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  • News: EOIR 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 4771-4773]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2017-00902]

    =======================================================================
    -----------------------------------------------------------------------

    DEPARTMENT OF JUSTICE

    Executive Office for Immigration Review

    8 CFR Part 1235

    [AG Order No. 3817-2017; EOIR Docket No. 401]
    RIN 1125-AA80

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

    AGENCY: Executive Office for Immigration Review, Department of Justice.

    ACTION: Final rule; request for comments.

    -----------------------------------------------------------------------

    SUMMARY: This final rule revises Executive Office for Immigration
    Review (EOIR) 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. This final rule conforms
    with a parallel Department of Homeland Security (DHS) regulation. 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. Comments received by mail will be considered
    timely if they are postmarked on or before that date. The electronic
    Federal Docket Management System (FDMS) will accept comments until
    midnight Eastern Time at the end of that day.

    ADDRESSES: Please submit written comments to Jean King, General
    Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
    Suite 2600, Falls Church, Virginia 22041. To ensure proper handling,
    please reference RIN No. 1125-AA80 or EOIR Docket No. 401 on your
    correspondence. You may submit comments electronically or view an
    electronic version of this proposed rule at www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive
    Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls
    Church, Virginia 22041; telephone (703) 605-1744 (not a toll-free
    call).

    SUPPLEMENTARY INFORMATION:

    I. Public Participation

    Interested persons are invited to participate in this rulemaking by
    submitting written data, views, or arguments on all aspects of this
    rule. EOIR also invites comments that relate to the economic,
    environmental, or federalism effects that might result from this rule.
    To provide the most assistance to EOIR, comments should explain the
    reason for any recommended change, and should include data,
    information, or authority that supports such recommended change.
    All comments submitted for this rulemaking should include the
    agency name and RIN 1125-AA80 or EOIR Docket No. 401. Please note that
    all comments received are considered part of the public record and will
    be made available for public inspection at www.regulations.gov.,
    including personally identifiable information (such as a person's name,
    address, or any other data that might personally identify that
    individual) voluntarily submitted by the commenter.
    If you want to submit personally identifiable information as part
    of your comment, but do not want it to be posted online, you must
    include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
    paragraph of your comment and identify what information you want
    redacted.
    If you want to submit confidential business information as part of
    your comment, but do not want it to be posted online, you must include
    the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
    of your comment. You also must prominently identify confidential

    [[Page 4772]]

    business information to be redacted within the comment. If a comment
    has so much confidential business information that it cannot be
    effectively redacted, all or part of that comment may not be posted on
    www.regulations.gov.
    Personally identifiable information and confidential business
    information provided as set forth above will be placed in the agency's
    public docket file, but not posted online. To inspect the agency's
    public docket file in person, you must make an appointment with agency
    counsel. Please see the FOR FURTHER INFORMATION CONTACT paragraph above
    for agency counsel's contact information.

    II. Background

    This rule conforms to the rule published by DHS in this issue of
    the Federal Register that revises 8 CFR 235.3(b)(1)(i). This rule
    revises the parallel Department of Justice (DOJ) regulation, 8 CFR
    1235.3(b)(1)(i), which states 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''.\1\ Both the DHS rule and this rule eliminate the provisions
    in the Departments' respective regulations that categorically exempt
    Cuban nationals who arrive at a U.S. port of entry by aircraft from
    expedited removal proceedings. 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.
    ---------------------------------------------------------------------------

    \1\ 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).
    ---------------------------------------------------------------------------

    III. 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. Section
    235(b)(1)(A)(iii)(I) of the Immigration and Nationality Act explicitly
    authorizes the Secretary of Homeland Security to designate categories
    of aliens to whom expedited removal proceedings may be applied, and
    makes clear that ``[s]uch designation shall be in the sole and
    unreviewable discretion of the Secretary and may be modified at any
    time.'' 8 U.S.C. 1225(b)(1)(A)(iii)(I). This conforming rule is
    necessary to conform to the DHS rulemaking, which will allow DHS 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, the Department 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, DOJ finds that it would be impracticable and contrary
    to the public interest to accept pre-promulgation comments on this
    rule. For the same reasons, DOJ 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).\2\
    ---------------------------------------------------------------------------

    \2\ 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
    unnecessary.
    ---------------------------------------------------------------------------

    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. DOJ, 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.
    DOJ is nevertheless providing the opportunity for the public to provide
    comments.

    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
    flexibility.
    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.

    D. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and
    tribal governments, in the aggregate, or by the private sector, of $100
    million or more in any one year, and it will not significantly or
    uniquely affect small governments. Therefore, no actions were deemed
    necessary under the provisions

    [[Page 4773]]

    of the Unfunded Mandates Reform Act of 1995.

    E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the
    Small Business Regulatory Enforcement Fairness Act of 1996. See 5
    U.S.C. 804. This rule will not result in an annual effect on the
    economy of $100 million or more; a major increase in costs or prices;
    or significant adverse effects on competition, employment, investment,
    productivity, innovation, or on the ability of United States-based
    enterprises to compete with foreign-based enterprises in domestic and
    export markets.

    F. Executive Order 13132: Federalism

    This rule will not have substantial direct effects on the States,
    on the relationship between the National Government and the States, or
    on the distribution of power and responsibilities among the various
    levels of government. Therefore, in accordance with section 6 of
    Executive Order 13132, it is determined that this rule does not have
    sufficient federalism implications to warrant the preparation of a
    federalism summary impact statement.

    G. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a)
    and 3(b)(2) of Executive Order 12988.

    H. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law
    104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
    part 1320, do not apply to this rule because there are no new or
    revised recordkeeping or reporting requirements.

    List of Subjects in 8 CFR Part 1235

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

    Accordingly, for the reasons stated in the preamble, part 1235 of
    title 8 of the Code of Federal Regulations is amended as follows:

    PART 1235--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    0
    1. The authority citation for part 1235 continues to read:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
    to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
    1225, 1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law
    110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).

    0
    2. Revise Sec. 1235.3(b)(1)(i) to read as follows:

    Sec. 1235.3 Inadmissible aliens and expedited removal.

    * * * * *
    (b) * * *
    (1) * * *
    (i) Arriving aliens, as defined in Sec. 1001.1(q) of this chapter;
    * * * * *

    Dated: January 11, 2017.
    Loretta E. Lynch,
    Attorney General.
    [FR Doc. 2017-00902 Filed 1-13-17; 8:45 am]
    BILLING CODE 4410-30-P

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