[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  

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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.)
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.)
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \99\ OIS Enforcement Lifecycle data through September 30, 2022.
    \100\ Id.
    \101\ OIS analysis of DOJ EOIR data.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \119\ See 88 FR 1255 (Jan. 9, 2023).
    \120\ Id. at 1256.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \175\ For a more complete description of the expedited removal 
process, see the Legal Authority section below.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \185\ See 5 U.S.C. 553(a), (b), (d).
---------------------------------------------------------------------------

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.
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    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).
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    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.
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    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \222\ See 5 U.S.C. 601(6).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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