[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR235.3]



[Page 414-419]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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



[[Page 415]]



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 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



[[Page 416]]



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.

    (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 or 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 8 CFR 

208.30. 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



[[Page 417]]



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 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



[[Page 418]]



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 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



[[Page 419]]



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(b) 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 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; 65 

FR 82256, Dec. 28, 2000; 69 FR 69490, Nov. 29, 2004]