[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Proposed Rules]
[Pages 41201-41219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14758]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / 
Proposed Rules  

[[Page 41201]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

RIN 1615-AC57
[Docket No: USCIS 2020-0013]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 4747-2020]
RIN 1125-AB08


Security Bars and Processing

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security (``DHS''); Executive Office for Immigration Review, 
Department of Justice (``DOJ'').

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend existing DHS and DOJ 
(collectively, ``the Departments'') regulations to clarify that the 
Departments may consider emergency public health concerns based on 
communicable disease due to potential international threats from the 
spread of pandemics when making a determination as to whether ``there 
are reasonable grounds for regarding [an] alien as a danger to the 
security of the United States'' and, thus, ineligible to be granted 
asylum or the protection of withholding of removal in the United States 
under Immigration and Nationality Act (``INA'') sections 208 and 241 
and DHS and DOJ regulations. The proposed rule also would provide that 
this application of the statutory bars to eligibility for asylum and 
withholding of removal will be effectuated at the credible fear 
screening stage for aliens in expedited removal proceedings in order to 
streamline the protection review process and minimize the spread and 
possible introduction into the United States of communicable and 
widespread disease. The proposed rule further would allow DHS to 
exercise its prosecutorial discretion regarding how to process 
individuals subject to expedited removal who are determined to be 
ineligible for asylum in the United States on certain grounds, 
including being reasonably regarded as a danger to the security of the 
United States. Finally, the proposed rule would modify the process for 
evaluating the eligibility of aliens for deferral of removal who are 
ineligible for withholding of removal as presenting a danger to the 
security of the United States.

DATES: Comments must be submitted on or before August 10, 2020.

ADDRESSES: You may submit comments, identified by Docket Number USCIS 
2020-0013 through the Federal eRulemaking Portal: http://www.regulations.gov. If you cannot submit your material using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION 
CONTACT section of this document for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 
    FOR USCIS: Andrew Davidson, Asylum Division Chief, Refugee, Asylum 
and International Affairs Directorate, U.S. Citizenship and Immigration 
Services, DHS; telephone 202-272-8377 (not a toll-free call).
    For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy, 
Executive Office for Immigration Review, 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 of 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 name and Docket Number USCIS 2020-0013. Please note that all 
comments received are considered part of the public record and made 
available for public inspection at http://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 seek to mitigate the risk of a deadly communicable 
disease being brought to the United States, or being further spread 
within the country. Thus, the Departments propose making four 
fundamental and necessary reforms to the Nation's immigration system: 
(1) Clarifying that the ``danger to the security of the United States'' 
bars to eligibility for asylum and withholding of removal apply in the 
context of public health emergencies related to the possible threat of 
introduction or further spread of international pandemics into the 
United States; (2) making these bars applicable in ``credible fear'' 
screenings in the expedited removal process so that aliens subject to 
the bars can be expeditiously removed; (3) streamlining screening for 
deferral of removal eligibility in the expedited removal process to 
similarly allow for the expeditious removal of aliens ineligible for 
deferral; and (4) as to aliens determined to be ineligible for asylum 
and withholding of removal as dangers to the security of the United 
States during credible fear screenings but who nevertheless 
affirmatively establish that torture in the prospective country of 
removal is more likely than not, restoring DHS's discretion to either 
place the aliens into removal proceedings under section 240 of the INA 
(``240 proceedings''), 8 U.S.C. 1229a, or remove them to third 
countries where they would not face persecution or torture--to allow 
for the expeditious removal of aliens whose entry during a serious 
public health emergency would represent a danger to the security of the 
United States on public health grounds.
    The amendments made by this proposed rule would apply to aliens who 
enter the United States after the effective date, except that the 
amendments would not apply to aliens who had before the date of the

[[Page 41202]]

applicable designation (1) affirmatively filed asylum and withholding 
applications, or (2) indicated a fear of return in expedited removal 
proceedings.

III. Background

A. Pandemics

    The Centers for Disease Control and Prevention (``CDC'') has stated 
that: ``A pandemic is a global outbreak of disease. Pandemics happen 
when a new virus emerges to infect people and can spread between people 
sustainably. Because there is little to no pre-existing immunity 
against the new virus, it spreads worldwide.'' \1\ Of the twentieth 
century's three pandemics involving influenza, the 1918 pandemic killed 
up to 50 million persons around the world and up to 675,000 in the 
United States; the 1957 pandemic killed approximately 2 million and 
70,000, respectively; and the 1968 pandemic killed approximately 1 
million and 34,000, respectively.\2\ The White House's Homeland 
Security Council (``HSC'') projected in 2006 that ``a modern pandemic 
could lead to the deaths of 200,000 to 2 million U.S. citizens'' \3\ 
and further explained that:
---------------------------------------------------------------------------

    \1\ CDC, Coronavirus Disease 2019 (COVID-19), Situation Summary 
(``Situation Summary'') (updated April 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last 
visited May 15, 2020).
    \2\ Congressional Budget Office (``CBO''), A Potential Influenza 
Pandemic: Possible Macroeconomic Effects and Policy Issues at 6-7 
(December 8, 2005, revised July 27, 2006), https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/12-08-birdflu.pdf; see also Homeland Security Council, White House, 
National Strategy for Pandemic Influenza at 1 (2005), https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-strategy-2005.pdf.
    \3\ Homeland Security Council, White House, National Strategy 
for Pandemic Influenza: Implementation Plan at 15 (2006), https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-implementation.pdf.

    A pandemic . . . differ[s] from most natural or manmade 
disasters in nearly every respect. Unlike events that are discretely 
bounded in space or time, a pandemic will spread across the globe 
over the course of months or over a year, possibly in waves, and 
will affect communities of all sizes and compositions. The impact of 
a severe pandemic may be more comparable to that of a widespread 
economic crisis than to a hurricane, earthquake, or act of 
terrorism. It may . . . overwhelm the health and medical 
infrastructure of cities and have secondary and tertiary impacts on 
the stability of institutions and the economy. These consequences 
are impossible to predict before a pandemic emerges because the 
biological characteristics of the virus and the impact of our 
interventions cannot be known in advance.\4\
---------------------------------------------------------------------------

    \4\ Id. at 27.

---------------------------------------------------------------------------
    The HSC further warned that:

    The economic and societal disruption of [an influenza] . . . 
pandemic could be significant. Absenteeism across multiple sectors 
related to personal illness, illness in family members, fear of 
contagion, or public health measures to limit contact with others 
could threaten the functioning of critical infrastructure, the 
movement of goods and services, and operation of institutions such 
as schools and universities. A pandemic would thus have significant 
implications for the economy, national security, and the basic 
functioning of society.\5\ 
---------------------------------------------------------------------------

    \5\ Id. at 1.

    Then-Secretary of Homeland Security Michael Chertoff similarly 
stated in 2006 that ``[a] severe pandemic . . . may affect the lives of 
millions of Americans, cause significant numbers of illnesses and 
fatalities, and substantially disrupt our economic and social 
stability.'' \6\ In addition, components of the U.S. military have 
indicated that the global spread of pandemics can impact military 
readiness, thus posing a direct threat to U.S. national security. See 
Diane DiEuliis & Laura Junor, Ready or Not: Regaining Military 
Readiness During COVID19, Strategic Insights, U.S. Army Europe (Apr. 
10, 2020), https://www.eur.army.mil/COVID-19/COVID19Archive/Article/2145444/ready-or-not-regaining-military-readiness-during-covid19/ 
(discussing the spread within the military of twentieth-century 
pandemics and consequences of the spread this year of COVID-19). For 
example, the military noted that the risk of further spread of COVID-19 
this year has led to the cancellation or reduction of various large-
scale military exercises and a 60-day stop-movement order. See id.
---------------------------------------------------------------------------

    \6\ DHS, Pandemic Influenza: Preparedness, Response, and 
Recovery: Guide for Critical Infrastructure and Key Resources, 
Introduction at 1 (2006) (Michael Chertoff, Secretary of Homeland 
Security), https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.
---------------------------------------------------------------------------

B. COVID-19

    Fears regarding the effects of a catastrophic global pandemic have 
unfortunately been realized in the emergency of COVID-19, a 
communicable disease caused by a novel (new) coronavirus, SARS-CoV-2, 
that was first identified as the cause of an outbreak of respiratory 
illness in Wuhan, Hubei Province, in the People's Republic of China 
(``PRC'').\7\ COVID-19 spreads easily and sustainably within 
communities, primarily by person-to-person contact through respiratory 
droplets; it may also transfer through contact with surfaces or objects 
contaminated with these droplets when people touch such surfaces and 
then touch their own mouths, noses, or, possibly, their eyes.\8\ There 
is also evidence of pre-symptomatic and asymptomatic transmission, in 
which an individual infected with COVID-19 is capable of spreading the 
virus to others before, or without ever, exhibiting symptoms.\9\ COVID-
19's ease of transmission presents a risk of a surge in 
hospitalizations, which has been identified as a likely contributing 
factor to COVID-19's high mortality rate in countries such as Italy and 
the PRC.\10\
---------------------------------------------------------------------------

    \7\ CDC, Situation Summary (updated June 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last 
visited June 22, 2020).
    \8\ CDC, Interim Infection Prevention and Control 
Recommendations for Patients with Suspected or Confirmed Coronavirus 
Disease 2019 (COVID-19) in Healthcare Settings (updated May 18, 
2020), https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-recommendations.html (last visited June 8, 2020).
    \9\ CDC, Interim Clinical Guidance for Management of Patients 
with Confirmed Coronavirus Disease (COVID-19) (updated June 2, 
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
    \10\ Ariana Eunjung Cha, Spiking U.S. Coronavirus Cases Could 
Force Rationing Decisions Similar to Those Made in Italy, China, 
Wash. Post (Mar. 15, 2020), https://www.washingtonpost.com/health/2020/03/15/coronavirus-rationing-us/; see also CDC, Healthcare 
Facilities: Preparing for Community, https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-hcf.html (last visited May 15, 
2020).
---------------------------------------------------------------------------

    Symptoms of COVID-19 include fever, cough, and shortness of breath, 
and typically appear 2 to 14 days after exposure.\11\ Severe 
manifestations of the disease have included acute pneumonia, acute 
respiratory distress syndrome, septic shock, and multi-organ 
failure.\12\ As of March 3, 2020, approximately 3.4 percent of COVID-19 
cases reported around the world had resulted in death.\13\ The 
mortality rate is higher among older adults and those with compromised 
immune systems.\14\ During the height of the spread of COVID-19 within 
the United States and internationally, there were significant numbers 
of deaths and the rates of infection increased rapidly, indicating

[[Page 41203]]

the critical need to reduce the risk of further spread by limiting and 
restricting admission and relief to aliens who may be carrying the 
disease and could pose further risk to the U.S. population. As in many 
other countries that, during the spread of COVID-19, closed their 
borders and restrained international travel, pandemic-related risks 
raise security threats for the United States.\15\
---------------------------------------------------------------------------

    \11\ CDC, Coronavirus Disease 2019 (COVID-19), Symptoms of 
Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited May 15, 2020).
    \12\ CDC, Interim Clinical Guidance for Management of Patients 
with Confirmed Coronavirus Disease (COVID-19) (updated June 2, 
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
    \13\ World Health Organization Director-General, Opening Remarks 
at the Media Briefing on COVID-19 (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---3-march-2020.
    \14\ CDC, Interim Clinical Guidance for Management of Patients 
with Confirmed Coronavirus Disease (COVID-19) (updated June 2, 
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
    \15\ See, e.g., WHO, Coronavirus disease 2019 (COVID-19) 
Situation Report--65 (Mar. 25, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200325-sitrep-65-covid-19.pdf?sfvrsn=2b74edd8_2 (confirming 413,467 cases and 18,433 
deaths globally as of March 25, 2020 and documenting the growth in 
the global epidemic curve); CDC, Coronavirus Disease 2019 (COVID-
19): Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (providing the total number of domestic 
cases every day starting on January 22, 2020 and listing 1,551,095 
cases and 93,061 deaths domestically as of May 21, 2020) (last 
visited May 21, 2020).).
---------------------------------------------------------------------------

    On January 31, 2020, the Secretary of the U.S. Department of Health 
and Human Services (``HHS'') declared COVID-19 to be a public health 
emergency under the Public Health Service Act (``PHSA'').\16\ On March 
13, 2020, the President issued a proclamation declaring a national 
emergency concerning COVID-19.\17\ Likewise, all U.S. States, 
territories, and the District of Columbia have declared a state of 
emergency in response to the growing spread of COVID-19.\18\
---------------------------------------------------------------------------

    \16\ Determination of Public Health Emergency, 85 FR 7316 (Feb. 
7, 2020).
    \17\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Novel Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \18\ National Governors Association (``NGA''), Coronavirus: What 
You Need to Know, https://www.nga.org/coronavirus (state action 
tracking chart) (last visited May 21, 2020).
---------------------------------------------------------------------------

    As of May 2020, the President had suspended the entry of most 
travelers from the PRC (excluding Hong Kong and Macau), Iran, the 
Schengen Area of Europe,\19\ the United Kingdom, and the Republic of 
Ireland, due to COVID-19.\20\ In mid-March, the CDC issued Level 3 
Travel Health Notices recommending that travelers avoid all 
nonessential travel to the PRC (excluding Hong Kong and Macau), Iran, 
South Korea, and most of Europe.\21\ The U.S. Department of State 
(``DOS'') then issued a global Level 4 Do Not Travel Advisory advising 
travelers to avoid all international travel due to the global impact of 
COVID-19.\22\ In two joint statements issued on March 20, 2020, the 
United States, along with Canada and Mexico, announced a temporary 
restriction on all non-essential travel across the nations' shared 
borders.\23\ And during the course of the pandemic, the Federal 
Government announced guidelines stating that when outside their homes, 
persons should maintain six feet of distance from others, not gather in 
groups, stay out of crowded places, and avoid mass gatherings.\24\ All 
but seven states issued stay-at-home orders or similar guidance for 
various time periods during the pandemic.\25\
---------------------------------------------------------------------------

