84 FR 35409 Designating Aliens for Expedited Removal

Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices
CBP regulations for the purposes of
conducting a test program or procedure
designed to evaluate the effectiveness of
new technology or operational
procedures regarding the processing of
passengers, vessels, or merchandise.
IV. Privacy
CBP will ensure that all Privacy Act
requirements and applicable policies are
adhered to during the implementation
of this pilot.

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V. Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
of 1995 (44 U.S.C. 3507(d)) requires that
CBP consider the impact of paperwork
and other information collection
burdens imposed on the public. The
PRA applies to collections of
information imposed on ‘‘ten or more
persons.’’ This pilot will initially
include fewer than ten participants and
as such will not require an OMB control
number. If CBP expands the pilot to
include ten or more persons, CBP will
adhere to the requirements of the PRA.
VI. Misconduct Under the Pilot
A pilot participant may be subject to
civil and criminal penalties,
administrative sanctions, liquidated
damages, or discontinuance from
participation in the Section 321 Data
Pilot for any of the following:
(1) Failure to follow the rules, terms,
and conditions of this pilot;
(2) Failure to exercise reasonable care
in the execution of participant
obligations; or
(3) Failure to abide by applicable laws
and regulations that have not been
waived.
If the Director, Intellectual Property
Rights and E-Commerce Division, Office
of Trade, finds that there is a basis for
discontinuance of pilot participation
privileges, the pilot participant will be
provided a written notice proposing the
discontinuance with a description of the
facts or conduct warranting the action.
The pilot participant will be offered the
opportunity to appeal the decision in
writing within 10 calendar days of
receipt of the written notice. The appeal
of this determination must be submitted
to the Executive Director, Trade Policy
and Programs, Office of Trade, by
emailing e-commercesmallbusiness
[email protected].
The Executive Director, Trade Policy
and Programs, Office of Trade, will
issue a decision in writing on the
proposed action within 30 working days
after receiving a timely filed appeal
from the pilot participant. If no timely
appeal is received, the proposed notice
becomes the final decision of the
Agency as of the date that the appeal

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period expires. A proposed
discontinuance of a pilot participant’s
privileges will not take effect unless the
appeal process under this paragraph has
been concluded with a written decision
adverse to the pilot participant.
In cases of willfulness or those in
which public health, interest, or safety
so requires, the Director, Intellectual
Property Rights and E-Commerce
Division, Office of Trade, may
immediately discontinue the pilot
participant’s privileges upon written
notice to the pilot participant. The
notice will contain a description of the
facts or conduct warranting the
immediate action. The pilot participant
will be offered the opportunity to appeal
the decision within 10 calendar days of
receipt of the written notice providing
for immediate discontinuance. The
appeal of this determination must be
submitted to the Executive Director,
Trade Policy and Programs, Office of
Trade, by emailing ecommercesmallbusinessbranch@
cbp.dhs.gov.
The immediate discontinuance will
remain in effect during the appeal
period. The Executive Director, Trade
Policy and Programs, Office of Trade,
will issue a decision in writing on the
discontinuance within 15 working days
after receiving a timely filed appeal
from the pilot participant. If no timely
appeal is received, the notice becomes
the final decision of the Agency as of
the date that the appeal period expires.
Date: July 18, 2019.
Robert E. Perez,
Deputy Commissioner, U.S. Customs and
Border Protection.
[FR Doc. 2019–15625 Filed 7–22–19; 8:45 am]
BILLING CODE 9111–14–P

DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
[DHS Docket No. DHS–2019–0036]

Designating Aliens for Expedited
Removal
Office of the Secretary,
Department of Homeland Security.
ACTION: Notice.
AGENCY:

This Notice (this Notice)
enables the Department of Homeland
Security (DHS) to exercise the full
remaining scope of its statutory
authority to place in expedited removal,
with limited exceptions, aliens
determined to be inadmissible under
sections 212(a)(6)(C) or (a)(7) of the
Immigration and Nationality Act (INA
or the Act) who have not been admitted

SUMMARY:

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35409

or paroled into the United States, and
who have not affirmatively shown, to
the satisfaction of an immigration
officer, that they have been physically
present in the United States
continuously for the two-year period
immediately preceding the date of the
determination of inadmissibility.
Presently, immigration officers can
apply expedited removal to aliens
encountered anywhere in the United
States for up to two years after the alien
arrived in the United States, provided
that the alien arrived by sea and the
other conditions for expedited removal
are satisfied. For aliens who entered the
United States by crossing a land border,
the Secretary of Homeland Security has
exercised his discretion under the INA
to permit the use of expedited removal
if the aliens were encountered by an
immigration officer within 100 air miles
of the United States international land
border and were continuously present
in the United States for less than 14
days immediately prior to that
encounter. The INA grants the Secretary
of Homeland Security the ‘‘sole and
unreviewable discretion’’ to modify at
any time the discretionary limits on the
scope of the expedited removal
designation. The Acting Secretary of
Homeland Security is exercising his
statutory authority through this Notice
to designate for expedited removal the
following categories of aliens not
previously designated: (1) Aliens who
did not arrive by sea, who are
encountered anywhere in the United
States more than 100 air miles from a
U.S. international land border, and who
have been continuously present in the
United States for less than two years;
and (2) aliens who did not arrive by sea,
who are encountered within 100 air
miles from a U.S. international land
border, and who have been
continuously present in the United
States for at least 14 days but for less
than two years. Therefore, the
designation in this Notice (the New
Designation) harmonizes the
authorization for aliens arriving by land
with the existing authorization for
aliens arriving by sea. The effect of that
change will be to enhance national
security and public safety—while
reducing government costs—by
facilitating prompt immigration
determinations. In particular, the New
Designation will enable DHS to address
more effectively and efficiently the large
volume of aliens who are present in the
United States unlawfully, without
having been admitted or paroled into
the United States, and ensure the
prompt removal from the United States
of those not entitled to enter, remain, or

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be provided relief or protection from
removal.
DATES: This Notice, including the New
Designation, is effective on July 23,
2019. Interested persons are invited to
submit written comments on this Notice
on or before September 23, 2019.
ADDRESSES: You may submit comments,
identified by Docket Number DHS–
2019–0036 using the Federal eRulemaking Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT:
Ihsan Gunduz, Policy Analyst, Office of
Policy, Department of Homeland
Security, 202–282–9708.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for
Comments
The Department of Homeland
Security (DHS) is requesting public
comments on the substance of this
Notice as a matter of discretion. As
discussed in Section D below, the
Administrative Procedure Act’s (APA)
notice-and-comment requirements do
not apply to this Notice, and the New
Designation is effective immediately
upon publication. However, DHS
believes that by maintaining a dialogue
with interested parties, DHS can ensure
that it is even more effective in
addressing the significant national
security and public safety interests
implicated with respect to aliens
present in the United States who
entered the United States without
admission or parole and have been
continuously present in the United
States for at least 14 days but less than
two years after their entry regardless of
where in the U.S. they are encountered,
and those continuously present for up to
14 days who are encountered more than
100 miles from a land border, while at
the same time continuing to ensure
appropriate procedural safeguards for
affected individuals.
We encourage commenters to submit
comments through the Federal eRulemaking Portal at https://
www.regulations.gov. Please follow the
website instructions for submitting
comments. If you cannot submit your
comments using the Federal eRulemaking Portal, please contact the
person in the FOR FURTHER INFORMATION
CONTACT section of this notice for
alternate instructions.
Comments received by means other
than those listed above or comments
received after the comment period has
closed will not be reviewed. Comments

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posted on the Federal e-Rulemaking
portal are available and accessible to the
public. All comments received will be
posted without change on https://
www.regulations.gov. Commenters
should not include personal information
such as Social Security Numbers,
personal addresses, telephone numbers,
and email addresses in their comments
as such information will become
viewable by the public on the http://
www.regulations.gov website. It is the
commenter’s responsibility to safeguard
his or her information.
II. Background
A. DHS Statutory Authority Over
Expedited Removal Proceedings
Under section 235(b)(1) of the INA, 8
U.S.C. 1225(b)(1), DHS 1 may remove,
without a hearing before an immigration
judge, certain aliens arriving in the
United States at a port of entry, and
certain other aliens (as designated by
the Secretary of Homeland Security and
as discussed more below) who are
inadmissible under sections 212(a)(6)(C)
or 212(a)(7) of the INA, 8 U.S.C.
1182(a)(6)(C) or 1182(a)(7). Sections
212(a)(6)(C) and 212(a)(7) of the INA
designate aliens as inadmissible if they
lack valid documents that are necessary
for admission, or if they have ever
fraudulently or willfully misrepresented
a material fact to acquire admission to
the United States, including whether
they are a U.S. citizen, or to procure a
visa or other immigration-related
documentation. Unaccompanied alien
children, as defined in 6 U.S.C.
279(g)(2), may not be placed in
expedited removal under current
law.2 See 8 U.S.C. 1232(a)(5)(D).
The Secretary, in his ‘‘sole and
unreviewable discretion,’’ may
designate certain aliens to whom the
expedited removal provisions may be
applied. INA section 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
alien ‘‘who has not been admitted or
1 The INA provided the Attorney General those
authorities; however, under section 1517 of title XV
of the Homeland Security Act of 2002 (HSA), Public
Law 107–296, 116 Stat. 2135, 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
official to DHS by the HSA ‘‘shall be deemed to
refer to the Secretary’’ of Homeland Security. See
6 U.S.C. 557 (2003) (codifying HSA, tit. XV, sec.
1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
2 In certain limited circumstances, an
unaccompanied alien child who is a national or
habitual resident of a contiguous country (i.e.,
Mexico or Canada) may be permitted to withdraw
his or her application for admission to the United
States and return to such contiguous country
without a removal hearing. See 8 U.S.C. 1232(a)(2).

