[Federal Register Volume 84, Number 223 (Tuesday, November 19, 2019)]
[Rules and Regulations]
[Pages 63994-64011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25137]
[[Page 63993]]
Vol. 84
Tuesday,
No. 223
November 19, 2019
Part III
Department of Homeland Security
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U.S. Citizenship and Immigration Services
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8 CFR Part 208
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1003, 1208 and 1240
Implementing Bilateral and Multilateral Asylum Cooperative Agreements
Under the Immigration and Nationality Act; Interim Final Rule
Federal Register / Vol. 84 , No. 223 / Tuesday, November 19, 2019 /
Rules and Regulations
[[Page 63994]]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 208
[USCIS Docket No. USCIS-2019-0021]
RIN 1615-AC49
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208, and 1240
[EOIR Docket No. 19-0021; A.G. Order No. 4581-2019]
RIN 1125-AA98
Implementing Bilateral and Multilateral Asylum Cooperative
Agreements Under the Immigration and Nationality Act
AGENCY: Executive Office for Immigration Review, Department of Justice;
U.S. Citizenship and Immigration Services, Department of Homeland
Security.
ACTION: Interim final rule; request for comment.
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SUMMARY: The Department of Justice (``DOJ'') and the Department of
Homeland Security (``DHS'') (collectively, ``the Departments'') are
adopting an interim final rule (``IFR'' or ``rule'') to modify existing
regulations to provide for the implementation of Asylum Cooperative
Agreements (``ACAs'') that the United States enters into pursuant to
section 208(a)(2)(A) of the Immigration and Nationality Act (``INA'' or
``Act''). Because the underlying purpose of section 208(a)(2)(A) is to
provide asylum seekers with access to only one of the ACA signatory
countries' protection systems, this rule adopts a modified approach to
the expedited removal (``ER'') and section 240 processes in the form of
a threshold screening as to which country will consider the alien's
claim. This rule will apply to all ACAs in force between the United
States and countries other than Canada, including bilateral ACAs
recently entered into with El Salvador, Guatemala, and Honduras in an
effort to share the distribution of hundreds of thousands of asylum
claims. The rule will apply only prospectively to aliens who arrive at
a U.S. port of entry, or enter or attempt to enter the United States
between ports of entry, on or after the effective date of the rule.
DATES:
Effective date: This rule is effective November 19, 2019.
Submission of public comments: Comments must be submitted on or
before December 19, 2019.
ADDRESSES: You may submit comments, identified by Docket Numbers USCIS-
2019-0021 and EOIR Docket No. 19-0021, through the Federal eRulemaking
Portal: http://www.regulations.gov. If you cannot submit your material
by using https://www.regulations.gov, contact the person in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
FOR FURTHER INFORMATION CONTACT:
USCIS: Andrew Davidson, Chief, Asylum Division, Refugee Asylum and
International Operations, U.S. Citizenship & Immigration Services, 20
Massachusetts Avenue NW, Suite 1100, Washington, DC 20529-2140;
Telephone (202) 272-8377 (not a toll-free call).
EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2616, Falls Church, VA 22041; Telephone (703) 305-0289 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Departments also invite comments that relate to the potential
economic or federalism effects that might result from this rule. To
provide the most assistance to the Departments, comments should
reference a specific portion of the rule; explain the reason for any
recommended change; and include data, information, or authority that
supports the recommended change. Comments received will be considered
and addressed in the process of drafting the final rule.
All comments submitted for this rulemaking should include the
agency names and Docket Numbers USCIS-2019-0021 and EOIR Docket No. 19-
0021. Please note that all comments received are considered part of the
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable
information (such as a person's name, address, or any other data that
might personally identify that individual) that the commenter
voluntarily submits.
II. Executive Summary
The Departments are adopting an interim final rule to modify
existing regulations to provide for the implementation of agreements
that the United States enters into pursuant to section 208(a)(2)(A) of
the INA. 8 U.S.C. 1158(a)(2)(A). Such agreements--referred to by the
Departments as Asylum Cooperative Agreements and alternatively
described as safe third country agreements in existing regulations--are
formed between the United States and foreign countries where aliens
removed to those countries would have access to a full and fair
procedure for determining a claim to asylum or equivalent temporary
protection.\1\ In certain circumstances, an ACA, in conjunction with
section 208(a)(2)(A), bars an alien subject to the agreement from
applying for asylum in the United States and provides for the removal
of the alien, pursuant to the agreement, to a country that will provide
access to a full and fair procedure for determining the alien's
protection claim. Removal pursuant to these agreements will be ordered
within ER proceedings or, in certain instances, within INA section 240
removal proceedings. But because the underlying purpose of section
208(a)(2)(A) is to provide asylum seekers with access to only one of
the ACA signatory countries' protection systems, this rule adopts a
modified approach to the ER and section 240 processes in the form of a
threshold screening as to which country will consider the alien's
claim. This rule will apply to all ACAs between the United States and
countries other than Canada. In 2002, the United States and Canada
entered into a bilateral ACA, titled the ``Agreement Between the
Government of the United States and the Government of Canada for
Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries,'' which the Departments implemented by regulation
in 2004.
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\1\ For ease of reference, this rule refers to an asylum claim
in the third country as alternatively encompassing ``equivalent
temporary protection'' consistent with INA section 208(a)(2)(A), 8
U.S.C. 1158(a)(2)(A).
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Although various recent regulatory reforms have reduced the burdens
associated with adjudicating asylum claims (and others hold out promise
to do so should injunctions on their implementation be lifted), the
U.S. asylum system remains overtaxed. Hundreds of thousands of migrants
have reached the United States in recent years and have claimed a fear
of persecution \2\ or torture. They often do
[[Page 63995]]
not ultimately establish legal qualification for such relief or even
actually applying for protection after being released into the United
States, which has contributed to a backlog of 987,198 cases before the
Executive Office for Immigration Review (including 474,327 asylum
cases), each taking an average of 816 days to complete. Asylum claims
by aliens from El Salvador, Guatemala, and Honduras account for over
half of the pending asylum cases.
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\2\ ``Fear of persecution'' as used in this document describes
persecution ``on account of race, religion, nationality, membership
in a particular social group, or political opinion.'' INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
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To help alleviate those burdens and promote regional migration
cooperation, the United States recently signed bilateral ACAs with El
Salvador, Guatemala, and Honduras in an effort to share the
distribution of asylum claims.\3\ Pending the Department of State's
publication of the ACAs in the United States Treaties and Other
International Agreements series in accordance with 1 U.S.C. 112a, the
agreements will be published in a document in the Federal Register.
This rule will establish the authority of DHS asylum officers to make
threshold determinations as to whether aliens are ineligible to apply
for asylum under those three ACAs, and any future ones, in the course
of ER proceedings under section 235(b)(1) of the Act, 8 U.S.C.
1225(b)(1), once the agreements enter into force. As a practical
matter, this rule will also establish the authority of immigration
judges (``IJs'') to make such determinations in the context of removal
proceedings under INA section 240, 8 U.S.C. 1229a. To the extent that
an alien in ER proceedings is rendered ineligible to apply for asylum
by more than one ACA, the immigration officer will assess which
agreement is most appropriately applicable to the alien. Immigration
officers may exercise discretion in making such determinations as
authorized by the Secretary of Homeland Security (``Secretary'') via
field guidance. To the extent that an alien in section 240 proceedings
is rendered ineligible to apply for asylum by more than one ACA, the
immigration judge shall enter alternate orders of removal to each
country that is a signatory to an applicable ACA. DHS immigration
officers may exercise discretion when selecting from among the
alternate orders, again, as authorized by the Secretary via field
guidance. The rule will apply only prospectively to aliens who arrive
at a U.S. port of entry, or enter or attempt to enter the United States
between ports of entry, on or after the effective date of the rule.
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\3\ None of these agreements have yet entered into force.
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III. Purpose of This Interim Final Rule
Asylum is a discretionary immigration benefit that generally can be
sought by eligible aliens who are physically present or arriving in the
United States. See INA 208(a)(1), 8 U.S.C. 1158(a)(1). Throughout the
past decade, the United States has experienced a significant increase
in the number of aliens encountered at or near its borders,
particularly the southern land border with Mexico, as described by the
Departments' recent joint rule requiring certain aliens seeking to
apply for asylum to have first applied for equivalent protection in at
least one country through which they transited en route to the United
States, see Asylum Eligibility and Procedural Modifications, 84 FR
33829, 33830 (July 16, 2019). This increase has been accompanied by a
sharp increase in the number and percentage of aliens requesting asylum
or claiming a fear of persecution or torture when apprehended or
encountered by DHS. As noted by the third-country-transit rule, for
example, over the past decade the percentage of aliens referred for
credible fear interviews within ER proceedings jumped from
approximately 5 percent to above 40 percent. Id. at 33830-31. The
number of asylum cases filed with DOJ also rose sharply, more than
tripling between 2013 and 2018. Id. at 33831. During that same period,
the filing of affirmative asylum applications rose from 44,453 in 2013
to 106,147 in 2018.
This increase reflects high rises in both defensive asylum claims
(i.e., asylum claims raised after removal proceedings have begun) and
affirmative asylum claims (i.e., asylum claims raised apart from or
before removal proceedings have begun). In Fiscal Year (``FY'') 2018,
110,136 individuals in ER proceedings raised claims of persecution or
torture and were referred for credible fear interviews (99,035
individuals) or reasonable fear interviews (11,101 individuals). These
individuals, combined with individuals who filed for asylum while in
INA section 240 removal proceedings, resulted in 114,532 defensive
asylum applications filed with DOJ in FY2018. Additionally, in FY2018,
48,922 affirmative asylum applications were also referred to DOJ. By
contrast, in FY2013, 43,768 individuals in ER proceedings raised claims
of persecution or torture and were referred for credible fear
interviews (36,035 individuals) or reasonable fear interviews (7,733
individuals). These individuals, combined with individuals who filed
for asylum while in section 240 removal proceedings, resulted in 23,500
defensive asylum applications filed with DOJ in FY2013. Additionally,
in FY2013, 19,963 affirmative asylum applications were also referred to
DOJ.
This has led to a backlog that, as of October 11, 2019, included
more than 476,000 asylum cases before DOJ's Executive Office for
Immigration Review (``EOIR''). The backlog of affirmative asylum
applications pending with USCIS sits at 340,810, as of the end of
FY2019. Historically, only a small minority of the individuals claiming
a fear of return on the basis of persecution or torture were ultimately
granted asylum or had even applied for it. Indeed, over the years, many
aliens who initially claimed a fear of return upon entry or arrival
abandoned those claims altogether.
Immigration detention centers have often been pushed to capacity,
making even temporary detention for arriving aliens difficult to
sustain. Or aliens have been released into the interior of the country,
after which they often fail to appear for their removal proceedings, or
unlawfully abscond after receiving removal orders, becoming fugitives.
To help ease some of the burden on the immigration detention system and
to reduce the numbers of aliens illegally entering the country, the
Administration has worked with Mexico to permit people attempting to
enter the United States from Mexico on land to remain in Mexico while
awaiting their removal proceedings, pursuant to section 235(b)(2)(C) of
the INA, 8 U.S.C. 1225(b)(2)(C).
Arresting the significant number of aliens who illegally enter the
United States or arrive at ports of entry without the necessary
documents to enter the United States legally, and processing and
adjudicating their fear of return claims for ER, and processing and
adjudicating their asylum claims in removal proceedings under INA
section 240, consumes a tremendous amount of resources within the
Departments of Justice and Homeland Security. After surveilling and
arresting aliens, DHS must devote significant resources towards
detaining many aliens pending further proceedings, process (and in the
context of ER) adjudicate their claims (which are subject to
potentially multiple layers of review), and represent the United States
during removal proceedings before EOIR.
The large number of aliens seeking relief in the United States also
consumes substantial DOJ resources. Within DOJ, IJs adjudicate aliens'
asylum claims in INA section 240
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proceedings, prosecutors and law enforcement officials must prosecute
and maintain custody of aliens who violate Federal criminal law, and
DOJ attorneys represent the United States in civil cases involving
immigration and detention issues. Despite DOJ deploying 80% more
immigration judges than in 2010, and completing nearly double the
number of asylum cases in FY2018 as in FY2010, more than 476,000 asylum
cases remain pending before the immigration courts. Further,
immigration courts have an additional caseload that stems from cases
that are not related to asylum. This significantly increased backlog is
due in part to the sharp increase in the numbers of filed asylum
applications. Between 2010 and 2018, there was a nearly nine-fold
increase in defensive asylum cases and the number of affirmative asylum
cases referred to EOIR more than doubled.
