[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Rules and Regulations]
[Pages 18227-18241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06351]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2720-22; DHS Docket No. USCIS-2023-0003]
RIN 1615-AC84

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1240

[EOIR No. 23-0010; AG Order No. 5632-2023]
RIN 1125-AB29


Implementation of the 2022 Additional Protocol to the 2002 U.S.-
Canada Agreement for Cooperation in the Examination of Refugee Status 
Claims From Nationals of Third Countries

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

ACTION: Final rule.

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SUMMARY: This rule amends existing Department of Homeland Security 
(``DHS'') and Department of Justice (``DOJ'') (collectively, ``the 
Departments'') regulations to implement the Additional Protocol to the 
Agreement between The Government of the United States of America and 
The Government of Canada For Cooperation in the Examination of Refugee 
Status Claims From Nationals of Third Countries (``Additional Protocol 
of 2022'') negotiated by the Governments of the United States and 
Canada and signed in Ottawa, Ontario, Canada, on March 29, 2022, and in 
Washington, DC, United States, on April 15, 2022, respectively. The 
Additional Protocol of 2022 supplements certain terms of the December 
5, 2002, Agreement between The Government of the United States and The 
Government of Canada For Cooperation in the Examination of Refugee 
Status Claims from Nationals of Third Countries (``Safe Third Country 
Agreement,'' ``STCA,'' or ``Agreement''). Pursuant to the STCA, the 
respective governments manage which government decides certain 
individuals' requests for asylum or other protection relating to fear 
of persecution or torture (referred to as a ``refugee status claim'' in 
the STCA and the Additional Protocol of 2022) pursuant to its laws, 
regulations, and policies implementing its international treaty 
obligations relating to non-refoulement. Under the STCA, only those 
individuals who cross the U.S.-Canada land border at a port of entry 
(``POE''), or in transit while being removed or deported to a third 
country from the ``country of last presence,'' are subject to the terms 
of the STCA. Once the Additional Protocol of 2022 is implemented, the 
STCA also will apply to individuals who cross the U.S.-Canada land 
border between POEs, including certain bodies of water, and who make an 
asylum or other protection claim relating to a fear of persecution or 
torture within 14 days after such crossing. The Additional Protocol of 
2022 will enter into force once the United States and Canada have 
officially notified each other that they have completed the necessary 
domestic procedures for bringing the Additional Protocol of 2022 into 
force. The Departments intend this official notification to coincide 
with the effective date of this final rule at 12:01 a.m. on Saturday, 
March 25, 2023.

DATES: This final rule is effective at 12:01 a.m. on Saturday, March 
25, 2023.

FOR FURTHER INFORMATION CONTACT: 
    For U.S. Citizenship and Immigration Services: Ren[aacute] Cutlip-
Mason, Chief, Division of Humanitarian Affairs, Office of Policy and 
Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588-
0009; telephone (240) 721-3000 (not a toll-free call).
    For Executive Office of Immigration Review: Lauren Alder Reid, 
Assistant Director, Office of Policy, Executive Office for Immigration 
Review, Department of Justice, 5107 Leesburg Pike, Suite 1800, Falls 
Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Legal Authority
    C. Summary of the Final Rule Provisions
II. Background
    A. DOJ and DHS Legal Authority
    B. Overview of the Safe Third Country Agreement in the Context 
of Asylum, Expedited Removal Proceedings, and Removal Proceedings
    1. Asylum
    2. Expedited Removal Proceedings and Removal Proceedings

[[Page 18228]]

    3. Safe Third Country Agreement
    C. Updates to the Safe Third Country Agreement Through the 
Additional Protocol of 2022
III. Discussion of Final Rule
    A. General Discussion of Changes
    B. Determinations Regarding Crossing Between POEs and Whether 14 
Days Have Elapsed
    C. Considerations Relating to the Preponderance-of-the-Evidence 
Standard
    D. Return to the Country of Last Presence
IV. Detailed Summary of Regulatory Changes
    A. New 8 CFR 208.30(e)(6) and (7)
    B. New 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) 
(Heading), (g)(1) Through (4), (h)(1)
V. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Congressional Review Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Family Assessment
    I. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    J. National Environmental Policy Act
    K. Paperwork Reduction Act

I. Executive Summary

A. Purpose of the Regulatory Action

    The Departments are amending their respective regulations to 
implement the Additional Protocol of 2022 to the STCA.\1\ Under the 
STCA and its existing implementing regulations, third country nationals 
seeking asylum or other protection from persecution or torture must 
make a claim in the first country they arrive in (United States or 
Canada), unless they qualify for an exception to the STCA.\2\ 
Therefore, asylum seekers \3\ arriving from Canada at a land border POE 
\4\ in the United States, or in transit through the United States 
during removal by Canada, are generally barred from pursuing their 
asylum or other protection claim relating to fear of persecution or 
torture \5\ in the United States unless they meet an exception under 
the STCA. Those who do not meet an exception under the STCA may be 
returned to Canada to pursue their claim. Similarly, third country 
nationals arriving from the United States at a Canadian land border 
POE, or in transit through Canada during removal by the United States, 
who are seeking asylum or other protection relating to fear of 
persecution or torture in Canada may be returned to the United States 
under the STCA to pursue their asylum or other protection claim 
relating to fear of persecution or torture under United States 
immigration law, unless they qualify for an exception under the STCA.
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    \1\ See Agreement between The Government of The United States of 
America and The Government of Canada For Cooperation in the 
Examination of Refugee Status Claims From Nationals of Third 
Countries, Can.-U.S., Dec. 5, 2002, T.I.A.S. No. 04-1229, https://www.state.gov/04-1229.
    \2\ See STCA art. 4; see also 8 CFR 208.30(e)(6), 1003.42(h), 
1240.11(g).
    \3\ The Departments use the term ``asylum seeker'' to be 
synonymous with the term ``Refugee Status Claimant'' used in the 
STCA and Additional Protocol of 2022, which is defined as ``any 
person who makes a refugee status claim in the territory of one of 
the Parties.'' STCA art. 1(d).
    \4\ See 19 CFR 101.1 (defining ``port'' and ``port of entry'') 
and 8 CFR 100.4 (list of POEs).
    \5\ The Departments use the term ``asylum or other protection 
claim relating to persecution or torture'' to be synonymous with the 
phrase ``Refugee Status Claim'' used in the STCA and Additional 
Protocol of 2022, which means ``a request from a person to the 
government of either Party for protection consistent with the 
Convention or the Protocol, the Torture Convention, or other 
protection grounds in accordance with the respective laws of each 
Party.'' STCA art. 1(c). The Convention, Protocol, and Torture 
Convention referenced in the definition are the Convention Relating 
to the Status of Refugees, done at Geneva, July 28, 1951; the 
Protocol Relating to the Status of Refugees, done at New York, 
January 31, 1967; and the Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment, done at New 
York, December 10, 1984.
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    The Additional Protocol of 2022 supplements the STCA.\6\ The United 
and Canada have agreed to the Additional Protocol of 2022, but 
amendments to the existing regulations of the United States are 
necessary to extend the STCA's application under the Additional 
Protocol of 2022 to individuals who cross between the official POEs 
along the U.S.-Canada shared border, including certain bodies of water 
as determined by the United States and Canada, and make an asylum or 
other protection claim relating to fear of persecution or torture 
within 14 days after such crossing.
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    \6\ See Additional Protocol of 2022 art. 1. Correspondingly, the 
provisions of the STCA apply to the Additional Protocol of 2022 
except as otherwise specified in the Additional Protocol of 2022. 
See id.
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B. Summary of Legal Authority

    The authority for the Attorney General and the Secretary of 
Homeland Security (``Secretary'') to issue this final rule is found in 
section 208(a)(2)(A) of the Immigration and Nationality Act (``INA'' or 
``the Act''), 8 U.S.C. 1158(a)(2)(A), which governs an individual's 
eligibility to apply for asylum if the Attorney General or the 
Secretary determines that the noncitizen may be removed, pursuant to a 
bilateral or multilateral agreement, to a safe third country. Under 
sections 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), the 
Secretary is authorized to establish such regulations as the Secretary 
deems necessary for carrying out the Secretary's authority under the 
INA. Under section 103(g) of the INA, 8 U.S.C. 1103(g), the Attorney 
General is authorized to establish such regulations as the Attorney 
General deems necessary in immigration proceedings.

C. Summary of the Final Rule Provisions

    This rule does not alter the procedures applied to expedited 
removal proceedings, credible fear screenings, or threshold screening 
interviews as provided in the current regulations. The STCA is 
implemented within the existing framework that authorizes the removal 
of noncitizens \7\ from the United States, including expedited removal 
proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), 
and ordinary removal proceedings before an immigration judge under 
section 240 of the INA, 8 U.S.C. 1229a.
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    \7\ For purposes of the discussion in this preamble, the 
Departments use the term ``noncitizen'' to be synonymous with the 
term ``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C. 
1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (``This 
opinion uses the term `noncitizen' as equivalent to the statutory 
term `alien.' See 8 U.S.C. 1101(a)(3).''). Throughout this preamble 
the Departments also use the terms ``individual'' or ``person.''
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    This final rule amends 8 CFR 208.30(e)(6) of the DHS regulations to 
authorize an asylum officer to conduct a threshold screening interview. 
This interview will determine whether a noncitizen is ineligible to 
apply for asylum by claiming a fear of persecution or torture (pursuant 
to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A)), when such 
a claim is made within 14 days after crossing the U.S.-Canada land 
border between POEs, including crossing the border in bodies of water 
mutually designated by the United States and Canada. This final rule 
revises 8 CFR 208.30(e)(6)(i) to clarify that persons who are subject 
to the Additional Protocol of 2022 and who do not qualify for an 
exception under the STCA are ineligible to apply for asylum in the 
United States. This rule also revises 8 CFR 208.30(e)(6)(ii) by adding 
a reference to the Additional Protocol of 2022 to clarify that a 
noncitizen must establish, by a preponderance of the evidence, that an 
exception applies before an asylum officer may proceed with the 
credible fear determination. This rule also amends 8 CFR 
208.30(e)(6)(iii) by clarifying that the STCA includes the Additional 
Protocol of 2022. This rule also revises 8 CFR 208.30(e)(7) by adding a 
reference to the Additional Protocol of 2022 to clarify that the

[[Page 18229]]

procedures outlined in 8 CFR 208.30(e)(7) apply to noncitizens who are 
subject to an agreement under section 208(a)(2)(A) of the Act, 8 U.S.C. 
1158(a)(2)(A), other than the U.S.-Canada STCA, which includes the 
Additional Protocol of 2022.
    Further, this rule revises 8 CFR 1003.42(h)(1) of the regulations 
of the Department of Justice's Executive Office for Immigration Review 
(``EOIR''), which establishes that an asylum officer's determination 
relating to the application of the STCA is not subject to an 
immigration judge's review. This final rule clarifies that this 
provision also extends to determinations made pursuant to the 
Additional Protocol of 2022. This rule also revises 8 CFR 1003.42(h)(2) 
to clarify that the existing provisions, which establish that any 
determination by DHS that a noncitizen being removed from Canada in 
transit through the United States should be returned to Canada to 
pursue asylum claims under Canadian law is not subject to an 
immigration judge's review, also extend to a determination made 
pursuant to the Additional Protocol of 2022.
    Next, because the STCA, as supplemented by the Additional Protocol 
of 2022, also applies to individuals in removal proceedings, this final 
rule makes corresponding amendments to 8 CFR 1240.11(g) (heading) and 
(g)(1) through (4) of the EOIR regulations to require an immigration 
judge to consider the Additional Protocol of 2022 to the STCA in 
determining whether a noncitizen should be returned to Canada for 
adjudication of their protection claim or whether the noncitizen should 
be permitted to apply for asylum or seek other protection relating to 
fear of persecution or torture in the United States. Last, this rule 
revises 8 CFR 1240.11(h)(1) by adding a reference to the Additional 
Protocol of 2022 to clarify that the procedures outlined in 8 CFR 
1240.11(h)(1) apply to noncitizens who are subject to agreements under 
section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), other than the 
U.S.-Canada STCA, which includes the Additional Protocol of 2022.

