[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Rules and Regulations]
[Pages 6847-6848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01683]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Rules 
and Regulations  

[[Page 6847]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

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

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 4975-2021]
RIN 1125-AB08


Security Bars and Processing; Delay of Effective Date

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

ACTION: Final rule; delay of effective date.

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SUMMARY: On December 23, 2020, DHS and DOJ (collectively, ``the 
Departments'') published a final rule to clarify that the danger to the 
security of the United States statutory bar to eligibility for asylum 
and withholding of removal encompass certain emergency public health 
concerns and make certain other changes. The Departments are delaying 
the rule's effective date for 60 days.

DATES: As of January 21, 2021, the effective date of the final rule 
published at 85 FR 84160 (Dec. 23, 2020) is delayed until March 22, 
2021.

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 240-721-3000 
(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:

Background and Basis for Delay

    On December 23, 2020, the Departments published a final rule 
(``Security Bars rule'') to amend existing regulations to clarify that 
in certain circumstances there are ``reasonable grounds for regarding 
[an] alien as a danger to the security of the United States'' or 
``reasonable grounds to believe that [an] alien is a danger to the 
security of the United States'' based on emergency public health 
concerns generated by a communicable disease, making the alien 
ineligible to be granted asylum in the United States under section 208 
of the Immigration and Nationality Act or the protection of withholding 
of removal under that Act or subsequent regulations (because of the 
threat of torture). See Security Bars and Processing, 85 FR 84160 et 
seq. (Dec. 23, 2020).
    On January 20, 2021, the White House Chief of Staff issued a 
memorandum asking agencies to consider delaying, consistent with 
applicable law, the effective dates of any rules that have published 
and not yet gone into effect, for the purpose of allowing the 
President's appointees and designees to review questions of fact, law, 
and policy raised by those regulations. See Memorandum for the Heads of 
Executive Departments and Agencies from Ronald A. Klain, Assistant to 
the President and Chief of Staff, Re: Regulatory Freeze Pending Review 
(Jan. 20, 2021). This action is consistent with that memorandum.
    The Departments have good cause to delay this rule's effective date 
without advance notice and comment because a permissible path to 
implementation of the rule is not apparent due to a preliminary 
injunction against a related rule. On December 11, 2020, the 
Departments issued a rule titled Procedures for Asylum and Withholding 
of Removal; Credible Fear and Reasonable Fear Review.\1\ On January 8, 
2021, a district court preliminarily enjoined the Departments ``from 
implementing, enforcing, or applying the [December 11] rule . . . or 
any related policies or procedures.'' \2\
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    \1\ See 85 FR 80274 (Dec. 11, 2020).
    \2\ See Pangea Legal Servs. v. Dep't of Homeland Security, No. 
20-09253-JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 2021). The 
Pangea court held that plaintiffs showed a likelihood that Chad F. 
Wolf, who approved the December 11 rule in his capacity as Acting 
Secretary of Homeland Security, did not have valid authority to act 
in that capacity. See id. *6. Following the court's ruling, Peter T. 
Gaynor and Mr. Wolf took steps to ratify the December 11 rule. See 
DHS Delegation No. 23028, Delegation to the Under Secretary for 
Strategy, Policy, and Plans to Act on Final Rules, Regulations, and 
Other Matters (Jan. 12, 2021); Chad F. Wolf, Ratification (Jan. 14, 
2021). By issuing this rule, the Departments state no position on 
Mr. Gaynor or Mr. Wolf's actions or authority, the outcome thus far 
in Pangea, or the effects of any further actions.
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    Implementing the Security Bars rule will not be viable given this 
injunction. Most prominently, the Security Bars rule relies upon the 
framework for applying bars to asylum during credible fear processing 
that was established in the December 11 rule.\3\ That is not possible 
given the injunction. The regulatory text of significant portions of 
the Security Bars rule is also embedded within and repeats regulatory 
text that was established by the December 11 rule.\4\
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    \3\ See, e.g., 85 FR at 84176 (``As noted, the [Security Bars] 
final rule is not, as the NPRM proposed, modifying the regulatory 
framework to apply the danger to the security of the United States 
bars at the credible fear stage because, in the interim between the 
NPRM and the final rule, the [December 11 rule] did so for all of 
the bars to eligibility for asylum and withholding of removal.''); 
id. at 84189 (describing changes made in the Security Bars rule ``to 
certain regulatory provisions not addressed in the proposed rule as 
necessitated by the intervening promulgation of the [December 11] 
Rule.'').
    \4\ Compare, e.g., 85 FR at 84194-84198 (revising 8 CFR 208.30, 
235.6, 1208.30, and 1235.6, among other provisions) and 85 FR at 
80390-80401 (same).
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    To implement the full Security Bars rule--and effectively reinsert 
or rely upon provisions that the Pangea court has enjoined--might run 
afoul of the court's injunction. Because the court's injunction is 
already effective and it would be impracticable to engage in notice and 
comment procedures in advance of the scheduled January 22 effective 
date, the Departments are proceeding with this final rule.\5\
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    \5\ See 5 U.S.C. 553(b)(B), (d) (providing an exception from the 
notice and comment requirements when an agency ``for good cause 
finds . . . that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest,'' 
and providing additional exceptions with respect to the delayed 
effective date).
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    The Acting Secretary of Homeland Security, David P. Pekoske, having

[[Page 6848]]

reviewed and approved this document, has delegated the authority to 
electronically sign this document to Sharmistha Das, who is the Deputy 
General Counsel for DHS, for purposes of publication in the Federal 
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Register.

Sharmistha Das,
Deputy General Counsel, U.S. Department of Homeland Security.
Monty Wilkinson,
Acting Attorney General, Department of Justice.
[FR Doc. 2021-01683 Filed 1-21-21; 4:15 pm]
BILLING CODE 4410-30-P 9111-97-P