The large majority of fear of persecution or torture claims raised
by those arrested at the southern border either have not led to actual
claims for asylum or have been ultimately determined to be without
legal merit. For example, in FY2018, 34,031 individuals who had
received credible fear interviews before asylum officers were referred
to DOJ for asylum hearings. Approximately 39%, or 13,369, of these
individuals failed to file an asylum application, and thus abandoned
their claims. Only 5,577 individuals were granted asylum, a number
equal to 16.4% of all individuals referred to DOJ after credible fear
interviews, or 27% of individuals who were referred to DOJ following a
credible fear interview and filed an asylum application. The success
rate declines when one looks at all asylum applications adjudicated by
DOJ. In FY2018, 64,223 asylum applications were adjudicated by DOJ's
immigration judges. Only 13,173, or 20.5%, were granted. The strain on
the U.S. immigration system, and the wait times for aliens seeking to
process legitimate claims through the U.S. asylum system, is extreme.
This delay extends to the immigration court system, where cases
involving related immigration and detention issues have caused
significant docket backlogs.
In section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A),
Congress provided a mechanism to help ease this strain on the
immigration system by authorizing the Executive Branch to enter into
agreements with other countries to distribute the burdens associated
with adjudicating claims for asylum or equivalent temporary protection.
Specifically, section 208(a)(2)(A) authorizes the Executive Branch to
bar an alien from applying for asylum in the United States where,
pursuant to a bilateral or multilateral agreement, the alien may be
removed to a third country (i.e., a country other than the alien's
country of nationality or last habitual residence, see INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), that affords the alien access to
a full and fair procedure for determining claims for asylum or
equivalent temporary protection. Consistent with the President's
extensive foreign affairs authority, see, e.g., Zivotofsky v. Kerry,
135 S. Ct. 2076, 2084-94 (2015); United States v. Curtiss-Wright Exp.
Corp., 299 U.S. 304, 319 (1936) (emphasizing the President's extensive
role representing U.S. interests in relations with foreign nations),
section 208(a)(2)(A), by its terms, provides substantial flexibility to
the Executive Branch in negotiating and implementing ACAs. Accord INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Attorney General
and Secretary to ``provide by regulation for any other conditions or
limitations on the consideration of an application for asylum not
inconsistent with this chapter''); see also Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 635 (Jackson, J., concurring) (``When the
President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can delegate.''); id.
at 637 (observing that an exercise of federal affairs power ``pursuant
to an Act of congress would be supported by the strongest of
presumptions and the widest latitude of judicial interpretation'').
In contrast to statutory and regulatory bars providing that certain
aliens are ineligible to receive asylum, see, e.g., INA 208(b)(2)(A),
(C), 8 U.S.C. 1158(b)(2)(A), (C), the ACA bar relates to whether an
alien may even apply for asylum. Unlike the restrictions on asylum
eligibility, application of the ACA bar does not involve an evaluation
of whether an alien would ultimately receive asylum relief if able to
apply, or even whether the alien has made a preliminary showing of a
significant possibility that the alien would be eligible for asylum.
Rather, section 208(a)(2)(A) bars an alien from applying for asylum in
the United States when the following four requirements are satisfied:
(i) The United States has entered into a requisite ``bilateral or
multilateral agreement''; (ii) at least one of the signatory countries
to the agreement is a ``third country'' with respect to the alien;
(iii) ``the alien's life or freedom would not be threatened'' in that
third country ``on account of race, religion, nationality, membership
in a particular social group, or political opinion''; and (iv) that
third country provides aliens removed there pursuant to the agreement
``access to a full and fair procedure for determining a claim to asylum
or equivalent temporary protection.'' \4\ Even if all of these elements
are satisfied, the Secretary nonetheless may determine in his
discretion ``that it is in the public interest for the alien to receive
asylum in the United States.'' INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A).
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\4\ Unaccompanied alien children, as defined by 6 U.S.C. 279(g),
are categorically exempted from the ACA bar. See INA 208(a)(2)(E), 8
U.S.C. 1158(a)(2)(E).
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This interim rule will amend DHS and DOJ regulations implementing
section 208(a)(2)(A) to effectuate ACAs other than the agreement
already formed with Canada in 2002 and implemented by regulation in
2004. See Implementation of the Agreement Between the Government of the
United States of America and the Government of Canada Regarding Asylum
Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR 69480
((Nov. 29, 2004) (DHS) Asylum Claims Made by Aliens Arriving from
Canada at Land Border Ports-of-Entry, 69 FR 69490 (Nov. 29, 2004)
(DOJ).
In particular, this rule will broaden the procedures (implemented
in ER and INA section 240 proceedings) for determining whether an alien
is subject to an ACA or within one of its exceptions to account for
ACAs other than the U.S.-Canada Agreement. Additionally, this rule will
establish a screening mechanism to evaluate whether an alien who would
otherwise be removable to a third country under an ACA other than the
U.S.-Canada Agreement can establish that it is more likely than not
that he or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or political
opinion, or would be tortured in that third country. This rule
consequently will provide a general mechanism for implementation of all
existing and future ACAs not previously implemented.\5\ In sum, this
[[Page 63997]]
rule implements a screening mechanism to determine: (i) Whether an
alien falls within the terms of a bilateral or multilateral ACA formed
under section 208(a)(2)(A), other than the previously implemented U.S.-
Canada Agreement, (ii) whether an alien within an ACA's plain terms
nonetheless falls under one of the agreement's exceptions, and (iii)
whether an alien within an ACA's scope but not subject to an exception
nonetheless demonstrates that it is more likely than not that the
alien's life or freedom would be threatened or the alien would be
tortured in the third country.
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\5\ This interim rule leaves in place the regulatory structure
specific to the U.S.-Canada Agreement so as to avoid disruption to
long-standing processes and expectations concerning implementation
of that agreement. This rule will allow for implementation of ACAs
that have a broader scope of applicability than the U.S.-Canada
Agreement and, consequently, provides for a more robust threshold
screening mechanism for evaluating whether an alien is properly
removed subject to an ACA other than the U.S.-Canada Agreement,
which is narrowly directed to third country nationals seeking to
enter the United States at a U.S.-Canada land border port of entry.
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ACAs entered pursuant to section 208(a)(2)(A) will be published in
the Federal Register. Prior to implementation of an ACA, the Attorney
General and the Secretary of Homeland Security (``Secretary'') will
evaluate and make a categorical determination whether a country to
which aliens would be removed under such an agreement provides ``access
to a full and fair procedure for determining a claim to asylum or
equivalent temporary protection.'' INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A). Section 208(a)(2)(A) of the INA also requires a
determination that an alien's life and freedom would not be threatened
on account of a protected ground in a third country with which the
United States has entered into an ACA. This rule effectuates such a
determination via individualized threshold screening that provides an
opportunity for an alien to establish fear of persecution in the third
country to which he would be removed pursuant to an ACA.
The INA's ACA provision provides authority to pursue significant
policy interests by entering into bilateral or multilateral agreements
allowing for burden-sharing between the United States and other
countries with respect to refugee-protection claims.
Consistent with this compelling policy aim, this interim rule is
intended to aid the United States in its negotiations with foreign
nations on migration issues. Specifically, the rule will aid the United
States as it seeks to develop a regional framework with other countries
to more equitably distribute the burden of processing the protection
claims of the hundreds of thousands of irregular migrants who now seek
to enter the United States every year and claim a fear of return.
Addressing the eligibility for asylum of aliens who enter or attempt to
enter the United States will better position the United States as it
engages in ongoing diplomatic negotiations with Mexico and the Northern
Triangle countries (El Salvador, Guatemala, and Honduras) regarding
migration issues in general, and related measures employed to curtail
the irregular flow of aliens into the United States.
IV. Background and Legal Basis for Regulatory Changes
A. DOJ and DHS Authority To Promulgate This Rule
The Attorney General and the Secretary publish this joint IFR
pursuant to their respective authorities concerning asylum
determinations. The Homeland Security Act of 2002 (``HSA''), Public Law
107-296, 116 Stat. 2135, as amended, created DHS and transferred to it
many functions related to the execution of Federal immigration law. The
Secretary was charged ``with the administration and enforcement of this
chapter and all other laws relating to the immigration and
naturalization of aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and
granted the power to take all actions ``necessary for carrying out''
his authority under the immigration laws, INA 103(a)(3), 8 U.S.C.
1103(a)(3).
The HSA thus transferred to DHS some authority to adjudicate asylum
applications, including the authority to conduct ``credible fear''
interviews in the context of ER. INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also HSA 451(b), 116 Stat. at 2196 (providing for
the transfer of adjudication of asylum and refugee applications from
the Commissioner of Immigration and Naturalization to the Director of
the Bureau of Citizenship and Immigration Services). That authority has
been delegated within DHS to USCIS. See 8 CFR 208.2(a), 208.30.
In addition, under the HSA, the Attorney General retained authority
over individual immigration adjudications (including certain
adjudications related to asylum applications) conducted within EOIR.
See HSA 1101(a), 6 U.S.C. 521; INA 103(g), 8 U.S.C. 1103(g). IJs within
DOJ continue to adjudicate all asylum applications made by aliens
during the removal process, and they also review asylum applications
referred by USCIS to the immigration court. See INA 101(b)(4),
240(a)(1), 8 U.S.C. 1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b),
1240.1(a). Additionally, the INA provides that ``determination and
ruling by the Attorney General with respect to all questions of law
shall be controlling.'' INA 103(a)(1), 8 U.S.C. 1103(a)(1).
This rule specifically concerns implementation of section
208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), which generally
provides that an alien may not apply for asylum if the Attorney General
and the Secretary determine that the alien may be removed, pursuant to
a bilateral or multilateral agreement, to a country (other than the
country of the alien's nationality or, in the case of an alien having
no nationality, the country of the alien's last habitual residence) in
which the alien's life or freedom would not be threatened on account of
race, religion, nationality, membership in a particular social group,
or political opinion, and where the alien would have access to a full
and fair procedure for determining a claim to asylum or equivalent
temporary protection, unless the Secretary finds that it is in the
public interest for the alien to receive asylum in the United States.
By operation of the HSA, the reference to ``Attorney General'' is
understood to also encompass the Secretary, depending on whether the
alien is in immigration proceedings before DHS or DOJ. Thus,
determinations as to whether an alien's asylum application is barred by
INA section 208(a)(2)(A), in conjunction with an ACA, fall within the
scope of both DHS and DOJ authority, as each department bears
responsibility for adjudicating asylum applications. In addition,
section 208(d)(5)(B) of the INA authorizes the Secretary and the
Attorney General to ``provide by regulation for any other conditions or
limitations on the consideration of an application for asylum not
inconsistent with this chapter.'' 8 U.S.C. 1158(d)(5)(B); see
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum Claims
Made in Transit and at Land Border Ports-of-Entry, 69 FR 10620, 10622
(Mar. 8, 2004) (DHS) (proposed rule) (relying in part on INA
208(d)(5)(B) to establish threshold screening for applicability of INA
208(a)(2)(A) in relation to the U.S.-Canada Agreement). This broad
division of functions and authorities informs the background of this
interim rule.
B. Adjudication of Asylum Applications and the Section 208(a)(2)(A) Bar
Asylum is a form of discretionary relief under section 208 of the
INA, 8 U.S.C. 1158. Under that provision, aliens applying for asylum
must establish (i) that they meet the definition of a ``refugee'' set
forth at INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A); (ii) that they are
not subject to a bar to either applying for asylum or receiving asylum;
and (iii) that they merit a favorable exercise of discretion. INA
208(a)-(b), 8 U.S.C. 1158(a)-(b).
[[Page 63998]]
1. Removal Under ER and INA Section 240 Proceedings
When aliens indicate an intention to apply for asylum, or express a
fear of persecution or torture, or a fear of removal to their country
in the context of ER proceedings, they are evaluated in ER proceedings
by immigration officers through a credible fear interview designed to
determine whether there is a significant possibility that the alien
would be eligible for asylum, statutory withholding of removal, or
protection under the regulations issued pursuant to legislation
implementing the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (``CAT''), December 10, 1984, 1465
U.N.T.S. 84, S. Treaty Doc. No. 100-20 (1988). INA 235(b)(1)(B), 8
U.S.C. 1225(b)(1)(B), 8 CFR 208.30, 235.3(b)(4). Section 235(a)(3) of
the INA provides that ``[a]ll aliens . . . who are applicants for
admission . . . shall be inspected by immigration officers.'' 8 U.S.C.
1225(a)(3). As part of initial inspections, immigration officers must
assess whether an alien is inadmissible. Aliens who cannot establish
``clearly and beyond a doubt'' that they are ``entitled to be
admitted'' will be examined for removal, as a matter of discretion,
under the jurisdictional framework of either ER (if they are eligible)
\6\ or section 240 removal proceedings (or, in certain circumstances,
other removal proceedings). See INA 235(b)(2)(A), 8 U.S.C.
1225(b)(2)(A) (``Subject to subparagraphs (B) and (C), in the case of
an alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking admission is not
clearly and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section [240].''); INA 235(b)(2)(B), 8
U.S.C. 1225(b)(2)(B) (providing that crewmen, stowaways, and aliens
subject to ER need not receive section 240 hearings).
