[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Rules and Regulations]
[Pages 15069-15072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05931]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules 
and Regulations  

[[Page 15069]]



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. 5004-2021]
RIN 1125-AB08


Security Bars and Processing; Delay of Effective Date

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; Executive Office for Immigration Review, Department 
of Justice.

ACTION: Interim final rule with request for comments.

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

SUMMARY: On December 23, 2020, the Department of Homeland Security 
(``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the 
Departments'') published a final rule (``Security Bars rule'') to 
clarify that the ``danger to the security of the United States'' 
standard in the statutory bar to eligibility for asylum and withholding 
of removal encompasses certain emergency public health concerns and to 
make certain other changes; that rule was scheduled to take effect on 
January 22, 2021. As of January 21, 2021, the Departments delayed the 
rule's effective date for 60 days to March 22, 2021. In this rule, the 
Departments are further extending and delaying the rule's effective 
date to December 31, 2021. In addition, in light of evolving 
information regarding the best approaches to mitigating the spread of 
communicable disease, the Departments are also considering action to 
rescind or revise the Security Bars rule. The Departments are seeking 
public comment on whether that rule represents an effective way to 
protect public health while reducing barriers for noncitizens seeking 
forms of protection in the United States, or whether the Security Bars 
rule should be revised or revoked.

DATES: As of March 22, 2021, the effective date of the final rule 
published at 85 FR 84160 (Dec. 23, 2020), which was delayed by the rule 
published at 86 FR 6847 (Jan. 25, 2021), is further delayed by this 
interim final rule until December 31, 2021.
    Submission of public comments: Comments must be submitted on or 
before April 21, 2021.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2020-0013, by any one of the following methods:
     Federal eRulemaking Portal (strongly preferred): http://www.regulations.gov. Follow the website instructions for submitting 
comments. If you submit comments using the eRulemaking portal, please 
do not submit a duplicate written comment via postal mail.
     Mail: If you wish to submit a paper comment in lieu of an 
electronic submission, please direct the mail/shipment to: Lauren Alder 
Reid, Assistant Director, Office of Policy, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 
22041. To ensure proper handling, please reference DHS Docket No. 
USCIS-2020-0013 in your correspondence. Mail must be postmarked by the 
comment submission deadline. Please note that the Departments cannot 
accept any comments that are hand-delivered or couriered. In addition, 
the Departments cannot accept mailed comments contained on any form of 
digital media storage devices, such as CDs/DVDs and USB drives. If you 
submit a written comment via postal mail, please do not submit a 
duplicate comment using the eRulemaking portal.
    Comments submitted in a manner other than those listed above, 
including emails or letters sent to DHS or U.S. Citizenship and 
Immigration Services officials, or DOJ or Executive Office for 
Immigration Review officials, will not be considered comments on this 
final rule and may not receive a response from the Departments.

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:

I. Public Participation

    Interested persons are invited to submit comments on any aspect of 
this action, as well as a potential future rulemaking rescinding or 
amending the Security Bars rule, by submitting relevant written data, 
views, or arguments. To provide the most assistance to the Departments, 
comments should reference a specific portion of the rule; explain the 
reason for any recommendation; and include data, information, or 
authority that supports the recommended change or rescission.
    All comments submitted should include the agency name (U.S. 
Citizenship and Immigration Services) and Docket No. USCIS 2020-0013. 
Please note that all comments received are considered part of the 
public record and made available for public inspection at 
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. You may wish to consider limiting the amount of 
personal information that you provide in any voluntary public comment 
submission that you make to DHS. DHS may withhold information provided 
in comments from public viewing if it determines that it may impact the 
privacy of an individual or is offensive. For additional information, 
please read the Privacy and Security Notice, which is available at 
http://www.regulations.gov.

