[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Proposed Rules]
[Pages 11704-11752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03718]
[[Page 11703]]
Vol. 88
Thursday,
No. 36
February 23, 2023
Part VII
Department of Homeland Security
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8 CFR Part 208
Department of Justice
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Executive Office for Immigration Review
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8 CFR Part 1208
Circumvention of Lawful Pathways; Proposed Rule
Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 /
Proposed Rules
[[Page 11704]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2736-22; Docket No: USCIS 2022-0016]
RIN 1615-AC83
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5605-2023]
RIN 1125-AB26
Circumvention of Lawful Pathways
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (``DHS'') and the
Department of Justice (``DOJ'') are issuing a notice of proposed
rulemaking (``NPRM'' or ``proposed rule'') in anticipation of a
potential surge of migration at the southwest border (``SWB'') of the
United States following the eventual termination of the Centers for
Disease Control and Prevention's (``CDC'') public health Order. The
proposed rule would encourage migrants to avail themselves of lawful,
safe, and orderly pathways into the United States, or otherwise to seek
asylum or other protection in countries through which they travel,
thereby reducing reliance on human smuggling networks that exploit
migrants for financial gain. It would do so by introducing a rebuttable
presumption of asylum ineligibility for certain noncitizens who neither
avail themselves of a lawful, safe, and orderly pathway to the United
States nor seek asylum or other protection in a country through which
they travel. In the absence of such a measure, which would be
implemented on a temporary basis, the number of migrants expected to
travel without authorization to the United States is expected to
increase significantly, to a level that risks undermining the
Departments' continued ability to safely, effectively, and humanely
enforce and administer U.S. immigration law, including the asylum
system, in the face of exceptionally challenging circumstances. Coupled
with an expansion of lawful, safe, and orderly pathways into the United
States, the Departments expect the proposed rule to lead to a reduction
in the numbers of migrants who seek to cross the SWB without
authorization to enter, thereby reducing the reliance by migrants on
dangerous human smuggling networks, protecting against extreme
overcrowding in border facilities, and helping to ensure that the
processing of migrants seeking protection in the United States is done
in an effective, humane, and efficient manner.
DATES: Comments must be submitted on or before March 27, 2023. The
electronic Federal Docket Management System will accept comments before
midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on this proposed rule through the
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to the Departments' officials, will not be considered comments on
the proposed rule and may not receive a response from the Departments.
Please note that the Departments cannot accept any comments that are
hand-delivered or couriered. In addition, the Departments cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs or USB drives. The Departments are not accepting mailed
comments at this time. If you cannot submit your comment by using
http://www.regulations.gov, please contact the Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, by telephone at
(240) 721-3000 (not a toll-free call) for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Acting Director, Border and Immigration
Policy, Office of Strategy, Policy, and Plans, U.S. Department of
Homeland Security; telephone (202) 447-3459 (not a toll-free call).
For Executive Office for Immigration Review (``EOIR''): Lauren
Alder Reid, Assistant Director, Office of Policy, EOIR, Department of
Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703)
305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on this action by
submitting relevant written data, views, or arguments. To provide the
most assistance to the Departments, comments should reference a
specific portion of the proposed rule; explain the reason for any
recommendation; and include data, information, or authority that
supports the recommended course of action. Comments must be submitted
in English, or an English translation must be provided. Comments
submitted in a manner other than those listed above, including emails
or letters sent to the Departments' officials, will not be considered
comments on the proposed rule and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must submit it to DHS
Docket Number USCIS 2022-0016. All submissions may be posted, without
change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to the
Departments. The Departments may withhold information provided in
comments from public viewing that they determine may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at https://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to https://www.regulations.gov, referencing
the docket number listed above. You may also sign up for email alerts
on the online docket to be notified when comments are posted or another
Federal Register document is published.
II. Executive Summary
Economic and political instability around the world is fueling the
highest levels of migration since World War II, including in the
Western Hemisphere. Even while CDC's Title 42 public health Order has
been in place, encounters at our SWB \1\--referring to the number of
[[Page 11705]]
times U.S. officials encounter noncitizens \2\ attempting to cross the
SWB of the United States without authorization to do so--have reached
an all-time high, driven in large part by an unprecedented exodus of
migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua,
Peru, and Venezuela. For the 30 days ending December 24, 2022, total
daily encounters along the SWB consistently fluctuated between
approximately 7,100 and 9,700 per day, averaging approximately 8,500
per day, with encounters exceeding 9,000 per day on 12 different
occasions during this 30-day stretch.\3\ Smuggling networks enable and
exploit this unprecedented movement of people, putting migrants' lives
at risk for their own financial gain.\4\ Meanwhile, the current asylum
system--in which most migrants who are initially deemed eligible to
pursue their claims ultimately are not granted asylum in the subsequent
EOIR removal proceedings \5\--has contributed to a growing backlog of
cases awaiting review by asylum officers and immigration judges. The
practical result of this growing backlog is that those deserving of
protection may have to wait years for their claims to be granted, while
individuals who are ultimately found not to merit protection may spend
years in the United States before being issued a final order of
removal. As the demographics of border encounters have shifted in
recent years to include larger numbers of non-Mexicans--who are far
more likely to make asylum claims--and as the time required to process
and remove noncitizens ineligible for protection has grown (during
which time individuals become eligible to apply for employment
authorization), the apprehension of border crossers has had limited
deterrent effect.\6\
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\1\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB,'' ``the southern
border,'' ``U.S.-Mexico border,'' or ``the land border with
Mexico.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. The ``southern border'' is
both a land and maritime border extending from beyond California to
the west to beyond Florida to the east. This proposed rule would
apply along the entirety of the U.S. land border with Mexico,
referred to in the regulatory text as the ``southwest land border,''
but the Departments use different terms in the preamble to describe
the border. This is in large part to reflect the source material
supporting the proposed rule, but the Departments believe that the
factual circumstances described in the preamble call for applying
the proposed rule across the entirety of the U.S. land border with
Mexico.
\2\ For purposes of this discussion, the Departments use the
term ``noncitizen'' to be synonymous with the term ``alien'' as it
is used in the Immigration and Nationality Act (``INA'' or ``Act'').
See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct.
1442, 1446 n.2 (2020).
\3\ DHS Office of Immigration Statistics (``OIS'') analysis of
data downloaded from the U.S. Customs and Border Protection
(``CBP'') Unified Immigration Portal (``UIP'') on January 4, 2023.
\4\ Miriam Jordan, Smuggling Migrants at the Border Now a
Billion-Dollar Business, New York Times, July 26, 2022, https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html (last
visited Dec. 13, 2022).
\5\ See EOIR, Executive Office for Immigration Review
Adjudication Statistics: Asylum Decision and Filing Rates in Cases
Originating with a Credible Fear Claim (Oct. 13, 2022), https://www.justice.gov/eoir/page/file/1062976/download (last visited Jan.
27, 2023). The EOIR adjudication outcome statistics report on the
total number of cases originating with credible fear claims resolved
on any ground in a fiscal year, without regard to whether an asylum
claim was adjudicated. The asylum grant rate is a percentage of that
total number of cases.
\6\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, 6 percent of Mexican nationals
made fear claims that were referred to USCIS for adjudication,
compared to 57 percent of people from Northern Central America, and
90 percent of all other nationalities. OIS analysis of Enforcement
Lifecycle data as of September 30, 2022. Of note, according to OIS
analysis of historic EOIR and CBP data, there is a clear correlation
since FY 2000 between the increasing time it takes to complete
immigration proceedings and the lower share of noncitizens being
removed, and the growth in non-Mexican encounters at the SWB. Both
trends accelerated in the 2010s, as non-Mexicans became the majority
of border encounters, and they have accelerated further since FY
2021, as people from countries other than Mexico and Northern
Central America now account for the largest numbers of border
encounters.
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While the CDC's Title 42 public health Order \7\ has been in
effect, migrants who do not have proper travel documents have generally
not been processed into the United States; they have instead been
expelled to Mexico or to their home countries under the Order's
authority without being processed under the authorities set forth in
Title 8 of the United States Code, which includes the Immigration and
Nationality Act (``INA'' or ``the Act''). When the Order is eventually
lifted, however, the United States Government will process all such
migrants who cross the border under Title 8 authorities, as statutorily
required. At that time, the number of migrants seeking to cross the SWB
without lawful authorization to do so is expected to increase
significantly, unless other policy changes are made. Such challenges
were evident in the days following the November 15, 2022, court
decision that, had it not been stayed on December 19, 2022, would have
resulted in vacatur of the Title 42 public health Order effective
December 21, 2022.\8\ Leading up to the expected termination date,
migrants gathered in various parts of Mexico, including along the SWB,
waiting to cross the border once the Title 42 public health Order was
lifted.\9\ According to internal Government sources, smugglers were
also expanding their messaging and recruitment efforts, using the
expected lifting of the Title 42 public health Order to claim that the
border was open, thereby seeking to persuade would-be migrants to
participate in expensive and dangerous human smuggling schemes. In the
weeks between the November announcement that the Title 42 public health
Order would be lifted and the December 19 stay order that kept the
Title 42 public health Order in place, encounter rates jumped from an
average of 7,700 per week (early November) to 8,600 per week (mid-
December).\10\
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\7\ See CDC, Public Health Determination and Order Regarding
Suspending the Right To Introduce Certain Persons From Countries
Where a Quarantinable Communicable Disease Exists, 87 FR 19941,
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42
orders, which ``suspend[ ] the right to introduce certain persons
into the United States from countries or places where the
quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-
19'').
\8\ See Huisha-Huisha v. Mayorkas, No. 21-100, 2022 WL 16948610
(D.D.C. Nov. 15, 2022), cert. and stay granted, Arizona v. Mayorkas,
No. 22A544, 2022 WL 17957850 (S. Ct. Dec. 27, 2022).
\9\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at the
U.S.-Mexico Border. This Is Why, L.A. Times (Dec. 23, 2022), https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion (last visited Jan. 27, 2023).
\10\ OIS analysis of CBP UIP data downloaded January 13, 2023.
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While a number of factors make it particularly difficult to
precisely project the numbers of migrants who would seek to cross the
border, without authorization, after the lifting of the Title 42 public
health Order, DHS encounter projections and planning models suggest
that encounters could rise to 11,000-13,000 encounters per day, absent
policy changes and absent a viable mechanism for removing Cuban,
Haitian, Nicaraguan, and Venezuelan (``CHNV'') nationals who do not
have a valid protection claim.\11\ Early data indicate that the
recently announced enforcement processes, as applied to Cuban, Haitian,
and Nicaraguan nationals,\12\ which couple new parole
[[Page 11706]]
processes with prompt returns of those who cross the SWB without
utilizing these processes, are deterring irregular migration from those
countries,\13\ thus yielding a decrease in encounter numbers. However,
there are a number of factors that could contribute to these gains
being erased after the lifting of the Title 42 public health Order,
including the presence of several large diaspora populations in Mexico
and elsewhere in the hemisphere, the unprecedented recent growth in
migration from countries of origin not previously typical, the already
large number of migrants in proximity to the SWB, and the general
uncertainty surrounding the expected impact of the termination of the
Title 42 public health Order on the movement of migrants. Thus, the
high end of the estimated encounter rate remains a possibility for
which the Departments need to prepare. In the absence of the policy
changes included in the proposed rule, most people processed for
expedited removal under Title 8 will likely establish credible fear and
remain in the United States for the foreseeable future despite the fact
that many of them will not ultimately be granted asylum,\14\ a scenario
that would likely incentivize an increasing number of migrants to the
United States and further increase the likelihood of sustained, high
encounter rates.
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\11\ DHS SWB Encounter Planning Model generated January 6, 2023.
The complexity of international migration limits the Department's
ability to precisely project border encounters under the best of
circumstances. The current period is characterized by greater than
usual uncertainty due to ongoing changes in the major migration
source countries (i.e., the shift from Mexico and Northern Central
America to new countries of origin, discussed further below), the
growing impact of climate change on migration, political instability
in several source countries, the evolving recovery from the COVID
pandemic, and uncertainty generated by border-related litigation,
among other factors.
The DHS Office of Immigration Statistics (OIS) leads an
interagency SWB Encounter Projections Working Group that generates
encounter projections every 2-4 weeks, using the best data and
modeling available. The enterprise encounter projection utilizes a
mixed method blended model that combines a longstanding subject
matter expert model produced by the CBP STAT Division with a
Bayesian structural time series statistical model produced by OIS.
The blended model is run through a standard statistical process
(Monte Carlo simulations) to generate 68 percent and 95 percent
confidence intervals for each of 33 separate demographic groupings.
In light of the greater-than-usual uncertainty at the current time,
the Department's planning models are designed to prepare the
Department for all reasonably likely eventualities, and thereby
focus on the upper bounds of the blended model's 68 and 95 percent
confidence intervals.
\12\ See Part III.E of this preamble.
\13\ Encounters of Cubans, Haitians, and Nicaraguans between
ports of entry at the southwest border declined from 928 on January
5 (the day of the announcement) to just 92 on January 22--a decline
of 92 percent. Encounters of other noncitizens began to rebound from
their typical seasonal drop, increasing by 40 percent during the
same period. OIS analysis of CBP UIP data downloaded January 23,
2023.
\14\ See infra Section III.C.
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Such a high rate of migration risks overwhelming the Departments'
ability to effectively process, detain, and remove, as appropriate, the
migrants encountered. This would put an enormous strain on already
strained resources; risk overcrowding in already crowded U.S. Border
Patrol (``USBP'') stations and border ports of entry in ways that pose
significant health and safety concerns; and create a situation in which
large numbers of migrants--only a small proportion of whom are likely
to be granted asylum--are subject to extreme exploitation by the
networks that support their movements north.
In response to this urgent and extreme situation, the Departments
are proposing a rule that would--
account for the lawful, safe, and orderly means for
noncitizens to enter the United States to seek asylum and other forms
of protection,
provide core protections for noncitizens who would be
threatened with persecution or torture in other countries, and
build upon ongoing efforts to share the responsibility of
providing asylum and other forms of protection to deserving migrants
with the United States' regional partners.
At the same time, the NPRM would address the reality of
unprecedented migratory flows, the systemic costs those flows impose on
the immigration system, and the ways in which a network of increasingly
sophisticated smuggling networks cruelly exploit the system for
financial gain. Specifically, this rule would establish a presumptive
condition on asylum eligibility for certain noncitizens who fail to
take advantage of the existing and expanded lawful pathways \15\ to
enter the United States, including the opportunity to schedule a time
and place to present at a port of entry and thus seek asylum or other
forms of protection in a lawful, safe, and orderly manner, or to seek
asylum or other protection in one of the countries through which they
travel on their way to the United States.
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\15\ The term ``lawful pathways,'' as used in this preamble,
refers to the range of pathways and processes by which migrants are
able to enter the United States or other countries in a lawful,
safe, and orderly manner and seek asylum and other forms of
protection.
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This effort draws, in part, on lessons learned from the successful
Uniting for Ukraine (``U4U'') \16\ and Venezuela parole processes,\17\
as well as the recently implemented processes for Cubans, Haitians, and
Nicaraguans,\18\ under which DHS coupled a mechanism for noncitizens
from these countries to seek entry into the United States in a lawful,
safe, and orderly manner, with the imposition of new consequences for
those who cross the border without authorization to do so--namely
returns to Mexico.\19\ Prior to the implementation of these processes,
the Government of Mexico had not been willing to accept the return of
such nationals; the Government of Mexico's decision to do so was
predicated, in primary part, on the implementation of these processes.
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\16\ See DHS, Uniting for Ukraine (Sept. 16, 2022), https://www.dhs.gov/ukraine (last visited Dec. 13, 2022); DHS,
Implementation of the Uniting for Ukraine Parole Process, 87 FR
25040 (Apr. 27, 2022).
\17\ See DHS, DHS Announces New Migration Enforcement Process
for Venezuelans (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans (last
visited Dec. 13, 2022); see also DHS, Implementation of a Parole
Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
\18\ These processes are further discussed in Part III.E of this
preamble.
\19\ While the Title 42 public health Order has been in place,
those returns have been made under Title 42. When the Title 42
public health Order is lifted, the affected noncitizens will instead
be subject to removal to Mexico under Title 8.
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Prior to the announcement of U4U, for example, thousands of
Ukrainian migrants, fleeing their country in the wake of Russia's
unprovoked war of aggression, arrived at ports of entry along the SWB
seeking entry into the United States. A large informal encampment
formed in Tijuana, Mexico, and Ukrainian encounters averaged just under
940 per day in the two weeks prior to the announcement of U4U.\20\
After U4U launched and Ukrainian citizens with approved applications
were provided the option to fly directly into the United States--
coupled with the return to Mexico pursuant to the Title 42 public
health Order of Ukrainians who sought to cross irregularly at the land
border--daily SWB encounters of Ukrainians dropped to an average of
just over 12 per day in the two weeks ending May 10, 2022.\21\
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\20\ OIS analysis of data pulled from CBP UIP on December 9,
2022.
\21\ Id.
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Similarly, within a week of the announcement of the Venezuela
parole process on October 12, 2022, the number of Venezuelans
encountered at the SWB fell drastically, from an average of over 1,100
a day from October 5-11 to under 200 per day from October 18-24, and
further declined to 67 per day as of the week ending November 29, 2022,
and 28 per day the week ending January 22.\22\ Similarly, the number of
Cuban, Haitian, and Nicaraguan nationals encountered dropped
significantly in the wake of the new processes being introduced, which
coupled a lawful, safe, and orderly way for such nationals to seek
parole in the United States with consequences (in the form of prompt
returns to Mexico) for those who nonetheless crossed the SWB without
authorization. Between the announcement of these processes on January
5, 2023, and January 21, the number of daily encounters between ports
of entry of Cuban, Haitian, and Nicaraguan nationals dropped from 928
to 92, a 92 percent decline.\23\
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\22\ USBP encountered an average of 225 Venezuelans per day in
November 2022 and 199 per day in December 2022. OIS analysis of data
pulled from CBP UIP on January 23, 2023. Data are limited to USBP
encounters to exclude those being paroled in through ports of entry.
\23\ OIS analysis of data pulled from CBP UIP on January 23,
2023.
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This NPRM, which draws on these successful processes, would
position the Departments to implement a temporary measure that would
discourage irregular migration \24\ by encouraging migrants to
[[Page 11707]]
use lawful, safe, and orderly pathways and allowing for swift returns
of migrants who bypass lawful pathways, even after the termination of
the Title 42 public health Order. It would respond to the expected
increase of migrants seeking to cross the SWB following the termination
of the Title 42 public health Order that would occur in the absence of
a policy shift, by encouraging reliance on lawful, safe, and orderly
pathways, thereby shifting the relevant incentives that otherwise
encourage migrants to make a dangerous journey to the border. It would
also be responsive to the requests of foreign partners that have lauded
the sharp reductions in irregular migration associated with the
aforementioned process for Venezuelans and have urged that the United
States continue and build on this kind of approach, which couples
processes for individuals to travel directly to the United States with
consequences at the land border for those who do not avail themselves
of these processes. The United States has, as noted above, already
extended this model to Cuba, Haiti, and Nicaragua. The Departments
assess that continuing to build on this approach is critical to our
ongoing engagements with regional partners, in particular the
Government of Mexico, regarding migration management in the region.
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\24\ In this NPRM, ``irregular migration'' refers to the
movement of people into another country without authorization.
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Consonant with these efforts, the United States already has taken
significant steps to expand safe and orderly options for migrants to
lawfully enter the United States. The United States has, for example,
increased and will continue to increase--
refugee processing in the Western Hemisphere;
country-specific and other available processes for
individuals seeking parole for urgent humanitarian reasons or other
reasons of significant public benefit; and
opportunities to lawfully enter the United States for the
purpose of seasonal employment.
In addition, once the Title 42 public health Order is terminated,
the United States will expand implementation of the CBP One application
(``CBP One app''), an innovative mechanism for noncitizens to schedule
a time to arrive at ports of entry at the SWB, to allow an increasing
number of migrants who may wish to claim asylum to request an available
time and location to present and be inspected and processed at certain
ports of entry, in accordance with operational limitations at each port
of entry.\25\ Use of this app protects migrants from having to wait in
long lines of unknown duration at the ports of entry, and enables the
ports of entry to manage the flows in a safe and efficient manner,
consistent with their footprint and operational capacity, which vary
substantially across the SWB. Once present in the United States, those
who enter through this mechanism would be able to make claims for
asylum and other forms of protection and would be exempted from this
proposed rule's rebuttable presumption on asylum eligibility. They
would be vetted and screened, and assuming no public safety or national
security concerns, would be eligible to apply for employment
authorization after crossing the border as they await resolution of
their cases.\26\
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\25\ As of January 12, 2023, this mechanism is currently
available for noncitizens seeking to cross SWB land ports of entry
to request a humanitarian exception from the Title 42 public health
Order. See CBP, Fact Sheet: Using CBP OneTM to Schedule
an Appointment (last modified Jan. 12, 2023), https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english (last visited Jan.
13, 2023). Once the Title 42 public health Order is terminated, and
the ports of entry open to all migrants who wish to seek entry into
the United States, this mechanism will be broadly available to
migrants in central and northern Mexico, allowing them to request an
available time and location to present and be inspected and
processed at certain ports of entry.
\26\ Under current employment authorization regulations, there
is no waiting period before a noncitizen parolee in this
circumstance may apply for employment authorization. See 8 CFR
274a.12(c)(11).
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These and other available pathways increase the accessibility of
humanitarian protection and other immigration benefits in ways that
provide a lawful, safe, and orderly mechanism for migrants to make
their protection claims. Consistent with U4U and the CHNV processes,
this proposed rule would also position the Departments to impose
consequences on certain noncitizens who fail to avail themselves of the
range of lawful, safe, and orderly means for seeking protection in the
United States or elsewhere. Specifically, this proposed rule would
establish a rebuttable presumption that certain noncitizens who enter
the United States without documents sufficient for lawful admission are
ineligible for asylum, if they traveled through a country other than
their country of citizenship, nationality, or, if stateless, last
habitual residence, unless they were provided appropriate authorization
to travel to the United States to seek parole pursuant to a DHS-
approved parole process; presented at a port of entry at a pre-
scheduled time or demonstrate that the mechanism for scheduling was not
possible to access or use; or sought asylum or other protection in a
country through which they traveled and received a final decision
denying that application. This presumption could be rebutted, and would
necessarily be rebutted if, at the time of entry, the noncitizen or a
member of the noncitizen's family had an acute medical emergency; faced
an imminent and extreme threat to life or safety, such as an imminent
threat of rape, kidnapping, torture, or murder; \27\ or satisfied the
definition of ``victim of a severe form of trafficking in persons''
provided in 8 CFR 214.11. The presumption also would be rebutted in
other exceptionally compelling circumstances, as the adjudicators may
determine in the sound exercise of the judgment permitted to them under
the proposed rule. Unaccompanied children would be excepted from this
presumption.
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\27\ The term ``imminent'' refers to the immediacy of the
threat; it makes clear that the threat cannot be speculative, based
on generalized concerns about safety, or based on a prior threat
that no longer poses an immediate threat. The term ``extreme''
refers to the seriousness of the threat; the threat needs to be
sufficiently grave, such as a threat of rape, kidnapping, torture,
or murder, to trigger this ground for rebuttal.
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The rebuttable presumption would be a ``condition[ ]'' on asylum
eligibility, INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C),
(d)(5)(B), that would apply in affirmative and defensive asylum
application merits adjudications, as well as during credible fear
screenings. Individuals subject to the rebuttable presumption would
remain eligible for statutory withholding of removal and protection
under the regulations implementing U.S. obligations under Article 3 of
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'').\28\
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\28\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
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With the availability to schedule a time and place to arrive at
U.S. ports of entry and other lawful pathways, this proposed system is
designed to protect against an unmanageable flow of migrants arriving
at the SWB; ensure that those with valid asylum claims have an
opportunity to have their claims heard, whether in the United States or
elsewhere; enable the Departments to continue administering the
immigration laws fairly and effectively; and reduce the role of
exploitative transnational criminal organizations and smugglers.
The Departments propose that the rule would apply to noncitizens
who enter the United States without authorization at the southwest land
border on or after the date of termination of the Title 42 public
health Order and before a specified sunset date, 24 months from the
rule's effective
[[Page 11708]]
date. After the sunset date, the rule would continue to apply to such
noncitizens during their Title 8 proceedings. The Departments intend
that the rule would be subject to a review prior to its scheduled
termination date, to determine whether the rebuttable presumption
should be extended, modified, or sunset as provided in the rule.
Issuance of this rule is justified in light of the migration
patterns witnessed in late November and December of 2022, and the
concern about the possibility of a surge in irregular migration upon,
or in anticipation of, the eventual lifting of the Title 42 public
health Order. The Departments seek to obtain public comment on the
proposal and to avoid any misimpression that migrants will be able to
cross the border without authorization, and without consequence, upon
the eventual lifting of the Order. Under this proposed rule the
Departments would use their Title 8 authorities to process, detain, and
remove, as appropriate, those who cross the SWB without authorization
and do not have a valid protection claim.
The Departments are issuing this proposed role with a 30-day
comment period because they seek to be in a position to finalize the
proposed rule, as appropriate, before the Title 42 public health Order
is lifted. The lifting of the Order could occur as a result of several
different litigation and policy developments, including the vacatur of
the preliminary injunction entered in Louisiana v. CDC, No. 22-cv-885,
2022 WL 1604901 (W.D. La. May 20, 2022), appeal pending, No. 22-30303
(5th Cir.); the lifting of the stay entered by the Supreme Court in
Arizona v. Mayorkas, No. 22A544, 2022 WL 17957850 (U.S. Dec. 27, 2022);
or ``the expiration of the Secretary of HHS' declaration that COVID-19
constitutes a public health emergency,'' 86 FR at 42829. The
termination of the Secretary of HHS' declaration that COVID-19
constitutes a public health emergency is expected to occur on May 11,
2023 in light of the recent announcement that ``[a]t present, the
Administration's plan is to extend'' the public health emergency to May
11 and then end it on that date, Office of Mgmt. & Budget, Exec. Office
of the President, Statement of Administration Policy (Jan. 30, 2023),
available at https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf. The Departments are thus seeking to move as
expeditiously as possible, while also allowing sufficient time for
public comment. For similar reasons, the Departments may conclude that
it is necessary to shorten or forgo the standard 30-day delay in the
final rule's effective date. In addition, if, prior to the issuance of
the final rule, the Title 42 public health Order is lifted or encounter
rates rise significantly (even without the lifting of the Title 42
public health Order), the Departments intend to take appropriate
action, consistent with the Administrative Procedure Act (``APA''),
which may include issuance of a temporary or interim final rule similar
to this NPRM while the Departments complete the notice-and-comment
rulemaking process.
The Departments are requesting comments on all aspects of the NPRM
and particularly welcome comments addressing the following issues:
Whether the proposed duration of the rule should be
modified, including whether it should be shorter, longer, or of
indefinite duration;
Whether the Departments should modify, eliminate, or add
to the proposed grounds for necessarily rebutting the rebuttable
presumption;
Whether the Departments should modify, eliminate, or add
to the proposed exceptions to the rebuttable presumption;
Whether the proposed mechanisms for evaluating asylum,
statutory withholding, and CAT claims should be retained or modified;
Whether any further regulatory provisions should be added
or amended to address the application of the rebuttable presumption in
adjudications that take place after the rule's sunset date; and
Whether the proposed rule appropriately provides migrants
a meaningful and realistic opportunity to seek protection.
In addition, although the Departments have not identified any
persons or entities with justifiable reliance interests in the status
quo concerning eligibility for asylum--which is an entirely
discretionary benefit--the Departments welcome comments on the
existence of reliance interests and the best ways to address them.
III. Background
A. Migratory Trends
Political and economic instability, coupled with the lingering
adverse effects of the COVID-19 global pandemic, have fueled a
substantial increase in migration throughout the world. This global
increase is reflected in the trends on our border, where we have
experienced a sharp increase in encounters of non-Mexican nationals
over the past two years, and particularly in the final months of 2022.
Throughout the 1980s and into the first decade of the 2000s, encounters
along the SWB routinely numbered in excess of one million per year,
with USBP averaging 1.2 million encounters per year from Fiscal Year
(``FY'') 1983 through FY 2006.\29\ By the early 2010s, three decades of
investments in border security and strategy contributed to reduced
border flows, with USBP averaging fewer than 400,000 encounters per
year from 2011-2018.\30\ These gains were subsequently reversed,
however, as USBP SWB encounters more than doubled between 2017 and 2019
to reach a 12-year high.\31\ Following a steep drop in the first months
of the COVID-19 pandemic, encounters almost doubled again in 2021 as
compared to 2019, increased by an additional one-third between 2021 and
2022, and reached an all-time high of 2.2 million USBP SWB encounters
in FY 2022.\32\ Encounters in the first quarter of FY 2023 (October-
December 2022) exceeded the same period in FY 2022 by more than a
third, and non-Mexican encounters in this same period were up 61
percent over the previous year.\33\ (See Figure 1, below.)
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\29\ OIS analysis of historic USBP data. Encounter data prior to
2005 are only available for U.S. Border Patrol. All numbers in this
paragraph are likewise therefore limited to USBP encounters.
\30\ Id.
\31\ Id.
\32\ Id. As discussed in the following section, encounter data
from March 2020 through the current data somewhat overstate flows to
the border since repeat encounters have been markedly higher during
the period that Title 42 expulsions have been completed.
\33\ OIS Persist data through December 31, 2022.
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1. Changing Demographics
Shifts in migrants' demographics have accelerated the increase in
flows. Border encounters in the 1980s and 1990s consisted
overwhelmingly of single adults from Mexico, most of whom were
migrating for economic reasons.\34\ Beginning in the 2010s, a growing
share of migrants have been from Northern Central America (``NCA'')
\35\ and, since the late 2010s, from countries throughout the
Americas.\36\ As the
[[Page 11709]]
make-up of border crossers has expanded from Mexican single adults to
single adults and families from throughout the hemisphere (and beyond),
the number of encounters has increased; those encountered also have
been more likely to seek asylum and other forms of relief.\37\
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\34\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 96 to over 99 percent of
apprehensions of persons entering without inspection between 1980
and 2000. On Mexican migrants from this era's demographics and
economic motivations, see Jorge Durand et al., ``The New Era of
Mexican Migration to the United States,'' 86 The Journal of American
History, no. 2, 518 (1999) (addressing the demographics and economic
motivations of Mexican migrants from this era).
\35\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\36\ According to OIS Production data, Mexican nationals
continued to account for 89 percent of total SWB encounters in FY
2010, with Northern Central Americans accounting for 8 percent and
all other nationalities for 3 percent. Northern Central Americans'
share of total encounters increased to 21 percent by FY 2012 and
averaged 46 percent in FY 2014-FY 2019, the last full year before
the start of the COVID-19 pandemic. All other countries accounted
for an average of 5 percent of total SWB encounters in FY 2010-FY
2013, and for 10 percent of total encounters in FY 2014-FY 2019.
\37\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, 6 percent of Mexican nationals
made fear claims that were referred to USCIS for adjudication
compared to 57 percent of people from Northern Central America and
90 percent of all other nationalities. OIS analysis of Enforcement
Lifecycle data as of September 30, 2022.
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The application of Title 42 authorities at the land border also has
altered migratory patterns, in part by incentivizing individuals who
are expelled--without being issued a removal order, which, unlike a
Title 42 expulsion order, carries immigration consequences \38\--to try
to re-enter, often multiple times.\39\ For this reason, the growth in
encounters since 2021 is best assessed by comparing unique encounters--
defined as the number of individuals who are encountered in a given
year, instead of the total number of encounters, which can include a
single migrant who sought to enter multiple times and is counted as an
encounter each time--in recent months to those in the pre-pandemic
period of FY 2014-FY 2019.\40\
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\38\ For example, subject to certain exceptions, noncitizens
ordered removed pursuant to expedited removal (INA section
235(b)(1), 8 U.S.C. 1225(b)(1)) or section 240 (8 U.S.C. 1229a)
removal proceedings initiated at the time of arrival in the United
States are inadmissible for five years after the date of removal.
INA 212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i). Noncitizens
previously removed pursuant to expedited removal orders or section
240 removal orders who enter or attempt to re-enter the United
States without being admitted are also inadmissible pursuant to
section 212(a)(9)(C)(i)(II) of the INA, 8 U.S.C.
1182(a)(9)(C)(i)(II). Such noncitizens may be subject to
reinstatement of such a prior order of removal upon subsequent
illegal re-entry. INA 241(a)(5), 8 U.S.C. 1231(a)(5).
\39\ According to OIS analysis of OIS Persist Data through June
30, 2022, a total of 39 percent of noncitizens expelled under the
Title 42 authority between March 2020 and May 2022 were re-
encountered within one month, compared to 5 percent of those
repatriated after issuance of a removal order issued pursuant to
Title 8 authorities; and 12-month re-encounter rates were 47 percent
for Title 42 expulsions compared to 14 percent for Title 8
repatriations. Persons expelled under the Title 42 authority were
more likely to be re-encountered than those repatriated after
issuance of a removal order issued pursuant to Title 8 authorities,
regardless of citizenship or family status.
\40\ The period FY 2014-FY 2019 is chosen as the comparison
period because these were the first years in which non-Mexicans
consistently accounted for a large and growing share of SWB
encounters. The period since FY 2021 focuses on unique encounters,
defined as persons not previously encountered in the 12 months prior
to the referenced encounter date, because Title 42 has contributed
to much higher repeat encounter rates, as 28 percent of SWB
encounters since April 2020 have been repeat encounters, where
repeat encounters are defined as encounters of individuals
previously encountered in the preceding 12 months, compared to 15
percent of SWB encounters in FY 2013 through February 2020. OIS
Persist Dataset based on data through December 31, 2022. (Detailed
data on repeat versus unique encounters are not available before FY
2013.)
---------------------------------------------------------------------------
The number of unique encounters increased sharply in FY 2021 to
1,126,888 (and 1,734,683 total encounters) from an average of 471,216
unique encounters (and 581,045 total encounters) per year in FY 2014-FY
2019.\41\ Notably, both the number and percentage of unique encounters
from countries other than Mexico and NCA contributed to a big share of
this increase, rising sharply in FY 2021 to 322,123 (representing 29
percent of unique encounters), from an average of 40,549 per year (8
percent of unique encounters) in FY 2014-FY 2019.\42\ This trend
continued in FY 2022, with unique encounters reaching 1,741,506
(2,378,945 total encounters). This increase was largely driven by
nationals of countries other than Mexico and NCA, accounting for
972,191 unique encounters (1,028,987 total encounters) in FY 2022 (56
percent of unique encounters; 43 percent of total encounters) and
424,530 unique encounters (442,932 total encounters) in the first three
months of FY 2023 (71 percent of unique encounters; 62 percent of total
encounters).\43\ Migrant populations from these newer source countries
have included large numbers of families and children.\44\
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\41\ OIS Persist Dataset based on data through December 31,
2022.
\42\ Id.
\43\ Id.
\44\ A total of 65 percent of unique NCA encounters and 40
percent of all other unique non-Mexican encounters were
unaccompanied children or family unit individuals in FY 2021-FY
2023Q1, compared to 13 percent of unique Mexican encounters. OIS
Persist Dataset based on data through December 31, 2022.
---------------------------------------------------------------------------
Much of this shift is driven by a significant increase in unique
encounters of CHNV nationals, which jumped more than ten-fold from an
average of 15,557 in FY 2014-FY 2019 to 169,436 in FY 2021, with total
CHNV encounters increasing from an average of 33,095 to 184,716.\45\
CHNV unique encounters increased sharply again in FY 2022 to 605,690
(626,410 total encounters), constituting 35 percent of all unique
encounters in FY 2022 and 26 percent of total encounters that year.\46\
Overall, unique encounters of CHNV nationals rose 257 percent between
FY 2021 and FY 2022 (with total CHNV encounters rising 239 percent),
unique encounters of Brazilians, Colombians, Ecuadorans, and Peruvians
increased 100 percent (with total encounters increasing 56 percent),
and unique encounters of Mexican and NCA nationals fell 4 percent (with
total encounters falling 0.5 percent).\47\ These trends continued in
the first 3 months of FY 2023, with CHNV countries accounting for 40
percent of unique encounters October-December 2022 and Brazilians,
Colombians, Ecuadorans, and Peruvians climbing to 19 percent.\48\ (See
Figure 2, below.)
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\45\ OIS Persist Dataset based on data through December 31,
2022.
\46\ Id.
\47\ Id. Of note, OIS utilizes a rigorous record matching
methodology to generate unique encounter data, and the program is
only run monthly upon receipt of CBP's official monthly encounter
data. (The official encounter data are also only produced monthly
after the real-time data go through extensive quality control.) OIS
has only extended its person-level record matching back to 2013. For
these reasons, unique encounter records are only available for
encounters occurring between 2013 and December 2022. Most references
in this preamble report on total encounter data, instead of unique
encounter data, since it allows analysis of more recent numbers as
well as longer historic comparisons. To the extent we are relying on
unique encounters, the text will explicitly say so.
\48\ Id.
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BILLING CODE 4410-30-P
Figure 1: SWB U.S. Border Patrol Encounters, FY 1960-FY 2022
[[Page 11710]]
[GRAPHIC] [TIFF OMITTED] TP23FE23.011
Note: Figure is limited to U.S. Border Patrol encounters because
Office of Field Operations data are unavailable prior to 2005.