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\6\ See INA 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A) (authorizing
screening by immigration officers to determine whether aliens are
eligible for ER because they are inadmissible for engaging in fraud
or willful misrepresentation related to a visa, other documentation,
or admission, or for falsely claiming U.S. citizenship, INA
212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C), or for not possessing valid
entry documents, INA 212(a)(7), 8 U.S.C. 1182(a)(7)).
---------------------------------------------------------------------------
In the ER process, if a DHS immigration officer determines that an
alien is inadmissible on one of two specified grounds, and meets
certain other criteria, the alien generally must be ``removed from the
United States without further hearing or review unless the alien
indicates either an intention to apply for asylum under [section 208]
or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). If, however, such an alien ``indicates either an
intention to apply for asylum . . . or a fear of persecution'' (or, by
regulation, a fear of torture), the alien must instead be referred
``for an interview by an asylum officer.'' INA 235(b)(1)(A)(ii), 8
U.S.C. 1225(b)(1)(A)(ii); see also 8 CFR 235.3(b)(4).
Generally, in that interview, the asylum officer determines whether
the alien has ``a credible fear of persecution or torture''--that is,
whether there is a ``significant possibility'' that the alien could
succeed on the merits of his or her claims for asylum, statutory
withholding of removal, or protection under the CAT regulations. 8 CFR
208.30(d), (e)(2)-(3). If the officer makes a positive credible fear
determination, the officer must refer the alien ``for full
consideration of [the alien's claim(s) for relief or protection] in
proceedings under section 240 of the Act.'' Id. 208.30(f). If the
asylum officer makes a negative determination, and a supervisory
officer concurs, the asylum officer ``shall order the alien removed,''
subject to review by an IJ at the request of the alien of the negative
credible fear determination. Id. 208.30(g)(1)(i)-(ii).
Similarly, in section 240 removal proceedings, an IJ first
determines whether the alien is inadmissible or deportable. See INA
240(c)(2)-(3), 8 U.S.C. 1229a(c)(2)-(3); 8 CFR 1240.8(a)-(c). If the IJ
determines that the alien is inadmissible or deportable, the alien then
bears the burden to demonstrate that he or she should receive any form
of relief or protection from removal--e.g., asylum. See INA 240(c)(4),
8 U.S.C. 1229a(c)(4); 8 CFR 1240.8(d). If the alien does so, the IJ
grants the alien's application for relief or protection; if not, the IJ
orders the alien removed, subject to potential review by the Board of
Immigration Appeals (``BIA'') and a federal court of appeals. See INA
240(c)(1), (5), 8 U.S.C. 1229a(c)(1), (5); INA 242, 8 U.S.C. 1252; 8
CFR 1003.1(b)(3), 1240.1(a)(1).
2. Removals to Third Countries Consistent With the ACA Provision of INA
Section 208(a)(2)(A)
Directly upon an initial inadmissibility or deportability
determination within either an ER proceeding or a section 240
proceeding, see, e.g., INA 235(b)(1)(A)(ii), 240(c)(2)-(3), 8 U.S.C.
1225(b)(1)(A)(ii), 1229a(c)(2)-(3), section 208(a)(2)(A) authorizes an
asylum officer or IJ to conduct a threshold screening to determine
whether an alien is barred from applying for asylum in the United
States pursuant to an ACA, 8 U.S.C. 1158(a)(2)(A). This rule will
provide a mechanism for the operation of these threshold screenings.
Under this rule, an asylum officer or IJ will determine whether an
alien is subject to an ACA, and, if so, in those instances in which the
alien affirmatively states a fear of removal to a country that is a
signatory to the agreement, whether the alien can affirmatively
establish it is more likely than not that the alien would be persecuted
or tortured in that country. If the alien is subject to the ACA but
fails to demonstrate it is more likely than not that he or she would be
subject to persecution on account of a protected ground or to torture
in that country, the ER or section 240 proceeding would be completed
without an adjudication of any claims relating to a fear of persecution
or torture in the alien's home country.
Under this rule, however, an alien may voluntarily abandon his or
her asylum claim prior to removal pursuant to an ACA, choosing instead
to accept a removal order without pursuing any application for asylum.
Cf. Implementation of the Agreement Between the Government of the
United States of America and the Government of Canada Regarding Asylum
Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR at
69482 (DHS) (noting that immigration officers can use their discretion
to permit aliens subject to removal under ACAs to withdraw their
applications for admission so that they do not face an admissibility
bar to a subsequent admission to the United States). Further,
application of an ACA remains within the discretion of the screening
officer and DHS, which may conclude nonetheless that ``it is in the
public interest for the alien to receive asylum in the United States.''
\7\ INA 208(a)(2)(A), 1158(a)(2)(A); see Asylum Claims Made by Aliens
Arriving from Canada at Land Border Ports-of-Entry, 69 FR 10627, 10628
(DOJ) (proposed rule) (recognizing that ``the United States Government
may conclude, in its discretion, that it is in the public interest to
allow an arriving alien to remain in the United States to pursue
[[Page 63999]]
protection'' even if the alien is subject to an ACA and that this
``discretionary determination is reserved to DHS'').
---------------------------------------------------------------------------
\7\ As in the case of the U.S.-Canada Agreement, if there are
unique considerations that the individual would like DHS to consider
with respect to the ``public interest'' exception to application of
an ACA, the individual should timely bring them to the officer's
attention. Cf. Implementation of the Agreement Between the
Government of the United States of America and the Government of
Canada Regarding Asylum Claims Made in Transit and at Land Border
Ports-of-Entry, 69 FR at 69483 (DHS) (noting that the Agreement's
public interest exception is ``best administered through operational
guidance and on an individualized, case-by-case basis'').
---------------------------------------------------------------------------
Section 208(a)(1) generally establishes that ``[a]ny alien who is
physically present in . . . or who arrives in the United States . . .
may apply for asylum.'' 8 U.S.C. 1158(a)(1). But section 208(a)(2)
places limitations on those applications. Most of the section 208(a)(2)
application limitations are procedural, such as the stipulation that
asylum applications must generally be filed within one year of arrival
in the United States. INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). But
section 208(a)(2)(A) provides a more substantive limitation--
establishing that, in certain circumstances, an alien covered by an ACA
is prohibited from applying for asylum in the United States.
Specifically, an alien's asylum application is barred if the
following four conditions are satisfied: (i) The United States has
entered ``a bilateral or multilateral agreement'' under which certain
aliens may be removed--that is, an ACA; (ii) the alien is subject to
the ACA, and one of the signatory countries is a ``third country'' with
respect to the alien; (iii) ``the alien's life or freedom would not be
threatened'' in that third country ``on account of race, religion,
nationality, membership in a particular social group, or political
opinion''; and (iv) that third country will provide the alien with
``access to a full and fair procedure for determining a claim to asylum
or equivalent temporary protection.'' INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A). The INA provides that ``[n]o court shall have
jurisdiction'' to review any determination of the Attorney General or
Secretary made under any of the provisions within section 208(a)(2).
INA 208(a)(3), 8 U.S.C. 1158(a)(3).
3. Protection Screening With Respect to Removal to the Third Country
Where section 208(a)(2)(A) applies, it bars an alien from applying
for asylum in the United States and authorizes the removal of the alien
to a third country that will provide procedures for asylum or
equivalent temporary protection in the place of the United States. This
rule, however, provides that if an alien states a fear of persecution
or torture in, or removal to, the third country, an asylum officer will
determine whether ``the alien's life or freedom would . . . be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion.'' INA 208(a)(2)(A), 8
U.S.C. 1158(a)(2)(A). The terms of section 208(a)(2)(A) do not specify
the precise procedural mechanism by which the Attorney General and
Secretary must determine that an alien's life or freedom will not be
threatened on account of a protected ground in the third country. As
the relevant text of section 208(a)(2)(A) (``the alien's life or
freedom would not be threatened [in the third country] on account of
race, religion, nationality, membership in a particular social group,
or political opinion'') mirrors the standard for protection contained
in the INA's withholding-of-removal provision, INA 241(b)(3)(A), 8
U.S.C. 1231(b)(3)(A), this regulation adopts the burden of proof that
applies in the withholding-of-removal context. And the withholding-of-
removal provision has long been construed to call for a determination
as to whether the alien can show that it is ``more likely than not''
that he or she would be persecuted on account of a protected ground in
the country of removal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423
(1987); INS v. Stevic, 467 U.S. 407, 429-30 (1984); see also 8 CFR
1208.16(b)(2). Accordingly, under the threshold screening implemented
by this rule, an alien will not be removed to a third country under INA
section 208(a)(2)(A) if the alien establishes that it is more likely
than not that the alien would be persecuted on account of a protected
ground in that country.
The United States has undertaken certain non-refoulement (non-
return) obligations under the 1967 Protocol relating to the Status of
Refugees (``1967 Protocol''), which incorporates Articles 2-34 of the
1951 Convention relating to the Status of Refugees (``1951
Convention'').\8\ Article 33 of the 1951 Refugee Convention, as
understood in U.S. law, generally precludes state parties from removing
individuals to any country where their lives or freedom would be
threatened on account of their race, religion, nationality, political
opinion, or membership in a particular social group. Consistent with
these obligations, Congress has precluded removal of an alien to a
third country under section 208(a)(2)(A) if ``the alien's life or
freedom would . . . be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion.'' 8 U.S.C. 1158(a)(2)(A).
---------------------------------------------------------------------------
\8\ The United States is a party to the 1967 Protocol, but not
the 1951 Convention. Stevic, 467 U.S. at 416 & n.9. The Protocol is
not self-executing in the United States. See Khan v. Holder, 584
F.3d 773, 783 (9th Cir. 2009). But the United States has implemented
Article 34 of the 1951 Convention--which provides that party states
``shall as far as possible facilitate the assimilation and
naturalization of refugees''--through the INA's asylum provision,
section 208. See Cardoza-Fonseca, 480 U.S. at 441 (internal
quotation marks omitted). As the Supreme Court has recognized,
Article 34 is ``precatory'' and ``does not require [an] implementing
authority actually to grant asylum to all'' persons determined to be
refugees. Id. Thus, Congress's decision to bar certain classes of
aliens from applying for asylum does not contravene Article 34. See
Garcia v. Sessions, 856 F.3d 27, 42 (1st Cir. 2017) (Article 34 does
not ``preclude[ ] a contracting State from imposing a limitation on
the eligibility of an alien to seek asylum''); see also R-S-C- v.
Sessions, 869 F.3d 1176, 1188 (10th Cir. 2017) (similar); Cazun v.
U.S. Att'y Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017) (similar).
---------------------------------------------------------------------------
The United States has also undertaken certain non-refoulement
obligations under CAT, which are effectuated by DHS and DOJ regulations
that prohibit the removal of an alien to a country where he or she
would more likely than not be tortured. See 8 CFR 208.16(c),
1208.16(c).\9\ Removing an alien to a third country pursuant to an ACA
for consideration of the alien's protection claim in that country is
consistent with U.S. obligations under CAT, in the absence of grounds
for believing that the alien would be persecuted on account of a
protected ground or tortured in the third country. See Implementation
of the Agreement Between the Government of the United States of America
and the Government of Canada Regarding Asylum Claims Made in Transit
and at Land Border Ports-of-Entry, 69 FR at 10624 (DHS) (proposed rule)
(explaining the interaction between CAT obligations and the application
of the U.S.-Canada Agreement).
---------------------------------------------------------------------------
\9\ CAT is also not self-executing in the United States. See
Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005).
---------------------------------------------------------------------------
Congress enacted section 208(a)(2)(A) as a mechanism for countries
to burden-share the responsibility for providing protection to
refugees. Such agreements allocate responsibility between the United
States and the third country with which it has formed an ACA whereby
one country or the other (but not both) will bear responsibility for
processing the asylum and other protection claims of refugees subject
to the terms of the ACA. See id. at 10620 (explaining the legal
authority for applying cooperative agreements rather than permitting
applications for asylum or other relief in the United States); see also
Asylum Claims Made by Aliens Arriving from Canada at Land Border Ports-
of-Entry, 69 FR at 10628 (DOJ) (proposed rule) (providing that aliens
subject to the U.S.-Canada Agreement are ``not eligible to apply for
asylum, withholding of removal, or protection under [CAT] in the United
States''). The salient factor for the formulation and application of a
section 208(a)(2)(A) agreement is whether the country sharing
responsibility with the United States for refugee protection has laws
and
[[Page 64000]]
mechanisms in place that adhere to international treaty obligations to
protect refugees. See Implementation of the Agreement Between the
Government of the United States of America and the Government of Canada
Regarding Asylum Claims made in Transit and at Land Border Ports-of-
Entry, 69 FR at 10620 (DHS) (proposed rule).
