Advance Notice of Expansion of Expedited Removal to Certain Criminal Aliens Held in Federal, State, and Local Jails

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 1998-99]

RIN 1115-AF50

Advance Notice of Expansion of Expedited Removal to Certain

Criminal Aliens Held in Federal, State, and Local Jails

AGENCY: Immigratnion and Naturalization Service, Justice.

ACTION: Advance notice with request for comments.

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SUMMARY: This notice advises the public that the Immigration and

Naturalization Service (Service) intends to apply the expedited removal

provision of section 235(b)(1) of the Immigration and Nationality Act

(Act) on a pilot basis to certain criminal aliens being held in three

correctional facilities in the State of Texas. This action will not

become effective until the Service evaluates and addresses public

comments and informs the public by notice in the Federal Register when

the expedited removal provisions will be implemented. This pilot

program will last for a period of 180 days, and will be followed with

an evaluation of the program. The Service believes that implementing

the expedited removal provisions to person who have been found by a

Federal judge to be guilty of illegal entry and are serving short

criminal sentences will result in removal of those criminal aliens

faster than can be achieved under ordinary removal proceedings. This

will ensure prompt immigration determinations in those cases and

consequently will save Service detention space and immigration judge

and trial attorney resources, while at the same time protecting the

righ5ts of the individuals affected.

DATES: Comments must be submitted on or before November 22, 1999.

ADDRESSES: Please submit written comments, original and two copies, to

the Director, Policy Directives and Instructions Branch, Immigration

and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS No. 1998-99 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Isabelle Chewning, Detention and Deportation Officer, Immigration and

Naturalization Service, 801 I Street NW, Suite 800, Washington, DC

20536, telephone (202) 616-7797, or Melinda Clark, Detention and

Deportation Officer, Immigration and Naturalization Service, 425 I

Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-1986.

SUPPLEMENTARY INFORMATION:

What is the expedited removal program?

Under section 235(b)(1) of the Immigration and Nationality Act

(Act), as amended by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), certain aliens who are

inadmissible to the United States under sections 212(a) (6) (C) or

212(a) (7) of the Act are not entitled to a formal removal hearing

before an immigration judge under section 240 of the Act. Instead,

these aliens are subject to an expedited removal order issued by an

immigration officer. Sections 212(a) (6) (C) and 212(a) (7) are the

grounds of inadmissibility which cover aliens who seek or have sought

to procure a visa, other documentation, or admission to the United

States or other benefits under the Act by fraud or misrepresentation or

who arrive without proper entry documents.

On March 6, 1997, the Department of Justice issued implementing

regulations which apply the expedited removal provisions of section

235(b)(1) of the Act to certain aliens arriving in the United States on

or after April 1, 1997. (See 62 FR 10312).

To whom Will the Section 235(b) (1) Expedited Removal Provisions Be

Applied?

Section 235(b) (1) (A) (iii) of the Act permits the Attorney

General, in her 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 Untied

States and who have been physically present for less than 2 years prior

to the date of the determination of inadmissibility. By publication of

this notice, the Attorney General is exercising her discretionary

authority to apply the provisions of the expedited removal to certain

alien who:

[[Page 51339]]

(i) Have been convicted of illegal entry into the United States

under 8 U.S.C. 1325(a) (1) or (2) (section 275 of the Act) if the court

record establishes the time, place, and manner of entry;

(ii) Have not been admitted or paroled into the United States and

who have been physically present for less than 2 years prior to the

date of the determination of inadmissibility; and

(iii) Are serving criminal sentences in the Big Spring Correction

Center, Eden Detention Center, or Reeves County Bureau of Prisons

Contract Facility.

Under What Authority Is the Immigration and Naturalization Service

Taking This Action?

In addition to the statutory authority contained in section

235(b)(1)(A)(iii) of the Act, the expedited removal provisions

contained in the Service's regulations at 8 CFR 235.3(b)(1)(ii)

provides as follows:

(ii) 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. The Commission 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. The Commissioner's

designation shall become effective upon publication of a notice in the

Federal Register. However, 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.

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. An alien who was not

inspected and admitted or paroled into the United States but who

establishes that he or she has been continuously physically present in

the United States for the 2-year period immediately prior to the date

of determination of inadmissibility shall be detained in accordance

with section 235(b)(2) of the Act for a proceeding under section 240 of

the Act.

Because the regulation provides the authority to apply expedited

removal to aliens affected by this pilot program, the Service is not

amending its regulation, but it is announcing the pilot program through

this notice and a subsequent notice after receiving public comment.

Why Is This Action Being Taken?

The Service identifies and processes thousands of criminal aliens

for removal each year while they are incarcerated in Federal, State,

and local jails and correctional facilities. There are several programs

and methods in place to accomplish this task. Most notable is the

Institutional Removal Program (IRP), whereby immigration officers are

stationed at specific Federal and State correctional facilities to

process aliens for removal proceedings, which are conducted at that

site by Immigration Judges before their release from criminal custody.

If found removable, the aliens can then be removed from the country

immediately upon completion of their sentence, without the Service

incurring additional detention costs to house them during their removal

proceedings. Many of the aliens incarcerated in certain IRP facilities

have been convicted of illegal entry under 8 U.S.C. 1325 (section 275

of the Act), often initiated after the alien has committed multiple

illegal entries. Many are given relatively short sentences that make it

difficult to complete removal proceedings before an immigration judge

prior to the completion of their sentences. Since these aliens have

been convicted of illegal entry, the court records and documentation in

the file will clearly establish the time, place, and manner of entry,

thereby establishing eligibility for expedited removal. Under this

pilot program, therefore, expedited removal will only be applied where

the Federal Courts have affirmatively determined that the alien falls

within the illegal entry criteria for expedited removal.

