INS Notice Expanding Expedited Removal to Cover Aliens Arriving by Sea
INS Expands Expedited Removal to Cover Aliens Arriving by Sea
The INS has designated a new class of aliens subject to expedited removal. Upon publication of a notice in the Fed. Reg. (expected shortly), “certain aliens who arrive in the U.S. by sea, either by boat or other means, who are not admitted or paroled,” will be subject to expedited removal and will be detained during the course of any proceedings. Click on the below links to view: an INS statement, fact sheet, and draft Federal Register notice.INS StatementINS Announces Notice Concerning Expedited Removal
The Immigration and Naturalization Service (INS) remains committed to ensuring that all aliens are treated humanely and fairly under the law. The arrival of the smuggling vessel on Key Biscayne in South Florida on October 29 underscores the need to do so. In that incident, 211 Haitians and 3 Dominicans came ashore illegally, which raises concerns about a dangerous mass migration by sea that could cost many lives.
As a nation that respects human rights and human life, it is essential that we address this situation fairly and with an eye toward deterring dangerous, unsafe voyages to the United States. In 1996, the Congress enacted expedited removal procedures and authorized the Commissioner of the Immigration and Naturalization Service to designate any group of individuals for placement in expedited removal proceedings.
Therefore, we are publishing in the Federal Register a notification that from the date of publication forward, all individuals who arrive illegally by sea will be placed in expedited removal proceedings and during their legal process will remain in detention at the discretion of the Immigration and Naturalization Service and Department of Justice. The decision announced today is not a change in policy but a continuation of recent policies and the activation of pre-existing authority. While expedited removal will be applied from today forward, our policy of deterring mass migration has led us to seek the continued detention of the migrants arriving on the October 29 vessel as well. Cuban nationals are subject to the 1966 Cuban Adjustment Act and will continue to be processed consistent with that law.
In expedited removal proceedings, under U.S. law, even if an individual establishes a credible fear of persecution, the Attorney General and the INS Commissioner retain the authority to detain individuals without bond while their immigration hearings and any appeals take place. Individuals may be released for humanitarian reasons at the discretion of the Immigration and Naturalization Service.
The United States government continues to believe, based on information received from a variety of federal agencies, that the detention of these aliens has significant implications for the national security. These concerns focus on two areas. First, there is evidence that shows the government's legitimate concern that the release of aliens who arrive illegally by sea may increase future mass migrations by sea, and the potential for death and injury to those attempting to migrate.
Second, key resources of the Coast Guard and Department of Defense would be diverted from the primary mission of protecting the homeland and fighting the war on terrorism. Any message that may encourage a mass migration and detract federal resources from our homeland defense is unacceptable. Rumors of successful entry into the United States have fueled recent migration surges, and any perception of a relaxing in U.S. immigration policy could cause future migrations by sea.
The assessment of the U.S. is that releasing these aliens would encourage additional illegal migration. Such a surge in migration threatens our national security as well as the safety of these smuggled aliens. This policy is not based on any specific nationality, but rather by the clear threat posed by a mass migration. Finally, it must be underscored that many of these individuals are brought to the U.S. as part of illegal smuggling operations. Any actions by the government, including the release of these individuals, may be interpreted by the smugglers as a victory and encourage further criminal smuggling activity.
In order to provided widespread notice of this policy as it pertains to irregular arrival at sea, we are publishing in the Federal Register a notification that in the future individuals coming to the United States illegally by sea will be placed in expedited removal proceedings.
INS Fact SheetExpedited Removal
Background
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) created a new, formal process for
deportation called expedited removal. This process was established by Congress
to remove certain inadmissible aliens from the United States. The law authorized
the Commissioner of the Immigration and Naturalization Service to designate
certain groups of individuals for placement in expedited removal proceedings.
Under expedited removal, individuals can be removed on an order issued by an INS
officer. The U.S. Immigration and Naturalization Service (INS) began
implementing the expedited removal provisions of IIRIRA on April 1, 1997.
Experienced INS officers review the cases of people
subject to expedited removal. When an individual in expedited removal is found
inadmissible, the officer may issue a removal order, and this order has the same
weight as one issued by an immigration judge. Before the removal order is
issued, a senior-level supervisory immigration officer must review the decision.
People removed from the United States under expedited removal are barred from
re-entry for a period of five years but can apply for a waiver.
Prior to implementing expedited removal, INS developed
extensive, detailed regulations and procedures that go far beyond the statutory
requirements to ensure fair and consistent application of the law. These
regulations, which were developed following public comment and input from
various immigrant, legal and community-based groups, and the statute as enacted
by Congress, form the framework under which INS administers the expedited
removal process.
Since the implementation of expedited removal, only a
very small percentage of people in the process have been asylum-seekers.