II. Background and Basis for Delay

    On December 23, 2020, the Departments published the Security Bars 
rule to amend existing regulations

[[Page 15070]]

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). The rule was scheduled to take effect on January 
22, 2021.
    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). As of January 21, 2021, the Departments delayed the 
effective date of the Security Bars rule to March 22, 2021, consistent 
with that memorandum and a preliminary injunction in place with respect 
to a related rule, as discussed below. See Security Bars and 
Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021).
    The Departments have good cause to delay this rule's effective date 
further without advance notice and comment because implementation of 
this rule is not feasible due to a preliminary injunction against a 
related rule. The provisions of the Security Bars rule are premised 
upon, and reliant upon, the revisions to the Departments' asylum rules 
previously made by a separate joint rule that became effective before 
the Security Bars rule was scheduled to take effect. The Departments 
issued the ``Global Asylum'' rule, entitled Procedures for Asylum and 
Withholding of Removal; Credible Fear and Reasonable Fear Review, on 
December 11, 2020.\1\ On January 8, 2021, in the case of Pangea Legal 
Services v. Department of Homeland Security, a district court 
preliminarily enjoined the Departments ``from implementing, enforcing, 
or applying the [Global Asylum final] rule . . . or any related 
policies or procedures.'' \2\ The preliminary injunction remains in 
place.
---------------------------------------------------------------------------

    \1\ See 85 FR 80274 (Dec. 11, 2020).
    \2\ Nos. 20-09253-JD & 20-09258-JD, 2021 WL 75756, at *7 (N.D. 
Cal. Jan. 8, 2021). The U.S. District Court for the Northern 
District of California held that the plaintiffs, who had brought two 
related actions, had shown a likelihood that Chad F. Wolf, who 
approved the Global Asylum final rule in his capacity as Acting 
Secretary of Homeland Security, did not have valid authority to act 
in that capacity. See id. at *6. The District Court did not reach 
any other ground for issuing the injunction. See id. Following the 
court's ruling, Acting Secretary of Homeland Security Peter T. 
Gaynor and Mr. Wolf took steps to ratify the Global Asylum final 
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 delaying the 
effective date of the Security Bars rule, the Departments are not 
indicating their position on Mr. Gaynor or Mr. Wolf's actions or 
authority, or on the outcome thus far in Pangea.
---------------------------------------------------------------------------

    As the Departments noted in their previous rule delaying the 
January 22, 2021, effective date for the Security Bars rule, because of 
the preliminary injunction in effect against implementation of the 
Global Asylum final rule, implementing the Security Bars rule is not 
viable at this time, as the two rules are intertwined.\3\ Specifically, 
the Security Bars rule relies upon the regulatory framework for 
applying bars to asylum during credible fear processing that was 
established in the Global Asylum final rule.\4\ The Notice of Proposed 
Rulemaking (NPRM) for the Security Bars rule, which was published on 
July 9, 2020, included proposed regulatory text instructing 
adjudicators to apply the bar during credible and reasonable fear 
screenings.\5\ This proposal would have created an exception to the 
then-existing rule that the statutory bars to asylum and withholding of 
removal, including the ``danger to the security of the United States'' 
bars underlying the Security Bars rule, were not to be considered 
during the credible and reasonable fear screening processes.\6\ The 
proposed rule justified this exception as necessary to allow DHS to 
quickly remove individuals covered by the bars, rather than sending 
them to full removal proceedings for adjudication of their asylum and 
withholding of removal claims, which can take months or even years.\7\ 
The NPRM explained that applying the bars during credible fear and 
reasonable fear screenings was necessary to reduce health and safety 
dangers to both the public at large and DHS officials.\8\ Indeed, 
applying these bars only after the affected individuals have been 
present in the United States for an extended period of time would do 
little, if anything, to prevent the spread of such diseases, 
significantly undercutting the justification for the Security Bars 
rule.
---------------------------------------------------------------------------

    \3\ See 86 FR at 6847.
    \4\ 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 [Global Asylum final 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 
[Global Asylum final] Rule'').
    \5\ Security Bars and Processing, 85 FR 41201, 41216-2012;17, 
41218 (July 9, 2020).
    \6\ See id. at 41207.
    \7\ Id. at 41210-12.
    \8\ Id. at 41210.
---------------------------------------------------------------------------