Accordingly, this interim rule provides that an alien who will
potentially be subject to an ACA will be advised that he or she may be
removed to a third country pursuant to a bilateral or multilateral
agreement. If the alien affirmatively states a fear of removal to or
persecution or torture in that third country, a DHS asylum officer will
interview the alien to determine whether it is more likely than not
that the alien would be persecuted on account of a protected ground or
tortured in the third country. See 8 CFR 208.30. DOJ immigration judges
will apply a similar procedure to determine whether a removal pursuant
to an ACA cannot proceed because the individual has established that it
is more likely than not that he or she would be persecuted on account
of a protected ground or tortured in the third country. See id.
1240.11.
4. Additional Consequences of the Applicability of Section 208(a)(2)(A)
to an Alien's Asylum Application
If an asylum officer or IJ determines that an alien is barred from
applying for asylum under section 208(a)(2)(A), then the alien is also
barred from applying for withholding of removal under section
241(b)(3)(A) of the INA, 8 U.S.C. 1231(b)(3)(A), and protection under
the regulations implementing CAT. The purpose of section 208(a)(2)(A)--
and an agreement between the United States and another country formed
thereunder--is to vest ``one country or the other (but not both) [with
the] responsibility for processing'' an alien's claims related to fear
of persecution or torture in the alien's home country. Implementation
of the Agreement Between the Government of the United States of America
and the Government of Canada Regarding Asylum Claims Made in Transit
and at Land Border Ports-of-Entry, 69 FR at 10620 (DHS) (proposed
rule). That purpose would be defeated if, even when section
208(a)(2)(A) and an ACA made another country responsible for
adjudicating an alien's asylum claim, the United States remained
responsible for adjudicating his or her claims for withholding of
removal and CAT protection. Moreover, even if the United States granted
an alien's claims to withholding of removal or CAT protection, thereby
eliminating the possibility of removal to the alien's home country,
``[n]othing . . . [would] prevent the [United States] from removing
[the] alien to a third country''--including a country that is a
signatory to an applicable ACA. 8 CFR 208.16(f), 1208.16(f). Because
the alien could be removed to a third country pursuant to an ACA
regardless of the eventual outcome of his or her withholding-of-removal
or CAT protection claims, Congress cannot have intended to require DHS
and DOJ to adjudicate those claims before effectuating such a removal.
See Asylum Claims Made by Aliens Arriving from Canada at Land Border
Ports-of-Entry, 69 FR at 69492-93 (DOJ) (for similar reasons,
concluding that, if the U.S.-Canada Agreement bars an alien from
applying for asylum in the United States, the alien is also barred from
applying for withholding of removal and CAT protection).
C. Consistency With International Practice
The INA's ACA provision embodies the policy aim of entering into
bilateral or multilateral agreements to promote burden-sharing between
the United States and other countries with respect to refugee
protection. The U.S. efforts to formulate ACAs with foreign countries
is in keeping with the efforts of other liberal democracies to
formulate cooperative arrangements in which multiple countries agree to
share the review of refugee claims for protection.
For example, in 1990, European countries adopted the Dublin
Regulation in response to an asylum crisis as refugees and economic
migrants fled communism at the end of the Cold War; it came into force
in 1997. See Convention Determining the State Responsible for Examining
Applications for Asylum Lodged in One of the Member States of the
European Communities, 1997 O.J. (C 254). The United Nations High
Commissioner for Refugees (``UNHCR'') praised the Dublin Regulation's
``commendable efforts to share and allocate the burden of review of
refugee and asylum claims.'' UNHCR Position on Conventions Recently
Concluded in Europe (Dublin and Schengen Conventions), 3 Eur. Series 2,
385 (1991). Now in its third iteration, the Dublin III Regulation sets
asylum criteria and protocol for the European Union (``EU''). It
instructs that asylum claims ``shall be examined by a single Member
State.'' Regulation (EU) No. 604/2013 of the European Parliament and of
the Council of 26 June 2013, Establishing the Criteria and Mechanisms
for Determining the Member State Responsible for Examining an
Application for International Protection Lodged in One of the Member
States by a Third-Country National or a Stateless Person (Recast), 2013
O.J. (L 180) 31, 37.
UNHCR likewise generally has accepted the safe third country
concept as consonant with international refugee law principles. UNHCR,
Legal Considerations Regarding Access to Protection and a Connection
Between the Refugee and the Third Country in the Context of Return or
Transfer to Safe Third Countries (Apr. 2018), available at http://www.refworld.org/pdfid/5acb33ad4.pdf. According to UNHCR, ``refugees do
not have an unfettered right to choose their `asylum country.' '' Id.
at 1 & n.1 (citing UNHCR, Guidance Note on bilateral and/or
multilateral transfer arrangements of asylum-seekers, May 2013, para.
3(i), http://www.refworld.org/docid/51af82794.html; UNHCR, Summary
Conclusions on the Concept of ``Effective Protection'' in the Context
of Secondary Movements of Refugees and Asylum-Seekers (Lisbon Expert
Roundtable, 9-10 December 2002), Feb. 2003, para. 11, http://www.refworld.org/docid/3fe9981e4.html). Instead, ``[r]efugees may be
returned or transferred to a state where they had found, could have
found or, pursuant to a formal agreement, can find international
protection. The 1951 Convention relating to the Status of Refugees and
its 1967 Protocol do not prohibit such return or transfer.'' \10\ Id.
at 1.
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\10\ Formal advisory opinions of UNHCR are not binding on the
United States, but they have been recognized as useful aids in
interpreting the 1951 Convention and 1967 Protocol. See, e.g., INS
v. Aguirre-Aguirre, 526 U.S. 415, 427-28 (1999).
---------------------------------------------------------------------------
D. The U.S-Canada Agreement and Its Implementing Regulations
Section 208(a)(2)(A) itself does not mandate a particular set of
procedures for determining whether the section's requirements are
satisfied--and thus whether an alien is barred from applying for
asylum. The ample regulatory flexibility that section 208(a)(2)(A)
affords the Departments has been utilized in the regulations
implementing the U.S.-Canada Agreement.
In those regulations, the Attorney General and Secretary made an
across-the-board determination that all aliens removed to Canada
pursuant to the U.S.-Canada Agreement would have ``access to a full and
fair procedure'' for adjudicating their asylum claims within the
meaning of INA section 208(a)(2)(A). In reaching that across-the-board
finding, the Departments clarified that
[[Page 64001]]
``harmonization of asylum laws and procedures is not a prerequisite to
entering into responsibility-sharing arrangements'' under INA section
208(a)(2)(A). Implementation of the Agreement Between the Government of
the United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
at 10620 (DHS) (proposed rule). Rather, ``[t]he salient factor is
whether the countries sharing responsibility for refugee protection
have laws and mechanisms in place that adhere to their international
obligations to protect refugees.'' Id.
In contrast to the categorical finding on the full-and-fair-
procedure requirement in the 2004 rule, the implementing regulations
for the U.S.-Canada Agreement call for individualized determinations as
to whether an alien falls within the terms of the Agreement, and, if
so, whether the alien qualifies for one of the Agreement's exceptions.
Specifically, with respect to ER, the regulations provide that, when an
alien seeks to apply for asylum, the asylum officer must first
determine whether the alien falls within one of the classes generally
subject to the Agreement--that is, ``whether [the] alien arriv[ed] in
the United States at a U.S.-Canada land border port-of-entry or in
transit through the U.S. during removal by Canada.'' Implementation of
the Agreement Between the Government of the United States of America
and the Government of Canada Regarding Asylum Claims Made in Transit
and at Land Border Ports-of-Entry, 69 FR at 69489 (DHS) (codified at 8
CFR 208.30(e)(6)). If so, the asylum officer must then determine
whether ``the alien [can] establish[] by a preponderance of the
evidence that he or she qualifies for an exception under the terms of
the Agreement''--including the exception applicable where certain DHS
officials have determined that it is in the public interest for the
alien to have his asylum claim heard in the United States. Id.
(codified at 8 CFR 208.30(e)(6)(ii), (iii)(F)).
If the asylum officer determines that the alien is not subject to
the Agreement, or meets an exception, the asylum officer proceeds to
conduct a credible fear interview. Id. (codified at 8 CFR
208.30(e)(6)(ii)). But if the asylum officer determines that the alien
is subject to the Agreement, and does not meet an exception, the asylum
officer submits his or her findings to a ``supervisory asylum
officer.'' Id. (codified at 8 CFR 208.30(e)(6)(i)). If that supervisory
officer concurs, the alien is barred from applying for asylum in the
United States. And if the alien is so barred, he or she can be removed
to Canada without any further administrative review by an IJ or the
BIA. Asylum Claims Made by Aliens Arriving From Canada at Land Border
Ports-of-Entry, 69 FR at 69496 (DOJ) (codified at 8 CFR 1003.42(h)).
The regulations governing INA section 240 proceedings are similar.
They require an IJ--after determining that an alien is inadmissible or
deportable, but before assessing the merits of the alien's claims for
asylum, withholding of removal, or protection under the regulations
implementing CAT--to determine whether the U.S.-Canada Agreement
``appl[ies] to the alien'' and whether ``[t]he alien qualifies for an
exception to the Agreement.'' Id. at 69497 (codified at 8 CFR
1240.11(g)(2)(i)-(ii)). If the Agreement does not apply, or the alien
meets an exception, the IJ assesses the alien's claims for relief as
usual. Id. (codified at 8 CFR 1240.11(g)(1)). But if the Agreement
applies, and the alien does not meet an exception, the IJ does not
assess the merits of any potential statutory withholding-of-removal or
CAT claim and instead may order the alien removed, with the proviso
that the alien may apply for any other relief from removal for which
the alien may be eligible. Id. (codified at 8 CFR 1240.11(g)(4)).
V. Detailed Discussion of Regulatory Changes
A. Summary of the New and Amended Regulatory Provisions and Their
Import
Despite the existence of regulations effectuating the U.S.-Canada
Agreement within the ER and INA section 240 frameworks, this rule is
necessary because several of the current implementing regulations are
specific to the U.S.-Canada Agreement, see Implementation of the
Agreement Between the Government of the United States of America and
the Government of Canada Regarding Asylum Claims Made in Transit and at
Land Border Ports-of-Entry, 69 FR at 10620 (DHS) (proposed rule); id.
at 69480 (DHS), and Canada is specially situated in a number of ways
including its shared border with the United States. In addition, this
rule provides for individualized screening of claims by aliens that
they will face persecution or torture in the third country to which
they would be removed pursuant to an ACA other than the U.S.-Canada
Agreement.
The scope of the U.S.-Canada Agreement, and, consequently, the
U.S.-Canada Agreement regulations, is limited to aliens arriving at
ports of entry along the U.S. border with Canada. In contrast, this
generalized rule for the implementation of all ACAs (with countries
other than Canada) will cover ACAs to the full extent permitted by
section 208(a)(2)(A), which contains no limitation to only those aliens
who have transited through the relevant third country or who arrive at
ports of entry. To accommodate for the expanded applicability of the
ACAs implemented under this current rule beyond the narrower class of
aliens subject to the U.S.-Canada Agreement after traveling through
Canada, this rule expands the threshold screening of aliens potentially
subject to ACAs other than the U.S.-Canada Agreement. The rule gives
aliens subject to an ACA an opportunity, during threshold screening, to
establish that it would be ``more likely than not'' that the alien's
life or freedom would be threatened in the third country on account of
a protected ground or that the alien would be tortured in the third
country. If DHS officers or IJs determine that an alien establishes
such a fear by a preponderance of the evidence, the alien will not be
removed to the third country pursuant to the ACA formed with that
particular country. Cf. INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)
(eliminating the opportunity to apply for asylum in the United States
``if the Attorney General [or Secretary] determines that the alien may
be removed, pursuant to a bilateral or multilateral agreement, to a
country (other than the country of the alien's nationality or, in the
case of an alien having no nationality, the country of the alien's last
habitual residence) in which the alien's life or freedom would not be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion,'' among other required
determinations described elsewhere in this rule).
In contrast to many of the countries listed as potential countries
of removal in section 241(b) of the INA, the third country to which an
alien would be removed under an ACA is a country to which an alien does
not necessarily have preexisting ties or any preexisting reason to fear
persecution or torture. Compare INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A), with INA 241(b)(1)-(2), 8 U.S.C. 1231(b)(1)-(2).
Moreover, unlike the countries to which aliens typically would be
removed under section 241(b) of the INA, these third countries of
removal would have pre-committed, per binding agreements with the
United States, to provide access to a ``full and fair procedure'' for
the alien to acquire ``asylum or equivalent temporary
[[Page 64002]]
protection,'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). Aliens subject
to an ACA thus would have an avenue for protection in the third country
of removal not necessarily available in an INA section 241(b) country
of removal--a country that may not have entered a binding agreement to
provide the alien procedures for requesting safe haven and that may
have originally prompted the alien's flight and application for asylum.