II. Background

A. DOJ and DHS Legal Authority

    The Attorney General and the Secretary publish this joint rule 
pursuant to their respective authorities concerning asylum, withholding 
of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) 
(``statutory withholding of removal''), and protection under the 
Convention Against Torture and Other Cruel, Inhuman, or Degrading 
Treatment or Punishment \8\ (``Convention Against Torture'' or ``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.
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    \8\ Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
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    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 [noncitizens],'' and it grants 
the Secretary the power to take all actions ``necessary for carrying 
out'' his authority under the immigration laws. See INA 103(a)(1), (3), 
8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 112, 202. The Secretary's 
authority also includes the authority to publish regulations governing 
the apprehension, inspection and admission, detention, removal, 
withholding of removal, and release of noncitizens encountered in the 
interior of the United States or at or between the U.S. POEs. See INA 
235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
    In addition, under the HSA, the Attorney General retained authority 
over conduct of removal proceedings pursuant to section 240 of the INA, 
8 U.S.C. 1229a (``section 240 removal proceedings''). EOIR's 
immigration judges conduct these adjudications. See INA 103(g), 8 
U.S.C. 1103(g), 6 U.S.C. 521; see also 8 CFR 1001.1(l). This 
immigration judge authority includes adjudication of certain asylum 
applications, as well as requests for statutory withholding of removal 
and protection under the CAT. Additionally, the INA provides that 
``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 authorizes the Attorney General and Secretary to set 
``requirements and procedures'' for implementing the asylum provisions 
in section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), and to 
establish by regulation, consistent with section 208 of the INA, 8 
U.S.C. 1158, ``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).
    The HSA grants to DHS concurrent authority to adjudicate 
affirmative asylum applications--i.e., applications for asylum filed 
with DHS for individuals not in removal proceedings--and authority to 
conduct credible fear interviews, make credible fear determinations in 
the context of expedited removal, and establish procedures for further 
consideration of asylum applications after an individual is found to 
have a credible fear. See 6 U.S.C. 271(b)(3); INA 235(b)(1)(B), 8 
U.S.C. 1225(b)(1)(B). By operation of 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. See 6 U.S.C. 557. Some of those authorities have been delegated 
within DHS to the Director of U.S. Citizenship and Immigration Services 
(``USCIS''), and USCIS asylum officers conduct threshold screening 
interviews, conduct credible fear interviews, make credible fear 
determinations, and determine whether a noncitizen's asylum application 
should be granted.\9\ See 8 CFR 208.2(a), 208.9, 208.30.
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    \9\ See DHS, Delegation to the Bureau of Citizenship and 
Immigration Services, No. 0150.1 (June 5, 2003), https://www.hsdl.org/?abstract&did=234775.
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    With limited exceptions, immigration judges within DOJ adjudicate 
asylum, statutory withholding of removal, and CAT protection 
applications filed by noncitizens during the pendency of section 240 
removal proceedings, and immigration judges adjudicate applications of 
asylum-seekers in cases USCIS refers to the immigration court. 8 CFR 
1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 241(b)(3), 8 U.S.C. 
1101(b)(4), 1229a(a)(1), 1231(b)(3).
    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 provides that parties to the 
Convention cannot expel or return (``refouler'') ``a refugee in any 
manner whatsoever to the frontiers of territories where [their] life or 
freedom would be threatened on account of [their] race, religion, 
nationality, membership of a particular social group or political 
opinion.'' See 19 U.S.T. at 6276. The United States implements its non-
refoulement obligations under Article 33 of the Refugee Convention (via 
the 1967 Protocol) through the statutory withholding of removal 
provision in section 241(b)(3) of the

[[Page 18230]]

INA, 8 U.S.C. 1231(b)(3), which provides that noncitizens 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. See 8 CFR 208.16, 1208.16; Regulations Concerning 
the Convention Against Torture, 64 FR 8478, 8478 (Feb. 19, 1999) 
(effective Mar. 22, 1999), as corrected by 64 FR 13881 (Mar. 23, 1999).
    Similarly, ``[u]nder Article 3 [of the CAT], the United States has 
agreed not to `expel, return (``refouler'') or extradite' a person to 
another state where [they] would be tortured.'' 64 FR at 8478. 
Regulations to implement the United States' obligations under Article 3 
of the CAT are located primarily at 8 CFR 208.16(c) through 208.18 (DHS 
regulations) and 1208.16(c) through 1208.18 (EOIR regulations).\10\
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    \10\ See 64 FR at 8478.
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B. Overview of the Safe Third Country Agreement in the Context of 
Asylum, Expedited Removal Proceedings, and Removal Proceedings

1. Asylum
    Asylum is a discretionary benefit that can be granted by the 
Attorney General or the Secretary if a noncitizen establishes, among 
other things, that they have experienced past persecution or has a 
well-founded fear of future persecution on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion. See INA 101(a)(42), 208, 240(c)(4)(A), 8 U.S.C. 1101(a)(42), 
1158, 1229a(c)(4)(A); 8 CFR 208.13, 1208.13. Under section 208(a)(1) of 
the INA, 8 U.S.C. 1158(a)(1), any person who arrives or is physically 
present in the United States is generally permitted to apply for 
asylum. For an asylum officer or immigration judge to grant asylum, 
however, they must determine that no bars to applying for asylum \11\ 
under section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), nor any bars 
to eligibility for asylum under section 208(b)(2)(A) of the INA, 8 
U.S.C. 1158(b)(2)(A), apply to an individual's case.\12\ One of these 
bars provides that a noncitizen does not have the right to apply for 
asylum in the United States if the Attorney General or the Secretary 
\13\ determines that the noncitizen ``may be removed, pursuant to a 
bilateral or multilateral agreement, to a country where the 
[noncitizen]'s life or freedom would not be threatened on account of 
race, religion, nationality, membership in a particular social group, 
or political opinion, and where the [noncitizen] would have access to a 
full and fair procedure for determining a claim to asylum or equivalent 
temporary protection[.]'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The 
statute also preserves the Departments' discretion not to apply the bar 
in section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), in a given 
case if DHS ``finds that it is in the public interest for the 
[noncitizen] to receive asylum in the United States.'' Id. The INA 
further provides that ``[n]o court shall have jurisdiction'' to review 
any determination made under any of the provisions within section 
208(a)(2) of the Act, 8 U.S.C. 1158(a)(2), including the safe third 
country provision at INA section 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). 
See INA 208(a)(3), 8 U.S.C. 1158(a)(3).
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    \11\ The bars to applying for asylum include removal to a safe 
third country (INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), the one-
year filing deadline for filing an application for asylum (INA 
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)), and previous denials of 
asylum (INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C)).
    \12\ The bars to eligibility for asylum include persecution of 
others on account of one of the protected grounds, conviction of a 
particularly serious crime, serious reasons for believing the 
noncitizen committed a serious nonpolitical crime outside the United 
States prior to arrival in the United States, certain support for or 
participation in terrorist activities, reasons for regarding the 
noncitizen as a danger to the security of the United States, and 
firm resettlement. See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
    \13\ As noted previously noted in Part II.A of this preamble, 
references to the Attorney General in the INA, in general, are to be 
read as referring to the Secretary of Homeland Security, either 
solely or in addition to the Attorney General, by operation of the 
HSA. See 6 U.S.C. 557.
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2. Expedited Removal Proceedings and Removal Proceedings
    The STCA is implemented within the framework of existing 
proceedings that authorize the removal of noncitizens from the United 
States, including expedited removal proceedings under section 235(b)(1) 
of the INA, 8 U.S.C. 1225(b)(1), and removal proceedings before an 
immigration judge under section 240 of the INA, 8 U.S.C. 1229a.
    An applicant for admission must be inspected by an immigration 
officer \14\ to determine whether the individual is admissible to the 
United States. See INA 235(a), (b), 8 U.S.C. 1225(a), (b). If a 
noncitizen cannot ``clearly and beyond a doubt'' establish that they 
are entitled to be admitted, then an immigration officer will 
determine, as a matter of discretion, whether the individual will be 
placed in expedited removal proceedings, where applicable, under 
section 235 of the INA, 8 U.S.C. 1225, or in removal proceedings under 
section 240 of the INA, 8 U.S.C. 1229a.\15\
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    \14\ See 8 CFR 1.2 (defining ``immigration officer'').
    \15\ See INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) (``Subject to 
subparagraphs (B) and (C), in the case of a [noncitizen] who is an 
applicant for admission, if the examining immigration officer 
determines that a [noncitizen] seeking admission is not clearly and 
beyond a doubt entitled to be admitted, the [noncitizen] shall be 
detained for a proceeding under [section 240.]''); see also INA 
235(b)(2)(B), 8 U.S.C. 1225(b)(2)(B) (providing that crewmen, 
stowaways, and noncitizens subject to expedited removal are not 
entitled to section 240 removal proceedings).
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    Under expedited removal proceedings, individuals arriving in the 
United States, also referred to as ``arriving aliens'' \16\ or 
``certain other [noncitizens]'' as designated by the Secretary who are 
found to be inadmissible under either section 212(a)(6)(C) of the INA, 
8 U.S.C. 1182(a)(6)(C), for misrepresentation, or section 212(a)(7) of 
the INA, 8 U.S.C. 1182(a)(7), for failure to meet documentation 
requirements for admission, 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 208 of the INA, 
8 U.S.C. 1158] or a fear of persecution.'' INA 235(b)(1)(A)(i), (iii), 
8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 235.3(b). In addition to the 
foregoing classes of noncitizens subject to expedited removal, the 
Secretary has designated other noncitizens subject to expedited 
removal, including noncitizens who are present in the United States 
without having been inspected at a POE, who are encountered by an 
immigration officer within 100 air miles of a U.S. land border, ``who 
have not established to the satisfaction of an immigration officer that 
they have been physically present in the U.S. continuously for the 
fourteen-day (14-day) period immediately prior to the date of 
encounter,'' and who otherwise meet certain criteria for expedited 
removal.\17\
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    \16\ ``Arriving alien'' is defined in regulations as meaning, in 
general, an ``applicant for admission coming or attempting to come 
into the United States at a port-of-entry,'' and the term includes 
noncitizens who are interdicted at sea and brought into the United 
States. 8 CFR 1.2, 1001.1(q).
    \17\ See Designating Aliens For Expedited Removal, 69 FR 48877, 
48877 (Aug. 11, 2004).
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    Generally, if a noncitizen is placed into expedited removal 
proceedings, and the noncitizen indicates an intention to apply for 
asylum or expresses a fear of persecution or torture or a fear of 
return to their country,\18\ the examining immigration officer will 
refer the noncitizen for an interview with an asylum officer. The 
purpose of the interview with an asylum officer is to screen for 
potential eligibility for asylum and other related protection claims 
relating to fear of persecution or torture. See 8 CFR 208.30(e)(2) and 
(3). Under the STCA, however, for