    \19\ For purposes of this proposed rule, the Schengen Area 
comprises 26 European states: Austria, Belgium, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, 
Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, 
Sweden, and Switzerland.
    \20\ Proclamation 9984 of Jan. 31, 2020, Suspension of Entry as 
Immigrants and Non-Immigrants of Persons Who Pose a Risk of 
Transmitting 2019 Novel Coronavirus and Other Appropriate Measures 
to Address This Risk, 85 FR 6709 (Feb. 5, 2020); Proclamation 9992 
of Feb. 29, 2020, Suspension of Entry as Immigrants and Non-
Immigrants of Certain Additional Persons Who Pose a Risk of 
Transmitting 2019 Novel Coronavirus, 85 FR 12855 (Mar. 4, 2020); 
Proclamation 9993 of Mar. 11, 2020, Suspension of Entry as 
Immigrants and Non-Immigrants of Certain Additional Persons Who Pose 
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15045 (Mar. 16, 
2020); Proclamation 9996 of Mar. 14, 2020, Suspension of Entry as 
Immigrants and Non-Immigrants of Certain Additional Persons Who Pose 
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15341 (Mar. 18, 
2020).
    \21\ CDC, Travelers' Health, Global COVID--19 Pandemic Notice, 
Warning--Level 3, Avoid Nonessential Travel--Widespread Ongoing 
Transmission (Mar. 27, 2020), https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-europe.
    \22\ DOS, Bureau of Consular Affairs, Global Level 4 Health 
Advisory--Do Not Travel (Mar. 31, 2020), https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html.
    \23\ DHS, Joint Statement on US-Canada Joint Initiative: 
Temporary Restriction of Travelers Crossing the US-Canada Land 
Border for Non-Essential Purposes (Mar. 20, 2020), https://www.dhs.gov/news/2020/03/20/joint-statement-us-canada-joint-initiative-temporary-restriction-travelers-crossing and DHS, Joint 
Statement on US-Mexico Joint Initiative to Combat the COVID-19 
Pandemic (Mar. 20, 2020), https://www.dhs.gov/news/2020/03/20/joint-statement-us-mexico-joint-initiative-combat-covid-19-pandemic.
    \24\ CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last 
visited May 21, 2020).
    \25\ NGA, Coronavirus: What You Need to Know, https://www.nga.org/coronavirus (state action tracking chart) (last visited 
May 21, 2020).
---------------------------------------------------------------------------

C. The Threat of COVID-19 and Future Pandemics to the Security of the 
United States

    On March 20, 2020, the CDC Director exercised his authority under 
section 362 of the PHSA, 42 U.S.C. 265,\26\ to prohibit the 
introduction of certain persons into the United States from Canada and 
Mexico whose entry at this time, due to the continued existence of 
COVID-19 in countries or places from which such persons are traveling, 
would create an increase in the serious danger of the introduction of 
such disease into and through the United States (``CDC Order'').\27\ 
The Director further requested that DHS aid in the enforcement of the 
order, which aid DHS is required to provide pursuant to section 365 of 
the PHSA, 42 U.S.C. 268(b).
---------------------------------------------------------------------------

    \26\ The statute assigns this authority to the Surgeon General 
of the Public Health Service. However, Reorganization Plan No. 3 of 
1966 abolished the Office of the Surgeon General and transferred all 
statutory powers and functions of the Surgeon General and other 
officers of the Public Health Service and of all agencies of or in 
the Public Health Service to the Secretary of Health, Education, and 
Welfare, now the Secretary of Health and Human Services, 31 FR 8855, 
80 Stat. 1610 (June 25, 1966); see also Public Law 96-88, 509(b), 93 
Stat. 695 (codified at 20 U.S.C. 3508(b)). References in the PHSA to 
the Surgeon General are to be read in light of the transfer of 
statutory functions and re-designation. Although the Office of the 
Surgeon General was re-established in 1987, the Secretary of HHS has 
retained the authorities previously held by the Surgeon General.
    \27\ See HHS, CDC, Order Suspending Introduction of Persons from 
a Country Where a Communicable Disease Exists (``CDC Order''), 85 FR 
17060 (Mar. 26, 2020) (publishing CDC Order with effective date of 
March 20, 2020), https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf. The CDC 
Order stated that:
    This order is necessary to protect the public health from an 
increase in the serious danger of the introduction of . . . COVID-19 
. . . into the land POEs, and the Border Patrol stations between 
POEs, at or near the United States borders with Canada and Mexico. . 
. . This order is also necessary to protect the public health from 
an increase in the serious danger of the introduction of COVID-19 
into the interior of the country when certain persons are processed 
through the same land POEs and Border Patrol stations and move into 
the interior of the United States.
    85 FR at 17061.
---------------------------------------------------------------------------

    According to the CDC Order, Mexico and Canada both had numerous 
confirmed cases of COVID-19, and the entry of aliens traveling from 
these countries currently continues to pose a risk of further 
transmission to the United States, which otherwise has been making 
progress within its borders to stem the further spread of the 
pandemic.\28\ On March 30, 2020, the Government of Mexico declared a 
national public health emergency and ordered the suspension of non-
essential public activity through April 30, 2020, and the total number 
of confirmed cases and confirmed deaths in Mexico as of May 21, 2020, 
exceeded 59,500, and 6,500, respectively.\29\ In addition, in

[[Page 41204]]

early May, the New York Times reported that:
---------------------------------------------------------------------------

    \28\ See HHS, CDC, Extension of Order Under Sections 362 and 365 
of the Public Health Service Act; Order Suspending Introduction of 
Certain Persons From Countries Where a Communicable Disease Exists, 
85 FR 22424, 22425-26 (Apr. 22, 2020).
    \29\ See Daniel Borunda, Coronavirus: Mexico Declares National 
Public Health Emergency, Bans Nonessential Activity, El Paso Times 
(Mar. 31, 2020), https://www.elpasotimes.com/story/news/health/2020/03/31/coronavirus-pandemic-mexico-declares-national-public-health-emergency/5093905002/; Subsecretar[iacute]a de Prevenci[oacute]n y 
Promoci[oacute]n de la Salud, Secretar[iacute]a de Salud, Gobierno 
de M[eacute]xico, Comunicado T[eacute]cnico Diario COVID-19 
M[Eacute]XICO (reporting that there were 59,567 confirmed cases and 
6,510 confirmed deaths in Mexico as of May 21, 2020) https://www.gob.mx/salud/documentos/coronavirus-covid-19-comunicado-tecnico-diario-238449 (updates posted regularly, last visited May 21, 2020).

    Mexico City officials have tabulated more than 2,500 deaths from 
the virus and from serious respiratory illnesses that doctors 
suspect were related to Covid-19 . . . Yet the federal government is 
reporting about 700 in the area . . .
    [E]xperts say Mexico has only a minimal sense of the real scale 
of the epidemic because it is testing so few people.
    Far fewer than one in 1,000 people in Mexico are tested for the 
virus--by far the lowest of the dozens of nations in the 
Organization for Economic Cooperation and Development, which average 
about 23 tests for every 1,000 people.
    More worrisome, they say, are the many deaths absent from the 
data altogether, as suggested by the figures from Mexico City, where 
the virus has struck hardest of all. Some people die from acute 
respiratory illness and are cremated without ever getting tested, 
officials say. Others are dying at home without being admitted to a 
hospital--and are not even counted under Mexico City's 
statistics.\30\
---------------------------------------------------------------------------

    \30\ Azam Ahmed, Hidden Toll: Mexico Ignores Wave of Coronavirus 
Deaths in Capital, New York Times (May 8, 2020), https://www.nytimes.com/2020/05/08/world/americas/mexico-coronavirus-count.html?smid=em-share (reporting that, according to a Times 
analysis, more than three times as many people may have died from 
COVID-19 in Mexico City than the country's federal statistics show).

    The existence of COVID-19 in Mexico presents a serious danger of 
the further introduction of COVID-19 into the United States due to the 
high level of migration across the United States border with Mexico. 
The danger posed by cross-border COVID-19 transmission is not only from 
Mexican nationals, but also from non-Mexicans seeking to cross the 
U.S.-Mexico border at ports-of-entry (``POEs'') and those seeking to 
enter the United States illegally between POEs. The CDC Order notes 
that ``[m]edical experts believe that . . . spread of COVID-19 at 
asylum camps and shelters along the U.S. border is inevitable.'' \31\ 
Of the approximately 34,000 inadmissible aliens that DHS has processed 
to date in Fiscal Year 2020 at POEs along the U.S.-Mexico border and 
the approximately 117,000 aliens that the United States Border Patrol 
(``USBP'') has apprehended attempting to unlawfully enter the United 
States between the POEs, almost 110,000 are Mexican nationals and more 
than 15,000 are nationals of other countries who are now experiencing 
sustained human-to-human transmission of COVID-19, including 
approximately 1,500 Chinese nationals.\32\
---------------------------------------------------------------------------

    \31\ CDC Order, 85 FR at 17064; see also Rick Jervis, Migrants 
Waiting at U.S.-Mexico Border at Risk of Coronavirus, Health Experts 
Warn, USA Today (Mar. 17, 2020), https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hard-coronavirus-migrants-wait-mexico/5062446002/; Rafael Carranza, New World's 
Largest Border Crossing, Tijuana Shelters Eye the New Coronavirus 
with Worry, Arizona Republic (Mar. 14, 2020), https://www.azcentral.com/story/news/politics/immigration/2020/03/14/tijuana-migrant-shelters-coronavirus-covid-19/5038134002/.
    \32\ CDC Order, 85 FR at 17060.
---------------------------------------------------------------------------

    As set forth in the CDC Order, community transmission is occurring 
throughout Canada, and the number of cases in the country continues to 
increase.\33\ Through February of FY 2020, DHS processed 20,166 
inadmissible aliens at POEs at the U.S.-Canadian border, and USBP 
apprehended 1,185 inadmissible aliens attempting to unlawfully enter 
the United States between POEs.\34\ These aliens included not only 
Canadian nationals but also 1,062 Iranian nationals, 1,396 Chinese 
nationals, and 1,326 nationals of Schengen Area countries.\35\
---------------------------------------------------------------------------

    \33\ Id.
    \34\ Id.
    \35\ Id.
---------------------------------------------------------------------------

1. Danger to Border Security and Law Enforcement Personnel
    Because of the continued prevalence of COVID-19 in both Mexico and 
Canada, the CDC has determined that the entry of aliens crossing the 
northern and southern borders into the United States (regardless of 
their country of origin) would continue to present a serious danger of 
introducing COVID-19 into POEs and Border Patrol Stations at or near 
the Mexico and Canada land borders. Transmission of COVID-19 at 
facilities under the jurisdiction of U.S. Customs and Border Protection 
(``CBP'') could lead to the infection of aliens in CBP custody, as well 
as infection of CBP officers, agents, and others who come into contact 
with such aliens in custody.
    CBP officers and agents come into regular, sustained contact with 
aliens seeking to enter the United States between POEs, or whose entry 
is otherwise contrary to law, who have no travel documents or medical 
history. Aliens arriving from countries suffering the acute 
circumstances of an international pandemic, whose entry presents the 
risk of spreading infectious or highly contagious illnesses or diseases 
of public health significance, pose a significant danger to other 
aliens in congregate settings and to CBP operations. The longer CBP 
must hold such aliens for processing prior to expedited removal, the 
greater the danger to CBP personnel and other aliens in CBP custody.
    Although CBP has policies and procedures in place to handle 
communicable diseases, the unprecedented challenges posed by the COVID-
19 pandemic (and similar pandemics in the future) cannot reliably be 
contained by those policies and procedures, and thus this or another 
infectious or highly contagious illness or disease could cripple the 
already-strained capacities at CBP's facilities. Such a pandemic could 
lead to significant reductions in available personnel, which would lead 
to severe vulnerabilities and gaps in securing the border. 
Additionally, an outbreak of a highly communicable disease in a CBP 
facility could result in CBP being forced to close that facility, which 
would limit how CBP conducts operations or where CBP can detain aliens 
whom it apprehends.
    As a law enforcement agency, CBP is not equipped to provide medical 
support to treat infectious or highly contagious illnesses or diseases 
brought into CBP facilities.\36\ Of the 136 CBP facilities along the 
land and coastal borders, only 46 facilities, all located on the 
southern land border with Mexico, have contracted medical support on 
location. Even that contracted medical support is not currently 
designed to diagnose, treat, and manage certain infectious or highly 
contagious illnesses or diseases--particularly novel diseases. 
Moreover, many CBP facilities, particularly along the southern land 
border, are located in remote locations distant from hospitals and 
other medical care and supplies. In short, if an infectious or highly 
contagious illness or disease were to be transmitted within a CBP 
facility, CBP operations could face significant disruption.
---------------------------------------------------------------------------

    \36\ CDC Order, 85 FR at 17060.
---------------------------------------------------------------------------

    After spending time in CBP custody, an alien may, depending on the 
facts and circumstances, be transferred to ICE custody. In some ways, 
the dangers to ICE operations posed by aliens who are at risk of 
spreading infectious or highly contagious illnesses or diseases are 
greater than those posed to CBP operations, due to the longer amount of 
time aliens spend detained in ICE custody. ICE often detains aliens for 
time periods ranging from several days to many weeks, including while 
an alien's 240 proceeding is pending; the

[[Page 41205]]

average time an alien spends in ICE custody is approximately 55 
days.\37\
---------------------------------------------------------------------------

    \37\ DHS, ICE Average Daily Population (ADP) and ICE Average 
Length of Stay (ALOS)--FY2020 YTD (May 9, 2020), https://www.ice.gov/detention-management#tab2 (last visited May 15, 2020).
---------------------------------------------------------------------------

    The length of an alien's stay in ICE custody after being 
transferred to CBP is often tied directly to the time it takes to 
adjudicate an alien's immigration claims in 240 proceedings. If an 
asylum officer determines that an alien placed into expedited removal 
has not shown that the alien has a credible fear of persecution, the 
alien may still be determined to have a credible or reasonable fear of 
persecution or a credible fear of torture after review by an 
immigration judge (``IJ''), in which case the alien would be placed 
into 240 proceedings for the adjudication of their claims for relief 
and protection under the immigration laws, and may remain in ICE 
custody while those claims are adjudicated. Many of these adjudications 
require multiple hearings, which lengthen the time an alien may remain 
in custody and in close contact with ICE personnel. Furthermore, once a 
non-detained alien is placed into 240 proceedings, it can be months or 
years before their cases are adjudicated, as immigration courts in 
DOJ's Executive Office for Immigration Review have a backlog of more 
than 1,000,000 pending cases, at least 517,000 of which include an 
asylum application.
    ICE expends significant resources to ensure the health and welfare 
of all those detained in its custody.\38\ In the case of an infectious 
disease outbreak, ICE has protocols in place to ensure the health and 
welfare of the detained population and to halt the spread of disease. 
But many of these protocols, such as keeping affected detainees in 
single-cell rooms or cohorts, can impact the availability of detention 
beds, and thus could impair ICE's ability to operate its facilities at 
normal capacity.
---------------------------------------------------------------------------

