[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR235.3]

[Page 426-431]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents
 
Sec. 235.3  Inadmissible aliens and expedited removal.

    (a) Detention prior to inspection. All persons arriving at a port-
of-entry in the United States by vessel or aircraft shall be detained 
aboard the vessel or at the airport of arrival by the owner, agent, 
master, commanding officer, person in charge, purser, or consignee of 
such vessel or aircraft until admitted or otherwise permitted to land by 
an officer of the Service. Notice or order to detain shall not be 
required. The owner, agent, master, commanding officer, person in 
charge, purser, or consignee of such vessel or aircraft shall deliver 
every alien requiring examination to an immigration officer for 
inspection or to a medical officer for examination. The Service will not 
be liable for any expenses related to such detention or presentation or 
for

[[Page 427]]

any expenses of a passenger who has not been presented for inspection 
and for whom a determination has not been made concerning admissibility 
by a Service officer.
    (b) Expedited removal--(1) Applicability. The expedited removal 
provisions shall apply to the following classes of aliens who are 
determined to be inadmissible under section 212(a)(6)(C) or (7) of the 
Act:
    (i) Arriving aliens, as defined in Sec. 1.1(q) of this chapter, 
except for citizens of Cuba arriving at a United States port-of-entry by 
aircraft;
    (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 Commissioner 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.
    (2) Determination of inadmissibility--(i) Record of proceeding. An 
alien who is arriving in the United States, or other alien as designated 
pursuant to paragraph (b)(1)(ii) of this section, who is determined to 
be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act 
(except an alien for whom documentary requirements are waived under 
Sec. 211.1(b)(3) or Sec. 212.1 of this chapter), shall be ordered 
removed from the United States in accordance with section 235(b)(1) of 
the Act. In every case in which the expedited removal provisions will be 
applied and before removing an alien from the United States pursuant to 
this section, the examining immigration officer shall create a record of 
the facts of the case and statements made by the alien. This shall be 
accomplished by means of a sworn statement using Form I-867AB, Record of 
Sworn Statement in Proceedings under Section 235(b)(1) of the Act. The 
examining immigration officer shall read (or have read) to the alien all 
information contained on Form I-867A. Following questioning and 
recording of the alien's statement regarding identity, alienage, and 
inadmissibility, the examining immigration officer shall record the 
alien's response to the questions contained on Form I-867B, and have the 
alien read (or have read to him or her) the statement, and the alien 
shall sign and initial each page of the statement and each correction. 
The examining immigration officer shall advise the alien of the charges 
against him or her on Form I-860, Notice and Order of Expedited Removal, 
and the alien shall be given an opportunity to respond to those charges 
in the sworn statement. After obtaining supervisory concurrence in 
accordance with paragraph (b)(7) of this section, the examining 
immigration official shall serve the alien with Form I-860 and the alien 
shall sign the reverse of the form acknowledging receipt. Interpretative 
assistance shall be used if necessary to communicate with the alien.

[[Page 428]]