This rule retains the existing regulations implementing the U.S.-
Canada Agreement, while also crafting a new regulatory framework under
which other ACAs will be implemented. Even though the regulatory
framework for implementation of the new ACAs will differ in some
significant respects from the earlier 2004 regulations, in part for the
reasons described above, this rule also replicates several key aspects
of implementation of the U.S.-Canada Agreement. First, as with the
regulatory scheme for the U.S.-Canada Agreement, prior to
implementation of an ACA subject to this rule, the Departments will
make a generalized determination as to whether the third country grants
asylum seekers ``access to a full and fair procedure'' within the
meaning of INA 208(a)(2)(A). This finding is required by the text of
section 208(a)(2)(A), and the Departments will make the ``full and
fair'' third country determination separate and apart from the
regulatory provisions provided for here, to address this threshold
statutory element that must be satisfied before any section
208(a)(2)(A) bilateral or multilateral agreement is effectuated.
Second, under this rule, there will be an individualized screening
process within the preexisting ER and INA section 240 frameworks to
evaluate whether an alien falls within the terms of an agreement and,
if so, whether the alien nonetheless meets one of its exceptions. The
statute also provides an exception to the terms of an ACA in the event
that the Secretary determines in the Secretary's discretion that ``it
is in the public interest for the alien to receive asylum in the United
States.'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). As under the U.S.-
Canada Agreement, the public interest exception is to be applied on a
case-by-case basis, as a matter of discretion, to permit certain
individuals to pursue applications for asylum or withholding of removal
in the United States, where the Secretary or his immigration officers
``find[] that it is in the public interest for the alien to receive
asylum in the United States.'' See INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A); cf. 8 CFR 208.30(e)(6)(iii)(F). Application of the
exception is ``solely within the discretion of DHS.'' Asylum Claims
Made by Aliens Arriving from Canada at Land Border Ports-of-Entry, 69
FR at 10628, 10630 (DOJ) (proposed rule); see also INA 208(a)(3), 8
U.S.C. 1158(a)(3) (``No court shall have jurisdiction to review any
determination of the Attorney General [or Secretary] under paragraph
(2).'').
As with the regulations implementing the U.S.-Canada Agreement,
this rule will implement the statutory requirements into its threshold
screening mechanism for evaluating which aliens are barred from
applying for asylum under an ACA. The applicability of any additional
limitations on the categories of aliens subject to the terms of a
particular ACA will also be assessed during the initial screening. If
an ACA is determined to be applicable to an alien applying for asylum,
and the alien does not demonstrate that his life or freedom will more
likely than not be threatened in the third country, the immigration
officer may proceed to order removal without consideration of asylum,
withholding-of-removal, or CAT claims, analogous to the U.S.-Canada
Agreement removal arrangements. See Implementation of the Agreement
Between the Government of the United States of America and the
Government of Canada Regarding Asylum Claims Made in Transit and at
Land Border Ports-of-Entry, 69 FR at 69481 (DHS) (``[A] careful reading
of the Act makes clear that credible fear interviews are not required
for aliens subject to [ACAs].'').
The U.S.-Canada Agreement applies only to aliens who had arrived in
the United States to seek asylum after traveling through Canada.
However, the terms of section 208(a)(2)(A) do not limit the
applicability of ACAs to aliens who have traveled through the third
country in transit to the United States. Consequently, in contrast to
the U.S.-Canada provisions, this rule provides that the screening
procedures for ACAs with countries other than Canada (which, with one
possible exception, would not be contiguous to the United States) will
afford aliens an opportunity to establish that it is more likely than
not that they would be persecuted or tortured if removed to the
applicable third country. It provides an additional screening component
enabling asylum officers and IJs to assess whether an alien who
affirmatively states a fear of removal to the signatory country under
an applicable ACA would more likely than not be persecuted or tortured
in such country.
B. New 8 CFR 208.30(e)(7)
The regulations at 8 CFR 208.30 govern interviews, conducted by DHS
asylum officers, of stowaways and aliens subject to ER. See 8 CFR
208.30(a). New paragraph (e)(7) requires an asylum officer, in an
appropriate case, to make several threshold screening determinations
before assessing the merits of an alien's claims for asylum,
withholding of removal, or CAT protection. First, the asylum officer
must determine whether the alien is subject to one or more ACAs.
Second, if so, the officer must determine whether the alien meets any
exception to the applicable agreement(s)--including the public-interest
exception, which, under section 208(a)(2)(A), all ACAs must contain. If
the alien is not subject to any ACA, or the alien meets an exception to
each applicable agreement, the asylum officer will assess the merits of
the alien's claims for relief as usual--that is, assess whether the
alien has a credible fear of persecution or torture under existing
paragraphs (e)(2) and (3). But if the alien is subject to an ACA, and
does not meet any exception, the asylum officer will inform the alien
that he or she is potentially subject to removal to the third country
signatory to the relevant ACA, and that the third country, rather than
the United States, will provide access to a full and fair procedure for
adjudication of the alien's claims.
After identifying the third country or countries to which the alien
may be removed, if the alien does not affirmatively state a fear of
persecution or torture in, or removal to, the country or countries, the
asylum officer will refer the determination--i.e., that the alien is
barred from applying for asylum, withholding of removal, and CAT
protection in the United States, and subject to removal to the third
country or countries--to a supervisory officer for review. If the
supervisory asylum officer disagrees, that officer will remand the case
to the asylum officer for a credible fear interview.
If, on the other hand, the alien affirmatively states a fear of
persecution or torture in, or removal to, the third country or
countries, the asylum officer will then determine whether the alien can
establish, by a preponderance of the evidence, that, if the alien were
removed to the third country or countries, it is more likely than not
that he or she would be persecuted on account of a protected ground or
tortured. If the officer determines the alien has met that burden,
given that the alien has already been placed into ER proceedings, the
officer will assess the
[[Page 64003]]
merits of the alien's claims for relief and protection as usual--i.e.,
conduct a normal credible fear interview. But if the officer determines
the alien has not met that burden, the officer will refer the
determination to a supervisory asylum officer for review.
The threshold screening determinations under the U.S.-Canada
Agreement regulatory procedures similarly incorporate a preponderance-
of-the-evidence standard. See 8 CFR 208.30(e)(6)(ii). As under the
U.S.-Canada screening procedures, in making the threshold
determinations discussed above, asylum officers ``will use all
available evidence, including the individual's testimony, affidavits
and other documentation, as well as available records and databases.''
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum Claims
Made in Transit and at Land Border Ports-of-Entry, 69 FR at 10623 (DHS)
(proposed rule); see also id. at 69482 (DHS) (``The Department has
clarified, in the final rule, that the same safeguards accorded to
aliens who are eligible for a credible fear determination will be
accorded to aliens who receive threshold screening interviews.''). In
the asylum officer's discretion, ``[c]redible testimony alone may be
sufficient'' to meet the alien's burden ``if there is a satisfactory
explanation of why corroborative documentation is not reasonably
available.'' Implementation of the Agreement Between the Government of
the United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
at 10623 (DHS) (proposed rule). Asylum officers have received
``extensive training in evaluating credibility of testimony when there
is little or no documentation in support of that testimony,'' id., and
will apply that training to the threshold determination of whether an
alien falls within the terms of an ACA or an exception and whether the
alien has established a clear probability of persecution or torture in
the third country.
In contrast to the final rule implementing the U.S.-Canada
Agreement that provided an alien with a minimal consultation period
prior to the threshold screening interview to determine the
applicability of the Agreement, this rule does not mandate such a
period. See Implementation of the Agreement Between the Government of
the United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
at 69482 (DHS) (providing a minimal consultation period but emphasizing
that the consultation period would not permit the postponement of the
threshold screening interview process so as not to ``compromise the
principle underlying the Agreement that aliens be returned promptly to
the country of last presence''). Rather, this rule expands the
threshold screening process itself to allow for an alien to demonstrate
that he or she is ``more likely than not'' to be subject to persecution
on account of a protected ground or torture in the receiving country
under the ACA.
The bilateral ACAs that the United States has signed as of the
effective date of this rule include agreements with El Salvador,
Guatemala, and Honduras and incorporate fewer and less complex
exceptions than the U.S.-Canada Agreement, eliminating the need for a
consultation period analogous to the consultation period permitted by
the U.S.-Canada Agreement.\11\ Further, this rule's expansion of the
underlying threshold screening procedures to provide an opportunity for
aliens to establish ``more likely than not'' persecution or torture in
the receiving country provides additional process beyond that which is
available under the regulations implementing the U.S.-Canada Agreement.
---------------------------------------------------------------------------
\11\ Applicability of the exceptions at issue in the non-Canada
ACAs generally can be evaluated through records checks and by asking
straightforward biographic questions. Conversely, the exceptions to
the U.S.-Canada Agreement required more detailed information from
the alien, such as whether certain family members of the applicant
are present in the United States, the immigration status of those
family members, and whether the family members have pending asylum
applications. See 8 CFR 208.30(e)(6)(iii)(A)-(F). Should the U.S.
enter into additional ACAs in the future having exceptions that
mirror the complexity of those contained in the U.S.-Canada
Agreement, DHS could choose to establish consultation periods as
needed.
---------------------------------------------------------------------------
Although section 208(a)(2)(A) is silent with respect to which party
bears the burden of showing the applicability (or inapplicability) of
the bar and the appropriate standard of proof for such a showing,
section 208(b)(1) indicates that the ultimate burden of proof in
establishing asylum eligibility is on the applicant. See INA
208(b)(1)(A)-(B), 8 U.S.C. 1158(b)(1)(A)-(B) (authorizing a grant of
asylum to an alien who meets the burden of establishing that he or she
is a refugee). Moreover, the section 208(a)(2)(A) language regarding
protection against harm from the third country of removal is parallel
to the section 241(b)(3) language establishing withholding-of-removal
protection with respect to the typical potential countries of removal
specified by INA sections 241(b)(1) and (2). When evaluating whether an
alien is entitled to withholding of removal under INA 241(b)(3) or
evaluating a claim for protection under the regulations implementing
CAT, an IJ addresses whether an alien has established the relevant fear
by a preponderance of the evidence. See 8 CFR 1208.16(b)-(c). It is
therefore reasonable to require an alien to show, by a preponderance of
the evidence, that he or she meets an exception to an otherwise
applicable ACA, and that he or she would face harm in the third
country. See Implementation of the Agreement Between the Government of
the United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
at 69483 (DHS) (reasoning that, because ``applicants for asylum,
withholding of removal, and protection under [CAT] bear the burden of
proof,'' it is reasonable for aliens to bear ``the burden of proof for
purposes of establishing that an exception to the [U.S.-Canada]
Agreement applies'').
C. Amended 8 CFR 1003.42(h)(1)-(2) and New 8 CFR 1003.42(h)(3)-(4)
This rule will amend 8 CFR 1003.42(h) to reflect the implementation
of ACAs other than the U.S.-Canada Agreement. In particular, the rule
will make technical amendments to 8 CFR 1003.42(h)(1) and (2) to
clarify that those paragraphs apply to only the preexisting U.S.-Canada
Agreement. The rule creates new 8 CFR 1003.42(h)(3) and (4) to reflect
the distinction that the threshold officer screening in the non-Canada
ACAs includes an opportunity for the alien to establish that it is more
likely than not that he or she would be persecuted on account of a
protected ground or tortured. Under the new paragraph (h)(3), an IJ is
prohibited from reviewing an officer's determination that section
208(a)(2)(A) bars an alien from applying for asylum. But an IJ acquires
jurisdiction to review a negative credible fear finding in any case
where an alien either establishes that he or she qualifies for an ACA
exception, or establishes more-likely-than-not harm in the relevant
third country, thus prohibiting the application of the ACA to that
alien. (In such a case, the asylum officer would apply typical credible
fear screening to the alien, giving an IJ jurisdiction to review a
negative finding by that officer.) The new (h)(4) clarifies that an
alien subject to removal under an ACA is ineligible to apply for
withholding-of-removal and CAT relief in the United States, along with
asylum, as explained in the detailed legal background section of the
rule.
[[Page 64004]]
This IFR preserves the general review framework currently
underlying 8 CFR 1003.42(h)(1), which provides that an IJ lacks
jurisdiction to review an asylum officer's determination that the U.S.-
Canada Agreement bars an alien from applying for asylum in the United
States and makes them removable to Canada for adjudication of his or
her claim for asylum or equivalent protection. In proposing a framework
for implementing the U.S.-Canada Agreement, DOJ noted that, in a given
case, the asylum officer would be making an individualized
determination only as to whether the Agreement (or any of its
exceptions) applied to the alien. Asylum Claims Made by Aliens Arriving
from Canada at Land Border Ports-of-Entry, 69 FR at 10630 (DOJ)
(proposed rule). Given the ``narrowness of the factual issues''
underlying such a determination, DOJ determined that review by an IJ
was unnecessary. Id.