[[Page 18231]]

noncitizens arriving from Canada at a land border POE, the asylum 
officer will conduct a threshold screening, prior to any credible fear 
screening, to determine whether a noncitizen is subject to the STCA and 
barred from applying for asylum or seeking other protection relating to 
fear of persecution or torture. See 8 CFR 208.30(e)(6), 8 CFR 
1240.11(g)(4). An immigration judge does not have jurisdiction to 
review an asylum officer's determination that the STCA applies. See 8 
CFR 1003.42(h)(1) and (2). Under 8 CFR 208.30(e)(7) or 8 CFR 
1240.11(h), if a noncitizen is subject to an agreement other than the 
U.S.-Canada STCA, the procedures outlined in 8 CFR 208.30(e)(7) or 
1240.11(h) apply. See 8 CFR 208.30(e)(7), 1240.11(h).
---------------------------------------------------------------------------

    \18\ See 8 CFR 235.3(b)(4).
---------------------------------------------------------------------------

    If DHS does not make an STCA determination and refers the 
noncitizen to an immigration judge for section 240 removal proceedings, 
the immigration judge determines whether the noncitizen is eligible to 
apply for asylum or other protection claims relating to fear of 
persecution or torture, including whether the STCA applies to render 
the noncitizen ineligible to apply for asylum under section 
208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and subject to removal 
to Canada under the terms of the STCA. See INA 235(b)(1)(A)(i), 
(b)(2)(A), 8 U.S.C. 1225(b)(1)(A)(i), (b)(2)(A); 8 CFR 235.1(f)(2), 
1240.11(g).
3. Safe Third Country Agreement
    On December 5, 2002, the Governments of Canada and the United 
States signed the STCA to effectively manage the flow of asylum and 
other protection claimants between the two countries. The STCA 
allocates responsibility between the United States and Canada whereby 
one country or the other (but not both) assumes responsibility for 
processing the claims of certain third country national \19\ asylum 
seekers who are traveling from Canada into the United States or from 
the United States into Canada. The STCA provides for a threshold 
determination concerning which country will consider the merits of a 
noncitizen's asylum and other protection claims relating to persecution 
or torture. This process enhances the two nations' ability to manage, 
in an orderly fashion, asylum and other protection claims brought by 
persons crossing the U.S.-Canada common border.\20\
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    \19\ The STCA does not apply to those seeking asylum or other 
protection relating to fear of persecution or torture who are 
citizens of Canada or the United States or who, not having a country 
of nationality, are habitual residents of Canada or the United 
States. See STCA art. 2.
    \20\ See Implementation of the Agreement Between the Government 
of the United States of America and the Government of Canada 
Regarding Asylum Claims Made in Transit and at Land Border Ports of 
Entry, 69 FR 69480, 69488 (Nov. 29, 2004) (``DHS Final Rule'').
---------------------------------------------------------------------------

    Consistent with section 208(a)(2)(A) of the INA, 8 U.S.C. 
1158(a)(2)(A), the STCA provides for the return of certain asylum 
seekers to the ``country of last presence,'' the country in which the 
noncitizen was physically present immediately prior to making the 
asylum or protection claim,\21\ following the crossing of the land 
border at a POE,\22\ or in transit from the country of last presence 
during the course of deportation or removal. Accordingly, under the 
STCA, noncitizens arriving in the United States from Canada at a POE, 
or in transit, must seek asylum or protection in Canada, unless they 
meet an exception under the STCA.\23\
---------------------------------------------------------------------------

    \21\ See STCA art. 1(a) (defining ``Country of Last Presence'').
    \22\ See 19 CFR 101.1 (defining POE); see also 8 CFR 100.4 (list 
of POEs).
    \23\ Under Article 6 of the STCA, either country retains 
discretion to examine a protection claim where it determines that it 
is the public interest to do so, notwithstanding the provisions of 
the STCA.
---------------------------------------------------------------------------

    The Attorney General and the Secretary promulgated final rules 
implementing the STCA, adding, among other provisions, 8 CFR 208.30(e) 
(DHS regulations) and 8 CFR 1003.42(h) and 1240.11(g) (EOIR 
regulations) on November 29, 2004.\24\
---------------------------------------------------------------------------

    \24\ See DHS Final Rule, 69 FR at 69480; Asylum Claims Made by 
Aliens Arriving from Canada at Land Border Ports-of-Entry, 69 FR 
69490 (Nov. 29, 2004) (``DOJ Final Rule''). The final rules were 
issued after the Departments both had published proposed rules. See 
Implementation of the Agreement Between the Government of the United 
States of America and the Government of Canada Regarding Asylum 
Claims Made in Transit at Land Border Ports-of-Entry, 69 FR 10620 
(Mar. 8, 2004); Asylum Claims Made by Aliens Arriving from Canada at 
Land Border Ports-of-Entry, 69 FR 10627 (Mar. 8, 2004).
---------------------------------------------------------------------------

    The DHS regulations implementing the STCA under 8 CFR 208.30(e)(6) 
provide a mechanism within the expedited removal process for 
determining whether the STCA or its exceptions apply.\25\ Prior to 
making a determination whether a noncitizen who is arriving in the 
United States (at a U.S.-Canada land border POE or in transit through 
the United States during removal by Canada) and placed into expedited 
removal proceedings has a credible fear of persecution or torture, the 
asylum officer conducts the threshold screening interview to determine 
whether the noncitizen is ineligible to apply for asylum or other 
protection relating to persecution or torture and subject to removal to 
Canada.\26\ In doing so, the asylum officer follows the same non-
adversarial interview procedures as generally used in the expedited 
removal credible fear context.\27\ Additionally, the asylum officer 
advises the noncitizen of the STCA's exceptions and questions the 
noncitizen as to whether any of the exceptions apply to the 
noncitizen's case.\28\ If the asylum officer, with concurrence from a 
supervisory asylum officer, determines that the STCA applies and that 
the noncitizen does not qualify for an exception under the STCA, the 
noncitizen is not eligible to apply for asylum or other protection 
relating to persecution or torture in the United States. The noncitizen 
is advised that the noncitizen will be removed to pursue their 
protection claim(s) in Canada. See 8 CFR 208.30(e)(6)(i).
---------------------------------------------------------------------------

    \25\ The exceptions under the STCA can be found in 8 CFR 
208.30(e)(6)(iii) and (iv).
    \26\ See 8 CFR 208.30(e)(6).
    \27\ See 8 id. (``In conducting this threshold screening 
interview, the asylum officer shall apply all relevant interview 
procedures outlined in paragraph (d) of this section, provided, 
however, that paragraph (d)(2) of this section shall not apply to 
aliens described in this paragraph[.]'').
    \28\ See 8 CFR 208.30(e)(6).
---------------------------------------------------------------------------

    If the noncitizen establishes by a preponderance of the evidence 
that the noncitizen qualifies for an exception under the terms of the 
STCA, the asylum officer will make a written notation of the basis for 
the STCA exception and conduct a credible fear interview to determine 
whether the noncitizen has a credible fear of persecution or 
torture.\29\
---------------------------------------------------------------------------

    \29\ See 8 CFR 208.30(e)(6)(ii). When a noncitizen is determined 
to be not subject to the STCA or subject to an exception, the asylum 
officer conducts the credible fear screening to identify potential 
eligibility for asylum, statutory withholding of removal, and 
protection under the CAT. See 8 CFR 208.30 (describing this 
process). If the asylum officer determines that a noncitizen does 
have a credible fear of persecution or torture, DHS may either: (1) 
refer the noncitizen to an immigration judge by initiating section 
240 removal proceedings where the noncitizen may apply for asylum or 
other protection, or (2) retain jurisdiction over the noncitizen's 
asylum claim for further consideration in an interview pursuant to 8 
CFR 208.9(b). See 8 CFR 208.2(a)(1)(ii), 208.30(f), 
1208.2(a)(1)(ii), 1235.6(a)(1)(i).
---------------------------------------------------------------------------

    For individuals arriving from Canada at a land border POE or in 
transit during removal by the Canadian government who are issued a 
Notice to Appear placing them directly in section 240 removal 
proceedings (instead of being processed through expedited removal 
proceedings \30\), the immigration judge makes the STCA determination, 
as authorized by 8 CFR 1240.11(g) of the EOIR regulations. The 
immigration

[[Page 18232]]

judge makes this determination during the course of section 240 removal 
proceedings and in accordance with the procedures set forth in 8 CFR 
1240.1 et seq. If the immigration judge determines that the STCA 
applies and the noncitizen does not qualify for an exception to STCA, 
the noncitizen is ineligible to apply for asylum or other 
protection.\31\ The noncitizen may apply for any other relief from 
removal for which the noncitizen may be eligible, but if the noncitizen 
is ordered removed, the noncitizen shall be ordered removed to 
Canada.\32\ The immigration judge may not review, consider, or decide 
any discretionary public interest exception because such determinations 
are reserved to DHS. However, if DHS files a written notice in the 
proceedings before the immigration judge that DHS has decided in the 
public interest to allow the noncitizen to pursue claims for asylum or 
other related protection in the United States, the noncitizen may apply 
for asylum and or other related protection.\33\
---------------------------------------------------------------------------

    \30\ DHS has discretion to place a noncitizen who is otherwise 
subject to expedited removal into section 240 removal proceedings 
before an immigration judge. See Matter of E-R-M- & L-R-M-, 25 I&N 
Dec. 520, 523 (BIA 2011).
    \31\ See 8 CFR 1240.11(g)(4).
    \32\ Id.
    \33\ See 8 CFR 1240.11(g)(3).
---------------------------------------------------------------------------

    Under 8 CFR 208.30(e)(6)(ii), or under 8 CFR 1240.11(g)(2) (if the 
noncitizen is in section 240 removal proceedings), noncitizens must 
establish by a preponderance of the evidence that they qualify for an 
exception under the terms of the STCA in order to establish eligibility 
to apply for asylum.

C. Updates to the Safe Third Country Agreement Through the Additional 
Protocol of 2022

    Canada and the United States negotiated the Additional Protocol of 
2022 to allow both governments to extend the application of the STCA to 
individuals who cross the U.S.-Canada land border between POEs, 
including certain bodies of water, and who make an asylum or other 
protection claim relating to fear of persecution or torture within 14 
days after such crossing.
    On February 23, 2021, President Biden released a statement with 
Prime Minister Justin Trudeau of Canada: Roadmap for a Renewed U.S.-
Canada Partnership.\34\ The leaders declared a shared interest in 
revitalizing and expanding the two countries' ``historic alliance and 
steadfast friendship.'' \35\ The leaders expressed their common concern 
about the global migration crisis, commitment to providing haven to 
refugees and asylum seekers, and determination to work together to 
strengthen efforts in these areas, including refugee resettlement.\36\
---------------------------------------------------------------------------

    \34\ See White House, Roadmap for a Renewed U.S.-Canada 
Partnership (Feb. 23, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/23/roadmap-for-a-renewed-u-s-canada-partnership/ (``Roadmap'').
    \35\ Id.
    \36\ Id.
---------------------------------------------------------------------------

    On November 18, 2021, the two leaders (also joined by President 
Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico) issued a joint 
statement following the North American Leaders' Summit (``NALS''), 
underscoring the need for bold regional cooperation due to ``[t]he 
complex factors causing an extraordinary increase in irregular 
migration throughout the hemisphere.'' \37\ They also affirmed their 
commitment to adopt an ambitious and comprehensive approach to safe, 
orderly, and humane migration management, based on shared 
responsibility.\38\
---------------------------------------------------------------------------

    \37\ See White House, Building Back Better Together: A Secure, 
Prosperous North America (Nov. 18, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/18/building-back-better-together-a-secure-prosperous-north-america/ 
(``Building Back Better Together'').
    \38\ Id.; see also White House, Fact Sheet: Key Deliverables for 
the 2023 North American Leaders' Summit, (Jan. 10, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/10/fact-sheet-key-deliverables-for-the-2023-north-american-leaders-summit/ (``Fact Sheet''). Additionally, last year, Canada adopted 
the Los Angeles Declaration on Migration and Protection. See White 
House, Los Angeles Declaration on Migration and Protection (June 10, 
2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/ 
(``Los Angeles Declaration'').
---------------------------------------------------------------------------