    \38\ ICE's estimated average adult bed cost per day for 
detention is $124.13 for fiscal year 2020. See DHS, U.S. Immigration 
and Customs Enforcement, Budget Overview--Fiscal Year 2021 
Congressional Justification at 7, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement.pdf 
(last visited June 8, 2020).
---------------------------------------------------------------------------

    To protect its personnel, migrants, and the domestic population, 
DHS must be able to mitigate the harmful effects of any infectious or 
highly contagious illnesses or diseases. A unique challenge is posed by 
diseases such as COVID-19 that have a high rate of transmission may 
require intensive hospital treatment, are not currently preventable 
through a vaccine, and are prevalent in countries from which aliens 
seeking to enter the United States between POEs or otherwise contrary 
to law. The dangers of such diseases are exacerbated if the Government 
must provide lengthy process and review to aliens arriving from 
countries where COVID-19 remains prevalent, as their entry would bring 
them into sustained contact with DHS personnel and other aliens in DHS 
facilities.
    If aliens seeking to enter the United States without proper travel 
documents or who are otherwise subject to travel restrictions arrive at 
land POEs, or between the POEs, and become infected with COVID-19 while 
in DHS custody, they would need to be transported to medical providers 
for treatment, and many of these providers are in states with some of 
the lowest numbers of hospital beds per 1,000 inhabitants in the United 
States.\39\ Unless an alien is returned to Mexico during the pendency 
of his or her proceedings pursuant to the Migrant Protection Protocols, 
see INA 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), many, if not most, of 
these aliens are released into American communities.
---------------------------------------------------------------------------

    \39\ Arizona has 1.9 hospital beds per 1,000 inhabitants; 
California has 1.8; New Mexico has 1.8, and Texas has 2.3. Kaiser 
Family Found., State Health Facts: Hospitals Per 1,000 Population by 
Ownership Type (2018), https://www.kff.org/other/state-indicator/beds-by-ownership/?currentTimeframe=0&sortModel=%7B%22colId% 
22:%22Total%22,%22sort%22:%22asc%22%7D. By contrast, the states with 
the highest number of hospital beds per 1,000 inhabitants have 
nearly double, or more than double, the number of beds per 1,000 
inhabitants--such as South Dakota, at 4.8; North Dakota, at 4.3; and 
Mississippi, at 4.0. Id.
---------------------------------------------------------------------------

    Finally, aliens who are at risk of spreading infectious or highly 
contagious illnesses or diseases, and who therefore pose a danger to 
DHS personnel and operations, also pose a danger to the safety and 
health of other persons in the United States. As the CDC Order 
concludes:

    [T]here is a serious danger of the introduction of COVID-19 into 
the POEs and Border Patrol stations at or nearby the United States 
borders with Canada and Mexico, and the interior of the country as a 
whole . . . . The faster a covered alien is returned . . . the lower 
the risk the alien poses of introducing, transmitting, or spreading 
COVID-19 into POEs, Border Patrol stations, other congregate 
settings, and the interior.\40\
---------------------------------------------------------------------------

    \40\ CDC Order, 85 FR at 17067.
---------------------------------------------------------------------------

2. The Potential Economic Devastation of a Pandemic
    Pandemics also threaten the United States economy. DHS reported in 
2006 that ``[c]onsumer and business spending fuel[s] the nation's 
economic engine. Regardless of the available liquidity and supporting 
financial processes, a dramatic and extended reduction in spending and 
the corresponding cascading effects in the private sector [caused by a 
pandemic] may cause an unprecedented national economic disruption.'' 
\41\ The Congressional Budget Office (``CBO'') was more measured, 
finding that if the country were to experience a severe pandemic 
similar to the 1918-1919 Spanish flu, ``real [gross domestic product] 
would be about 4\1/4\ percent lower over the subsequent year than it 
would have been had the pandemic not taken place. . . . comparable to 
the effect of a typical business-cycle recession in the United States . 
. . since World War II.'' \42\ However, the CBO did note that:
---------------------------------------------------------------------------

    \41\ DHS, Pandemic Influenza: Preparedness, Response, and 
Recovery: Guide for Critical Infrastructure and Key Resources, at 25 
(2006), https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.
    \42\ CBO, A Potential Influenza Pandemic: Possible Macroeconomic 
Effects and Policy Issues at 1-2 (December 8, 2005, revised July 27, 
2006), https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/12-08-birdflu.pdf.

    [S]ome [factors] might suggest a worse outbreak than the one 
that occurred in 1918. The world is now more densely populated, and 
a larger proportion of the population is elderly or has compromised 
immune systems (as a result of HIV). Moreover, there are 
interconnections among countries and continents--faster air travel 
and just-in-time inventory systems, for example--that suggest faster 
spread of the disease and greater disruption if a pandemic was to 
occur.\43\
---------------------------------------------------------------------------

    \43\ Id. at 9.

    As of mid-spring 2020, the economic impact of the COVID-19 pandemic 
was predicted to be more akin to the impact feared by Secretary 
Chertoff than the impact predicted by the CBO. The International 
Monetary Fund (``IMF'') predicted in April 2020 that ``[t]he output 
loss associated with [the COVID-19] health emergency and related 
containment measures likely dwarfs the losses that triggered the global 
financial crisis. . . . It is very likely that this year the global 
economy will experience its worst recession since the Great Depression, 
surpassing that seen during the global financial crisis a decade ago.'' 
\44\
---------------------------------------------------------------------------

    \44\ IMF, World Economic Outlook: Chapter 1: The Great Lockdown 
at v (April 2020) (Foreword by Gita Gopinath), available at https://www.imf.org/en/Publications/WEO/Issues/2020/04/14/weo-april-2020.
---------------------------------------------------------------------------

    The IMF further predicted that the United States economy is likely 
to contract by 5.9 percent in 2020.\45\ While projecting a partial 
recovery in 2021 (with advanced economies forecast to

[[Page 41206]]

grow at 4.5 percent), it warned that there is ``considerable 
uncertainty about the strength of the rebound. Much worse growth 
outcomes are possible and maybe even likely. This would follow if the 
pandemic and containment measures last longer . . . , tight financial 
conditions persist, or if widespread scarring effects emerge due to 
firm closures and extended unemployment.'' \46\
---------------------------------------------------------------------------

    \45\ Id. at x (Executive Summary), Table 1.1. The IMF notes that 
``[i]n normal crises, policymakers try to encourage economic 
activity by stimulating aggregate demand as quickly as possible. 
This time, the crisis is to a large extent the consequence of needed 
containment measures. This makes stimulating activity more 
challenging and, at least for the most affected sectors, 
undesirable.'' Id. at v (Foreword by Gita Gopinath).
    \46\ Id. The IMF report goes on to find that:
    The rebound in 2021 depends critically on the pandemic fading in 
the second half of 2020, allowing containment efforts to be 
gradually scaled back and restoring consumer and investor 
confidence. . . . The projected recovery assumes that . . . policy 
[responses] are effective in preventing widespread firm 
bankruptcies, extended job losses, and system-wide financial 
strains.
    . . . .
    . . . .
    [R]isks to the outlook are on the downside. The pandemic could 
prove more persistent than assumed. . . . Of course, if a therapy or 
a vaccine is found earlier than expected . . . the rebound may occur 
faster than anticipated.
    . . . Strong containment efforts in place to slow the spread of 
the virus may need to remain in force for longer than the first half 
of the year. . . . Once containment efforts are lifted and people 
start moving about more freely, the virus could again spread rapidly 
from residual localized clusters. [P]laces that successfully bring 
down domestic community spread could be vulnerable to renewed 
infections from imported cases. In such instances, public health 
measures will need to be ramped up again, leading to a longer 
downturn. . . .
    The recovery of the global economy could be weaker than expected 
after the spread of the virus has slowed for a host of other 
reasons. These include lingering uncertainty about contagion, 
confidence failing to improve, and establishment closures and 
structural shifts in firm and household behavior, leading to more 
lasting supply chain disruptions and weakness in aggregate demand. 
Scars left by reduced investment and bankruptcies may run more 
extensively through the economy . . . as occurred, for example, in 
previous deep downturns. . . . Depending on the duration, global 
business confidence could be severely affected, leading to weaker 
investment and growth than projected. . . .
    Id., Chapter 1, at 5-9 (citations omitted), available at https://www.imf.org/en/Publications/WEO/Issues/2020/04/14/weo-april-2020.
---------------------------------------------------------------------------

    The United States Congress, on a bipartisan basis, has shared these 
concerns. Senate Majority Leader Mitch McConnell stated regarding the 
COVID-19 pandemic and the need for economic relief legislation on the 
scale of more than a trillion dollars, that:

    Combating this disease has forced our country to put huge parts 
of our national life on pause[,] triggered layoffs at a breathtaking 
pace[ and] has forced our Nation onto something like a wartime 
footing. . . . We ha[ve] to get direct . . . financial assistance to 
the American people. We ha[ve] to get historic aid to small 
businesses to keep paychecks flowing, stabilize key industries to 
prevent mass layoffs, and, of course, flood more resources into the 
frontline healthcare battle itself. . . . No economic policy could 
fully end the hardship so long as the public health requires that we 
put so much of our Nation's commerce on ice. This is . . . emergency 
relief.\47\
---------------------------------------------------------------------------

    \47\ 166 Cong. Rec. S2021-22 (Mar. 25, 2020).

    Similarly, discussing the same emergency relief legislation, Senate 
Minority Leader Charles Schumer stated that:
    Our workers are without work. Our businesses cannot do business. 
Our factories lie idle. The gears of the American economy have 
ground to a halt. . . . It will be worth it to save millions of 
small businesses and tens of millions of jobs. It will be worth it 
to see that Americans who have lost their jobs through no fault of 
their own will be able to pay their rent and mortgages and put food 
on the table. . . . It will be worth it to save industries from the 
brink of collapse in order to save the jobs of hundreds of thousands 
of Americans in those industries.\48\
---------------------------------------------------------------------------

    \48\ 166 Cong. Rec. S2059 (March 25, 2020).
---------------------------------------------------------------------------

D. Current Law

1. Eligibility for Asylum, Statutory Withholding of Removal, and 
Protection Under the Convention Against Torture Regulations
    Asylum is a form of discretionary relief that, generally, keeps an 
alien from being subject to removal and creates a path to lawful 
permanent resident status and U.S. citizenship. See INA 208, 209(b), 8 
U.S.C. 1158, 1159(b); 8 CFR 209.2. In order to apply for asylum, an 
applicant must be ``physically present'' or ``arriv[ing]'' in the 
United States, INA 208(a)(1), 8 U.S.C. 1158(a)(1). To obtain asylum, 
the alien must demonstrate that he or she meets the definition of a 
``refugee.'' INA 101(a)(42)(A), 208(b)(1)(A), 8 U.S.C. 1101(a)(42)(A), 
1158(b)(1)(A). The alien must also not be subject to a bar to applying 
for asylum or to eligibility for asylum. See INA 208(a)(2), (b)(2), 8 
U.S.C. 1158(a)(2), (b)(2).
    Aliens who are not eligible to apply for or receive a grant of 
asylum, or who are denied asylum in an exercise of discretion, may 
nonetheless qualify for protection from removal under other provisions 
of the immigration laws. Under statutory withholding of removal, the 
Secretary may not, subject to certain exceptions, remove an alien to a 
country if he or the ``Attorney General decide[ ] that the alien's life 
or freedom would be threatened in that country because of the alien's 
race, religion, nationality, membership in a particular social group, 
or political opinion.'' INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); see 
also 8 CFR 208.16 and 1208.16(b)(2).
    Article 3 of the Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment (``CAT'') provides that 
``[n]o State Party shall expel, return (`refouler') or extradite a 
person to another State where there are substantial grounds for 
believing that he would be in danger of being subjected to torture.'' 
\49\ While the United States is a signatory to the CAT, the treaty is 
not self-executing, see Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 
2009); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005). However, the 
regulations authorized by the legislation implementing CAT, the Foreign 
Affairs Reform and Restructuring Act (``FARRA''), Public Law 105-277, 
div. G, subdiv. B, title XXII, sec. 2242(b), 112 Stat. 2681-822 (1998), 
codified at U.S.C. 1231 note, provide that an alien who establishes 
that he or she will more likely than not face torture in the proposed 
country of removal qualifies for protection. See 8 CFR 208.16(c), 
208.17, 1208.16(c), 1208.17 (``CAT regulations'').
---------------------------------------------------------------------------

    \49\ Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, art. 3(1), December 10, 1984, S. 
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 84.
---------------------------------------------------------------------------

    Unlike asylum, statutory withholding of removal and protection 
under the CAT regulations provide protection from removal only when an 
alien has established that persecution or torture, respectively, is 
more likely than not to occur if removed to that particular country. 
Aliens can be removed to other countries as provided in INA 241(b), 8 
U.S.C. 1231(b). As DOJ stated in the final rule implementing the U.S.-
Canada Safe Third Country Agreement:

    [I]t is essential to keep in mind that, in order to be entitled 
to [statutory withholding of removal or protection under the CAT 
regulations], an alien must demonstrate that it is more likely than 
not that he or she would be persecuted, or tortured, in the 
particular removal country. That is, withholding or deferral of 
removal relates only to the country as to which the alien has 
established a likelihood of persecution or torture--the alien may 
nonetheless be returned, consistent with CAT and section 241(b)(1) 
and (b)(2) of the Act [INA], to other countries where he or she 
would not face a likelihood of persecution or torture.

