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  • News: DHS Publishes Final Rule On Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air With Request For Comments

    [Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
    [Rules and Regulations]
    [Pages 4769-4771]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2017-00915]

    Rules and Regulations
    Federal Register

    This section of the FEDERAL REGISTER contains regulatory documents
    having general applicability and legal effect, most of which are keyed
    to and codified in the Code of Federal Regulations, which is published
    under 50 titles pursuant to 44 U.S.C. 1510.

    The Code of Federal Regulations is sold by the Superintendent of Documents.
    Prices of new books are listed in the first FEDERAL REGISTER issue of each


    Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 /
    Rules and Regulations

    [[Page 4769]]


    Office of the Secretary

    8 CFR Part 235

    [DHS Docket No. DHS-2017-0003]
    RIN 1601-AA81

    Eliminating Exception to Expedited Removal Authority for Cuban
    Nationals Arriving by Air

    AGENCY: Office of the Secretary, Department of Homeland Security.

    ACTION: Final rule; request for comments.


    SUMMARY: This final rule revises Department of Homeland Security (DHS)
    regulations to eliminate the categorical exception from expedited
    removal proceedings for Cuban nationals who arrive in the United States
    at a port of entry by aircraft. As a result of these changes, Cuban
    nationals who arrive in the United States at a port of entry by
    aircraft will be subject to expedited removal proceedings commensurate
    with nationals of other countries.

    DATES: This final rule is effective January 13, 2017. Interested
    persons are invited to submit written comments on this final rule on or
    before March 20, 2017.

    ADDRESSES: You may submit comments, identified by Regulatory
    Information Number (RIN) 1601-AA81 and DHS Docket Number DHS-2017-0003,
    by any one of the following methods:
    Federal e-Rulemaking Portal www.regulations.gov. Follow
    the Web site instructions for submitting comments.
    Mail or Hand Delivery/Courier: Please submit all written
    comments (including and CD-ROM submissions) to Amanda Baran, Principal
    Director for Immigration Policy, DHS, 245 Murray Lane SW., Mail Stop
    0445, Washington, DC 20528.
    Please submit your comments by only one method. Comments received
    by means other than those listed above or received after the comment
    period has closed will not be reviewed. All comments received will be
    posted without change on http://www.regulations.gov. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and
    comments posted there are available and accessible to the public.
    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 Web site. It is the
    commenter's responsibility to safeguard his or her information.
    Comments submitted through http://www.regulations.gov will not include
    the commenter's email address unless the commenter chooses to include
    that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security
    concerns. Therefore, DHS encourages the public to submit comments
    through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or
    comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. If you need assistance to review the comments,
    please contact the person identified in the FOR FURTHER INFORMATION
    CONTACT section below.

    FOR FURTHER INFORMATION CONTACT: Amanda Baran, Principal Director for
    Immigration Policy, 202-282-8805, Amanda.baran@hq.dhs.gov.


    I. Background

    Section 302 of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110
    Stat. 3009-546, amended section 235(b) of the Immigration and
    Nationality Act (``Act''), 8 U.S.C. 1225(b), to authorize what are
    known as ``expedited removal proceedings.'' Specifically, section
    235(b) was amended to authorize the Attorney General (now the Secretary
    of Homeland Security \1\) 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), for lack of valid documents
    necessary for admission or entry or for procuring or seeking to procure
    a visa, other immigration-related documentation, admission to the
    United States, or other immigration benefit by fraud or willful
    misrepresentation of a material fact.

    \1\ 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 (DOJ) 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.

    Expedited removal proceedings under section 235(b) of the Act, 8
    U.S.C. 1225(b), may be applied to two categories of aliens. First,
    expedited removal proceedings may be used for aliens who are ``arriving
    in the United States.'' Section 235(b)(1)(A)(i) of the Act, 8 U.S.C.
    1225(b)(1)(A)(i). Second, the Secretary, in his or her sole and
    unreviewable discretion, may designate certain other aliens to whom the
    expedited removal provisions may be applied. Section 235(b)(1)(A)(iii),
    8 U.S.C. 1225(b)(1)(A)(iii); see 8 CFR 235.3(b)(1)(ii).
    When it created the expedited removal process, Congress also
    created a limited exception for certain aliens who arrived at a U.S.
    port of entry by aircraft. Under section 235(b)(1)(F) of the Act, 8
    U.S.C. 1225(b)(1)(F), expedited removal ``shall not apply to an alien
    who is a native or citizen of a country in the Western Hemisphere with
    whose government the United States does not have full diplomatic
    relations and who arrives by aircraft at a port of entry.'' For many
    years, this exception applied to Cuban nationals due to the lack of
    full diplomatic relations between the United States and Cuba. DHS
    regulations implementing section 235(b)(1) of the Act, 8 U.S.C.
    1225(b)(1), thus expressly stated that the expedited removal provisions
    apply to ``[a]rriving aliens, as defined in 8 CFR 1.2, except for
    citizens of Cuba arriving at a United States port-of-entry by
    aircraft.'' 8 CFR 235.3(b)(1)(i); see also 8