    The Canadian Minister of Immigration, Refugees, and Citizenship and 
the Secretary finalized the Additional Protocol of 2022, signed in 
Ottawa, Ontario, Canada, on March 29, 2022, and in Washington, DC, 
United States, on April 15, 2022, respectively.
    The Additional Protocol of 2022 does not change the existing 
provisions of the STCA or the processes associated with the 
determinations on whether the STCA applies. However, it extends the 
application of the STCA so that it applies not only to noncitizens who 
are encountered at a POE or in transit, but now also to noncitizens who 
enter in areas located between POEs on the U.S.-Canada land border, 
including certain bodies of water as mutually determined by the 
Governments of the United States and Canada, and who make an asylum or 
other protection claim relating to fear of persecution or torture 
within 14 days after such crossing.\39\ The Additional Protocol of 2022 
also stipulates that the country of last presence will not be required 
to accept the return of an asylum seeker if it determines that the 
asylum seeker did not make a claim relating to fear of persecution or 
torture within 14 days after crossing the land border between the 
POEs.\40\ To assist the country of last presence in making this 
determination, the Additional Protocol of 2022 provides that the 
receiving country shall provide the country of last presence any 
relevant information, including information regarding the apprehension 
or entry of the noncitizen, if available.\41\
---------------------------------------------------------------------------

    \39\ See Additional Protocol of 2022 art. 1 (``Except to the 
extent specified herein, the provisions of the Agreement shall 
apply, mutatis mutandis, except Article 10 of the Agreement, to this 
Additional Protocol . . . .'').
    \40\ Additional Protocol of 2022 art. 3(b).
    \41\ See id. art. 3(c). The Additional Protocol of 2022 contains 
provisions that are not relevant to this rulemaking but that are 
related to the implementation of the Additional Protocol of 2022, 
such as provisions relating to the development of standard operating 
procedures (Article 4), Termination (Article 5), Suspension (Article 
6), and Effective Date of the Additional Protocol of 2022 (Article 
7).
---------------------------------------------------------------------------

    The Additional Protocol of 2022 is expected to support orderly 
migration, ensure the integrity of the asylum process and processes 
related to other protection claims, encourage individuals to seek 
asylum in the country of last presence, and discourage dangerous and 
illegal crossings between POEs.

III. Discussion of Final Rule

A. General Discussion of Changes

    With this final rule, the Departments are implementing the terms of 
the Additional Protocol of 2022 to the STCA and amending their 
respective regulations at 8 CFR 208.30(e)(6) and (7),\42\ 8 CFR 
1003.42(h)(1) and (2), and 8 CFR 1240.11(g) and (h)(1) \43\ governing 
the threshold screening process and the eligibility of noncitizens to 
apply for

[[Page 18233]]

asylum. Because the Additional Protocol of 2022 only expands the 
application of the STCA, but otherwise does not make any changes that 
would affect existing policies, procedures, and safeguards in and 
associated with the STCA determinations, the existing policies, 
procedures, and safeguards, as outlined in current regulations, also 
apply to the terms of the Additional Protocol of 2022.\44\
---------------------------------------------------------------------------

    \42\ DHS is making conforming amendments to 8 CFR 208.30(e)(7), 
which addresses the implementation procedures for agreements under 
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), other than 
the STCA and the Additional Protocol of 2022. DHS is amending the 
paragraph by replacing the current reference to the STCA of ``other 
than the U.S.-Canada Agreement effectuated in 2004'' with an updated 
reference to read ``other than the U.S.-Canada Agreement, which 
includes the Additional Protocol of 2022.'' The amendments thus 
clarify that the procedures outlined in paragraph (e)(7) of 8 CFR 
208.30 do not apply to those noncitizens who are subject to the 
U.S.-Canada Agreement, which includes the Additional Protocol of 
2022. See 8 CFR 208.30(e)(7) (revised).
    \43\ DOJ is making conforming amendments to 8 CFR 1240.11(h)(1), 
which addresses the implementation of procedures for bilateral or 
multilateral agreement other than the STCA and the Additional 
Protocol of 2022. DOJ is amending the paragraph by replacing the 
current reference to the STCA of ``--other than the 2002 U.S.-Canada 
Agreement--'' with an updated reference to read ``--other than the 
2002 U.S.-Canada Agreement, which includes the Additional Protocol 
of 2022--.'' See 1240.11(h)(1) (revised).
    \44\ Additional Protocol of 2022 art. 1.
---------------------------------------------------------------------------

    Under the amended final regulations, the terms of the STCA as 
supplemented by the Additional Protocol of 2022 will also apply to 
those individuals who cross the U.S.-Canada land border between the 
POEs on or after 12:01 a.m. on Saturday, March 25, 2023, and make a 
claim for asylum or other protection claim relating to a fear of 
persecution or torture within 14 days after such crossing. See 8 CFR 
208.30(e)(6) and (7) and (e)(6)(i) through (iii), 1003.42(h)(1) and 
(2), 1240.11(g)(1) through (4) (as revised by this rule). 
Correspondingly, the Departments are adding references to the 
Additional Protocol of 2022 to these provisions where necessary to 
incorporate the Additional Protocol of 2022 within the regulatory 
framework.
    Moreover, under the STCA, as supplemented by the Additional 
Protocol of 2022 and this rule, other noncitizens who are not defined 
as ``arriving aliens'' but who are subject to expedited removal 
proceedings will be subject to the same threshold screening to 
determine whether such noncitizens are barred from applying for asylum 
in the United States under the STCA, as supplemented by the Additional 
Protocol of 2022. These other individuals, who are subject to expedited 
removal proceedings with DHS, include noncitizens encountered within 
100 miles of the land border and within 14 days of crossing the U.S.-
Canada border.\45\ In this context, a noncitizen is not eligible to 
apply for asylum or other related protection in the United States when 
DHS determines, during the threshold screening interview, that the 
noncitizen may be removed to Canada because the STCA, as supplemented 
by the Additional Protocol of 2022, is applicable and none of the 
exceptions apply to the noncitizen. See INA 208(a)(2), 8 U.S.C. 
1158(a)(2); 8 CFR 208.30(e)(6)(i) through (iii) (revised). However, if 
DHS determines that the noncitizen has established by a preponderance 
of the evidence that an exception to the STCA, as supplemented by the 
Additional Protocol of 2022, does apply, then the asylum officer will 
make a written notation of the inapplicability of the STCA, which 
includes the Additional Protocol of 2022, and immediately proceed with 
the credible fear determination. See 8 CFR 208.30(e)(6)(ii) (revised). 
As provided in the existing EOIR regulations, immigration judges do not 
have jurisdiction to review an asylum officer's STCA determination.\46\ 
The new regulatory text will continue to provide that an immigration 
judge does not have jurisdiction to review an asylum officer's STCA 
determination under the STCA, as supplemented by the Additional 
Protocol of 2022. See 8 CFR 1003.42(h)(1) (revised) (for applicants for 
admission), 8 CFR 1003.42(h)(2) (revised) (for noncitizens in transit).
---------------------------------------------------------------------------

    \45\ See 69 FR at 48877.
    \46\ See 8 CFR 1003.42(h)(1) and (2).
---------------------------------------------------------------------------

    DOJ is also amending the regulatory text of 8 CFR 1003.42(h)(1) by 
removing the term ``arriving alien'' and replacing it with ``applicants 
for admission'' to clarify that an asylum officer's determinations 
regarding applicants for admissions are not subject to review by the 
immigration judge. See 8 CFR 1003.F42(h)(1) (revised). However, where 
an asylum officer has made a negative credible fear finding, the new 
regulatory text continues to provide that an immigration judge will 
continue to have jurisdiction to review this finding. See id.
    DOJ is further amending the EOIR regulations to add references to 
the Additional Protocol of 2022 throughout 8 CFR 1240.11(g) and (h)(1), 
where appropriate, and to reflect that if a noncitizen is placed into 
section 240 removal proceedings, the immigration judge will make the 
determination whether the STCA, as supplemented by the Additional 
Protocol of 2022, applies. See 8 CFR 1240.11(g)(1) and (g)(2)(i) 
(revised).
    DOJ is also amending 8 CFR 1240.11(g)(2)(ii) and (g)(3) by adding 
references to the Additional Protocol of 2022 to clarify that 
individuals who are subject to the STCA, as supplemented by the 
Additional Protocol of 2022, may establish exceptions. See 8 CFR 
1240.11(g)(2)(ii) and (g)(3) (revised). Furthermore, DOJ is amending 8 
CFR 1240.11(g)(3) to clarify that an immigration judge does not have 
jurisdiction to review, consider, or decide any issues pertaining to 
any discretionary determination of whether the noncitizen should be 
permitted to pursue an asylum claim notwithstanding the STCA, as 
supplemented by the Additional Protocol of 2022, because, under current 
STCA procedures, discretionary public interest determinations are 
reserved to DHS. See 8 CFR 1240.11(g)(3) (revised).
    As is the case under current STCA procedures, a noncitizen in 
section 240 removal proceedings otherwise ineligible to apply for 
asylum under the STCA, as supplemented by the Additional Protocol of 
2022, may apply for asylum with an immigration judge if DHS files a 
written notice in the proceedings before the immigration judge that DHS 
has decided in the public interest to allow the noncitizen to pursue 
claims for asylum or other related protection. See 8 CFR 1240.11(g)(3) 
(revised). In addition, DOJ is amending 8 CFR 1240.11(g)(4), which 
provides that a noncitizen who is found to be ineligible to apply for 
asylum because of a safe third country agreement,\47\ such as the STCA, 
is also ineligible to apply for statutory withholding of removal \48\ 
or protection under the CAT. See 8 CFR 1240.11(g)(4). Because the 
Additional Protocol of 2022 supplements the STCA without changing this 
procedure, those noncitizens subject to the STCA, as supplemented by 
the Additional Protocol of 2022, will continue to be ineligible for 
withholding of removal or protection under the CAT. See 8 CFR 
1240.11(g)(4) (revised). However, the noncitizen may apply for any 
relief from removal for which the noncitizen may be otherwise eligible, 
as is currently the case before the Additional Protocol of 2022 becomes 
effective. See 8 CFR 1240.11(g)(4) (current); 8 CFR 1240.11(g)(4) 
(revised).
---------------------------------------------------------------------------

    \47\ See INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
    \48\ See INA 241(b)(3), 8 U.S.C. 1231(b)(3).
---------------------------------------------------------------------------

    Finally, DHS is amending the last sentence of 8 CFR 1240.11(g)(4) 
by adding a reference to the Additional Protocol of 2022. Adding a 
reference to the Additional Protocol of 2022 does not change procedures 
that have been in place under the STCA. The provision continues to 
state that, where an immigration judge determines that a noncitizen in 
removal proceedings is subject to the STCA and no exceptions apply, the 
noncitizen will be ordered removed to Canada, where the noncitizen will 
be able to pursue their protection claim under the laws of Canada, but 
the provision now clarifies that the STCA includes the Additional 
Protocol of 2022. See 8 CFR 1240.11(g)(4) (revised).

