82 FR 4769 - Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 82, Issue 10 (January 17, 2017)

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.

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



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

[[Page 4769]]



DEPARTMENT OF HOMELAND SECURITY

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.

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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, [email protected].

SUPPLEMENTARY INFORMATION: 

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.
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    \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.
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    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\
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    \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.
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    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\
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    \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 
unnecessary.
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    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 
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.

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:

8 CFR CHAPTER I

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
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.


0
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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