DOJ suggested the analysis might be different if an asylum officer
were evaluating ``the merits of an . . . alien's asylum claims.'' Id.
And under this IFR, an asylum officer does need to determine whether
the alien would more likely than not be persecuted or tortured in the
third country to which he or she would be removed under an ACA. But
when evaluating an asylum claim on the merits, an asylum officer or IJ
is often forced to make a complex assessment as to whether wrongs done
to the asylum seeker (or those similarly situated) in the asylum
seeker's home country were motivated by animus against a protected
group or some other factor. In contrast, evaluating whether an asylum
seeker would face persecution or torture in a country to which he has
no substantial connections is more straightforward. The third country
with which the United States has formed an ACA is, by definition, not
an alien's country of nationality or last habitual residence. See INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) (authorizing ACA removal only to
countries other than that of the alien's nationality or last habitual
residence, if the alien has no nationality). And, thus, the country of
removal under an ACA is not the country originally prompting the asylum
seeker's claim, unlike the potential countries of removal under section
241(b)(1)-(2) to which section 241(b)(3) withholding of removal claims
are directed, see 8 U.S.C. 1231(b)(1)-(2) (providing, e.g., for an
alien to be removed to the country in which he or she boarded a vessel
or aircraft to reach the United States or the country in which he or
she is a citizen or was born or has a residence). Because the ACA
country of removal did not prompt the alien's claim, the process for
determining simply whether to send the alien to a third country for
that consideration is reasonably more minimalistic than the requisite
procedures for deciding asylum and withholding of removal claims on the
merits.
Finally, Congress chose not to mandate IJ review of decisions as to
whether an alien is subject to an ACA. Yet, in the same legislation
creating section 208(a)(2)(A), Congress created the ER process. See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Public Law 104-208, sec. 302 and 604, 110 Stat. 3009-546, -579, -690.
And in that process, Congress expressly mandated IJ review (at the
request of the alien) of a negative credible fear determination by an
asylum officer. Compare INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) with
INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). That
difference strongly suggests that Congress did not intend to require IJ
review of decisions by asylum officers as to whether aliens are barred
from applying for asylum under section 208(a)(2)(A).
Therefore, it is unnecessary--and indeed would be inconsistent with
the INA removal statutory scheme--to mandate IJ review of a
determination that section 208(a)(2)(A) bars an alien from applying for
asylum. In section 208(a)(2)(A), Congress authorized the Executive
Branch to operate within the President's foreign affairs authority to
enter international agreements more evenly distributing the load of
providing access to potential asylum for international refugees and
asylees. By its terms, section 208(a)(2)(A) preserves flexibility for
the Executive Branch in entering such agreements. The provision imposes
two clear requirements, limiting such international agreements only to
countries that provide access to full and fair protection procedures
and are places in which an alien's life or freedom would not be harmed
on account of a protected ground. Beyond those specifications, the
Executive Branch's utilization of its statutory authority under section
208(a)(2)(A) is subject to no express procedural stipulations.
In any event, this rule preserves unchanged the existing credible
fear process itself, including the statutorily required availability of
review by an IJ. So, if an asylum officer determines that an alien
subject to the terms of an ACA bar would more likely than not be
persecuted or tortured in the third country or, for any reason, that
the ACA does not prohibit the alien's U.S. asylum application, the
officer will then proceed immediately to a credible fear determination.
If necessary, as required by statute and preexisting regulations, an IJ
will conduct a review of this determination.
D. Amended 8 CFR 1240.11(g) and New 8 CFR 1240.11(h)
This rule will amend 8 CFR 1240.11(g) to reflect that the section
will now apply only to the U.S.-Canada Agreement. The rule will also
create a new 8 CFR 1240.11(h) to provide for the implementation of all
other existing and future ACAs within the context of section 240
proceedings. Similar to the threshold determinations that asylum
officers must make in ER proceedings, as described above, this new
regulatory section will require IJs to determine whether an alien falls
within an exception to an otherwise applicable ACA, and will authorize
IJs to provide an alien subject to the terms of an ACA an opportunity
to establish that it is more likely than not that the alien would be
persecuted on account of a protected ground or tortured in the
applicable third country.
VI. Regulatory Requirements
A. Administrative Procedure Act
The Departments' decision to promulgate the regulations
implementing the U.S.-Canada Agreement through formal notice-and-
comment rulemaking does not obligate the Departments to do so here.
See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 171-72 (7th
Cir. 1996) (observing that courts should ``attach no weight'' to an
agency's varied approaches to the use of notice-and-comment rulemaking
involving similar rules and that ``there is nothing in the
[Administrative Procedure Act (``APA'')] to forbid an agency to use the
notice and comment procedure in cases in which it is not required to do
so''); Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 744
n.62 (D. Or. 1997) (``There are many reasons why an agency may
voluntarily elect to utilize notice and comment rulemaking . . . .'').
For the reasons that follow, the Departments are issuing this rule as
an interim final rule pursuant to the APA's exemption from notice-and-
comment requirements for rules involving ``foreign affairs
function[s]'' and the ``good cause'' exception for rules with respect
to which ``notice and public procedure'' is ``impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(a)(1),
(b)(B).
[[Page 64005]]
1. Foreign Affairs Exemption
The Departments may forgo notice-and-comment procedures and a delay
in the effective date of this rule because the rule involves a
``foreign affairs function of the United States,'' and thus is exempt
from the procedural requirements of 5 U.S.C. 553. See id. 553(a)(1).
This rule puts into effect ACAs already negotiated with El Salvador,
Guatemala, and Honduras, and will remove obstacles to successfully
negotiating ACAs with other countries. This rule is thus similar to
others that courts have determined are within the scope of the foreign
affairs exemption and is likewise exempt from notice-and-comment
rulemaking requirements and the required delay in the effective date.
See, e.g., Int'l Bhd. of Teamsters v. Pe[ntilde]a, 17 F.3d 1478, 1486
(D.C. Cir. 1994) (holding that a Federal Highway Administration rule
``implement[ing] an agreement between the United States and Mexico''
was necessary for the United States to avoid ``reneging on [its]
international obligations'' and thus was appropriately promulgated
under the foreign affairs exemption of the APA); City of New York v.
Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d
Cir. 2010) (quoting the description of the purpose of the foreign
affairs exemption in H.R. Rep. No. 79-1980, at 23 (1946)).
This rule will facilitate ongoing diplomatic negotiations with
foreign countries regarding migration issues, including measures to
control the flow of aliens into the United States. See City of New
York, 618 F.3d at 201 (finding that rules related to diplomacy with a
potential impact on U.S. relations with specific other countries fall
within the scope of the foreign affairs exemption). Those ongoing
discussions relate to proposals for increased efforts by third
countries to help reduce the flow of illegal aliens north to the United
States and to join the United States in shouldering the load of
providing asylum procedures, and possible relief or protection, to the
migrants from around the world flocking to U.S. borders. See Yassini v.
Crosland, 618 F.2d 1356, 1361 (9th Cir. 1980) (per curiam) (because an
immigration directive ``was implementing the President's foreign
policy,'' the action ``fell within the foreign affairs function and
good cause exceptions to the notice and comment requirements of the
APA'').
In the latter half of 2019, U.S. officials entered into agreements
with El Salvador, Guatemala, and Honduras pursuant to INA 208(a)(2)(A).
U.S. officials remain in negotiations with other nations to enter into
additional ACAs. Delaying the implementation of the rule due to notice-
and-comment rulemaking could impact the ability of the United States to
negotiate by creating uncertainty about the regulatory framework that
the United States will have in place to carry out such agreements. See
East Bay I, 909 F.3d at 1252-53 (suggesting that reliance on the
exemption is justified where the Government ``explain[s] how immediate
publication of the Rule, instead of announcement of a proposed rule
followed by a thirty-day period of notice and comment'' is necessary in
light of the Government's foreign affairs efforts). Potential
signatories to such agreements may be more hesitant to negotiate with
the United States and to rely on a commitment by the United States to
meet the terms of negotiated agreements if the regulatory framework to
carry out such agreements is uncertain and not yet in place.
The terms of some of the current ACAs have been contingent on the
signing countries exchanging diplomatic notes certifying that each
country has put in place the legal framework necessary to effectuate
and operationalize the agreement. The United States will have a
stronger negotiating position in entering additional agreements if a
domestic regulatory framework is already in effect during the
negotiations. The circumstances of the U.S.-Canada Agreement underscore
this reality, as a period of nearly two years passed between the
formation of the agreement and its effectuation through the
promulgation of final rules. That delay was not as problematic in the
context of U.S.-Canada relations, as comparatively few aliens are
subject to the U.S.-Canada Agreement. In contrast, a far greater number
of aliens arriving at the southern border will be affected by the non-
Canada ACAs currently under development. To bring the numbers of U.S.
asylum applicants to a more manageable level, and to have a strong
negotiating position with other potential third countries, the United
States needs the flexibility to effectuate the current ACAs much more
rapidly than the two-year time period that transpired between the
signing and execution of the U.S.-Canada Agreement. Further, countries
that sign ACAs with the United States may be deterred from sustaining
their commitments to the agreements if the United States materially
delays its operationalization after representing to those countries
that their entry into these agreements is an urgent U.S. priority. Cf.
E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 776 (9th Cir. 2018)
(``East Bay I'') (``Hindering the President's ability to implement a
new policy in response to a current foreign affairs crisis is the type
of `definitely undesirable international consequence' that warrants
invocation of the foreign affairs exception.'').
Similarly, a delayed effective date for the rule may weaken the
facility of the United States to pursue the negotiating strategy it
deems to be most appropriate as it engages its foreign partners. See,
e.g., Am. Ass'n of Exps. & Imps.-Textile & Apparel Grp. v. United
States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (the foreign affairs
exemption facilitates ``more cautious and sensitive consideration of
those matters which so affect relations with other Governments that . .
. public rule-making provisions would provoke definitely undesirable
international consequences'' (internal quotation marks omitted)). In
addition, addressing this crisis will be more effective and less
disruptive to long-term U.S. relations with Mexico \12\ and the
Northern Triangle countries the sooner that this interim final rule is
in place, as it will help address the enormous flow of aliens through
these countries to the southern border, where aliens seeking ultimately
meritless asylum claims continue to strain resources and contribute to
a national security and humanitarian crisis. Cf. id. (``The timing of
an announcement of new consultations or quotas may be linked intimately
with the Government's overall political agenda concerning relations
with another country.''). Further, the efficient implementation of this
interim rule will improve the ability of the United States to negotiate
successfully with these and potentially other countries. See Rajah v.
Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (finding that the notice-and-
comment process can be ``slow and cumbersome,'' which can negatively
affect efforts to secure U.S. national interests, thereby justifying
application of the foreign affairs exemption).
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\12\ The United States and Mexico have been engaged in ongoing
discussions regarding both regional and bilateral approaches to
asylum. See, e.g., Secretary Nielsen Meets with Mexican Officials on
Border Emergency, Travels to Honduras to Meet with Northern Triangle
Governments to Address Crisis at Source (Mar. 26, 2019), available
at http://www.dhs.gov/news/2019/03/26/secretary-nielsen-meets-mexican-officials-border-emergency-travels-honduras-meet.
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This rule supports the President's foreign policy with respect to
Mexico, the Northern Triangle countries, and other potential partner
countries in this area and thus is exempt from the notice-and-comment
and delayed-effective-
[[Page 64006]]
date requirements in 5 U.S.C. 553. See Am. Ass'n of Exps. & Imps.-
Textile & Apparel Grp., 751 F.2d at 1249; Yassini, 618 F.2d at 1361.
Invoking the APA's foreign affairs exemption is also consistent
with past rulemakings. In 2016, for example, in response to diplomatic
developments between the United States and Cuba, DHS changed its
regulations concerning flights to and from the island via an
immediately effective interim final rule. Flights to and From Cuba, 81
FR 14948, 14952 (Mar. 21, 2016). In a similar vein, DHS, in
consultation with the Department of State, recently provided notice
that it was eliminating an exception to expedited removal for certain
Cuban nationals. The document explained that the change in policy was
consistent with the foreign affairs exemption for rules subject to
notice-and-comment requirements because the change was central to
ongoing negotiations between the two countries. Eliminating Exception
To Expedited Removal Authority for Cuban Nationals Encountered in the
United States or Arriving by Sea, 82 FR 4902, 4904-05 (Jan. 17, 2017).
Some courts have layered onto the foreign affairs exemption a
requirement that the agency show not merely that the rule implicates
foreign affairs, but also that the use of notice-and-comment procedures
would ``provoke definitely undesirable international consequences.''
See, e.g., East Bay I, 932 F.3d at 775-76 (internal quotation marks
omitted). As explained above, even this constraint on application of
the APA foreign affairs exemption is satisfied here, as a delayed
effective date for this rule could have far-reaching consequences for
the strength of the negotiating position of the United States in
relation to potential signatories of future ACAs.
