. Citizenship
Several commenters stated that while the statute and regulations provide for
review of an expedited removal order of an alien claiming to be a lawful
permanent resident, refugee, or asylee, there is no such provision for review of
a claim to U.S. citizenship. While U.S. citizens are not subject to the
inadmissibility and removal provisions of the Act and the Department makes every
effort to prevent the inadvertent removal of U.S. citizens, there are
approximately 35,000 false claims to U.S. citizenship made every year at ports-
of-entry. Congress recognized this problem in IIRIRA by adding a new ground of
inadmissibility to section 212(a)(6)(C)(ii) of the Act specifically designating
such aliens as inadmissible and subject to the expedited removal provisions.
Existing regulations at _ 235.1(b), which have been in place for many years,
place the burden of establishing a claim to U.S. citizenship on the person
seeking entry. Otherwise, that person is inspected as an alien. To provide an
additional level of review and safeguard against a mistaken determination, the
Department will institute the same procedures contained in _ 235.3(b)(5) for
persons who have not been able to establish U.S. citizenship, but who maintain a
claim under oath or under penalty of perjury to be U.S. citizens, which are used
for persons claiming to be lawfully admitted as permanent residents, refugees, or
asylees.
Several commenters stated that the regulations do not provide any criteria for
the detention or release of these individuals. The provisions of _
235.3(b)(2)(iii) requiring detention of all aliens subject to the expedited
removal provisions and issued a removal order also apply to persons whose claim
to lawful permanent resident, refugee, asylee, or U.S. citizen status has not
been verified. To clarify that detention is required for these individuals, the
interim rule reiterates this requirement in _ 235.3(b)(5)(i).
Filing of an Application for a Refugee Travel Document While Outside the United
States
Several commenters remarked favorably on the proposal to revise 8 CFR part 223
to allow refugees and asylees to apply for refugee travel documents from outside
the United States, after departure from the United States, under certain very
limited circumstances. The Department proposed this revision with full awareness
of the provision in section 208(c)(1) of the Act under which the Attorney General
may allow the alien to travel abroad with the prior consent of the Attorney
General. Despite the implied language of the statute, the Department felt that
an exception was warranted for those cases where the alien innocently departed in
ignorance of the requirement or, although aware of the requirement, departed
without applying for the document due to an urgent humanitarian need, such as the
impending death of a close relative. It should be noted that the current
regulations only require that an application be filed before departure, not that
the applicant delay travel until after the application is approved and the
document is received. The Service has always provided the option of allowing the
alien to pick up the document overseas at an American consular post.
A few commenters suggested that the decision whether to accept such
applications not be left to the discretion of the Service. This change has been
made. However, the regulation does not remove the general requirement that the
application be filed before departure, nor does it intend that the new procedure
be viewed as a routine method of obtaining the document. Although not
specifically stated in the regulation, the Department intends that if it is
apparent that the alien knew of the general requirement and simply chose to
ignore it (e.g., if the alien had previously been issued a refugee travel
document through this overseas procedure and there was no emergency
necessitating the more recent departure), the director may determine that
favorable exercise of discretionary authority is not warranted. Accordingly, the
regulation provides that the district director having jurisdiction over the
overseas location, or over the inspection facility in the case of an alien at a
port-of-entry, may deny the application as a matter of discretion.
A few commenters suggested that there be no limit on how long after departure
the application may be filed. Others suggested that the time limit be shortened
from 1 year to 6 months to coincide with the 6 month time frame in section
101(a)(13)(C) of the Act, which is the period during which a lawful permanent
resident who meets certain other requirements is not considered to be an
applicant for admission. Another commenter stated that
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