Border Patrol encounters account for 87 percent of SWB encounters
since FY 2009.
Source: OIS analysis of CBP data and OIS Production data through
December 31, 2022.
Figure 2: Total SWB Encounters by Selected Citizenships, FY 2010-
December 2022
[GRAPHIC] [TIFF OMITTED] TP23FE23.012
Source: OIS Production data through December 31, 2022.
BILLING CODE 4410-30-C
2. Impact on Regional Partners
These migratory flows have affected every country throughout the
Western Hemisphere. In the first nine months of 2022 alone, the
Government of Colombia encountered over 170,000 Venezuelan migrants; as
of September 2022, there were nearly 2.5 million Venezuelans living in
Colombia, compared to 1.7 million in September 2021, representing an
increase of approximately 800,000 in just one year.\49\ From January
through October 2022, the Government of Panama encountered
approximately 210,000 irregular migrants having crossed through the
Dari[eacute]n Gap--a dangerous 100-kilometer stretch of dense jungle
between Colombia and Panama, which is particularly notorious for the
violence of the human smugglers operating in lawless stretches of
jungle \50\--with nearly 60,000 migrants crossing into Panama
irregularly via the Dari[eacute]n Gap in October 2022 alone, a sharp
increase compared to the almost 5,000 migrants encountered in January
2022.\51\ The
[[Page 11711]]
Costa Rican migration agency similarly reports that 3,700 migrants were
arriving every single day at Costa Rica's border with Panama in October
2022.\52\ Meanwhile, the number of displaced Nicaraguans in Costa Rica
doubled in an eight-month period, reaching more than 150,000 in
February 2022, before the same figure increased to approximately
200,000 by June 2022.\53\ Nicaraguans also claimed asylum in Mexico at
three times the rate in 2022 as compared to 2021 \54\ and, as discussed
above, are being encountered on our border at an unprecedented rate.
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\49\ R4V, Regional Refugee and Migrant Response Plan 2023-2024
(Nov. 30, 2022), https://www.r4v.info/en/rmrp2023-2024 (last visited
Dec. 15, 2022); R4V, Refugees and Migrants from Venezuela (Dec. 12,
2022), https://www.r4v.info/en/refugeeandmigrants (last visited Dec.
15, 2022).
\50\ Refugees International, Life on the Edge of the Darien Gap
(June 16, 2022) https://www.refugeesinternational.org/reports/2022/6/16/life-on-the-edge-of-the-darien-gap (last visited Dec. 15,
2022); United Nations Office on Drugs and Crime, Abused and
Neglected: A Gender Perspective on Aggravated Migrant Smuggling
Offences and Response, https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf (last visited Dec.
11, 2022).
\51\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf (last visited
Dec. 11, 2022).
\52\ Michael D. McDonald, The American Dream Is Over for
Venezuelans Stranded in Costa Rica, Bloomberg, Oct. 27, 2022,
https://www.bloomberg.com/news/articles/2022-10-27/american-dream-is-over-for-venezuelans-stranded-in-costa-rica (last visited Dec.
13, 2022).
\53\ Boris Cheshirkov, Number of Displaced Nicaraguans in Costa
Rica Doubles in Less than a Year, UNHCR, Mar. 25, 2022, https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html (last visited Dec. 13,
2022); UNHCR, Costa Rica Fact Sheet September 2022 (Oct. 30, 2022),
https://reliefweb.int/report/costa-rica/costa-rica-fact-sheet-september-2022 (last visited Dec. 13, 2022) (``As of June 30, 2022,
Costa Rica was hosting 215,933 people of concern: of these, 11,205
are refugees and 204,728 asylum seekers, the majority Nicaraguans
(89%).'').
\54\ See Government of Mexico, La COMAR en N[uacute]meros (Dec.
2022), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf (last visited Feb. 1, 2023).
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Mexico has similarly experienced a sharp increase in irregular
migration in recent months. In October 2022, the Government of Mexico
encountered more than 50,000 irregular migrants, almost doubling the
numbers encountered only a few months earlier.\55\ This increase was
driven largely by a dramatic rise in Venezuelan encounters, which rose
from about 1,200 in February 2022 to more than 20,000 in October
2022.\56\ In addition to Venezuela and the NCA countries, Mexico also
saw consistently high volumes from a wide range of countries in the
Western Hemisphere, including Brazil, Colombia, Cuba, Ecuador,
Nicaragua, and Peru.\57\ From January to October 2022, some 350,000
irregular migrants have been encountered in Mexico, which is already
more than it encountered in all of calendar year 2021.\58\
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\55\ Government of Mexico, Events of People in an Irregular
Migratory Situation in Mexico by Continent and Country of
Nationality, 2022 (Cuadro 3.1.1), http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/CuadrosBOLETIN?Anual=2022&Secc=3 (last visited Dec. 11, 2022).
\56\ Id.
\57\ Id.
\58\ Id.
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The increased flow of Venezuelans and Nicaraguans has posed a
particular concern for the region, as neither government accepts the
repatriation of their nationals at anywhere near the scale at which
they are currently migrating. Colombia is hosting more than 2 million
Venezuelans and has granted temporary protection to 1.5 million; Peru
is hosting 1.5 million Venezuelans, including over 500,000 asylum
seekers; Brazil and Chile are hosting 380,000 Haitians; and Costa Rica
is hosting more than 200,000 Nicaraguans and recently announced its
intention to grant Nicaraguans and Venezuelans temporary
protection.\59\
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\59\ UNHCR, Colombia Operational Update: January-February 2022
(Mar. 19, 2022), https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022 (last visited Dec. 4,
2022); The White House, Fact Sheet: The Los Angeles Declaration on
Migration and Protection U.S. Government and Foreign Partner
Deliverables (June 10, 2022) (``L.A. Declaration Fact Sheet''),
https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (last
visited Dec. 13, 2022); UNHCR, Peru, https://reporting.unhcr.org/peru (last visited Dec. 11, 2022); Migration Policy Institute,
Haitian Migration through the Americas: A Decade in the Making
(Sept. 30, 2021), https://www.migrationpolicy.org/article/haitian-migration-through-americas (last visited Dec. 13, 2022); Alvaro
Murillo et al., Costa Rica Prepares Plan to Regularize Status of
200,000 Mostly Nicaraguan Migrants, Reuters, Aug. 10, 2022, https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/ (last visited
Dec. 13, 2022).
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3. Venezuela Process
As described above, on October 12, 2022, in an effort to address
the significant increase in Venezuelan migrants, the United States and
Mexico jointly announced a new process that was modeled on the
successful U4U process, seeking to incentivize Venezuelans to use a new
lawful process to come to the United States and disincentivize them
from traveling to the U.S.-Mexico land border. Specifically, the
Venezuela process allows eligible Venezuelan nationals, and their
family members, to request an advance authorization to travel to the
United States, which, if issued, allows them to travel to the United
States to be considered for a case-by-case determination of parole by
U.S. Customs and Border Protection (``CBP'') officers. The initiation
of this process was paired with a decision by the Mexican Government to
accept the return (under the Title 42 public health Order currently in
place) of Venezuelans who sought to cross the U.S.-Mexico border
irregularly. The United States Government is currently in close
consultation with the Government of Mexico, as well as other foreign
partners, to accept the return of third-country nationals under Title 8
authorities, including Venezuelan nationals, subsequent to the lifting
of the Title 42 public health Order.
The Venezuela process has had a profound impact on the movement of
Venezuelan migrants throughout the region. In the week leading up to
the October 12, 2022, announcement, the United States was encountering
approximately 1,100 Venezuelans between ports of entry at its SWB every
day; numbers fell sharply within weeks and averaged 67 Venezuelans per
day the week ending November 29, 2022, and 28 per day the week ending
January 22, 2023.\60\ Panama's daily encounters of Venezuelans also
declined significantly in the wake of the parole process, falling some
88 percent, from 4,339 on October 16, 2022, to 532 by the end of that
month. In October 2022, there were a total of 59,773 migrants who
irregularly entered Panama; as a result of the sharp decline in
Venezuelan migration, Panama encountered 16,632 migrants in
November.\61\
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\60\ OIS analysis of data pulled from CBP UIP on January 23,
2023.
\61\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf (last visited
Dec. 11, 2022).
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The success of the Venezuela process provided a model for the
subsequently announced Cuban, Haitian, and Nicaragua processes and
supports this proposed rule. These processes demonstrate that the
availability of processes to enter the United States in an orderly
manner, coupled with consequences imposed on those who bypass lawful
pathways, can significantly change migratory patterns in ways that
protect migrants from a dangerous journey, reduce the role of
pernicious smuggling networks, and respond to the urgency of the
moment, given the current and anticipated flows and capacity
limitations at the SWB.
4. Processes for Cubans, Haitians, and Nicaraguans
On January 5, 2023, as part of the United States' continued efforts
to decrease migration flows at the SWB and building upon the successes
of the Venezuela process, DHS announced similar border enforcement
measures to address the significant increase in encounters of Cuban,
Haitian, and Nicaraguan nationals attempting to enter the United States
without
[[Page 11712]]
authorization.\62\ Further, DHS lifted the initial cap of 24,000 on the
number of parolees eligible for the previously implemented Venezuela
process and replaced it with a monthly cap of 30,000 travel
authorizations spread across the four separate parole processes.\63\
Although it has only recently been implemented, initial results
indicate that the parole processes for Cuban, Haitian, and Nicaraguan
nationals--which coupled the implementation of new pathways for
nationals from these countries to enter the United States with the
prompt return to Mexico of those who arrived at the SWB without advance
authorization--have had a similar effect as the Venezuela process in
disincentivizing migrants from these countries from making the
dangerous irregular journey to United States. In the first weeks after
the announcement, encounters of Cubans, Haitians, and Nicaraguans
(``CHNs'') between ports of entry on the SWB declined from 928 on the
day of the announcement (January 5, 2023) to just 92 on January 22--a
decline of 92 percent. The decline in encounters of nationals of these
countries occurred even as encounters of other noncitizens began to
rebound from their typical seasonal drop.\64\
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\62\ See, DHS, DHS Continues to Prepare for End of Title 42;
Announces New Border Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and (last visited Jan. 30, 2023).
\63\ See 88 FR 1279, 1280 (Jan. 9, 2023).
\64\ OIS analysis of CBP UIP data downloaded January 23, 2023.
SWB encounters typically fall in the weeks between Christmas and
mid-January, a pattern also observed in the 2022-2023 cycle. Total
SWB encounters between ports of entry averaged 7,728 per day for
December 1-24, 2022, and then dropped to an average of almost 4,900
per day between December 25, 2022 and January 1, 2023, including a
low of 2,750 on the first. Similarly, encounters of Cubans,
Haitians, and Nicaraguans between ports of entry averaged 2,828 per
day December 1-24 and dropped to an average of just over 1,300 per
day December 25-January 1, including a low of 467 on January 1. Yet
while encounters of all groups rebounded after New Year's, CHN and
non-CHN nationals have diverged since the announcement of the new
processes, with encounters of non-CHN nationals increasing 67
percent January 1-22 and encounters of CHN nationals falling back
below their New Year's day level. Id.
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5. Border Encounters Remain High, and Are Likely To Increase Further
Absent Additional Policy Changes
Despite the sharp decrease in Venezuelan migration encountered at
the U.S. border in the wake of implementation of the Venezuela process,
the baseline number of total SWB encounters remained high throughout
the end of 2022--and significantly higher than the historical average
of less than 1,600 encounters per day from 2014-2019.\65\ For the 30
days ending December 24, 2022, total daily encounters along the SWB
consistently fluctuated between approximately 7,100 and 9,700,
averaging approximately 8,500 per day, with encounters exceeding 9,000
per day on twelve different occasions during this 30-day period.\66\
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\65\ OIS Persist Dataset based on data through December 2022.
\66\ OIS analysis of data pulled from CBP UIP on January 4,
2023.
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The number of migrants crossing the Dari[eacute]n Gap and heading
north also remained high by historical standards, even after the number
of Venezuelan migrants began to decline.\67\ Almost 110,000 migrants
traveled through the Dari[eacute]n Gap between 2010 and 2019.\68\ The
majority of these encounters occurred in 2015, 2016, and 2019, which
saw 29,289, 30,055, and 22,102 encounters per year, respectively; \69\
encounters were fewer than 10,000 all other years.\70\ This is compared
to over 16,000 in the month of November alone in 2022.\71\ As of the
end of November 2022, approximately 4,000 migrants crossed the
Dari[eacute]n Gap per week on average from a wide range of countries,
including most prominently Ecuador and Haiti,\72\ and NGOs operating in
Mexico reported that there were at least 125,000 migrants moving
northward through Mexico that month as well, many of whom may seek to
make their way to the SWB.\73\
---------------------------------------------------------------------------
\67\ Government of Panama, Baja Ingreso de Migrantes Irregulares
a Panam[aacute] (Oct. 28, 2022), https://www.migracion.gob.pa/inicio/noticias/878-baja-ingreso-de-migrantes-irregulares-a-panama
(last visited Dec. 13, 2022).
\68\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]--Colombia 2010-2019, https://www.migracion.gob.pa/images/img2021/pdf/IRREGULARES%202010-2019%20actualizado.pdf (last visited Dec. 8, 2022).
\69\ Id.
\70\ Id.
\71\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf (last visited
Dec. 11, 2022).
\72\ Id.
\73\ La Prensa Latina Bilingual Media, NGOs Estimate 125K
Migrants Moving North Through Southern Mexico (Nov. 7, 2022),
https://www.laprensalatina.com/ngos-estimate-125k-migrants-moving-north-through-southern-mexico/ (last visited Dec. 13, 2022).
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Meanwhile, the refusal of certain countries to accept the removal
of their own nationals poses particular challenges. There was a
significant increase in the number of encounters of Cuban and
Nicaraguan nationals at the SWB in the fall of 2022--in part driven by
the fact that, generally, neither country accepts removals of their
nationals at the rate the United States seeks to remove them. Nationals
from these two countries accounted for over 83,000 SWB encounters in
the 30 days ending December 24, 2022--an average of approximately 2,770
a day, as compared to an average of approximately 1,570 a day in the 30
days preceding the April 1, 2022, CDC termination order.\74\ Cubans and
Nicaraguans together accounted for just over 32 percent of total
encounters during the more recent time period.\75\ These challenges
prompted the January 5, 2023, adoption of new parole processes for
Cuban, Haitian, and Nicaraguan nationals that combine the
implementation of lawful, safe, and orderly pathways for nationals from
those countries to seek to come to the United States, coupled with the
prompt return of those who fail to use these lawful processes. This was
made possible by the Government of Mexico's independent decision to
start accepting returns of nationals of these countries--a decision
that was in part contingent on the implementation of these new lawful
processes for migrants from these countries to enter the United States
without making the dangerous journey to the SWB. Within the first weeks
of implementation, the numbers of Cuban, Haitian, and Nicaraguan
nationals encountered at the SWB without authorization decreased
significantly, and while these processes are in place, DHS anticipates
that encounters of Cuban, Haitian, and Nicaraguan nationals will remain
low, as compared to the numbers encountered at the end of 2022, akin to
the results that were observed following the implementation of the
Venezuela process. However, DHS anticipates that flows from all four
countries would increase--perhaps significantly--in the absence of (1)
a policy change to allow for swift removal of inadmissible noncitizens;
and (2) the Government of Mexico's continued willingness to accept the
returns of CHNV nationals, once the Title 42 public health Order is
lifted.
---------------------------------------------------------------------------
\74\ OIS Persist Dataset based on data through October 2022, and
OIS analysis of data pulled from CBP UIP on January 4, 2023.
\75\ OIS analysis of data pulled from CBP UIP on January 4,
2023.
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Specifically, the DHS Office of Immigration Statistics planning
model assumes that, without a meaningful policy change, border
encounters could rise, and potentially rise dramatically--up to as high
as 13,000 a day--subsequent to the lifting of the Title 42 public
health Order.\76\ As described below, DHS does not currently have the
[[Page 11713]]
infrastructure, personnel, or funding to sustain the processing of
migratory flows of this magnitude in a safe and orderly manner over
time.
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\76\ DHS SWB Encounter Planning Model generated January 6, 2023.
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6. The Importance of Quickly Returning Migrants Without a Legal Basis
To Stay
DHS data shows that the ability to quickly remove individuals who
do not have a legal basis to remain in the United States can reduce
migratory flows--whereas, conversely, the inability or failure to do so
risks yielding increased flows. CBP, for example, saw rapidly
increasing numbers of encounters of Guatemalan and Honduran nationals
from January 2021 until August 2021, when these countries began
accepting the direct return of their nationals via Title 42. In January
2021, CBP encountered an average of 424 Guatemalan nationals and 362
Honduran nationals a day. By August 4, 2021, the 30-day average daily
encounter rates had climbed to 1,249 Guatemalan nationals and 1,502
Honduran nationals--an increase of 195 percent and 315 percent,
respectively. In the 60 days immediately following the resumption of
return flights, average daily encounters fell by 38 percent for
Guatemala and 42 percent for Honduras, as shown in Figure 3 below.\77\
Since then, encounters for both countries have fluctuated but remain
well below the pre-August 4, 2021, numbers; in November 2022,
encounters averaged 481 per day for Guatemala and 433 per day for
Honduras.\78\
---------------------------------------------------------------------------
\77\ OIS analysis of OIS Persist Dataset based on data through
August 31, 2022.
\78\ OIS Persist Dataset based on data through November 2022.
---------------------------------------------------------------------------
Figure 3: Daily Encounters of Guatemalan and Honduran Nationals, May 1-
November 1, 2021
[GRAPHIC] [TIFF OMITTED] TP23FE23.013
Note: Figure depicts 30-day average of daily encounters.
Source: OIS Persist Data as of September 30, 2022.
Returns have proven to be effective, but the Departments do not
believe that they are sufficient. For instance, while the numbers of
encounters of Guatemalan and Honduran nationals have fallen, in the 30
days ending December 24, 2022, CBP encountered an average of around 970
nationals from these two countries each day.\79\ The provision of
lawful processes for individuals who intend to migrate is also a
critical component to reducing migratory flows, particularly when
paired with a consequence for bypassing such lawful pathways--a model
that has been proven to work by U4U and the Venezuela process in recent
months, as detailed above.
---------------------------------------------------------------------------
\79\ OIS analysis of data pulled from CBP UIP on January 3,
2023.
---------------------------------------------------------------------------
7. The Pernicious Role of Smuggling Networks
As described above, migratory movements to the SWB are in many
cases facilitated by, and actively encouraged by, human smuggling
organizations that exploit migrants for profit. These smuggling
networks have become more and more sophisticated over time,
increasingly using social media to deceive migrants and lure them into
initiating a dangerous journey during which they may be robbed and
otherwise harmed, often with false promises about what will happen to
them when they reach the United States.\80\ Migrants often pay large
sums to be brought through jungles, mountains, and rivers, frequently
with small children in tow.
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\80\ Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (last visited Dec. 6,
2022).
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The Dari[eacute]n Gap is particularly notorious for the violence of
the human smugglers operating in lawless stretches of the jungle.\81\
As of October 2022, over 210,000 migrants have travelled to the SWB
from South America through the Dari[eacute]n Gap in 2022 alone.\82\ The
International Organization for Migration (``IOM'') reports that as of
October 2022, 30 individuals had died crossing the Dari[eacute]n Gap in
2022, including nine
[[Page 11714]]
children.\83\ Women and children are particularly vulnerable to attack
and injury; children are also at risk for diarrhea, respiratory
diseases, dehydration, and other ailments that require immediate
attention. The Panamanian Red Cross reports that 10 to 15 percent of
migrants are sexually assaulted crossing the Dari[eacute]n Gap.\84\
Upon reaching the border area, noncitizens seeking to cross into the
United States usually pay transnational criminal organizations--
including, increasingly, the Mexican drug cartels--to coordinate and
guide them along the final miles of their journey.\85\ This cartel-
controlled movement of people across the border is a billion-dollar
criminal enterprise, in which the migrants pay thousands of dollars to
be smuggled in inhumane conditions.\86\
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\81\ United Nations Office on Drugs and Crime, Abused and
Neglected: A Gender Perspective on Aggravated Migrant Smuggling
Offences and Response, https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf (last visited Dec.
11, 2022).
\82\ Government of Panama, Irregular Migrants Transiting through
Dari[eacute]n by Country, https://www.datosabiertos.gob.pa/dataset/ebb56d40-112f-455e-9418-ccd73560021d/resource/3fae4878-5068-4b80-b250-ee9e52b16510/download/irregulares-en-transito-por-Dari[eacute]n-por-pais-octubre-2022.pdf (last visited Dec. 11,
2022).
\83\ Catalina Oquendo, El Dari[eacute]n, la Trampa Mortal para
los Migrantes Venezolanos, El Pa[iacute]s, Oct. 11, 2022, https://elpais.com/america-colombia/2022-10-11/el-darien-la-trampa-mortal-para-los-migrantes-venezolanos.html (last visited Dec. 13, 2022).
\84\ Voz de Am[eacute]rica, Los 10 Peligros de Cruzar el
Dari[eacute]n, el ``Infierno Verde'' de las Am[eacute]ricas (Aug.
19, 2022), https://www.vozdeamerica.com/a/los-10-peligros-de-cruzar-el-darien-el-infierno-verde-de-las-americas/6705004.html (last
visited Dec. 13, 2022).
\85\ Interpol, People Smuggling, https://www.interpol.int/en/Crimes/People-smuggling (last visited Dec. 11, 2022).
\86\ Jos[eacute] de C[oacute]rdoba et al., Smuggling Migrants to
the U.S. is Big Business, The Wall Street Journal, July 1, 2022,
https://www.wsj.com/articles/smuggling-migrants-to-the-u-s-is-big-business-11656680400 (last visited Dec. 13, 2022).
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Tragically, a significant number of individuals lose their lives
along the way. In FY 2022, more than 890 migrants died attempting to
enter the United States between ports of entry across the SWB, an
estimated 58 percent increase from FY 2021 (565 deaths) and a 252
percent increase from FY 2020 (254 deaths). First responders in Eagle
Pass, Texas, estimate that about 30 bodies have been taken out of the
Rio Grande River each month since March 2022. The number of migrants
rescued by CBP has almost quadrupled over the past two years--from
approximately 5,330 in FY 2020, to approximately 12,900 in FY 2021, to
over 22,000 in FY 2022. CBP attributes these rising trends to the
historic increases in overall USBP encounters between ports of entry
over this time period, and the fact that these encounters are
increasingly taking place in remote and rugged locations where the
perils of trying to enter the United States are particularly acute.
Meanwhile, these numbers do not account for the countless incidents of
death, illness, assault, and exploitation that migrants experience well
before they arrive at our border during the perilous journey north.
This proposed rule seeks to mitigate the role of would-be smugglers
by incentivizing intending asylum seekers to utilize lawful, safe, and
orderly pathways for seeking protection in the United States or
elsewhere. For example, incentivizing migrants to schedule their
arrival at land ports of entry minimizes the role of smugglers who seek
to bring migrants through often dangerously hot and inhospitable
locations between ports of entry. Collectively, the incentives and
disincentives seek to minimize the irregular migratory flow to the
border, and thus minimize the role--and profit--of the pernicious
smuggling networks as a result.
B. Effects on Resources and Operations
The large numbers of migrants crossing the border has placed a
significant toll on the United States Government, as well as the States
and local communities where migrants are provisionally released. While
the United States Government has taken extraordinary steps to meet the
need, the current level of migratory movements and the anticipated
increase in the numbers of migrants following the lifting of the Title
42 public health Order threaten to exceed the capacity to maintain the
safe and humane processing of migrants who have crossed the border
without authorization to do so. By channeling noncitizens to lawful
pathways available away from the SWB, this proposed rule aims to
discourage migrants from making the journey to the border in the first
instance.
1. Capacity Constraints
The United States' border processing and immigration systems were
not built to manage the nature and scale of the current irregular
migration flows at the border and are operating under increasing
strain. To respond to the accelerated increase in encounters along the
SWB since January 2021, DHS has taken a series of extraordinary steps.
CBP obligated more than $669 million to build and operate 10 soft-sided
processing facilities along the SWB in FY 2022. Since 2021, DHS has
deployed more than 10,000 additional Federal personnel from across the
Department on temporary rotations to the SWB, to include CBP agents and
officers, law enforcement personnel from other DHS components, and the
DHS Volunteer Force. In addition, CBP has hired or contracted over
1,000 civilian USBP Processing Coordinators, who, among other roles,
supplement processing operations. Yet, even with this increase in
facilities and personnel, there are risks of overcrowding--challenges
that will be exacerbated as encounters increase.
In addition, the Federal Emergency Management Agency (``FEMA'') has
spent $260 million in FYs 2021 and 2022 on grants to non-governmental
and state and local entities through the Emergency Food and Shelter
Program--Humanitarian (``EFSP-H'') to assist with the reception and
onward travel of migrants arriving at the SWB.\87\ This spending is on
top of $1.4 billion in FY 2022 appropriations that were earmarked for
SWB contingency operations in response to the ongoing surge in
migration.\88\ Further, through FY 2023 appropriations, Congress made
available up to $785 million ``for the purposes of providing shelter
and other services to families and individuals encountered by the
Department of Homeland Security.'' \89\
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\87\ EFSP Humanitarian Relief Table, created by DHS (Aug. 5,
2022).
\88\ Memorandum for Interested Parties, from Alejandro N.
Mayorkas, Secretary of Homeland Security, Re: DHS Plan for Southwest
Border Security and Preparedness at 19 (Apr. 26, 2022), https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf (last visited Jan. 30, 2023).
\89\ See Public Law 117-328, div. F, tit. II, sec 211, 136 Stat.
4459, 4736 (2022).
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Despite these efforts, DHS operations are subject to significant
resource and capacity constraints. Of the nine SWB USBP sectors, four
were over capacity, at 100 to 128 percent, with three more at capacity
levels between 68 and 99 percent as of December 24, 2022, prior to the
implementation of the parole processes for Cubans, Haitians, and
Nicaraguans.\90\ The impact has been particularly acute in certain
border sectors. Increased flows are disproportionately occurring within
the remote Del Rio, El Paso, and Yuma sectors. In FY 2022, the Del Rio,
El Paso, and Yuma sectors encountered almost double (94 percent
increase) the number of migrants as compared to FY 2021 and an eleven-
fold increase over the average for FY 2014-FY 2019, primarily as a
result of increases from CHNV countries.\91\ As of December 24, 2022,
these three sectors were each operating at the limits of, or over,
their safe operating capacity, given space limitations, at 100 to 128
percent.\92\
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\90\ OIS analysis of data pulled from CBP UIP on December 24,
2022.
\91\ OIS Persist Dataset based on data through October 2022.
\92\ OIS analysis of data pulled from CBP UIP on December 24,
2022.
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The focused increase in encounters in those three sectors has been
particularly
[[Page 11715]]
challenging. The Yuma and Del Rio sectors are geographically remote,
and because of that--until the past two years--have never been a focal
point for large numbers of individuals entering without authorization
between ports of entry. As a result, these sectors have limited
infrastructure to process the elevated encounters that they are
experiencing in a safe and orderly manner. The El Paso sector has
relatively modern infrastructure for processing noncitizens encountered
at the border, but is far away from other CBP sectors, which makes it
challenging to move individuals elsewhere for processing during
surges--a key component of CBP's ability to effectively manage
migratory surges.
Meanwhile, many of the land ports of entry have limited space and
capacity to process an influx of migrants, including those who may seek
protection from removal, and are expected to quickly reach their safe
operating capacity limits given the increase in migrants they are
expected to encounter following the lifting of the Title 42 public
health Order. Absent a lawful, safe, and orderly means for managing the
flows, the ports of entry risk massive congestion: migrants would be
forced to wait in long lines for unknown periods of time while exposed
to the elements in order to be processed, in conditions that could also
put the migrants at risk. This is of great concern to the Government of
Mexico, because these lines would extend into Mexico and could
adversely impact legitimate travel and trade, or lead to individuals
camping out overnight or forming makeshift encampments on Mexican
territory.
The capacity constraints are felt by DOJ as well. As the number of
migrants arriving at the SWB has increased, so too have the number of
Notices to Appear filed in EOIR's immigration courts and the number of
pending cases.\93\ In FY 2022, EOIR hired 104 immigration judges for a
total of 634 and completed a record 312,486 cases. Yet the number of
cases pending before the immigration courts has risen to nearly 1.8
million, as the courts were unable to keep pace with the incoming
volume.
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\93\ See EOIR, Executive Office of Immigration Review
Adjudication Statistics: Pending Cases, New Cases, and Total
Completions (Oct. 13, 2022), https://www.justice.gov/eoir/page/file/1242166/download (last visited Feb. 1, 2023).
---------------------------------------------------------------------------
2. Decompression Efforts
In an effort to reduce overcrowding in sectors that are
experiencing surges, DHS deploys lateral transportation, using buses
and flights to move noncitizens to other sectors with capacity to
process. In October 2022, USBP sectors along the SWB operated a
combined 120 decompression buses containing almost 25,000 noncitizens
along 480 routes to neighboring sectors. The majority of these buses
are staffed by CBP personnel, which often requires pulling them off
other key missions. In October 2022, USBP sectors also operated 113
lateral decompression flights, redistributing approximately 14,500
noncitizens to other sectors with additional capacity.
These assets are finite. Already in FY 2022, U.S. Immigration and
Customs Enforcement (``ICE'') modified its ICE Air Operations' air
charter contract to increase the number of daily-use aircraft from 10
to 12 to meet the increasing air transportation demands, and CBP has
executed a new contract that will provide for flight hours equivalent
to approximately four to eight additional decompression flights per
day. And while DHS is actively working to obtain additional contracted
transportation support, such contract support takes time to put in
place, and is also costly and resource intensive.
As a result, use of DHS air resources to operate lateral flights
limits DHS's capacity to operate international repatriation flights to
receiving countries, leaving noncitizens who have been ordered removed
in custody for longer, which presents challenges in light of DHS's
limited detention space. This in turn reduces the numbers of
noncitizens who can be referred for detention each day and, as
appropriate, removed efficiently after receiving final orders of
removal, including pursuant to expedited removal (``ER''), at any given
point in time. Further increases would exacerbate the need for
decompression flights and further reduce the amount of resources
available to conduct removal flights, which in turn would further
decrease the number of noncitizens who can be referred to ICE detention
centers. This would occur at precisely the point in time at which an
increase in removal flights and faster movement of migrants into
expedited removal, out of detention, and onto removal flights, as
appropriate, is needed in order to disincentivize a further increase in
encounters, and to effectively, humanely, and efficiently remove those
who do not claim a fear of persecution or torture or are otherwise
found not to have a credible fear.
3. State, Local Government, and Non-Governmental Limits
Increased encounters of noncitizens at the SWB not only strain DHS
resources, but also place additional pressure on States, local
communities, and NGO partners both along the border and in the interior
of the United States. These are key partners, providing shelter and
other key social services to migrants and facilitating the onward
movement of those conditionally released from DHS custody. In FY 2021
and FY 2022, Congress made approximately $260 million available through
FEMA's EFSP-H in an order to help sustain these efforts.\94\ As noted
above, through FY 2023 appropriations, Congress made available up to
$785 million ``for the purposes of providing shelter and other services
to families and individuals encountered by the Department of Homeland
Security.'' \95\ However, State, local government, and NGO capacity to
provide these critical supports is limited, and may reach its outer
limit once the Title 42 public health Order is lifted in the absence of
additional policy changes.
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\94\ EFSP Humanitarian Relief Table, created by DHS (Aug. 5,
2022).
\95\ See Public Law 117-328, div. F, tit. II, sec 211, 136 Stat.
at 4736.
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C. Systemic Issues
The U.S. asylum system was designed decades ago--when migratory
flows were dramatically different than they are today--to serve the key
goals of efficiently and fairly providing protection to noncitizens who
are in the United States and are deserving of protection, while also
efficiently denying and ultimately removing those who do are not deemed
eligible for discretionary forms of protection and do not qualify for
the mandatory relief of statutory withholding of removal or protection
under the CAT. However, a systemic lack of resources and the changing
nature, scope, and demographics of the migratory flows that the United
States is encountering has made it difficult to achieve these key, twin
goals.
By statute, certain inadmissible noncitizens may be placed in ER
pursuant to section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). Those
who are in ER and who indicate an intent to apply for asylum or a fear
of persecution or torture in their country of removal are subject to
what are referred to as ``credible fear'' interviews, pursuant to which
an asylum officer assesses whether there is a ``significant possibility
. . . that the [noncitizen] could establish eligibility for asylum.''
INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v); see also 8 CFR
235.3(b)(4)(i), 1235.3(b)(4)(i). Those found not to have a credible
fear, including following immigration judge (``IJ'') review of a
negative determination when requested, are subject to removal
[[Page 11716]]
without the full removal proceedings provided for by section 240 of the
INA, 8 U.S.C. 1229a. Those who are found to have a credible fear are
generally placed in removal proceedings under section 240 during which
they can apply for asylum and other forms of relief and protection from
removal.\96\
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\96\ Under an interim final rule issued in March 2022, and
discussed below, some noncitizens found to have a credible fear are
referred to an asylum officer for further review of the noncitizen's
claims for asylum and other forms of protection, followed by IJ
review if the noncitizen's asylum claim is denied. See Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding
of Removal, and CAT Protection Claims by Asylum Officers, 87 FR
18078 (Mar. 29, 2022) (``Asylum Processing IFR'').
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There is, however, a significant disparity between the number of
noncitizens who are found to have a credible fear and the number of
noncitizens whom an IJ ultimately determines should not be removed at
the end of the section 240 process because, for example, the noncitizen
is found eligible for asylum or some other form of protection (such as
withholding of removal or CAT). A full 83 percent of the people who
were subject to ER and claimed fear from 2014 to 2019 were referred to
an IJ for section 240 proceedings, but only 15 percent of those cases
that were completed were granted asylum or some other form of
protection.\97\ Similarly, among cases referred and completed since
2013, significantly fewer than 20 percent of people found to have a
credible fear were ultimately granted asylum from EOIR.\98\ Ultimately,
the number of individuals who are referred to an IJ at the beginning of
the ER process greatly exceeds the number who are actually granted
asylum or some other form of relief or protection.
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\97\ OIS Enforcement Lifecycle data through September 30, 2022.
Referrals to an IJ include positive credible fear findings by U.S.
Citizenship and Immigration Services (``USCIS'') asylum officers,
negative fear findings that are vacated by an IJ, and USCIS case
closures that are placed in section 240 proceedings. Grants of
relief or protection include grants of asylum, statutory withholding
of removal, withholding or deferral of removal under the CAT
regulations, cancellation of removal, and adjustment of status under
various statutory provisions. While only 15 percent of all case
completions result in relief or protection, OIS estimates that 28
percent of cases decided on their merits are grants of relief. Cases
of relief decided on their merits include grants of asylum and other
grants of status under statutory provisions (i.e., excluding
withholding of removal, deferral of removal, cancellation of
removal, and claimed status reviews); and the percentage of cases
decided on their merits is calculated by dividing relief on merits
by the sum of relief on merits and removal orders on merits (i.e.,
excluding removal orders issued in absentia). All data on EOIR
outcomes for credible fear cases in this discussion are based on
case outcomes for all noncitizens encountered on the SWB in FY 2014-
FY 2019, with data reflecting final or most current outcomes as of
September 30, 2022. In general, relatively few Mexican nationals
claim credible fear when placed in expedited removal, so EOIR
outcomes cited here would be similar if the records were limited to
non-Mexican encounters.
\98\ See EOIR, EOIR Adjudication Statistics: Asylum Decision and
Filing Rates in Cases Originating with a Credible Fear Claim (Oct.
13, 2022), https://www.justice.gov/eoir/page/file/1062976/download
(last visited Jan. 27, 2023). The EOIR adjudication outcome
statistics report on the total number of cases originating with
credible fear claims resolved on any ground in a fiscal year,
without regard to whether an asylum claim was adjudicated. The
asylum grant rate is a percentage of that total number of cases.
---------------------------------------------------------------------------
Meanwhile, the process for those who establish a credible fear is
quite lengthy, with half of all cases taking more than four years to
complete, and in many cases much longer. Indeed, 39 percent of all SWB
credible fear referrals to EOIR from FY 2014 to FY 2019 remain in EOIR
proceedings today.\99\ As of FY 2022 year-end, more than a quarter (26
percent) of EOIR cases resulting from SWB encounters making credible
fear claims from as long ago as FY 2014 remained in proceedings, one-
third (33 percent) of EOIR cases resulting from FY 2016 encounters
remained in proceedings, and almost half (48 percent) of EOIR cases
resulting from FY 2019 encounters remained in proceedings.\100\
Excluding in absentia orders, the mean completion time for EOIR cases
completed in FY 2022 was 4.2 years.\101\
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\99\ OIS Enforcement Lifecycle data through September 30, 2022.
\100\ Id.
\101\ OIS analysis of DOJ EOIR data.
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As a result, a large number of cases linger in a variety of
incompletely resolved statuses for extended periods. For all SWB
encounters from FY 2014 to FY 2019 that claimed fear and were referred
to EOIR, only 9 percent had been granted relief by the end of FY 2022,
and only 11 percent had an executed removal order--leaving 80 percent
in some degree of limbo.\102\
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\102\ OIS Enforcement Lifecycle data through September 30, 2022.
Here and throughout this discussion, references to removal orders
and removal orders with or without confirmed removals include IJ
grants of voluntary departures with or without confirmed departures.