    [[Page 4770]]

    CFR 1235.3(b)(1)(i) (parallel Department of Justice (DOJ) regulations
    stating that the expedited removal provisions apply to ``[a]rriving
    aliens, as defined in [8 CFR 1001.1(q)], except for citizens of Cuba
    arriving at a United States port-of-entry by aircraft'').\2\

    \2\ DOJ initially promulgated 8 CFR 235.3(b)(1)(i) as an
    exercise of the functions of the former Immigration and
    Naturalization Service (INS) and the Executive Office for
    Immigration Review. See 62 FR 10312 (Mar. 6, 1997). Following
    enactment of the HSA, 8 CFR 235.3(b)(1)(i) was transferred to DHS,
    and effectively duplicated in parallel DOJ regulations at 8 CFR
    1235.3(b)(1)(i). See 68 FR 10349 (Mar. 5, 2003). DOJ is revising its
    parallel regulation by separate rulemaking in this issue of the
    Federal Register.

    Since that regulation was promulgated, significant changes in the
    relationship between the United States and Cuba have occurred. In
    December 2014, President Obama announced a historic opening between the
    United States and Cuba, as well as an approach for reestablishing
    diplomatic relations and adjusting regulations to facilitate greater
    travel, commerce, people-to-people ties, and the free flow of
    information to, from, and within Cuba. On July 20, 2015, the United
    States and Cuba formally reestablished full diplomatic relations and
    opened embassies in each other's countries. In the time following the
    reestablishment of full diplomatic relations, the United States and
    Cuba have taken concrete steps towards enhancing security, building
    bridges between our peoples, and promoting economic prosperity for
    citizens of both countries. And recent migration discussions have
    yielded important changes that will dramatically affect travel and
    migration between our two countries. Among other things, Cuba has
    agreed to accept and facilitate the repatriation of its nationals who
    are ordered removed from the United States. This arrangement and other
    changes remain the focus of ongoing diplomatic discussions between the
    two countries. DHS, in consultation with the Department of State, has
    determined that the limitation at section 235(b)(1)(F) of the Act, 8
    U.S.C. 1225(b)(1)(F) no longer applies with respect to Cuba.
    Moreover, DHS has recently seen a significant increase in attempts
    by Cuban nationals to illegally enter the United States. Many of those
    Cuban nationals have taken a dangerous journey through Central America
    and Mexico; others have taken to the high seas in the dangerous attempt
    to cross the Straits of Florida. DHS believes this increase in
    attempted migration has been driven in part by the perception that
    there is a limited window before the United States will eliminate
    favorable immigration policies for Cuban nationals.
    The application of the expedited removal authorities to Cuban
    nationals must reflect these new realities. Accordingly, DHS is
    eliminating provisions in its regulations that categorically exempt
    Cuban nationals who arrive at a U.S. port of entry by aircraft from
    expedited removal proceedings under 8 CFR 235.3. Importantly, the
    statutory provision categorically barring the use of expedited removal
    for certain aliens who arrive by air no longer applies to Cuban
    nationals, as the United States and Cuba have reestablished full
    diplomatic relations. Moreover, previous U.S. policy justifications for
    exempting Cuban nationals from expedited removal--including Cuba's
    general refusal to accept the repatriation of its nationals--are no
    longer valid in many respects. Finally, a categorical exception
    severely impairs the Government's ability to remove unauthorized aliens
    encountered within the United States. For these reasons, DHS, in
    consultation with the Department of State, has determined that a
    categorical exception from expedited removal for Cuban nationals is no
    longer in the interests of the United States. Accordingly, as a result
    of this final rule, Cuban nationals will be subject to expedited
    removal proceedings under section 235(b) of the INA and 8 CFR 235.3
    like nationals of other countries. For the same reasons, DHS is also
    publishing a notice in this issue of the Federal Register to remove the
    parallel exceptions for expedited removal of Cuban nationals who arrive
    by sea or who are encountered by an immigration officer within 100 air
    miles of the U.S. border.