However, INS is committed to protecting the rights of aliens fleeing persecution
and torture, and the expedited removal procedures have extensive safeguards
designed to protect the rights of asylum seekers. No alien can be expeditiously
removed from the United States until they have read, and acknowledge they
understand, a sworn statement and have been asked specific questions concerning
whether they have a concern or fear of being returned to their home country.
Any alien who, in response to these questions, indicates intent to apply for
asylum, or a fear of persecution, torture or return is referred for an interview
with an INS asylum officer. INS officers are directed to err on the side of
caution, and refer any questionable cases to an asylum officer. INS officers
consider not only verbal indications of a fear of persecution but also consider
non-verbal indications such as shaking, perspiration, sweating, hysteria and
even silence.
Monitoring and Oversight
INS is committed to ensuring that all districts
implement the appropriate expedited removal procedures in full compliance with
the statute, accompanying regulations and field guidance.
- INS Headquarters officials conduct weekly quality assurance reviews and contact field offices frequently in order to identify and correct any problems found in the expedited removal process.
- In addition, headquarters officials conduct periodic field visits to observe and review operations and ensure they are consistent with applicable procedures.
- Whenever necessary, additional field guidance is provided to clarify issues uncovered during the field visits and case reviews.
Training
All immigration officers who conduct expedited removal proceedings have been
trained in how to implement the statutory provisions and regulations.
- INS officers must successfully complete an extensive basic training program and a one-year field training and probationary period. All immigration officers receive training in the provisions of IIRIRA, including expedited removal.
- All asylum officers undergo a basic training course in preparation for adjudicating asylum applications and a one-year field training and probationary period. The training includes, among other topics, asylum law, current country conditions and interviewing skills, including techniques for interviewing individuals who may be survivors of torture. Asylum officers also receive specialized training in the credible fear legal standard and procedures. After initial training, asylum officers continue to receive ongoing training in these areas.
- INS asylum officers also receive specialized training on handling asylum claims made by individuals who may have been victims of torture.
Asylum Claims – Ensuring Fairness
In its implementation of the expedited removal provisions of the law, INS is taking steps far beyond what is required in the statute and ensuring that aliens affected by expedited removal are treated fairly and that their rights are protected in the following ways:
- INS conducts credible fear interviews in detention centers rather than at the point of arrest, allowing people at least 48 hours, and generally more, to rest and consult with someone before the credible fear interview.
- Although not required by the statute, INS relies exclusively on its specially trained asylum officer corps to conduct non-adversarial credible fear interviews, thus ensuring that interviews are conducted by the officers who are the most thoroughly prepared and experienced in asylum law, in-country conditions abroad, and in proper asylum interviewing procedures and techniques.
- INS ensures that all people subject to expedited removal are asked whether they have a fear of returning to their home country and are given notice of the opportunity to speak confidentially with another officer about their fear.
- INS requires mandatory supervisory review of the decisions of both immigration and asylum officers before those decisions take effect.
- Before persons have a credible fear interview, INS provides them with further information about the credible fear process and a list, updated quarterly, of local pro bono service providers and their telephone numbers.
- People found to meet the credible fear standard are placed in removal proceedings before an immigration judge, to whom they may apply not only for asylum, but for other forms of relief as well.
– INS –
Draft Federal Register NoticeBILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS Order No. 2243-02]
Notice Designating Aliens Subject to Expedited Removal under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
SUMMARY: This Notice authorizes the Immigration and Naturalization Service (“the
Service”) to place in expedited removal proceedings certain aliens who arrive in
the United States by sea, either by boat or other means, who are not admitted or
paroled, and who have not been physically present in the United States
continuously for the two-year period prior to the determination of
inadmissibility under this Notice. Aliens falling within this newly designated
class who are placed in expedited removal proceedings will be detained, subject
to humanitarian parole exceptions, during the course of immigration proceedings,
including, but not limited to, any hearings before an immigration judge. The
Service believes that implementing the expedited removal provisions, and
exercising its authority to detain this class of aliens under 8 CFR section 235,
will assist in deterring surges in illegal migration by sea, including potential
mass migration, and preventing loss of life. A surge in illegal migration by sea
threatens national security by diverting valuable United States Coast Guard and
other resources from counter-terrorism and homeland security responsibilities.
Placing these individuals in expedited removal proceedings and maintaining
detention for the duration of all immigration proceedings, with limited
exceptions, will ensure prompt immigration determinations and ensure removal
from the country of those not granted relief in those cases, while at the same
time protecting the rights of the individuals affected.
EFFECTIVE DATES: This Notice is effective on [insert date of publication in FEDERAL REGISTER].