    Asylum Claims Made by Aliens Arriving From Canada at Land Border 
Ports-of-Entry, 69 FR 69490, 69492 (Nov. 29, 2004).
2. Application of Bars to Eligibility for Asylum and Withholding of 
Removal
    Through the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (``IIRIRA''), Public Law 104-208, 110 Stat. 3009, and the 
Antiterrorism and Effective Death Penalty Act of 1996 (``AEDPA''), 
Public Law 104-132, 110 Stat. 1214, Congress adopted six mandatory bars 
to asylum eligibility, which largely tracked pre-existing asylum 
regulations. These bars

[[Page 41207]]

prohibit granting asylum to aliens who (1) ``ordered, incited, 
assisted, or otherwise participated'' in the persecution of others on 
account of a protected ground; (2) were convicted of a ``particularly 
serious crime''; (3) committed a ``serious nonpolitical crime outside 
the United States'' before arriving in the United States; (4) are a 
``danger to the security of the United States''; (5) are inadmissible 
or removable under a set of specified grounds relating to terrorist 
activity; or (6) were ``firmly resettled in another country prior to 
arriving in the United States.'' IIRIRA sec. 604(a) (codified at INA 
208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi)).
    Congress further provided the Attorney General and the Secretary 
with the authority to ``establish additional limitations and 
conditions, consistent with [section 208 of the INA], under which an 
alien shall be ineligible for asylum.'' IIRIRA, sec. 604(a) (codified 
at INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C)). The only statutory 
limitations are that the additional bars to eligibility must be 
established ``by regulation'' and must be ``consistent with'' the rest 
of section 208. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As the Tenth 
Circuit has recognized, ``the statute clearly empowers'' the Attorney 
General and the Secretary to ``adopt[ ] further limitations'' on asylum 
eligibility. R-S-C v. Sessions, 869 F.3d 1176, 1187 n.9 (10th Cir. 
2017).
    As to statutory withholding of removal, the INA provides that an 
alien is ineligible who is deportable for participation in Nazi 
persecution, genocide, or the commission of an act of torture or 
extrajudicial killing, or who the Secretary or the Attorney General has 
decided (1) ordered, incited, assisted, or otherwise participated in 
the persecution of an individual because of the individual's race, 
religion, nationality, membership in a particular social group, or 
political opinion, (2) has been convicted by a final judgment of a 
particularly serious crime and is therefore a danger to the community 
of the United States, (3) there are serious reasons to believe has 
committed a serious nonpolitical crime outside the United States before 
arriving in the United States, or (4) there are reasonable grounds to 
believe is a danger to the security of the United States. See INA 
241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).
    In FARRA, Congress directed that the CAT regulations exclude from 
their protection those aliens subject to the withholding of removal 
eligibility bars ``[t]o the maximum extent consistent with the 
obligations of the United States under the Convention'' subject to 
reservations provided by the U.S. Senate in its ratification 
resolution. See FARRA sec. 2242(c), 8 U.S.C. 1231 note (c). Thus, an 
alien determined to be ineligible for statutory withholding of removal 
is also ineligible for withholding of removal under the CAT 
regulations. See 8 CFR 208.16(d)(2), 1208.16(d)(2). However, such an 
alien, if ordered removed and more likely than not to be tortured in 
the proposed country of removal, is nonetheless eligible for deferral 
of removal under the CAT regulations. See 8 CFR 208.17, 1208.17.
3. Expedited Removal
    In IIRIRA, Congress granted the Federal Government the ability to 
apply expedited removal procedures to aliens who arrive at a POE or who 
have entered illegally and are encountered by an immigration officer 
within parameters established by the Secretary of Homeland Security by 
designation. See INA 235(b), 8 U.S.C. 1225(b); see also Designating 
Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be 
subject to expedited removal, an alien must also be inadmissible under 
section 212(a)(6)(C) or 212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or 
1182(a)(7), meaning that the alien has either tried to procure 
documentation through misrepresentation or lacks such documentation 
altogether. Such aliens who are inadmissible under INA 212(a)(6)(C) or 
212(a)(7) shall be ``removed from the United States without further 
hearing or review unless the alien indicates either an intention to 
apply for asylum . . . or a fear of persecution.'' INA 235(b)(1)(A)(i), 
8 U.S.C. 1225(b)(1)(A)(i).
    If an alien does indicate a fear of persecution, he or she is 
referred for a credible fear interview by an asylum officer. See INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). During that interview, an 
alien must demonstrate a credible fear, defined as a ``significant 
possibility, taking into account the credibility of the statements made 
by the alien in support of the alien's claim and such other facts as 
are known to the officer, that the alien could establish eligibility 
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the 
asylum officer determines that the alien lacks a credible fear, then, 
following supervisory review, the alien shall be removed from the 
United States without further review of the negative fear determination 
absent the alien's specific request for an IJ's review. INA 
235(b)(1)(B)(iii)(I), (III), (b)(1)(C), 242(a)(2)(A)(iii), (e)(5), 8 
U.S.C. 1225(b)(1)(B)(iii)(I), (III), (b)(1)(C), 1252(a)(2)(A)(iii), 
(e)(5).
    If, however, the asylum officer or IJ determines that the alien has 
a credible fear, then the alien, under current regulations, is placed 
in 240 proceedings, for a full removal hearing before an IJ. See INA 
235(b)(1)(B)(ii), (b)(2)(A), 242(a)(1), 8 U.S.C. 1225(b)(1)(B)(ii), 
(b)(2)(A), 1252(a)(1); 8 CFR 208.30(e)(5), 1003.42, 
1208.30(g)(2)(iv)(B).
    Under current regulations, the bars to asylum and withholding of 
removal are generally not applied during the credible fear process, 
which leads to considerable inefficiencies for the United States 
Government.\50\ Under the current regulations at 8 CFR 208.30(e)(5), 
aliens who establish a credible fear of persecution or torture, despite 
appearing to be subject to one or more of the mandatory bars, are 
nonetheless generally placed in lengthy 240 proceedings.
---------------------------------------------------------------------------

    \50\ One bar to asylum eligibility currently is being applied at 
the credible fear stage. On July 16, 2019, the Departments issued an 
interim final rule providing that certain aliens described in 8 CFR 
208.13(c)(4) or 1208.13(c)(4) who enter, attempt to enter, or arrive 
in the United States across the southern land border on or after 
such date, after transiting through at least one country outside the 
alien's country of citizenship, nationality, or last lawful habitual 
residence en route to the United States, will be found ineligible 
for asylum (and, because they are subject to this bar, not be able 
to establish a credible fear of persecution) unless they qualify for 
certain exceptions. See Asylum Eligibility and Procedural 
Modifications, 84 FR 33829 (July 16, 2019). On July 24, 2019, the 
U.S. District Court for the Northern District of California enjoined 
the Departments ``from taking any action continuing to implement the 
Rule'' and ordered the Departments ``to return to the pre-Rule 
practices for processing asylum applications.'' E. Bay Sanctuary 
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On 
August 16, 2019, the United States Court of Appeals for the Ninth 
Circuit issued a partial stay of the preliminary injunction so that 
the injunction remained in force only in the Ninth Circuit. 934 F.3d 
1026. On September 9, 2019, the district court then reinstated the 
nationwide scope of the injunction. 391 F.Supp.3d 974. Two days 
later, the Supreme Court stayed the district court's injunction. See 
Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Mem.) (2019).
---------------------------------------------------------------------------

IV. Discussion of the Proposed Rule

    This proposed rule is designed primarily to implement necessary 
reforms to our Nation's immigration system so that the Departments may 
better respond to the COVID-19 crisis and, importantly, may better 
respond to, ameliorate, and even forestall future public health 
emergencies. For similar reasons, HHS recently published an interim 
final rule to ``implement a permanent regulatory structure regarding 
the potential suspension of introduction of persons into the United 
States in the event a serious danger of the introduction of 
communicable

[[Page 41208]]

disease arises in the future.'' Control of Communicable Diseases; 
Foreign Quarantine: Suspension of Introduction of Persons Into the 
United States From Designated Foreign Countries or Places for Public 
Health Purposes, 85 FR 16559, 16563 (Mar. 24, 2020) (interim final rule 
with request for comments). As HHS has explained, ``[t]he COVID-19 
pandemic highlights why CDC needs an efficient regulatory mechanism to 
suspend the introduction of persons who would otherwise increase the 
serious danger of the introduction of a communicable disease into the 
United States. . . .'' Id. at 16562. HHS has also noted that beyond the 
COVID-19 pandemic, there is always a risk of another emerging or re-
emerging communicable disease that may harm the public in the United 
States. Such a risk includes pandemic influenza (as opposed to seasonal 
influenza), which occurs when a novel, or new, influenza strain spreads 
over a large geographic area and effects an exceptionally high 
percentage of the population. In such cases, the virus strain is new, 
there usually is no vaccine available, and humans do not typically have 
immunity to the virus, often resulting in a more severe illness. The 
severity and unpredictable nature of an influenza pandemic requires 
public health systems to prepare constantly for the next occurrence. 
And whenever a new strain of influenza appears, or a major change to a 
preexisting virus occurs, individuals may have little or no immunity, 
which can lead to a pandemic. It is difficult to predict the impact 
that another emerging, or re-emerging communicable disease would have 
on the United States public health system. Modern pandemics, spread 
through international travel, can engulf the world in three months or 
less, can last from 12 to 18 months, and are not considered one-time 
events. See generally id. at 16562-63.
    The Departments similarly seek to mitigate the risk of another 
deadly communicable disease being brought to the United States, or 
being further spread within the country, by the entry of aliens from 
countries where the disease is prevalent. Thus, the Departments propose 
making four fundamental and needed reforms to the immigration system: 
(1) Clarifying that the ``danger to the security of the United States'' 
bars to eligibility for asylum and withholding of removal apply in the 
context of public health emergencies, (2) applying these bars in 
``credible fear'' screenings during the expedited removal process so 
that aliens subject to the bars can be expeditiously removed, (3) 
streamlining screening for deferral of removal eligibility in the 
expedited removal process to similarly allow for the expeditious 
removal of aliens ineligible for deferral, and (4) as to aliens who are 
determined to be ineligible for asylum and withholding of removal 
because they are deemed dangers to the security of the United States 
during credible fear screenings but who nevertheless affirmatively 
establish that torture in the prospective country of removal would be 
more likely than not, restoring DHS's discretion to either place the 
aliens in 240 proceedings or remove them to third countries where they 
would not face persecution or torture--again, to allow for the 
expeditious removal of aliens who represent a danger to the security of 
the United States on public health grounds.

A. The ``Danger to the Security of the United States'' Bar to 
Eligibility for Asylum and Withholding of Removal

    Due to the significant dangers to the security of the United States 
posed by COVID-19 and possible future pandemics, including the economic 
toll, the Departments are proposing to clarify that they can 
categorically bar from eligibility for asylum, statutory withholding of 
removal and withholding of removal under the CAT regulations as dangers 
to the security of the United States aliens who potentially risk 
bringing in deadly infectious disease to, or facilitating its spread 
within, the United States. This bar would reduce the danger to the 
United States public, the security of our borders, and the national 
economy, during the current COVID-19 public health emergency,\51\ as 
well as any future health emergencies.
---------------------------------------------------------------------------

    \51\ Determination of Public Health Emergency, 85 FR 7316 (Feb. 
7, 2020).
---------------------------------------------------------------------------

    Specifically, this rule would clarify that aliens whose entry poses 
a significant public health danger to the United States may constitute 
a ``danger to the security of the United States,'' and thus be 
ineligible for asylum or withholding of removal protections in the 
United States under INA 208 and 241, 8 U.S.C. 1158 and 1231, and 8 CFR 
208.16 and 1208.16. Specifically, aliens whose entry would pose a risk 
of further spreading infectious or highly contagious illnesses or 
diseases, because of declared public health emergencies in the United 
States or because of conditions in their country of origin or point of 
embarkation to the United States, pose a significant danger to the 
security of the United States.
    The entry of these aliens during a public health emergency poses 
unique risk for two primary reasons. First, the entry of these aliens 
would present the risk of spreading an infectious disease to key DHS 
personnel and facilities, particularly those related to CBP and ICE, 
and this spread would greatly reduce DHS's ability to accomplish its 
mission. The spread of an infectious disease into CBP facilities and to 
CBP personnel could disrupt CBP operations to such an extent that it 
significantly impacts CBP's critical border functions. CBP officers and 
agents are not readily replaceable, in part because their missions 
include complex immigration, customs, and national security functions 
that require specialized training. Gaps in the USBP's ability to patrol 
the border caused by personnel shortages and facility closures would 
create severe safety and national security risks for the United States. 
Further, CBP processes all cargo being imported into the United States, 
and any substantial reduction in CBP staffing capacity at ports of 
entry could have enormous consequences on trade and the economy.\52\ 
Without a full complement of officers at POEs, CBP's ability to process 
and facilitate the entry of much of the cargo that arrives at these 
installations every day could be impacted, even causing significant 
delays and a corresponding impact on local, and the national, 
economies.
---------------------------------------------------------------------------

    \52\ See CBP, Trade Statistics, https://www.cbp.gov/newsroom/stats/trade (last visited June 4, 2020) (showing more than $2.6 
trillion in imported goods on a yearly basis for fiscal years 2018 
and 2019, and significant imports for goods such as aluminum and 
steel); see also CBP, Trade and Travel Fiscal Year 2019 Report (Jan. 
30, 2020), https://www.cbp.gov/document/annual-report/cbp-trade-and-travel-fiscal-year-2019-report (providing a detailed analysis of 
trade facilitation by CBP).
---------------------------------------------------------------------------

    More generally, the entry of such aliens during a public health 
emergency may pose a danger to the health and safety of other aliens 
detained in DHS custody and all other individuals with whom such aliens 
come into contact, posing an escalating danger the longer they remain 
in DHS custody as their claims for asylum or withholding are 
adjudicated. Such aliens also pose a danger to local communities and 
medical facilities if they are released into the United States pending 
adjudication of their claims, or if they receive protection or other 
relief. By reducing the required processing time for aliens whom the 
Departments determine pose a danger to the United States, this rule 
could significantly reduce the likelihood that an infectious or highly 
contagious illness or disease would be transmitted to other persons in 
the United States.

[[Page 41209]]

    Second, as discussed, pandemics such as COVID-19 can inflict 
catastrophic damage to America's, and the world's, economy and thus, to 
the security of the United States. To the extent that such damage may 
have its origin with or be exacerbated by infected aliens seeking to 
enter the United States illegally or without proper documents, or 
seeking to apply for asylum or withholding of removal, the entry and 
presence of potentially infected aliens can rise to the level of a 
threat to the security of the United States.
    While the INA provides that ``an alien who is described [as 
deportable on terrorism-related grounds] shall be considered to be an 
alien with respect to whom there are reasonable grounds for regarding 
as a danger to the security of the United States,'' INA 241(b)(3)(B), 8 
U.S.C. 1231(b)(3)(B), the scope of the term extends well beyond 
terrorism considerations, and ``national defense'' considerations as 
well. The Attorney General has previously determined that ``danger to 
the security of the United States'' in the context of the bar to 
eligibility for withholding of removal encompasses considerations of 
defense, foreign relations, and the economy, writing that:

    The INA defines ``national security'' [in the context of the 
designation process for foreign terrorist organizations] to mean 
``the national defense, foreign relations, or economic interests of 
the United States.'' Section 219(c)(2) of the Act, 8 U.S.C. 
1189(c)(2) (2000). Read as a whole, therefore, the phrase ``danger 
to the security of the United States'' is best understood to mean a 
risk to the Nation's defense, foreign relations, or economic 
interests.