---------------------------------------------------------------------------
As a result, those who have a valid claim to asylum in the United
States often have to wait years for a final protection decision.
Conversely, noncitizens ultimately found ineligible for asylum or
another form of protection are likely to spend many years in the United
States prior to being ordered removed.
In addition, the proportion and the absolute numbers of people
claiming fear of persecution or torture in their home countries has
increased dramatically in recent years. Prior to 2011, the overall
share of total SWB encounters who were processed for expedited removal
and claimed fear never exceeded 2 percent.\103\ By 2013, with
increasing numbers of non-Mexican encounters, the rate had climbed to
15 percent of people placed in ER making fear claims that were referred
to USCIS asylum officers (36,025 referrals).\104\ By comparison, in
2019--prior to the implementation of the Title 42 public health Order--
further growth in non-Mexican encounters meant that 44 percent of
people placed in ER claimed fear, resulting in 98,266 credible fear
adjudications.\105\ Despite this dramatic increase in the number of
people claiming fear since 2013, the percent who are ultimately granted
asylum or other forms of protection has remained static or even fallen
over this period, with IJ asylum grant rates in FY 2013-FY 2017
consistently falling between 12 and 17 percent, down from 24-38 percent
in FY 2008-FY 2012.\106\
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\103\ OIS analysis of historic CBP and USCIS data.
\104\ OIS analysis of Enforcement Lifecycle data through
September 30, 2022.
\105\ Id.
\106\ OIS analysis of DOJ EOIR Review of Asylum Adjudication
Statistics as of October 2022.
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The fact that large numbers of migrants pass the credible fear
screening, only to be denied relief or protection on the merits after a
lengthy adjudicatory process, has high costs to the system in terms of
resources and time.
Meanwhile, the fact that migrants can wait in the United States for
years before being issued a final order denying relief, and that many
such individuals are never actually removed, likely incentivizes
migrants to make the journey north.
D. U.S. Efforts in Response
The United States has taken a number of measures in an attempt to
offer alternative pathways to address the root causes of migration,
improve the asylum system, and address the pernicious role of
smugglers. These are important improvements, yet alone are insufficient
in the near term to change the incentives of migrants, reduce the risks
associated with current levels of irregular migration and the
anticipated surge of migrants to the border, and protect migrants from
human smugglers that profit from their vulnerability, necessitating
this NPRM.
1. Asylum Processing IFR and Other Process Improvements
In March 2022, the Departments adopted an interim final rule
(``IFR'') to shorten the time frame for adjudicating
[[Page 11717]]
asylum claims.\107\ For noncitizens subject to that IFR, following a
positive credible fear determination, asylum officers conduct an
initial asylum merits interview instead of referring the case directly
for removal proceedings before an IJ under section 240 of the INA, 8
U.S.C. 1229a. This creates multiple efficiencies, including using the
information presented to the asylum officer in the credible fear
interview as the asylum application, which eliminates the need for
duplicative paperwork and processing time. If USCIS does not grant
asylum, the individual is referred to EOIR for streamlined section 240
removal proceedings. The entire process--from credible fear claim to a
final immigration court decision--is designed to take substantially
less time than the average four years it takes to adjudicate asylum
claims otherwise.
---------------------------------------------------------------------------
\107\ See Asylum Processing IFR, 87 FR 18078.
---------------------------------------------------------------------------
That rule, however, is being phased in gradually, and the
Departments do not yet have the capacity, and do not expect to have the
capacity in the near term, to process the large number of migrants
expected to cross the border through the system that rule establishes.
2. Process Improvements
The Departments are making a number of other process improvements
as well. DHS is digitalizing many of the processes that make up the
U.S. immigration system, thus enabling agencies to process migrants
more rapidly, securely store documentation, and share information to
inform real-time decision-making with significant time savings.
Meanwhile, USCIS also has made significant strides in protecting
against what would be even greater backlog growth by hiring new
officers and establishing an agency-wide focus on operational
efficiency. The Asylum Division has grown from 273 authorized asylum
officer positions in 2013 to 1,024 authorized asylum officer positions
in 2022. USCIS has also put in place a number of initiatives to
increase the efficiency of its processes, including the November 2022
launch of online filing for the Form I-589 for affirmative asylum
applicants, working with other DHS components to digitize the A-File
(the file containing immigration-related records relating to a
noncitizen), and conducting more than 34,211 video-assisted interviews.
EOIR has made similar strides in addressing its pending caseload,
through judicial and staff hiring, modernization of courtroom
technology, and the ongoing digitalization of court files.\108\
---------------------------------------------------------------------------
\108\ See, e.g., Executive Office for Immigration Review
Electronic Case Access and Filing, 86 FR 70708 (Dec. 13, 2021) (EOIR
final rule implementing electronic filing and records applications
for all cases before the immigration courts and the Board of
Immigration Appeals); EOIR Director's Memorandum 22-07, Internet-
Based Hearings (Aug. 12, 2022), https://www.justice.gov/eoir/page/file/1525691/download.
---------------------------------------------------------------------------
In addition, EOIR has created efficiencies by reducing barriers to
immigration court. In that regard, EOIR has expanded the Immigration
Court Helpdesk program to several additional courts, issued guidance on
using the Friend of the Court model to assist pro se respondents, and
reconstituted its pro bono liaison program at each immigration
court.\109\ The above measures promote efficiency as, where a
noncitizen is represented, the IJ does not have to engage in time-
consuming discussions at hearings to ascertain whether the noncitizen
is subject to removal and potentially eligible for any relief. In
addition, a noncitizen's counsel can assist the noncitizen in gathering
evidence, can prepare the noncitizen to testify, and can work with DHS
counsel to narrow the issues the IJ must decide.
---------------------------------------------------------------------------
\109\ See, e.g., EOIR Director's Memorandum 22-06, Friend of the
Court (May 5, 2022), https://www.justice.gov/eoir/page/file/1503696/download; EOIR Director's Memorandum 22-01, Encouraging and
Facilitating Pro Bono Legal Services (Nov. 5, 2021), https://www.justice.gov/eoir/book/file/1446651/download.
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While critically important, these process improvements are not, on
their own, sufficient to respond to the significant resource needs
associated with the increase in migrants anticipated following the
lifting of the Title 42 public health Order.
3. Taking on the Smugglers
In June of 2021, DOJ established a law enforcement task force,
Joint Task Force Alpha (``JTFA''), to marshal investigative and
prosecutorial resources in partnership with DHS to enhance U.S.
enforcement efforts against human smuggling and trafficking groups
operating in Mexico and the NCA countries of Guatemala, El Salvador,
and Honduras. Since then, the task force has made significant strides
in its efforts to disrupt and dismantle dangerous human smuggling
organizations.\110\ JTFA's impact and results include contributing to
165 domestic and international arrests, 69 convictions, 45 defendants
sentenced including significant jail time imposed for human smuggling-
related crimes; substantial asset forfeiture including hundreds of
thousands of dollars in cash, real property, vehicles, firearms, and
ammunition; dozens of defendants indicted under seal pending arrest;
and numerous pending extradition requests against foreign leadership
targets located in NCA and Mexico.\111\
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\110\ DOJ Office of Public Affairs, Attorney General Announces
Initiatives to Combat Human Smuggling and Trafficking and to Fight
Corruption in Central America (June 7, 2021), https://www.justice.gov/opa/pr/attorney-general-announces-initiatives-combat-human-smuggling-and-trafficking-and-fight (last visited Dec.
8, 2022).
\111\ DOJ, Office of Public Affairs (``OPA''), Eight Indicted in
Joint Task Force Alpha Investigation and Arrested as Part of
Takedown of Prolific Human Smuggling Network, Department of Justice
(Sept. 13, 2022), https://www.justice.gov/opa/pr/eight-indicted-joint-task-force-alpha-investigation-and-arrested-part-takedown-prolific-human (last visited Dec. 15, 2022); DOJ, OPA, Two
Guatemalan Nationals Plead Guilty to Human Smuggling Conspiracy
Resulting in 2021 Death of Migrant in Odessa, Texas, Department of
Justice (Sept. 30, 2022), https://www.justice.gov/opa/pr/two-guatemalan-nationals-plead-guilty-human-smuggling-conspiracy-resulting-2021-death-migrant (last visited Dec. 15, 2022); U.S.
Attorney for the District of Arizona, Human Smuggling Coordinators
Sentenced to 45 Months in Prison (Aug. 31, 2022), https://www.justice.gov/usao-az/pr/human-smuggling-coordinators-sentenced-45-months-prison (last visited Dec. 15, 2022); U.S. Attorney for the
Western District of Texas, Defendants Indicted in Tractor Trailer
Smuggling Incident That Resulted in 53 Deaths (July 20, 2022),
https://www.justice.gov/usao-wdtx/pr/defendants-indicted-tractor-trailer-smuggling-incident-resulted-53-deaths (last visited Dec. 15,
2022); DOJ, OPA, Readout of Latest Justice Department Leadership
Meeting on Joint Task Force Alpha's Anti-Human Smuggling and
Trafficking Efforts (June 13. 2022), https://www.justice.gov/opa/pr/readout-latest-justice-department-leadership-meeting-joint-task-force-alpha-s-anti-human (last visited Dec. 15, 2022); U.S. Attorney
for the District of Arizona, Three Individuals Arrested for
Conspiracy to Transport and Harbor 86 Illegal Aliens from Mexico,
Guatemala, and Honduras (July 6, 2022), https://www.justice.gov/usao-az/pr/three-individuals-arrested-conspiracy-transport-and-harbor-86-illegal-aliens-mexico (last visited Dec. 15, 2022); DOJ,
OPA, Eight Defendants Indicted for Human Smuggling and Drug
Conspiracy Offenses (May 10, 2022), https://www.justice.gov/opa/pr/eight-defendants-indicted-human-smuggling-and-drug-conspiracy-offenses (last visited Dec. 15, 2022); DOJ, OPA, DOJ-DHS-INL in
Mexico Host Foreign Law Enforcement Partners at Regional Human
Smuggling Roundtable Event (April 6, 2022), https://www.justice.gov/opa/pr/doj-dhs-inl-mexico-host-foreign-law-enforcement-partners-regional-human-smuggling-roundtable (last visited Dec. 15, 2022);
DOJ, OPA, Man Sentenced for Role in International Human Smuggling
Conspiracy (Sept. 28, 2021), https://www.justice.gov/opa/pr/man-sentenced-role-international-human-smuggling-conspiracy (last
visited Dec. 15, 2022); DOJ, OPA, Law Enforcement Cooperation
Between United States and Mexico Leads to Mexican Takedown of
Significant Human Smugglers (Mar. 10, 2022), https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-leads-mexican-takedown (last visited Dec. 15,
2022); U.S. Attorney for the Western District of Texas, Cuban
National Sentenced to Over 38 Years in Prison for Drug Trafficking
and Other Crimes after Using His Border Ranch as a Criminal Corridor
(Mar. 9, 2022), https://www.justice.gov/usao-wdtx/pr/cuban-national-sentenced-over-38-years-prison-drug-trafficking-and-other-crimes-after (last visited Dec. 15, 2022); U.S. Attorney for the District
of Arizona, Human Smuggling Coordinator Pleads Guilty (Feb. 3,
2022), https://www.justice.gov/usao-az/pr/human-smuggling-coordinator-pleads-guilty (last visited Dec. 15, 2022); U.S.
Attorney for the District of Arizona, Human Smugglers Plead Guilty
to Transporting and Harboring Over 100 Illegal Aliens (Nov. 18,
2021), https://www.justice.gov/usao-az/pr/human-smugglers-plead-guilty-transporting-and-harboring-over-100-illegal-aliens (last
visited Dec. 15, 2022); DOJ, OPA, Attorney General Merrick B.
Garland Delivers Remarks at the Meeting of the President's
Interagency Task Force to Monitor and Combat Trafficking in Persons
(Jan. 25, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-meeting-president-s-interagency-task (last visited Dec. 15, 2022); DOJ, OPA, Readout of
Justice Department Leadership Meeting on Human Smuggling and
Trafficking Networks (Nov. 5, 2021), https://www.justice.gov/opa/pr/readout-justice-department-leadership-meeting-human-smuggling-and-trafficking-networks (last visited Dec. 15, 2022).
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[[Page 11718]]
In April 2022, DHS launched an unprecedented ``Counter Human
Smuggler'' campaign designed to disrupt and dismantle human smuggling
networks, which included an increase in resources for JTFA and other
interagency law enforcement efforts. The Counter Human Smuggler
campaign focuses on disrupting key aspects of these criminal
operations, including financial assets, and ability to travel and
conduct commerce. DHS has committed over $60 million to the effort and
surged more than 1,300 personnel in Latin America and along the
SWB.\112\ Working closely with our foreign partners, DHS has achieved
unprecedented results. The results so far have included a 500 percent
increase in disruption activities in the first six months, including
over 5,000 arrests and 5,500 disruptions of smuggling infrastructure
(e.g., raiding smuggler stash houses, impounding tractor trailers that
are used to smuggle migrants, and confiscating smugglers' information
technology).\113\ Despite this monumental effort to counter human
smuggling, it alone will not decrease the daily number of encounters at
the SWB to a manageable level--these efforts must be combined with
other efforts, including an increase in available lawful pathways
throughout the region and consequences for migrants who bypass them.
---------------------------------------------------------------------------
\112\ DHS, FACT SHEET: Counter Human Smuggler Campaign Update
(Oct. 6, 2022), https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th
(last visited Dec. 13, 2022).
\113\ Id.
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E. Lawful Processes for Individuals To Access the United States
The United States Government has committed to enhancing legal
pathways and processes for migrants in the region to access protection
and opportunity in the United States. The United States has taken
meaningful steps to realize this commitment, including by announcing
significant increases to H-2 temporary worker visas and refugee
processing in the Western Hemisphere, and by introducing innovative
parole processes for nationals of certain countries in the region. By
expanding these pathways and processes, the United States has provided
migrants an alternative to paying smuggling organizations that profit
from taking migrants on a dangerous journey to the SWB, and has
provided incentives for migrants to seek an alternative and safer
pathway to the United States.
1. Process for Venezuelan Nationals
As described above, on October 12, 2022, the United States
Government announced a new process for Venezuelans that created a
strong incentive for Venezuelans to wait in safe places to access an
orderly process to come to the United States. The process is initiated
by a U.S.-based supporter, who agrees to provide financial support to a
Venezuelan beneficiary located outside the United States--including
those still in Venezuela--thus providing a mechanism for such
individuals to enter the United States without having to resort to a
dangerous trek north. In order to be eligible, Venezuelan beneficiaries
could not have entered the United States, Mexico, or Panama unlawfully
following the date of announcement of the process. If they pass the
requisite screening and vetting, they are provided advance
authorization to travel by air to the United States and, if authorized
to travel, are subject to a case-by-case parole determination once they
arrive. Beneficiaries of this process can apply for asylum and other
applicable immigration benefits and are eligible to immediately apply
for employment authorization through an electronic process created by
USCIS.\114\ The Venezuela process has dramatically impacted migratory
flows throughout the region, and as of January 22, 2023, more than
14,300 Venezuelans have come to the United States lawfully pursuant to
this process.\115\
---------------------------------------------------------------------------
\114\ DHS Announces New Migration Enforcement Process for
Venezuelans, supra.
\115\ OIS analysis of CBP data provided January 23, 2023.
---------------------------------------------------------------------------
By coupling the provision of a safe and orderly lawful process that
allows Venezuelan nationals and their immediate family members to come
to the United States for a period of up to two years and receive work
authorization with a consequence for those who enter unlawfully between
the ports of entry, the process has provided critical protections while
also yielding a reduction in migratory flows.\116\ DHS recently
announced changes to the process.\117\ Specifically, DHS:
---------------------------------------------------------------------------
\116\ See supra Part III.A.3 of this preamble.
\117\ See 88 FR 1279 (Jan. 9, 2023).
---------------------------------------------------------------------------
Lifted the limit of 24,000 total travel authorizations and
replaced it with a monthly limit of 30,000 travel authorizations spread
across this process and the separate and independent parole processes
for Cubans, Haitians, and Nicaraguans; and
Added an exception that will enable Venezuelans who cross
without authorization into the United States at the SWB and are
subsequently permitted a one-time option to voluntarily depart or
voluntarily withdraw their application for admission to maintain
eligibility to participate in the parole process.\118\
---------------------------------------------------------------------------
\118\ Id. at 1280.
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2. Processes for Nationals of Cuba, Haiti, and Nicaragua
As noted above, the United States Government recently initiated
similar processes for nationals of Cuba, Haiti, and Nicaragua.\119\
Like the process for Venezuelans, the processes for Cubans, Haitians,
and Nicaraguans allows U.S.-based supporters to apply on behalf of an
individual or family to be considered, on a case-by-case basis, for
advanced authorization to travel and a temporary period of parole for
up to two years for urgent humanitarian reasons or significant public
benefit.\120\ The parole is for an initial period of two years and
parolees may apply for work authorization immediately after entering
the country. Like the Venezuela process, implementation of the
processes for Cubans, Haitians, and Nicaraguans was and remains
contingent on the Government of Mexico's decision to accept the return
(under Title 42) or removal (under Title 8) of such migrants who enter
irregularly at the SWB.
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\119\ See 88 FR 1255 (Jan. 9, 2023).
\120\ Id. at 1256.
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3. Additional Processes for Haitian Nationals
The United States is working to increase number of Haitians granted
immigrant visas and parole in support of family reunification. The
Department of State has resumed adjudicating immigrant visas (``IVs'')
on December 12 and has committed to surge consular officers to
eliminate the IV case backlog in early 2023.
4. Additional Processes for Cuban Nationals
In September 2022, the United States Government announced the
resumption
[[Page 11719]]
of the Cuban Family Reunification Parole (``CFRP'') program, which
allows approved Cubans to enter the United States as parolees,\121\
thereby allowing USCIS to work through the backlog of over 12,500 CFRP
applications. This program has been paused since 2017, but over 125,000
Cubans were authorized to travel for the purpose of parole from 2004 to
2017. Beneficiaries must be currently living in Cuba and be petitioned
by a U.S. citizen or LPR family member who was invited to participate.
Potential beneficiaries cannot apply for themselves.\122\
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\121\ USCIS, USCIS Resumes Cuban Family Reunification Parole
Program Operations (Sept. 9, 2022), https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations (last visited Nov. 30, 2022).
\122\ USCIS, The Cuban Family Reunification Parole Program (last
updated Sept. 1, 2022) https://www.uscis.gov/humanitarian/humanitarian-parole/the-cuban-family-reunification-parole-program
(last visited Dec. 13, 2022).
---------------------------------------------------------------------------
By statute, Cuban parolees may apply for LPR status after a year of
residence in the United States. Cuban Adjustment Act, Public Law 89-
732, 80 Stat. 1161 (1966) (8 U.S.C. 1255 note). In addition, beginning
in early 2023, the U.S. Embassy in Havana will resume full immigrant
visa processing for the first time since 2017, which will increase the
pool of noncitizens eligible for CFRP.\123\
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\123\ Department of State, Los Angeles Declaration on Migration
and Protection Lima Ministerial Meeting: Fact Sheet (``Lima
Ministerial Fact Sheet'') (last updated Oct. 6, 2022), https://www.state.gov/los-angeles-declaration-on-migration-and-protection-lima-ministerial-meeting/ (last visited Dec. 14, 2022); USCIS, USCIS
Resumes Cuban Family Reunification Parole Program Operations (Sept.
1, 2022), https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations (last visited Dec.
13, 2022).
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5. Labor Pathways
The United States Government recognizes that many migrants
encountered at the SWB are seeking employment opportunities and often
hoping to provide for their families via remittances sent home. The
United States welcomes, through lawful pathways, noncitizen workers who
play a vital role in the economy, particularly in the light of
concentrated labor shortages. DHS and its interagency partners have
been working diligently over the past few years to expand recruitment
of workers for H-2 visas from the Western hemisphere and facilitate
their entry into the United States. In FY 2022, for example, the Unites
States Government issued more than 19,000 H-2 visas to Guatemalans,
Hondurans, and Salvadorans--a 94 percent increase over the 9,796 H-2
visas in FY 2021.\124\ In addition, on December 15, 2022, DHS and the
Department of Labor (``DOL'') issued a temporary final rule that made
an additional 64,716 H-2B temporary nonagricultural worker visas
available to employers in FY 2023, in addition to the 66,000 H-2B visas
that are normally available each fiscal year. The H-2B supplemental
includes an allocation of 20,000 visas to workers from Haiti and the
Central American countries of Honduras, Guatemala, and El
Salvador.\125\
---------------------------------------------------------------------------
\124\ Lima Ministerial Fact Sheet.
\125\ See 87 FR 76816, 76817, 76819 (Dec. 15, 2022).
---------------------------------------------------------------------------
In addition, the United States Agency for International Development
(``USAID'') has worked directly with labor ministries in Central
America to dramatically decrease the time it takes to match H-2 workers
to employers' requests--from 55 days to 16 days in Guatemala, from 24
days to nine days in Honduras, and from 42 days to 30 days in El
Salvador.\126\ Certain U.S. embassies and consulates prioritize H-2
visa applications, to the point at which these consular sections can
process them in two business days.\127\ While not a substitute for
asylum, these available processes respond to the needs of many of those
encountered at the border who are in fact seeking economic opportunity,
not asylum.
---------------------------------------------------------------------------
\126\ USAID, Remarks of Administrator Power at the Discussion On
Opportunities and Incentives For Expanded H-2A Visa Recruitment with
USDA Secretary Vilsack (Sept. 30, 2022), https://www.usaid.gov/news-information/speeches/sep-30-2022-remarks-administrator-power-discussion-opportunities-and-incentives (last visited Jan. 31,
2023).
\127\ Id.
---------------------------------------------------------------------------
6. Expanded Refugee Processing in the Region
In the past two years, the United States Government has taken steps
to significantly expand refugee admissions from Latin America and the
Caribbean through the U.S. Refugee Admissions Program (``USRAP''). In
FY 2022, the United States Government resettled 2,485 refugees from the
Western Hemisphere, a 521 percent increase over FY 2021.\128\ In June
2022, the United States made a commitment under the Los Angeles
Declaration on Migration and Protection to resettle 20,000 refugees
from the Americas during Fiscal Years 2023 and 2024.\129\ In
fulfillment of this commitment, significant resources are being put in
place to expand regional refugee processing, which, coupled with the
process improvements, are expected to result in thousands more
individuals applying for, and being granted, refugee status.
---------------------------------------------------------------------------
\128\ Lima Ministerial Fact Sheet.
\129\ L.A. Declaration Fact Sheet.
---------------------------------------------------------------------------
Globally, the United States Government has dedicated significant
efforts to rebuilding, strengthening, and modernizing USRAP, including
by implementing actions stemming from a major review of USRAP
processing across the United States Government. In FY 2022, the United
States significantly improved the efficiency and responsiveness of
refugee applicant screening and vetting through coordination with the
National Vetting Center (``NVC''). Increased efficiency and vetting
through the NVC, combined with new technologies and innovation, will
allow the United States Government to further improve efficiencies in
screening and vetting.\130\
---------------------------------------------------------------------------
\130\ Department of State, Report to Congress on Proposed
Refugee Admissions for Fiscal Year 2023 (Sept. 8, 2022), https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2023/ (last visited Dec. 13, 2022).
---------------------------------------------------------------------------
7. Scheduling Arrivals at Ports of Entry
The United States is also expanding the implementation of an
innovative new process that uses technology--the CBP One app, a free,
public-facing application that can be downloaded on a mobile phone--to
significantly increase the number of individuals, including those who
may be seeking asylum, that CBP can process at land border ports of
entry.
Upon the lifting of the Title 42 public health Order, individuals
will be able to use the CBP One app to schedule a time to arrive at a
port of entry in order to be processed into the United States in a safe
and orderly manner, and once in the United States, able to make claims
for protection. CBP has conducted extensive testing of the application
to ensure it can receive a high volume of requests at one time, works
on both iOS and Android, is user-friendly, and employs clear and
accessible language.
The use of CBP One is expected to create efficiencies that will
enable CBP to safely and humanely expand its ability to process
noncitizens at land border ports of entry, including those who may be
seeking asylum. First, the provision of advance biographical and
biometric information by the noncitizen, as required by the application
(in the form of basic applicant information and provision of a live
photograph)--all information that would otherwise be collected upon
arrival at the port of entry--is expected to save processing time,
thereby allowing CBP officers to process more individuals than would
otherwise be possible. CBP anticipates that use of the CBP One app will
enable CBP to schedule appointments for--and
[[Page 11720]]
process--multiple times more noncitizens at the border than the pre-
pandemic (2014-2019) daily number of inadmissible noncitizens seeking
to enter the United States at land border ports of entry. Second, these
time savings are expected to reduce the time undocumented individuals
spend in CBP custody, which further facilitates a safe and orderly
process, reduces the risks associated with overcrowding, and promotes
the health and safety of the DHS workforce and noncitizens alike.
Individuals who schedule a time to arrive at a port of entry using
CBP One, present themselves at that time, and are processed into the
United States, would not be subject to the rebuttable presumption on
asylum eligibility created by this proposed rule, whether in an
application for asylum or during a credible fear screening.
While the Departments are aware of concerns regarding the
accessibility of the CBP One app, both the app and the proposed rule
are designed to take account of such accessibility concerns. CBP has
observed that the overwhelming majority of noncitizens processed at
ports of entry have smartphones. A CBP survey of migrants at the
Hidalgo and Brownsville Ports of Entry on December 11, 2022,
substantiates that observation--finding that 93 of 95 migrants of all
ages had smartphones. In addition, third parties may assist noncitizens
to navigate the app and input the required information to schedule a
time and place to arrive at a port of entry. The Departments also have
proposed to address those who nonetheless continue to have access
concerns, by excepting from the rebuttable presumption individuals who
arrive at ports of entry without a pre-scheduled time and place if the
noncitizen demonstrates by a preponderance of the evidence that it was
not possible to access or use the CBP One app due to language barrier,
illiteracy, significant technical failure, or other ongoing and serious
obstacle.
In sum, by enabling migrants to schedule a time to arrive at a port
of entry, DHS anticipates being able to minimize wait times, ultimately
process more migrants, and channel arrivals to ports according to their
capacity and ability to safely operate. This will help protect CBP
officers' ability to effectively carry out their other critical
missions of facilitating trade and travel at the ports of entry.
F. Increased Access to Protection and Other Pathways in the Region
Recognizing that managing migration is a collective responsibility,
the United States has been working closely with countries throughout
the region to prioritize and implement a strategy that advances safe,
orderly, legal, and humane migration, including access to international
protection for those in need, throughout the Western Hemisphere. This
focus is exemplified in three policy-setting documents: the U.S.
Strategy for Addressing the Root Causes of Migration in Central
America; \131\ the Collaborative Migration Management Strategy
(``CMMS''); \132\ and the Los Angeles Declaration on Migration and
Protection (``L.A. Declaration''), which was endorsed in June 2022 by
21 countries.\133\ The CMMS and the L.A. Declaration support a
collaborative and regional approach to migration and forced
displacement, pursuant to which countries in the hemisphere commit to
implementing programs to stabilize communities hosting migrants and
asylum seekers, providing increased regular pathways and protections
for migrants and asylum seekers residing in or traveled through their
countries, and humanely enforcing existing immigration laws. The L.A.
Declaration specifically lays out the goal of collectively
``expand[ing] access to regular pathways for migrants and refugees.''
\134\
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\131\ The White House, FACT SHEET: Strategy to Address the Root
Causes of Migration in Central America (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causes-of-migration-in-central-america/ (last visited Dec. 13, 2022).
\132\ The White House, FACT SHEET: The Collaborative Migration
Management Strategy (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/ (last visited Dec. 13,
2022).
\133\ Department of Homeland Security, Los Angeles Declaration
on Migration and Protection (June 10, 2022), https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023, (last visited Nov. 30, 2022).
\134\ Id.
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To further L.A. Declaration commitments, the Department of State's
Bureau of Population, Refugees, and Migration (``PRM'') and USAID
announced $314 million in new funding for humanitarian and development
assistance for refugees and vulnerable migrants across the hemisphere,
including support for socio-economic integration and humanitarian aid
for Venezuelans in 17 countries of the region.\135\ And on September
22, 2022, PRM and USAID announced nearly $376 million in additional
humanitarian assistance, which will provide essential support for
vulnerable Venezuelans within Venezuela, as well as urgently needed
assistance for migrants, refugees, and host communities across the
region, further contributing to stabilization to address humanitarian
crises in the region.\136\
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\135\ Department of State, Additional $314 Million for U.S.
Humanitarian Response to the Venezuela Regional Crisis (June 10,
2022), https://www.state.gov/additional-314-million-for-u-s-humanitarian-response-to-the-venezuela-regional-crisis/ (last
visited Dec. 13, 2022).
\136\ USAID, The United States Announces Nearly $376 Million in
Additional Humanitarian Assistance for People Affected by the
Ongoing Crisis in Venezuela and the Region (Sept. 22, 2022), https://www.usaid.gov/news-information/press-releases/sep-22-2022-the-us-announces-nearly-376-million-additional-humanitarian-assistance-for-people-affected-by-ongoing-crisis-in-venezuela (last visited Dec.
13, 2022).
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Already there have been dividends from these efforts, as countries
throughout the region have made substantial improvements to their
protection systems, offering migrants meaningful new avenues to access
temporary protection, domestic job markets, and public benefits such as
health care and education. For example, as of 2021, Mexico is the third
highest recipient of asylum claims in the world and the Government of
Mexico has announced substantial increases to its labor visa programs
over the past two years to help those seeking protection enter the
labor market.\137\ Costa Rica announced its intention to provide
protected status to more than 200,000 displaced Nicaraguans.\138\ And
Colombia is working to provide temporary protected status to more than
2 million displaced Venezuelans.\139\
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\137\ L.A. Declaration Fact Sheet; International Rescue
Committee, Asylum Seekers in Mexico Need Support to Join the Labor
Market and Rebuild Their Lives, IRC and Citi Foundation Respond with
a Project (Dec. 7, 2022), https://www.rescue.org/press-release/asylum-seekers-mexico-need-support-join-labor-market-and-rebuild-their-lives-irc-and (last visited Dec. 13, 2022).
\138\ https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022Alvaro Murillo et al., Costa
Rica Prepares Plan to Regularize Status of 200,000 Mostly Nicaraguan
Migrants, Reuters, Aug. 10, 2022, https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/ (last visited Dec. 13, 2022).
\139\ L.A. Declaration Fact Sheet.
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The following descriptions are illustrative of the efforts being
taken by countries in the region, all of which are parties to the 1951
United Nations Convention relating to the Status of Refugees (``Refugee
Convention'') or the 1967 Protocol relating to the Status of Refugees
(``Refugee Protocol'' or ``Protocol'') \140\ and the Convention Against
Torture.\141\ The Departments recognize that not all the options below
[[Page 11721]]
are viable for each migrant or asylum seeker, depending upon their
individual circumstances. However, a location that may be unsafe for
one person may not only be safe for, but offer a much-needed refuge to,
others. While some of the countries below are the origin for sizable
numbers of asylum seekers in the region, they also demonstrably provide
protection for others who do consider those countries to be safe
options where they are free from persecution or torture. Many such
countries have stepped up in significant ways to address the
unprecedented movement of migrants throughout the hemisphere--which has
created a humanitarian challenge for almost every country in the
region--by providing increased access to protection.
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\140\ 1967 Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223, 606 U.N.T.S. 268.
\141\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
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Mexico: The Government of Mexico has made notable strides in
strengthening access to international protection through its Mexican
Refugee Assistance Commission (``COMAR''), and as a result has now
emerged as one of the top countries receiving asylum applications in
the world.
COMAR now has staffing and field presence in seven COMAR offices
and representation at three additional National Migration Institute
offices.\142\ According to the United Nations High Commissioner for
Refugees (``UNHCR''), nearly 60,000 asylum seekers were assisted by a
legal network comprising more than 100 lawyers and paralegals in 2021,
and the Federal Public Defender's Office provides additional support to
people with asylum claims before COMAR.\143\ Applicants who do not
qualify for asylum in Mexico are automatically considered for
complementary protection if they possess a fear of harm in their
country of origin, or if there is reason to believe that they will be
subjected to torture or to cruel, inhuman, or degrading treatment, but
do not meet the refugee definition. Complementary protection allows
these beneficiaries to regularize their status.\144\
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\142\ COMAR witnessed a historically high level of asylum
applications in 2021 with 129,791 cases--a level that was maintained
through 2022, with 118,478 applications. Government of Mexico, La
COMAR en N[uacute]meros (Dec. 2022), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf (last
visited Feb. 1, 2023). Of the 419,337 individuals who have applied
for asylum from COMAR from 2013 through the end of 2022, COMAR has
granted asylum to 92,030 of these individuals. Id.
\143\ United Nations High Commissioner for Refugees, Protection
and Solutions in the Pandemic at 33 (2022), https://www.acnur.org/6261d3ab4.pdf (last visited Dec. 17, 2022); MIRPS, MIRPS in Mexico,
https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico/
(last visited Dec. 17, 2022).
\144\ Government of Mexico, Ley sobre Refugiados,
Protecci[oacute]n Complementaria y Asilo Pol[iacute]tico (Jan. 27,
2011), https://www.gob.mx/cms/uploads/attachment/file/211049/08_Ley_sobre_Refugiados__Protecci_n_Complementaria_y_Asilo_Pol_tico.pdf (last visited Dec. 17, 2022).
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In 2021, COMAR received nearly 130,000 asylum applications--almost
double the number of applications it processed in 2019, and the third
most of any country in the world, after the United States and
Germany.\145\ Of those applications in 2021, COMAR granted asylum in 72
percent of cases; an additional two percent of applicants were granted
complementary protection.\146\ The average case takes 8-12 months to
adjudicate.\147\ With United States Government funding and the support
of international organizations, Mexico also has substantially increased
its Local Integration Program, which relocates and integrates
individuals granted asylum in safe areas of Mexico's industrial
corridor. These individuals are then matched with jobs and provided
apartments, and their children are enrolled in local schools. In May
2022, the program reached the milestone of reintegrating its 20,000th
asylum seeker in Mexico.\148\ And in June 2022, Mexico committed to
support local labor integration for an additional 20,000 asylees over
the next three years.\149\
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\145\ Lizbeth Diaz, Mexico Asylum Applications Surge in 2021,
Haitians Top List, Reuters, Jan. 3, 2022, https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/ (last visited Dec. 13, 2022); TeleSUR
English, Mexico was the Third Country with the Highest Number of
Asylum Applications in 2021, YouTube (Apr. 22, 2022), https://www.youtube.com/watch?v=zD1jVg8CJ9s (last visited Dec. 13, 2022).
\146\ Lizbeth Diaz, Mexico Asylum Applications Surge in 2021,
Haitians Top List, Reuters, Jan. 3, 2022, https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/ (last visited Dec. 13, 2022).
\147\ Refugees International, Mexico's Use of Differentiated
Asylum Procedures: An Innovative Approach to Asylum Processing (July
20, 2021), https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5 (last visited Dec. 13, 2022).
\148\ UNHCR, M[aacute]s de 20.000 Reubicaciones como Parte de
los Esfuerzos de Integraci[oacute]n de Personas Refugiadas en
M[eacute]xico (May 25, 2022), https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html (last visited Dec. 13, 2022).
\149\ L.A. Declaration Fact Sheet.
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It is also notable that that the Government of Mexico has become a
regional leader in providing labor pathways for individuals who are
seeking economic opportunity. Mexico has committed to growing the
Border Visitor Work Card program--which allows unlimited entry and exit
for Guatemalans and Belizeans to cross Mexico's southern border and
work in Southern Mexican states--from approximately 3,500 beneficiaries
a year to 10,000-20,000 beneficiaries per year.\150\ Mexico also
announced the launch of a new temporary labor program for 15,000-20,000
Guatemalan workers. This will be expanded to Honduran and Salvadoran
workers in the medium term and highlights the priority that the
Government of Mexico is placing on providing lawful mechanisms for
migrants to access opportunity, thus reducing the incentive to resort
to irregular migration.\151\
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\150\ Government of Mexico, Press Release, Mexico to Expand
Labor Mobility Programs and Integrate Refugees into its Labor Market
(June 10, 2022), https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en (last visited Dec. 16, 2022); L.A. Declaration Fact
Sheet.
\151\ Unidad de Pol[iacute]tica Migratoria, Boleti0301;n Mensual
de Estad[iacute]sticas Emigratorias (Oct. 2022), http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/Boletines_Estadisticos (last visited Dec. 14, 2022); L.A.
Declaration Fact Sheet.
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Guatemala: Over the past two years, the Government of Guatemala has
taken key steps to continue to develop its asylum system. In 2021, the
Guatemalan Migration Institute (``IGM'') announced that it established
the Refugee Status Recognition Department (``DRER'') to better receive
and process asylum applications, in line with the concept of regional
responsibility sharing to manage migration.\152\ DRER is a specialized
branch of IGM that has been created solely to receive asylum claims--a
key improvement from its prior practice, where intake was not
specialized for asylum seekers. The Government of Guatemala also
partnered with the United States Government and international
organizations, including UNHCR, IOM, and the United Nations
International Children's Emergency Fund to establish a series of
Attention Centers for Migrants and Refugees in Guatemala City, Tecun
Uman, and Quetzaltenango.\153\ These centers, located in key locations
across Guatemala, provide individuals an
[[Page 11722]]
opportunity to have their protection, humanitarian, and economic needs
evaluated in order to provide appropriate services and referrals. Since
their inception, more than 32,000 individuals have accessed these
centers.\154\
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\152\ Government of Guatemala Ministry of Foreign Affairs,
Comunicado, Guatemala Fortalece Acci[oacute]n Institucional en
Esfuerzo Regional por Atenci[oacute]n y Dignificaci[oacute]n de
Refugiados con Apoyo de ACNU Guatemala (Feb. 9, 2021), https://prensa.gob.gt/guatemala-fortalece-accion-institucional-en-esfuerzo-regional-por-atencion-y-dignificacion-de-0 (last visited Dec. 13,
2022).