B. Determinations Regarding Crossing Between POEs and Whether 14 Days 
Have Elapsed

    The Additional Protocol of 2022 supplements the STCA to provide 
that the STCA not only applies to

[[Page 18234]]

individuals encountered at a POE or in transit while being removed or 
deported to a third country, but also to individuals who have crossed 
the U.S.-Canada land border between POEs, including via mutually 
designated bodies of water along or across the U.S.-Canada land border, 
and who seek asylum or other protection relating to persecution or 
torture within 14 days after such crossing.\49\ As explained throughout 
this preamble, the Departments have existing procedures in place in the 
expedited removal context and the section 240 removal proceedings 
context relating to individuals crossing the U.S. border at designated 
POEs, in transit, or between POEs, as well as for the assessment of a 
14-day time frame. The STCA is embedded within this process. See Part 
II of this preamble. Hence, the determinations concerning applicability 
of the STCA, as supplemented by the Additional Protocol of 2022, 
including the location and time of a noncitizen's crossing, as well as 
the calculation of the 14 days, will be made within that existing 
framework.\50\ Consistent with existing practice, the noncitizen may 
not challenge an asylum officer's determination regarding whether the 
STCA, as supplemented by the Additional Protocol of 2022, applies to 
the noncitizen. See 8 CFR 208.30(e)(6) (current); 8 CFR 208.30(e)(6) 
(revised); see also 8 CFR 1003.42(h); INA 208(a)(3), 8 U.S.C. 
1158(a)(3).
---------------------------------------------------------------------------

    \49\ See Additional Protocol of 2022 arts. 1-2.
    \50\ See 69 FR at 48879.
---------------------------------------------------------------------------

C. Considerations Relating to the Preponderance-of-the-Evidence 
Standard

    Under the STCA, a noncitizen must establish by a preponderance of 
the evidence that an exception to the STCA applies. See 8 CFR 
208.30(e)(6)(ii) (DHS regulation), 1240.11(g)(2) (EOIR regulation). 
Because the implementation of the Additional Protocol of 2022 does not 
alter the procedural aspects of the administration of the STCA, a 
noncitizen--to establish eligibility to apply for asylum or other 
protection relating to a fear of persecution or torture--must continue 
to establish by a preponderance of the evidence that an exception to 
the STCA (now, as supplemented by the Additional Protocol of 2022), 
applies to the noncitizen. See 8 CFR 208.30(e)(6)(ii), 1240.11(g)(2)(i) 
(revised).

D. Return to the Country of Last Presence

    The Additional Protocol of 2022 requires information-sharing steps 
that do not result in additional regulatory amendments. These steps 
will be included in the standard operating procedures of the United 
States and Canada related to information sharing and will help each 
country to address and resolve any differences regarding operational 
implementation.
    Under the STCA as originally signed, neither the United States nor 
Canada is required to accept the return of an asylum seeker 
automatically; both countries review each case individually in making 
those decisions.\51\ Either country may choose to allow an asylum 
seeker who is encountered at a POE, or in transit, from the other 
country to pursue an asylum or other protection claim relating to fear 
of persecution or torture if circumstances warrant in accordance with 
its own laws and policies.\52\
---------------------------------------------------------------------------

    \51\ See STCA art. 4(3); see also DHS Final Rule, 69 FR 69483-
84; DOJ Final Rule, 69 FR 69493-94.
    \52\ See STCA arts. 4, 6.
---------------------------------------------------------------------------

    Similarly, under the terms of the Additional Protocol of 2022, the 
country of last presence is not required to accept the return of the 
asylum seeker if it determines that the noncitizen did not make a claim 
for asylum or other protection claim relating to fear of persecution or 
torture within 14 days after crossing the land border in between the 
POEs.\53\
---------------------------------------------------------------------------

    \53\ See Additional Protocol of 2022 art. 3(b).
---------------------------------------------------------------------------

    Under the Additional Protocol of 2022, the receiving country is 
responsible for providing the country of last presence sufficient 
information relevant to the determination of the noncitizen's crossing 
of the land border between the POEs and the noncitizen's claim, 
including a copy of the record of apprehension between the POEs, if 
available, to assist the country of last presence in making the 
necessary determinations.\54\ Therefore, before a noncitizen can be 
returned to Canada, DHS will provide relevant information, including a 
copy of the record of apprehension if available, to the Canadian 
Government.\55\
---------------------------------------------------------------------------

    \54\ See Additional Protocol of 2022 art. 3(c).
    \55\ These additional information sharing steps do not result in 
additional regulatory amendments. In accordance with Article 4 of 
the Additional Protocol of 2022--which refers to Article 8 of the 
STCA's mandate to establish standard operating procedures--these 
procedures shall also be included in standard operating procedures 
to assist with the implementation. See Additional Protocol of 2022 
art. 4. In accordance with the second paragraph of Article 8 of the 
STCA, which provides that these standard operating procedures 
``shall include mechanisms for resolving differences respecting the 
interpretation and implementation of the terms of [the STCA],'' the 
Departments will cooperate with their Canadian counterparts to 
address and resolve any differences in the same spirit in which the 
STCA has been implemented over the years and in which the Additional 
Protocol of 2022 was negotiated. As reflected in the STCA and the 
Additional Protocol of 2022 themselves, and as previously indicated 
by DHS, the resolution of these procedures is more appropriately 
addressed through operating procedures than through the promulgation 
of regulations. See DHS Final Rule, 69 FR 69486.
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IV. Detailed Summary of Regulatory Changes

A. New 8 CFR 208.30(e)(6) and (7)

    DHS is amending 8 CFR 208.30(e)(6) in the introductory text by 
adding references to the Additional Protocol of 2022. DHS is further 
amending the provision by adding that, prior to any determination 
concerning whether a noncitizen who, on or after 12:01 a.m. on 
Saturday, March 25, 2023, entered the United States by crossing the 
U.S.-Canada land border between POEs, including a crossing of the 
border in those waters as mutually designated by the United States and 
Canada, and who made an asylum or other protection claim relating to 
fear of persecution or torture within 14 days after such crossing, the 
asylum officer shall conduct a threshold screening interview to 
determine whether the noncitizen is ineligible to apply for asylum 
under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and 
subject to removal to Canada by operation of the STCA, which includes 
the Additional Protocol of 2022. DHS is further amending the third 
sentence of 8 CFR 208.30(e)(6) by adding a reference to the Additional 
Protocol of 2022 and rewording the provision, so that, under the 
amended provision, the asylum officer shall advise the noncitizen of 
the exceptions in the STCA, which includes the Additional Protocol of 
2022, and question the noncitizen as to the applicability of any of 
these exceptions to the noncitizen's case.
    DHS is amending 8 CFR 208.30(e)(6)(i) by adding references to the 
Additional Protocol of 2022 to clarify that, if the asylum officer, 
with concurrence from a supervisory asylum officer, determines from the 
threshold screening interview that the noncitizen is subject to the 
STCA, which includes the Additional Protocol of 2022, and that the 
noncitizen does not qualify for an exception under the STCA, which 
includes the Additional Protocol of 2022, then the noncitizen is 
ineligible to apply in the United States for asylum or other forms of 
protection relating to a fear of persecution or torture.
    Next, DHS is amending 8 CFR 208.30(e)(6)(ii) by adding references 
to the Additional Protocol of 2022, where appropriate, to clarify that 
if a noncitizen establishes by a preponderance of the evidence that 
they

[[Page 18235]]

qualify for an exception under the terms of the STCA, which includes 
the Additional Protocol of 2022, then the asylum officer shall make a 
written notation of the basis of the exception, and then proceed 
immediately to determine whether the noncitizen has a credible fear of 
persecution or torture under 8 CFR 208.30(d). DHS is amending 8 CFR 
208.30(e)(6)(iii) by adding a reference to the Additional Protocol of 
2022 to clarify that a noncitizen qualifies for an exception to the 
STCA, which includes the Additional Protocol of 2022, if the noncitizen 
is not being removed from Canada in transit through the United States 
and meets the requirements of the exceptions otherwise listed.
    Last, DHS is amending 8 CFR 208.30(e)(7) to clarify that the STCA 
referenced in that paragraph includes the Additional Protocol of 2022. 
This amendment does not change the substance of that paragraph.
    The amendments to 8 CFR 208.30(e)(6) and (7) are effective at 12:01 
a.m. on Saturday, March 25, 2023. The Department of State (``DOS'') 
will publish the Additional Protocol of 2022 on its website,\56\ once 
effective, and noncitizens should refer to the DOS web page.
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    \56\ See DOS, Treaties and Other International Acts Series 
(TIAS), https://www.state.gov/tias/ (last visited Mar. 16, 2023).
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    This rule does not otherwise alter the procedures applied to 
expedited removal proceedings, credible fear screenings, or threshold 
screening interviews as provided in the current regulations.

B. New 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) (Heading), 
(g)(1) Through (4), and (h)(1)

    DOJ is revising 8 CFR 1003.42(h)(1) in the paragraph heading, and 
throughout the text of the paragraph, by replacing ``arriving alien'' 
with ``applicant for admission'' and adding references to the 
Additional Protocol of 2022 to clarify that an immigration judge has no 
jurisdiction to review an asylum officer's determination that an 
applicant for admission is ineligible to apply for asylum pursuant to 
the STCA, which includes the Additional Protocol of 2022, formed under 
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and that the 
noncitizen should be returned to Canada to pursue the noncitizen's 
claim for asylum or other protection under the laws of Canada. DOJ is 
further amending the third sentence of the same paragraph by adding 
references to the Additional Protocol of 2022 and replacing ``arriving 
alien'' with ``applicant for admission'' to clarify that, in any case 
where an asylum officer has found that an applicant for admission 
qualifies for an exception to the STCA, which includes the Additional 
Protocol of 2022, or that the STCA, which includes the Additional 
Protocol of 2022, does not apply, an immigration judge has jurisdiction 
to review a negative credible fear finding made thereafter by the 
asylum officer. DOJ, in addition, is amending 8 CFR 1003.42(h)(2) to 
add a reference to the Additional Protocol of 2022. This amendment does 
not affect the substance of that paragraph. Under the amended 
provision, an immigration judge has no jurisdiction to review any 
determination by DHS that an alien being removed from Canada in transit 
through the United States should be returned to Canada to pursue asylum 
claims under Canadian law, under the terms of the STCA, which includes 
the Additional Protocol of 2022.
    Next, DOJ is amending 8 CFR 1240.11(g) (heading) and (g)(1) by 
adding references to the Additional Protocol of 2022, with the effect 
that the STCA, which includes the Additional Protocol of 2022, will 
apply to noncitizens who are placed in section 240 removal proceedings, 
provided that they, on or after 12:01 a.m. on Saturday, March 25, 2023, 
enter the United States by crossing the U.S.-Canada land border between 
the POEs and claim a fear of persecution or torture within 14 days 
after such crossing. In appropriate cases, the immigration judge will 
determine whether, under that Agreement, which includes the Additional 
Protocol of 2022, the noncitizen should be returned to Canada, or 
whether the noncitizen should be permitted to pursue asylum or other 
protection claims in the United States.
    DOJ is also amending 8 CFR 1240.11(g)(2)(i) and (ii) by adding 
references to the Additional Protocol of 2022, where appropriate, and 
to clarify that a noncitizen is ineligible to apply for asylum pursuant 
to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), unless the 
immigration judge determines by a preponderance of the evidence that 
(1) the STCA, which includes the Additional Protocol of 2022, does not 
apply to the noncitizen or does not preclude the noncitizen from 
applying for asylum or other forms of protection in the United States; 
or (2) the noncitizen qualifies for an exception to the STCA, which 
includes the Additional Protocol of 2022, as set forth in 8 CFR 
1240.11(g)(3).
    DOJ is also amending 8 CFR 1240.11(g)(3) by adding references to 
the Additional Protocol of 2022, where appropriate, to clarify that the 
immigration judge shall apply the relevant regulations in deciding 
whether the noncitizen qualifies for any exception that would permit 
the United States to exercise authority over the noncitizen's asylum 
claim. The amendments further clarify that related exceptions are 
codified at 8 CFR 208.30(e)(6)(iii). The regulation continues to 
provide that the immigration judge shall not review, consider, or 
decide any issues pertaining to any discretionary determination of 
whether the noncitizen should be permitted to pursue an asylum claim in 
the United States because such discretionary public interest 
determinations are reserved to DHS. The amendments further clarify that 
a noncitizen in removal proceedings who is otherwise ineligible to 
apply for asylum under the STCA, which includes the Additional Protocol 
of 2022, may apply for asylum if DHS files a written notice in the 
proceedings before the immigration judge that it has decided in the 
public interest to allow the noncitizen to pursue claims for asylum or 
other related protection.
    Next, DOJ is amending 8 CFR 1240.11(g)(4) by adding references to 
the Additional Protocol of 2022, where appropriate, to clarify the 
following provisions: first, a noncitizen who is found to be ineligible 
to apply for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C. 
1158(a)(2)(A), is ineligible to apply for statutory withholding of 
removal and seek protection under the CAT; second, the noncitizen in 
this scenario may apply for any other relief from removal for which the 
noncitizen may be eligible; and third, if a noncitizen who is subject 
to the STCA, which includes the Additional Protocol of 2022, and 
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), is ordered 
removed, the noncitizen shall be ordered removed to Canada, in which 
case the noncitizen will be able to pursue their protection claim under 
the laws of Canada.
    Finally, DOJ is amending 8 CFR 1240.11(h)(1) to add a reference to 
the Additional Protocol of 2022. This amendment does not affect the 
substance of that paragraph.
    The amendments to 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) 
(heading), and paragraphs (g)(1), (g)(2)(i) and (ii), (g)(3) and (4), 
and (h)(1) are effective at 12:01 a.m. on Saturday, March 25, 2023.
    This rule does not otherwise alter the procedures applied to 
noncitizens in section 240 removal proceedings as provided in current 
regulations.