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paroled into the United States, and 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 section 235(b)(1)(A)(iii)(II), 8 U.S.C.
1225(b)(1)(A)(iii)(II). In other words,
Congress provided the Secretary, in his
sole and unreviewable discretion, the
authority to apply expedited removal to
aliens inadmissible under INA section
212(a)(6)(C) or 212(a)(7), who had not
been admitted or paroled and who
could not prove that they have been
continuously present in the United
States for two years.
In 1997, the Attorney General
promulgated a regulation applying
expedited removal to aliens arriving in
the United States at a port-of-entry and
aliens interdicted in international or
United States waters. Inspection and
Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of
Removal Proceedings; Asylum
Procedures, 62 FR 10,312 (Mar. 6, 1997)
(the 1997 Regulation). The 1997
Regulation also delegated the Attorney
General’s authority to the Commissioner
of the former Immigration and
Naturalization Service (INS) and
established a mechanism for later
designations of aliens subject to
expedited removal. See id. The Attorney
General ‘‘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.’’ See id.
In 2002, the Commissioner of the INS
invoked this authority to designate as
eligible for expedited removal aliens
who arrived in the United States by sea,
were not paroled or admitted into the
United States, and ‘‘who have not been
physically present in the United States
continuously for the two-year period
prior to the determination of
inadmissibility under’’ the Notice.
Notice Designating Aliens Subject to
Expedited Removal Under Section
235(b)(1)(a)(iii) of the Immigration and
Nationality Act, 67 FR 68923 (Nov. 13,
2002) (the 2002 Notice). Under the 2002
Notice, immigration officers could apply
expedited removal to aliens
encountered anywhere in the United
States for up to two years after the alien
arrived in the United States, as long as
the alien arrived by sea and the other

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conditions for expedited removal were
satisfied.
In 2004, the Secretary designated
additional aliens for expedited removal
through a Federal Register notice,
pursuant to which DHS officials could
apply expedited removal to aliens
encountered within 100 air miles of the
border and within 14 days of their date
of entry regardless of the alien’s method
of arrival, as long as the other
conditions for expedited removal were
satisfied. Designating Aliens for
Expedited Removal, 69 FR 48877 (Aug.
11, 2004) (the 2004 Notice, and, together
with the 1997 Regulation and the 2002
Notice, collectively the Previous
Designations); see also Eliminating
Exception To Expedited Removal
Authority for Cuban Nationals
Encountered in the United States or
Arriving by Sea, 82 FR 4902 (Jan. 17,
2017). The 2004 Notice explained that
in the interest of focusing limited
resources ‘‘upon unlawful entries that
have a close spatial and temporal nexus
to the border,’’ the 2004 Notice did not
implement ‘‘the full nationwide
expedited removal authority available to
DHS.’’ It did, however, expressly reserve
to DHS the option of ‘‘implementing the
full nationwide enforcement authority
of the statute through publication of a
subsequent Federal Register notice.’’
Designating Aliens for Expedited
Removal, 69 FR at 48879.
In recent years, increasing numbers of
aliens have been detained after being
apprehended within the interior of the
United States, necessitating a change in
the focus of limited government
resources to include the use of
expedited removal proceedings for
aliens apprehended within the U.S.
interior, as well as near the border.
Aliens otherwise subject to expedited
removal who indicate either an
intention to apply for asylum or a fear
of persecution or torture will be given
further review by an asylum officer
including an opportunity to establish a
‘‘credible fear,’’ and thus potential
eligibility for asylum. INA section
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i);
8 CFR 235.3(b)(4). Further, an alien
otherwise subject to expedited removal
is ‘‘given a reasonable opportunity to
establish to the satisfaction of the
examining immigration officer that he or
she was admitted or paroled into the
United States.’’ 8 CFR 235.3(b)(6).
Aliens who have not been admitted or
paroled and who are subject to
expedited removal have the burden of
proving that they are not inadmissible
and satisfy the continuous physical
presence requirement. 8 CFR
235.3(b)(1)(ii). Any absence from the
United States serves to break the period