    (ii) No entitlement to hearings and appeals. Except as otherwise 
provided in this section, such alien is not entitled to a hearing before 
an immigration judge in proceedings conducted pursuant to section 240 of 
the Act, or to an appeal of the expedited removal order to the Board of 
Immigration Appeals.
    (iii) Detention and parole of alien in expedited removal. An alien 
whose inadmissibility is being considered under this section or who has 
been ordered removed pursuant to this section shall be detained pending 
determination and removal, except that parole of such alien, in 
accordance with section 212(d)(5) of the Act, may be permitted only when 
the Attorney General determines, in the exercise of discretion, that 
parole is required to meet a medical emergency or is necessary for a 
legitimate law enforcement objective.
    (3) Additional charges of inadmissibility. In the expedited removal 
process, the Service may not charge an alien with any additional grounds 
of inadmissibility other than section 212(a)(6)(C) or 212(a)(7) of the 
Act. If an alien appears to be inadmissible under other grounds 
contained in section 212(a) of the Act, and if the Service wishes to 
pursue such additional grounds of inadmissibility, the alien shall be 
detained and referred for a removal hearing before an immigration judge 
pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all 
charges. Once the alien is in removal proceedings under section 240 of 
the Act, the Service is not precluded from lodging additional charges 
against the alien. Nothing in this paragraph shall preclude the Service 
from pursuing such additional grounds of inadmissibility against the 
alien in any subsequent attempt to reenter the United States, provided 
the additional grounds of inadmissibility still exist.
    (4) Claim of asylum or fear of persecution or torture. If an alien 
subject to the expedited removal provisions indicates an intention to 
apply for asylum, or expresses a fear of persecution, a fear of torture, 
or a fear of return to his or her country, the inspecting officer shall 
not proceed further with removal of the alien until the alien has been 
referred for an interview by an asylum officer in accordance with 
Sec. 208.30 of this chapter to determine if the alien has a credible 
fear of persecution or torture. The examining immigration officer shall 
record sufficient information in the sworn statement to establish and 
record that the alien has indicated such intention, fear, or concern, 
and to establish the alien's inadmissibility.
    (i) Referral. The referring officer shall provide the alien with a 
written disclosure on Form M-444, Information About Credible Fear 
Interview, describing:
    (A) The purpose of the referral and description of the credible fear 
interview process;
    (B) The right to consult with other persons prior to the interview 
and any review thereof at no expense to the United States Government;
    (C) The right to request a review by an immigration judge of the 
asylum officer's credible fear determination; and
    (D) The consequences of failure to establish a credible fear of 
persecution or torture.
    (ii) Detention pending credible fear interview. Pending the credible 
fear determination by an asylum officer and any review of that 
determination by an immigration judge, the alien shall be detained. 
Parole of such alien in accordance with section 212(d)(5) of the Act may 
be permitted only when the Attorney General determines, in the exercise 
of discretion, that parole is required to meet a medical emergency or is 
necessary for a legitimate law enforcement objective. Prior to the 
interview, the alien shall be given time to contact and consult with any 
person or persons of his or her choosing. Such consultation shall be 
made available in accordance with the policies and procedures of the 
detention facility where the alien is detained, shall be at no expense 
to the government, and shall not unreasonably delay the process.
    (5) Claim to lawful permanent resident, refugee, or asylee status or 
U.S. citizenship--(i) Verification of status. If an applicant for 
admission who is subject to expedited removal pursuant to section 
235(b)(1) of the Act claims to have been lawfully admitted for permanent 
residence, admitted as a refugee under section 207 of the Act, granted 
asylum under section 208 of the Act, or claims

[[Page 429]]