[[Page 18236]]

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (``APA'') generally requires 
agencies to publish notice of a proposed rulemaking in the Federal 
Register and allow for a period of public comment. 5 U.S.C. 553(b). The 
APA also generally requires publication of a substantive rule not less 
than 30 days before its effective date. 5 U.S.C. 553(d). Agencies may 
forgo notice-and-comment rulemaking and a delayed effective date when 
the rulemaking involves ``a military or foreign affairs function of the 
United States.'' \57\
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    \57\ See 5 U.S.C. 553(a)(1).
---------------------------------------------------------------------------

    The Departments are bypassing notice-and-comment procedures and a 
delay in the effective date of the regulation because this rule 
involves a ``foreign affairs function of the United States.'' \58\ The 
purpose of the foreign affairs exemption is to allow more cautious and 
sensitive consideration of those matters that affect relations with 
other Governments.\59\ Courts have held that this exemption applies 
when the rule in question ``is clearly and directly involved in a 
foreign affairs function.'' \60\ In addition, although the text of the 
APA does not expressly require an agency invoking this exemption to 
show that such procedures may result in ``definitely undesirable 
international consequences,'' some courts have required such a 
showing.\61\ Under either formulation, a rule is covered by the foreign 
affairs exemption if, among other things, it directly involves 
activities or actions characteristic to the conduct of international 
relations.\62\ Cooperative agreements regulating migration and 
immigration with other nations, such as the STCA and the Additional 
Protocol of 2022, are similar to the executive agreements that have 
previously been recognized as part of the executive powers that bear 
the characteristics of the conduct of international relations.\63\ The 
use of the foreign affairs exemption is well established and has long 
been recognized by courts as applicable when a rule itself--as is the 
case with this rulemaking--implements an international agreement 
between the United States and another sovereign state.\64\
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    \58\ In 2004, when implementing the STCA, DHS and DOJ 
promulgated regulations through notice-and-comment rulemaking even 
though the rulemaking related to United States foreign affairs and 
the Departments could have asserted that exemption to the notice-
and-comment requirement. At the time, however, the STCA had only 
been recently negotiated, and the regulations created a new 
regulatory framework to address the special terms of the STCA. The 
Departments thus made a discretionary decision that public comment 
could be beneficial. The Departments' 2004 decision does not 
obligate the Departments now to make the same decision with respect 
to this rulemaking. See, e.g., Hoctor v. U.S. Dep't of Agric., 82 
F.3d 165, 171-72 (7th Cir. 1996) (observing that there is nothing in 
the APA to forbid an agency to use notice-and-comment procedures 
even if not required under the APA and that courts should attach no 
weight to an agency's varied approaches involving similar rules); 
see also Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 
744 n.62 (D. Or. 1997) (observing that agencies may voluntarily 
elect notice-and-comment procedures for a variety of reasons even 
though not required); cf. Perez v. Mortg. Bankers Ass'n, 575 U.S. 
92, 101-02 (2015) (holding that agencies may ``grant additional 
procedural rights in the exercise of their discretion,'' including 
``the right to notice and an opportunity to comment'' when not 
otherwise required by the APA, but also noting that ``reviewing 
courts are generally not free to impose them if the agencies have 
not chosen to grant them'' (quotation marks omitted)); Malek-Marzban 
v. Immigr. & Naturalization Serv., 653 F.2d 113, 116 (4th Cir. 1981) 
(concluding that agencies are not estopped from asserting the 
foreign affairs exemption even if they routinely and voluntarily 
submitted policy decisions involving foreign affairs functions to 
rulemaking procedures in the past; the agencies' past actions do not 
restrict agencies' prerogatives when circumstances require swift 
action). Unlike in 2004, when the rulemaking created a completely 
new regulatory framework to implement the STCA, this rulemaking 
implements the terms of the Additional Protocol of 2022, which only 
expands the locations to which the STCA applies, while leaving in 
place the existing regulatory processes and procedures. 
Additionally, with this rulemaking, the Departments are implementing 
an existing international obligation and have determined that 
bypassing notice-and-comment procedures on the implementation of 
this foreign policy is warranted without seeking comments, for the 
reasons outlined in this rulemaking.
    \59\ See, e.g., City of New York v. Permanent Mission of India 
to United Nations, 618 F.3d 172, 175, 200-03 (2d Cir. 2010) (holding 
that a DOS notice establishing an exemption from real property taxes 
on property owned by foreign governments was properly promulgated 
without notice and comment under the foreign affairs exemption of 
the APA); see also Am. Ass'n of Exps. & Imps. Textile & Apparel Grp. 
v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985).
    \60\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) 
(cleaned up).
    \61\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 
2008).
    \62\ See City of New York, 618 F.3d at 201 (finding that a DOS 
notice related directly to foreign affairs); see Capital Area 
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 
2020) (``CAIR'') (observing that, for the foreign affairs exemption 
to apply, a rule must clearly and directly involve activities or 
actions characteristic to the conduct of international relations), 
appeal dismissed as moot sub nom. I.A. v. Garland, No. 20-5271, 2022 
WL 696459 (D.C. Cir. Feb. 24, 2022).
    \63\ See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2003) 
(recognizing that the President has authority to enter into 
executive agreements with other countries, requiring no ratification 
by the Senate or approval by Congress, and that this power has 
``been exercised since the early years of the Republic''); see also 
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993) 
(recognizing that immigration matters may involve foreign and 
military affairs for which the President has unique responsibility); 
Toll v. Moreno, 458 U.S. 1, 10 (1982) (``Our cases have long 
recognized the preeminent role of the Federal Government with 
respect to the regulation of [noncitizens] within our borders.''); 
Truax v. Raich, 239 U.S. 33, 42 (1915) (finding that ``[t]he 
authority to control immigration--to admit or exclude 
[noncitizens]--is vested solely in the Federal government'').
    \64\ See Int'l Bhd. of Teamsters v. Pe[ntilde]a, 17 F.3d 1478, 
1486 (D.C. Cir. 1994) (upholding a regulation published under the 
foreign affairs exemption of the APA and implementing an agreement 
between the United States and Mexico); WBEN, Inc. v. United States, 
396 F.2d 601, 616 (2d Cir.1968) (finding that the foreign affairs 
exemption applied to Federal Communications Commission rule 
implementing an agreement between the United States and Canada that 
imposed power limits on pre-sunrise broadcasts); CAIR, 471 F. Supp. 
3d at 54 (observing that ``the foreign affairs function exception 
plainly covers heartland cases in which a rule itself directly 
involves the conduct of foreign affairs,'' such as ``scenarios in 
which a rule implements an international agreement between the 
United States and another sovereign state'').
---------------------------------------------------------------------------

    This rule falls under the foreign affairs exemption because it puts 
into effect the negotiated-and-signed Additional Protocol of 2022, 
which is supplementing the existing agreement between the Governments 
of the United States and Canada regarding migration issues and border 
management and, in particular, the management of the flow of asylum 
seekers. Furthermore, the Additional Protocol of 2022 implements United 
States foreign policy and fosters diplomatic relations with the 
Government of Canada by mutually supporting the integrity of each 
country's immigration system and aspects of the system specific to the 
U.S.-Canada border and regional migration management.\65\
---------------------------------------------------------------------------

    \65\ See STCA Introductory statements (``RECOGNIZING and 
respecting the obligations of each Party under its immigration laws 
and policies; EMPHASIZING that the United States and Canada offer 
generous systems of refugee protection, recalling both countries' 
traditions of assistances to refugees and displaced persons abroad, 
consistent with the principles of international solidarity that 
underpin the international refugee protection system, and committed 
to the notion that cooperation and burden-sharing with respect to 
refugee status claimants can be enhanced; . . . CONVINCED . . . that 
agreements among states may enhance the international protection of 
refugees by promoting the orderly handling of asylum applications by 
the responsible party and the principle of burden-sharing . . . 
.'').
---------------------------------------------------------------------------

    In cases other than those involving the implementation of 
international agreements, certain courts have found that immigration 
matters typically implicate foreign affairs, but that not all 
immigration matters meet the APA's foreign affairs exemption.\66\ In 
those cases, courts have evaluated not only whether agency action 
implicates foreign affairs broadly, but also whether the use of notice-
and-comment procedures and a 30-day delay in the

[[Page 18237]]

effective date would ``provoke definitely undesirable international 
consequences.'' \67\ Here, a delay in implementation of the Additional 
Protocol of 2022 created by notice-and-comment rulemaking and a delayed 
effective date would lead to undesirable international consequences by 
jeopardizing not only the goals of the Additional Protocol of 2022, but 
also the United States diplomatic relationship with Canada and the 
credibility of the United States as a negotiating partner on migration 
issues.
---------------------------------------------------------------------------

    \66\ See Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 
1980) (stating that ``[t]he foreign affairs exception would become 
distended if applied to [former Immigration and Naturalization 
Service] actions generally, even though immigration matters 
typically implicate foreign affairs'').
    \67\ See E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 676 
(9th Cir. 2021) (stating that, for the foreign affairs exemption to 
apply, the public rulemaking provisions should provoke definitely 
undesirable international consequences); see also City of New York, 
618 F.3d at 202 (``In short, while a case-by-case determination that 
public rule making would provoke `definitely undesirable 
international consequences,' may well be necessary before the 
foreign affairs exception is applied to areas of law like 
immigration that only indirectly implicate international relations, 
quintessential foreign affairs functions such as diplomatic 
relations and the regulation of foreign missions are different. Such 
actions clearly and directly involve a foreign affairs function'' 
(some quotation marks omitted)); Rajah, 544 F.3d at 437 (recognizing 
that multiple undesirable consequences could follow from notice-and-
comment rulemaking, including impaired relations with other 
countries if the government were to conduct and resolve a public 
debate on matters affecting the other country).
---------------------------------------------------------------------------