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less than two years. ICE estimates that
a significant number of the aliens it
encounters in the interior likely would
have been eligible for expedited removal
had DHS used its discretion to exercise
its full statutory authority. Placing
certain aliens apprehended in the
interior of the United States in
expedited removal would allow ICE to
more effectively use its limited
detention resources. In FY 2018, the
average time in DHS custody for aliens
placed in expedited removal was 11.4
B. DHS Need for the New Designation
days. Conversely, for inadmissible
In light of the ongoing crisis at the
aliens encountered in the interior of the
southern border, the large number of
United States and placed into full
aliens who entered illegally and were
removal proceedings, the average time
apprehended and detained within the
in DHS custody was 51.5 days. Under
interior of the United States, and DHS’s
the New Designation, ICE will be able to
insufficient detention capacity both
use expedited removal for certain aliens
along the border and in the interior of
who it arrests in the interior, which will
the United States, DHS is issuing the
likely result in those aliens spending
New Designation to use more effectively less time in ICE detention than if they
and efficiently its limited resources to
were placed in full removal
fulfill its mission to enforce the
proceedings. That, in turn, will more
immigration laws and ensure the
quickly make available additional ICE
security of the Nation’s borders. See
bed space, which can be used for
INA section 103(a)(5), 8 U.S.C.
additional interior arrests and removals.
1103(a)(5); 6 U.S.C. 202; Exec. Order
Additionally, the Acting Secretary of
13767, Border Security and Immigration Homeland Security has determined that
Enforcement Improvements, 82 FR 8793, the implementation of additional
section 1 (Jan. 25, 2017) (Border
measures is a necessary response to the
Security E.O.) (‘‘Border security is
ongoing immigration crisis. Presently,
critically important to the national
U.S. Border Patrol and ICE lack
security of the United States. Aliens
sufficient detention capacity and
who illegally enter the United States
resources to detain the vast majority of
without inspection or admission present aliens DHS apprehends along the
a significant threat to national security
southern border. As a result, hundreds
and public safety.’’). Fully exercising
of thousands of aliens are released into
DHS’s statutory expedited removal
the interior of the United States,
authority to include certain aliens who
pending the outcome of their
would not be subject to expedited
immigration proceedings. However, by
removal under the Previous
more effectively utilizing ICE’s limited
Designations will provide to DHS
resources, more aliens apprehended
officers a valuable tool to fulfill their
along the southern border likely will be
mission.
able to be detained in ICE custody,
Fully implementing expedited
where they can be more quickly
removal will help to alleviate some of
processed and removed from the
the burden and capacity issues currently country than if they had been released
faced by DHS and DOJ by allowing DHS into the interior of the United States.
to remove certain aliens encountered in The New Designation will also allow
the interior more quickly, as opposed to ICE to place into expedited removal
placing those aliens in more timecertain aliens that cross the border
consuming removal proceedings.
illegally but evade apprehension due to
Indeed, many of the aliens previously
vulnerabilities in border operations
encountered in the interior of the
resulting from U.S. Border Patrol’s lack
United States likely would have been
of sufficient resources.
eligible for expedited removal under
Additionally, immigration courts
this Notice. In Fiscal Year (FY) 2018,
nationwide are experiencing a historic
37% (20,570) of ICE’s 54,983 total
backlog of removal cases, and noninterior encounters, with entry dates,
detained cases are taking years to
were of aliens who had been present in
complete. In June 2019, EOIR reported
the United States for less than two
a total of 909,034 pending immigration
years. Through March 30, 2019, 39%
cases. By contrast, there were fewer than
(6,410) of U.S. Immigration and
168,000 cases pending at the end of
Customs Enforcement’s (ICE) 15,328
Fiscal Year 2004 when DHS exercised
its discretion to apply expedited
total interior encounters, with entry
removal to certain aliens encountered
dates, in FY2019 were aliens who had
within 100 miles of the border who
been present in the United States for
of continuous physical presence. Id.
Aliens determined by immigration
officers to be subject to expedited
removal nonetheless will receive
prompt review of that determination if
they claim under oath, after being
warned of the penalties for perjury, that
they have been admitted for permanent
residence, admitted as a refugee, granted
asylum, or are a U.S. citizen. INA
section 235(b)(1)(C), 8 U.S.C.
1225(b)(1)(C); 8 CFR 235.3(b)(5)(i).