to be a U.S. citizen, the immigration officer shall attempt to verify 
the alien's claim. Such verification shall include a check of all 
available Service data systems and any other means available to the 
officer. An alien whose claim to lawful permanent resident, refugee, 
asylee status, or U.S. citizen status cannot be verified will be advised 
of the penalties for perjury, and will be placed under oath or allowed 
to make a declaration as permitted under 28 U.S.C. 1746, concerning his 
or her lawful admission for permanent residence, admission as a refugee 
under section 207 of the Act, grant of asylum status under section 208 
of the Act, or claim to U.S. citizenship. A written statement shall be 
taken from the alien in the alien's own language and handwriting, 
stating that he or she declares, certifies, verifies, or states that the 
claim is true and correct. The immigration officer shall issue an 
expedited order of removal under section 235(b)(1)(A)(i) of the Act and 
refer the alien to the immigration judge for review of the order in 
accordance with paragraph (b)(5)(iv) of this section and 
Sec. 235.6(a)(2)(ii). The person shall be detained pending review of the 
expedited removal order under this section. Parole of such person, in 
accordance with section 212(d)(5) of the Act, may be permitted only when 
the Attorney General determines, in the exercise of discretion, that 
parole is required to meet a medical emergency or is necessary for a 
legitimate law enforcement objective.
    (ii) Verified lawful permanent residents. If the claim to lawful 
permanent resident status is verified, and such status has not been 
terminated in exclusion, deportation, or removal proceedings, the 
examining immigration officer shall not order the alien removed pursuant 
to section 235(b)(1) of the Act. The examining immigration officer will 
determine in accordance with section 101(a)(13)(C) of the Act whether 
the alien is considered to be making an application for admission. If 
the alien is determined to be seeking admission and the alien is 
otherwise admissible, except that he or she is not in possession of the 
required documentation, a discretionary waiver of documentary 
requirements may be considered in accordance with section 211(b) of the 
Act and Sec. 211.1(b)(3) of this chapter or the alien's inspection may 
be deferred to an onward office for presentation of the required 
documents. If the alien appears to be inadmissible, the immigration 
officer may initiate removal proceedings against the alien under section 
240 of the Act.
    (iii) Verified refugees and asylees. If a check of Service records 
or other means indicates that the alien has been granted refugee status 
or asylee status, and such status has not been terminated in 
deportation, exclusion, or removal proceedings, the immigration officer 
shall not order the alien removed pursuant to section 235(b)(1) of the 
Act. If the alien is not in possession of a valid, unexpired refugee 
travel document, the examining immigration officer may accept an 
application for a refugee travel document in accordance with 
Sec. 223.2(b)(2)(ii) of this chapter. If accepted, the immigration 
officer shall readmit the refugee or asylee in accordance with 
Sec. 223.3(d)(2)(i) of this chapter. If the alien is determined not to 
be eligible to file an application for a refugee travel document the 
immigration officer may initiate removal proceedings against the alien 
under section 240 of the Act.
    (iv) Review of order for claimed lawful permanent residents, 
refugees, asylees, or U.S. citizens. A person whose claim to U.S. 
citizenship has been verified may not be ordered removed. When an alien 
whose status has not been verified but who is claiming under oath or 
under penalty of perjury to be a lawful permanent resident, refugee, 
asylee, or U.S. citizen is ordered removed pursuant to section 235(b)(1) 
of the Act, the case will be referred to an immigration judge for review 
of the expedited removal order under section 235(b)(1)(C) of the Act and 
Sec. 235.6(a)(2)(ii). If the immigration judge determines that the alien 
has never been admitted as a lawful permanent resident or as a refugee, 
granted asylum status, or is not a U.S. citizen, the order issued by the 
immigration officer will be affirmed and the Service will remove the 
alien. There is no appeal from the decision of the immigration judge. If 
the immigration judge determines that the alien was

[[Page 430]]