    While DHS and DOJ were reviewing the comments submitted in response 
to the Security Bars NPRM, the Global Asylum final rule was published 
on December 11, 2020.\9\ The Global Asylum final rule changed the 
general practice described above to apply all statutory bars to asylum 
and withholding of removal during credible and reasonable fear 
screenings.\10\ The Security Bars final rule, which was published on 
December 23, 2020, therefore revised the proposed text explicitly to 
rely on the changes made by the Global Asylum final rule.\11\ As a 
result, the regulatory text of significant portions of the Security 
Bars rule relies upon and repeats broader regulatory text that was 
established by the Global Asylum final rule, applying all bars to 
asylum and withholding of removal during credible and reasonable fear 
screenings.\12\ The Security Bars final rule assumed that the Global 
Asylum rule would be in effect and therefore the Security Bars final 
rule did not change the credible fear and reasonable fear 
framework.\13\ As a result, the overlap between the two rules now has 
created a situation in which the Departments would risk violating the 
injunction against the Global Asylum final rule if they were to 
implement the identical portions of the Security Bars final rule, and 
the Departments could not implement the narrower change to the credible 
fear and reasonable fear framework proposed in

[[Page 15071]]

the Security Bars NPRM without additional rulemaking.
---------------------------------------------------------------------------

    \9\ 85 FR 80274 (Dec. 11, 2020).
    \10\ Id. at 80391.
    \11\ 85 FR 84160, 84174-77.
    \12\ See, e.g., id. at 84194-98 (revising 8 CFR 208.30, 235.6, 
1208.30, and 1235.6, among other provisions) accord 85 FR at 80390-
80401 (same).
    \13\ See id. at 84175 (``The Departments note that the 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. In the interim between the NPRM and 
the final rule, the Global Asylum Final Rule did so for all of the 
bars to eligibility for asylum and withholding of removal.'').
---------------------------------------------------------------------------

    Moreover, the framework established by the Global Asylum final rule 
is critical to the justification for the Security Bars rule, because it 
would permit the Departments to remove individuals who are subject to 
the bars expeditiously. On the other hand, if the Departments were to 
implement only the remaining portions of the Security Bars rule that do 
not overlap with the enjoined Global Asylum final rule, the result 
would be the very situation that the Security Bars rule was created to 
remedy--namely, that possibly infectious individuals would be detained 
or released inside the United States, potentially for a lengthy period, 
while awaiting their removal hearings.\14\ Such an outcome would 
frustrate the purpose of the Security Bars rule.
---------------------------------------------------------------------------

    \14\ Specifically, the Security Bars rule's regulatory 
provisions at Sec. Sec.  208.13(c)(10), 208.16(d)(2), 
1208.13(c)(10), and 1208.16(d)(2) clarify that the ``danger to the 
security of the United States'' statutory bars to eligibility for 
asylum and withholding of removal may encompass emergency public 
health concerns, and do not overlap with the enjoined Global Asylum 
final rule. By contrast, the provisions at Sec.  208.30(e)(5) 
restate and amend provisions newly adopted in the Global Asylum 
final rule that have been enjoined. These latter provisions would 
require an asylum officer to enter a negative credible fear of 
persecution determination with respect to an arriving alien's 
eligibility for asylum, allowing most aliens to whom the danger to 
security bar applies to be quickly removed under an order of 
expedited removal. While the Departments could implement the danger 
to security bars to asylum and withholding of removal determinations 
without running afoul of the injunction of the Global Asylum final 
rule, they could only do so after the individual has moved past the 
credible fear stage of the process and has been placed into removal 
proceedings before an immigration judge under section 240 of the 
Act. The individual would need to be either detained in a congregate 
setting or released inside the United States while awaiting his or 
her removal proceeding. This is the very situation that the Security 
Bars rule intended to avoid.
---------------------------------------------------------------------------

    Additionally, to implement the full Security Bars rule--and 
effectively reinsert or rely upon regulatory provisions that the Pangea 
court has enjoined--might run afoul of the court's injunction. Because 
it is impracticable and unnecessary to engage in notice and comment 
procedures in the limited time available while the Departments are 
subject to the court's injunction, the Departments are publishing this 
interim final rule to extend and delay the Security Bars rule's 
effective date until December 31, 2021. Additionally, in light of the 
complex relationship between the Global Asylum final rule and the 
Security Bars rule and the implications of the Pangea litigation to the 
Security Bars rule, the Departments need additional time to analyze the 
consequences of the overlapping and embedded text and consider whether 
policy changes are advisable and viable in light of the litigation.
    If the injunction against implementation of the Global Asylum rule 
is lifted before December 31, the Departments will revise the effective 
date of the Security Bars rule as soon as possible thereafter. 
Similarly, if the injunction remains in effect on December 31, the 
Departments may delay the effective date of the Security Bars rule 
further. The Departments have chosen this time-limited delay, rather 
than an indefinite delay, due to the preliminary nature of the 
injunction.