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could not establish to the satisfaction of
an immigration officer that they have
been physically present in the United
States continuously for the previous 14
days. The current number of pending
immigration cases represents a
substantial increase of the number of
cases pending completion in 2004,
notwithstanding the 2004 Notice.
Moreover, the average non-detained
alien’s removal proceeding has been
pending for more than two years before
an immigration judge. That backlog
includes many cases involving aliens
who were encountered by an
immigration officer during the two-year
period after they illegally entered the
United States, but who were not covered
by a Previous Designation. DHS expects
that the New Designation will help
mitigate additional backlogs in the
immigration courts and will reduce the
significant costs to the government
associated with full removal
proceedings before an immigration
judge, including the costs of a longer
detention period and government
representation in those proceedings.
DHS acknowledges that it will need to
devote certain additional resources to
implement this Notice, including by
making credible fear determinations for
certain aliens placed in expedited
removal proceedings. Nonetheless, DHS
anticipates that the mitigation of
additional backlogs in the immigration
courts, the reduction of costs associated
with placing aliens in full removal
proceedings, and the ability to use
limited resources and detention
capacity more effectively outweighs any
additional costs to the government.
Under this Notice, the Acting
Secretary is designating as eligible for
expedited removal: (1) Aliens who did
not arrive by sea, who are encountered
anywhere in the United States more
than 100 air miles from a U.S.
international land border, and who have
been continuously present in the United
States for less than two years; and (2)
aliens who did not arrive by sea, who
are encountered within 100 air miles
from a U.S. international land border,
and who have been continuously
present in the United States for at least
14 days but for less than two years. The
designation under the 2004 Notice
restricting expedited removal to those
encountered within 100 miles of the
border makes insufficient use of the
authorities Congress has granted to
address the current immigration crisis,
the large number of aliens illegally
present in the United States, insufficient
DHS resources, and the backlog of
removal cases before immigration judges
and the Board of Immigration Appeals.

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The statute places no geographic
limitation on the application of
expedited removal. DHS has anecdotal
evidence, moreover, that many aliens
who have been smuggled into the
United States hide in ‘‘safe houses’’ that
are located more than 100 miles from
the nearest land border. For instance, in
2019, ICE conducted a ‘‘knock and talk’’
of a safe house in Roswell, New Mexico,
which is more than 100 miles from the
nearest land border, and encountered 67
illegal aliens, resulting in arrests and
numerous charges. In 2018, ICE
executed a search warrant at a safe
house in San Antonio, Texas, during an
extortion attempt tied to a human
smuggling event, resulting in the rescue
of three victims and arrests and charges
against the subjects with alien
smuggling.
Under the Previous Designations,
DHS officers could not apply expedited
removal to those individuals, thus
limiting the availability of an important
authority that Congress has granted to
DHS for quickly and efficiently
removing certain inadmissible aliens.
Under this Notice, DHS anticipates that
this broader use of expedited removal
orders will reduce incentives not only to
enter unlawfully but also to attempt to
travel quickly into the interior of the
United States in an effort to avoid the
application of expedited removal. It will
also accelerate the processing of covered
inadmissible aliens, because expedited
removal does not entail merits hearings
before an immigration judge or appeals
to the Board of Immigration Appeals
except upon positive fear
determinations. Therefore, designating
aliens encountered anywhere in the
United States, who are not subject to a
Previous Designation, will help to
ensure efficient removal from the
United States of aliens who cannot
establish a credible fear of persecution
or torture.
DHS has determined that the volume
of illegal entries, and the attendant risks
to national security and public safety
presented by these illegal entries,
warrants this immediate
implementation of DHS’s full statutory
authority over expedited removal. This
Notice will ensure that those
individuals present in the United States
without being admitted or paroled,
particularly those who evade
apprehension at the southern border, are
quickly and efficiently removed (except
if they have demonstrated a credible
fear of persecution or torture). DHS
expects that the full use of expedited
removal statutory authority will
strengthen national security, diminish
the number of illegal entries, and
otherwise ensure the prompt removal of

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aliens apprehended in the United
States. And it will further Congress’s
purpose for creating expedited removal
procedures, which was ‘‘to expedite the
removal from the United States of aliens
who indisputably have no authorization
to be admitted to the United States
. . . .’’ H.R. Rept. 104–828 at 209
(1996). Accordingly, immigration
officers may now use expedited removal
authority not only for those individuals
apprehended at or near the border, but
also for those individuals who evade
detection at the border and are
apprehended within two years
thereafter anywhere within the United
States.
C. Implementation Considerations
As in the case of the Previous
Designations, immigration officers
generally have broad discretion to apply
expedited removal to individuals
covered under the New Designation. See
Matter of E–R–M– & L–R–M–, 25 I&N
Dec. 520, 523 (BIA 2011) (holding that
language in INA section 235(b)(1)(A)(i)
does not limit DHS’s discretion to place
aliens amenable to expedited removal
into removal proceedings under INA
section 240). DHS recognizes that the
circumstances of certain aliens,
including aliens with serious medical
conditions and aliens who have
substantial connections to the United
States, for example, may weigh against
the discretionary use of expedited
removal proceedings.3 Accordingly, in
appropriate circumstances, and as an
exercise of prosecutorial discretion,
immigration officers, in their sole and
unreviewable discretion, may permit
certain aliens otherwise eligible for
placement into expedited removal
proceedings to return voluntarily,
withdraw their applications for
admission, or be placed in full removal
proceedings under section 240 of the
Act, in lieu of expedited removal. DHS
plans to issue guidance to immigration
officers to guide the exercise of
discretion in referring aliens for
expedited removal.
The expedited removal procedures
required under existing law and
regulations are applicable to the aliens
designated by this Notice.4 As required
3 Trump v. Int’l Refugee Assistance Project, 582
U.S. ___, No. 16–1436, slip op. at 11 (noting that
‘‘foreign nationals abroad who have no connection
to the United States at all’’ can be denied entry as
such a denial does not ‘‘impose any legally relevant
hardship’’ on the foreign nationals themselves).
4 Under existing law, aliens wishing to apply for
asylum are required by statute to do so within one
year of entering the United States. INA section
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). See also
Convention relating to the Status of Refugees, art.
31(1), July 28, 1951, 189 U.N.T.S. 137, 174 (obliging
refugees to ‘‘present themselves without delay to