once so admitted as a lawful permanent resident or as a refugee, or was 
granted asylum status, or is a U.S. citizen, and such status has not 
been terminated by final administrative action, the immigration judge 
will terminate proceedings and vacate the expedited removal order. The 
Service may initiate removal proceedings against such an alien, but not 
against a person determined to be a U.S. citizen, in proceedings under 
section 240 of the Act. During removal proceedings, the immigration 
judge may consider any waivers, exceptions, or requests for relief for 
which the alien is eligible.
    (6) Opportunity for alien to establish that he or she was admitted 
or paroled into the United States. If the Commissioner determines that 
the expedited removal provisions of section 235(b)(1) of the Act shall 
apply to any or all aliens described in paragraph (b)(2)(ii) of this 
section, such alien will be given a reasonable opportunity to establish 
to the satisfaction of the examining immigration officer that he or she 
was admitted or paroled into the United States following inspection at a 
port-of-entry. The alien will be allowed to present evidence or provide 
sufficient information to support the claim. Such evidence may consist 
of documentation in the possession of the alien, the Service, or a third 
party. The examining immigration officer will consider all such evidence 
and information, make further inquiry if necessary, and will attempt to 
verify the alien's status through a check of all available Service data 
systems. The burden rests with the alien to satisfy the examining 
immigration officer of the claim of lawful admission or parole. If the 
alien establishes that he or she was lawfully admitted or paroled, the 
case will be examined to determine if grounds of deportability under 
section 237(a) of the Act are applicable, or if paroled, whether such 
parole has been, or should be, terminated, and whether the alien is 
inadmissible under section 212(a) of the Act. An alien who cannot 
satisfy the examining officer that he or she was lawfully admitted or 
paroled will be ordered removed pursuant to section 235(b)(1) of the 
Act.
    (7) Review of expedited removal orders. Any removal order entered by 
an examining immigration officer pursuant to section 235(b)(1) of the 
Act must be reviewed and approved by the appropriate supervisor before 
the order is considered final. Such supervisory review shall not be 
delegated below the level of the second line supervisor, or a person 
acting in that capacity. The supervisory review shall include a review 
of the sworn statement and any answers and statements made by the alien 
regarding a fear of removal or return. The supervisory review and 
approval of an expedited removal order for an alien described in section 
235(b)(1)(A)(iii) of the Act must include a review of any claim of 
lawful admission or parole and any evidence or information presented to 
support such a claim, prior to approval of the order. In such cases, the 
supervisor may request additional information from any source and may 
require further interview of the alien.
    (8) Removal procedures relating to expedited removal. An alien 
ordered removed pursuant to section 235(b)(1) of the Act shall be 
removed from the United States in accordance with section 241(c) of the 
Act and 8 CFR part 241.
    (9) Waivers of documentary requirements. Nothing in this section 
limits the discretionary authority of the Attorney General, including 
authority under sections 211(b) or 212(d) of the Act, to waive the 
documentary requirements for arriving aliens.
    (10) Applicant for admission under section 217 of the Act. The 
provisions of Sec. 235.3(b) do not apply to an applicant for admission 
under section 217 of the Act.
    (c) Arriving aliens placed in proceedings under section 240 of the 
Act. Except as otherwise provided in this chapter, any arriving alien 
who appears to the inspecting officer to be inadmissible, and who is 
placed in removal proceedings pursuant to section 240 of the Act shall 
be detained in accordance with section 235(b) of the Act. Parole of such 
alien shall only be considered in accordance with Sec. 212.5(a) of this 
chapter. This paragraph shall also apply to any alien who arrived before 
April 1, 1997, and who was placed in exclusion proceedings.
    (d) Service custody. The Service will assume custody of any alien 
subject to

[[Page 431]]

detention under paragraph (b) or (c) of this section. In its discretion, 
the Service may require any alien who appears inadmissible and who 
arrives at a land border port-of-entry from Canada or Mexico, to remain 
in that country while awaiting a removal hearing. Such alien shall be 
considered detained for a proceeding within the meaning of section 
235(b) of the Act and may be ordered removed in absentia by an 
immigration judge if the alien fails to appear for the hearing.
    (e) Detention in non-Service facility. Whenever an alien is taken 
into Service custody and detained at a facility other than at a Service 
Processing Center, the public or private entities contracted to perform 
such service shall have been approved for such use by the Service's Jail 
Inspection Program or shall be performing such service under contract in 
compliance with the Standard Statement of Work for Contract Detention 
Facilities. Both programs are administered by the Detention and 
Deportation section having jurisdiction over the alien's place of 
detention. Under no circumstances shall an alien be detained in 
facilities not meeting the four mandatory criteria for usage. These are:
    (1) 24-Hour supervision,
    (2) Conformance with safety and emergency codes,
    (3) Food service, and
    (4) Availability of emergency medical care.
    (f) Privilege of communication. The mandatory notification 
requirements of consular and diplomatic officers pursuant to 
Sec. 236.1(e) of this chapter apply when an inadmissible alien is 
detained for removal proceedings, including for purpose of conducting 
the credible fear determination.

[62 FR 10355, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]

    Effective Date Note: At 65 FR 82256, Dec. 28, 2000, Sec. 235.3 was 
amended by revising the reference to ``212.5(a)'' to read ``212.5(b)'' 
in the second sentence of paragraph (c), effective Jan. 29, 2001.