    Matter of A-H-, 23 I&N Dec. 774, 788 (AG 2005).
    The INA's definition of ``national security'' referred to by the 
Attorney General provides additional evidence that the term--along with 
the term ``danger to the security of the United States--should be read 
to encompass concerns beyond those concerning national defense and 
terrorism. The definition was enacted in 1996 as section 401(a) of 
title IV of AEDPA and was added as enacted by the House-Senate 
Conference Committee. See H.R. Rep. No. 104-518, at 38 (1996) (Conf. 
Rep.). The proposed legislation as originally passed by the Senate 
defined ``national security'' to mean ``the national defense and 
foreign relations of the United States.'' 142 Cong. Rec. H2268-03, at 
H2276 (Mar. 14, 1996) (S. 735, title VI, 401(a)). That version of the 
bill may have considered economic concerns as separate from national 
security concerns. For example, it provided that in designating a 
foreign terrorist organization, the Secretary of State would have had 
to find that ``the organization's terrorism activities threaten the 
security of United States citizens, national security, foreign policy, 
or the economy of the United States''--listing ``national security'' 
and ``the economy'' as two independent considerations. Section 401(a) 
of title IV of S. 735 (as passed the Senate on June 7, 1995), 141 Cong. 
Rec. S7864 (July 7, 1995). In addition, the section included a finding 
that also differentiated between national security concerns and those 
related to foreign policy and the economy. Congress found that:

    (B) [T]he Nation's security interests are gravely affected by 
the terrorist attacks carried out overseas against United States 
Government facilities and officials, and against American citizens 
present in foreign countries;
    (C) United States foreign policy and economic interests are 
profoundly affected by terrorist acts overseas directed against 
foreign governments and their people . . . .

    Id. But we do not find such a distinction to be informative. First, 
Congress decided to merge economic considerations into the definition 
of national security in the Conference Report. Therefore, to the extent 
one accepts legislative history as a relevant consideration when 
interpreting the meaning of statutory terms, the change in phrasing in 
the Conference Report could suggest a conscious decision that economic 
considerations are subsumed within a general reference to national 
security. Second, the explicit reference to economic considerations in 
the earlier draft of the legislation, when discussing the threats posed 
by terroristic activities, also implies a connection between national 
security and economics concerns--suggesting that considerations related 
to security in this context are quite broad.
    Finally, the definition in AEDPA operated in the context of the 
designation of foreign terrorist organizations. When national security 
is considered in a much broader context beyond the risk of terrorism, 
as is the case in this proposed rule, it makes even greater sense to 
encompass within it economic concerns and public health concerns of 
such magnitude that they become economic concerns. A pandemic can cause 
immense economic damage. Thus, the entry of aliens who may further 
introduce infectious diseases to our country or facilitate the spread 
of such disease within the interior of the country could pose a danger 
to U.S. security well within the scope of the statutory bars to 
eligibility for asylum and withholding of removal. The entry of such 
aliens could also pose a danger to national security by threatening 
DHS's ability to secure our border and facilitate lawful trade and 
commerce. To determine that an alien represents a danger to the 
security of the United States, the Departments generally do not have to 
quantify the extent of that danger. The Attorney General has ruled 
that:

    In contrast to other parallel provisions in former section 
243(h)(2) [INA's withholding of removal provision before 1996]--
which provide, for example, that a crime be ``serious'' or 
``particularly serious'' to constitute ineligibility for withholding 
of deportation . . . the statute's reference to ``danger'' is not 
qualified. Any level of danger to national security is deemed 
unacceptable; it need not be a ``serious,'' ``significant,'' or 
``grave'' danger. That understanding is supported by the 
Government's use, in other contexts, of gradations of danger to 
national security. For example, for purposes of determining 
information classification levels, Executive Order No. 12958 
categorizes the relative ``damage'' to national security caused by 
disclosure of certain types of information. . . . in descending 
order of severity as ``grave damage,'' ``serious damage,'' and 
``damage''. . . . As these terms have common parlance in assessing 
risks to national security, Congress's decision not to qualify the 
word ``danger'' in former section 243(h)(2)(D) makes clear that 
Congress intended that any nontrivial level of danger to national 
security is sufficient to trigger this statutory bar to withholding 
of deportation.

    Matter of A-H-, 23 I&N Dec. at 788. The Attorney General also made 
clear that this ``nontrivial degree of risk'' standard is satisfied 
where there is a reasonable belief that an alien poses a danger. Id.
    In Yusupov v. Attorney General, 518 F.3d 185, 204 (3rd Cir. 2008) 
(as amended Mar. 27, 2008), the Third Circuit determined that the 
Attorney General's understanding that the eligibility bar ``applied to 
any `nontrivial level of danger' or `nontrivial degree of risk' to U.S. 
security'' was a reasonable interpretation of the INA, and the court 
deferred to the Attorney General in upholding that statutory 
interpretation. The court explained that the eligibility bar ``does not 
easily accord acceptable gradations, as almost any `danger' to U.S. 
security is serious.'' Id. It concluded that ``Congress did not 
announce a clear intent that the danger to U.S. security be `serious' 
because such a modifier likely would be redundant. . . . [I]t would be 
illogical for us to hold that Congress clearly intended for an alien to 
be non-removable if he poses only a moderate danger to national 
security.'' \53\ Id.
---------------------------------------------------------------------------

    \53\ The alien must actually pose this level of danger. ``The 
bottom line in Yusupov, which we adopt, is that . . . the alien must 
`actually pose a danger' to United States security . . . . [T]he 
appropriate [standard is the] affirmative `is' language rather than 
the incorrect `may pose' standard.'' Malkandi v. Holder, 576 F.3d 
906, 914 (9th Cir. 2009); see also Yusupov, 518 F.3d at 201. The 
danger posed by the entry of aliens during a pandemic is unique. In 
many cases it is not possible to know whether any particular 
individual is infected at the time of apprehension. Many individuals 
who are actually infected may be asymptomatic, reliable testing may 
not be available, and, even where available, the time frame required 
to obtain test results may both be operationally unfeasible and 
expose DHS officers, other aliens, and domestic communities to 
possible infection while results are pending. Nonetheless, an 
individual's membership within a class of aliens arriving from a 
country in which the spread of a pandemic poses serious danger 
itself presents a serious security risk.

---------------------------------------------------------------------------

[[Page 41210]]

    In Matter of A-H-, the Attorney General also ruled that 
``reasonable'' in the context of the exception for asylum eligibility 
at 8 U.S.C. 1158(b)(2)(A)(iv)--which requires a determination that 
``there are reasonable grounds for regarding the alien as a danger to 
the United States''-- ``implied the use of a `reasonable person' 
standard'' that was ``substantially less stringent than preponderance 
of the evidence,'' and instead akin to ``probable cause.'' 23 I&N Dec. 
at 788-89 (emphasis added). The standard ``is satisfied if there is 
information that would permit a reasonable person to believe that the 
alien may pose a danger to the national security.'' Id. at 789 
(citation omitted). Further, ``[t]he information relied on to support 
the . . . determination need not meet standards for admissibility of 
evidence in court proceedings . . . . `It [is enough that the 
information relied upon by the Government [i]s not `intrinsically 
suspect.' '' Id. at 789-90 (quoting Adams v. Baker, 909 F.2d 643, 649 
(1st Cir. 1990)). These standards that have been previously applied to 
interpretations of the security eligibility bar suggest that 
application of the bar need not be limited to instances where each 
individual alien is known to be carrying a particular disease. Rather, 
it is enough that the presence of disease in the countries through 
which the alien has traveled to reach the United States makes it 
reasonable to believe that the entry of aliens from that country 
presents a serious danger of introduction of the disease into the 
United States.

B. Application of the Danger to the Security of the United States Bars 
to Eligibility for Asylum and Withholding of Removal in the Expedited 
Removal Process

    The Departments' current regulations under title 8 of the United 
States Code preclude DHS from efficiently and expeditiously removing 
aliens from the United States who may pose significant public health 
risks or who present other dangers to the security of the United 
States. Beyond creating health risks that may endanger the United 
States, the COVID-19 crisis highlights the fact that the existing 
expedited removal procedures require the Departments to engage in 
redundant and inefficient screening mechanisms to remove aliens who 
would not be able to establish eligibility for asylum and withholding 
of removal in the first place.
    To address these public health concerns, especially in light of the 
current COVID-19 public health emergency, the Departments are proposing 
regulatory changes to expedite the processing of certain aliens 
amendable to expedited removal, including those who potentially have 
deadly contagious diseases. These changes are necessary because the 
existing regulatory structure is inadequate to protect the security of 
the United States and must be updated to allow for the efficient and 
expeditious removal of aliens subject to the bars to asylum and 
withholding eligibility because they present a danger to the security 
of the United States. These bars would be applied at the credible fear 
screening stage for aliens in expedited removal proceedings, thereby 
avoiding potentially lengthy periods of detention for aliens awaiting 
the adjudication of their asylum and withholding claims and minimizing 
the inefficient use of government resources.
    Applying the ``danger to the security of the United States'' asylum 
and withholding eligibility bars in the expedited removal process is 
necessary to reduce health and safety dangers to DHS personnel and to 
the general public. And permitting asylum officers to apply these bars 
will ensure a more efficient and expeditious removal process for aliens 
who will not be eligible to receive asylum or withholding at the 
conclusion of 240 proceedings in immigration court.
    It is unnecessary and inefficient to adjudicate claims for relief 
or protection in 240 proceedings when it can be determined that an 
alien is subject to a mandatory bar to eligibility for asylum or 
statutory withholding, and is ineligible for deferral of removal, at 
the credible fear screening stage. The existing rules provide aliens 
additional adjudicatory procedures notwithstanding an eligibility bar 
for asylum or withholding of removal, and those procedures place DHS 
operations and personnel in danger. Accordingly, applying the danger to 
the security of the United States bars to asylum and withholding of 
removal at the credible fear stage would eliminate delays inherent in 
the full expenditure of resources required by 240 proceedings, when 
such expenditure is unnecessary and would serve no purpose due to the 
threshold ineligibility of the alien to receive asylum due to a 
statutory bar.

C. Streamlining Screening for Deferral of Removal in Expedited Removal

    As previously discussed, Congress required the application of the 
withholding of removal eligibility bars ``[t]o the maximum extent 
consistent with the obligations of the United States under [CAT]'' to 
aliens seeking protection under the CAT regulations. FARRA sec. 
2242(c), 8 U.S.C. 1231 note (c). The sole purpose of CAT deferral is to 
provide protection to such aliens barred from eligibility for 
withholding of removal. The preamble to the 1999 CAT rule states that 
``[d]eferral of removal will be granted . . . to an alien who is likely 
to be tortured in the country of removal but who is barred from 
withholding of removal[,]'' Regulations Concerning the Convention 
Against Torture, 64 FR 8478, 8480 (Feb. 19, 1999), and the regulatory 
text itself states that to be eligible for deferral an alien must be 
``subject to the provisions for mandatory denial of withholding of 
removal under Sec.  208.16(d)(2) or (d)(3).'' 8 CFR 208.17(a), 
1208.17(a).
    This rule proposes to further FARRA's command that the withholding 
of removal eligibility bars apply to aliens seeking protection under 
the CAT regulations ``[t]o the maximum extent consistent with the 
obligations of the United States under [CAT]'' by requiring that such 
aliens seeking such protection meet, at the credible fear stage, their 
ultimate burden to demonstrate eligibility for deferral of removal 
under the CAT regulations--i.e., that it is more likely than not that 
they would be tortured in the country of removal. See 8 CFR 
208.16(c)(2), 208.17(a). The proposed change will also contribute to 
the streamlining of the expedited removal process.\54\ If the alien has 
not affirmatively established during the credible fear process that the 
alien is more likely than not to face torture in the country of 
removal, the alien may be expeditiously removed. The alien would not 
need to be placed in 240 proceedings, which often necessitate an alien 
remaining in the United States for many years while such proceedings 
are

[[Page 41211]]

pending. This proposed rule change thus will facilitate removal of 
aliens subject to the danger to the security of the United States bars 
as expeditiously as possible during times of pandemic, in order to 
reduce physical interactions with DHS personnel, other aliens, and the 
general public.
---------------------------------------------------------------------------

    \54\ Article 3 of CAT is silent on specific implementing 
procedures, except to the extent that it states that ``for the 
purpose of determining whether there are such [substantial] grounds 
[for believing that a person would be tortured], the competent 
authorities shall take into account all relevant considerations . . 
. .'' CAT, art. 3(1).
---------------------------------------------------------------------------

    This screening standard for deferral of removal is consistent with 
DOJ's longstanding rationale that ``aliens ineligible for asylum,'' who 
could only be granted statutory withholding of removal or protection 
under the CAT regulations, should be subject to a different screening 
standard corresponding to the higher bar for actually obtaining these 
forms of protection. See Regulations Concerning the Convention Against 
Torture, 64 FR at 8485 (``Because the standard for showing entitlement 
to these forms of protection (a probability of persecution or torture) 
is significantly higher than the standard for asylum (a well-founded 
fear of persecution), the screening standard adopted for initial 
consideration of withholding and deferral requests in these contexts is 
also higher.'').