    The Additional Protocol of 2022 and these implementing regulations 
further the United States foreign policy goal of collaborating with one 
of our closest allies, partners, and neighbors, as demonstrated by the 
joint public statements made by the Governments of Canada and the 
United States in the Roadmap for a Renewed U.S.-Canada Partnership \68\ 
and the 2021 and 2023 NALS.\69\ Implementing these regulations without 
delay supports international cooperation and reaffirms the United 
States commitment, as reflected in the Additional Protocol of 2022, to 
manage migration by deterring migration through irregular pathways and 
promoting the orderly handling of asylum seekers.\70\ Because each 
government under the Additional Protocol of 2022 can expeditiously 
return an asylum applicant who crosses between POEs, just as occurs now 
at POEs under existing regulations, implementing the Additional 
Protocol of 2022 through these regulations furthers the shared United 
States and Canadian policy goal of reducing incentives for individuals 
to cross the shared border between POEs and to circumvent legal 
pathways, including existing legal channels for humanitarian 
protection. Through the Additional Protocol of 2022 and its 
implementation, both countries proactively and preventatively address 
situations that may lead to significant draws of asylum seekers between 
POEs to either the United States or Canada. Thus, the Additional 
Protocol of 2022 is an important element of both countries' ability to 
manage their shared border and maintain the integrity of their 
respective legal immigration and refugee and asylum protection 
policies.
---------------------------------------------------------------------------

    \68\ See White House, Roadmap.
    \69\ See White House, Building Back Better Together.; see also 
White House, Fact Sheet; White House, Los Angeles Declaration.
    \70\ The Departments also believe that promoting orderly 
handling of asylum claims may reduce the possibility for success in 
forum shopping.
---------------------------------------------------------------------------

    In light of the expressed commitment and acknowledgement of shared 
responsibility by the United States Government to adopt an ambitious 
and comprehensive approach to safe, orderly, and humane migration 
management, as evidenced in joint public statements,\71\ it is critical 
that the United States Government act upon its commitment. Delaying the 
implementation of this rulemaking to pursue notice and comment could 
create doubt in Canada, and potentially other future partners, about 
whether the United States has sufficient flexibility and capacity to 
carry out agreements in accordance with its declared commitments.\72\ 
Therefore, this agreement should be implemented rapidly by amending the 
regulatory framework through this rule, in light of the President's 
renewed foreign policy commitment and the longstanding U.S.-Canada 
relationship.\73\
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    \71\ See White House, Building Back Better Together; see also 
White House, Roadmap; White House, Fact Sheet; White House, Los 
Angeles Declaration.
    \72\ See E. Bay Sanctuary Covenant, 993 F.3d at 676 (explaining 
that the ``[u]se of the exception is generally permissible where the 
international consequences of the rule-making requirements are 
obvious or thoroughly explained''); Am. Ass'n of Exps. & Imps. 
Textile & Apparel Grp., 751 F.2d at 1249 (finding that the foreign 
affairs exemption facilitates ``more cautious and sensitive 
consideration of those matters which `so affect relations with other 
Governments that . . . public rule-making provisions would provoke 
definitely undesirable international consequences''' (quoting H.R. 
Rep. No. 69-1980, at 23 (1946)).
    \73\ See Rajah, 544 F.3d at 437 (observing that the notice-and-
comment process can be ``slow and cumbersome,'' which can negatively 
affect efforts to secure U.S. national interests, thereby justifying 
application of foreign affairs exemption); Am. Ass'n of Exps. & 
Imps. Textile & Apparel Grp., 751 F.2d at 1249 (``The timing of an 
announcement of new consultations or quotas may be linked intimately 
with the Government's overall political agenda concerning relations 
with another country. Were we to require that CITA provide notice 
thirty days before they take [e]ffect, the President's power to 
conduct foreign policy would plainly be hampered.'').
---------------------------------------------------------------------------

    In sum, the importance of promptly and faithfully implementing an 
international agreement requires publishing this final rule without 
notice and comment and without delaying the effective date of the rule. 
Any delay in implementing the Additional Protocol of 2022 caused by 
notice-and-comment procedures or by a delayed effective date could have 
a detrimental impact on meeting United States foreign policy 
objectives, on diplomatic relations with Canada, and on the credibility 
of the United States as a migration partner overall.\74\
---------------------------------------------------------------------------

    \74\ As explained in this section, the United States and Canada 
negotiated the Additional Protocol of 2022 in the context of broader 
discussions to increase U.S.-Canadian cooperation on hemispheric 
migration, to enhance information sharing in support of each 
country's immigration-related decision-making process, and to expand 
collaboration in the region to deter irregular migration at the 
source and in transit countries. Expeditious implementation of the 
Additional Protocol of 2022 underscores the U.S.'s commitment to 
these imperatives and avoids possible undesirable international 
consequences.
---------------------------------------------------------------------------

B. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Although this rule pertains to a foreign affairs function of the 
United States and therefore falls outside the scope of Executive Order 
12866, the Departments voluntarily submitted the rule to the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (``OMB'') for review, and OMB reviewed the rule on an expedited 
basis as though it were a significant regulatory action under section 
3(f)(4) of that Executive Order.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 
(1980), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, 110 Stat. 857, 864 (1996) 
(codified at 5 U.S.C. 601 et seq.), requires an agency to prepare and 
make available to the public a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
A regulatory flexibility analysis is not required when a rule is not 
subject to notice-and-comment rulemaking.

D. Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local, 
and Tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year (adjusted for inflation), and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions were deemed necessary under

[[Page 18238]]

the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).

E. Congressional Review Act

    This final rule is not a major rule as defined by section 804 of 
the legislation commonly known as the Congressional Review Act 
(``CRA''), see Public Law 104-121, sec. 251, 110 Stat. 847, 868 (1996) 
(codified in relevant part at 5 U.S.C. 804). This rule will not result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets. DHS and DOJ have 
complied with the CRA's reporting requirements and have sent this rule 
to Congress and to the Comptroller General as required by 5 U.S.C. 
801(a)(1). Because of this submission; because this rule is not a major 
rule; and because the foreign affairs exemption in the APA applies to 
this rule, this rule does not have a delayed effective date. See 5 
U.S.C. 801(a)(4).

F. Executive Order 13132 (Federalism)

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

G. Executive Order 12988 (Civil Justice Reform)

    This final rule was drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. This rule was written to 
provide a clear legal standard for affected conduct and was reviewed 
carefully to eliminate drafting errors and ambiguities so as to 
minimize litigation and undue burden on the Federal court system. The 
Departments have determined that this proposed rule meets the 
applicable standards provided in section 3 of Executive Order 12988.

H. Family Assessment

    The Departments have reviewed this rule in line with the 
requirements of section 654 of the Treasury and General Government 
Appropriations Act, 1999,\75\ enacted as part of the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999.\76\ 
The Departments have systematically 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) has a sufficient justification for any 
financial impact on families; (6) may be carried out by State or local 
government or by the family; or (7) establishes an implicit or explicit 
policy concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If an agency 
determines a regulation may negatively affect family wellbeing, then 
the agency must provide an adequate rationale for its implementation.
---------------------------------------------------------------------------

    \75\ See 5 U.S.C. 601 note.
    \76\ Public Law 105-277, 112 Stat. 2681, 2681-528 (1998).
---------------------------------------------------------------------------

    The Additional Protocol of 2022 expands the applicability of the 
STCA, but otherwise leaves in place all existing policies, procedures, 
and safeguards provided by the current regulations implementing the 
STCA. The Departments have therefore determined that the implementation 
of this rule will not negatively affect family wellbeing and will not 
have any impact on the autonomy or integrity of the family as an 
institution.

I. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This final rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect 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.

J. National Environmental Policy Act

    DHS and its components analyze actions to determine whether the 
National Environmental Policy Act, Public Law 91-190, 83 Stat. 852 
(1970) (codified at 42 U.S.C. 4321 et seq.) (``NEPA''), applies to them 
and, if so, what degree of analysis and documentation is required. DHS 
Directive 023-01 Rev. 01 \77\ and Instruction Manual 023-01-001-01 Rev. 
01 (``Instruction Manual'') \78\ establish the policies and procedures 
that DHS and its components use to comply with the NEPA and the Council 
on Environmental Quality (``CEQ'') regulations for implementing the 
procedural requirements of NEPA. The CEQ regulations allow Federal 
agencies to establish, in their NEPA implementing procedures, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown normally do not, individually 
and cumulatively, have a significant effect on the human environment 
and, therefore, do not require preparation of an environmental 
assessment or environmental impact statement.\79\ Appendix A of the 
Instruction Manual lists the DHS categorical exclusions.
---------------------------------------------------------------------------

    \77\ DHS, Implementation of the National Environmental Policy 
Act, Directive 023-01 (Oct. 31, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf.
    \78\ DHS, Instruction Manual 023-01-001-01, Revision 01, 
Implementation of the National Environmental Policy Act (NEPA) (Nov. 
6, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
    \79\ See 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d).
---------------------------------------------------------------------------

    Under DHS NEPA implementing procedures, for an action to be 
categorically excluded it must satisfy each of the following three 
conditions: (1) the entire action clearly fits within one or more of 
the categorical exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect.\80\
---------------------------------------------------------------------------

    \80\ See Instruction Manual sec. V.B(2)(a)-(c).
---------------------------------------------------------------------------

    This final rule amends existing DHS and DOJ regulations at 8 CFR 
208.30(e)(6) and (7), 8 CFR 1003.42(h)(l1) and (2), and 8 CFR 
1240.11(g) by incorporating modifications recently negotiated by the 
Government of the United States and the Government of Canada to 
specific terms of the STCA in the Additional Protocol of 2022. The STCA 
permits the respective governments to manage which government decides 
certain noncitizens' requests for protection from persecution or 
torture; correspondingly, under section 208(a)(2)(A) of the INA, 8 
U.S.C. 1182(a)(2)(A), and section 240 of the INA, 8 U.S.C. 1229a, the 
Departments apply the threshold screening requirement outlined in 8 CFR 
208.30(e)(6), 8 CFR 1003.42(h) and 8 CFR 1240.11(g)(1) through (4) and 
pursuant to domestic implementation of

[[Page 18239]]

this international treaty obligation to determine whether they should 
adjudicate a noncitizen's claim for asylum or other protection claim 
relating to persecution or torture. The STCA, as originally negotiated, 
did not include those noncitizens seeking entry into the United States 
between the official POEs (to include certain bodies of waters as 
mutually designated by the United States and Canada) and who make an 
asylum or other protection claim within 14 days after such crossing. 
Upon implementation of the Additional Protocol of 2022 in each 
respective country, and upon the effective date of this rule at 12:01 
a.m. on Saturday, March 25, 2023, the threshold screening requirement 
will also apply to noncitizens who cross the U.S.-Canada land border 
between the official POEs and make an asylum or other protection claim 
relating to persecution or torture within 14 days after such crossing.
    The Departments are not aware of any significant impact on the 
environment, or any change in environmental effect that will result 
from the amendments being promulgated in this Final Rule. Furthermore, 
the Departments have determined that this rule clearly fits within 
categorical exclusion A3 in the Instruction Manual. The rule is applied 
prospectively.
    This final rule addresses specific threshold screening requirements 
as negotiated in the Additional Protocol of 2022 and is not part of a 
larger action. In accordance with its NEPA implementing procedures, the 
Departments find no extraordinary circumstances associated with this 
final rule that may give rise to significant environmental effects 
requiring further analysis and documentation. Therefore, this action is 
categorically excluded, and no further NEPA analysis or documentation 
is required.

K. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 
(codified at 44 U.S.C. chapter 35), and its implementing regulations, 5 
CFR part 1320.

List of Subjects

8 CFR Part 208

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

8 CFR Part 1003

    Administrative practice and procedure, Authority delegations 
(Government agencies), Fees, Reporting and recordkeeping requirements.