\153\ The White House, FACT SHEET: Update on the Collaborative
Migration Management Strategy (April 20, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/ (last visited Dec. 15, 2022).
\154\ Id.
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In 2019 and 2020, IGM received just under 500 asylum applications
per year; however, that number doubled to 1,054 in 2021. As of March
2022, IGM had already received nearly 300 applications in 2022 and
granted asylum to 590 individuals.\155\ In addition, with support from
the United States Government, UNHCR has helped Guatemala streamline the
issuance of work permits for refugee and asylum seekers from 15 to 4
business days.\156\
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\155\ Instituto Guatemalteco de Migraci[oacute]n,
Informaci[oacute]n Sobre Personas Solicitantes y Refugiadas en
Guatemala: Enero 2002-Marzo 2022 (Mar. 2022), https://igm.gob.gt/wp-content/uploads/2022/04/Informe-con-Graficos-Marzo-2022.pdf (last
visited Dec. 13, 2022).
\156\ Government of Guatemala, Extranjeros Podr[aacute]n
Solicitar Permiso de Trabajo En L[iacute]nea (Feb. 28, 2022),
https://www.mintrabajo.gob.gt/index.php/noticias/356-extranjeros-podran-solicitar-permiso-de-trabajo-en-linea (last visited Dec. 15,
2022).
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Belize: Belize also has taken meaningful steps to expand protection
for migrants. In December 2021, the Government of Belize announced an
amnesty program for asylum seekers who registered before March 31, 2020
(but whose cases have not been adjudicated), and irregular migrants who
have lived in the country before December 31, 2016.\157\ Additionally,
migrants can qualify for other reasons tied to their societal
connections to Belize, such as having a Belizean child, marrying a
Belizean, or completing school in Belize and continuing to reside in
Belize. Recipients are immediately granted permanent residence with a
path to citizenship.\158\ UNHCR reports that, as of October 2022, a
total of 4,130 individuals (primarily Guatemalans, Hondurans and
Salvadorans) have been granted asylum in Belize.\159\
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\157\ Government of Belize, Announcement of Amnesty 2022 (Dec.
7, 2022), https://www.pressoffice.gov.bz/announcement-of-amnesty-2022/ (last visited Dec. 8, 2022).
\158\ Id.
\159\ UNHCR, Fact Sheet: Belize September-October 2022 (Nov. 28,
2022), https://data.unhcr.org/en/documents/details/97161 (last
visited Dec. 13, 2022).
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Costa Rica: Costa Rica has demonstrated its commitment to providing
humanitarian and other protections to asylum seekers and displaced
migrants over the past two years. It is currently hosting roughly
300,000 Nicaraguan nationals who have fled deteriorating economic and
security conditions in that country--a number that constitutes about 75
percent of Costa Rica's migrant population.\160\ As recently as
September 2022, Costa Rican officials reported more than 200,000
pending applications and another 50,000 people waiting for their
appointment to make a formal application. Nicaraguans account for
nearly 9 out of 10 applicants.\161\
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\160\ Nicaragua, CIA World Factbook (Dec. 2, 2022), https://
www.cia.gov/the-world-factbook/countries/nicaragua/
#:~:text=Today%20roughly%20300%2C000%20Nicaraguans%20are,seasonally%2
0for%20work%2C%20many%20illegally (last visited Dec. 15, 2022).
\161\ Moises Castillo, Fleeing Nicaraguans strain Costa Rica's
asylum system, Associated Press, Sept. 2, 2022, https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5 (last visited Dec. 15, 2022).
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The Government of Costa Rica recently announced its intention to
regularize the status of more than 200,000 mostly Nicaraguan migrants,
providing them with access to jobs and healthcare as part of the
process.\162\ In addition, the Government of Costa Rica committed in
its National Action Plan for the Comprehensive Regional Protection and
Solutions Framework to ``establish complementary protection or other
mechanisms to guarantee the non-refoulement principle for people who do
not meet the requirements to be recognized as refugees but should not
be returned to their country of origin, because of reasonable risk of
suffering harm.'' \163\
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\162\ Alvaro Murillo et al., Costa Rica Prepares Plan to
Regularize Status of 200,00 Mostly Nicaraguan Migrants, Reuters,
Aug. 10, 2022, https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/ (last visited Dec. 13, 2022).
\163\ MIRPS National Action Plan: Belize, Costa Rica, El
Salvador, Guatemala, Honduras, Mexico, Panama 7, https://globalcompactrefugees.org/sites/default/files/2021-04/MIRPS%20National%20commitments.pdf (last visited Dec. 16, 2022).
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On March 15, 2022, following extensive diplomatic engagement, the
United States and the Government of Costa Rica signed a migration
arrangement, the first such agreement in the region. This agreement
outlines both countries' mutual commitment to work collaboratively to
manage migration and expand legal pathways and access to
protection.\164\ Furthermore, through the L.A. Declaration, Costa Rica
committed to renewing the temporary complementary protection category
scheme for migrants of Cuba, Nicaragua, and Venezuela.\165\ Making true
on its commitment in the L.A. Declaration, Costa Rica has established a
Temporary Complementary Protection Program, also known as a Special
Temporary Category (``STC''), for Cuban, Nicaraguan, and Venezuelan
migrants who applied for asylum between January 1, 2010, and September
30, 2022, and desire to withdraw their applications in lieu of
permission to remain lawfully in Costa Rica, work, and receive other
social services in the country. STC holders will be permitted to apply
for residency after five years.
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\164\ DHS, Readout of Secretary Mayorkas's Visit to Mexico and
Costa Rica (Mar. 15, 2022), https://www.dhs.gov/news/2022/03/16/readout-secretary-mayorkass-visit-mexico-and-costa-rica (last
visited Dec. 13, 2022); U.S. Embassy in Costa Rica, United States
and Costa Rica Sign Migration Arrangement (Mar. 17, 2022), https://cr.usembassy.gov/united-states-and-costa-rica-sign-migration-arrangement/ (last visited Dec. 13, 2022).
\165\ L.A. Declaration Fact Sheet.
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Colombia: Colombia has emerged as one of the leaders in the Western
Hemisphere--and the world--in its response to the unprecedented surge
in irregular migration from Venezuela. On February 8, 2021, the
Government of Colombia announced an innovative program to provide
temporary protected status for 10 years to Venezuelans residing in
Colombia as of that date, as well those who enter the country and
register through official ports of entry over the next two years. This
form of complementary protection provides Venezuelan migrants with
government identity documents, allowing them to work legally, access
public and private services, and integrate and contribute to Colombia's
economy and society.\166\
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\166\ UNHCR, Temporary Protection Status in Colombia (November
2021) (Dec. 3, 2021), https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0 (last visited
Dec. 13, 2022).
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More than 2.3 million Venezuelans have registered for this
complementary protection, and as of December 2022, the Government of
Colombia had approved documents to provide temporary legal status to
over 1.6 million Venezuelans and delivered them to nearly 1.5 million
Venezuelans.\167\ The new Petro Administration in Colombia has affirmed
its commitment to continuing these efforts, and Colombia is working to
expand measures that promote integration of these migrants in Colombian
society.
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\167\ Government of Colombia, Visibles: Estado Temporal de
Protecci[oacute]n, https://www.migracioncolombia.gov.co/visibles
(last visited Dec. 15, 2022).
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Ecuador: The Government of Ecuador is hosting more than 500,000
displaced Venezuelans and has worked to meaningfully expand protection
for migrants in recent months.\168\ Ecuador has received nearly 12,000
asylum applications containing over 60,000 applicants since 2017 and
granted
[[Page 11723]]
asylum to 12,643 individuals and complementary protection to another
195 individuals through mid-2022.\169\ On September 1, 2022, it
launched the first phase of its registration process, which will enable
irregular migrants to gain a temporary resident permit--opening online
registration to an estimated 120,000 Venezuelans who hold or previously
held a regular migration status and all unaccompanied minors. More than
68,500 individuals registered within the first week. The second phase
opened on November 16, 2022, to approximately 100,000 non-Venezuelan
migrants (the majority of whom are Colombian) who entered regularly. As
of November 25, 2022, more than 89,000 individuals had registered and
over 22,000 have already received their temporary residency visa. The
third phase will open February 17, 2023, to an estimated 350,000
Venezuelans who entered irregularly.
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\168\ UNHCR, Ecuador: Monthly Update October 2022 (Nov. 10,
2022), https://reporting.unhcr.org/document/3742 (last visited Dec.
13, 2022).
\169\ UNHCR, Ecuador: Monthly Update October 2022 (Nov. 10,
2022), https://reporting.unhcr.org/document/3742 (last visited Dec.
13, 2022); UNHCR, Refugee Data Finder; Asylum Applications, https://www.unhcr.org/refugee-statistics/download/?url=Lzen78 (last visited
Dec. 13, 2022); UNHCR, Refugee Data Finder; Asylum Decisions,
https://www.unhcr.org/refugee-statistics/download/?url=U7qmaT (last
visited Dec. 13, 2022).
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Canada: Canada operates a well-known Temporary Foreign Worker
Program and expected to welcome 50,000 agricultural workers from
Mexico, Guatemala, and the Caribbean in 2022.\170\ In 2021, Canada
admitted 61,735 workers specifically in the agricultural sector, 44
percent of whom were from Mexico and 23 percent from Guatemala.\171\
This is in addition to its refugee resettlement program, which has
received 17,687 referrals from the Western Hemisphere in 2022, of which
5,020 have been granted refugee status in Canada so far.\172\
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\170\ L.A. Declaration Fact Sheet.
\171\ Statistics Canada, Countries of Citizenship for Temporary
Foreign Workers in the Agricultural Sector (June 13, 2022), https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3210022101 (last
visited Dec. 13, 2022).
\172\ Immigration and Refugee Board of Canada, Claims by Country
of Alleged Persecution 2022 (January to September) (Nov. 22, 2022),
https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2022.aspx (last visited Dec. 13, 2022).
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IV. Description of the Proposed Rule
A. Rebuttable Presumption of Ineligibility for Asylum and Exceptions
Pursuant to section 208(b)(1)(A), (b)(2)(C), (d)(5)(B) of the INA,
8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B), the Departments are
proposing a condition on asylum eligibility, in the form of a new
rebuttable presumption of ineligibility for asylum in proposed 8 CFR
208.33 and 8 CFR 1208.33 for certain noncitizens who enter the United
States at the southwest land border. Under this NPRM, this rebuttable
presumption would apply to certain noncitizens entering the United
States at the southwest land border without documents sufficient for
lawful admission as described in section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), on or after the date of termination of the Title 42 public
health Order, after traveling through a country that is party to the
1951 United Nations Convention relating to the Status of Refugees or
the 1967 Protocol relating to the Status of Refugees. For purposes of
proposed 8 CFR 208.33(a)(1) and 1208.33(a)(1), the phrase ``enters the
United States at the southwest land border'' would mean any crossing
into the territorial limits of the United States, i.e., physical
presence, whether presenting at a U.S. port of entry or crossing into
U.S. territory between ports of entry, without regard to whether the
noncitizen has been inspected by an immigration officer, evaded
inspection by an immigration officer, or was free from official
restraint or surveillance. In other words, the term ``enters'' would
not be intended to import the definitions of ``entry'' that have been
used in certain other, unique immigration law contexts. Cf., e.g.,
Matter of Martinez-Serrano, 25 I&N Dec. 151, 153 (BIA 2009).
This rebuttable presumption would not apply to noncitizens who
availed themselves of certain established processes to enter the United
States or sought asylum in a third country and were denied. Proposed 8
CFR 208.33(a)(1), 8 CFR 1208.33(a)(1). Specifically, the rebuttable
presumption would not be applicable to noncitizens who are provided
appropriate authorization to travel to the United States to seek
parole, pursuant to a DHS-approved parole process; presented at a port
of entry at a pre-scheduled time and place, or presented at a port of
entry, without a pre-scheduled time and place, if the noncitizen
demonstrates that the DHS scheduling system (currently the CBP One app)
was not possible for the noncitizen to access or use; or sought asylum
or other protection in a country through which the noncitizen traveled
and received a final decision denying that application. Proposed 8 CFR
208.33(a)(1)(i) through (iii), 1208.33(a)(1)(i) through (iii).\173\
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\173\ The exemption for circumstances in which the DHS
scheduling system was inaccessible or unusable is designed to
capture a narrow set of cases in which it was truly not possible for
the noncitizen to access or use the DHS system due to language
barrier, illiteracy, significant technical failure, or other ongoing
and serious obstacle.
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A noncitizen could rebut this presumption by demonstrating
exceptionally compelling circumstances by a preponderance of the
evidence. The proposed rule lists three per se grounds for rebuttal: if
a noncitizen demonstrates that, at the time of entry, they or a member
of their family as described in 8 CFR 208.30(c) with whom the
noncitizen is traveling faced an acute medical emergency; faced an
imminent and extreme threat to their life or safety; or were a ``victim
of a severe form of trafficking in persons'' as defined in 8 CFR
214.11. Proposed 8 CFR 208.33(a)(2)(i) through (iii), 1208.33(a)(2)(i)
through (iii). Acute medical emergencies would include situations in
which someone faces a life-threatening medical emergency or faces acute
and grave medical needs that cannot be adequately addressed outside of
the United States. Examples of imminent and extreme threats would
include imminent threats of rape, kidnapping, torture, or murder that
the noncitizen faced at the time the noncitizen crossed the SWB, such
that they cannot wait for an opportunity to present at a port of entry
in accordance with the processes outlined in this proposed rule without
putting their life or well-being at extreme risk; it would not include
generalized threats of violence. In addition to the per se grounds for
rebuttal, the presumption also could be rebutted in other exceptionally
compelling circumstances, as the adjudicators in the sound exercise of
their judgment may determine.
One such additional exceptionally compelling circumstance that the
proposed rule would recognize avoids a circumstance that may lead to
the separation of a family. See proposed 8 CFR 1208.33(d). Those
subject to the lawful pathways condition on asylum eligibility who do
not rebut the presumption would be able to continue to apply for
statutory withholding of removal and protection under the CAT. Unlike
in asylum, spouses and minor children are not eligible for derivative
grants of withholding of removal or CAT protection. Compare INA
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (``[a] spouse or child . . . of an
alien who is granted asylum under this subsection may, if not otherwise
eligible for asylum under this section, be granted the same status as
the alien if accompanying, or following to join, such alien''), with
INA 241(b)(3), 8 U.S.C. 1231(b)(3) (not providing for derivative
statutory withholding of removal), and 8 CFR 1208.16(c)(2) (not
providing for derivative CAT protection); see also
[[Page 11724]]
Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (recognizing
that the asylum statute allows for derivative beneficiaries of the
principal applicant for asylum, but that the withholding of removal
statute makes no such allowance). Where a principal asylum applicant is
eligible for statutory withholding of removal or CAT protection and
would be granted asylum but for the lawful pathways rebuttable
presumption, and where the denial of asylum on that ground alone would
lead to the applicant's family being separated because at least one
other family member would not qualify for asylum or other protection
from removal on their own--meaning the entire family may not be able to
remain together--the Departments have determined that the possibility
of separating the family would constitute an exceptionally compelling
circumstance that rebuts the lawful pathways presumption of
ineligibility for asylum. See Executive Order 14011, Establishment of
Interagency Task Force on the Reunification of Families, 86 FR 8273,
8273 (Feb. 5, 2021) (``It is the policy of my Administration to respect
and value the integrity of families seeking to enter the United
States.'').
This family unity provision would appear in EOIR's regulations and
not DHS's regulations. That is because only EOIR adjudicators are able
to issue removal orders to noncitizens found to have a credible fear
and thus, functionally, are the only adjudicators able to withhold or
defer those orders under the statute or the regulations implementing
the CAT. Hence, a key inquiry for this rebuttal circumstance--whether
the principal applicant is eligible for statutory withholding of
removal or CAT protection--would be one reserved for EOIR and made
during removal proceedings even for those who are first processed
through the asylum merits process. Thus, inquiry into this rebuttal
circumstance is properly reserved for proceedings before EOIR.
Importantly, the absence of this provision from the DHS regulations
would not lead to the separation of families. When USCIS conducts a
credible fear screening of a family unit, it will find that the entire
family unit passes the screening if one member of the family is found
to have a credible fear. See 8 CFR 208.30(c). USCIS will continue to
process family claims in this manner even when applying the reasonable
possibility standard.
The proposed rule also contains a specific exception to the
rebuttable presumption for unaccompanied children. Recognizing
Congress's attention to the particular vulnerability of unaccompanied
children, see INA 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E) (exempting
unaccompanied children from the safe-third-country bar); INA
208(b)(3)(C), 8 U.S.C. 1158(a)(2)(E) (permitting unaccompanied children
to present their asylum claims in the first instance to an asylum
officer in a non-adversarial interview),\174\ unaccompanied children
would be categorically excepted from the rebuttable presumption. See
proposed 8 CFR 208.33(b)(1), 1208.33(b)(1). Moreover, applicability of
the rebuttable presumption would be adjudicated during the credible
fear process for noncitizens processed for expedited removal, as well
as applied to merits adjudications, as discussed below. Pursuant to the
Trafficking Victims Protection Reauthorization Act of 2008,
unaccompanied children whom DHS seeks to remove cannot be processed for
expedited removal and, thus, are never subject to the credible fear
process. 8 U.S.C. 1232(a)(5)(D). As unaccompanied children are already
precluded from expedited removal, which may already be an incentive for
children to arrive unaccompanied at our border, the Departments do not
expect--based on their experience implementing current law concerning
expedited removal and asylum--that this exclusion of unaccompanied
children from the rebuttable presumption would serve as a significant
incentive for families to send their children unaccompanied to the
United States. Moreover, under this NPRM, families would be able to
avail themselves of lawful pathways and processes to enter the United
States and not be subject to the rebuttable presumption.
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\174\ See also 8 U.S.C. 1232(d)(8) (``Applications for asylum
and other forms of relief from removal in which an unaccompanied
alien child is the principal applicant shall be governed by
regulations which take into account the specialized needs of
unaccompanied alien children and which address both procedural and
substantive aspects of handling unaccompanied alien children's
cases.'').
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B. Screening Procedures
Although the rebuttable presumption would apply to any noncitizen
who is described in proposed 8 CFR 208.33(a)(1), it would most
frequently be relevant for noncitizens who are subject to expedited
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).\175\
As described above, such noncitizens are subject to removal ``without
further hearing or review'' unless they indicate an intention to apply
for asylum or fear of persecution. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Noncitizens in expedited removal who indicate an
intention to apply for asylum or fear of persecution are referred to an
asylum officer for an interview to determine if they have a credible
fear of persecution and should accordingly remain in proceedings for
further consideration of the application. INA 235(b)(1)(A)(ii),
(b)(1)(B)(i)-(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (b)(1)(B)(i)-(ii). In
addition, asylum officers consider whether a noncitizen in expedited
removal may be eligible for withholding of removal under section
241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or for protection under the
regulations implementing U.S. non-refoulement obligations under the
CAT. See 8 CFR 208.30(e)(2) and (3).
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\175\ For a more complete description of the expedited removal
process, see the Legal Authority section below.
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Accordingly, the proposed rule would implement changes to and build
on this existing system and would instruct asylum officers to apply the
lawful pathways rebuttable presumption during credible fear screenings.
The proposed rule would establish procedures for asylum officers to
follow when determining whether the rebuttable presumption applies to a
noncitizen, see proposed 8 CFR 208.33(a)(1), and, if it does, whether
the noncitizen has rebutted the presumption, see proposed 8 CFR
208.33(a)(2). In addition, for noncitizens found to be ineligible for
asylum under the proposed rule, the proposed rule would establish
procedures for asylum officers to further consider a noncitizen's fear
of removal in the context of the noncitizen's eligibility for
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or for protection under the regulations implementing the
CAT.
For each noncitizen referred to an asylum officer for a credible
fear interview, the asylum officer would first determine if the
noncitizen is covered by and fails to rebut the presumption of
ineligibility at proposed 8 CFR 208.33(a)(1). If the asylum officer
determines that the answer to both questions is ``yes,'' then the
noncitizen would be ineligible for asylum under the lawful pathways
condition, and the asylum officer would proceed to determine whether
the noncitizen has established a reasonable possibility of persecution
or torture \176\ in order to
[[Page 11725]]
screen for withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), or for withholding of removal under the regulations
implementing the CAT as to the identified country of removal.\177\
However, if the asylum officer determines that the answer to either
question is ``no''--meaning the asylum officer has determined that the
noncitizen is not covered by the lawful pathways condition (for
example, because the noncitizen pursued a lawful pathway set forth in
proposed 8 CFR 208.33(a)(1)) or is excepted pursuant to proposed 8 CFR
208.33(b)(2)) \178\ or the asylum officer determined that the
noncitizen met the burden to rebut the presumption under proposed 8 CFR
208.33(a)(2)--then the asylum officer would follow the procedures in 8
CFR 208.30, which provide for a positive credible fear determination if
the noncitizen establishes a significant possibility of establishing
eligibility for asylum under section 208 of the INA, statutory
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or withholding of removal under the regulations
implementing the CAT.
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\176\ The Departments acknowledge that, in the Asylum Processing
IFR, they recently rescinded changes made by the Global Asylum Rule
that applied mandatory bars during credible fear screenings and
subjected noncitizens' remaining claims for statutory withholding
and CAT protection to the ``reasonable possibility'' of persecution
or torture standard. As discussed in Part V.C.6.ii of this preamble,
the Departments have determined that in the unique circumstances
discussed in this proposed rule, it would be appropriate to apply
the lawful pathways additional limitation on asylum eligibility
during the credible fear screening stage and to then apply the
``reasonable possibility'' of persecution or torture standard to
screen the remaining applications for statutory withholding of
removal and CAT protection, and that doing so in the way the
Departments intend would lead to better allocation of resources
overall.
\177\ In most cases, the country of removal is the noncitizen's
country of citizenship or nationality. However, DHS may identify one
or more alternative countries of removal. See INA 241(b)(2), 8
U.S.C. 1231(b)(2) (designating countries of removal).
\178\ For example, as discussed above, the proposed rule excepts
unaccompanied children, but such exception is not relevant to the
discussion here as unaccompanied children are ineligible for
expedited removal. See 8 U.S.C. 1252(a)(5)(D).
---------------------------------------------------------------------------
In other words, if the asylum officer determines that the
noncitizen is not subject to or has overcome the presumption described
in this proposed rule and thus is otherwise potentially eligible for
asylum, the asylum officer's credible fear determination would follow
the procedures already in place, including the use of the ``significant
possibility'' standard to screen for eligibility for asylum, statutory
withholding of removal, and CAT protection. See 8 CFR 208.30(e)(2) and
(3); see also 86 FR at 46914-15 (describing the history of the credible
fear screening process and ``significant possibility'' standard). If,
however, the asylum officer determines that the noncitizen is
ineligible for asylum due to the lawful pathways condition, the asylum
officer's review would be limited to whether the noncitizen has
demonstrated a reasonable possibility of persecution or torture, in
order to screen for statutory withholding of removal and CAT
protection.
If the asylum officer finds that a noncitizen who is ineligible for
asylum due to the lawful pathways condition establishes a reasonable
possibility of persecution or torture, as with other credible fear
interviews, DHS would issue the noncitizen a Form I-862, Notice to
Appear, and thereby place the noncitizen in removal proceedings under
section 240 of the Act, 8 U.S.C. 1229a. During the course of removal
proceedings, the noncitizen would be able to apply for asylum,
statutory withholding of removal, and protection under the CAT by
filing a Form I-589 in accordance with the form's and the court's
instructions, and the noncitizen could also seek any other claims for
relief they wish to pursue.\179\ In adjudicating the noncitizen's
application for asylum in section 240 proceedings, the IJ would use a
de novo standard of review (meaning the judge considers the asylum
officer's record, but rules without deferring to the asylum officer's
factual findings or legal conclusions) in determining the applicability
of the lawful pathways condition on eligibility for asylum.
---------------------------------------------------------------------------
\179\ Specifically, the asylum officer's determination regarding
the noncitizen's ineligibility for asylum due to the lawful pathways
condition would not be controlling in section 240 removal
proceedings, and the IJ would be able to consider the noncitizen's
asylum eligibility using a de novo standard of review. In addition,
the noncitizen could seek any other form of relief or protection
available in section 240 proceedings, subject to the eligibility
requirements for such relief or protection.
---------------------------------------------------------------------------
If the asylum officer were to find that a noncitizen is ineligible
for asylum due to the lawful pathways condition and fails to
demonstrate a reasonable possibility of persecution or torture, the
asylum officer would enter a negative credible fear determination,
provide the noncitizen with a written notice of the decision, and
inquire if the noncitizen wishes to seek further review of the asylum
officer's determination before an IJ. The noncitizen would indicate
whether or not he or she desires such review on a Record of Negative
Fear Finding and Request for Review by Immigration Judge. If the
noncitizen requests an IJ's review, the asylum officer would serve the
noncitizen with a Form I-863, Notice of Referral, and provide the IJ
with the record of the asylum officer's determination. A complete
description of the proposed IJ review proceedings is set out in the
next section. As relevant for the DHS procedures, however, the proposed
rule provides that the case would be returned to DHS for removal of the
noncitizen if the IJ affirms the asylum officer and issues a negative
credible fear determination, either because (1) the IJ determined that
the noncitizen is covered by the lawful pathways condition and did not
rebut the presumption and that the noncitizen did not establish a
reasonable possibility of persecution or torture, or (2) the IJ
determined that the noncitizen was not covered by the lawful pathways
condition or rebutted the presumption and that the noncitizen did not
establish a significant possibility of qualifying for asylum,
withholding of removal, or protection under the CAT. On the other hand,
if the IJ issues a positive credible fear finding, DHS would initiate
further proceedings that would allow the noncitizen the opportunity to
pursue a claim for asylum, statutory withholding of removal, and CAT
protection. Specifically, if the IJ finds that the noncitizen is not
covered by the lawful pathways condition or successfully rebutted the
condition's presumption of ineligibility for asylum and established a
significant possibility of eligibility for asylum, withholding of
removal, or CAT protection, DHS would have the discretion either to
issue the noncitizen a Form I-862, Notice to Appear, and thereby place
the noncitizen in removal proceedings under section 240 of the Act, 8
U.S.C. 1229a, or to refer the noncitizen for a merits interview before
an asylum officer under newly established procedures. See 8 CFR
1208.30(g)(2)(iv)(B); Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (``Asylum
Processing IFR''). Alternatively, if the IJ finds that the noncitizen
is subject to the lawful pathways condition and did not rebut the
presumption of ineligibility but determines that the noncitizen
established a reasonable possibility of persecution or torture, DHS
would file a Form I-862, Notice to Appear, and place the noncitizen in
removal proceedings under section 240 of the Act, 8 U.S.C. 1229a.\180\
---------------------------------------------------------------------------
\180\ The Departments note that this proposed rule would provide
that DHS will refer all noncitizens subject to the lawful pathways
limitation who establish a reasonable possibility of persecution or
torture to removal proceedings under section 240 of the INA, 8
U.S.C. 1229a, even though the Credible Fear and Asylum Processing
IFR provides that DHS has discretion to place other categories of
screened-in noncitizens either in section 240 removal proceedings or
in an asylum merits hearing before a USCIS asylum officer under
newly established procedures. See generally 87 FR 18078. The
Departments believe this approach is the best use of resources
because asylum officers could not grant the ultimate relief--
withholding of removal under the Act or the Convention Against
Torture--that noncitizens who have a reasonable fear of persecution
but who are ineligible for asylum may be eligible for. In other
words, because each such proceeding would have to go to an
immigration judge, there would not be the same efficiency gained by
allowing those cases to possibly proceed to an asylum merits
interview before an asylum officer.
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[[Page 11726]]
C. IJ Review Procedure
Under longstanding regulations, IJs have had the authority to
review, upon the request of a noncitizen, an asylum officer's negative
credible fear determination. See generally 8 CFR 1003.42, 1208.30.
Consistent with this practice, this proposed rule would provide for IJ
review of asylum officers' negative credible fear determinations in
cases governed by proposed 8 CFR 208.33. A negative credible fear
determination encompasses findings that noncitizens have not
established a significant possibility of eligibility for asylum or a
reasonable fear of persecution or torture for purposes of statutory
withholding under the INA or the regulations implementing CAT.
Thus, where an asylum officer issues a negative credible fear
determination pursuant to this proposed rule, the asylum officer would
inquire whether the noncitizen wishes for an IJ to review that
determination. See proposed 8 CFR 208.33(c)(2)(iii). Where the
noncitizen requests such review, the record would be referred to an IJ.
See proposed 8 CFR 208.33(c)(2)(v). As required by the INA, IJ review
will be held in-person, by video, or by telephone, and the noncitizen
will have ``an opportunity . . . to be heard and questioned by the
immigration judge.'' \181\
---------------------------------------------------------------------------
\181\ INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 1003.42(c).
---------------------------------------------------------------------------
Consistent with established practice, the IJ would evaluate the
case under a de novo standard of review. See 8 CFR 1003.42(d)(1),
proposed 8 CFR 1208.33(c)(1). The IJ would first assess whether the
rebuttable presumption of asylum ineligibility at proposed 8 CFR
208.33(a)(1) and 1208.33(a)(1) applies and, if so, whether it was
rebutted by the noncitizen. Where the IJ determines that the
presumption applies and is not rebutted, the IJ would assess whether
the noncitizen has established a reasonable possibility of persecution
or torture in the country of removal. Where the IJ concludes that the
noncitizen has established such a reasonable possibility, the IJ would
issue a positive credible fear determination. See proposed 8 CFR
1208.33(c)(2)(ii). Where the IJ concludes that the noncitizen has not
established such a reasonable possibility, the IJ would issue a
negative credible fear determination. See id.
If the IJ determines that the presumption does not apply or that
the noncitizen rebutted the presumption, the IJ would continue to
determine whether the noncitizen has established a significant
possibility of eligibility for asylum, withholding of removal under
section 241(b)(3) of the Act, or withholding of removal under the CAT.
Where the IJ determines that the noncitizen has established a
significant possibility of eligibility, the IJ would issue a positive
credible fear determination. See proposed 8 CFR 1208.33(c)(2)(i). Where
the IJ determines that the noncitizen has not established a significant
possibility of eligibility for asylum, withholding of removal under
section 241(b)(3) of the Act, or withholding of removal under the CAT,
the IJ would issue a negative credible fear determination. See id.
Where the IJ issues a positive credible fear determination based on
the ``significant possibility'' standard, DHS would have the discretion
either to refer the noncitizen for an asylum merits interview before an
asylum officer, or to place the noncitizen in removal proceedings under
section 240 of the Act, 8 U.S.C. 1229a. See proposed 8 CFR
208.33(c)(2)(v)(A); Asylum Processing IFR. Where the IJ issues a
positive credible fear determination based on the ``reasonable
possibility'' standard, DHS would issue a Form I-862 and place the
noncitizen in removal proceedings under section 240 of the Act, 8
U.S.C. 1229a. See proposed 8 CFR 208.33(c)(2)(v)(B). In all cases, the
noncitizen would have the ability to pursue their claims for asylum,
withholding of removal under the Act, and protection under the CAT.
Where the IJ issues a negative credible fear determination, the
noncitizen would be removed by DHS, although USCIS has the discretion
to reconsider its negative credible fear determination. See proposed 8
CFR 208.33(c)(2)(v)(C).
Consistent with longstanding practice, the IJ would be able to
consider, in making the above determinations, the asylum officer's
notes and summary of the material facts, and all other materials upon
which the asylum officer's determination was based. See proposed 8 CFR
208.33(c)(2)(v). The IJ would also be able to consider any testimony
from the noncitizen elicited at their hearing. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (stating that
credible fear review ``shall include an opportunity for the alien to be
heard and questioned by the IJ, either in person or by telephonic or
video connection''). Where an adjudicator finds in credible fear
proceedings that a noncitizen is ineligible for asylum under the
rebuttable presumption at proposed 8 CFR 208.33(a)(1) and
1208.33(a)(1), or that the noncitizen lacks a significant possibility
of establishing eligibility for asylum, and the noncitizen is
subsequently placed in removal proceedings, nothing in the INA or
regulations would preclude the noncitizen from applying for asylum in
those proceedings. In addition, nothing in the INA or regulations
states that an IJ owes any deference in removal proceedings to
determinations made by an adjudicator in credible fear proceedings,
including as to whether the rebuttable presumption in proposed 8 CFR
208.33(a)(1) and 1208.33(a)(1) applies, and as to the likelihood the
noncitizen will be persecuted on account of a protected ground or
tortured in the country at issue. Accordingly, a noncitizen in removal
proceedings would not be precluded from receiving asylum simply because
it was previously determined in credible fear proceedings that the
rebuttable presumption in proposed 8 CFR 208.33(a)(1) and 1208.33(a)(1)
applied and was not rebutted, or that the noncitizen did not meet the
burden of showing a significant possibility of eligibility for asylum.
Finally, the Departments emphasize that the proposed rule, if
finalized, would not be applied indefinitely. The proposed rule would
apply only to those who enter at the southwest land border during the
24-month period. After the sunset date, the proposed rule would
continue to apply to those noncitizens. The Departments, however, will
review the rule prior to the sunset date and will, at that point,
decide whether to modify, extend, or maintain the sunset, consistent
with the requirements of the APA, and in accordance with considerations
discussed in Section E below.
D. Severability
The Departments intend for the provisions of this proposed rule to
be severable from each other. Proposed 8 CFR 208.33 and 8 CFR 1208.33
each include a paragraph describing the Departments' intent. In short,
if a court holds that any provision in a final 8 CFR 208.33 or 8 CFR
1208.33 is invalid or unenforceable, the Departments intend that the
remaining provisions of a final 8 CFR 208.33 or 1208.33, as relevant,
would continue in effect to the greatest extent possible. In addition,
if a court holds that any such provision is invalid or unenforceable as
to a particular
[[Page 11727]]
person or circumstance, the Departments intend that the provision would
remain in effect as to any other person or circumstance. Remaining
provisions of a final rule could continue to function sensibly
independent of any held invalid or unenforceable. For example, the
lawful pathways condition could be applied by asylum officers or IJs
even if a court finds that the amended credible fear interview or
review procedures, or a particular portion of those procedures, are
facially invalid. Similarly, the proposed rule could be applied using
the credible fear standard at 8 CFR 208.30(e)(2), (3), even if a court
finds the ``reasonable possibility'' standard invalid.
E. Effective Date, Temporary Period, and Further Action
The Departments propose that, beginning on the rule's effective
date, the rebuttable presumption of asylum ineligibility would apply to
noncitizens who enter the United States after the end of implementation
of the Title 42 public health Order. The Departments propose this
approach because of--
the high volume of encounters projected upon the lifting
of the Title 42 public health Order absent a policy change;
the need to process all migrants encountered without
authorization at the SWB under Title 8 upon the lifting of the Title 42
public health Order; and
the fact that the lifting of the Title 42 public health
Order will result in ports of entry once again being open to all
migrants, which enables the expansion of the CBP One app to provide for
lawful, safe, and orderly processes for migrants in northern and
central Mexico to schedule appointments to arrive at ports of entry
and, where applicable, make asylum claims--a critically important
lawful process that would support the implementation of the proposed
rule.
Because the Departments intend for the rule to address the surge in
migration that, in the absence of this rule, is anticipated to follow
the lifting of the Title 42 public health Order, the Departments
propose for the rule to be temporary in duration, applying to those who
enter the United States at the SWB during the 24-month period following
the rule's effective date.\182\ During this time, the United States
will continue to build on the multi-pronged, long-term strategy with
our foreign partners throughout the region to support conditions that
would decrease irregular migration, work to improve refugee processing
and other immigration pathways in the region, and implement other
measures as appropriate, including continued efforts to increase
immigration enforcement capacity and streamline processing of asylum-
seekers and other migrants. Although the Departments believe that
aspects of the present situation at the border are likely to continue
for some time and are unlikely to be significantly changed in a short
period, the Departments believe that a 24-month period provides
sufficient time to implement and assess the effects of the policy
contained in this proposed rule. In addition, the Departments believe
that a 24-month period is sufficiently long that it would be an
effective deterrent to irregular migrants who might otherwise make the
dangerous journey to the United States. Recognizing, however, that
there is not a specific event or demarcation that would occur at the
24-month mark, the Departments specifically request comments on the
proposal to have the rule apply for a 24-month period, including
whether that period should be longer or shorter.
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\182\ The Departments note that, because the rebuttable
presumption only applies subsequent to the end of the implementation
of the Title 42 public health Order, the rebuttable presumption may
only cover noncitizens who enter the United States for less than a
24-month period. For example, if the Title 42 public health Order is
extended beyond its expected termination date such that it remains
in effect for six months following the effective date of the final
rule, noncitizens could be subject to the rebuttable presumption for
18 months, absent an extension by the Departments as discussed
below.