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by statute and regulation, any alien who
falls within the New Designation, who
is placed in expedited removal, and
who indicates an intention to apply for
asylum or expresses a fear of
persecution or torture or a fear of return
to his or her country, will be
interviewed by an asylum officer who
will determine whether the alien has a
credible fear of persecution or torture.
See INA section 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v); 8 CFR 235.3(b)(4),
208.30. DHS expects to continue to use
the form I–867A/B, which includes
questions officers must ask with respect
to fear of return. Immigration officers
are trained to be alert for indications
that the alien may be afraid to return to
his or her country. See INA section
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E).5
Aliens that express a fear of return are
referred for an interview with an asylum
officer. INA section 235(b)(1)(A)(ii); 8
U.S.C. 1225(b)(1)(A)(ii); 8 CFR
235.3(b)(4). Asylum officers determining
that an alien has or has not established
a credible fear are to provide a written
record of the factual basis for their
determination. See INA sections
235(b)(1)(B)(iii)(II), 8 U.S.C.
1225(b)(1)(B)(iii)(II).
If an asylum officer determines that
the alien has established a credible fear
of persecution or torture, the alien will
be referred to an immigration judge for
further consideration of the alien’s
application for asylum. INA section
235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii); 8 CFR 208.30, 235.6. If
the officer determines that the alien has
not established a credible fear of
persecution or torture, the alien may
request de novo review by an
immigration judge of the officer’s
negative credible fear determination.
See INA section 235(b)(1)(B)(iii)(III), 8
U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
208.30(g), 1003.42, 1208.30,
1235.3(b)(4).
Similarly, all aliens placed in
expedited removal as a result of the
New Designation who claim lawful
permanent resident, refugee, or asylee
status, or U.S. citizenship will have the
benefit of the same procedural
safeguards that apply in all expedited
removal proceedings. See INA section
242(e)(2); 8 CFR 235.3(b); 1235.3(b)(5).
D. This Notice Is Immediately Effective
In keeping with the practice followed
in announcing the Previous
the authorities and show good cause for their illegal
entry or presence’’).
5 As the New Designation will result in greater
use of expedited removal by ICE immigration
officers, ICE will also develop and deploy updated
training on the use of this authority, including
proper referral of aliens for credible fear screening.

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Designations, and consistent with
implementing regulations at 8 CFR
235.3(b)(1)(ii),6 this designation is
effective without prior notice and
comment or a delayed effective date.
See, e.g., 67 FR 68923, 68925 (2002
Notice); 69 FR 48877, 48880 (2004
Notice); 82 FR 4769, 4769 (2017
elimination of exception for Cuban
nationals arriving by air); 82 FR. 4902,
4902 (2017 elimination of exception for
Cuban nationals encountered in the
United States or arriving by sea). The
rulemaking procedures of the APA do
not apply to this Notice, because
delaying the New Designation’s
implementation to allow public notice
and comment would be impracticable,
unnecessary, and contrary to the public
interest. Cf. 5 U.S.C. 553(b)(3)(B) and
(d)(3).
Implementation of the New
Designation is exempt from notice-andcomment requirements, because public
notice and comment and the delay
attendant thereon would be
impracticable, unnecessary, and
contrary to the public interest. See 5
U.S.C. 553(b)(B) and (d)(3). Congress
explicitly authorized the Secretary of
Homeland Security to designate
categories of aliens to whom expedited
removal may be applied on a case-bycase basis, and 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
section 235(b)(1)(A)(iii)(I), 8 U.S.C.
1225(b)(1)(A)(iii)(I). As such, the
Secretary’s designation is not required
to go through notice-and-comment
rulemaking. Indeed, the application of
APA’s notice-and-comment
requirements would defeat a major
purpose of the expedited removal
provision: To allow the Secretary to
authorize immigration officers to
respond rapidly, effectively, and
flexibly to border security and public
safety challenges, including urgent
situations such as the present high
number of aliens unlawfully entering
and remaining in the United States and
the lack of sufficient DHS resources to
deal with these aliens. Consistent with
the mandate of INA section
6 8 CFR 235.3(b)(1)(ii) (providing that ‘‘[t]he
Commissioner shall have the sole discretion to
apply the provisions of section 235(b)(1) of the Act,
at any time, to any class of aliens described in this
section’’ and that this ‘‘designation shall become
effective upon publication of a notice in the Federal
Register’’ as well as that, ‘‘if the Commissioner
determines, in the exercise of discretion, that the
delay caused by publication would adversely affect
the interests of the United States or the effective
enforcement of the immigration laws, the
Commissioner’s designation shall become effective
immediately upon issuance, and shall be published
in the Federal Register as soon as practicable
thereafter’’ (emphasis added)).