D. Restoring Prosecutorial Discretion

    The proposed rule would also amend the Departments' existing 
regulations to enable DHS to exercise its statutorily authorized 
discretion about how to process individuals subject to expedited 
removal who are determined to be ineligible for asylum and withholding 
of removal based on the danger to security, but who may be eligible for 
deferral of removal. The proposed rule would provide DHS with the 
option, to be exercised as a matter of prosecutorial discretion, to 
either place such an alien into 240 proceedings or to remove the alien 
to a country where the alien has not affirmatively established that it 
is more likely than not that the alien's life or freedom would be 
threatened on a protected ground, or that the alien would be tortured. 
This discretion is important because it would give DHS flexibility to 
quickly process aliens during national health emergencies during which 
placing an alien into full 240 proceedings may pose a danger to the 
health and safety of other aliens with whom the alien is detained, or 
to DHS officials who come into close contact with the alien. It would 
restore DHS's ability in the expedited removal process to remove such 
aliens to third countries rather than having to place them in 240 
proceedings.
    This discretion is inherent in section 235 of the INA, 8 U.S.C. 
1225. Current regulations instruct asylum officers and IJs to treat an 
alien's request for asylum in expedited removal proceedings as a 
request for statutory withholding of removal and withholding and 
deferral or removal under the CAT regulations as well. See 8 CFR 
208.13(c)(1), 208.30(e)(2)-(4), 1208.13(c)(1), 1208.16(a). However, the 
INA neither mandates this, nor even references consideration of 
statutory withholding or protection under the CAT regulations as a part 
of the credible fear screening process. Indeed, the INA provides that 
an alien enters that process only if he or she ``indicates either an 
intention to apply for asylum . . . or a fear of persecution,'' INA 
235(a)(2), 8 U.S.C. 1225(a)(2), in which case he or she is interviewed 
by an asylum officer who determines whether he or she has a ``credible 
fear of persecution,'' which is defined as ``a significant possibility 
. . . that the alien could establish eligibility for asylum.'' INA 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Only if the alien 
establishes such a possibility of eligibility for asylum (with no 
mention of eligibility for withholding of removal) is he or she 
entitled to ``further consideration of the application for asylum.'' 
INA 235(b)(1)(A)(i)-(ii), (B)(ii), (v), 8 U.S.C. 1225(b)(1)(A)(i)-(ii), 
(B)(ii), (v). The Departments' current regulations generally effectuate 
this ``further consideration'' through the placement of an alien in 240 
proceedings.\55\ However, section 235 does not require (or even refer 
to) ``further consideration'' of eligibility for withholding or 
deferral of removal. While DHS will of course not remove an alien to a 
country contrary to section 241(b)(3) of the INA, 8 U.S.C. 1241(b)(3), 
or to FARRA and the CAT regulations, the immigration laws do not 
prevent DHS from removing an alien who is ineligible for asylum to a 
third country.
---------------------------------------------------------------------------

    \55\ The interim final rule establishing a bar to asylum 
eligibility for certain aliens who enter, attempt to enter, or 
arrive in the United States across the southern land border after 
transiting through at least one country outside the alien's country 
of citizenship, nationality, or last lawful habitual residence en 
route to the United States provides that if an alien is determined 
not to have a credible fear of persecution as a consequence of being 
subject to such bar, the alien will nonetheless be placed in removal 
proceedings before EOIR if the alien establishes a reasonable fear 
of persecution or torture. In such an instance, the rule provides 
that the scope of review is limited to a determination of whether 
the alien is eligible for withholding or deferral of removal. See 
Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July 
16, 2019).
---------------------------------------------------------------------------

    The Departments acknowledge that these procedures for processing 
individuals in expedited removal proceedings who are subject to the 
danger to national security bar differ from expedited removal 
procedures set forth in the Notice of Proposed Rulemaking, ``Procedures 
for Asylum and Withholding of Removal; Credible Fear and Reasonable 
Fear Review.'' 85 FR 36264 (June 15, 2020). The Departments will 
reconcile the procedures set forth in the two proposed rules at the 
final rulemaking stage, and request comment regarding how to best 
reconcile the procedures set forth in the proposed rules.
    In sum, this rule not only would provide the Departments with 
important tools for safeguarding America from COVID-19 (should the 
disease still be a threat when a final rule is published), but it would 
also clarify the availability of critical tools within the Departments' 
statutory authority should another pandemic strike.

V. Detailed Discussion of the Proposed Regulatory Changes

A. Proposed 8 CFR 208.13(c)(10) and 1208.13(c)(10)

    These paragraphs propose to clarify that the Departments may rely 
on certain public health risks and considerations as reasonable grounds 
for regarding an alien or a class of aliens to be a danger to the 
security of the United States, and thus subject to a mandatory bar to 
eligibility for asylum. Specifically, in determining whether an alien 
or a class of aliens can reasonably be regarded as a danger to the 
security of the United States under section 208(b)(2)(A)(iv) of the 
Act, the Secretary and the Attorney General may determine whether the 
alien exhibits symptoms consistent with being afflicted with any 
contagious or infectious disease or has come into contact with such a 
disease, or whether the alien or class of aliens is coming from a 
country, or a political subdivision or region of a country, or has 
embarked at a place, where such disease is prevalent or epidemic (or 
had come from that country, subdivision, or region, or had embarked at 
that place, during a period in which the disease was prevalent or 
epidemic there), if:
     The disease has triggered an ongoing declaration of a 
public health emergency under Federal law, including under section 319 
of the PHSA, 42 U.S.C. 247d, or section 564 of the Food, Drug, and 
Cosmetic Act, 21 U.S.C. 360bbb-3, or
     the Secretary and the Attorney General have, in 
consultation with HHS, jointly
    [cir] determined that because the disease is a communicable disease 
of public health significance (in accordance with regulations 
prescribed by the Secretary of Health and Human Services (currently at 
42 CFR 34.2(b))) that is

[[Page 41212]]

prevalent or epidemic in another country or place, the physical 
presence in the United States of an alien or a class of aliens who are 
coming from such country or countries (or one or more political 
subdivisions or regions thereof) or have embarked at that place or 
places (or had come from that country or countries (or one or more 
subdivisions or regions thereof) or embarked at that place or places 
during a period in which the disease was prevalent or epidemic there), 
would cause a danger to the public health in the United States, and
    [cir] designated the foreign country or countries (or one or more 
political subdivisions or regions thereof) or place or places and the 
period of time or circumstances under which the Secretary and the 
Attorney General jointly deem it necessary for the public health that 
such alien or class of aliens who either are still within the number of 
days equivalent to the longest known incubation and contagion period 
for the disease or exhibit symptoms indicating they are afflicted with 
the disease be regarded as a danger to the security of the United 
States under section 208(b)(2)(A)(iv) of the Act, including any 
relevant exceptions as appropriate.
    The Departments solicit comment on the nature of the consultation 
that the Secretary and the Attorney General should engage in with the 
Secretary of Health and Human Services.

B. Proposed 8 CFR 208.16(d)(2) and 1208.16(d)(2)

    The rule proposes to clarify that the Departments may similarly use 
public health risks and considerations to determine if an alien or a 
class of aliens can reasonably be regarded as a danger to the security 
of the United States, and thus be subject to a mandatory bar to 
eligibility for statutory withholding of removal and withholding of 
removal under the CAT regulations, under the same standards they would 
use regarding the ``danger to the security of the United States'' bar 
to asylum eligibility.
    The Departments solicit comment on the nature of the consultation 
that the Secretary and the Attorney General should engage in with the 
Secretary of Health and Human Services.

C. Proposed 8 CFR 208.16(f) and 1208.16(f)

    The rule proposes to amend 8 CFR 208.16(f) and 1208.16(f), which 
provide that nothing in those sections or Sec.  208.17 or Sec.  1208.17 
would prevent the Service from removing an alien to a third country 
other than the country to which removal has been withheld or deferred. 
The rule would clarify that, after providing an alien with the 
appropriate advisal and allowing the alien the opportunity to withdraw 
his or her request for withholding or deferral of removal, if the alien 
does not withdraw, DHS may remove an alien to a third country prior to 
an adjudication of the alien's request for withholding or deferral of 
removal if the alien has not affirmatively established that it is more 
likely than not that the alien would be tortured in that country 
(pursuant to the procedure set forth in 8 CFR 208.30(e)(5) for an alien 
in expedited removal proceedings).

D. Proposed 8 CFR 1208.30(e) and (g)

    The rule proposes to amend 8 CFR 1208.30(e) to make conforming 
changes consistent with the amendment to 8 CFR 1208.13(c) concerning 
the bar to eligibility for asylum based on there being reasonable 
grounds for regarding an alien as a danger to the security of the 
United States. The rule also proposes to amend 8 CFR 1208.30(g) to make 
conforming changes consistent with the amendments to 8 CFR 208.30 
regarding IJ review of determinations made by DHS, including the 
treatment of aliens who are subject to the ``danger to the security of 
the United States'' bar to asylum.

E. Proposed 8 CFR 208.30(e)(1), (3)-(4), (5)(i), (iii)

    The rule would propose amending 8 CFR 208.30(e)(1), (3)-(4) to make 
conforming changes consistent with proposed amendments to 8 CFR 
208.30(e)(5)(i), (iii), regarding the treatment of aliens who are 
subject to the ``danger to the security of the United States'' and 
third-country-transit asylum bars.
    Under the current version of 8 CFR 208.30(e)(5)(i), with certain 
exceptions, if an alien is able to establish a credible fear of 
persecution but appears to be subject to one or more of the mandatory 
bars to applying for, or being granted, asylum contained in section 
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal 
contained in section 241(b)(3)(B) of the Act, DHS shall nonetheless 
place the alien in proceedings under section 240 of the Act for full 
consideration of the alien's claim, unless the alien is a stowaway. If 
the alien is a stowaway, the Department shall place the alien in 
proceedings for consideration of the alien's claim pursuant to 8 CFR 
208.2(c)(3).
    The rule proposes to amend Sec.  208.30(e)(5)(i) to remove the 
requirement that DHS ``nonetheless place the alien in proceedings under 
section 240 of the Act'' in the case of an alien ineligible for asylum 
and withholding of removal pursuant to the ``danger to the security of 
the United States'' bars but who nevertheless affirmatively establishes 
that he or she is more likely than not to be tortured in the 
prospective country of removal, and, consistent with DHS's statutory 
authority, give the Secretary the option, in his or her unreviewable 
discretion, to either place the alien in full 240 proceedings, or 
remove the alien pursuant to expedited removal to a third country. This 
rule change consequently would require asylum officers to make negative 
credible fear of persecution determinations for aliens who are subject 
to the mandatory bar to asylum eligibility based on danger to the 
security of the United States.
    If DHS were to nevertheless determine that an alien should be 
placed in full 240 proceedings, its determination that the alien had 
established that he or she is more likely than not to be tortured in 
the prospective country of removal would not be dispositive of any 
subsequent consideration of an application for protection under the CAT 
in those proceedings, consistent with an IJ's general authority to 
review DHS determinations de novo in immigration proceedings. Cf. 8 CFR 
1003.42(d) (IJ reviews negative credible fear determinations de novo). 
If DHS were to remove the alien to a third country, it would do so 
consistent with section 241(b)(1)-(2) of the Act and 8 CFR 241.15.
    The rule does not propose changing the credible fear standard for 
asylum claims, although the regulation would expand the scope of the 
credible fear inquiry. An alien who is subject to the ``danger to the 
security of the United States'' bar to asylum eligibility would be 
ineligible for asylum and thus would not be able to establish a 
``significant possibility . . . [of] eligibility for asylum under 
section 1158.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). That 
alien would also be subject to the identical bar to withholding of 
removal at INA 241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv). See also 8 
CFR 1208.16(d)(2) (incorporating the bar at 8 U.S.C. 1231(b)(3)(B)(iv) 
for purposes of withholding of removal under the CAT). Consistent with 
section 235(b)(1)(B)(iii)(III) of the INA, the alien could still obtain 
review from an IJ regarding whether the asylum officer correctly 
determined that the alien was subject to the bar. Further, consistent 
with section 235(b)(1)(B) of the INA, if the IJ reversed the asylum 
officer's determination, then the alien could assert the asylum claim 
in 240 proceedings.

[[Page 41213]]

    Aliens determined to be ineligible for asylum and withholding of 
removal by virtue of being subject to the bars would have no remaining 
viable claim unless an alien is able to affirmatively establish that it 
is more likely than not that removal to the prospective country would 
result in the alien's torture, in which case there would be a possible 
claim for deferral of removal under the CAT regulations. If the alien 
makes this showing, then DHS can choose in its discretion to place the 
alien in 240 proceedings, just as with aliens who establish a credible 
fear of persecution with respect to eligibility for asylum, or return 
the alien to a third country under appropriate standards.
    The proposed screening process would proceed as follows. For an 
alien subject to expedited removal, DHS will ascertain whether the 
alien seeks protection, consistent with INA 235(b)(1)(A)(ii), 8 U.S.C. 
1225(b)(1)(A)(ii). All such aliens will continue to go before an asylum 
officer for screening, consistent with INA 235(b)(1)(B), 8 U.S.C. 
1225(b)(1)(B). The asylum officer will ask threshold questions to 
elicit whether an alien is ineligible for asylum pursuant to the 
``danger to the security of the United States'' bar. If there is a 
significant possibility that the alien is not subject to the 
eligibility bar (and the alien otherwise demonstrates that there is a 
significant possibility that he or she can establish eligibility for 
asylum), then the alien will have established a credible fear.
    If, however, an alien is unable to establish a significant 
possibility of eligibility for asylum because of the ``danger to the 
security of the United States'' bar, then the asylum officer will make 
a negative credible fear finding for purposes of asylum (and similarly, 
because the alien is also subject to the ``danger to the security of 
the United States'' bar to withholding of removal, a negative credible 
fear finding for purposes of statutory withholding of removal and 
withholding of removal under the CAT regulations). If the alien 
affirmatively raises fear of torture, however, the asylum officer will 
then assess, as appropriate, the alien's eligibility for deferral of 
removal under the CAT regulations. If the alien establishes that it is 
more likely than not that he or she would be tortured in the country of 
removal, then DHS may in its discretion either place the alien in 240 
proceedings or remove him or her to a third country.
    If placed in 240 proceedings, then the alien will have an 
opportunity to raise whether he or she was correctly identified as 
subject to the ``danger to the security of the United States'' bars to 
asylum and withholding of removal, as well as other claims. If an IJ 
determines that the alien was incorrectly identified as subject to the 
bar, then the alien will be able to apply for asylum and withholding of 
removal. Such an alien can appeal the IJ's decision in these 
proceedings to the Board of Immigration Appeals and then seek review 
from a Federal court of appeals.
    An alien who is found by the asylum officer to be subject to the 
bars and who affirmatively raises a fear of torture but does not 
establish that it is more likely than not that he or she would be 
tortured can obtain review of both of those determinations by an IJ. In 
reviewing the determinations, the IJ will decide de novo whether the 
alien is subject to the ``danger to the security of the United States'' 
asylum and withholding eligibility bars. If the IJ affirms the 
determinations, then the alien will be subject to removal without 
further appeal, consistent with the existing process under section 235 
of the INA. If the IJ finds that the determinations were incorrect, 
then the alien will be placed into 240 proceedings or removed to a 
third country. An IJ's review determination that an alien is more 
likely than not to be tortured would not be binding in any subsequent 
240 proceedings, and the IJ presiding over those proceedings would 
consider the alien's eligibility for CAT protection de novo. Thus, the 
proposed rule would reasonably balance the various interests at stake. 
It would promote efficiency by avoiding duplicative administrative 
efforts while ensuring that those who are subject to a bar receive an 
opportunity to have the asylum officer's finding reviewed by an IJ.
    Under the current version of 8 CFR 208.30(e)(5)(iii), if the alien 
is found to be an alien described as ineligible for asylum in Sec.  
208.13(c)(4), then the asylum officer must enter a negative credible 
fear determination with respect to the alien's application for asylum. 
The Department must nonetheless place the alien in proceedings under 
section 240 of the Act for consideration of the alien's claim for 
withholding of removal under section 241(b)(3) of the Act, or for 
withholding or deferral of removal under the CAT, if the alien 
establishes, respectively, a reasonable fear of persecution or torture. 
The scope of review is limited to a determination of whether the alien 
is eligible for withholding or deferral of removal, accordingly. 
However, if an alien fails to establish, during the interview with the 
asylum officer, a reasonable fear of either persecution or torture, 
then the asylum officer will provide the alien with a written notice of 
decision that will be subject to IJ review consistent with paragraph 
(g) of Sec.  208.30, except that the IJ will review the reasonable fear 
findings under the ``reasonable fear'' standard instead of the 
``credible fear standard'' described in paragraph (g) and in 8 CFR 
1208.30(g).
    The rule proposes to amend 8 CFR 208.30(e)(5)(iii) to provide that 
if an alien is not able to establish that he or she has a credible fear 
because of being subject to the third-country-transit asylum bar, but 
is nonetheless able to establish a reasonable fear of persecution or 
torture, or that it is more likely than not that the alien will be 
tortured in the country of removal, DHS may, in the unreviewable 
discretion of the Secretary, either place the alien in 240 proceedings 
(with the scope of review limited to a determination of whether the 
alien is eligible for statutory withholding of removal or withholding 
or deferral of removal under the CAT regulations), or remove the alien 
to a third country. If DHS decides to remove the alien to a third 
country, it shall do so consistent with section 241(b)(1)-(2) of the 
Act and 8 CFR 241.15.
    The proposed amendments underscore DHS's discretion to determine 
whether to place an alien in proceedings under section 240 after the 
alien is found to be subject to the mandatory bar to asylum eligibility 
for being reasonably regarded as a danger to the security of the United 
States or found to be subject to the third-country-transit bar.