2. Good Cause Exception
Alternatively, the Departments may forgo notice-and-comment
rulemaking and a delayed effective date while this rulemaking is
published in the Federal Register for public comment, because the APA
provides an exception from those requirements when an agency ``for good
cause finds . . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3). This exception relieves
agencies of notice-and-comment requirements in urgent situations, or in
circumstances where ``the delay created by the notice and comment
requirements would result in serious damage to important interests.''
Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990),
aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611-12 (D.C. Cir. 1982); United States
v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010). On multiple occasions,
agencies have relied on this exception to promulgate immigration-
related interim rules.\13\
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\13\ See, e.g., Visas: Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
4, 2016) (interim rule citing good cause to immediately require a
passport and visa from certain H2-A Caribbean agricultural workers
to avoid ``an increase in applications for admission in bad faith by
persons who would otherwise have been denied visas and are seeking
to avoid the visa requirement and consular screening process during
the period between the publication of a proposed and a final
rule''); Suspending the 30-Day and Annual Interview Requirements
From the Special Registration Process for Certain Nonimmigrants, 68
FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming the good cause
exception for suspending certain automatic registration requirements
for nonimmigrants because ``without [the] regulation approximately
82,532 aliens would be subject to 30-day or annual re-registration
interviews'' over a six-month period).
---------------------------------------------------------------------------
The Departments have concluded that the good cause exceptions in 5
U.S.C. 553(b)(B) and (d)(3) apply to this rule. Delaying implementation
of this rule until the conclusion of notice-and-comment procedures and
the 30-day delayed effective date would be impracticable and contrary
to the public interest. In rejecting challenges to the prior use of
interim rules, courts have cited evidence that pre-publication of a
significant change in asylum procedures will cause migrants to rush to
U.S. borders. See East Bay I, 354 F. Supp. 3d 1094, 1115 (N.D. Cal.
2018) (concluding that the Government was ``likely to prevail on its
claim regarding the good cause exception'' in the context of a November
2018 interim rule barring asylum eligibility for aliens who, in
violation of a Presidential proclamation, enter between ports of
entry); cf. Barr v. East Bay Sanctuary Covenant, (``East Bay II''), No.
19A230, 588 U.S. __ (Sept. 11, 2019) (granting, without explanation, a
stay on appeal from a circuit court order that had concluded, in part,
that the Government had inadequately justified reliance on the good
cause and foreign affairs APA exemptions in promulgating an IFR).
Would-be asylum applicants have a strong incentive to intensify their
efforts to rapidly reach the U.S. border when the United States
announces a regulatory change that will impact asylum applications.
See, e.g., Mobil Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492
(Temp. Emer. Ct. App. 1983) (concluding that good cause exists when
``the very announcement'' of a rule could ``be expected to precipitate
activity by affected parties that would harm the public welfare''); see
also id. (collecting cases).
Here, the announcement that the United States has arranged for
other countries to consider certain protection applications, in lieu of
any ability to apply for protection within the United States itself,
would create a perceived urgency for aliens to enter the United States
illegally or apply for admission without proper documentation before
the ACAs take effect. The implementation of ACAs would require
significant numbers of aliens to file applications for protection in
third countries rather than the United States. Recent events have shown
that knowledge of this kind of impending change is highly likely to
cause a dramatic increase in the numbers of aliens who enter or attempt
to enter the United States to file asylum applications before the
effective date of the change. For example, over a one-year period from
2018 to 2019, southwestern-border family-unit apprehensions rose 469
percent. See Application for a Stay Pending Appeal at 24, Barr v. East
Bay Sanctuary Covenant, No. 19A230 (U.S. Aug. 26, 2019) (``Stay
Application, East Bay II'') (citing Administrative Record at 233, East
Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST (N.D. Cal. 2019)
(``A.R., East Bay II''). And numerous news articles connect such recent
surges to changes in immigration policy. See Stay Application, East Bay
II, at 25 (citing A.R., East Bay II, at 438-39 (describing how
smugglers persuaded migrants to cross the border after family
separation was halted by telling the migrants to ``hurry up before they
might start doing so again''); id. at 452-54 (indicating that migrants
refused offers to stay in Mexico because their goal is to enter the
United States); id. at 663-665, 683 (indicating that Mexico faced a
migrant surge when it changed its policies)).
Further, as courts have recognized, smugglers encourage migrants to
enter the United States based on changes in U.S. immigration policy,
and, in fact, ``the number of asylum seekers entering as families has
risen'' in a way that ``suggests a link to knowledge of those
policies.'' East Bay, 354 F. Supp. 3d at 1115. If this rule were
published for notice and comment before becoming effective, ``smugglers
might similarly communicate th[is] Rule's potentially relevant change
in U.S. immigration policy,'' id., and the risk of a surge in migrants
hoping to enter the country before the rule becomes effective supports
a finding of good cause under 5 U.S.C. 553.
[[Page 64007]]
Past experience shows that individuals inside and outside of the
United States change their behavior in anticipation of changes to U.S.
immigration laws. For example, Central American officials reported that
after President Donald Trump's victory in the November 2016 election,
Central Americans began ``crossing illegally into the U.S. at the
fastest rate in years, many of them hoping to sneak in before Donald
Trump's presidential inauguration and the heightened border-security
measures he has promised.'' Robbie Whelan, Central Americans Surge at
Border Before Trump Takes Over, Wall Street Journal (Dec. 23, 2016),
http://www.wsj.com/articles/central-americans-surge-at-border-before-trump-takes-over-1482489047. Honduras's deputy foreign minister
attested, ``We're worried because we're seeing a rise in the flow of
migrants leaving the country, who have been urged to leave by coyotes
telling them that they have to reach the United States before Trump
takes office.'' Gustavo Palencia & Sofia Menchu, Central Americans
Surge North, Hoping To Reach U.S. Before Trump Inauguration, Reuters
(Nov. 24, 2016), http://www.reuters.com/article/us-usa-trump-immigration-centralamerica/central-americans-surge-north-hoping-to-reach-u-s-before-trump-inauguration-idUSKBN13J2A7 (internal quotation
marks omitted). Guatemala's foreign minister similarly stated that
people were ``leaving Guatemala en masse before Trump becomes
president.'' Id.
The enactment of the Illegal Immigration Reform and Immigration
Responsibility Act (``IIRIRA''), Public Law 104-208, div. C, 110 Stat.
3009-546 (1996), similarly prompted immigrants to change their behavior
and seek to take advantage of the pre-IIRIRA rules. IIRIRA made several
changes to asylum law. For example, it added three categorical bars to
asylum: (1) Aliens who can be removed to a safe third country pursuant
to bilateral or multilateral agreement; (2) aliens who failed to apply
for asylum within one year of arriving in the United States; and (3)
aliens who have previously applied for asylum and had the application
denied. INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C). IIRIRA also
provided that aggravated felonies, defined in INA 101(a)(43), 8 U.S.C.
1101(a)(43), would be considered ``particularly serious crime[s]'' that
render an alien ineligible for asylum. INA 208(b)(2)(B)(i), 8 U.S.C.
1158(b)(2)(B)(i). IIRIRA was signed into law on September 30, 1996, see
President William Jefferson Clinton, Statement on Signing H.R. 3610,
the Omnibus Appropriations Act, 1997 (Sept. 30, 1996), but did not take
effect until April 1, 1997. Data shows a large spike in asylum
applications filed just before IIRIRA went into effect and a large dip
the week it went into effect. See Initial Asylum Receipts by Week,
April 1, 1994, to March 31, 1997, PASD #19-227, Planning, Analysis, and
Statistics Division, EOIR (recording 52 successive weeks with fewer
than 3,000 total ``[i]nitial [a]sylum [r]eceipts,'' spiking to an
intake of 4,448 new asylum cases the week of Monday, March 24, 1997,
and then dipping back down to just 1,099 new cases the week of March
31, 1997). This suggests that some asylum seekers that would have
otherwise applied in April may have instead applied in March to avoid
IIRIRA's new rules on asylum.
In addition to the factual basis for reliance on the good cause
exception here, in light of these numerous examples in which
announcements of U.S. immigration policy changes immediately impacted
migrant behavior, application of the exception here comports with
repeated agency practice. For example, in January 2017, DHS concluded
that it was imperative to give immediate effect to a rule designating
Cuban nationals arriving by air as eligible for expedited removal
because ``[p]re-promulgation notice and comment would . . . endanger[ ]
human life and hav[e] a potential destabilizing effect in the region.''
Eliminating Exception to Expedited Removal Authority for Cuban
Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017). DHS cited
the prospect 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.'' Id. DHS found that ``[s]uch 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.'' Id. DHS concluded that ``a
surge could result in significant loss of human life.'' Id.
Reliance on the good cause exception in effecting immediate changes
in immigration policy is not a new practice. In 2004, for example, DHS
relied on the exception to immediately expand ER to further national
security and deter dangerous migrant travel. See, e.g., Designating
Aliens For Expedited Removal, 69 FR 48877 (Aug. 11, 2004); see also,
e.g., Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended, 81 FR at 5907 (finding the good cause
exception applicable because of similar concerns).
DOJ and DHS raised similar concerns and drew similar conclusions in
the July 2019 joint interim final rule that limited asylum eligibility
for aliens who had transited to the United States through a third
country without applying for available asylum relief. Asylum
Eligibility and Procedural Modifications, 84 FR 33829, 33840-41 (July
16, 2019); see also, e.g., Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations; Procedures for Protection Claims,
83 FR 55934, 55950-51 (Nov. 9, 2018) (also relying on the good cause
exception). As noted above, the Supreme Court granted (without
explanation) a stay of a lower court decision that had ruled against
use of an IFR to promulgate the third-country-transit requirement.
These same concerns apply to this rule to an even greater extent.
Pre-promulgation notice and comment, or a delay in the effective date,
would jeopardize the lives and welfare of aliens who could surge to the
border to enter the United States before the rule limiting asylum
applications took effect. See East Bay I, 354 F. Supp. 3d at 1115
(citing a newspaper article suggesting that such a rush to the border
occurred due to knowledge of a pending regulatory change in immigration
law). Furthermore, an additional surge of aliens seeking to enter via
the southern border prior to the effective date of this rule would be
destabilizing to the region, as well as to the U.S. immigration system.
In recent years, there has been a massive increase in the number of
aliens who assert a fear of persecution. This massive increase is
overwhelming the U.S. immigration system as a result of a variety of
factors, including the extraordinary proportion of aliens who are
initially found to have a credible fear and therefore are referred to
full removal proceedings in immigration court; a lack of detention
space; and the resulting high rate of release into the interior of the
United States of aliens with a positive credible fear determination,
many of whom then abscond without pursuing their asylum claims to a
final conclusion and become difficult to locate and remove. Recent
initiatives to track family-unit cases in 10 cities and from Sept. 24,
2018, through October 25, 2019, revealed that 79 percent of removal
orders were
[[Page 64008]]
issued in absentia--i.e., were issued to an alien who had absconded. A
large additional influx of aliens who intend to enter illegally or to
apply for admission without proper documentation would exacerbate this
crisis. This concern is particularly acute in the current climate in
which illegal immigration flows fluctuate significantly in response to
news events. Therefore, this interim final rule is a practical and
necessary means to address the time-sensitive influx of aliens and
avoid creating an even larger short-term influx.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). A regulatory flexibility analysis is
not required when a rule is exempt from notice-and-comment rulemaking.
C. Unfunded Mandates Reform Act of 1995
This interim final rule will not result in the expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
D. Congressional Review Act
This interim final rule is not a major rule as defined by section
804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
E. Executive Order 12866, Executive Order 13563, and Executive Order
13771 (Regulatory Planning and Review)
This rule is not subject to Executive Order 12866 as it is
implicates a foreign affairs function of the United States relating to
ongoing discussions with implications for a set of specified
international relationships. As this is not a regulatory action under
Executive Order 12866, it is not subject to Executive Order 13771.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
Services, Organization and functions (Government agencies).
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procure, Aliens.
Regulatory Amendments
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR part 208 as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
of Public Law 110-229, 8 CFR part 2.
0
2. Section 208.4 is amended by revising paragraph (a)(6) to read as
follows:
Sec. 208.4 Filing the application.
* * * * *
(a) * * *
(6) Asylum Cooperative Agreements. Immigration officers have
authority to apply section 208(a)(2)(A) of the Act, relating to the
determination that the alien may be removed to a third country pursuant
to a bilateral or multilateral agreement, as provided in Sec.
208.30(e). For provisions relating to the authority of immigration
judges with respect to section 208(a)(2)(A), see 8 CFR 1240.11(g) and
(h).
* * * * *
0
3. Section 208.30 is amended by revising paragraph (e)(7) and adding
paragraph (e)(8) to read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
suspended under section 212(f) or 215(a)(1) of the Act, or who failed
to apply for protection from persecution in a third country where
potential relief is available while en route to the United States.