---------------------------------------------------------------------------
The Departments also will closely monitor conditions during this
period. Before the period concludes, the Departments will conduct a
review and make a decision, consistent with the requirements of the
APA, whether additional rulemaking is appropriate to modify, terminate,
or extend the rebuttable presumption and the other provisions of this
rule.\183\ Such review and decision would consider all relevant
factors, which the Departments expect would include the following
factors: \184\
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\183\ See 5 U.S.C. 551 et seq.
\184\ In general, these factors represent the same
considerations made by the Departments before preparing this
proposed rule, and the Departments believe they represent relevant
and important considerations that would relate to a future
determination of whether to modify, terminate, or extend the lawful
pathways limitation.
---------------------------------------------------------------------------
Current and projected migration patterns, including the
number of migrants seeking to enter the United States or being
encountered at the SWB. Shifts in the current or projected migration
patterns could indicate that the rebuttable presumption is no longer
required because a significant decrease in actual and expected
migrants. Alternatively, if migration remains or is expected to remain
at a sustained or heightened level, despite the Departments' actions,
that could support a determination that the sunset provision should be
lifted or extended.
Resource limitations, including whether, absent the
rebuttable presumption, the number of noncitizens seeking or expected
to seek to enter the United States at the SWB exceeds or is likely to
exceed the Departments' capacity to safely, humanely, and efficiently
administer the immigration system, including the asylum system.
The availability of lawful, safe, and orderly pathways to
seek protection in the United States and partner nations, including
meaningful pathways to seek asylum and other forms of protection in the
United States, such as that provided by use of the CBP One app to
schedule a time and place to present at the port of entry.
Foreign policy considerations, including whether
modifying, terminating, or extending the rule would further or hamper
any United States foreign policy goals, as determined by ongoing
engagement with key foreign partners.
In addition, the Departments would expect to consider their
experience under the rule to that point, including the effects of the
rebuttable presumption on those pursuing asylum claims.
Meanwhile, the Departments will continue to monitor all relevant
circumstances during the period prior to the issuance of the rule. If
the Title 42 public health Order is lifted prior to the issuance of the
rule, or should conditions at the border otherwise necessitate
immediate action and support the issuance of a rule under an exception
to notice-and-comment and delayed effective date requirements,\185\ the
Departments could issue a temporary or interim final rule to deal with
the immediate and urgent situation that they and their regional
partners are facing.
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\185\ See 5 U.S.C. 553(a), (b), (d).
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F. Proposed Rescission of TCT Bar Final Rule and Proclamation Bar IFR
The Departments propose rescinding prior rules establishing bars to
asylum that are currently subject to court orders rendering them
ineffective. In Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018) (``Proclamation Bar IFR''), the Departments
adopted a bar to asylum for noncitizens who enter the United States in
contravention of certain
[[Page 11728]]
presidential proclamations.\186\ And in Asylum Eligibility and
Procedural Modifications, 85 FR 82260 (Dec. 17, 2020) (``TCT Bar final
rule''),\187\ the Departments adopted a bar to asylum for those
noncitizens who failed to apply for protection while in a third country
through which they transited en route to the United States, with
certain exceptions. As discussed in more detail in Part V.C.5 of this
preamble, the Proclamation Bar IFR was vacated by O.A. v. Trump, 404 F.
Supp. 3d 109 (D.D.C. 2019) \188\ and is also subject to a preliminary
injunction, E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094,
1121 (N.D. Cal. 2018). The TCT Bar final rule is preliminarily
enjoined, E. Bay Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663 (N.D.
Cal. Feb. 16, 2021).
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\186\ See also Executive Order 14010, 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, 8270 (Feb. 2, 2021) (rescinding Proclamation
9880 of May 8, 2019 (Addressing Mass Migration Through the Southern
Border of the United States), the last proclamation related to the
Proclamation Bar IFR).
\187\ The TCT Bar final rule amended an earlier IFR on the same
topic. See Asylum Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019). As explained in more detail in Part V.C.5 of
this preamble, the IFR was vacated prior to the issuance of the TCT
Bar final rule.
\188\ That ruling is subject to a pending appeal that is
presently held in abeyance. See O.A. v. Biden, No. 19-5272 (D.C.
Cir.).
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The Departments have reconsidered the approaches taken in those
rules and now believe that the tailored, time-limited approach proposed
here--which couples mechanisms for individuals to enter lawfully (and
as appropriate make protection claims) with new conditions on asylum
eligibility for those who enter without taking advantage of these and
other lawful processes--is better suited to address increased flows
across the SWB.
As an initial matter, the TCT Bar final rule would conflict with
the carefully crafted provisions of the proposed rule. The proposed
rule takes into account whether individuals sought asylum or other
forms of protection in third countries en route to the United States
but unlike the TCT Bar final rule, the proposed rule would not require
that all noncitizens make such an application, as long as they pursue a
lawful pathway or rebut the presumption. If the TCT Bar final rule were
to become effective, it would interfere with this scheme by barring
those who take advantage of a lawful pathway to enter along the SWB or
who otherwise rebut the presumption. Although the TCT Bar final rule is
preliminarily enjoined and thus not operative, proposing to rescind it
alongside proposing this rule will eliminate confusion and the risk of
the TCT Bar final rule becoming effective and interfering with the
proposed rule.
Additionally, the Departments do not see the TCT Bar final rule as
necessary for negotiations with other nations. A stated goal of the TCT
Bar final rule was to ``facilitate ongoing diplomatic negotiations with
Mexico and the Northern Triangle countries regarding general migration
issues, related measures employed to control the flow of aliens (such
as the Migrant Protection Protocols), and the humanitarian and security
crisis along the southern land border between the United States and
Mexico.'' 84 FR at 33840; see 85 FR at 82278. Since the TCT Bar IFR and
final rule were published in 2019 and 2020, the nature of these
negotiations has changed. And since the TCT Bar final rule has been
enjoined, the Departments have not needed it to bolster such
negotiations. Thus, the Departments do not view the TCT Bar final rule
as a necessary component of negotiations with other nations.
Second, the Departments do not intend to adopt the Proclamation Bar
IFR permanently, and therefore propose to rescind it, because the
Departments believe the tailored approach proposed here is better
suited to address current circumstances. The Proclamation Bar IFR
conflicts with the tailored approach in this proposed rule because it
sought to bar from asylum all individuals who did not cross at a port
of entry. See 83 FR at 55935 (``The interim rule, if applied to a
proclamation suspending the entry of aliens who cross the southern
border unlawfully, would bar such aliens from eligibility for asylum
and thereby channel inadmissible aliens to ports of entry, where such
aliens could seek to enter and would be processed in an orderly and
controlled manner'').
For the above reasons, the Departments believe the TCT Bar final
rule and the Proclamation Bar IFR would conflict with the approach
taken in the proposed rule and would be unnecessary. And particularly
given the injunctions against those rules, the Departments are not
aware of any serious reliance interests in them. Thus, the Departments
propose rescinding the amendments made by both the Proclamation Bar and
the TCT Bar rulemaking to 8 CFR 208.13, 208.30, 1003.42, 1208.13, and
1208.30, as well as amendments made to those sections by Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (Dec. 11, 2020) (``Global Asylum Rule'') relating
to the Proclamation Bar IFR and TCT Bar final rule. With respect to the
proposed rescission of the Proclamation Bar IFR, the Departments will
consider comments received in response to this NPRM alongside the
comments already received in response to the Proclamation Bar IFR, and
may issue a final rule as part of this rulemaking or as part of the
original Proclamation Bar rulemaking.
V. Justification and Legal Authority
A. Justification
This proposed rule temporarily imposes a rebuttable presumption of
asylum ineligibility for certain noncitizens who enter the United
States outside of a lawful pathway or without first seeking protection
in a third country in the region that they have traveled through. This
condition is appropriately tailored to circumstances expected upon the
lifting of the Title 42 public health Order, absent a policy change,
including most notably (1) the additional number of migrants
anticipated to arrive at the border following the eventual lifting of
the Title 42 public health Order; (2) the severe strain this
anticipated influx of migrants would place on DHS resources; (3) the
availability of lawful options for some migrants seeking protection, in
the United States and elsewhere in the region; and (4) the Departments'
recent experience showing that an increase in lawful pathways coupled
with consequences for evading them can significantly--and positively--
affect behavior and undermine smuggling networks. The circumstances
detailed above demand a shift in incentives and processes, coupled with
meaningful opportunities for individuals to seek protection. The
proposed rule strikes this balance, while also including appropriate
safeguards for especially vulnerable individuals.
As discussed above, the United States was already experiencing high
levels of migration throughout the end of 2022, and, absent further
action akin to that proposed here, anticipates a surge in migration
following the eventual lifting of the Title 42 public health Order. DHS
was encountering an average of approximately 8,500 individuals per day
at the beginning of December 2022, and while the implementation of the
CHNV parole processes has supported a drop in encounter numbers,
current DHS planning assumptions suggest that encounter numbers may
increase to 11,000-13,000 per day following the termination of the
Title 42 public health
[[Page 11729]]
Order absent a policy change.\189\ As detailed above, such a sustained
surge in migration would exceed DHS's current capacity to maintain the
safe and humane processing of migrants at the border. Spurred by
smugglers through social media, an increasing number of migrants are
likely to put their lives at risk--and enrich smuggling networks as
they do so--in attempts to unlawfully enter the United States.\190\ The
influx of migrants would likely also place additional strains on local
communities that are already at or near their capacity to absorb
releases from CBP border facilities.
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\189\ DHS Post-Title 42 Planning Model generated January 6,
2023.
\190\ Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (last visited Dec. 6,
2022).
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This proposed rule seeks to disincentivize this expected surge of
irregular migration and instead incentivize migrants to take safe,
orderly, and lawful pathways to the United States or to seek protection
in third countries in the region. The proposed rule aims to achieve
that shift in incentives by imposing a rebuttable presumption of asylum
ineligibility, as well as an appropriate standard for screening for
statutory withholding of removal or protection under the CAT, for
noncitizens who enter the United States outside of a lawful pathway and
without first seeking protection in a third country in the region. To
respond to the expected increase in the numbers of migrants seeking to
cross the border without authorization following the lifting of the
Title 42 public health Order, this shift would be needed to prevent a
severe strain on the immigration system and ensure that the Departments
can continue to safely, humanely, and efficiently administer the
immigration system, including the asylum system. Notably, as also
detailed above, a substantial proportion of migrants who cross the SWB
ultimately are not found to have a valid asylum claim. Yet absent this
NPRM, the vast majority of the migrants expected to surge to the border
and make a fear claim following the lifting of the Title 42 public
health Order would be screened in and permitted to wait in the United
States for years before their asylum or other protection claim could be
adjudicated. In the Departments' judgment, this circumstance would
impose severe costs on the asylum system and the immigration system as
a whole, and would also likely be self-reinforcing: the expectation of
a lengthy stay in the United States, regardless of the merit of an
individual's case, risks driving even more migration.\191\
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\191\ While not conclusive, the longer wait times and lower
share of encounters being removed is correlated with an increase in
flows. See Part III.A.6 of this preamble.
---------------------------------------------------------------------------
The Departments assess that the Government can reduce and redirect
such migratory flows by coupling an incentive for migrants to pursue
lawful pathways with a substantial disincentive for migrants to cross
the land border unlawfully. The Venezuela process, for example, has
sharply reduced Venezuelan migratory flows throughout the region and
channeled these flows into a lawful process to come to the United
States.\192\ The U4U process also sharply reduced irregular flows of
Ukrainian citizens to Mexico and to the SWB, and channeled them instead
into a lawful process.\193\ Likewise, though early in implementation,
the processes established for nationals of Cuba, Haiti, and Nicaragua
have signaled similar results in reducing encounters of such nationals.
The Departments anticipate that the rebuttable presumption proposed by
this rule, particularly in light of the innovative steps the United
States Government and other governments are taking to provide other
safe, lawful, and orderly pathways, would--as evidenced by the success
of the Venezuela process and U4U--incentivize migrants to seek
protection through such lawful pathways.
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\192\ Encounters of Venezuelan nationals between ports of entry
fell from an average of 1,100 per day the week before the
announcement of the Venezuela parole process on October 12, 2022, to
an average of 67 per day the week ending November 29, 2022 and 28
per day the week ending January 22, 2023. OIS analysis of UIP data
downloaded on January 23, 2023.
\193\ Encounters of Ukrainian nationals fell from an average of
875 per day the week before the announcement of U4U on April 21,
2022, to an average of 10 per day the week ending May 2. OIS
analysis of UIP data downloaded on December 9, 2022.
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In conjunction with the proposed rule, the Departments will
continue to work with foreign partners to expand their legal pathways
and expand the Departments' own mechanisms for lawful processing.
As discussed in Part III.E.7 of this preamble, CBP will, upon the
lifting of the Title 42 public health Order, expand access to the CBP
One app, an innovative scheduling mechanism that will provide migrants
a means to schedule a time and place to present themselves at a land
border port of entry. CBP anticipates that using CBP One to permit
noncitizens who lack documents sufficient for admission, including
those who potentially wish to claim asylum, to schedule a time to
arrive at a port of entry would allow CBP to process significantly more
such individuals than it has been able to before. For comparison, from
2014 to 2019--before travel was curtailed by the COVID-19 pandemic and
the application of the Title 42 public health Order at the border--CBP,
on average, processed 326 inadmissible individuals each day at ports of
entry along the entire SWB.\194\ CBP expects to process multiple times
more individuals on average per day using CBP One. This significant
expansion of processing noncitizens at land border ports of entry,
including those who may be seeking asylum, would ensure that a safe and
orderly process exists for such noncitizens.
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\194\ OIS Persist Dataset based on data through November 2022.
---------------------------------------------------------------------------
Notably, however, the level of resources required to expand port of
entry processing in this way would only be feasible if, as DHS
projects, encounters at the border are driven down by the application
of a consequence for not taking advantage of the expanded range of
procedures in partner countries or the United States. For instance, CBP
has previously had to shift staffing and resources at the SWB away from
ports of entry to help process the increased number of individuals
seeking to cross between ports of entry, which directly impacts other
CBP operations. In the fall of 2022, for example, CBP officers were
shifted from duties at ports of entry to assist USBP in processing
increased numbers of migrants crossing between ports of entry in El
Paso and Del Rio, Texas. Shifting CBP's finite staff in this manner
diminishes its ability to simultaneously execute its many critical
mission sets at the ports of entry--and thus highlights the need to
couple the increased processing at ports of entry with a disincentive
for those who might otherwise cross without authorization between ports
of entry. Absent this proposed rule, DHS anticipates that its ability
to process noncitizens at ports of entry, as well as continue to
facilitate lawful trade and travel and maintain border security, would
be adversely impacted by the requirement to detail personnel from the
ports of entry to help process individuals encountered between ports of
entry.
The proposed rule's anticipated effect on migration flows would
also be integrated into and advance key foreign policy goals relating
to migration in the Western Hemisphere--including our efforts to
encourage other countries to provide protection to migrants who
[[Page 11730]]
need it. As described above, governments across the region have put in
place new mechanisms to provide protection for millions of displaced
migrants--often with support from U.S.-funded international
organizations. These efforts include grants of temporary protection for
millions of migrants in Colombia, Costa Rica, Ecuador, and Peru. They
also include Mexico's commitment to strengthening its asylum system--
which now processes the third most applications in the world, behind
just the United States and Germany--and to providing labor pathways for
migrants from Central America.\195\ In issuing this proposed rule, the
Departments have carefully considered the international efforts
discussed above. In ways that have not been true even in the recent
past, regional partners have taken meaningful steps over the last two
years to increase the availability of and access to protection options.
Indeed, access to protection is more available now throughout the
region than at any time in the recent past. This proposed rule takes
account of these regional efforts and is designed to promote their
further development by demonstrating to partner countries and migrants
that there are conditions on the United States' ability to accept and
immediately process individuals seeking protection, and that partner
countries should continue to enhance their efforts to share the burden
of providing protection for those who qualify.
---------------------------------------------------------------------------
\195\ L.A. Declaration Fact Sheet; International Rescue
Committee, Asylum Seekers in Mexico Need Support to Join the Labor
Market and Rebuild Their Lives, IRC and Citi Foundation Respond with
a Project (Dec. 7, 2022), https://www.rescue.org/press-release/asylum-seekers-mexico-need-support-join-labor-market-and-rebuild-their-lives-irc-and (last visited Dec. 13, 2022).
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This proposed rule also would provide important built-in
safeguards. First, this proposed rule would be temporary in nature, as
is appropriate to respond to the predicted increase that would
otherwise follow the lifting of the Title 42 public health Order.
During the 24-month period in which the rule would be applied to
noncitizens who enter the United States, the Departments will continue
to work with foreign partners to expand their legal pathways, expand
the Departments' own mechanisms for lawful processing, take account of
the processes' successes and failures, and monitor both the numbers of
expected and encountered migrants and the state of the Departments'
resources, as the Departments decide whether to extend the rule's
coverage, modify it, or allow it to sunset.
Second, as described above, the presumption proposed by this rule
would be rebuttable in certain circumstances. In particular, the
presumption would necessarily be rebutted in circumstances in which it
would not be reasonable for a noncitizen to avail themselves of other
options--including if, at the time of entering the United States, the
noncitizen faced an acute medical emergency or an extreme and imminent
threat to life or safety, or if the noncitizen was a victim of a severe
form of trafficking. The proposed rule would also permit adjudicators
to find the presumption rebutted in other exceptionally compelling
circumstances, based on the sound exercise of their judgment.
Third, noncitizens to whom the proposed rule's presumption applies
and is not rebutted would still be screened for eligibility for
statutory withholding of removal and protections under the regulations
implementing the CAT, which bar removal to a country where the
noncitizen would be subject to persecution on protected grounds or to
torture. Furthermore, if they receive a negative credible fear
determination, they would be able to elect to have that determination
swiftly reviewed by an IJ. Those whose negative determinations are
upheld would be expeditiously removed from the United States. Those who
receive a positive determination, however, would have the opportunity
for further consideration of their protection claims in the course of a
section 240 removal proceeding or asylum merits interview.
Fourth, the proposed rule includes an exception to ensure that the
condition does not apply to unaccompanied children. The proposed rule
would also protect family unity by providing that if one member of a
family traveling together is excepted from the presumption that the
condition applies or has rebutted the presumption, then the other
members of the family as described in 8 CFR 208.30(c) are similarly
treated as excepted from the presumption or as having rebutted the
presumption.
Fifth, while the proposed rule is designed to encourage those who
arrive at the ports of entry to use a DHS scheduling system
(specifically, the CBP One app) to schedule an appointment to present
themselves at a port of entry for processing, it also recognizes that
there are certain circumstances in which use of that system is not
possible, including for reasons of illiteracy or a language barrier.
The proposed rule would except from the presumption those who presented
at a port of entry without a scheduled appointment and established by a
preponderance of the evidence that it was not possible to use the
scheduling system for these and other compelling reasons.
In sum, the Departments have proposed an approach that strikes an
appropriate balance between the compelling need to address current and
impending exigent circumstances in a manner that prevents adverse
consequences for the immigration system and migrants, on the one hand,
and furnishing avenues for individual migrants to seek protection in
the United States and other countries in the region.
B. Consideration of Alternatives
The Departments have considered several alternative approaches to
managing the current and expected surge in migration, including those
from CHNV countries. The Departments have assessed these alternative
approaches with respect to the key goals of (1) providing that
migrants, to the extent achievable, have meaningful opportunity to seek
protection; (2) disincentivizing the expected surge in migration and
preventing severe adverse consequences for the immigration system; (3)
achieving core foreign policy goals in the region; and (4) providing
individuals the opportunity to schedule a time to arrive at a port of
entry to apply for admission and, once present in the United States, to
apply for all available forms of relief and protection.
1. Maintaining the Status Quo
First, the Departments considered maintaining the status quo,
consistent with the plan in place when CDC issued its now-enjoined
Title 42 termination Order in April 2022. In preparation for the
expected May 2022 termination, DHS published a DHS Plan for Southwest
Border Security and Preparedness that set forth how the Department
planned to manage an anticipated increase in migration.\196\ That plan,
which has been continually refined since it was introduced and
continues to be in place, is predicated on 6 pillars: (1) surging
resources to the border; (2) more efficiently processing
[[Page 11731]]
individuals encountered at the SWB; (3) administering consequences,
including ER and focused prosecutions; (4) bolstering NGO capacity to
receive noncitizens released by DHS; (5) targeting and disrupting
transnational organized crime; and (6) working with foreign partners to
address migratory flows.
---------------------------------------------------------------------------
\196\ Memorandum for Interested Parties, from Alejandro N.
Mayorkas, Secretary of Homeland Security, Re: DHS Plan for Southwest
Border Security and Preparedness at 19 (Apr. 26, 2022), https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf (last visited Dec. 13, 2022);
Department of Homeland Security, Update on Southwest Border Security
and Preparedness Ahead of Court-Ordered Lifting of Title 42 (Dec.
13, 2022), https://www.dhs.gov/publication/update-southwest-border-security-and-preparedness-ahead-court-ordered-lifting-title-42 (last
visited Jan. 5, 2023).
---------------------------------------------------------------------------
That plan remains an important part of DHS's response to the
expected surge in migration following the lifting of the Title 42
public health Order. However, the numbers of migrants have increased,
and demographics of encounters have shifted over the past nine months,
as discussed above. As a result, the Departments have concluded that
this plan alone would not be sufficient to shift incentives, and thus
migratory flows, in a way that would ensure the safe, humane, and
orderly processing of migrants.
As described above, DHS Office of Immigration Statistics projects
that encounters could average 11,000-13,000 per day after the lifting
of the Title 42 public health Order, absent additional policy
changes.\197\ These encounters, which are expected to be composed in
significant part of Venezuelan, Nicaraguan, and Cuban nationals, are
best addressed through the application of immediate consequences for
unlawful entry, alongside the provision of lawful pathways, such as the
CBP One app and the recently announced parole processes. The
Departments emphasize, however, that the incentive structure created by
such processes relies on the availability of an immediate consequence,
such as the application of expedited removal under this NPRM, for those
who do not have a valid protection claim or lawful basis to stay in the
United States.
---------------------------------------------------------------------------
\197\ DHS Post-Title 42 Planning Model generated January 6,
2023.
---------------------------------------------------------------------------
In addition, as described in greater detail above, nationals of
these countries are more difficult to remove and as such put additional
strain on DHS processes and resources, absent the willingness of the
Government of Mexico or another third country to accept the return of
these nationals. Such a sustained surge in encounters would strain the
Departments' available resources and lead to increased numbers of
noncitizens being released into the United States, in ways that strain
the resources of States, local communities, and NGOs.\198\ Absent
material changes in policy, the United States would likely see a
significant and challenging increase in migrants taking a dangerous
journey towards the border.
---------------------------------------------------------------------------
\198\ Andy Newman and Ra[uacute]l Vilchis, A Migrant Wave Tests
New York City's Identity as the World's Sanctuary, New York Times,
Aug. 24, 2022, https://www.nytimes.com/2022/08/20/nyregion/nyc-migrants-texas.html (last visited Dec. 16, 2022).
---------------------------------------------------------------------------
Importantly, DHS has, through the success of the Venezuela process,
and the initial success of the Cuban, Haitian, and Nicaraguan
processes, demonstrated that the application of a significant
consequence for bypassing lawful pathways, combined with the
availability of lawful pathways, can fundamentally change migratory
flows. Given the limitations on removing these nationals to their
countries of origin, these processes have depended, in significant
part, on the Government of Mexico's willingness to accept the returns
of such nationals.
The Government of Mexico, for its part, has made clear that its
willingness to accept the return of these nationals depends on the
United States' willingness to continue the model that has proven
successful--that is, to couple new pathways with meaningful,
expeditious, and fairly-imposed consequences for bypassing lawful
pathways.
For these reasons, DHS has concluded that maintaining the status
quo is not a reasonable option and that a policy shift consistent with
what is provided for in the proposed rule is needed to serve key
foreign policy goals and address the expected flows.
2. Utilizing Contiguous-Territory Return Authority
The Departments considered whether returning noncitizens to Mexico
under section 235(b)(2)(C) of the INA, 8 U.S.C. 1225(b)(2)(C), either
through the Migrant Protection Protocols (``MPP'') or via another
programmatic use of the contiguous-territory return authority, would
have a similar effect to the proposed approach. In December 2022, a
district court stayed Secretary Mayorkas's October 29, 2021, memorandum
terminating MPP. See Dkt. 178, Texas v. Biden, No. 21-cv-67 (N.D. Tex.
Dec. 15, 2022). For two reasons, DHS is responding to the current
exigency with the approach reflected in this proposed rule rather than
attempting to manage the current surge in migration by relying solely
on the programmatic use of its contiguous-territory return authority.
First, the resources and infrastructure necessary to use
contiguous-territory return authority at scale are not currently
available. To employ the contiguous-territory return authority at a
scale sufficient to meaningfully address the anticipated migrant flows,
the United States would need to redevelop and significantly expand
infrastructure for noncitizens to be processed in and out of the United
States to attend immigration court hearings throughout the duration of
their removal proceedings. This would require, among other things, the
construction of substantial additional court capacity along the border.
It would also require the reassignment of IJs and ICE attorneys to
conduct the hearings and CBP personnel to receive and process those who
are coming into and out of the country to attend hearings.
Second, programmatic implementation of contiguous-territory return
authority requires Mexico's concurrence and support. When DHS was
previously under an injunction requiring it to re-implement MPP, the
Government of Mexico would only accept the return of MPP enrollees
consistent with available shelter capacity in specific regions, and
indeed had to pause the process at times due to shelter constraints.
Notably, Mexico's shelter network is already strained from the high
volume of northbound irregular migration we are seeing today.\199\ The
Government of Mexico announced the end of the court-ordered
reimplementation of MPP on October 25, 2022.\200\ Any potential re-
starting of returns under MPP or another programmatic use of the
contiguous-territory return authority would require the Government of
Mexico to make an independent decision to accept noncitizens who would
be returned under this authority and to date the Government of Mexico
has made clear that it will not accept such returns.\201\
---------------------------------------------------------------------------
\199\ Giovanna Dell'otro, U.S. court rejects maintaining COVID-
19 asylum restrictions, WTOL11, Dec. 16, 2022, https://www.wtol.com/article/news/nation-world/migrants-mexico-us-border-asylum-limits-end/507-02a353b7-d61f-4536-b3c9-bb45c3fbb388 (last visited Dec. 17,
2022).
\200\ Government of Mexico, Finaliza el programa de estancias
migratorias en M[eacute]xico bajo la Secci[oacute]n 235 (b)(2)(C) de
la Ley de Inmigraci[oacute]n y Nacionalidad de EE. UU, Oct. 25,
2022, https://www.gob.mx/sre/prensa/finaliza-el-programa-de-estancias-migratorias-en-mexico-bajo-la-seccion-235-b-2-c-de-la-ley-de-inmigracion-y-nacionalidad-de-ee-uu (last visited Dec. 19, 2022).
\201\ See Government of Mexico, Press Release, Foreign Ministry
rejects having migrants stay in Mexico under reimplementation of
U.S. Immigration and Nationality Act Section 235 (b)(2)(C) (Feb. 6,
2023), https://www.gob.mx/sre/prensa/foreign-ministry-rejects-having-migrants-stay-in-mexico-under-reimplementation-of-us-immigration-and-nationality-act-section-235-b-2-c (last visited Feb.
11, 2023).
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3. Employing Safe-Third-Country Authority
The Departments considered whether to use section 208(a)(2)(A) of
the INA, 8 U.S.C. 1158(a)(2)(A), by negotiating safe-third-country
agreements or asylum cooperative agreements. Negotiating such
agreements, however, is a lengthy
[[Page 11732]]
and complicated process that depends on the agreement of other nations.
Although the time between publication of an NPRM and promulgation of a
final rule can be substantial, the time it takes to negotiate and
finalize safe-third-country agreements remains even more protracted
since they involve not only diplomatic and operational negotiations,
but also, in many countries, approval of any such agreement by their
respective legislatures.
Moreover, it would be particularly difficult (if possible at all)
to negotiate a safe-third-country agreement that would provide the
humanitarian protections, among other things, provided for by this
proposed rule. The safe-third-country provision provides that ``if the
Attorney General determines that [an] alien may be removed, pursuant
to'' a safe-third-country agreement, ``to a country in which the
alien's life or freedom would not be threatened'' based on a protected
characteristic and ``where the alien would have access to a full and
fair procedure for determining a claim to asylum or equivalent
temporary protection,'' then the noncitizen may not even apply for
asylum ``unless the Attorney General finds that it is in the public
interest for the alien to receive asylum in the United States.'' INA
208(a)(2)A), 8 U.S.C. 1158(a)(2)(A). This proposed rule, however, would
continue to allow noncitizens to pursue asylum and other protection in
the United States, and, while it would create a rebuttable presumption,
it specifies circumstances in which that presumption is necessarily
rebutted and other exceptions. Even if the safe-third-country provision
could be used to achieve similar results, it could not do so without
protracted bilateral or multilateral negotiations with foreign
counterparts. Such agreements therefore would likely have limited
short-term operational benefit as compared to this proposed rule and
are not something that can be achieved within the time frame needed
without significant bilateral efforts, particularly given partner
countries' resistance to entering into such agreements.
4. Reducing Use of Credible Fear Interviews
The Departments considered whether to place individuals who claim
fear directly into section 240 removal proceedings instead of the
increased reliance on expedited removal as a processing pathway. This
would free up USCIS adjudicators, who would otherwise be performing
credible fear interviews, to work on reducing the affirmative asylum
backlog.
This approach, however, would come with significant costs. It would
put an increased strain on already stretched State and local
governments, as well as supporting NGOs. And it would risk exacerbating
the already anticipated surge in migratory flows. As described above,
those placed in removal proceedings wait an average of 4 years before
their proceedings are concluded. Given limited ICE detention capacity,
individuals who are not determined to pose a national-security or
public-safety threat generally are released during the course of these
proceedings,\202\ thus increasing pressures on States and local
communities, as well as supporting NGOs. This framework, pursuant to
which migrants know that they will likely be in the United States for
years before any order of removal, also risks providing an increased
incentive for individuals to come to the United States, thus leading to
an increase in migratory flows at precisely the moment at which they
need to be discouraged. For these reasons, this option is not a viable
one.
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\202\ OIS estimates that 88 percent of noncitizens encountered
at the SWB in FY 2014-FY 2019 who were placed in expedited removal
and made fear claims resulting in their referral to section 240
proceedings were released from detention prior to the completion of
their removal proceedings. OIS analysis of Enforcement Lifecycle
data as of September 30, 2022.
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For all the reasons above, the Departments have concluded that this
proposed rule is the best option for responding to the current and
impending exigent circumstances. The Departments invite comment on any
other alternatives and their benefits and drawbacks.
C. Legal Authority
1. General Authorities
The Attorney General and the Secretary jointly issue this proposed
rule pursuant to their shared and respective authorities concerning
asylum, statutory withholding of removal, and CAT determinations. The
Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat.
2135, as amended, created DHS and transferred to it many functions
related to the administration and enforcement of Federal immigration
law while maintaining many functions and authorities with the Attorney
General, including concurrently with the Secretary. The HSA charges the
Attorney General with ``such authorities and functions under [the INA]
and all other laws relating to the immigration and naturalization of
aliens as were [previously] exercised by the Executive Office for
Immigration Review [(EOIR)], or by the Attorney General with respect to
[EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521;
HSA 1102, 116 Stat. at 2274. In addition, under the HSA, the Attorney
General retains authority to ``establish such regulations . . ., issue
such instructions, review such administrative determinations in
immigration proceedings, delegate such authority, and perform such
other acts as the Attorney General determines to be necessary for
carrying out'' his authorities under the INA. HSA 1102; INA 103(g)(2),
8 U.S.C. 1103(g)(2).
Under the HSA, the Attorney General retains authority over the
conduct of removal proceedings pursuant to section 240 of the INA, 8
U.S.C. 1229a (``section 240 removal proceedings''). These adjudications
are conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g), 8
U.S.C. 1103(g). This IJ authority includes adjudication of statutory
withholding of removal, CAT protection, and certain asylum
applications. With limited exceptions, IJs within DOJ adjudicate
asylum, statutory withholding of removal, and CAT protection
applications filed by noncitizens during the pendency of section 240
removal proceedings and asylum applications referred by USCIS to the
immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 240(a)(1), 8
U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR
1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532, 536-37
(7th Cir. 2018) (describing affirmative and defensive asylum
processes). The Board of Immigration Appeals (``BIA''), also within the
DOJ, in turn hears appeals from IJ decisions. See 8 CFR 1003.1(b)(3);
see also Garland v. Ming Dai, 141 S. Ct. 1669, 1677-78 (2021)
(describing appeals from IJ to BIA). In addition, the INA provides that
the ``determination and ruling by the Attorney General with respect to
all questions of law shall be controlling.'' INA 103(a)(1), 8 U.S.C.
1103(a)(1).
The INA, as amended by the HSA, charges the Secretary ``with the
administration and enforcement of [the INA] and all other laws relating
to the immigration and naturalization of aliens,'' INA 103(a)(1), 8
U.S.C. 1103(a)(1), and grants the power to take all actions ``necessary
for carrying out'' the Secretary's authority under the immigration
laws, INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C.
202.
Section 208 of the INA authorizes the ``Secretary of Homeland
Security or the Attorney General'' to ``grant asylum'' to a noncitizen
``who has applied for asylum in accordance with the
[[Page 11733]]
requirements and procedures established by'' the Secretary or the
Attorney General under section 208 if the Secretary or the Attorney
General determines that the noncitizen is a refugee. INA 208(b)(1)(A),
8 U.S.C. 1158(b)(1)(A). As detailed below, section 208 thereby
authorizes the Secretary and the Attorney General to ``establish''
``requirements and procedures'' to govern asylum applications. Id. The
statute further authorizes them to ``establish,'' ``by regulation,''
``additional limitations and conditions, consistent with'' section 208,
under which a noncitizen ``shall be ineligible for asylum.'' INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also INA 208(d)(5)(B), 8
U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the Attorney
General to ``provide by regulation for any other conditions or
limitations on the consideration of an application for asylum not
inconsistent with [the INA]'').\203\ The INA also provides authority to
publish regulatory amendments governing the apprehension, inspection
and admission, detention and removal, withholding of removal, deferral
of removal, and release of noncitizens encountered in the interior of
the United States or at or between the U.S. ports of entry. See INA
235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
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\203\ Under the HSA, the references to the ``Attorney General''
in the INA are understood also to encompass the Secretary, either
solely or additionally, with respect to statutory authorities vested
in the Secretary in the HSA or subsequent legislation, including in
relation to immigration proceedings before DHS. HSA 1517, 6 U.S.C.
557.
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The HSA granted to DHS concurrent authority to adjudicate
affirmative asylum applications--applications for asylum made outside
the removal context--and authority to conduct credible fear interviews,
make credible fear determinations in the context of expedited removal,
and to establish procedures for further consideration of asylum
applications after an individual is found to have a credible fear. INA
235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also HSA 451(b), 6 U.S.C.
271(b) (providing for the transfer of adjudication of asylum and
refugee applications from the Commissioner of Immigration and
Naturalization to the Director of the Bureau of Citizenship and
Immigration Services, now USCIS). Some of those authorities have been
delegated within DHS to the Director of USCIS, and USCIS asylum
officers conduct credible fear interviews, make credible fear
determinations, and determine whether a noncitizen's asylum application
should be granted. See DHS, Delegation to the Bureau of Citizenship and
Immigration Services, No. 0150.1 (June 5, 2003); 8 CFR 208.2(a), 208.9,
208.30.
Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii),
provides that if an asylum officer determines that a noncitizen subject
to expedited removal has a credible fear of persecution, the noncitizen
shall receive ``further consideration of the application for asylum.''
Section 208(d)(1) of the INA, 8 U.S.C. 1158(d)(1), provides the
Departments with the authority to establish by regulation additional
conditions or limitations on the consideration of asylum applications,
including those filed in accordance with section 235(b) of the INA, 8
U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a); INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C).
The INA also authorizes the Secretary and the Attorney General to
implement statutory withholding of removal under section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3). INA 103(a)(1), (3), (g)(1)-(2), 8 U.S.C.
1103(a)(1), (3), (g)(1)-(2). The United States is a party to the 1967
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.
6223, 606 U.N.T.S. 268 (``Refugee Protocol''), which incorporates
Articles 2 through 34 of the 1951 Convention Relating to the Status of
Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee
Convention''). Article 33 of the Refugee Convention generally prohibits
parties to the Convention from expelling or returning (``refouler'')
``a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or
political opinion.'' Congress codified these obligations in the Refugee
Act of 1980, creating the precursor to what is now known as statutory
withholding of removal.\204\ The Supreme Court has long recognized that
the United States implements its non-refoulement obligations under
Article 33 of the Refugee Convention (via the Refugee Protocol) through
the statutory withholding of removal provision in section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), which provides that a noncitizen may not
be removed to a country where their life or freedom would be threatened
on account of one of the protected grounds listed in Article 33 of the
Refugee Convention.\205\ See INA 241(b)(3), 8 U.S.C. 1231(b)(3); see
also 8 CFR 208.16, 1208.16.
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\204\ Public Law 96-212; 94 Stat. 102 (``Refugee Act'').