F. Proposed 8 CFR 208.25 and 1208.25

    The Departments are proposing to add severability provisions in 
each of the amended 8 CFR parts. The Departments believe that each of 
the provisions of part 208 functions sensibly independent of the other 
provisions in the part. To protect the goals for which this rule is 
being proposed, the Departments are proposing to codify their intent 
that the provisions be severable so that, if necessary, the regulations 
can continue to function without a stricken provision.

VI. Regulatory Requirements

A. Regulatory Flexibility Act

    The Departments have reviewed this proposed rule in accordance with 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and have 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. The rule would not regulate 
``small entities'' as that term is defined in 5 U.S.C. 601(6).

[[Page 41214]]

Only individuals, rather than entities, are eligible to apply for 
asylum and related forms of relief, and only individuals are placed in 
immigration proceedings.

B. Unfunded Mandates Reform Act of 1995

    This proposed rule would 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 are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

C. Congressional Review Act

    This proposed rule is anticipated not to be a major rule as defined 
by section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule 
would 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 enterprises to 
compete with foreign-based enterprises in domestic and export markets.

D. Executive Order 12866, Executive Order 13563, and Executive Order 
13771

    This proposed rule would amend existing regulations to clarify that 
the Departments may consider emergency public health concerns based on 
communicable disease when making a determination as to whether ``there 
are reasonable grounds for regarding [an] alien as a danger to the 
security of the United States'' and, thus, ineligible to be granted 
asylum or the protection of withholding of removal in the United States 
under INA sections 208 and 241 and 8 CFR 208.13 and 1208.13 and 8 CFR 
208.16 and 1208.16, respectively. The rule would also provide that this 
application of the statutory bars to eligibility for asylum and 
withholding of removal will be effectuated at the credible fear 
screening stage for aliens in expedited removal proceedings, in order 
to streamline the protection review process and minimize the spread of 
communicable disease.
    The proposed rule would further allow DHS to exercise its 
prosecutorial discretion regarding how to process individuals subject 
to expedited removal who are determined to be ineligible for asylum and 
withholding of removal in the United States on certain grounds, 
including being reasonably regarded as a danger to the security of the 
United States, but who nevertheless establish a likelihood that they 
will be tortured in the prospective country of removal. It would 
provide DHS with the option to either place such aliens into 240 
proceedings, or remove them to a country with respect to which an alien 
has not established that it is more likely than not that the alien's 
life or freedom would be threatened on a protected ground or that the 
alien would be tortured. Finally, the proposed rule would modify the 
process for evaluating the eligibility for deferral of removal of 
aliens who are ineligible for withholding of removal because they are 
reasonably regarded as a danger to the security of the United States.
    In some cases, asylum officers and IJs would need to spend 
additional time during the credible fear process to determine whether 
an alien were ineligible for asylum or withholding of removal based on 
being reasonably regarded as a danger to the security of the United 
States. However, the overall impact on the time spent making (and, in 
the case of IJs, reviewing) screening determinations would be minimal. 
Additionally, the Departments do not expect the proposed changes to 
increase the adjudication time for immigration court proceedings. The 
Departments note that the proposed changes may result in fewer asylum 
and withholding and deferral of removal grants annually.
    Upon a determination of an emergency public health concern under 8 
CFR 208.13 and 1208.13, aliens placed into expedited removal 
proceedings who exhibit symptoms of a designated communicable disease, 
have come into contact with the disease, or were present in an impacted 
region preceding entry anytime within the number of days equivalent to 
the longest known incubation and contagion period for the disease may 
be examined for symptoms or recent contact with the disease and removed 
on the ground that they are a danger to the security of the United 
States (unless they have demonstrated that it is more likely than not 
that they will be tortured in the prospective country of removal, in 
which case they will be placed either in 240 proceedings or removed to 
a third country). Those in 240 proceedings will be ineligible for 
asylum or withholding of removal. The bar would not apply to aliens who 
had before the date of a public health emergency declaration or joint 
Secretary-Attorney General determination (1) affirmatively filed asylum 
or withholding applications, or (2) indicated a fear of return in 
expedited removal proceedings.
    However, because cases are inherently fact-specific, and because 
there may be multiple bases for denying relief or protection, neither 
DOJ nor DHS can quantify precisely the expected decrease in grants of 
relief. The full extent of the impacts on this population is unclear 
and would depend on the specific circumstances and personal 
characteristics of each alien, and neither DOJ nor DHS collects such 
data at such a level of granularity. Finally, the proposed changes may 
also result in fewer aliens being placed in 240 proceedings to the 
extent that DHS exercises its discretion to remove aliens to third 
countries. However, as these will be discretionary decisions, it is not 
possible to quantify the reduction.
    This proposed rule is a significant regulatory action under 
Executive Order 12866, though not an economically significant 
regulatory action. Accordingly, the Office of Management and Budget has 
reviewed this proposed regulation.

E. Executive Order 13132 (Federalism)

    This proposed rule would 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, the Departments believe that this rule would 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
section 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    This proposed 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.

H. Signature for DHS

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

[[Page 41215]]

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Proposed Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble, the Acting 
Secretary of Homeland Security proposes to amend 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 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.

0
2. Further amend Sec.  208.13, as proposed to be amended at 84 FR 
69659, by adding paragraph (c)(10) to read as follows:


Sec.  208.13   Establishing asylum eligibility.

* * * * *
    (c) * * *
    (10) Aliens who pose a danger to the security of the United States. 
In determining whether there are reasonable grounds for regarding an 
alien or a class of aliens as a danger to the security of the United 
States under section 208(b)(2)(A)(iv) of the Act, the Secretary of 
Homeland Security may consider whether the alien exhibits symptoms 
consistent with being afflicted with any contagious or infectious 
disease or has come into contact with such disease, or whether the 
alien or class of aliens is coming from a country, or a political 
subdivision or region of that country, or has embarked at a place, 
where such disease is prevalent or epidemic (or had come from that 
country, subdivision, or region, or had embarked at that place, during 
a period in which the disease was prevalent or epidemic there), if:
    (i) The disease has triggered an ongoing declaration of a public 
health emergency under Federal law, including under section 319 of the 
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
    (ii) The Secretary and the Attorney General have, in consultation 
with the Secretary of Health and Human Services, jointly:
    (A) Determined that because the disease is a communicable disease 
of public health significance (in accordance with regulations 
prescribed by the Secretary of Health and Human Services (42 CFR 
34.2(b))) that is prevalent or epidemic in another country or countries 
(or one or more political subdivisions or regions thereof) or place or 
places, the physical presence in the United States of aliens who are 
coming from such country or countries (or one or more subdivisions or 
regions thereof) or have embarked at that place or places (or had come 
from that country or countries (or one or more subdivisions or regions 
thereof) or had embarked at that place or places during a period in 
which the disease was prevalent or epidemic there) would cause a danger 
to the public health in the United States; and
    (B) Designated the foreign country or countries (or one or more 
political subdivisions or regions thereof) or place or places and the 
period of time or circumstances under which the Secretary and the 
Attorney General jointly deem it necessary for the public health that 
aliens described in paragraph (c)(10)(ii)(A) of this section who either 
are still within the number of days equivalent to the longest known 
incubation and contagion period for the disease or exhibit symptoms 
indicating they are afflicted with the disease be regarded as a danger 
to the security of the United States under section 208(b)(2)(A)(iv) of 
the Act, including any relevant exceptions as appropriate.
0
3. Amend Sec.  208.16 by revising paragraphs (d)(2) and (f) to read as 
follows:


Sec.  208.16   Withholding of removal under section 241(b)(3)(B) of the 
Act and withholding of removal under the Convention Against Torture.

* * * * *
    (d) * * *
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under paragraph (c) of this section shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act 
or, for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger 
to the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, 
the applicant shall have the burden of proving by a preponderance of 
the evidence that such grounds do not apply. In determining whether an 
alien or a class of aliens can reasonably be regarded as a danger to 
the security of the United States under section 241(b)(3)(B)(iv) of the 
Act, the Secretary of Homeland Security may consider whether the alien 
exhibits symptoms consistent with being afflicted with any contagious 
or infectious disease or has come into contact with such disease, or 
whether the alien or class of aliens is coming from a country, or 
political subdivision or region of a country, or has embarked at a 
place, where such disease is prevalent or epidemic (or had come from 
that country, subdivision, or region, or had embarked at that place, 
during a period in which the disease was prevalent or epidemic there), 
if:
    (i) The disease has triggered an ongoing declaration of a public 
health emergency under Federal law, including under section 319 of the 
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
    (ii) The Secretary and the Attorney General have, in consultation 
with the Secretary of Health and Human Services, jointly:
    (A) Determined that because the disease is a communicable disease 
of public health significance (in accordance with regulations 
prescribed by the Secretary of Health and Human Services (42 CFR 
34.2(b))) that is prevalent or epidemic in another country or countries 
(or one or more political subdivisions or regions thereof) or place or 
places, that the physical presence in the United States of aliens who 
are coming from such country or countries (or one or more political 
subdivisions or regions thereof) or have embarked at that place or 
places (or had come from that country or countries (or one or more 
subdivisions or regions thereof) or had embarked at that place or 
places during a period in which the disease was prevalent or epidemic 
there) would cause a danger to the public health in the United States; 
and
    (B) Designated the foreign country or countries (or one or more 
political subdivisions or regions thereof) or place or places and the 
period of time or circumstances under which the Secretary and the 
Attorney General jointly deem it necessary for the public

[[Page 41216]]

health that aliens described in paragraph (d)(2)(ii)(A) of this section 
who either are still within the number of days equivalent to the 
longest known incubation and contagion period for the disease or 
exhibit symptoms indicating they are afflicted with the disease be 
regarded as a danger to the security of the United States under section 
241(b)(3)(B)(iv) of the Act, including any relevant exceptions as 
appropriate.
* * * * *
    (f) Removal to third country. (1) Nothing in this section or Sec.  
208.17 shall prevent the Department from removing an alien requesting 
protection to a third country other than a country to which removal is 
currently withheld or deferred.
    (2) If an alien requests withholding or deferral of removal to his 
or her home country or another specific country, nothing in this 
section or Sec.  208.17 precludes the Department from removing the 
alien to a third country prior to a determination or adjudication of 
the alien's initial request for withholding or deferral of removal if 
the alien has not established that his or her life or freedom would be 
threatened on account of a protected ground in that third country and 
that he or she is not subject to the mandatory bar to eligibility for 
withholding of removal under section 241(b)(3)(B)(iv) of the Act, or 
that it is more likely than not that he or she would be tortured in 
that third country. However, such a removal shall be executed only if 
the alien was:
    (i) Advised at the time of requesting withholding or deferral of 
removal of the possibility of being removed to a third country prior to 
a determination or adjudication of the same under the conditions set 
forth in this paragraph (f); and
    (ii) Provided, but did not accept, an opportunity to withdraw the 
request for withholding or deferral of removal in order to prevent such 
removal and, instead, proceed to removal pursuant to section 241(b) of 
the Act, as appropriate.
0
4. Add Sec.  208.25 to read as follows:


Sec.  208.25   Severability.