Written comments must be submitted on or before [insert date 30 days from date of publication in FEDERAL REGISTER]
ADDRESSES: Written comments must be submitted to Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 2243-02 on your correspondence. You may also submit comments electronically to the Service at insregs@doj.gov. When submitting comments electronically you must include INS 2243 in the subject box. Comments are available for public inspection at the above address by calling (202) 514 3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Linda M. Loveless, Assistant Chief Inspector, Inspections Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone (202) 616-7489.
SUPPLEMENTARY INFORMATION:
Section 302 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104 208, Div. C, 110 Stat.
3009 546 (IIRIRA), amended section 235(b) of the Immigration and Nationality Act
(“Act”), 8 U.S.C. 1225(b), to authorize the Attorney General to remove without a
hearing before an immigration judge aliens arriving in the United States who are
inadmissible under sections 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C.
1182(a)(6)(C) and 1182(a)(7). Under these “expedited removal” proceedings, an
alien who indicates an intention to apply for asylum or who asserts a fear of
persecution or torture is referred to an asylum officer to conduct an interview
as to whether such alien has a “credible fear.” Sections 235(b)(1)(A)(ii) and
(B) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii) and (B); 8 CFR 235. (b)(4). Those who
meet that standard are referred to an immigration judge for a hearing o n the
merits of their claim or claims. 8 CFR 208.30(f).
The Service previously published a proposed rule and two interim rules to implement this expedited removal authority. 63 FR 19302-01 (April 20, 1998); 62 FR 10330 (March 6, 1997); and 62 FR 444-01 (Jan. 3, 1997). These rules established the current expedited removal. 8 CFR 235.3(b).
Under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), expedited removal proceedings may be applied to two categories of aliens. First, section 235(b)(1)(A)(i) of the Act, 8 U.S.C. 1225(b)(1)(A)(i), permits expedited removal proceedings for aliens who are “arriving in the United States,” except for Cuban citizens who arrive at United States ports-of-entry by aircraft, who are exempted from expedited removal under section 235(b)(1)(F) of the Act, 8 U.S.C. 1225(b)(1)(F). Federal regulations define an “arriving alien.” 8 CFR 1.1(q). Second, section 235(b)(1)(A)(iii) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii), permits the Attorney General, in his sole and unreviewable discretion, to designate certain other aliens to whom the expedited removal provisions may be applied, even though they are not arriving in the United States. Specifically, the Attorney General may apply the expedited removal provisions to any or all aliens who have not been admitted or paroled into the United States and who have not been physically present in the United States continuously for the two-year period prior to a determination of inadmissibility by an immigration officer. The Attorney General delegated his authority to designate classes of aliens to the Commissioner of the Service:
As specifically designated by the Commissioner, aliens who arrive in, attempt to enter, or have entered the United States without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, and who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility . . . When these provisions are in effect for aliens who enter without inspection, the burden of proof rests with the alien to affirmatively show that he or she has the required continuous physical presence in the United States. Any absence from the United States shall serve to break the period of continuous physical presence.
8 CFR 235.3(b)(1)(ii).
The designation may become effective upon publication in the Federal Register, or, if the “delay caused by the publication would adversely affect the interests of the United States or the effective enforcement of the immigration laws,” the designation may become effective upon issuance and be published as soon as practicable. 8 CFR 235.3(b)(1)(ii). Since the expedited removal authority was added to the Act in 1996, neither the Attorney General nor the Commissioner of the Service has not utilized this “specific designation” authority.
This Notice constitutes the first
designation of an additional class of aliens who may be placed in expedited
removal proceedings: aliens who arrive in the United States by sea, either by
boat or other means, who are not admitted or paroled, and who have not been
physically present in the United States continuously for the two-year period
prior to a determination of inadmissibility by a Service officer. The alien has
the burden affirmatively to show to the satisfaction of an immigration officer
that the alien has not been present in the United States continuously for the
relevant two-year period. Section 235(b)(1)(A)(iii)(II) of the Act, 8 U.S.C.
1225(b)(1)(A)(iii)(II); 8 CFR 235.3(b)(1)(ii). This Notice does not apply to
aliens who arrive at United States ports-of-entry.
It is important to note that certain aliens who arrive
in the United States by sea are already subject to expedited removal if they
fall within the definition of “arriving alien” in 8 CFR 1.1(q): “an alien
interdicted in international or United States waters and brought into the United
States by any means, whether or not to a designated port-of-entry, and
regardless of the means of transport.” This Notice will ensure that all aliens,
with one exception noted below, who arrive illegally by sea, whether interdicted
or not, will be subject to expedited removal.
This designation is necessary to remove
quickly from the United States aliens who arrive illegally by sea and who do not
establish a credible fear. The ability to detain aliens while admissibility is
determined and protection claims are adjudicated, as well as to remove quickly
aliens without protection claims, will deter additional aliens from taking to
the sea and traveling illegally to the United States. Illegal migration by sea
is perilous and the Department of Justice has repeatedly cautioned aliens
considering similar attempts to reject such a hazardous voyage.