Will the Program Be Expanded to all Federal, State, and Local Jails

and Correctional Facilities?

No. This pilot program will be limited to the following IRP

facilities: Big Spring Correction Center, Eden Detention Center, and

Reeves County Bureau of Prisons Contract Facility. This limitation will

permit the Service to provide thorough training to all officers

involved in the process, to monitor the procedures being followed, and

to evaluate the effectiveness of the pilot program for possible

application to other IRP facilities.

Will Expedited Removal Be Applied to all Criminal Aliens Detained

at These Sites?

No. The Service intends to apply the expedited removal provisions

only to those aliens convicted of illegal entry who have not previously

been removed, provided the court records explicitly established the

time, place, and manner of entry, and that the alien has not been

admitted or paroled into the United States and has not been physically

present continuously for the 2-year period immediately prior to the

date of the determination of inadmissibility.

Those aliens who have reentered the United States illegally after

having been previously ordered removed from the United States will

continue to be subject to reinstatement of the prior order of removal

under section 241(a)(5) of the Act. The Service will also continue to

apply the existing procedures under section 238 of the Act for removal

of most aliens convicted of an aggravated felony.

What Does the Service Expect To Achieve Through This Pilot Program?

The Service expects the pilot program to demonstrate a greater

efficiency in processing criminal aliens who meet the statutory

criteria for expedited removal, but who may not be eligible for other

existing programs or could not be as promptly removed under the IRP. In

addition, many of the relatively routine cases that fall within the

statutory criteria for expedited removal but are currently being heard

by immigration judges in the IRP could be processed under expedited

removal, and the administrative resources and detention costs currently

expended on these cases could be applied to other IRP cases or to other

detained cases. The increased volume of illegal entries and the

increasing number of criminal aliens being apprehended and identified

have resulted in a critical shortage of Service detention space in

recent months. This shortage necessitates that the Service explore

further appropriate means to achieve the most efficient use of limited

Service detention space. The Service is confident that the experience

it has gained since the implementation of the expedited removal program

at ports-of-entry on April 1, 1997, will enable it to successfully

pilot a very limited expansion of the program in a manner that is both

effective and fair.

[[Page 51340]]

How Will the Service Ensure That an Alien Placed in the Expedited

Removal Program Will Not Be Subjected to Persecution or Torture

Upon Removal From the United States?

Service regulations provide that any alien who indicates either an

intention to apply for asylum, withholding of removal under section

241(b)(3) of the Act, or protection under the Convention Against

Torture, or expresses a fear of persecution, torture, or other harm

shall be referred for an interview by an asylum officer to determine

whether the alien has a credible fear. The Form 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, carefully explains to all aliens

in expedited removal proceedings the 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. This form will also be used for aliens subject to expedited

removal under this pilot program. Additionally the training to be

provided to other officers who will administer the program will

emphasize the need to be alert for any verbal or non-verbal indications

that the alien may be afraid to return to his or her homeland.

Once an alien is referred to an asylum officer for a credible fear

interview, he or she has a right to consultation with a person of the

alien's choosing, and a right to review by an immigration judge of any

negative credible fear determination. Aliens found to have a credible

fear are then placed into ordinary removal proceedings before an

immigration judge where they may apply for asylum and withholding of

removal.

How Does the Effect of an Expedited Removal Order Issued by an

Immigration Officer Differ From the Effect of a Final Removal Order

Issued by an Immigration Judge Under Section 240 of the Act?

Regardless of whether the final order is issued by an immigration

judge or the Board of Immigration Appeals under section 240 of the Act

or by an immigration officer under section 235(b)(1) of the Act, the

consequences are the same. The alien is prohibited from returning to

the United States without advance permission for the period of time

specified in section 212(a)(9) of the Act. Where proceedings are

initiated other than upon the alien's arrival in the United States, the

alien ordered removed is inadmissible for a period of 10 years (or 20

years in the case of a second or subsequent removal). If the alien

should illegally reenter the United States, he or she is subject to

reinstatement of removal under section 241(a)(5) of the Act and to

civil and criminal penalties contained in the Act and in other Federal

statutes.

How Will the Service Evaluate the Integrity, Productivity and

Effectiveness of This Program?

The Service intends to monitor the process carefully and will

conduct an evaluation of the program upon the termination of the pilot

program after 180 days have elapsed. The Service will regularly conduct

reviews of a sampling of expedited removal cases processed at the

selected facilities. The files will be reviewed to ensure that all

procedures are properly followed, especially those procedures designed

to protect the rights of the aliens involved. This is the same process

used by the Service for monitoring port-of-entry expedited removal

cases. The Service will also conduct site visits to conduct follow-up

training and on-site monitoring. The Service will also monitor

statistics pertaining to the number of aliens removed through this

program.

Why Is the Service Soliciting Public Comments on This Notice?

While not required under the Administrative Procedures Act, the

Service is interested in receiving comments from the public on all

aspects of the expedited removal program, but especially on the

effectiveness of the program, problems envisioned by the commenters,

and suggestions on how to address those problems. We believe that, by

maintaining a dialogue with interested parties, the Service can ensure

that the program remains effective in combating and deterring illegal

entry whole at the same time protecting the rights of the individuals

affected.

When Will These Actions Begin and How Long Will It Last?

After evaluating and addressing the public comments, the Service

will inform the public by notice in the Federal Register 30 days prior

to the pilot program's implementation. The program will remain in

effect for 180 days.

Dated: September 14, 1999.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 99-24385 Filed 9-21-99; 8:45 am]

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