    The provisions of this part are separate and severable from one 
another. In the event that any provision in this part is stayed, 
enjoined, not implemented, or otherwise held invalid, the remaining 
provisions shall nevertheless be implemented as independent rules and 
continue in effect.
0
5. Amend Sec.  208.30 by revising paragraphs (e)(1), (3), and (4) and 
(e)(5)(i) and (iii) 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) * * *
    (1) Subject to paragraph (e)(5) of this section, the asylum officer 
shall create a written record of his or her determination, including a 
summary of the material facts as stated by the applicant, any 
additional facts relied on by the officer, and the officer's 
determination of whether, in light of such facts, the alien has 
established a credible fear of persecution or torture.
* * * * *
    (3) Subject to paragraph (e)(5) of this section, an alien will be 
found to have a credible fear of torture if the alien shows that there 
is a significant possibility that he or she is eligible for withholding 
of removal pursuant to Sec.  208.16(c), a regulation issued pursuant to 
the legislation implementing the Convention Against Torture.
    (4) Subject to paragraph (e)(5) of this section, in determining 
whether the alien has a credible fear of persecution, as defined in 
section 235(b)(1)(B)(v) of the Act, or a credible fear of torture, the 
asylum officer shall consider whether the alien's case presents novel 
or unique issues that merit consideration in a full hearing before an 
immigration judge (IJ).
    (5)(i) Except as provided in paragraph (e)(5)(ii) through (iv), 
(e)(6), or (e)(7) of this section, if an alien:
    (A) Is able to establish a credible fear of persecution but appears 
to be subject to one or more of the mandatory bars to applying for, or 
being granted, asylum under section 208(a)(2) and 208(b)(2)(A)(i)-
(iii), (v)-(vi) of the Act, or withholding of removal under section 
241(b)(3)(B)(i)-(iii) of the Act, the Department of Homeland Security 
shall nonetheless place the alien in proceedings under section 240 of 
the Act for full consideration of the alien's claim, if the alien is 
not a stowaway. If the alien is a stowaway, the Department shall place 
the alien in proceedings for consideration of the alien's claim 
pursuant to Sec.  208.2(c)(3).
    (B) Would be able to establish a credible fear of persecution but 
for the fact that he or she is subject to the mandatory bars to 
eligibility for asylum under section 208(b)(2)(A)(iv) of the Act and to 
withholding of removal under section 241(b)(3)(B)(iv) of the Act, but 
nevertheless establishes that it is more likely than not that he or she 
would be tortured in the prospective country of removal, the Department 
of Homeland Security may, in the unreviewable discretion of the 
Secretary, either place the alien in proceedings under section 240 of 
the Act for full consideration of the alien's claim, or remove the 
alien to another country.
    (1) If the Department places the alien in proceedings under section 
240 of the Act, then the IJ shall review all issues de novo, including 
whether the alien has established that it is more likely than not that 
he or she would be tortured in the prospective country of removal.
    (2) If the Department decides to remove the alien to another 
country, it shall do so in a manner consistent with section 241 of the 
Act and 8 CFR 241.15, including by not removing the alien to a country 
where the alien has established that his or her life or freedom would 
be threatened because of the alien's race, religion, nationality, 
membership in a particular social group, or political opinion (if the 
alien has also established that he or she is not subject to any 
mandatory bar to eligibility for withholding of removal under section 
241(b)(3)(B) of the Act), or to a country where the alien has 
established that he or she would more likely than not be tortured. 
Further, such a removal shall be executed only if the alien was:
    (i) Advised at the time of requesting withholding or deferral of 
removal of the possibility of being removed to a third country prior to 
a determination or adjudication of the same under the conditions set 
forth in this paragraph (e)(5)(i); and
    (ii) Provided, but did not accept, an opportunity to withdraw the 
request for withholding or deferral of removal in order to prevent such 
removal and, instead, proceed to removal pursuant to section 241(b) of 
the Act, as appropriate.
    (3) If the alien fails to affirmatively establish, during an 
interview with the asylum officer, that it is more likely than not that 
he or she would be tortured in the prospective country of removal, then 
the asylum officer will provide the alien with a written notice of 
decision that will be subject to IJ review consistent with paragraph 
(g) of this section. If the alien is a stowaway, the Department shall 
place the alien in proceedings for consideration of the alien's claim 
pursuant to Sec.  208.2(c)(3).
* * * * *
    (iii) If the alien is found to be an alien described as ineligible 
for asylum in Sec.  208.13(c)(4), then the asylum officer shall enter a 
negative credible fear determination with respect to the alien's

[[Page 41217]]

intention to apply for asylum. If the alien:
    (A) Establishes a reasonable fear of persecution or torture (as 
both terms are defined in Sec.  208.31(c), except that the bar to 
eligibility for withholding of removal under section 241(b)(3)(B)(iv) 
of the Act shall be considered); or
    (B) Would be able to establish a reasonable fear of torture (as 
defined in Sec.  208.31(c)) but for the fact that he or she is subject 
to the mandatory bar to eligibility for withholding of removal under 
section 241(b)(3)(B)(iv) of the Act, but nevertheless affirmatively 
establishes that it is more likely than not that he or she would be 
tortured in the prospective country of removal, the Department of 
Homeland Security may, in the unreviewable discretion of the Secretary, 
either place the alien in proceedings under section 240 of the Act for 
consideration of the alien's claim for withholding of removal under 
section 241(b)(3) of the Act or under the Convention Against Torture, 
or remove the alien to another country.
    (1) If the Department places the alien in proceedings under section 
240 of the Act, then the IJ shall review all issues de novo, including 
whether the alien has established that it is more likely than not that 
he or she would be tortured in the prospective country of removal.
    (2) If the Department decides to remove the alien to another 
country, it shall do so in a manner consistent with section 241(b)(2) 
of the Act and 8 CFR 241.15, including by not removing the alien to a 
country where the alien has established that his or her life or freedom 
would be threatened because of the alien's race, religion, nationality, 
membership in a particular social group, or political opinion (if the 
alien has also established that he or she is not subject to any 
mandatory bar to eligibility for withholding of removal under section 
241(b)(3)(B) of the Act), or to a country where the alien has 
established that he or she would more likely than not be tortured. 
Further, such a removal shall be executed only if the alien was:
    (i) Advised at the time of requesting withholding or deferral of 
removal of the possibility of being removed to a third country prior to 
a determination or adjudication of the same under the conditions set 
forth in this paragraph (e)(5)(iii); and
    (ii) Provided, but did not accept, an opportunity to withdraw the 
request for withholding or deferral of removal in order to prevent such 
removal and, instead, proceed to removal pursuant to section 241(b) of 
the Act, as appropriate.
    (3) If the alien fails to affirmatively establish, during the 
interview with the asylum officer, that it is more likely than not that 
the alien would be tortured in the prospective country of removal, then 
the asylum officer will provide the alien with a written notice of 
decision, which will be subject to IJ review consistent with paragraph 
(g) of this section. If the alien is a stowaway, the Department shall 
place the alien in proceedings for consideration of the alien's claim 
pursuant to Sec.  208.2(c)(3).
* * * * *

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in the preamble, the 
Attorney General proposes to amend 8 CFR part 1208 as follows:

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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 
VII of Pub. L. 110-229; Pub. L. 115-218.

0
7. Further amend Sec.  1208.13, as proposed to be amended at 84 FR 
69660, by adding paragraph (c)(10) to read as follows:


Sec.  1208.13   Establishing asylum eligibility.

* * * * *
    (c) * * *
    (10) Aliens who pose a danger to the security of the United States. 
In determining whether an alien or a class of aliens can reasonably be 
regarded as a danger to the security of the United States under section 
208(b)(2)(A)(iv) of the Act, the Attorney General may consider whether 
the alien exhibits symptoms consistent with being afflicted with any 
contagious or infectious disease or has come into contact with such a 
disease, or whether the alien or class of aliens is coming from a 
country, or a political subdivision or region of a country, or has 
embarked at a place, where such disease is prevalent or epidemic (or 
had come from that country, subdivision, or region, or had embarked at 
that place, during a period in which the disease was prevalent or 
epidemic there), if:
    (i) The disease has triggered an ongoing declaration of a public 
health emergency under Federal law, including under section 319 of the 
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
    (ii) The Attorney General and the Secretary of Homeland Security 
have, in consultation with the Secretary of Health and Human Services, 
jointly:
    (A) Determined that because the disease is a communicable disease 
of public health significance (in accordance with regulations 
prescribed by the Secretary of Health and Human Services (42 CFR 
34.2(b))) that is prevalent or epidemic in another country or countries 
(or one or more political subdivisions or regions thereof) or place or 
places, the physical presence in the United States of aliens who are 
coming from such country or countries (or one or more political 
subdivisions or regions thereof) or have embarked at that place or 
places (or had come from that country or countries (or one or more 
subdivisions or regions thereof) or embarked at that place or places 
during a period in which the disease was prevalent or epidemic there), 
would cause a danger to the public health in the United States; and
    (B) Designated the foreign country or countries (or one or more 
political subdivisions or regions thereof) or place or places and the 
period of time or circumstances under which the Attorney General and 
the Secretary of Homeland Security jointly deem it necessary for the 
public health that aliens described in paragraph (c)(10)(ii)(A) who 
either are still within the number of days equivalent to the longest 
known incubation and contagion period for the disease or exhibit 
symptoms consistent with being afflicted with the disease be regarded 
as a danger to the security of the United States under section 
208(b)(2)(A)(iv) of the Act, including any relevant exceptions as 
appropriate.
0
8. Amend Sec.  1208.16 by revising paragraphs (d)(2) and (f) to read as 
follows:


Sec.  1208.16   Withholding of removal under section 241(b)(3)(B) of 
the Act and withholding of removal under the Convention Against 
Torture.

* * * * *
    (d) * * *
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under paragraph (c) of this section shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act 
or, for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger 
to the

[[Page 41218]]

community. If the evidence indicates the applicability of one or more 
of the grounds for denial of withholding enumerated in the Act, the 
applicant shall have the burden of proving by a preponderance of the 
evidence that such grounds do not apply. In determining whether an 
alien or a class of aliens can reasonably be regarded as a danger to 
the security of the United States under section 241(b)(3)(B)(iv) of the 
Act, the Attorney General may consider whether the alien exhibits 
symptoms consistent with being afflicted with any contagious or 
infectious disease or has come into contact with such disease, or 
whether the alien or class of aliens is coming from a country, or a 
political subdivision or region of a country, or has embarked at a 
place, where such disease is prevalent or epidemic (or had come from 
that country, subdivision, or region, or embarked at that place, during 
a period in which the disease was prevalent or epidemic there), if:
    (i) The disease has triggered an ongoing declaration of a public 
health emergency under Federal law, including under section 319 of the 
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
    (ii) The Attorney General and the Secretary of Homeland Security 
have, in consultation with the Secretary of Health and Human Services, 
jointly:
    (A) Determined that because the disease is a communicable disease 
of public health significance (in accordance with regulations 
prescribed by the Secretary of Health and Human Services (42 CFR 
34.2(b))) that is prevalent or epidemic in another country or countries 
(or one or more political subdivisions or regions thereof) or place or 
places, the physical presence in the United States of aliens who are 
coming from such country or countries (or one or more subdivisions or 
regions thereof) or have embarked at that place or places (or had come 
from that country or countries (or one or more subdivisions or regions 
thereof) or embarked at that place or places during a period in which 
the disease was prevalent or epidemic there), would cause a danger to 
the public health in the United States; and
    (B) Designated the foreign country or countries (or one or more 
political subdivisions or regions thereof) or place or places and the 
period of time or circumstances under which the Attorney General and 
the Secretary of Homeland Security jointly deem it necessary for the 
public health that aliens described in paragraph (d)(2)(ii)(A) of this 
section who either are still within the number of days equivalent to 
the longest known incubation and contagion period for the disease or 
exhibit symptoms indicating they are afflicted with the disease be 
regarded as a danger to the security of the United States under section 
241(b)(3)(B)(iv) of the Act, including any relevant exceptions as 
appropriate.
* * * * *
    (f) Removal to third country. (1) Nothing in this section or Sec.  
1208.17 shall prevent the Department of Homeland Security from removing 
an alien requesting protection to a third country other than a country 
to which removal is currently withheld or deferred.
    (2) If an alien requests withholding or deferral of removal to the 
applicable home country or another specific country, nothing in this 
section or Sec.  1208.17 precludes the Department of Homeland Security 
from removing the alien to a third country prior to a determination or 
adjudication of the alien's initial request for withholding or deferral 
of removal if the alien has not established that his or her life or 
freedom would be threatened on account of a protected ground in that 
third country and that he or she is not subject to the mandatory bar to 
eligibility for withholding of removal under section 241(b)(3)(B)(iv) 
of the Act, or that it is more likely than not that he or she would be 
tortured in that third country. However, such a removal shall be 
executed only if the alien was:
    (i) Advised at the time of requesting withholding or deferral of 
removal of the possibility of being removed to a third country prior to 
a determination or adjudication of the same under the conditions set 
forth in this paragraph (f); and
    (ii) Provided, but did not accept, an opportunity to withdraw the 
request for withholding or deferral of removal in order to prevent such 
removal and, instead, proceed to removal pursuant to section 241(b) of 
the Act, as appropriate.
0
9. Add Sec.  1208.25 to read as follows:


Sec.  1208.25   Severability.

    The provisions of this part are separate and severable from one 
another. In the event that any provision in this part is stayed, 
enjoined, not implemented, or otherwise held invalid, the remaining 
provisions shall nevertheless be implemented as independent rules and 
continue in effect.
0
10. Amend Sec.  1208.30 by revising paragraphs (e) and (g)(2)(iv)(A) 
and (B) to read as follows:


Sec.  1208.30   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) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and in making positive 
and negative credible fear determinations, see 8 CFR 208.30. The 
immigration judges will review such determinations as provided in 
paragraph (g)(2) of this section and 8 CFR 1003.42. If the alien is 
found to be an alien ineligible for asylum under Sec.  1208.13(c)(4), 
(6), or (7), then the immigration judge shall find that the alien does 
not have a credible fear of persecution with respect to the alien's 
intention to apply for asylum. The immigration judge's decision is 
final and may not be appealed. This finding, as well as all other 
findings of a lack of credible or reasonable fear of persecution or 
torture made by immigration judges under section 235(b)(1)(B)(iii)(III) 
of the Act and Sec.  1003.42 and paragraph (g) of this section, does 
not constitute a denial of an asylum application by an immigration 
judge under Sec. Sec.  208.4(a)(3) of this title and 1208.4(a)(3).
* * * * *
    (g) * * *
    (2) * * *
    (iv) * * *
    (A) If the immigration judge concurs with the determinations of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture or a reasonable fear of persecution or torture 
and that the alien has not affirmatively established that it is more 
likely than not that he or she would be tortured in the prospective 
country of removal, after having reviewed the asylum officer's 
reasonable fear findings under the reasonable fear standard (as defined 
in Sec.  1208.31(c), except that the bar to eligibility for withholding 
of removal under section 241(b)(3)(B)(iv) of the Act shall be 
considered), and the officer's finding regarding whether the alien is 
more likely than not to be tortured under the more likely than not 
standard, then the case shall be returned to the Department of Homeland 
Security for removal of the alien. The immigration judge's decision is 
final and may not be appealed.
    (B) If the immigration judge, after having reviewed the asylum 
officer's reasonable fear findings under the

[[Page 41219]]

reasonable fear standard and the officer's finding regarding whether 
the alien is more likely than not to be tortured under the more likely 
than not standard, finds that the alien, other than an alien stowaway, 
has a credible fear of persecution or torture or a reasonable fear of 
persecution or torture (as reasonable fear of persecution or torture is 
defined in Sec.  1208.31(c), except that the bar to eligibility for 
withholding of removal under section 241(b)(3)(B)(iv) of the Act shall 
be considered), or has established that it is more likely than not that 
he or she would be tortured in the prospective country of removal, the 
immigration judge shall vacate the order of the asylum officer issued 
on Form I-860 and the Department of Homeland Security may commence 
removal proceedings under section 240 of the Act, during which time the 
alien may file an application for asylum or withholding of removal in 
accordance with Sec.  1208.4(b)(3)(i), or remove the alien to a third 
country pursuant to 8 CFR 208.30(e)(5). If the Department of Homeland 
Security commences removal proceedings under section 240 of the Act, 
the immigration judge presiding in those proceedings shall consider all 
issues de novo, including whether the alien has established that it is 
more likely than not that he or she would be tortured in the 
prospective country of removal.
* * * * *

    Approved:
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel.

    Approved: June 30, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-14758 Filed 7-8-20; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P