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


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)




  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.


  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


  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


  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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