\205\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999);
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987)
(distinguishing between Article 33's non-refoulement prohibition,
which aligns with what was then called withholding of deportation
and Article 34's call to ``facilitate the assimilation and
naturalization of refugees,'' which the Court found aligned with the
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158).
It is well-settled that the Refugee Convention and Protocol are not
self-executing. E.g., Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d
Cir. 2005) (``The 1967 Protocol is not self-executing, nor does it
confer any rights beyond those granted by implementing domestic
legislation.'').
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The Departments also have authority to implement Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (``CAT''), Dec. 10, 1984, S. Treaty
Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States
Nov. 20, 1994). The Foreign Affairs Reform and Restructuring Act of
1998 (``FARRA'') provides the Departments with the authority to
``prescribe regulations to implement the obligations of the United
States under Article 3 of the [CAT], subject to any reservations,
understandings, declarations, and provisos contained in the United
States Senate resolution of ratification of the Convention.'' Public
Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C.
1231 note). DHS and DOJ have promulgated various regulatory provisions
implementing U.S. obligations under Article 3 of the CAT, consistent
with FARRA. See, e.g., 8 CFR 208.16(c) through 208.18, and 1208.16(c)
through 1208.18; Regulations Concerning the Convention Against Torture,
64 FR 8478 (Feb. 19, 1999), as corrected by 64 FR 13881 (Mar. 23,
1999).
This proposed rule would not amend, or propose to amend,
eligibility for statutory withholding of removal or CAT protection. As
further discussed below, the proposed rule would apply a ``reasonable
possibility'' standard in screenings for statutory withholding of
removal and CAT protection in cases where the presumption of asylum
ineligibility is applied and not rebutted. While this standard would be
a change from the practice currently applied in the expedited removal
context, it is the same standard used in protection screenings in other
contexts and is consistent with both domestic and international
law.\206\
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\206\ See 8 CFR 208.31.
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2. Authority To Impose Additional Conditions on Asylum Eligibility
Asylum is a form of discretionary relief under section 208 of the
INA, 8 U.S.C. 1158, that, when granted, protects a noncitizen from
removal, creates a path to lawful permanent residence and U.S.
citizenship, enables
[[Page 11734]]
the noncitizen to receive authorization to work, and enables the
noncitizen's eligible family members to seek lawful immigration status
as derivatives. See INA 208-209, 8 U.S.C. 1158-1159. Any noncitizen
``who is physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival . . .)''
may apply for asylum unless the noncitizen is subject to a statutory
exception. INA 208(a)(1), 8 U.S.C. 1158(a)(1). A noncitizen applying
for asylum must establish that he or she is a ``refugee'' who is not
subject to a bar to asylum eligibility and who merits a favorable
exercise of discretion. INA 208(b)(1), 8 U.S.C. 1158(b)(1); INA
240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A); see Moncrieffe v. Holder, 569
U.S. 184, 187 (2013) (describing asylum as a form of ``discretionary
relief from removal''); Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.
2007) (``Asylum is a discretionary form of relief . . . . Once an
applicant has established eligibility . . . it remains within the
Attorney General's discretion to deny asylum.''). For a noncitizen to
establish that he or she is a ``refugee,'' the noncitizen generally
must be someone who is outside of his or her country of nationality and
``is unable or unwilling to return to . . . that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.'' INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A).
Reflecting that asylum is a discretionary form of relief from
removal, the INA provides that the noncitizen bears the burden of
showing both eligibility for asylum and why the Attorney General or
Secretary should exercise the discretion in favor of granting relief.
See INA 208(b)(1), 240(c)(4)(A)(ii), 8 U.S.C. 1158(b)(1),
1229a(c)(4)(A)(ii); 8 CFR 1240.8(d); see Romilus v. Ashcroft, 385 F.3d
1, 8 (1st Cir. 2004). If evidence indicates that one or more of the
grounds for mandatory denial may apply, see INA 208(b)(2)(A)(i)-(vi), 8
U.S.C. 1158(b)(2)(A)(i)-(vi), the asylum applicant also bears the
burden of establishing that the bar at issue does not apply. 8 CFR
1240.8(d); see also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th
Cir. 2008) (applying 8 CFR 1240.8(d) in the context of the aggravated
felony bar to asylum); Chen v. U.S. Att'y Gen., 513 F.3d 1255, 1257
(11th Cir. 2008) (applying 8 CFR 1240.8(d) in the context of the
persecutor bar); Xu Sheng Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d
Cir. 2007) (same).
The Attorney General and the Secretary have long exercised
discretion, now expressly authorized by Congress, to create new rules
governing the granting of asylum. When section 208 was first enacted as
part of the Refugee Act of 1980, it simply provided that the Attorney
General ``shall establish a procedure'' for a noncitizen ``to apply for
asylum,'' and that the noncitizen ``may be granted asylum in the
discretion of the Attorney General if the Attorney General determined
that the noncitizen was a refugee.'' 8 U.S.C. 1158(a) (1982 ed.). In
1980, the Attorney General, in the exercise of that broad statutory
discretion, established several mandatory bars to the granting of
asylum. See 8 CFR 208.8(f) (1980); Aliens and Nationality; Refugee and
Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980). In 1990, the
Attorney General substantially amended the asylum regulations, but
exercised his discretion to retain the mandatory bars to asylum
eligibility related to persecution of others on account of a protected
ground, conviction of a particularly serious crime in the United
States, firm resettlement in another country, and the existence of
reasonable grounds to regard the noncitizen as a danger to the security
of the United States. See Aliens and Nationality; Asylum and
Withholding of Deportation Procedures, 55 FR 30674-01, 30678, 30683
(July 27, 1990); see also Yang v. INS, 79 F.3d 932, 936-39 (9th Cir.
1996) (upholding firm resettlement bar); Komarenko v. INS, 35 F.3d 432,
436 (9th Cir. 1994) (upholding particularly serious crime bar),
abrogated on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.
2009) (en banc).
In that 1990 rule, the Attorney General also codified another
limitation that was first discussed in a published decision in Matter
of Chen, 20 I&N Dec. 16 (BIA 1989). 55 FR at 30678. Specifically,
although the statute defines as a ``refugee,'' and thus allows for
asylum for, a noncitizen based on a showing of past ``persecution or a
well-founded fear of persecution,'' INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A), by regulation, a showing of past persecution only gives
rise to a presumption of a well-founded fear of future persecution,
which DHS can rebut by showing that circumstances have changed such
that the noncitizen no longer has a well-founded fear of future
persecution or that the noncitizen can relocate to avoid persecution
and under all the circumstances it is reasonable to expect the
noncitizen to do so.\207\ 8 CFR 208.13(b)(1), 1208.13(b)(1). Where the
presumption is rebutted, the adjudicator, ``in the exercise of his or
her discretion, shall deny the asylum application.'' \208\ 8 CFR
208.13(b)(1)(i), 1208.13(b)(1)(i). In 1990, Congress added a mandatory
statutory bar for those with aggravated felony convictions. Immigration
Act of 1990, Public Law 101-649, sec. 515, 104 Stat. 5053.
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\207\ As noted below, the internal relocation provision was
added in 2000 by Asylum Procedures, 65 FR 76121, 76126 (Dec. 6,
2000).
\208\ There is a narrow exception to this mandatory
discretionary ground for denial, called ``humanitarian asylum,''
where the noncitizen establishes ``compelling reasons for being
unwilling or unable to return to the country arising out of the
severity of the past persecution'' or ``that there is a reasonable
possibility that he or she may suffer other serious harm upon
removal to that country.'' 8 CFR 208.13(b)(1)(iii),
1208.13(b)(1)(iii).
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With the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (``IIRIRA''), Congress added three
categorical statutory bars on the ability even to apply for asylum, for
(1) noncitizens who can be removed, pursuant to a bilateral or
multilateral agreement, to a third country where they would not be
persecuted on account of a specified ground; (2) noncitizens who failed
to apply for asylum within one year of arriving in the United States;
and (3) noncitizens who have previously applied for asylum and had the
application denied. Public Law 104-208, div. C, sec. 604. Congress also
adopted six mandatory bars to asylum eligibility that largely reflected
the pre-existing, discretionary bars that had been set forth in the
Attorney General's asylum regulations. These bars cover (1) noncitizens
who ``ordered, incited, assisted, or otherwise participated'' in the
persecution of others; (2) noncitizens convicted of a ``particularly
serious crime'' in the United States; (3) noncitizens who committed a
``serious nonpolitical crime outside the United States'' before
arriving in the United States; (4) noncitizens who are a ``danger to
the security of the United States;'' (5) noncitizens who are removable
under a set of specified grounds relating to terrorist activity; and
(6) noncitizens who were ``firmly resettled'' in another country prior
to arriving in the United States. Id. (codified at INA 208(b)(2), 8
U.S.C. 1158(b)(2) (1997)). Congress further added that aggravated
felonies, defined in section 101(a)(43) of the INA, 8 U.S.C.
1101(a)(43), would be considered ``particularly serious crime[s].'' Id.
(codified at INA 208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i) (1997)).
[[Page 11735]]
In IIRIRA, Congress also made clear that the Executive Branch may
continue to exercise its broad discretion in determining whether to
grant asylum by creating additional limitations and conditions on the
granting of asylum. The INA provides that the Attorney General and
Secretary ``may by regulation establish additional limitations and
conditions, consistent with [section 208], under which an alien shall
be ineligible for asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C);
see 6 U.S.C. 552(d); INA 103(a)(1), 8 U.S.C. 1103(a)(1). In addition,
while section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), establishes
certain procedures for consideration of asylum applications, Congress
specified that the Attorney General and Secretary ``may provide by
regulation for any other conditions or limitations on the consideration
of an application for asylum,'' so long as those conditions or
limitations are ``not inconsistent with this chapter,'' INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). In sum, the current statutory
framework retains the broad discretion of the Attorney General (and,
after the HSA, also the Secretary) to adopt additional conditions on
the granting of asylum and procedures for implementing those
conditions.
Previous Attorneys General and Secretaries have since invoked their
authorities under section 208 of the INA to establish bars beyond those
required by the statute itself. See, e.g., Asylum Procedures, 65 FR
76121, 76126 (Dec. 6, 2000) (requiring consideration of the applicant's
ability to relocate safely in his or her home country in assessing
asylum eligibility); Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018) (limit on eligibility for applicants subject to
certain presidential proclamations); Asylum Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17, 2020) (limit on eligibility for
certain noncitizens who failed to apply for protection while in a third
country through which they transited en route to the United States);
Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202 (Oct.
21, 2020) (limits on eligibility for noncitizens convicted of certain
criminal offenses); see also Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 10312, 10342 (Mar. 6, 1997) (IFR
codifying mandatory bars and adding provision allowing for
discretionary denials of asylum where ``the alien can be removed to a
third country which has offered resettlement and in which the alien
would not face harm or persecution''). Establishing additional
conditions is also consistent with historical practice, as discussed
above. See, e.g., Aliens and Nationality; Refugee and Asylum
Procedures, 45 FR 37392, 37392 (June 2, 1980); Asylum and Withholding
of Deportation Procedures, 55 FR 30674, 30683 (July 27, 1990); see also
Yang, 79 F.3d at 936-39 (upholding firm-resettlement bar); Komarenko,
35 F.3d at 436 (upholding particularly-serious-crime bar).
3. The Lawful Pathways Rebuttable Presumption
The rebuttable presumption set forth in this proposed rule is
within the broad discretionary authority granted by section 208 of the
INA. See INA 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C.
1158(b)(1)(A), (b)(2)(C), (d)(5)(B). The proposed rule serves to
prioritize asylum for noncitizens who pursue lawful pathways. It is
therefore consistent with the need for partner countries in the region
to share in the undertaking to afford migrants lawful protection and
the need to further the Departments' continued ability to enforce and
administer U.S. immigration law, including provisions concerning asylum
and removal, in a safe, orderly, expeditious, and effective manner in
the face of exceptionally challenging circumstances. The presumption is
also ``consistent with'' section 208 and with the INA. INA
208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), (d)(5)(B).
``Consistent with'' means ``compatible'' with. Env't Def. Fund, Inc. v.
E.P.A., 82 F.3d 451, 457 (D.C. Cir. 1996) (quoting 3 Oxford English
Dictionary 773 (2d ed. 1989)). Particularly given the history detailed
above, the INA generally and section 208 specifically afford the
Attorney General and Secretary broad discretion to adopt new rules
governing the consideration of claims for and granting of asylum--which
is in all events a discretionary form of relief--so long as those rules
do not conflict with the statute.
The presumption is also consistent with section 208(a)(1) of the
INA, 8 U.S.C. 1158(a)(1), which permits noncitizens in the United
States to apply for asylum ``whether or not at a designated port of
arrival,'' for several reasons. First, the presumption would not
prohibit noncitizens from applying for asylum. Section 208 draws a
distinction between those permitted to apply for asylum and those
eligible to receive a grant of asylum. While the Refugee Act dealt with
these two issues in a single subsection, IIRIRA broke the two into
separate subsections. Section 208(a) (titled ``Authority to apply for
asylum'') governs who may apply for asylum and includes several
categorical bars on applications (e.g., a noncitizen present in the
country for more than one year may not apply). INA 208(a)(1) and
(2)(B), 8 U.S.C. 1158(a)(1) and (2)(B); see INA 241(a)(5), 8 U.S.C.
1231(a)(5). Section 208(b) (titled ``Conditions for granting asylum''),
in turn, governs who is eligible to be granted asylum. Specifically,
section 208(b)(1)(A) provides that the Attorney General or the
Secretary ``may grant asylum to an alien who has applied.'' Section
208(b)(2) then specifies six categories of noncitizens to whom
``[p]aragraph (1)'' of section 208(b) (i.e., the discretionary
authority to grant asylum to an applicant) ``shall not apply.'' Any
noncitizen falling within one of those categories may apply for asylum
under section 208(a)(1) but is categorically ineligible to receive a
grant of asylum under section 208(b). The text and structure of the
statute thus show that there is nothing inconsistent in allowing an
application for asylum to be made while also precluding a grant of
asylum on the basis of that application. See also R-S-C v. Sessions,
869 F.3d 1176, 1187 & n.9 (10th Cir. 2017).
Second, the presumption would not exclude all noncitizens who
arrive outside ports of entry; it would be limited to noncitizens who
have traveled through a third country without seeking asylum or other
protection or those who failed to avail themselves of lawful, safe, and
orderly pathways into the United States. It would also apply to those
who present at a port of entry without scheduling a time to do so,
unless the noncitizen demonstrates that the DHS scheduling mechanism
was inaccessible or unusable.
Third, the proposed rule would establish only a rebuttable
presumption of asylum ineligibility, not a categorical bar. Nothing in
section 208 precludes the Departments from exercising their broad
authority to ``establish additional limitations and conditions'' on
asylum eligibility, INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), or to
establish ``any other conditions or limitations on the consideration of
an application for asylum,'' INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B),
that include rebuttable presumptions. Longstanding BIA precedent has
treated manner of entry as a relevant discretionary factor in
considering an asylum application. Specifically, in adopting the lawful
pathways condition on asylum eligibility, the Departments have
considered the BIA's decision in Matter
[[Page 11736]]
of Pula.\209\ In Matter of Pula, the BIA held that a noncitizen's
``circumvention of orderly refugee procedures''--including their
``manner of entry or attempted entry,'' ``whether the alien passed
through any other countries or arrived in the United States directly
from his country, whether orderly refugee procedures were in fact
available to help him in any country he passed through, and whether he
made any attempts to seek asylum before coming to the United States''--
are relevant factors with respect to whether an individual warrants the
favorable exercise of discretion in granting asylum. 19 I&N Dec. 467,
473-74 (BIA 1987). Like Matter of Pula, the lawful pathways condition
on asylum eligibility would consider manner of entry (as well as the
other lawful pathways noncitizens may have availed themselves of) but
would not treat it as dispositive of their asylum claims. The proposed
rule here places more weight on manner of entry than the BIA did for
the discretion analysis in Matter of Pula. See 19 I&N Dec. at 474
(holding that ``the danger of persecution should generally outweigh all
but the most egregious of adverse factors''). But the Attorney General
and Secretary, in exercising their broad discretion to issue
regulations adopting additional limitations and conditions on asylum
eligibility, are not bound by the approach in the BIA's decision in
Matter of Pula under the regulatory regime then applicable. And under
the proposed rule, noncitizens subject to the condition may overcome
the presumption in exceptionally compelling circumstances.
Additionally, in this specific context, and for the reasons provided
throughout this preamble, the Departments have determined that placing
greater weight on manner of entry is warranted in the interest of
encouraging migrants to seek protection in other countries in the
region and to use lawful pathways and processes to access the U.S.
asylum system with an ultimate goal of promoting overall system
efficiency so that the Departments can manage the anticipated surge of
migrants in as fair and orderly a manner as possible.
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\209\ The Global Asylum Rule explicitly departed from Matter of
Pula when it established regulatory factors to be considered in
various ways that did not align with Pula's holdings. See 85 FR at
80342 (``Accordingly, the Departments properly and permissibly
changed their policy from Matter of Pula.''); 85 FR at 80387-88
(adding 8 CFR 208.13(d)); 85 FR at 80396-97 (adding 8 CFR
1208.13(d)). However, those regulatory amendments have never taken
effect because the Global Asylum Rule was enjoined before its
effective date. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 977
(N.D. Cal 2021). Accordingly, the Departments continue to follow
Matter of Pula.
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Furthermore, the lawful pathways condition would not displace
Matter of Pula's general application when considering whether an
individual grant of asylum is warranted as a matter of discretion.
Matter of Pula articulates principles to govern the exercise of
discretion in individual cases in the absence of other measures
instituted by the Attorney General or the Secretary guiding the
exercise of discretion. Here, through the lawful pathways condition,
the Attorney General and Secretary would exercise their general
discretionary authority to issue additional conditions on asylum
eligibility under section 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C.
1158(b)(1)(A), (b)(2)(C), (d)(5)(B). Moreover, the lawful pathways
condition on eligibility would not displace Matter of Pula's
application in an asylum adjudication where the condition is not
implicated or its presumptive application is rebutted.
This proposed rule is also consistent with the safe-third-country
and firm-resettlement bars at sections 208(a)(2)(A) and (b)(2)(A)(iv)
of the INA, 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(iv). The proposed rule's
scope and effect are significantly different than those bars. Unlike
those bars, the presumption would not make asylum eligibility hinge
exclusively on the availability of protection in a third country;
whether an applicant applied for protection in a third country through
which they traveled would only be relevant if the noncitizen did not
avail themselves of one of the specified pathways or processes to enter
the United States--e.g., if the noncitizen entered the United States
through a parole process or scheduled a time through the CBP One app to
present themselves at a port of entry, then the condition does not
apply to that noncitizen. Further, unlike those bars, the presumption
would not operate as a categorical bar on asylum eligibility, but would
merely operate as a rebuttable presumption that could be overcome in
appropriate circumstances. Indeed, one of the grounds on which the
presumption would necessarily be rebutted is that the noncitizen faced
an imminent and extreme threat to life or safety at the time of entry
into the United States--thereby advancing the purposes of the INA's
protections against persecution. See, e.g., Sall v. Gonzales, 437 F.3d
229, 233 (2d Cir. 2006) (noting that the ``United States offers asylum
to refugees not to provide them with a broader choice of safe
homelands, but rather, to protect those arrivals with nowhere else to
turn''); Matter of A-G-G-, 25 I&N Dec. 486, 503 (BIA 2011); see also
INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). Section 208 establishes the
minimum statutory requirements for the discretionary grant of asylum,
and permits the Departments to impose additional requirements for that
discretionary benefit. See INA 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8
U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B); see also Nijjar v. Holder,
689 F.3d 1077, 1082 (9th Cir. 2012) (noting that fraud can be ``one of
the `additional limitations . . . under which an alien shall be
ineligible for asylum' that the Attorney General is authorized to
establish by regulation''). Thus, the proposed rule is within the broad
discretionary authority of the Attorney General and Secretary retained
by section 208.
The lawful pathways condition proposed here would be a permissible
exercise of the Departments' authority to impose a new condition on
asylum that is designed to improve the overall functioning of the
immigration system and to improve processing of asylum applications.
Both of these purposes are consistent with the INA.
By channeling noncitizens seeking to travel to the United States,
including to seek asylum, into lawful pathways and processes, the
proposed rule would promote orderly processing and minimize the number
of individuals who would be placed in lengthy section 240 removal
proceedings and released into the United States pending such
proceedings. And by reducing the number of noncitizens permitted to
remain in the United States despite having non-meritorious asylum and
protection claims, the proposed rule would reduce incentives for
similarly situated noncitizens to seek to cross the border, thus
reducing the anticipated surge that is expected to strain DHS
resources.
The relevant provisions of the INA authorizing new asylum
conditions permit the Departments to adopt conditions in order to
improve the overall operation of the immigration system. Section
208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C. 1158(b)(2)(C) and
(d)(5)(B), broadly allow the Attorney General and Secretary to
establish by regulation other ``limitations and conditions'' on asylum,
as long as they are consistent with section 208 and the INA,
respectively.
Neither provision imposes restrictions on the types of conditions
the Departments may adopt, other than specifying that the conditions
must be consistent with the statute. Nothing in the text or purpose of
the provisions
[[Page 11737]]
indicates that conditions may not be designed to improve the overall
effectiveness of the immigration system, to encourage other countries
in the region to share in the protection of migrants, and to encourage
migrants to seek protection in those countries. That is, nothing in the
INA requires asylum eligibility criteria to focus only on individual-
specific considerations to the exclusion of other factors, such as the
overall efficiency of the asylum system or the broader public interest.
Congress has put into place generally applicable filing
requirements aimed at management of the asylum system, such as in
IIRIRA when it amended section 208 to add a provision prohibiting an
application for asylum more than one year after a noncitizen entered
the United States as a measure responding in part to a ballooning
asylum docket. INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Although
Congress included an exception to the bar where the applicant
establishes ``the existence of changed circumstances which materially
affect the applicant's eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within''
the one-year period, INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), it did
not provide any exception based on the strength of the applicant's
asylum claim alone. In other words, Congress concluded that the
interest in ensuring overall system efficiency outweighed the fact that
there would be applicants who would have received asylum but for the
one-year deadline.\210\ The Departments have made a similar calculation
in the interest of system efficiency. Similar to the one-year filing
deadline, the proposed lawful pathways condition on asylum eligibility
is aimed at ensuring that those who follow the procedures set forth to
allow for an orderly application process are able to access the full
panoply of benefits available to asylees within the United States.
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\210\ Indeed, despite coming after Matter of Pula, when Congress
enacted the one-year bar in IIRIRA in 1996, it did not include any
exception for those who meet the eligibility requirements for asylum
but cannot meet the higher standard for future persecution for
withholding and thus will be returned to a country where there they
have a well-founded fear of future persecution solely because they
filed their application more than one year after their last entry
into the United States.
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The lawful pathways condition, and the related modification of the
withholding and CAT screening standard applied to noncitizens subject
to the condition, would also improve overall asylum processing
efficiency. As noted, the Departments recognize that operationalizing
the lawful pathways condition would require more resources to implement
because the credible fear interviews for those subject to the condition
will take some additional time. Specifically, asylum officers would
have to inquire into the applicability of any exceptions or rebuttal
circumstances for the condition and then apply the higher ``reasonable
possibility'' standard to determine the likelihood of persecution or
torture for those whose asylum claims are precluded by the lawful
pathways condition. At the end of this process, however, the
Departments expect that fewer noncitizens would ultimately be placed in
section 240 proceedings as fewer will pass the screening process. By
applying more resources on the front end at the screening stage, the
proposed rule would reduce the number of resource-intensive asylum
applications that will need to be adjudicated by EOIR. And ICE would
expend fewer resources litigating cases in immigration court and then
locating, apprehending, and removing those with unsuccessful claims.
Moreover, seeking to channel meritorious asylum claims for faster
resolution is consistent with the purpose of the asylum provision as a
whole.\211\ And improving system efficiency is consistent with the
longstanding and overarching principle articulated by the Board that
``[t]he ultimate consideration when balancing factors in the exercise
of discretion is to determine whether a grant of relief'' like asylum
``appears to be in the best interest of the United States.'' Matter of
D-A-C-, 27 I. & N. Dec. 575, 578 (BIA 2019).
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\211\ Section 208 includes multiple provisions aimed at
providing an orderly and expeditious process for asylum
applications. See, e.g., INA 208(d)(5)(A)(ii), 8 U.S.C.
1158(d)(5)(A)(ii) (``in the absence of exceptional circumstances,
the initial interview or hearing on the asylum application shall
commence not later than 45 days after the date an application is
filed''); INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii) (``in
the absence of exceptional circumstances, final administrative
adjudication of the asylum application, not including administrative
appeal, shall be completed within 180 days after the date an
application is filed'').
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Additionally, the proposed lawful pathways condition is expected to
increase asylum processing efficiency by increasing to some degree the
percentage of meritorious asylum claims that are considered. It rests
in part on the understanding that many individuals who avail themselves
of the credible fear process do not have meritorious claims, and that
those who would circumvent orderly procedures and forgo readily
available options may be less likely to have a well-founded fear of
persecution than those individuals who do avail themselves of an
available lawful opportunity. Moreover, it is permissible for the
Attorney General and the Secretary to adopt a presumption, applicable
only in emergent circumstances, under which those truly requiring
protection from persecution or torture may properly be expected to
either apply for asylum or other protection in the first safe harbor
they find, see Kalubi v. Ashcroft, 364 F.3d 1134, 1140 (9th Cir. 2004)
(noting that forum-shopping might be ``part of the totality of
circumstances that sheds light on a request for asylum in this
country''), or follow the procedures set forth for making an
application rather than waiting until they are apprehended to do so. Of
course, the Departments recognize it will not be the case for all
noncitizens who do not avail themselves of alternative options in other
countries or lawful pathways to enter the United States that they would
not be found to have meritorious asylum claims. But the Attorney
General and the Secretary believe, in light of the circumstances that
the Departments faced in late November and December of 2022 and will
likely face upon the lifting of the Title 42 public health Order, that
it would be an appropriate exercise of their discretion to prioritize
for consideration of a request for asylum those noncitizens who do
pursue lawful pathways or processes in the United States or in other
countries. In addition, the proposed rule would permit noncitizens to
rebut the presumption of ineligibility by showing that they are
deserving of being excused from the bar in exceptionally compelling
circumstances despite their failure to pursue lawful pathways or
processes. And, of course, the condition would not bar statutory
withholding of removal or protection under the CAT, and thus those
subject to the condition would remain eligible for protections from
persecution and torture, consistent with the United States' statutory
and international obligations.\212\ Pursuing
[[Page 11738]]
these improvements in the asylum processing system and the
administration of the immigration laws more broadly is consistent with
the INA.
---------------------------------------------------------------------------
\212\ Under both the INA and international law, providing asylum
to individuals who do not meet the standards for withholding or CAT
is discretionary rather than mandatory. See INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A) (``The Secretary of Homeland Security or the
Attorney General may grant asylum to an alien who has applied for
asylum in accordance with the requirements and procedures
established by the Secretary of Homeland Security or the Attorney
General under this section if the Secretary of Homeland Security or
the Attorney General determines that such alien is a refugee within
the meaning of section 1101(a)(42)(A) of this title.''); Cardoza-
Fonseca, 480 U.S. at 441 (noting that the asylum provision of the
INA corresponds to Article 34 of the Refugee Convention, which is
``precatory'' and ``does not require the implementing authority
actually to grant asylum to all those who are eligible'').
Withholding and CAT protection are mandatory only for those who meet
the higher standards applicable to that relief. See INA 241(b)(3), 8
U.S.C. 1231(b)(3) (``the Attorney General may not remove an alien to
a country if the Attorney General decides that the alien's life or
freedom would be threatened in that country because of'' a protected
ground''); Cardoza-Fonseca, 480 U.S. at 429 (explaining that
withholding of removal corresponds to Article 33.1 of the Refugee
Convention, which ``imposed a mandatory duty on contracting States
not to return an alien to a country where his `life or freedom would
be threatened' on account of one of the enumerated reasons''); FARRA
Sec. 2242(a), 112 Stat. at 2681-822 (``It shall be the policy of
the United States not to expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger of
being subjected to torture, regardless of whether the person is
physically present in the United States.''); 8 U.S.C. 1231 note; 8
CFR 1208.16(d)(1).
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In sum, the proposed rule permissibly pursues goals relating to
both the functioning of the entire immigration system and the
efficiency of asylum processing. In the current circumstances, while
preserving core protections, the Departments believe either goal by
itself would be sufficient to support the proposed rule. Thus, the
proposal is within the authority conferred by section 208 of the INA.
4. Expedited Removal and Screenings in the Credible Fear Process
In IIRIRA, Congress established the expedited removal process.
Public Law 104-208, div. C, 110 Stat. 3009, 3009-546. The process is
applicable to noncitizens arriving in the United States (and, in the
discretion of the Secretary, certain other designated classes of
noncitizens) who are found to be inadmissible under either section
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), regarding documentation requirements for admission. Under
expedited removal, such noncitizens may be ``removed from the United
States without further hearing or review unless the [noncitizen]
indicates either an intention to apply for asylum under section 1158 of
this title or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i).
The former INS and, later, DHS implemented the expedited removal
statute by establishing a screening process, known as the ``credible
fear'' screening, to identify potentially valid requests for asylum and
claims for statutory withholding of removal and CAT protection.
Currently, any noncitizen who expresses a fear of persecution or
torture, a fear of return, or an intention to apply for asylum during
the course of the expedited removal process is referred to a USCIS
asylum officer for an interview to determine whether the noncitizen has
a credible fear of persecution or torture. INA 235(b)(1)(A)(ii), (B), 8
U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4),
1235.3(b)(4)(i). If the asylum officer determines that the noncitizen
does not have a credible fear of persecution or torture, the noncitizen
may request that an IJ review that determination. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
208.30(g), 1208.30(g).
If the asylum officer determines that a noncitizen subject to
expedited removal has a credible fear of persecution or torture, DHS
has discretion to issue a Notice to Appear to refer the noncitizen to
the immigration court for full consideration of the asylum or statutory
withholding claim in proceedings under section 240 of the INA, 8 U.S.C.
1229a, or to retain jurisdiction over the application for asylum
pursuant to 8 CFR 208.2(a)(1)(ii) for consideration in a hearing
pursuant to 8 CFR 208.9. See 8 CFR 208.30(f). If an IJ, upon review of
the asylum officer's negative credible fear determination, finds that
the noncitizen possesses a credible fear of persecution or torture, the
IJ vacates the expedited removal order and refers the case back to DHS
for further proceedings consistent with 8 CFR 1208.2(a)(1)(ii) or for
commencement of removal proceedings under section 240 of the INA, 8
U.S.C. 1229a. See 8 CFR 1208.30(g)(2)(iv)(B). As explained below,
application of the proposed rule in the expedited removal process is
consistent with these provisions.
5. Litigation History
i. Litigation Related to the Entry and Transit Rules
The Departments acknowledge prior precedent concerning the scope of
the Departments' statutory rulemaking authority under section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), E. Bay Sanctuary
Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021) (``East Bay III''); E.
Bay Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East
Bay I''), and an injunction in E. Bay Sanctuary Covenant v. Barr, 519
F. Supp. 3d 663 (N.D. Cal. 2021) (``East Bay II'').
In East Bay I, 994 F.3d 962, the U.S. Court of Appeals for the
Ninth Circuit affirmed a preliminary injunction and held that an IFR
that categorically denied asylum to most persons entering the United
States at the SWB if they had not first applied for asylum in Mexico or
another third country through which they passed, known as the third-
country-transit bar (the ``TCT Bar''), was inconsistent with section
208 of the INA, 8 U.S.C. 1158, because it was inconsistent with both
the safe-third-country and the firm-resettlement provisions of section
208. Id. at 977.\213\ That court concluded that ``[a] critical
component of both [the safe-third-country and firm-resettlement] bars
is the requirement that the alien's `safe option' be genuinely safe,''
and that the transit rule did ``virtually nothing to ensure that a
third country is a `safe option.' '' Id.
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\213\ The district court in that case enjoined the interim final
transit rule for similar reasons, directing that ``Defendants are
hereby ORDERED AND ENJOINED, pending final judgment herein or
further order of the Court, from taking any action continuing to
implement the Rule and ORDERED 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). Another district
court issued a final judgment vacating the interim final transit
rule, concluding that the rule did not comply with the APA's notice-
and-comment requirements. Capital Area Immigrants' Rights Coal. v.
Trump, 471 F. Supp. 3d 25, 45-57 (D.D.C. 2020). That court did not
address the substantive validity of the interim final transit rule.
Id. at 32.
---------------------------------------------------------------------------
And in East Bay II, 519 F. Supp. 3d 663, the district court
preliminarily enjoined the TCT Bar final rule, concluding that although
the rule ``avers to `have addressed the Ninth Circuit's concerns by
further explaining . . . how the transit bar is consistent' with Sec.
1158, 85 FR 82267 n.18, . . . the Final Rule remains inconsistent with
Sec. 1158.'' Id. at 666. The court reasoned that ``[o]nce again,
`[t]he sole protection provided by the [Final] Rule is its requirement
that the country through which the barred alien has traveled be a
`signatory' to the 1951 Convention and the 1967 Protocol,' '' a
requirement which the Ninth Circuit had already held ```does not
remotely resemble the assurances of safety built into the two safe-
place bars of Sec. 1158,' and in fact is inconsistent with those
provisions.'' Id. (quoting and citing E. Bay, 964 F.3d at 845-49). That
court's injunction provides that ``Defendants are hereby ORDERED AND
ENJOINED, pending final judgment herein or further order of the Court,
from taking any action continuing to implement the Final Rule and
ORDERED to return to the pre-Final Rule practices for processing asylum
applications.'' Id. at 668.
Separately, in East Bay III, 993 F.3d 640, the Ninth Circuit
affirmed a preliminary injunction against the Proclamation Bar IFR,
which categorically rendered certain noncitizens ineligible for asylum
if they
[[Page 11739]]
entered the United States in violation of a presidential proclamation
or other presidential order suspending or limiting the entry of
noncitizens along the SWB. The court held that the Proclamation Bar IFR
was inconsistent with section 208(a), which provides that any migrant
``who is physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival and
including an alien who is brought to the United States after having
been interdicted in international or United States waters),
irrespective of such alien's status, may apply for asylum.'' Id. at
670.\214\ As explained above, that holding is incorrect.
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\214\ The court also held that the Proclamation Bar IFR likely
did not properly fall under the good cause or foreign affairs
exceptions to notice-and-comment rulemaking under 5 U.S.C. 553(a)(1)
and (b)(B). See East Bay II, 993 F.3d at 676-77.
---------------------------------------------------------------------------
The court also suggested that the rule is inconsistent with the
United States' commitments under the 1967 Refugee Protocol, in which
the United States adhered to specified provisions of the Refugee
Convention. 993 F.3d at 972-75. That is incorrect. The United States'
non-refoulment obligation under Article 33 of the Convention is
implemented by statute through the provision in section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3)(A), for mandatory withholding of removal.
The proposed rule would specifically preserve the availability of that
relief from removal. As discussed in Part V.C.3 of this preamble, the
INA's provision in section 208 of the INA, 8 U.S.C. 1158, for the
discretionary granting of asylum instead aligns with Article 34 of the
Convention, which is precatory and does not require a party actually to
grant asylum to all those who are eligible. See, e.g., INS v. Cardoza-
Fonseca, 480 U.S. 421, 440-441 (1987). The court also misread Article
31(1) of the Refugee Convention, which pertains only to ``penalties''
imposed ``on account of . . . illegal entry or presence'' on refugees
who, among other criteria, are ``coming directly from a territory
where'' they face persecution. See, e.g., Singh v. Nelson, 623 F. Supp.
545, 560-561 (S.D.N.Y. 1985). And a bar to the granting of the
discretionary relief of asylum is not a penalty under Article 31(1),
especially given that the noncitizen remains eligible to apply for
withholding of removal under section 241(b)(3) of the INA, which
implements U.S. nonrefoulement obligations under the Protocol. See
Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun v. U.S.
Att'y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017).
Regardless, even accepting East Bay III's reasoning on this point,
that reasoning is limited to a categorical eligibility bar premised on
manner of entry. The proposed rule does not implicate the same concerns
as the prior categorical bar on ``manner of entry'' because it would
operate only when noncitizens traveled through at least one third
country without seeking relief there and would not treat the manner of
entry as dispositive in determining eligibility, but instead as the
basis for a rebuttable presumption. The circumvention of orderly
refugee processing would only be relevant where the applicant cannot
demonstrate compelling reason why they did not avail themselves of a
growing number of lawful pathways to the United States, including by
scheduling an appointment to present at a port of entry in the United
States in an orderly fashion, or showing that the individual could not
access or use the government scheduling system. That is entirely
consistent with longstanding Board precedent discussed above, as
recognized by the Ninth Circuit itself. See E. Bay Sanctuary Covenant
v. Trump, 932 F.3d 742, 773 (9th Cir. 2018) (recognizing ``manner of
entry'' ``may be considered''); Matter of Pula, 19 I. & N. Dec. at 473
(``circumvention can be a serious adverse factor'' so long as it ``is
not [ ] considered in such a way that the practical effect is to deny
relief in virtually all cases'').
The district court in that case enjoined the Proclamation Bar IFR
for similar reasons, E. Bay Sanctuary Covenant v. Trump, 354 F. Supp.