Any alien who falls within this designation, who is
placed in expedited removal proceedings, and who indicates an intention to apply
for asylum or who asserts a fear of persecution or torture will be interviewed
by an asylum officer who will determine whether the alien has a credible fear.
If that standard is met, the alien will be referred to an immigration judge for
a hearing on the merits of the protection claim or claims. Sections 235(b)(1)(A)(ii)
and (B) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii) and (B); 8 CFR 235.3(b)(4). The
Forms I-867A and I-867B currently used by the officers who process aliens under
the expedited removal program, in accordance with the statutory requirement at
section 235(b)(1)(B)(iv) of the Act, 8 U.S.C. 1225(b)(1)(B)(iv), carefully
explains to all aliens in expedited removal proceedings an alien's right to a
“credible fear” interview. The forms also require that the officer determine
whether the alien has any reason to fear harm if returned to his or her country.
These forms will also be used for aliens placed in expedited removal under this
designation. Officers who administer the program are trained to be alert for any
verbal or non-verbal indications that the alien may be afraid to return to his
or her homeland.
The Service, with limited exceptions, plans to detain aliens designated by this Notice. Section 235(b)(1)(B)(iii)(IV) of the Act, 8 U.S.C. 1225(b)(1)(B)(iii)(IV) and 8 CFR 235.3(b)(iii) directs that any alien who is placed in expedited removal proceedings shall be detained pending a final determination of credible fear and if found not to have such a fear, such alien shall be detained until removed. Parole of such alien may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.
Section 235(b)(1)(B)(ii) of the Act, 8
U.S.C. 1225(b)(1)(B)(ii), directs that if a credible fear has been established,
the alien shall be detained for further consideration of the protection claim or
claims. Immigration judge review of custody determinations under 8 CFR 3.19(a)
are permitted only for bond and custody determinations pursuant to section 236
of the Act, 8 U.S.C. 1226, and 8 CFR section 236. Aliens designated under this
notice would not be detained under section 236 of the Act, but rather under
section 235. Aliens subject to expedited removal procedures under section 235 of
the Act are not eligible for bond, and therefore may not seek a bond
redetermination before an immigration judge. Parole of such aliens based on
humanitarian concerns may be considered in accordance with section 212(d)(5) of
the Act, 8 U.S.C. 1182(d)(5) and 8 CFR 212.5.
This Notice applies to certain aliens who arrive in the
U.S. by sea on or after [insert date of publication in Federal Register].
Furthermore, expedited removal proceedings, however, will not be initiated
against Cuban citizens who arrive by sea because it is longstanding U.S. policy
to treat Cubans differently from other aliens. See, e.g., Cuban
Adjustment Act, Pub. L. No. 89-732 (1966) (allowing any native or citizen of
Cuban who is inspected and admitted or paroled into the United States to apply
for lawful permanent resident status after one year). Finally, crewmen and
stowaways will not be subject to this Notice because Act already mandates
specific removal proceedings for such aliens.
Notice of Designation of Aliens Subject to Expedited Removal Proceedings
Pursuant to section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (“Act”) and 8 CFR 235.3(b)(1)(ii), I order as follows:
(1) Except as provided in paragraph
(5), all aliens who arrive in the United States by sea, either by boat or other
means, who are not admitted or paroled, and who have not been physically present
in the United States continuously for the two-year period prior to a
determination of inadmissibility by a Service officer shall be placed in
expedited removal proceedings. The alien has the burden affirmatively to show to
the satisfaction of an immigration officer that the alien has been present in
the United States continuously for the relevant two-year period. This Notice
does not apply to aliens who arrive at United States ports-of-entry. This Notice
does not apply to alien crewmen or stowaways as described in the Act.
(2) Any alien who falls within this designation who
indicates an intention to apply for asylum or who asserts a fear of persecution
or torture will be interviewed by an asylum officer to determine whether the
alien has a credible fear as defined in section 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). If that standard is met, the alien will be referred to an
immigration judge for a hearing on the merits of the protection claim or claims.
(3) An alien found to have a credible fear and
subsequently placed into removal proceedings before an immigration judge will be
detained, with certain humanitarian exceptions, throughout those proceedings and
will not be eligible to request a bond redetermination hearing before an
immigration judge.
(4) This Notice applies to aliens described in
paragraph (1) who arrive in the United States by sea on or after [insert date of
publication in Federal Register].
(5) Expedited removal proceedings will not be initiated
against Cuban citizens or nationals who arrive by sea.
_______________________ ____________________
Date
James W. Ziglar
Commissioner