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235(b)(1)(A)(iii)(I), 8 U.S.C.
1225(b)(1)(A)(iii)(I), that the Secretary
may modify the scope of expedited
removal under section 235(b)(1)(A)(iii)
‘‘at any time,’’ such designation ‘‘shall
become effective upon publication of a
notice in the Federal Register.’’ 8 CFR
235.3(b)(1)(ii) (noting that such
designation where appropriate ‘‘shall
become effective immediately upon
issuance’’). Accordingly, it is
appropriate to publish such designation,
effective immediately, without prior
notice and comment.
Indeed, as in the cases of the Previous
Designations, DHS is concerned that
delayed implementation could lead to a
surge in migration across the southern
border during a notice-and-comment
period. See 67 FR 68,924, 68,925; 82 FR
4902, 4904. ‘‘Such a surge would
threaten national security and public
safety by diverting valuable Government
resources from counterterrorism and
homeland security responsibilities. A
surge could also have a destabilizing
effect on the region, thus weakening the
security of the United States and
threatening its international relations.
Additionally, a surge could result in
significant loss of human life.’’ 82 FR
4902, 4904.
In addition, DHS could not
meaningfully implement INA section
235(b)(1)(A)(iii)(I), which establishes
that the Secretary’s designation ‘‘may be
modified at any time,’’ if such
modification is not effective until after
notice and comment rulemaking. The
New Designation is necessary to remove
from the United States inadmissible
aliens not covered by a Previous
Designation who are encountered less
than two years after entering the United
States without admission or parole.
Although DHS believes that prepromulgation notice-and-comment
procedures are neither statutorily
mandated nor in the interests of the
United States with respect to this
Notice, DHS is interested in receiving
comments from the public on all aspects
of this Notice. DHS believes that by
maintaining a dialogue with interested
parties, DHS may be better positioned to
ensure that it is even more effective in
combating and deterring illegal entry,
while at the same time providing for
appropriate procedural safeguards for
the individuals designated.
III. Notice of Designation of Aliens
Subject To Expedited Removal
Pursuant to section 235(b)(1)(A)(iii) of
the Immigration and Nationality Act
(INA) and 8 CFR 235.3(b)(1)(ii), I order,
in my sole and unreviewable discretion,
as follows:

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Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices

(1) Except as otherwise expressly
provided, the Department of Homeland
Security may place in expedited
removal any or all members of the
following class of aliens (other than
unaccompanied alien children as
defined in 6 U.S.C. 279(g)(2)) as
determined by an immigration officer:
Aliens who are inadmissible under
sections 212(a)(6)(C) or (7) of the INA,
who are physically present in the
United States without having been
admitted or paroled following
inspection by an immigration officer at
a designated port of entry, and who
either (a) did not arrive by sea, are
encountered by an immigration officer
anywhere in the United States more
than 100 air miles from a U.S.
international land border, and have not
been physically present in the United
States continuously for the two-year
period immediately prior to the date of
the determination of inadmissibility, or
(b) did not arrive by sea, are
encountered by an immigration officer
within 100 air miles from a U.S.
international land border, and have
been physically present in the United
States continuously at least 14 days but
less than two years immediately prior to
the date of the determination of
inadmissibility. Each alien placed in
expedited removal under this
designation bears the affirmative burden
to show to the satisfaction of an
immigration officer that the alien has
been present in the United States
continuously for the relevant period.
This designation does not apply to
aliens who arrive at U.S. ports of entry,
because those aliens are already subject
to expedited removal. Nor does this
designation apply to or otherwise affect
aliens who satisfy the expedited
removal criteria set forth in any of the
previous designations. See 82 FR 4902,
69 FR 48877; 67 FR 68923 (collectively,
the Previous Designations).
(2) Any alien who is placed in
expedited removal under this
designation who indicates an intention
to apply for asylum or who expresses a
fear of persecution or torture, or a fear
of return to his or her country, will be
interviewed by an asylum officer to
determine whether such alien has a
credible fear as defined in section
235(b)(1)(B)(v) of the INA, 8 U.S.C.
1225(b)(1)(B)(v). If the asylum officer
determines that the alien has
established a credible fear, the alien will
be referred to an immigration judge for
further consideration of his or her
application for asylum in proceedings
under section 240 of the INA, 8 U.S.C.
1229a.
(3) Any alien who is placed in
expedited removal under this