    II. Statutory and Regulatory Requirements

    A. Administrative Procedure Act

    The implementation of this rule as a final rule, with provisions
    for post-promulgation public comments, is based on the good cause
    exception found in section 553 of the Administrative Procedure Act
    (APA) (5 U.S.C. 553(b)(B)). Delaying the implementation of the change
    announced in this rule to allow pre-promulgation notice and comment
    would be impracticable and contrary to the public interest. Congress
    explicitly authorized the Secretary of Homeland Security to designate
    categories of aliens to whom expedited removal proceedings may be
    applied, 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.'' Section 235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C.
    1225(b)(1)(A)(iii)(I). And this rule is necessary to remove quickly
    from the United States certain Cuban nationals who arrive by air at
    U.S. ports of entry. The ability to detain such aliens while
    admissibility and identity are determined and protection claims are
    adjudicated, as well as to quickly remove those without protection
    claims or claims to lawful status, is a necessity for national security
    and public safety.
    Pre-promulgation notice and comment would undermine these
    interests, while endangering human life and having a potential
    destabilizing effect in the region. Specifically, DHS is concerned that
    publication of the rule as a proposed rule, which would signal a
    significant change in policy while permitting continuation of the
    exception for Cuban nationals, could lead to a surge in migration of
    Cuban nationals seeking to travel to and enter the United States during
    the period between the publication of a proposed and a final rule. 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. Accordingly, DHS finds
    that it would be impracticable and contrary to the public interest to
    accept pre-promulgation comments on this rule. For the same reasons,
    DHS also finds good cause to issue this rule without a 30-day delayed
    effective date requirement of the APA, see 5 U.S.C. 553(d).\3\

    \3\ In addition, in light of the lack of pre-publication notice
    and comment and a delayed effective date for the related notice that
    DHS has published in this issue of the Federal Register, a delay in
    the effective date of this regulation would be incongruous and

    In addition, the change implemented by this rule is part of a major
    foreign policy initiative announced by the President, and is central to
    ongoing diplomatic discussions between the United States and Cuba with
    respect to travel and migration between the two countries. DHS, in
    consultation with the Department of State, has determined that
    eliminating the exception from expedited removal proceedings for Cuban
    nationals involves a foreign affairs function of the United States, 5
    U.S.C. 553(a)(1), and is also exempt from the notice and comment and
    30-day delayed effective date requirements of the APA on that basis.
    DHS is

    [[Page 4771]]

    nevertheless providing the opportunity for the public to comment.

    B. Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess the
    costs and benefits of available regulatory alternatives and, if
    regulation is necessary, to select regulatory approaches that maximize
    net benefits (including potential economic, environmental, public
    health and safety effects, distributive impacts, and equity). Executive
    Order 13563 emphasizes the importance of quantifying both costs and
    benefits, of reducing costs, of harmonizing rules, and of promoting
    The Office of Management and Budget has not designated this rule as
    a significant regulatory action under section 3(f) of Executive Order
    12866. Accordingly, the Office of Management and Budget has not
    reviewed this rule.

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
    by the Small Business Regulatory Enforcement and Fairness Act of 1996,
    requires an agency to prepare a regulatory flexibility analysis that
    describes the effect of a proposed rule on small entities when the
    agency is required to publish a general notice of proposed rulemaking.
    A small entity may be a small business (defined as any independently
    owned and operated business not dominant in its field that qualifies as
    a small business per the Small Business Act); a small not-for-profit
    organization; or a small governmental jurisdiction (locality with fewer
    than 50,000 people). Because this final rule is exempt from notice-and-
    comment rulemaking requirements under 5 U.S.C. 553, a regulatory
    flexibility analysis is not required.

    Regulatory Amendments

    List of Subjects for 8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration,
    Reporting and recordkeeping requirements.

    Authority and Issuance

    For the reasons stated in the preamble, part 235 of title 8 of the
    Code of Federal Regulations is amended as set forth below:



    1. The authority citation for part 235 continues to read:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
    to E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p. 278), 1201, 1224,
    1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of
    Public Law 110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
    458); Pub. L. 112-54.

    2. Revise Sec. 235.3(b)(1)(i) to read as follows:

    Sec. 235.3 Inadmissible aliens and expedited removal.

    * * * * *
    (b) * * *
    (1) * * *
    (i) Arriving aliens, as defined in 8 CFR 1.2;
    * * * * *

    Signed: at Washington, DC, this 11th of January 2017.
    Jeh Charles Johnson,
    Secretary of Homeland Security.
    [FR Doc. 2017-00915 Filed 1-13-17; 8:45 am]

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