3d 1094 (N.D. Cal. 2018), and issued an injunction directing that
``Defendants are hereby ORDERED AND ENJOINED, pending final judgment
herein or other order, from taking any action continuing to implement
the Rule and ORDERED to return to the pre-Rule practices for processing
asylum applications.'' Id. at 1121.\215\
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\215\ Subsequently, another district court vacated the
Proclamation Bar IFR for similar substantive reasons as the Ninth
Circuit, concluding that a rule ``which renders all aliens who enter
the United States across the southern border . . . except at a
designated port of entry, ineligible for asylum'' is inconsistent
``with 8 U.S.C. 1158(a)(1), which provides that ``[a]ny alien who is
physically present in the United States or who arrives in the United
States (whether or not at a designated port of arrival . . .),
irrespective of such alien's status, may apply for asylum.'' O.A. v.
Trump, 404 F. Supp. 3d 109, 147 (D.D.C. 2019) (alterations in
original). That ruling is subject to a pending appeal that is
presently held in abeyance. See O.A. v. Biden, No. 19-5272 (D.C.
Cir.).
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The preliminary injunctions in the East Bay cases dealt with
different limitations on asylum and involved different factual
circumstances, and hence do not preclude the issuance of this proposed
rule. The injunctions bar the Departments from ``implement[ing]'' the
specific rules enjoined in those cases. East Bay II, 519 F. Supp. 3d at
668; East Bay, 354 F. Supp. 3d at 1121. They do not preclude the
Departments from issuing new rules with different substance and
different effects and premised on different factual circumstances and
on new reasoning. The APA authorizes judicial review of specific agency
action, not abstract policies, 5 U.S.C. 702, and as the Supreme Court
has explained, remedies do not operate `` `on legal rules in the
abstract.' '' \216\
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\216\ California v. Texas, 141 S. Ct. 2104, 2115 (2021)
(citation omitted). For the same reason, the Departments do not view
the permanent injunction in Al Otro Lado, Inc. v. Mayorkas, No. 17-
CV-02366-BAS-KSC, 2022 WL 3970755 (S.D. Cal. Aug. 23, 2022), as
prohibiting the Departments from issuing this NPRM or otherwise
limiting the Departments' discretionary authority to apply new
asylum limitations consistent with section 208(b)(2)(C) of the INA,
8 U.S.C. 1158(b)(2)(C), to the injunction class. See, e.g., Milliken
v. Bradley, 433 U.S. 267, 281-82 (1974) (``The well-settled
principle that the nature and scope of the remedy are to be
determined by the violation means simply that federal-court decrees
must directly address and relate to the [alleged wrongful conduct]
itself.''); Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1480 (9th
Cir. 1994); see also, e.g., Thomas v. County of Los Angeles, 978
F.2d 504, 509 (9th Cir. 1992) (reversing injunction that ``fail[ed]
to specify the act or acts sought to be restrained as required by''
Federal Rule of Civil Procedure 65(d)). The Departments also
disagree with the district court's rationale for the injunction and
have appealed the order to the Ninth Circuit. See Al Otro Lado, Inc.
v. Mayorkas, Case Nos. 22-55988, 22-56036 (9th Cir. 2022). Section
208 of the INA, 8 U.S.C. 1158, and section 235 of the INA, 8 U.S.C.
1225, do not require the Government to inspect and refer potential
asylum-seekers who have not yet entered the territorial United
States. These statutes, by their terms, apply only to individuals
``in the United States,'' so the Government does not withhold
mandatory statutory processing by preventing someone outside the
territorial United States from immediately crossing the border for
inspection and referral for a fear screening.
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The Departments respectfully disagree with some of the substantive
holdings of the Ninth Circuit and the district court as described
above. At the same time, the Departments view this proposed rule as
fully consistent with those decisions, given the significant
differences between the rebuttable presumption proposed here and the
categorical bars at issue in those cases, particularly given the new
and increased focus on available pathways and the ability to schedule a
time to present at ports of entry.
To the extent the Ninth Circuit's conclusion in East Bay III was
premised on a view that any limits on asylum based on a failure to seek
protection in a third country needed to be derivative of section 208's
safe-third-country provision and firm-resettlement bar, that
[[Page 11740]]
view is incorrect. Nothing about the text or history of these
provisions suggests that they were intended to set out the exclusive
conditions relating to an individual seeking protection's ability to
obtain relief in a third country, and therefore they do not prevent the
Executive Branch from imposing additional requirements addressing that
subject. To the contrary, those and other statutory bars establish
minimum requirements for asylum eligibility that the Attorney General
and Secretary may not disregard. They do not prevent the Attorney
General and the Secretary from exercising their discretionary authority
to adopt limitations and conditions on eligibility over and above the
statutory minimum. Indeed, at the same time Congress codified those
rules, it expressly preserved the Executive Branch's authority to
``establish additional limitations and conditions'' ``by regulation.''
INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). Thus, the enumerated
statutory bars plainly do not occupy the field of bars related to
applications or presence in a third country. The Executive Branch
enjoys broad discretion to supplement those bars with additional
conditions. Put simply, the INA's enumerated asylum bars do not
foreclose the Executive Branch from imposing alternative conditions,
even if those alternative conditions address subjects that are in some
respects similar to those that Congress addressed in the asylum
statute.
In any event, unlike the rules at issue in the East Bay cases
(which, as noted above, the Departments propose to rescind), this
proposed rule would not operate as a categorical bar on asylum for all
covered noncitizens based either on manner of entry or whether the
noncitizen sought asylum in at least one country through which they
traveled en route to the United States. The proposed rule would not
implicate the same concerns as the prior categorical bar based on
``manner of entry'' because it would operate only when noncitizens
traveled through at least one third country without seeking protection
there and would not treat the manner of entry as dispositive in
determining eligibility, but instead as one part of the basis for a
rebuttable presumption. And more clearly than the prior transit bar,
the proposed rule addresses very different issues from those applicable
to the safe-third-country or firm-resettlement bars. Again, it would
yield only a presumption (which, unlike those bars, may be rebutted)
and would apply only when noncitizens travel through a third country
and also fail to pursue other lawful pathways, such as options for
orderly processing at the port of entry.
In short, the proposed rule is more limited and less categorical
than the prior bars, establishing only a rebuttable condition
applicable to an individual noncitizen who, after traveling through a
third country, fails to avail themselves of other options to request
entry to the United States or to seek asylum or other protection in
this country or elsewhere. Such a rebuttable presumption is supported
by the longstanding view of the BIA that a noncitizen's ``circumvention
of orderly refugee procedures,'' including their ``manner of entry or
attempted entry,'' ``whether the alien passed through any other
countries or arrived in the United States directly from his country,
whether orderly refugee procedures were in fact available to help him
in any country he passed through, and whether he made any attempts to
seek asylum before coming to the United States'' are relevant factors
that can be considered as part of the totality of circumstances with
respect to whether an individual warrants the favorable exercise of
discretion in granting asylum. Matter of Pula, 19 I&N Dec. at 473-
74;\217\ see also, e.g., Haloci v. U.S. Att'y Gen., 266 F. App'x 145,
147 (3d Cir. 2008) (``In addition, the IJ found that Haloci's failure
to seek asylum in Turkey or Holland, along with his admission that he
had never considered any final destination other than the United
States, further undercut his alleged fear. The record supports the IJ's
findings.''); Farbakhsh v. INS, 20 F.3d 877, 882 (8th Cir. 1994) (``We
also hold that the Board did not abuse its discretion in denying
petitioner's application for asylum. Petitioner passed through several
countries (Turkey, Italy, Spain, Portugal, Canada) en route to the
United States; in Spain and Canada orderly refugee procedures were in
fact available to him. He had applied for refugee status in Spain, and
Canada had granted him temporary resident status and one year to apply
for asylum.'').
---------------------------------------------------------------------------
\217\ As the Board further explained with respect to the asylum
statute as it existed at the time, ``[a] careful reading of the
language of [section 208(a)(1)] reveals that the phrase
`irrespective of such alien's status' modifies only the word
`alien.' '' Pula, 19 I&N Dec. at 473. ``The function of that phrase
is to ensure that the procedure established by the Attorney General
for asylum applications includes provisions for adjudicating
applications from any alien present in the United States or at a
land or port of entry, `irrespective of such alien's status.' '' Id.
(collecting cases). Thus, Congress made clear that noncitizens like
stowaways, who, at the time the Refugee Act was passed, could not
avail themselves of our immigration laws, would be eligible at least
to apply for asylum ``irrespective of [their] status.'' Id. ``Thus,
while section 208(a) provides that an asylum application be accepted
from an alien `irrespective of such alien's status,' no language in
that section precludes the consideration of the alien's status in
granting or denying the application in the exercise of discretion.''
Id.
---------------------------------------------------------------------------
Given that the Departments may take account of these factors in
individual cases, see INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), they
may do so across a category of similarly situated cases as well, and
give them the weight they deem appropriate. See, e.g., Lopez v. Davis,
531 U.S. 230, 244 (2001); Reno v. Flores, 507 U.S. 292, 313-14 (1993);
Yang, 79 F.3d at 936-37. As noted, Congress clearly contemplated that
the Attorney General and the Secretary would adopt generally applicable
conditions on asylum eligibility by expressly authorizing the Executive
Branch to establish further ``limitations and conditions'' on asylum
eligibility ``by regulation,'' INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C), so long as those limitations and conditions are
``consistent with'' the asylum statute. INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C); see R-S-C, 869 F.3d at 1187 & n.9 (``the statute clearly
empowers'' the Attorney General and the Secretary to ``adopt[ ] further
limitations'' on asylum eligibility); see also INA 208(d)(5)(A), 8
U.S.C. 1158(d)(5)(A). Reading that provision to bar any condition on
asylum eligibility not already established by section 208--particularly
a mere rebuttable presumption--``would mean that the Attorney General
could not impose any limitations on asylum eligibility because any
regulation that `limits' eligibility necessarily undermines the
statutory guarantee that `any alien . . . irrespective of such alien's
status' may apply for asylum.'' R-S-C, 869 F.3d at 1187 (third emphasis
added).
Regardless, by taking account of various pathways for noncitizens
fleeing persecution to obtain protection in the United States or other
countries, including the avenues provided to gain entry to the United
States, where they may thereafter seek asylum, the proposed rule in the
current and impending exigent circumstances is consistent with what the
Ninth Circuit viewed as the two categories of individuals whom section
208 excludes from asylum eligibility: those ``considered not to be
deserving of international protection'' based on their actions, and
those persons ``not considered to be in need of international
protection'' because ``there is a `safe option' in another country.''
East Bay I, 994 F.3d at 976, 979 (emphasis omitted). The presumption
would apply only to noncitizens who have neither availed themselves of
alternative options, including seeking asylum or protection
[[Page 11741]]
elsewhere, nor availed themselves of safe and orderly processing,
including mechanisms for seeking a lawful, safe, and orderly way to
enter at a port of entry and any available parole processes. The
presumption, moreover, could be rebutted, including on three per se
grounds: if, at the time of entry, the noncitizen faced an acute
medical emergency, faced an imminent and extreme threat to life or
safety, or was a victim of a severe form of trafficking in persons.
Longstanding precedent recognizes that the ``ultimate
consideration'' for whether someone is deserving of a discretionary
asylum grant is whether granting relief ``appears to be in the best
interest of the United States.'' Matter of D-A-C-, 27 I&N Dec. at 578.
Here, the Departments propose that granting asylum to certain
categories of noncitizens who have failed to avail themselves of lawful
pathways or processes to enter the United States or seek asylum or
other protection in other countries is not in the ``best interest of
the United States.'' The Secretary and the Attorney General, in
exercising their discretion, may consider, among other considerations,
the current circumstances confronting the United States on the SWB, and
their effect on the orderly and expeditious resolution of asylum
claims.
The Secretary and the Attorney General may thus permissibly
determine that, for a 24-month period as proposed by this rule, it is
in the ``best interest of the United States'' to prioritize noncitizens
who pursue lawful paths. Nothing in section 208 forecloses that view,
and securing the best interests of the country is a reasonable policy
goal under section 208 and thus ``consistent with'' section 208. INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see Yang, 79 F.3d at 939
(observing that ``it is precisely to cope with the unexpected that
Congress deferred to the experience and expertise of the Attorney
General in fashioning section 208''); see also id. at 935 (``We must
reject the argument that [the] regulation [establishing a categorical
discretionary bar to asylum eligibility] exceeds the authority of the
Attorney General if we find that the regulation has a `reasonable
foundation . . . that is, if it rationally pursues a purpose that it is
lawful for the [immigration agencies] to seek.'' (quoting Reno v.
Flores, 507 U.S. at 309)).
Beyond the clear statutory text, settled principles of
administrative law dictate that the Departments may adopt generally
applicable eligibility requirements. Those principles establish that it
is permissible for agencies to establish general rules, reasonable
presumptions, or guidelines in lieu of case-by-case assessments, so
long as those rules or guidelines are not inconsistent with statute.
See Lopez v. Davis, 531 U.S. 230, 243-44 (2001) (rejecting the argument
that the Bureau of Prisons was required to make ``case-by-case
assessments'' of eligibility for sentence reductions and explaining
that an agency ``is not required continually to revisit `issues that
may be established fairly and efficiently in a single rulemaking' '')
(quoting Heckler v. Campbell, 461 U.S. 458, 467 (1983)); Reno v.
Flores, 507 U.S. at 313-14 (holding that a statute requiring
``individualized determination[s]'' does not prevent immigration
authorities from using ``reasonable presumptions and generic rules'');
Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (upholding INS's
authority to ``determine[ ] certain conduct to be so inimical to the
statutory scheme that all persons who have engaged in it shall be
ineligible for favorable consideration'' and observing that there is no
legal principle forbidding an agency that is ``vested with
discretionary power'' from determining that it will not use that power
``in favor of a particular class on a case-by-case basis''); see also
Singh v. Nelson, 623 F. Supp. 545, 556 (S.D.N.Y. 1985) (``attempting to
discourage people from entering the United States without permission .
. . . provides a rational basis for distinguishing among categories of
illegal aliens''); Matter of Salim, 18 I&N Dec. 311, 315-16 (BIA 1982)
(before Pula, according manner of entry dispositive weight); cf. Peulic
v. Garland, 22 F.4th 340, 346-48 (1st Cir. 2022) (rejecting challenge
to Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), which established
strong presumption against a favorable exercise of discretion for
certain categories of applicants for asylee and refugee adjustment of
status under section 209(c) of the INA, 8 U.S.C. 1159(c) (citing
cases)); Cisneros v. Lynch, 834 F.3d 857, 863-64 (7th Cir. 2016)
(rejecting challenge to 8 CFR 1212.7(d), which established strong
presumption against a favorable exercise of discretion for INA 212(h)
waivers (8 U.S.C. 1182(h)) for certain classes of noncitizens, even if
a few could meet the heightened discretionary standard (citing cases)).
The authority to make discretionary denials of asylum, see INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), thus further supports the
condition proposed here.
Finally, to the extent East Bay II indicated that any limitation or
condition on asylum eligibility premised on manner of entry is
inconsistent with section 208(a)'s provision allowing for noncitizens
to apply for asylum irrespective of their manner of entry, 993 F.3d at
670, the Departments disagree. As explained above, section 208(a)(1) by
its plain terms requires only that a noncitizen be permitted to
``apply'' for asylum, regardless of the noncitizen's manner of entry.
It does not require that a noncitizen be eligible to be granted asylum,
regardless of their manner of entry.
ii. Litigation Related to the ``Global Asylum'' Rule
The Departments are also aware of the litigation related to the
Global Asylum Rule and do not view this litigation as an impediment to
the Executive's legal authority to issue this proposed rule. In June
2020, the Departments published an NPRM titled Procedures for Asylum
and Withholding of Removal; Credible Fear and Reasonable Fear Review,
85 FR 36264 (June 15, 2020) (``Global Asylum NPRM''), in which they
proposed changes to, inter alia, the credible fear and expedited
removal process.
The Global Asylum NPRM proposed four changes to the credible fear
and expedited removal processes. First, the NPRM proposed to apply the
statutory bars to applying for asylum and the statutory and regulatory
bars to eligibility for asylum during credible fear screenings. Id. at
36296 (proposing amendment to 8 CFR 208.30(e)(5)(i)). Second, where a
noncitizen was found to be subject to such a bar, the NPRM proposed
that a negative credible fear determination would be entered and that
the noncitizen would be screened only for a ``reasonable possibility''
of persecution or torture. Id. Third, all claims for statutory
withholding and CAT relief would be screened using a ``reasonable
possibility'' of persecution or torture standard, rather than a
``significant possibility'' of establishing eligibility for the
underlying protection as provided for previously. Id. Fourth, if a
noncitizen was found to have a credible fear of persecution or a
reasonable fear of persecution or torture, they would be referred for
asylum-and-withholding-only proceedings, rather than section 240
proceedings, during which they could apply only for asylum, statutory
withholding of removal, or protection under the CAT, and not any other
forms of relief available under Title 8 of the United States Code. Id.
at 36297. In December 2020, after considering public comments, the
Departments published the Global Asylum Rule, in which they adopted the
changes proposed in the Global Asylum NPRM.
[[Page 11742]]
The Global Asylum Rule was, and continues to be, the subject of
multiple suits challenging the rule on multiple procedural and
substantive grounds. See Pangea Legal Servs. v. U.S. Dep't of Homeland
Sec., No. 3:20-cv-09253 (N.D. Cal. filed Dec. 21, 2020); Immigration
Equality v. U.S. Dep't of Homeland Sec., No. 3:20-cv-09258 (N.D. Cal.
filed Dec. 21, 2020); Human Rights First v. Mayorkas, No. 1:20-cv-3764
(D.D.C. filed Dec. 21, 2020); Tahirih Justice Ctr. v. Mayorkas, No.
1:21-cv-00124 (D.D.C. filed Jan. 14, 2021). In Pangea Legal Servs. and
Immigration Equality, the U.S. District Court for the Northern District
of California preliminarily enjoined the Departments from implementing
the Global Asylum Rule in its entirety nationwide before it became
effective. Pangea Legal Servs., 512 F. Supp. 3d at 977. The court
concluded that the plaintiffs were likely to succeed on the merits of
their claim that the Global Asylum Rule ``was done without authority of
law'' because the DHS official who approved it, then-Acting Secretary
Chad Wolf, was not properly designated as Acting Secretary. Id. at 975.
The court did not address any challenges to the rule's substance. Since
the Global Asylum Rule was preliminarily enjoined, all four challenges
to the rule have been stayed or held in abeyance.
In enjoining the Global Asylum Rule, the court ordered that the
Departments and their employees ``are preliminarily enjoined from
implementing, enforcing, or applying'' the Global Asylum Rule ``or any
related policies or procedures.'' Pangea Legal Servs., 512 F. Supp. 3d
at 977. The Departments have construed this injunction as potentially
interfering with the implementation of another rule that was also
published in December 2020 and which, unlike this proposed rule, relied
on specific text in the Global Asylum Rule allowing for the
consideration of specific bars to asylum eligibility during credible
fear. See Security Bars and Processing, 85 FR 84160 et seq. (Dec. 23,
2020) (``Security Bars Rule''); see also, e.g., Security Bars and
Processing; Delay of Effective Date, 86 FR 73615, 73617 (Dec. 28,
2021).
Most of the changes that the Global Asylum Rule made to the
credible fear and expedited removal process were replaced by the Asylum
Processing IFR. Regardless, the litigation over the Global Asylum Rule
does not overlap or create a tension with the provisions in this NPRM.
The Global Asylum Rule did not add any additional limitations on asylum
eligibility. Moreover, this proposed rule would implement the new
condition to credible fear screenings through a stand-alone provision
rather than a catch-all as the Departments sought to do through the
Global Asylum Rule (and which the Departments sought to use to
operationalize the Security Bars Rule). Accordingly, although both the
proposed rule and the Global Asylum Rule involve asylum, credible fear,
and expedited removal, their provisions are distinct.
6. Consideration of Lawful Pathways Condition During Credible Fear
Screening
Under the amendments proposed here, the lawful pathways condition
on eligibility for asylum would be applied to noncitizens during
credible fear screenings. Where a noncitizen is found subject to the
lawful pathways condition on eligibility for asylum and where no
exception applies and the noncitizen has not rebutted the presumption
of the condition's application, the asylum officer would enter a
negative credible fear determination. See proposed 8 CFR 208.33(c)(1).
The asylum officer would then screen the noncitizen for statutory
withholding of removal and protection under the CAT using the
``reasonable possibility'' standard. To do so, the officer would
question the noncitizen to elicit facts regarding their past
experiences and future fear of persecution and torture and then
determine whether, based on those facts, the noncitizen has a
``reasonable possibility'' of persecution or torture in the country of
removal. See proposed 8 CFR 208.33(c)(2).
As discussed in Part V.A. of this preamble, the Departments have
determined that applying the lawful pathways condition on eligibility
for asylum during credible fear screenings is necessary to ensure the
Departments' continued ability to safely, humanely, and effectively
enforce and administer U.S. immigration law, including provisions
concerning asylum and removal, and to promote shared responsibility
with our partner countries to address migration issues. Such
application would be consistent with the statutory definition of
``credible fear,'' which asks whether there is ``a significant
possibility . . . that the alien could establish eligibility for asylum
under section 208.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)
(emphasis added). If a noncitizen is subject to the lawful pathways
condition on eligibility for asylum and not excepted and cannot rebut
the presumption of the condition's applicability, there would not be a
significant possibility that the noncitizen could establish eligibility
for asylum.
The Departments have further determined that, where the proposed
lawful pathways condition would apply, applying the ``reasonable
possibility'' of persecution or torture standard to the remaining
claims for statutory withholding of removal and CAT protection would
better further the Departments' systemic goals of border security and
lessening the impact on the immigration adjudication system overall.
First, as to individuals subject to the lawful pathways condition,
fewer with non-meritorious claims would be placed into section 240
proceedings if the ``reasonable possibility'' of persecution or torture
standard is applied than if the lower ``significant possibility'' of
establishing eligibility for the underlying protection standard is
applied. The Departments acknowledge that this approach would differ
from that articulated in the Asylum Processing IFR issued in March
2022, but as further discussed below assess that, to respond to the
current and impending exigent circumstances, the interests balance
differently and warrant a different approach from the one generally
applied in credible fear screenings.
Second, the Departments believe that using the ``reasonable
possibility'' standard to screen for statutory withholding and CAT
protection in this context would further these systemic goals while
remaining consistent with the INA, Congress's intent, the United
States' treaty obligations, and decades of agency practice. When
Congress established the expedited removal system in IIRIRA, it allowed
those claiming a fear of persecution to seek asylum through the
credible fear process. INA 235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). If a noncitizen has a ``credible fear of
persecution,'' the noncitizen is then ``detained for further
consideration of the application for asylum.'' INA 235(b)(1)(B)(ii), 8
U.S.C. 1225(b)(1)(B)(ii). The statute provides that `` `credible fear
of persecution' means that there is 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). In none of those provisions
did Congress refer to statutory withholding of removal or CAT
protection. Thus, Congress clearly expressed its intent that the
``significant possibility'' standard be used to screen for asylum
eligibility but did not express any clear intent as to which standard
should apply to other applications--and indeed, as noted below, the
Departments apply the
[[Page 11743]]
``reasonable possibility'' of persecution or torture standard to screen
for statutory withholding of removal and CAT protection in reasonable-
fear screenings, where applicants (who are in the reasonable-fear
screening process after either having a prior removal order reinstated
or being subject to a final administrative removal order) would not be
eligible for asylum but nonetheless could be eligible for withholding
or deferral of removal. Similarly, the legislative history regarding
the credible fear screening process references only asylum.\218\ The
proposed rule would retain the ``significant possibility'' standard for
asylum, as Congress mandated in section 235(b)(1)(B)(v) of the INA, 8
U.S.C. 1225(b)(1)(B)(v). But the Departments do not read the statute or
legislative history as requiring that claims for statutory withholding
of removal or CAT protection be screened under that same standard. As
discussed in more detail below, the Departments have concluded that
applying the reasonable possibility of persecution or torture standard
in this context would better align the screening process for statutory
withholding of removal and CAT protection for those who are subject to
expedited removal but are presumptively ineligible for asylum with
their implementation of such screenings in other contexts where
noncitizens would also be ineligible for asylum.
---------------------------------------------------------------------------
\218\ For example, the Asylum Processing NPRM provided: ``The
104th Congress chose a screening standard `intended to be a low
screening standard for admission into the usual full asylum
process.' '' 86 FR at 46914 (quoting 142 Cong. Rec. S11491 (daily
ed. Sept. 27, 1996) (statement of Senate Judiciary Committee
Chairman Orrin Hatch)). The NPRM provides additional discussion from
various members of Congress about the compromise struck over the
standard to apply during credible fear screenings, all of which
refer to asylum. See 86 FR at 46914. When discussing the definition
of ``refugee'' at section 101(a)(42) of the INA, 8 U.S.C.
1101(a)(42), the legislative history does include the statement that
``[a]n asylum claim also is considered a claim for withholding of
deportation under section 243(h) of the INA.'' H.R. Rep. No. 104-
469, at 121 n.20. The Departments have found no similar discussion
in the context of the nature of or procedure for the credible fear
screening process.
---------------------------------------------------------------------------
Furthermore, a ``reasonable possibility'' standard would be
consistent with the INA, the FARRA, and U.S. non-refoulement
obligations under the CAT. Those sources do not dictate any particular
screening standard or procedure, and the Departments believe that a
``reasonable possibility'' of persecution or torture standard is
sufficient to identify individuals who will ultimately be able to
satisfy the ``more likely than not'' burden applicable to claims for
statutory withholding or CAT protection. A ``reasonable possibility''
of persecution or torture standard has been used in certain situations
dating back to at least 1999. See Regulations Concerning the Convention
Against Torture, 64 FR 8478-01, 8485, 8493 (Feb. 19, 1999); see also
id. at 8479 (explaining that the screening process for noncitizens who
were eligible only for statutory withholding or CAT protection is
designed to ``allow for the fair and expeditious resolution'' of those
claims ``without unduly disrupting the streamlined removal processes
applicable to'' such individuals). Since 1999, regulations have
provided for a ``reasonable fear'' screening process for certain
noncitizens who are categorically ineligible for asylum and can thus
make claims only for statutory withholding or CAT protection. See 8 CFR
208.31, 1208.31. Specifically, if a noncitizen is subject to having a
previous order of removal reinstated or is a non-lawful permanent
resident subject to an administrative order of removal resulting from
an aggravated felony conviction, then they are categorically ineligible
for asylum. See id. 208.31(a), (e). Such a noncitizen can be placed in
withholding-only proceedings to adjudicate their statutory withholding
or CAT claims, but only if they first establish a ``reasonable fear''
of persecution or torture through a screening process that tracks the
credible fear process. See id. 208.31(c), (e).
To establish a reasonable fear of persecution or torture, a
noncitizen must establish a ``reasonable possibility that [the
noncitizen] would be persecuted on account of his or her race,
religion, nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she would be
tortured in the country of removal.'' Id. 208.31(c). ``This . . .
screening process is modeled on the credible-fear screening process,
but requires the alien to meet a higher screening standard.'' 64 FR at
8485; see also Garcia v. Johnson, No. 14-CV-01775, 2014 WL 6657591, at
*2 (N.D. Cal. Nov. 21, 2014) (describing the aim of the regulations as
providing ``fair and efficient procedures'' in reasonable-fear
screening that would comport with U.S. international obligations).
Significantly, when establishing the reasonable-fear screening
process, DOJ explained that the two affected categories of noncitizens
should be screened based on the higher reasonable-fear standard
because, ``[u]nlike the broad class of arriving aliens who are subject
to expedited removal, these two classes of aliens are ineligible for
asylum,'' and may be entitled only to statutory withholding of removal
or CAT protection. 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 (well-
founded fear of persecution), the screening standard adopted for
initial consideration of withholding and deferral requests in these
contexts is also higher.'' Id.
Drawing on the established framework for considering the likelihood
of a grant of statutory withholding of removal or CAT protection in the
reasonable-fear context, the proposed rule would adopt the ``reasonable
possibility'' of persecution or torture standard for screening the
claims of those noncitizens who are subject to the lawful pathways
condition on eligibility for asylum and who do not qualify for an
exception or rebut the presumption of the condition's applicability.
The Attorney General and Secretary have broad authority to implement
the immigration laws, see INA 103, 8 U.S.C. 1103, including by
establishing regulations, see INA 103(a)(3), 8 U.S.C. 1103(a)(3), and
to regulate ``conditions or limitations on the consideration of an
application for asylum,'' INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B).
Furthermore, the Secretary has the authority--in his ``sole and
unreviewable discretion,'' the exercise of which may be ``modified at
any time''--to designate additional categories of noncitizens who will
be subject to expedited-removal procedures, so long as the designated
noncitizens inadmissible on certain grounds who have not been admitted
or paroled nor continuously present in the United States for two years.
INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). The Departments
have frequently invoked these authorities to establish or modify
procedures affecting noncitizens in expedited removal proceedings, as
well as to adjust the categories of noncitizens subject to particular
procedures within the expedited-removal framework.
This proposed rule would not change the standard for withholding or
CAT screening for those who are not subject to the lawful pathways
condition on eligibility for asylum. Those noncitizens who follow the
pathways that have been prepared for those seeking to enter the United
States at the U.S.-Mexico land border--or have sought but been denied
asylum or other protection in a country through which they traveled--
will continue to have their claims for
[[Page 11744]]
statutory withholding of removal and CAT protection, as well as their
claims for asylum, screened under the ``significant possibility'' of
establishing eligibility for the underlying protection standard, in
order to avoid requiring adjudicators to apply different standards to
the same facts in the same screening. Furthermore, the proposed rule is
not intended to change the entire credible fear process but rather
would alter the manner of processing only for those subject to the
lawful pathways condition.
The Departments acknowledge that, in the Asylum Processing IFR,
they recently rescinded changes made by the Global Asylum Rule that
subjected noncitizens' claims for statutory withholding and CAT
protection to the ``reasonable possibility'' of persecution or torture
standard and that altered the post-negative credible fear process. As
discussed in the three subsections below, the considerations that led
to those choices do not apply in the same way in this unique context or
are outweighed here by other considerations. Considering the
differences between the lawful pathways condition on asylum eligibility
and the nature of the changes at issue in the Asylum Processing IFR, as
well as the changed circumstances since March 2022, the Departments
have determined that it would be appropriate to apply the lawful
pathways additional condition on asylum eligibility during the credible
fear screening stage and to then apply the ``reasonable possibility''
of persecution or torture standard to screen the remaining applications
for statutory withholding of removal and CAT protection, and that doing
so in the way the Departments intend would lead to better allocation of
resources overall.
In addition, the Departments propose two changes to the post-
credible fear determination process for those found subject to the
lawful pathways limitation and who receive a negative credible fear
determination from an asylum officer. First, unlike the process adopted
by the Asylum Processing IFR, noncitizens must affirmatively elect
immigration judge review of a negative credible fear determination when
that choice is presented to them; noncitizens who fail or refuse to
indicate a request for immigration judge review will not be considered
to have requested such review. Second, noncitizens would not be
permitted to submit a request to reconsider a negative credible fear
determination with USCIS, although USCIS will still retain discretion
to reconsider negative determinations sua sponte. As further explained
below, the Departments have determined that the need for an expedited
process under the current and anticipated exigent circumstances weighs
against providing for immigration judge review where noncitizens do not
request it and against allowing for requests to reconsider negative
credible fear determinations after immigration judge review.
i. Application of Lawful Pathways Condition During Credible Fear
Screening
When returning to the ``historical practice of not applying
mandatory bars at the credible fear screening stage'' in the Asylum
Processing IFR, 87 FR at 18135, the Departments explained that the bars
the Global Asylum Rule would have applied during credible fear were
generally legally and factually complicated and that screening for the
bars would have required significant additional time in each screening
interview for little operational benefit, 87 FR at 18093, 18094, 18134-
35. The Departments further explained that they had come to believe
that it was speculative that generally applying mandatory bars during
the credible fear screening stage would ensure that noncitizens subject
to those bars would be removed more quickly. 87 FR at 18094. These
criticisms of the Global Asylum Rule's provision applying multiple
mandatory bars during the credible fear screening process do not apply
equally to the lawful pathways condition on asylum eligibility given
the condition's stand-alone nature and its narrowly tailored
applicability to the present and impending circumstances.
The lawful pathways condition on eligibility for asylum would be
far simpler than the multiple, complex mandatory bars the Global Asylum
Rule applied during the credible fear screening process. Specifically,
the Global Asylum Rule would have applied multiple legally and
factually complicated bars listed in section 208(b)(2)(A) of the INA, 8
U.S.C. 1158(b)(2)(A), including bars that render ineligible for asylum
a noncitizen (1) who ``ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or
political opinion''; (2) who, ``having been convicted by a final
judgment of a particularly serious crime, constitute[ ] a danger to the
community of the United States''; (3) for whom ``there are serious
reasons for believing that the alien has committed a serious
nonpolitical crime outside the United States prior to the arrival of
the alien in the United States''; (4) where ``there are reasonable
grounds for regarding the alien as a danger to the security of the
United States''; (5) who is described in specific portions of the
provisions relating to terrorist activity in section 212(a)(3)(B)(i) of
the INA, 8 U.S.C. 1182(a)(3)(B)(i); or (6) who ``was firmly resettled
in another country prior to arriving in the United States.'' If
required to screen for all of these bars in every credible fear
interview, asylum officers would have to ask numerous additional
questions aimed at eliciting information on a number of topics. Not
only are each of these bars individually legally and factually
complicated, but screening for all of them would indeed add significant
time to each and every credible fear screening.
At bottom, as the Departments determined in the Asylum Processing
IFR, screening for those bars is not currently a preferable use of the
Departments' resources. The Departments continue to believe that it is
inadvisable to apply these complex mandatory bars during the credible
fear screening process.
In contrast, the lawful pathways condition on eligibility for
asylum would be simpler to apply than multiple, legally complicated
bars. Not only would it be a single, stand-alone condition, but at the
outset of a credible fear interview, the asylum officer would know
whether to inquire into the condition or not. Specifically, the officer
would know whether the applicant entered the United States without
documents sufficient for lawful admission as described in INA
212(a)(7), 8 U.S.C. 1182(a)(7), across the U.S.-Mexico land border. See
proposed 8 CFR 208.33(a)(1). Only for such individuals would the asylum
officer have to ask additional questions to determine whether the
presumption applies and, if so, whether the noncitizen can rebut the
presumption. Thus, the additional time commitment for applying the
lawful pathways condition would not be universal, as it was for the
multiple bars to eligibility under the Global Asylum Rule. That said,
the Departments recognize that, where a noncitizen may be subject to
the lawful pathways condition on asylum eligibility, asylum officers
would be required to inquire into whether the enumerated exceptions or
any basis for rebutting the presumption applies. At times, this
questioning may require significant additional time during the credible
fear interview. Regardless, as discussed throughout this preamble, the
Departments assess that under the circumstances, the interests in
ensuring orderly processing, expedited rejection of unmeritorious
claims at the outset in the emergent circumstance addressed by this
proposed rule and
[[Page 11745]]
overall system efficiencies would outweigh any costs resulting from
increasing the length of some credible fear screening interviews.
The Departments expect that application of the lawful pathways
condition on asylum eligibility for asylum would also differ materially
from the Departments' experience applying the TCT Bar IFR, which the
Departments discussed in the Asylum Processing IFR. The TCT bar applied
to ``any alien who enters, attempts to enter, or arrives in the United
States across the southern land border on or after July 16, 2019, 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'' unless certain exceptions applied. 8 CFR
208.13(c)(4), 1208.13(c)(4). By its terms, the bar applied to every
noncitizen who presented at a port of entry or between ports of entry
along the U.S.-Mexico land and maritime border and presumably, only
Mexican nationals would be categorically exempt. Thus, asylum officers
had to screen every applicant for application of the bar--specifically,
to determine whether they transited through a third country and then
whether one of several exceptions applied. As the Departments explained
in the Asylum Processing IFR, applying that bar required additional
time in each credible fear interview and led to operational
inefficiencies. 87 FR at 18093, 18131, 18135. The Departments, however,
have learned from that experience, and will do additional triaging on
the front end, so that those who use the CBP One app or otherwise avail
themselves of a safe, orderly process--which will be readily apparent
upon encounter--will not be subject to the rebuttable presumption
described by this proposed rule. This feature of the proposed rule
would limit the operational inefficiencies identified in the Asylum
Processing IFR.
In the specific circumstances here, moreover, the Departments have
concluded that the approach taken in this proposed rule is the superior
policy--all things considered--even in circumstances where applying the
lawful pathways condition requires more resources than the TCT bar. In
particular, the lawful pathways condition would function as a
rebuttable presumption for which there are enumerated exceptions and
circumstances that may rebut the presumption. Inquiry into those
exceptions and rebuttal circumstances would require additional factual
development that may significantly increase interview times for some
noncitizens subject to the condition. However, as discussed throughout
this preamble, the Departments believe that under the circumstances,
the interests in ensuring lawful, safe, and orderly processing and
overall system efficiencies--including screening out and removing those
with non-meritorious claims more quickly--outweigh any costs resulting
from increasing the length of some credible fear screening interviews,
and expanding the operation of the credible fear screening program, if
necessary.
