Implementation of the New Designation is exempt from notice-and-comment requirements,
because public notice and comment and the delay attendant thereon would be impracticable,
unnecessary, and contrary to the public interest. See 5 U.S.C. 553(b)(B) and (d)(3). Congress
explicitly authorized the Secretary of Homeland Security to designate categories of aliens to whom
expedited removal may be applied on a case-by-case basis, 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.”
INA section 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I). As such, the Secretary’s
designation is not required to go through notice-and-comment rulemaking. ...
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Notice of Designation of Aliens Subject to Expedited Removal
Pursuant to section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (INA) and 8 CFR
235.3(b)(1)(ii), I order, in my sole and unreviewable discretion, as follows:
(1) Except as otherwise expressly provided, the Department of Homeland Security may place in
expedited removal any or all members of the following class of aliens (other than unaccompanied
alien children as defined in 6 U.S.C. 279(g)(2)) as determined by an immigration officer: Aliens
who are inadmissible under sections 212(a)(6)(C) or (7) of the INA, who are physically present in
the United States without having been admitted or paroled following inspection by an immigration
officer at a designated port of entry, and who either (a) did not arrive by sea, are encountered by an
immigration officer anywhere in the United States more than 100 air miles from a U.S. international
land border, and have not been physically present in the United States continuously for the two-year
period immediately prior to the date of the determination of inadmissibility, or (b) did not arrive by
sea, are encountered by an immigration officer within 100 air miles from a U.S. international land
border, and have been physically present in the United States continuously at least 14 days but less
than two years immediately prior to the date of the determination of inadmissibility. Each alien
placed in expedited removal under this designation bears the affirmative burden to show to the
satisfaction of an immigration officer that the alien has been present in the United States
continuously for the relevant period. This designation does not apply to aliens who arrive at U.S.
ports of entry, because those aliens are already subject to expedited removal. Nor does this
designation apply to or otherwise affect aliens who satisfy the expedited removal criteria set forth in
any of the previous designations. See 82 FR 4902, 69 FR 48877; 67 FR 68923 (collectively, the
Previous Designations).
(2) Any alien who is placed in expedited removal under this designation who indicates an
intention to apply for asylum or who expresses a fear of persecution or torture, or a fear of return to
his or her country, will be interviewed by an asylum officer to determine whether such alien has a
credible fear as defined in section 235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v). If the
asylum officer determines that the alien has established a credible fear, the alien will be referred to
an immigration judge for further consideration of his or her application for asylum in proceedings
under section 240 of the INA, 8 U.S.C. 1229a.
(3) Any alien who is placed in expedited removal under this designation who claims lawful
permanent resident, refugee, or asylee status, or U.S. citizenship will be reviewed in accordance
with the procedures provided in 8 CFR 235.3(b) and 8 CFR 1235.3(b).
(4) This Notice applies to aliens described in paragraph (1) on or after [INSERT DATE OF
PUBLICATION IN THE FEDERAL REGISTER].
(5) This Notice does not supersede, abrogate, or amend or modify any of the Previous
Designations, which shall remain in full force and effect in accordance with their respective terms.
SIGNED: at Washington, D.C., this 19th day of July, 2019.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
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