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designation who claims lawful
permanent resident, refugee, or asylee
status, or U.S. citizenship will be
reviewed in accordance with the
procedures provided in 8 CFR 235.3(b)
and 8 CFR 1235.3(b).
(4) This Notice applies to aliens
described in paragraph (1) on or after
July 23, 2019.
(5) This Notice does not supersede,
abrogate, or amend or modify any of the
Previous Designations, which shall
remain in full force and effect in
accordance with their respective terms.
Signed at Washington, DC, this 19th day of
July 2019.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019–15710 Filed 7–22–19; 8:45 am]
BILLING CODE 9110–9M–P

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–7012–N–03]

60-Day Notice of Proposed Information
Collection: Application for Community
Compass TA and Capacity Building
Program NOFA and Awardee
Reporting
Office of Community Planning
and Development, HUD.
ACTION: Notice.
AGENCY:

HUD is seeking approval from
the Office of Management and Budget
(OMB) for the information collection
described below. In accordance with the
Paperwork Reduction Act, HUD is
requesting comment from all interested
parties on the proposed collection of
information. The purpose of this notice
is to allow for 60 days of public
comment.
DATES: Comments Due Date: September
23, 2019.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposal. Comments should refer to
the proposal by name and/or OMB
Control Number and should be sent to:
Colette Pollard, Reports Management
Officer, QDAM, Department of Housing
and Urban Development, 451 7th Street
SW, Room 4186, Washington, DC
20410–5000; telephone 202–402–3400
(this is not a toll-free number) or email
at [email protected] for a copy of
the proposed forms or other available
information. Persons with hearing or
speech impairments may access this
number through TTY by calling the tollfree Federal Relay Service at (800) 877–
8339.
FOR FURTHER INFORMATION CONTACT:
Kenneth Rogers, Senior CPD Specialist,
SUMMARY:

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Kenneth Rogers at Kenneth.W.Rogers@
hud.gov or telephone 202–402–4396.
This is not a toll-free number. Persons
with hearing or speech impairments
may access this number through TTY by
calling the toll-free Federal Relay
Service at (800) 877–8339.
Copies of available documents
submitted to OMB may be obtained
from Ms. Pollard.
SUPPLEMENTARY INFORMATION: This
notice informs the public that HUD is
seeking approval from OMB for the
information collection described in
Section A.
A. Overview of Information Collection
Title of Information Collection:
Application for Community Compass
Technical Assistance and Capacity
Building Program Notice of Funding
Availability (NOFA).
OMB Approval Number: 2506–0197.
Type of Request: Extension.
Form Number: SF–424, SF424CB, SF–
424CBW, SF–425, SF–LLL, HUD–2880,
HUD–50070, HUD–XXX, HUD–XXX,
HUD–XXX, HUD–XXX, HUD–XXX,
HUD–XXX, and Grants.gov Lobbying
Form Certification.
Description of the need for the
information and proposed use:
Application information is needed to
determine competition winners, i.e., the
technical assistance providers best able
to develop efficient and effective
programs and projects that increase the
supply of affordable housing units,
prevent and reduce homelessness,
improve data collection and reporting,
and use coordinated neighborhood and
community development strategies to
revitalize and strengthen their
communities. Additional information is
needed during the life of the award from
the competition winner, i.e., the
technical assistance providers to fulfill
the administrative requirements of the
award.
Application/Pre-Award
Respondents (i.e., affected public):
For profit and non-profit organizations.
Estimated Number of Respondents:
60.
Estimated Number of Responses: 60.
Frequency of Response: 1.
Average Hours per Response: 118.14.
Application/Pre-Award Total
Estimated Burden: 7,088.40.
Post-Award
Estimated Number of Respondents/
Awardees: 30.
Work Plans: 10 per year/awardee.
Average Hours per Response: 18.
Reports: 4 per year/awardee.
Average Hours per Response: 6.
Recordkeeping: 12 per year/awardee.

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