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in this preamble, DHS amends 
part 208 of chapter I of the title 8 of the Code of Federal Regulations 
as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for 8 CFR 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.  208.30 by revising paragraphs (e)(6) introductory text, 
(e)(6)(i) through (iii), and (e)(7) to read as follows:


Sec.  208.30  Credible fear determinations involving stowaways and 
applicants for admission found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act.

* * * * *
    (e) * * *
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the United States during removal by Canada or an alien 
who, on or after 12:01 a.m. on Saturday, March 25, 2023, entered the 
United States by crossing the U.S.-Canada land border between the 
ports-of-entry, including a crossing of the border in those waters as 
mutually designated by the United States and Canada, and who made an 
asylum or other protection claim relating to fear of persecution or 
torture within 14 days after such crossing, has a credible fear of 
persecution or torture, the asylum officer shall conduct a threshold 
screening interview to determine whether such an alien is ineligible to 
apply for asylum pursuant to section 208(a)(2)(A) of the Act and 
subject to removal to Canada by operation of the Agreement Between the 
Government of the United States and the Government of Canada for 
Cooperation in the Examination of Refugee Status Claims from Nationals 
of Third Countries (``Agreement''), which includes the Additional 
Protocol of 2022 to the Agreement Between the Government of the United 
States of America and the Government of Canada For Cooperation in the 
Examination of Refugee Status Claims from Nationals of Third Countries 
(``Additional Protocol of 2022''). In conducting this threshold 
screening interview, the asylum officer shall apply all relevant 
interview procedures outlined in paragraph (d) of this section, 
provided however, that paragraph (d)(2) of this section shall not apply 
to aliens described in this paragraph (e)(6). The asylum officer shall 
advise the alien of the exceptions contained in the Agreement, which 
includes the Additional Protocol of 2022, and question the alien as to 
applicability of any of these exceptions to the alien's case.
    (i) If the asylum officer, with concurrence from a supervisory 
asylum officer, determines that an alien is subject to the Agreement, 
which includes the Additional Protocol of 2022, and that an alien does 
not qualify for an exception under the Agreement, which includes the 
Additional Protocol of 2022, during this threshold screening interview, 
the alien is ineligible to apply for asylum in the United States. After 
the asylum officer's documented finding is reviewed by a supervisory 
asylum officer, the alien shall be advised that the alien will be 
removed to Canada in order to pursue the alien's claims relating to a 
fear of persecution or torture under Canadian law. Aliens found 
ineligible to apply for asylum under this paragraph shall be removed to 
Canada.
    (ii) If the alien establishes by a preponderance of the evidence 
that the alien qualifies for an exception under the terms of the 
Agreement, which includes the Additional Protocol of 2022, the asylum 
officer shall make a written notation of the basis of the exception, 
and then proceed immediately to a determination concerning whether the 
alien has a credible fear of persecution or torture under paragraph (d) 
of this section.
    (iii) An alien qualifies for an exception to the Agreement, which 
includes the Additional Protocol of 2022, if the alien is not being 
removed from Canada in transit through the United States and:
    (A) Is a citizen of Canada or, not having a country of nationality, 
is a habitual resident of Canada;
    (B) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who has been granted asylum, refugee, or other lawful status in 
the United States, provided, however, that this exception shall not

[[Page 18240]]

apply to an alien whose relative maintains only nonimmigrant visitor 
status, as defined in section 101(a)(15)(B) of the Act, or whose 
relative maintains only visitor status based on admission to the United 
States pursuant to the Visa Waiver Program;
    (C) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who is at least 18 years of age and has an asylum application 
pending before U.S. Citizenship and Immigration Services, the Executive 
Office for Immigration Review, or on appeal in federal court in the 
United States;
    (D) Is unmarried, under 18 years of age, and does not have a parent 
or legal guardian in either Canada or the United States;
    (E) Arrived in the United States with a validly issued visa or 
other valid admission document, other than for transit, issued by the 
United States to the alien, or, being required to hold a visa to enter 
Canada, was not required to obtain a visa to enter the United States; 
or
    (F) The Director of USCIS, or the Director's designee, determines, 
in the exercise of unreviewable discretion, that it is in the public 
interest to allow the alien to pursue a claim for asylum, withholding 
of removal, or protection under the Convention Against Torture, in the 
United States.
* * * * *
    (7) When an immigration officer has made an initial determination 
that an alien, other than an alien described in paragraph (e)(6) of 
this section and regardless of whether the alien is arriving at a port 
of entry, appears to be subject to the terms of an agreement authorized 
by section 208(a)(2)(A) of the Act, and seeks the alien's removal 
consistent with that provision, prior to any determination concerning 
whether the alien has a credible fear of persecution, reasonable 
possibility of persecution, or a reasonable possibility of torture, the 
asylum officer shall conduct a threshold screening interview to 
determine whether the alien is ineligible to apply for asylum in the 
United States and is subject to removal to a country (``receiving 
country'') that is a signatory to the applicable agreement authorized 
by section 208(a)(2)(A) of the Act, other than the U.S.-Canada 
Agreement, which includes the Additional Protocol of 2022. In 
conducting this threshold screening interview, the asylum officer shall 
apply all relevant interview procedures outlined in paragraph (d) of 
this section, except that paragraphs (d)(2) and (4) of this section 
shall not apply to aliens described in this paragraph (e)(7). The 
asylum officer shall advise the alien of the applicable agreement's 
exceptions and question the alien as to applicability of any of these 
exceptions to the alien's case. The alien shall be provided written 
notice that if the alien fears removal to the prospective receiving 
country because of the likelihood of persecution on account of a 
protected ground or torture in that country and wants the officer to 
determine whether it is more likely than not that the alien would be 
persecuted on account of a protected ground or tortured in that 
country, the alien should affirmatively state to the officer such a 
fear of removal. If the alien affirmatively states such a fear, the 
asylum officer will determine whether the individual has demonstrated 
that it is more likely than not that the alien would be persecuted on 
account of a protected ground or tortured in that country.
* * * * *

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in this preamble, the 
Attorney General amends parts 1003 and 1240 of chapter V of title 8 of 
the Code of Federal Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
3. The authority citation for 8 CFR part 1003 continues to read as 
follows:

    Authority:  5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1003, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p.1002; section 
203 Pub. L. 105-100, 111 Stat 2196-200; sections 1506 and 1510 of 
Pub. L. 106-308, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 
106-554, 114 Stat. 2763A-326 to -328.


0
4. Amend Sec.  1003.42 by revising paragraphs (h)(1) and (2) to read as 
follows:


Sec.  1003.42  Review of credible fear determinations.

* * * * *
    (h) Safe Third Country Agreement--(1) Applicants for admission, 
2002 U.S.-Canada Agreement, which includes the Additional Protocol of 
2022. An immigration judge has no jurisdiction to review a 
determination by an asylum officer that an applicant for admission is 
not eligible to apply for asylum pursuant to the 2002 U.S.-Canada 
Agreement, which includes the Additional Protocol of 2022, formed under 
section 208(a)(2)(A) of the Act and should be returned to Canada to 
pursue their claims for asylum or other protection under the laws of 
Canada. See 8 CFR 208.30(e)(6). However, in any case where an asylum 
officer has found that an applicant for admission qualifies for an 
exception to that Agreement, which includes the Additional Protocol of 
2022, or that the Agreement, which includes the Additional Protocol of 
2022, does not apply, an immigration judge does have jurisdiction to 
review a negative credible fear finding made thereafter by the asylum 
officer as provided in this section.
    (2) Aliens in transit. An immigration judge has no jurisdiction to 
review any determination by DHS that an alien being removed from Canada 
in transit through the United States should be returned to Canada to 
pursue asylum claims under Canadian law, under the terms of the 2002 
U.S.-Canada Agreement, which includes the Additional Protocol of 2022.
* * * * *

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
5. The authority citation for part 1240 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 
105-277 (112 Stat. 2681).


0
6. Amend Sec.  1240.11 by revising paragraphs (g) and (h)(1) to read as 
follows:


Sec.  1240.11  Ancillary matters, applications.

* * * * *
    (g) U.S.-Canada safe third country agreement, which includes the 
Additional Protocol of 2022. (1) The immigration judge has authority to 
apply section 208(a)(2)(A) of the Act, relating to a determination that 
an alien may be removed to Canada pursuant to the 2002 U.S.-Canada 
Agreement (``Agreement''), in the case of an alien who is subject to 
the terms of the Agreement, which includes the Additional Protocol of 
2022, and is placed in proceedings pursuant to section 240 of the Act. 
In an appropriate case, the immigration judge shall determine whether 
under that Agreement, which includes the Additional Protocol of 2022, 
the alien should be returned to Canada, or whether the alien should be 
permitted to pursue asylum or other protection in the United States.
    (2) An alien described in paragraph (g)(1) of this section is 
ineligible to

[[Page 18241]]

apply for asylum, pursuant to section 208(a)(2)(A) of the Act, unless 
the immigration judge determines, by preponderance of the evidence, 
that:
    (i) The Agreement, which includes the Additional Protocol of 2022, 
does not apply to the alien or does not preclude the alien from 
applying for asylum in the United States; or
    (ii) The alien qualifies for an exception to the Agreement, which 
includes the Additional Protocol of 2022, as set forth in paragraph 
(g)(3) of this section.
    (3) The immigration judge shall apply the applicable regulations in 
deciding whether the alien qualifies for any exception under the 
Agreement, which includes the Additional Protocol of 2022, that would 
permit the United States to exercise authority over the alien's asylum 
claim. The exceptions under the Agreement, which includes the 
Additional Protocol of 2022, are codified at 8 CFR 208.30(e)(6)(iii). 
The immigration judge shall not review, consider, or decide any issues 
pertaining to any discretionary determination on whether the alien 
should be permitted to pursue an asylum claim in the United States 
notwithstanding the general terms of the Agreement, which includes the 
Additional Protocol of 2022, as such discretionary public interest 
determinations are reserved to DHS. However, an alien in removal 
proceedings who is otherwise ineligible to apply for asylum under the 
Agreement, which includes the Additional Protocol of 2022, may apply 
for asylum if DHS files a written notice in the proceedings before the 
immigration judge that it has decided in the public interest to allow 
the alien to pursue claims for asylum or withholding of removal.
    (4) An alien who is found to be ineligible to apply for asylum 
under section 208(a)(2)(A) of the Act is ineligible to apply for 
withholding of removal pursuant to section 241(b)(3) of the Act and the 
Convention Against Torture. However, the alien may apply for any other 
relief from removal for which the alien may be eligible. If an alien 
who is subject to the Agreement, which includes the Additional Protocol 
of 2022, and section 208(a)(2)(A) of the Act is ordered removed, the 
alien shall be ordered removed to Canada, in which the alien will be 
able to pursue his or her claims for asylum or protection against 
persecution or torture under the laws of Canada
    (h) * * *.
    (1) The immigration judge has authority to apply section 
208(a)(2)(A) of the Act, relating to a determination that an alien may 
be removed to a third country pursuant to a bilateral or multilateral 
agreement--other than the 2002 U.S.-Canada Agreement, which includes 
the Additional Protocol of 2022--in the case of an alien who is subject 
to the terms of the relevant agreement and is placed in proceedings 
pursuant to section 240 of the Act. In an appropriate case, the 
immigration judge shall determine whether under the relevant agreement 
the alien should be removed to the third country, or whether the alien 
should be permitted to pursue asylum or other protection claims in the 
United States. If more than one agreement applies to the alien and the 
alien is ordered removed, the immigration judge shall enter alternate 
orders of removal to each relevant country.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security,
    Dated: March 22, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023-06351 Filed 3-24-23; 8:45 am]
BILLING CODE 9111-97-P