III. Request for Comment on Amending or Rescinding the Security Bars 
Rule

    The Departments are further considering amending or rescinding the 
Security Bars rule. In particular, the Departments are considering 
whether to publish a new rule that would remove or revise the 
regulatory changes promulgated in the Security Bars rule. In connection 
with that consideration, the Departments welcome data, views, and 
information on the best approaches for mitigating the spread of 
communicable disease in the operational context implicated by the 
Security Bars rule. The Departments are interested in information the 
public may have on more effective alternative approaches than that 
taken by the Security Bars rule, particularly in light of new or more 
comprehensive data. The Departments are also reviewing the Security 
Bars rule in light of the Administration's policy of expanding pathways 
for noncitizens seeking forms of protection in the United States and 
removing barriers that impede access to immigration benefits, and are 
seeking comment on alternative approaches that may achieve the best 
public health outcome while remaining more consistent with that policy 
goal.\15\ Finally, the Departments welcome comment on the portions of 
the Global Asylum final rule that establish the framework for applying 
bars to asylum during credible fear processing, insofar as such comment 
is relevant to potential removal of or revisions to the Security Bars 
rule.
---------------------------------------------------------------------------

    \15\ See, e.g., Executive Order 14010 of February 2, 2021, 
Creating a Comprehensive Regional Framework to Address the Causes of 
Migration, to Manage Migration Throughout North and Central America, 
and to Provide Safe and Orderly Processing of Asylum Seekers at the 
United States Border, 86 FR 8267 (Feb. 5, 2021); Executive Order 
14012 of February 2, 2021, Restoring Faith in Our Legal Immigration 
Systems and Strengthening Integration and Inclusion Efforts for New 
Americans, 86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------

IV. Regulatory Requirements

A. Executive Order 12866 and Executive Order 13563

    Executive Orders (E.O.) 12866 (Regulatory Planning and Review), and 
13563 (Improving Regulation and Regulatory Review) direct agencies to 
assess the costs, benefits, and transfers of available alternatives, 
and if regulation is necessary, to select regulatory approaches that 
maximize net benefits, including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Pursuant to E.O. 12866, the Office of Information and 
Regulatory Affairs of the Office of Management and Budget determined 
that this rule is ``significant'' under E.O. 12866 and has reviewed 
this regulation.

B. Regulatory Flexibility Act

    The Departments have reviewed this rule in accordance with the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and have determined 
that this rule further delaying the effective date of the Security Bars 
rule (85 FR 84160) will not have a significant economic impact on a 
substantial number of small entities. Neither the final Security Bars 
rule, nor this rule delaying its effective date, regulate ``small 
entities'' as that term is defined in 5 U.S.C. 601(6). Only 
individuals, rather than entities, are eligible to apply for asylum and 
related forms of relief, and only individuals are placed in immigration 
proceedings.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Congressional Review Act (``CRA''). 5 U.S.C. 804. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign

[[Page 15072]]

based enterprises in domestic and export markets. The Departments have 
complied with the CRA's reporting requirements and have sent this final 
rule to Congress and to the Comptroller General as required by 5 U.S.C. 
801(a)(1).

E. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of E.O. 
13132, the Departments believe that this rule will not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

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

G. Paperwork Reduction Act

    This rule does not create 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. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This rule does not have ``tribal implications'' because it does not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. Accordingly, E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), requires no further 
agency action or analysis.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.

    Dated: March 17, 2021.
Merrick B. Garland,
Attorney General, Department of Justice.
[FR Doc. 2021-05931 Filed 3-19-21; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P