Despite the difference in applicability, the Departments recognize
the toll it took on their resources to apply the TCT bar. As the
Departments explained in the Asylum Processing IFR, applying the TCT
bar required additional time from their employees at various levels:
asylum officers spent additional time ``conducting these screening
interviews, making determinations, and recording their assessments'';
``supervisory asylum officers reviewing these cases spent additional
time assessing whether the varying standards of proof were properly
applied to the forms of relief for which asylum officers screened'';
there was an ``additional investment of time and resources from Asylum
Division headquarters, including training and quality assurance staff
who had to develop and deliver guidance and trainings on the new
process, monitor the work being conducted in the field to ensure
compliance with regulations and administrative processes, and provide
guidance to asylum officers and supervisory asylum officers on
individual cases''; ``Attorneys from the USCIS Office of Chief Counsel
had to spend time and resources reviewing and advising on training
materials and guidance issued by the Asylum Division, as well as on
individual cases on which legal advice was sought to ensure proper
application of the divergent screening standards on various forms of
relief''; and ``IJs reviewing negative determinations by asylum
officers were also compelled to spend additional time ensuring the
proper application of these screening standards.'' 87 FR at 18092.
The Departments recognize that procedural changes may require
significant resources to implement. Indeed, the Departments continue to
experience this as they work to operationalize the significant
procedural changes made by the Asylum Processing IFR. Notably, however,
the Departments implemented the TCT Bar IFR for less than a year--from
July 16, 2019, until June 30, 2020--and it was the first time the
Departments implemented such a bar during credible fear. See Capital
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C.
2020) (vacating the TCT Bar IFR on June 30, 2020). Additionally, during
that time there were disruptions to the bar's implementation due to
fast-moving litigation that included an injunction that changed over
time.\219\ Thus, the Departments' experience of implementing the TCT
bar was disrupted and marked by uncertainty and changing circumstances.
Having had this experience along with implementing the Asylum
Processing IFR, the Departments are equipped to operationalize a new
condition on asylum eligibility during credible fear. Despite the
additional time it will require to train officers and ensure proper
application of the new procedure, the Departments believe the benefits
of applying the lawful pathways condition on eligibility for asylum
during the credible fear process outweigh the costs. Specifically, the
Departments believe that in the current and impending circumstances,
the interest in overall system efficiency outweighs the interest in
minimizing the length of any given credible fear screening.
---------------------------------------------------------------------------
\219\ The TCT Bar IFR was published on July 16, 2019, and went
into effect immediately. Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019). Eight days later, on
July 24, the IFR was preliminarily enjoined nationwide. E. Bay, 385
F. Supp. 3d 922, 960 (N.D. Cal. 2019). The government appealed and
sought an emergency stay pending appeal, and the Ninth Circuit
upheld the preliminary injunction but limited its geographical scope
to just the Ninth Circuit on August 16. E. Bay Sanctuary Covenant v.
Barr, 934 F.3d 1026, 1028 (9th Cir. 2019). On September 9, 2019, the
district court reinstated its previously entered preliminary
injunction, again applying it nationwide. E. Bay Sanctuary Covenant
v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019). The government
again appealed, but before the Ninth Circuit entered a decision, the
Supreme Court on September 11, 2019, issued an order staying the
district court's order ``in full pending disposition of the
Government's appeal in the United States Court of Appeals for the
Ninth Circuit and disposition of the Government's petition for a
writ of certiorari, if such writ is sought.'' Barr v. E. Bay
Sanctuary Covenant, 140 S. Ct. 3 (2019). The TCT Bar IFR then
remained in effect until it was vacated on June 30, 2020. Capital
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C.
2020).
---------------------------------------------------------------------------
ii. Application of ``Reasonable Possibility'' Standard
In explaining the changes adopted in the Asylum Processing IFR, the
Departments stated that using the ``significant possibility'' standard
to screen for all three types of claims--asylum, statutory withholding
of removal, and CAT protection--was preferable for multiple reasons,
including because it aligned with Congress's intent that a low
screening standard apply during the credible fear
[[Page 11746]]
process. See, e.g., 87 FR at 18091-93; 86 FR at 46914. Although the
Departments continue to believe that the credible fear screening
process is by its nature a screening procedure, they also balance the
nature of that screening procedure against the need to create
efficiencies in the system overall. Specifically, screening out more
non-meritorious claims means fewer additional cases that would result
in a denial years down the road--and which, in the meantime, would add
to the immigration court backlog. In other words, the Departments' goal
for the process is not to conduct interviews as quickly as possible
regardless of the downstream effects. A marginal increase in interview
duration for some noncitizens that saves a significant amount of time
later in the process is desirable as long as the screening is
calibrated to protect individuals with viable statutory withholding or
CAT claims. Although applying the ``reasonable possibility'' of
persecution or torture standard may also take some additional time for
those subject to the lawful pathways condition on eligibility for
asylum and would make it more difficult for those with non-meritorious
claims to pass the screening process, asylum officers and immigration
judges have long applied the reasonable fear of persecution or torture
standard successfully to noncitizens who are subject to administrative
removal orders under section 238(b) of the INA, 8 U.S.C. 1228(b), or
reinstated orders under section 241(a)(5) of the INA, 8 U.S.C.
1231(a)(5).
The Asylum Processing NPRM and IFR included discussions regarding
Congress's intent that the ``significant possibility'' standard be a
``low screening standard for admission into the usual full asylum
process,'' 86 FR at 46914, and that it be employed so that the
expedited removal process is efficient and expeditious, see generally
87 FR at 18091-94, 18135. The Departments believe that screening
noncitizens' claims of fear of persecution and torture under the
``reasonable possibility'' standard where they are not eligible for
asylum due to application of the lawful pathways condition on
eligibility continues to align with the INA and Congress's general
intent to create an asylum and protection system that adjudicates
claims both expeditiously and fairly. See INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii) (``[I]n the absence of exceptional
circumstances, final administrative adjudication of the asylum
application, not including administrative appeal, shall be completed
within 180 days after the date an application is filed.''). In their
discussion in the Asylum Processing NPRM and IFR, the Departments did
not intend to foreclose ever applying the ``reasonable possibility''
standard. Indeed, the Departments at no time indicated an intent to
change the standard applied in reasonable-fear screenings.
In the Asylum Processing IFR, the Departments also included
discussions regarding their experiences applying the TCT Bar IFR and
the inefficiencies that resulted from applying the ``reasonable
possibility'' standard in that context. 87 FR at 18131; see also id. at
18091. Specifically, the discussion of the burdens of applying
divergent standards in the Asylum Procedures IFR stated that
``adjudicators were required to evaluate the same evidence twice for
the same factual scenario.'' Id. at 18131; cf. id. at 18091 (``[T]he
Departments believe that the efficiency gained in screening the same or
a closely related set of facts using the same legal standard at the
same time is substantial and should not be overlooked.''). By contrast,
the Departments do not intend to implement the lawful pathways
condition in this inefficient manner. Under the proposed rule, after a
noncitizen is found subject to the lawful pathways condition on
eligibility for asylum, a negative credible fear determination would be
entered as to asylum, and the noncitizen's claims relating to
persecution or torture would be considered only under the ``reasonable
possibility'' of persecution or torture standard in order to screen for
statutory withholding and CAT protection. And where the lawful pathways
condition does not apply at all or the asylum officer determines that
the noncitizen qualifies for an exception or has rebutted the
presumption of its application, the asylum officer would apply the
``significant possibility'' standard to the screening for all three
types of claims--asylum, statutory withholding of removal, and CAT
protection. Thus, any inefficiencies that would have arisen from the
manner in which the TCT Bar applied the ``significant possibility'' and
``reasonable possibility'' standards would not arise with respect to
the application of the lawful pathways condition on eligibility for
asylum.
The Asylum Processing IFR further described the burden on the
Departments of implementing the ``reasonable possibility'' standard
during credible fear screenings where the TCT bar applied. See id. at
18092 (``Having asylum officers apply varied legal standards would
generally lead to the need to elicit additional testimony from
noncitizens at the time of the credible fear screening interview, which
lengthens credible fear interviews and increases adjudication
times.''). The Departments continue to acknowledge that the
``reasonable possibility'' of persecution or torture standard is more
time consuming to implement than the lower standard of ``significant
possibility'' of establishing eligibility for the underlying
protection. But the Departments believe that in the unique context of
this proposed rule, the additional time it would require to train
officers and ensure proper application of the standard would be
outweighed by the systemic benefits of applying the ``reasonable
possibility'' of persecution or torture standard to the screening for
statutory withholding of removal and CAT protection for those
ineligible for asylum due to operation of the lawful pathways
condition. Specifically, the Departments believe that in the current
circumstances, where immediately after the lifting of the Title 42
public health Order DHS may encounter 11,000-13,000 migrants per
day,\220\ many of whom will express fear of returning to their home
countries and seek to apply for asylum in the United States, the
interest in overall system efficiency for processing the claims of
those who either are not subject to the condition or are screened-in
despite its applicability outweighs the interest in minimizing the
length of any given credible fear screening. This includes, to the
extent possible and consistent with statutory and international
obligations, minimizing the number of cases added to a system that is
already overwhelmed.
---------------------------------------------------------------------------
\220\ DHS SWB Encounter Planning Model generated January 6,
2023.
---------------------------------------------------------------------------
Finally, the Asylum Processing IFR noted that ``while the TCT Bar
IFR was in effect, no evidence [was] identified'' that applying the
``reasonable possibility'' standard for statutory withholding of
removal and CAT protection claims ``resulted in more successful
screening out of non-meritorious claims while ensuring the United
States complied with its non-refoulement obligations.'' Id. at 18092.
Because of the short and tumultuous life of the TCT Bar IFR, it was
difficult for the Departments to gather reliable data on the efficacy
of the particular processes adopted under that rule. Moreover, the
Departments have long applied--and continue to apply--the higher
``reasonable possibility'' of persecution or torture standard in
reasonable-fear screenings on the ground that this standard better
predicts
[[Page 11747]]
the likelihood of succeeding on the ultimate statutory withholding or
CAT protection application than the ``significant possibility'' of
establishing eligibility for the underlying protection standard, given
the higher burden of proof. As noted above, there is no evidence that
this standard is insufficient to identify individuals who will
ultimately be able to show that they are more likely than not to be
persecuted or tortured. Consistent with that settled judgment, which
the Asylum Processing IFR did not question or disturb, the Departments
believe that the ``reasonable possibility'' standard remains an
appropriate standard in proceedings where the applicant is determined
to be ineligible for asylum and the only potentially viable claims are
for statutory withholding or CAT relief.
iii. Review After Asylum Officer's Negative Credible Fear Determination
In the Asylum Processing IFR, the Departments reversed a change
made by the Global Asylum Rule that required an affirmative request for
immigration judge review after a negative credible fear determination.
See 87 FR at 18219 (amending 8 CFR 208.30(g)(1)). The Departments also
adopted a provision limiting USCIS, in its discretion, to only
considering a single request for reconsideration from a noncitizen
after immigration judge review. See id. (amending 8 CFR
208.30(g)(1)(i)). For those subject to the lawful pathways limitation
on asylum eligibility, as discussed below, the Departments believe that
the need for expedition under the current and anticipated exigent
circumstances weighs against granting IJ review where a noncitizen,
having been told in a language they understand of their right for
review and invited to choose whether or not to request review, has
refused or failed to request it, and weighs in favor of imposing
further limits on reconsideration than the Asylum Processing IFR
imposed.
First, the Departments propose to ensure that noncitizens are given
a written notice of the requirement to either request or decline
immigration judge review, and are advised that failure or refusal to
indicate a choice will be considered as declining such review, and
provide for immigration judge review of a negative credible fear
determination only where the noncitizen requests such review. See
proposed 8 CFR 208.33(c)(2)(v), 1208.33(c)(1). In the Asylum Processing
IFR, the Departments amended 8 CFR 208.30(g)(1) to provide that ``[a]
refusal or failure by the alien to make such indication shall be
considered a request for review.'' 87 FR at 18219. The Departments
continue to recognize that there may be multiple explanations for a
noncitizen's failure to indicate whether they would like to seek IJ
review, see id. at 18094, and seek to ensure noncitizens are aware of
the right to review and the consequences of failure to affirmatively
request such review. Specifically, DHS intends to change the
explanations it provides to noncitizens subject to the proposed rule to
make clear to noncitizens that the failure to affirmatively request
review will be deemed a waiver of the right to seek such review.
Conversely, the Departments are facing an exigent circumstance, in
which there is a critical need for proceedings to be expeditious, while
also fair, and for those without meritorious claims to be removed
quickly. Under the current and anticipated exigent circumstances
described in the rule, the Departments have determined that the balance
of interests should yield a different result here than in the Asylum
Processing IFR, and that, taking into account considerations of both
fairness and efficiency, immigration judge review should be provided
only where a noncitizen affirmatively indicates a request for such
review when invited to do so.
Second, the Departments propose to allow for reconsideration of a
negative credible fear finding after immigration judge review in the
sole discretion of USCIS. See proposed 8 CFR 208.33(c)(2)(v)(C). In the
Asylum Processing IFR, the Departments amended 8 CFR 208.30(g)(1)(i) to
provide that ``USCIS may, in its discretion, reconsider a negative
credible fear finding that has been concurred upon by an immigration
judge provided such reconsideration is requested by the alien or
initiated by USCIS no more than 7 calendar days after the concurrence
by the immigration judge, or prior to the alien's removal, whichever
date comes first, and further provided that no previous request for
reconsideration of that negative finding has already been made.'' 87 FR
at 18219; see 8 CFR 1208.30(g)(2)(iv)(A) (``USCIS may nevertheless
reconsider a negative credible fear finding as provided at 8 CFR
208.30(g)(1)(i).''). This was a change from prior practice, pursuant to
which there was no limit on the number of requests for reconsideration
that a noncitizen could submit; it was also a change from the NPRM,
where the Departments proposed eliminating reconsideration entirely.
See 86 FR at 46945 (proposing to amend 8 CFR 208.30(g)(1)(i) to add
that ``[o]nce the asylum officer has served the alien with Form I-863,
the immigration judge shall have sole jurisdiction to review whether
the alien has established a credible fear of persecution or torture,
and an asylum officer may not reconsider or reopen the
determination''). The Departments' adoption of a provision allowing for
one request for reconsideration within a short time frame was premised
on the conclusion that allowing unlimited requests for reconsideration
was inefficient but that, even after immigration judge review, ``in
some rare instances USCIS may still want to reconsider the
determination as a matter of discretion.'' 87 FR at 18132. Like the
Asylum Processing IFR, the proposed rule would maintain USCIS' ability
to reconsider negative determinations. See proposed 8 CFR
208.33(c)(2)(v)(C). However, due to the exigent circumstances discussed
throughout this NPRM, the Departments believe it is necessary to bar
noncitizens subject to the proposed rule from submitting requests for
reconsideration; as noted in the Asylum Processing IFR, such requests
require USCIS to ``devote time and resources that could more
efficiently be used on initial credible fear and reasonable fear
determinations,'' 87 FR at 18095, and very few such requests lead to a
reversal of the negative determination, see id. at 18132 (providing the
numbers of such requests received and the number that result in a
changed result for the asylum offices that track such information). The
Departments note that from October 1, 2022 through February 8, 2023,
approximately 288 requests for reconsideration were received by USCIS
and of those, 13 were changed to a positive credible fear determination
and 4 were pending further information gathering as of February 8,
2023.\221\ In addition, the provision proposed here would not eliminate
reconsideration entirely but rather would provide that reconsideration
remains available at USCIS' sole discretion.
---------------------------------------------------------------------------
\221\ USCIS Global Case Management System (data downloaded Feb.
8, 2023).
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VI. Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs, benefits, and transfers of available
[[Page 11748]]
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. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. The Office of Information and Regulatory
Affairs of the Office of Management and Budget (``OMB'') reviewed the
proposed rule as a significant regulatory action under section 3(f)(4)
of the Executive Order.
The expected effects of this proposed rule are discussed above. The
new condition described above would likely decrease the number of
asylum grants and likely reduce the amount of time that noncitizens who
are ineligible for asylum and who lack a reasonable fear of persecution
or torture would be present in the United States. Noncitizens who
establish a reasonable fear of persecution or torture would still be
able to seek protection in proceedings before IJs. In addition, the
proposed rule may result in significantly reduced incentives for
irregular migration and illegal smuggling activity.
The benefits of the proposed rule are expected to include improved
relationships with, and enhanced opportunities to coordinate with and
benefit from the migration policies of, regional neighbors; large-scale
reductions in strains on limited national resources; preservation of
the Departments' continued ability to safely, humanely, and effectively
enforce and administer the immigration laws; and a reduction in the
role of exploitative transnational criminal organizations and
smugglers. Some of these benefits would accrue to migrants who wish to
pursue safe, orderly, lawful pathways and processes, such as the
ability to schedule a time to apply for admission at a port of entry,
whose ability to present their claim might otherwise be hampered by the
severe strain that a further surge in irregular migration would impose
on the Departments.
The costs of the proposed rule primarily are borne by migrants and
the Departments. For migrants who would be made ineligible for asylum
under the presumptive condition established by the rule, such an
outcome would entail a loss of the benefits of asylum, although they
would continue to be eligible for statutory withholding of removal and
withholding under the CAT. Unlike asylees, noncitizens granted these
more limited forms of protection do not have a path to citizenship and
cannot petition for certain family members to join them in the United
States. In addition, the proposed rule would require additional time
for asylum officers, during fear screenings, to inquire into the
applicability of the presumption and whether the presumption has been
rebutted.
The lawful, safe, and orderly pathways described earlier in this
preamble would be authorized separate from this proposed rule but are
expected to yield significant benefits for noncitizens who might
otherwise seek to migrate irregularly to the United States. For
instance, the ability to schedule a time to arrive to apply for
admission at ports of entry is expected to significantly improve CBP's
ability to process noncitizens at ports of entry, and available parole
processes allow prospective irregular migrants to avoid a dangerous and
expensive overland journey in favor of an arrival by air to the United
States.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act requires Federal agencies to
consider the potential impact of regulations on small entities during
the development of their rules. See 5 U.S.C. 601 et seq. ``Small
entities'' are small businesses, not-for-profit organizations that are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. This NPRM would not directly regulate
small entities and would not be expected to have a direct effect on
small entities. Rather, the NPRM would regulate individuals, and
individuals are not defined as ``small entities'' by the RFA.\222\
While some employers could experience costs or transfer effects, these
impacts would be indirect. Based on the evidence presented in this
analysis and throughout this preamble, the Departments certify that
this proposed rule would not have a significant economic impact on a
substantial number of small entities. The Departments nonetheless
welcomes comments regarding potential impacts on small entities, which
the Departments may consider as appropriate in a final rule.
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\222\ See 5 U.S.C. 601(6).
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C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may directly result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector.\223\
The inflation-adjusted value of $100 million in 1995 was approximately
$177.8 million in 2021 based on the Consumer Price Index for All Urban
Consumers (CPI-U).\224\
---------------------------------------------------------------------------
\223\ 2 U.S.C. 1532(a).
\224\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. City Average, All Items by Month'' (Dec.
2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf. Steps in calculation of inflation: (1) Calculate
the average monthly CPI-U for the reference year (1995) and the most
recent current year available (2021); (2) Subtract reference year
CPI-U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; (4) Multiply by 100. Calculation of inflation: [(Average
monthly CPI-U for 2021-Average monthly CPI-U for 1995)/(Average
monthly CPI-U for 1995)] * 100 = [(270.970-152.383)/152.383] * 100 =
(118.587/152.383) * 100 = 0.7782 * 100 = 77.82 percent = 77.8
percent (rounded). Calculation of inflation-adjusted value: $100
million in 1995 dollars * 1.778 = $177.8 million in 2021 dollars.
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The term ``Federal mandate'' means a Federal intergovernmental
mandate or a Federal private sector mandate.\225\ The term ``Federal
intergovernmental mandate'' means, in relevant part, a provision that
would impose an enforceable duty upon State, local, or Tribal
governments (except as a condition of Federal assistance or a duty
arising from participation in a voluntary Federal program).\226\ The
term ``Federal private sector mandate'' means, in relevant part, a
provision that would impose an enforceable duty upon the private sector
(except as a condition of Federal assistance or a duty arising from
participation in a voluntary Federal program).\227\
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\225\ 2 U.S.C. 1502(1), 658(6).
\226\ 2 U.S.C. 658(5).
\227\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------
This proposed rule does not contain such a mandate, because it
would not impose any enforceable duty upon any other level of
government or private sector entity. Any downstream effects on such
entities would arise solely due to their voluntary choices, and the
voluntary choices of others, and would not be a consequence of an
enforceable duty imposed by this proposed rule. Similarly, any costs or
transfer effects on State and local governments would not result from a
Federal mandate as that term is defined under UMRA. The requirements of
title II of UMRA, therefore, do not apply, and the Departments have not
prepared a statement under UMRA.
[[Page 11749]]
D. 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 proposed
rule would not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
E. 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.
F. Family Assessment
The Departments have reviewed this proposed rule in line with the
requirements of section 654 of the Treasury and General Government
Appropriations Act, 1999,\228\ enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999.\229\
The Departments have reviewed the criteria specified in section
654(c)(1), by evaluating whether this regulatory action (1) impacts the
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) only financially impacts families, if at
all, to the extent such impacts are justified; (6) may be carried out
by State or local government or by the family; or (7) establishes a
policy concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the agency
determines a regulation may negatively affect family well-being, then
the agency must provide an adequate rationale for its implementation.
---------------------------------------------------------------------------
\228\ See 5 U.S.C. 601 note.
\229\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------
The Departments have determined that the implementation of this
proposed rule would not impose a negative impact on family well-being
or the autonomy or integrity of the family as an institution. Under the
proposed rule, adjudicators would consider the circumstances of family
members traveling together when determining whether noncitizens are not
subject to the presumption in proposed section 208.33(a)(1) and
1208.33(a). The presumption would not apply to a noncitizen if the
noncitizen or a member of the noncitizen's family establishes one of
the conditions in proposed Sec. 208.33(a)(1)(i) through (iii).
Similarly, the presumption in paragraph (a)(1) of those sections would
be rebutted if the noncitizen demonstrates that, at the time of entry,
the noncitizen or a member of the noncitizen's family was subject to
one of the circumstances enumerated in paragraph (a)(2).
Additionally, to protect against family separation, where a
principal asylum applicant is eligible for statutory withholding of
removal or CAT withholding and would be granted asylum but for the
lawful pathways rebuttable presumption, and where denial of asylum on
that ground alone would lead to the applicant's family being separated
because at least one other family member would not qualify for asylum
or other protection from removal on their own--meaning the entire
family may not be able to remain together--the Departments have
determined that the possibility of separating the family would
constitute an exceptionally compelling circumstance that rebuts the
lawful pathways presumption of ineligibility for asylum. See Executive
Order 14011, Establishment of Interagency Task Force on the
Reunification of Families, 86 FR 8273, 8273 (Feb. 5, 2021) (``It is the
policy of my Administration to respect and value the integrity of
families seeking to enter the United States.'').
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule would not have ``tribal implications'' because
it would 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, Executive Order
13175 (Consultation and Coordination with Indian Tribal Governments)
requires no further agency action or analysis.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, the
Departments must submit to OMB, for review and approval, any collection
of information contained in a rule, unless otherwise exempt. See Public
Law 104-13, 109 Stat. 163 (May 22, 1995). This proposed rule proposes a
revision to a collection of information OMB Control Number 1651-0140
Collection of Advance Information from Certain Undocumented Individuals
on the Land Border.
Comments on the revision are encouraged and will be accepted for 30
days from the publication date of the proposed rule. All submissions on
the information collection specifically must include the words ``OMB
Control Number 1651-0140'' in the body of the submission. Use only the
method under the ADDRESSES and Public Participation sections of this
proposed rule to submit comments. Comments on this information
collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology (e.g., permitting electronic
submission of responses).
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Collection of Advance Information
from Certain Undocumented Individuals on the Land Border.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: CBP.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Individual undocumented noncitizens. Under this
collection, CBP collects certain biographic and biometric information
from undocumented noncitizens prior to their arrival at a port of
entry, to streamline their processing at the port of entry. The
requested information is that which CBP would otherwise collect from
these individuals during primary and/or secondary processing. This
information is provided by undocumented noncitizens, directly or
through NGOs and International Organizations. Providing this
information reduces the amount of data entered by CBP Officers (CBPOs)
and
[[Page 11750]]
the corresponding time required to process an undocumented noncitizen.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection is 365,000
and the estimated time burden per response is 16 minutes.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 97,333 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,985,593.
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.
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, the
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. Amend Sec. 208.13 by adding and reserving paragraph (e) and adding
paragraph (f), to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(e) [Reserved]
(f) Lawful pathways condition. For applications filed by aliens who
entered the United States between [EFFECTIVE DATE OF FINAL RULE] and
[24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], also refer to the
provisions on asylum eligibility described in Sec. 208.33.
0
3. Add subpart C, consisting of Sec. 208.33, to read as follows:
Subpart C--Lawful Pathways and Asylum Eligibility for Certain
Aliens Who Entered Between [EFFECTIVE DATE OF FINAL RULE] and [24
MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]
Sec. 208.33 Lawful pathways condition on asylum eligibility.
Notwithstanding any contrary section of this part, including
Sec. Sec. 208.2, 208.13, and 208.30--
(a) Condition on eligibility. (1) An alien who, between [EFFECTIVE
DATE OF FINAL RULE] and [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE],
enters the United States at the southwest land border without documents
sufficient for lawful admission as described in section 212(a)(7) of
the Act subsequent to the end of implementation of the Centers for
Disease Control and Prevention's Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, issued on August 2, 2021, and related
prior orders issued pursuant to the authorities in sections 362 and 365
of the Public Health Service Act (42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR 71.40, after traveling through a
country other than the alien's country of citizenship, nationality, or,
if stateless, last habitual residence, that is a party to the 1951
United Nations Convention relating to the Status of Refugees or the
1967 Protocol relating to the Status of Refugees is subject to a
rebuttable presumption of ineligibility for asylum unless the alien, or
a member of the alien's family as described in Sec. 208.30(c) with
whom the alien is traveling:
(i) Was provided appropriate authorization to travel to the United
States to seek parole, pursuant to a DHS-approved parole process;
(ii) Presented at a port of entry, pursuant to a pre-scheduled time
and place, or presented at a port of entry without a pre-scheduled time
and place, if the alien demonstrates by a preponderance of the evidence
that it was not possible to access or use the DHS scheduling system due
to language barrier, illiteracy, significant technical failure, or
other ongoing and serious obstacle; or
(iii) Sought asylum or other protection in a country through which
the noncitizen traveled and received a final decision denying that
application.
(2) The presumption in paragraph (a)(1) of this section can be
rebutted if an alien demonstrates by a preponderance of the evidence
that exceptionally compelling circumstances exist, including if the
alien demonstrates that, at the time of entry, the alien or a member of
the alien's family as described in Sec. 208.30(c) with whom the alien
is traveling:
(i) Faced an acute medical emergency;
(ii) Faced an imminent and extreme threat to life or safety, such
as an imminent threat of rape, kidnapping, torture, or murder; or
(iii) Satisfied the definition of ``victim of a severe form of
trafficking in persons'' provided in Sec. 214.11 of this chapter.
(3) The presumption in paragraph (a)(1) of this section shall
necessarily be rebutted if an alien demonstrates by a preponderance of
the evidence any of the circumstances in paragraphs (a)(2)(i) through
(iii) of this section.
(b) Exception. Unaccompanied alien children, as defined in 6 U.S.C.
279(g)(2), are not subject to paragraph (a)(1) of this section.
(c) Application in credible fear determinations. (1) The asylum
officer shall first determine whether the alien is covered by the
presumption in paragraph (a)(1) of this section and, if so, whether the
alien has rebutted the presumption in accordance with paragraph (a)(2)
of this section.
(i) If the alien is covered by the presumption in paragraph (a)(1)
of this section and fails to rebut the presumption in accordance with
paragraph (a)(2) of this section, then the asylum officer shall enter a
negative credible fear determination with respect to the alien's asylum
claim and continue to consider the alien's claim under paragraph (c)(2)
of this section.
(ii) If the alien is not covered by the presumption in paragraph
(a)(1) of this section or has rebutted the presumption in accordance
with paragraph (a)(2) of this section, the asylum officer shall follow
the procedures in Sec. 208.30.
(2)(i) In cases in which the asylum officer enters a negative
credible fear determination under paragraph (c)(1)(i) of this section,
the asylum officer will assess whether the alien has established a
reasonable possibility of persecution (meaning a reasonable possibility
of being persecuted because of their race, religion, nationality,
political opinion, or membership in a particular social group) or
torture, with respect to the prospective country or countries of
removal identified pursuant to section 241(b) of the Act.
(ii) In cases described in paragraph (c)(2)(i) of this section, if
the alien establishes a reasonable possibility of persecution or
torture with respect to the identified country of removal, the
Department will issue a Form I-862, Notice to Appear. In removal
proceedings, the alien may apply for
[[Page 11751]]
asylum, withholding of removal under section 241(b)(3) of the Act,
withholding of removal under the Convention Against Torture, or any
other form of relief or protection for which they are eligible.
(iii) In cases described in paragraph (c)(2)(i) of this section, if
an alien fails to establish a reasonable possibility of persecution or
torture with respect to the identified country of removal, the asylum
officer will provide the alien with a written notice of decision and
inquire whether the alien wishes to have an immigration judge review
the negative credible fear determinations.
(iv) The alien must indicate whether he or she desires such review
on a Record of Negative Fear Finding and Request for Review by
Immigration Judge.
(v) Only if the alien requests such review by so indicating on the
Record of Negative Fear shall the asylum officer serve the alien with a
Notice of Referral to Immigration Judge. The record of determination,
including copies of the Notice of Referral to Immigration Judge, the
asylum officer's notes, the summary of the material facts, and other
materials upon which the determination was based shall be provided to
the immigration judge with the negative determination. Immigration
judges will evaluate the case as provided in 8 CFR 1208.33(c). The case
shall then proceed as set forth in paragraphs (c)(2)(v)(A) through (C)
of this section.
(A) Where the immigration judge issues a positive credible fear
determination under 8 CFR 1208.33(c)(2)(i), the case shall proceed
under 8 CFR 1208.30(g)(2)(iv)(B).
(B) Where the immigration judge issues a positive credible fear
determination under 8 CFR 1208.33(c)(2)(ii), DHS shall issue a Form I-
862, Notice to Appear, to commence removal proceedings under section
240 of the Act. In removal proceedings, the alien may apply for asylum,
withholding of removal under section 241(b)(3) of the Act, withholding
of removal under the Convention Against Torture, or any other form of
relief or protection for which the alien is eligible.
(C) Where the immigration judge issues a negative credible fear
determination, the case shall be returned to DHS for removal of the
alien. No appeal shall lie from the immigration judge's decision and no
request for reconsideration may be submitted to USCIS. Nevertheless,
USCIS may, in its sole discretion, reconsider a negative determination.
(d) Severability. The Department intends that any provision of this
section held to be invalid or unenforceable by its terms, or as applied
to any person or circumstance, should be construed so as to continue to
give the maximum effect to the provision permitted by law, unless such
holding is that the provision is wholly invalid and unenforceable, in
which event the provision should be severed from the remainder of this
section and the holding should not affect the remainder of this section
or the application of the provision to persons not similarly situated
or to dissimilar circumstances.
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
4. The authority citation for part 1208 is revised 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
5. Amend Sec. 1208.13 by adding paragraph (f) to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(f) Lawful pathways condition. For applications filed by aliens who
entered the United States between [EFFECTIVE DATE OF FINAL RULE] and
[24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], also refer to the
provisions on asylum eligibility described in Sec. 1208.33.
0
6. Add subpart C, consisting of Sec. 1208.33, to read as follows:
Subpart C--Lawful Pathways and Asylum Eligibility for Certain
Aliens Who Entered Between [EFFECTIVE DATE OF FINAL RULE] and [24
MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]
Sec. 1208.33 Lawful pathways condition on asylum eligibility.
Notwithstanding any contrary section of this part, including
Sec. Sec. 1208.2, 1208.13, and 1208.30--
(a) Condition on eligibility. (1) An alien who, between [EFFECTIVE
DATE OF FINAL RULE] and [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE],
enters the United States at the southwest land border without documents
sufficient for lawful admission as described in section 212(a)(7) of
the Act subsequent to the end of implementation of the Centers for
Disease Control and Prevention's Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, issued on August 2, 2021, and related
prior orders issued pursuant to the authorities in sections 362 and 365
of the Public Health Service Act (42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR 71.40, after traveling through a
country other than the alien's country of citizenship, nationality, or,
if stateless, last habitual residence, that is a party to the 1951
United Nations Convention relating to the Status of Refugees or the
1967 Protocol relating to the Status of Refugees is subject to a
rebuttable presumption of ineligibility for asylum unless the alien, or
a member of the alien's family as described in Sec. 208.30(c) with
whom the alien is traveling:
(i) Was provided appropriate authorization to travel to the United
States to seek parole, pursuant to a DHS-approved parole process;
(ii) Presented at a port of entry, pursuant to a pre-scheduled time
and place, or presented at a port of entry, without a pre-scheduled
time and place, if the alien demonstrates by a preponderance of the
evidence that it was not possible to access or use the DHS scheduling
system due to language barrier, illiteracy, significant technical
failure, or other ongoing and serious obstacle; or
(iii) Sought asylum or other protection in a country through which
the noncitizen traveled and received a final decision denying that
application.
(2) The presumption in paragraph (a)(1) of this section can be
rebutted if an alien demonstrates by a preponderance of the evidence
that exceptionally compelling circumstances exist, including if the
alien demonstrates that, at the time of entry, the alien or a member of
the alien's family as described in 8 CFR 208.30(c) with whom the alien
is traveling:
(i) Faced an acute medical emergency;
(ii) Faced an imminent and extreme threat to life or safety, such
as an imminent threat of rape, kidnapping, torture, or murder; or
(iii) Satisfied the definition of ``victim of a severe form of
trafficking in persons'' provided in 8 CFR 214.11.
(3) The presumption in paragraph (a)(1) of this section shall
necessarily be rebutted if an alien demonstrates by a preponderance of
the evidence any of the circumstances in paragraphs (a)(2)(i) through
(iii) of this section.
(b) Exception. Unaccompanied alien children, as defined in 6 U.S.C.
279(g)(2), are not subject to paragraph (a)(1) of this section.
(c) Application in credible fear determinations. (1) Where an
asylum
[[Page 11752]]
officer has issued a negative credible fear determination pursuant to 8
CFR 208.33(c), and the alien has requested immigration judge review of
that credible fear determination, the immigration judge shall evaluate
the case de novo, as specified in paragraph (c)(2) of this section. In
doing so, the immigration judge shall take 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 immigration judge.
(2) The immigration judge shall first determine whether the alien
is covered by the presumption at 8 CFR 208.33(a)(1) and 1208.33(a)(1)
and, if so, whether the alien has rebutted the presumption in
accordance with 8 CFR 208.33(a)(2) and 1208.33(a)(2).
(i) Where the immigration judge determines that the alien is not
covered by the presumption, or that the presumption has been rebutted,
the immigration judge shall further determine, consistent with Sec.
1208.30, whether the alien has established a significant possibility of
eligibility for asylum under section 208 of the Act, withholding of
removal under section 241(b)(3) of the Act, or withholding of removal
under the Convention Against Torture. Where the immigration judge
determines that the alien has established a significant possibility of
eligibility for one of those forms of relief or protection, the
immigration judge shall issue a positive credible fear finding. Where
the immigration judge determines that the alien has not established a
significant possibility of eligibility for any of those forms of relief
or protection, the immigration judge shall issue a negative credible
fear finding.
(ii) Where the immigration judge determines that the alien is
covered by the presumption and that the presumption has not been
rebutted, the immigration judge shall further determine whether the
alien has established a reasonable possibility of persecution (meaning
a reasonable possibility of being persecuted because of their race,
religion, nationality, political opinion, or membership in a particular
social group) or torture. Where the immigration judge determines that
the alien has established a reasonable possibility of persecution or
torture, the immigration judge shall issue a positive credible fear
finding. Where the immigration judge determines that the alien has not
established a reasonable possibility of persecution or torture, the
immigration judge shall issue a negative credible fear finding.
(3) Following the immigration judge's determination, the case will
proceed as indicated in 8 CFR 208.33(c)(2)(v)(A) through (C).
(d) Family unity and removal proceedings. Where a principal asylum
applicant is eligible for withholding of removal under section
241(b)(3) of the Act or withholding of removal under Sec.
1208.16(c)(2) and would be granted asylum but for the presumption in
paragraph (a)(1) of this section, and where an accompanying spouse or
child as defined in 208(b)(3)(A) of the Act does not independently
qualify for asylum or other protection from removal, the presumption
shall be deemed rebutted as an exceptionally compelling circumstance in
accordance with 8 CFR 208.33(a)(2) and 1208.33(a)(2).
(e) Severability. The Department intends that any provision of this
section held to be invalid or unenforceable by its terms, or as applied
to any person or circumstance, should be construed so as to continue to
give the maximum effect to the provision permitted by law, unless such
holding is that the provision is wholly invalid and unenforceable, in
which event the provision should be severed from the remainder of this
section and the holding should not affect the remainder of this section
or the application of the provision to persons not similarly situated
or to dissimilar circumstances.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Dated: February 16, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023-03718 Filed 2-21-23; 2:00 pm]
BILLING CODE 4410-30-P; 9111-97-P