* * * * *
(e) * * *
(7) When an immigration officer has made an initial determination
that an alien, other than an alien described in paragraph (e)(6) of
this section and regardless of whether the alien is arriving at a port
of entry, appears to be subject to the terms of an agreement authorized
by section 208(a)(2)(A) of the Act, and seeks the alien's removal
consistent with this provision, prior to any determination concerning
whether the alien has a credible fear of persecution or torture, the
asylum officer shall conduct a threshold screening interview to
determine whether the alien is ineligible to apply for asylum in the
United States and is subject to removal to a country (``receiving
country'') that is a signatory to the applicable agreement authorized
by section 208(a)(2)(A) of the Act, other than the U.S.-Canada
Agreement effectuated in 2004. In conducting this threshold screening
interview, the asylum officer shall apply all relevant
[[Page 64009]]
interview procedures outlined in paragraph (d) of this section, except
that paragraphs (d)(2) and (4) of this section shall not apply to
aliens described in this paragraph (e)(7). The asylum officer shall
advise the alien of the applicable agreement's exceptions and question
the alien as to applicability of any of these exceptions to the alien's
case. The alien shall be provided written notice that if he or she
fears removal to the prospective receiving country because of the
likelihood of persecution on account of a protected ground or torture
in that country and wants the officer to determine whether it is more
likely than not that the alien would be persecuted on account of a
protected ground or tortured in that country, the alien should
affirmatively state to the officer such a fear of removal. If the alien
affirmatively states such a fear, the asylum officer will determine
whether the individual has demonstrated that it is more likely than not
that he or she would be persecuted on account of a protected ground or
tortured in that country.
(i)(A) If the asylum officer, with concurrence from a supervisory
asylum officer, determines during the threshold screening interview
that an alien does not qualify for an exception under the applicable
agreement, and, if applicable, that the alien has not demonstrated that
it is more likely than not that he or she would be persecuted on
account of a protected ground or tortured in the receiving country, the
alien is ineligible to apply for asylum in the United States. Subject
to paragraph (e)(7)(i)(B) of this section, after the asylum officer's
documented finding is reviewed by a supervisory asylum officer, the
alien shall be advised that he or she will be removed to the receiving
country, as appropriate under the applicable agreement, in order to
pursue his or her claims relating to a fear of persecution or torture
under the law of the receiving country. Prior to removal to a receiving
country under an agreement authorized by section 208(a)(2)(A), the
alien shall be informed that, in the receiving country, the alien will
have an opportunity to pursue the alien's claim for asylum or
equivalent temporary protection.
(B) Aliens found ineligible to apply for asylum under this
paragraph (e)(7) shall be removed to the receiving country, depending
on the applicable agreement, unless the alien voluntarily withdraws his
or her request for asylum.
(ii) If the alien establishes by a preponderance of the evidence
that he or she qualifies for an exception under the terms of the
applicable agreement, or would more likely than not be persecuted on
account of a protected ground delineated in section 208(a)(2)(A) of the
Act or tortured in the receiving country, the asylum officer shall make
a written notation to that effect, and may then proceed to determine
whether any other agreement is applicable to the alien under the
procedures set forth in this paragraph (e)(7). If the alien establishes
by a preponderance of the evidence that he or she qualifies for an
exception under the terms of each of the applicable agreements, or
would more likely than not be persecuted on account of a protected
ground or tortured in each of the prospective receiving countries, the
asylum officer shall make a written notation to that effect, and then
proceed immediately to a determination concerning whether the alien has
a credible fear of persecution or torture under paragraph (d) of this
section.
(iii) An exception to an applicable agreement is defined under the
terms of the agreement itself. Each agreement, including any
exceptions, will be announced in a Federal Register document. If the
asylum officer determines that an alien is within one of the classes
covered by a section 208(a)(2)(A) agreement, the officer shall next
determine whether the alien meets any of the applicable agreement's
exceptions. Regardless of whether the text of the applicable agreement
provides for the following exceptions, all such agreements, by
operation of section 208(a)(2)(A) of the Act, and as applicable to the
United States, are deemed to contain the following provisions:
(A) No alien may be removed, pursuant to an agreement authorized by
section 208(a)(2)(A), to the alien's country of nationality, or, if the
alien has no nationality, to the alien's country of last habitual
residence; and
(B) No alien may be removed, pursuant to an agreement authorized by
section 208(a)(2)(A), where the Director of USCIS, or the Director's
designee, determines, in the exercise of unreviewable discretion, that
it is in the public interest for the alien to receive asylum in the
United States, and that the alien therefore may apply for asylum,
withholding of removal, or protection under the Convention Against
Torture, in the United States.
(iv) If the asylum officer determines the alien meets an exception
under the applicable agreement, or would more likely than not be
persecuted on account of a protected ground or tortured in the
prospective receiving country, the officer may consider whether the
alien is subject to another agreement and its exceptions or would more
likely than not be persecuted on account of a protected ground or
tortured in another receiving country. If another section 208(a)(2)(A)
agreement may not be applied to the alien, the officer should
immediately proceed to a credible fear interview.
(8) An asylum officer's determination shall not become final until
reviewed by a supervisory asylum officer.
* * * * *
Department of Justice
Accordingly, for the reasons set forth in the preamble, the
Attorney General amends 8 CFR parts 1003, 1208, and 1240 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
4. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
5. Section 1003.42 is amended by revising paragraph (h) to read as
follows:
Sec. 1003.42 Review of credible fear determination.
* * * * *
(h) Asylum cooperative agreement--(1) Arriving alien. An asylum
judge has no jurisdiction to review a determination by an immigration
officer that an arriving alien is not eligible to apply for asylum
pursuant to the 2002 U.S.-Canada Agreement formed under section
208(a)(2)(A) of the Act and should be returned to Canada to pursue his
or her claims for asylum or other protection under the laws of Canada.
See 8 CFR 208.30(e)(6). However, in any case where an asylum officer
has found that an arriving alien qualifies for an exception to that
Agreement, an immigration judge does have jurisdiction to review a
negative credible fear finding made thereafter by the asylum officer as
provided in this section.
(2) Aliens in transit. An immigration judge has no jurisdiction to
review any determination by DHS that an alien being removed from Canada
in transit through the United States should be returned to Canada to
pursue asylum claims under Canadian law, under the terms of the 2002
U.S.-Canada Agreement.
[[Page 64010]]
(3) Applicants for admission. An immigration judge has no
jurisdiction to review a determination by an asylum officer that an
alien is not eligible to apply for asylum pursuant to a bilateral or
multilateral agreement with a third country under section 208(a)(2)(A)
of the Act and should be removed to the third country to pursue his or
her claims for asylum or other protection under the laws of that
country. See 8 CFR 208.30(e)(7). However, if the asylum officer has
determined that the alien may not or should not be removed to a third
country under section 208(a)(2)(A) of the Act and subsequently makes a
negative credible fear determination, an immigration judge has
jurisdiction to review the negative credible fear finding as provided
in this section.
(4) Aliens in transit through the United States from countries
other than Canada. An immigration judge has no jurisdiction to review
any determination by DHS that an alien being removed from a receiving
country in transit through the United States should be returned to
pursue asylum claims under the receiving country's law, under the terms
of the applicable cooperative agreement. See 8 CFR 208.30(e)(7).
PART 1208--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
6. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
of Public Law 110-229, 8 CFR part 2.
0
7. Section 1208.4 is amended by revising paragraph (a)(6) to read as
follows:
Sec. 1208.4 Filing the application.
* * * * *
(a) * * *
(6) Asylum cooperative agreements. Immigration judges have
authority to consider issues under section 208(a)(2)(A) of the Act,
relating to the determination of whether an alien is ineligible to
apply for asylum and should be removed to a third country pursuant to a
bilateral or multilateral agreement, only with respect to aliens whom
DHS has chosen to place in removal proceedings under section 240 of the
Act, as provided in 8 CFR 1240.11(g) and (h). For DHS regulations
relating to determinations by immigration officers on this subject, see
8 CFR 208.30(e)(6) and (7).
* * * * *
PART 1240--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
8. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
0
9. Section 1240.11 is amended by revising the paragraph (g) subject
heading and paragraphs (g)(1) and (4) and adding paragraph (h) to read
as follows:
Sec. 1240.11 Ancillary matters, applications.
* * * * *
(g) U.S.-Canada safe third country agreement. (1) The immigration
judge has authority to apply section 208(a)(2)(A) of the Act, relating
to a determination that an alien may be removed to Canada pursuant to
the 2002 Agreement Between the Government of the United States of
America and the Government of Canada For Cooperation in the Examination
of Refugee Status Claims from Nationals of Third Countries
(``Agreement''), in the case of an alien who is subject to the terms of
the Agreement and is placed in proceedings pursuant to section 240 of
the Act. In an appropriate case, the immigration judge shall determine
whether under that Agreement the alien should be returned to Canada, or
whether the alien should be permitted to pursue asylum or other
protection claims in the United States.
* * * * *
(4) An alien who is found to be ineligible to apply for asylum
under section 208(a)(2)(A) of the Act is ineligible to apply for
withholding of removal pursuant to section 241(b)(3) of the Act and the
Convention against Torture. However, the alien may apply for any other
relief from removal for which the alien may be eligible. If an alien
who is subject to the Agreement and section 208(a)(2)(A) of the Act is
ordered removed, the alien shall be ordered removed to Canada, in which
the alien will be able to pursue his or her claims for asylum or
protection against persecution or torture under the laws of Canada.
(h) Other asylum cooperative agreements. (1) The immigration judge
has authority to apply section 208(a)(2)(A) of the Act, relating to a
determination that an alien may be removed to a third country pursuant
to a bilateral or multilateral agreement--other than the 2002 U.S.-
Canada Agreement--in the case of an alien who is subject to the terms
of the relevant agreement and is placed in proceedings pursuant to
section 240 of the Act. In an appropriate case, the immigration judge
shall determine whether under the relevant agreement the alien should
be removed to the third country, or whether the alien should be
permitted to pursue asylum or other protection claims in the United
States. If more than one agreement applies to the alien and the alien
is ordered removed, the immigration judge shall enter alternate orders
of removal to each relevant country.
(2) An alien described in paragraph (h)(1) of this section is
ineligible to apply for asylum pursuant to section 208(a)(2)(A) of the
Act, or for withholding of removal or CAT protection in the United
States, unless the immigration judge determines, by a preponderance of
the evidence, that:
(i) The relevant agreement does not apply to the alien or does not
preclude the alien from applying for asylum in the United States;
(ii) The alien qualifies for an exception to the relevant agreement
as set forth in paragraph (h)(3) of this section and the Federal
Register document specifying the exceptions particular to the relevant
agreement; or
(iii) The alien has demonstrated that it is more likely than not
that he or she would be persecuted on account of a protected ground or
tortured in the third country.
(3) The immigration judge shall apply the applicable regulations in
deciding whether an alien described in paragraph (h)(1) of this section
qualifies for an exception under the relevant agreement that would
permit the United States to exercise authority over the alien's asylum
claim. The exceptions for agreements with countries other than Canada
are further explained by the applicable published Federal Register
document setting out each Agreement and its exceptions. The immigration
judge shall not review, consider, or decide any issues pertaining to
any discretionary determination on whether an alien described in
paragraph (h)(1) of this section should be allowed to pursue an
application for asylum in the United States notwithstanding the general
terms of an agreement, as section 208(a)(2)(A) of the Act reserves to
the Secretary or his delegates the determination whether it is in the
public interest for the alien to receive asylum in the United States.
However, an alien in removal proceedings who is otherwise ineligible to
apply for asylum under an agreement may apply for asylum if DHS files a
written notice in the proceedings before the immigration judge that DHS
has decided in the
[[Page 64011]]
public interest that the alien may pursue an application for asylum or
withholding of removal in the United States.
(4) If the immigration judge determines that an alien described in
paragraph (h)(1) of this section is subject to the terms of agreements
formed pursuant to section 208(a)(2)(A) of the Act, and that the alien
has failed to demonstrate that it is more likely than not that the
alien would be persecuted on account of a protected ground or tortured
in those third countries, then the alien is ineligible to apply for
withholding of removal pursuant to section 241(b)(3) of the Act and the
Convention Against Torture notwithstanding any other provision in this
chapter. However, the alien may apply for any other relief from removal
for which the alien may be eligible. If an alien who is subject to
section 208(a)(2)(A) of the Act is ordered removed, the alien shall be
ordered removed to the relevant third country in which the alien will
be able to pursue his or her claims for asylum or protection against
persecution or torture under the laws of that country.
Approved:
Dated: November 14, 2019.
Chad F. Wolf,
Acting Secretary of Homeland Security.
Approved:
Dated: November 14, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-25137 Filed 11-18-19; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P