[Federal Register Volume 88, Number 94 (Tuesday, May 16, 2023)]
[Rules and Regulations]
[Pages 31314-31452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10146]



[[Page 31313]]

Vol. 88

Tuesday,

No. 94

May 16, 2023

Part II





Department of Homeland Security





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8 CFR Part 208





Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 1003 and 1208





Circumvention of Lawful Pathways; Final Rule

  Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2744-23; Docket No: USCIS 2022-0016]
RIN 1615-AC83

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1208

[A.G. Order No. 5660-2023]
RIN 1125-AB26


Circumvention of Lawful Pathways

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

ACTION: Final rule; request for comments on expanded applicability in 
maritime context.

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SUMMARY: The Department of Homeland Security (``DHS'') and the 
Department of Justice (``DOJ'') are issuing a final rule in 
anticipation of a potential surge of migration at the southwest border 
(``SWB'') of the United States following the termination of the Centers 
for Disease Control and Prevention's (``CDC'') public health Order. The 
rule encourages migrants to avail themselves of lawful, safe, and 
orderly pathways into the United States, or otherwise to seek asylum or 
other protection in another country through which they travel, thereby 
reducing reliance on human smuggling networks that exploit migrants for 
financial gain. The rule does so by introducing a rebuttable 
presumption of asylum ineligibility for certain noncitizens who neither 
avail themselves of a lawful, safe, and orderly pathway to the United 
States nor seek asylum or other protection in a country through which 
they travel. In the absence of such a measure, which would apply only 
to those who enter at the southwest land border or adjacent coastal 
borders during a limited, specified date range, the number of migrants 
expected to travel without authorization to the United States would be 
expected to increase significantly, to a level that risks undermining 
the Departments' continued ability to safely, effectively, and humanely 
enforce and administer U.S. immigration law, including the asylum 
system, in the face of exceptionally challenging circumstances. Coupled 
with an expansion of lawful, safe, and orderly pathways into the United 
States, the Departments expect the rule to lead to a reduction in the 
number of migrants who seek to cross the SWB without authorization to 
enter, thereby reducing the reliance by migrants on dangerous human 
smuggling networks, protecting against extreme overcrowding in border 
facilities, and helping to ensure that the processing of migrants 
seeking protection in the United States is done in an effective, 
humane, and efficient manner. In addition, the Departments are 
requesting comment on whether applicability of the rebuttable 
presumption should be extended to noncitizens who enter the United 
States without documents sufficient for lawful admission during the 
same temporary time period at a maritime border.

DATES: 
    Effective date: This rule is effective on May 11, 2023.
    Comment period for solicited comments: Comments on expanded 
applicability in maritime context identified in Section V of this 
preamble must be submitted on or before June 15, 2023. The electronic 
Federal Docket Management System will accept comments before midnight 
eastern time at the end of that day.

ADDRESSES: 
    Docket: To view comments on the proposed rule that preceded this 
rule, search for docket number USCIS 2022-0016 on the Federal 
eRulemaking Portal at https://www.regulations.gov.
    Comment period for solicited additional comments: You may submit 
comments on the specific issue identified in Section V of this preamble 
via the electronic Federal Docket Management System at https://www.regulations.gov, to DHS Docket Number USCIS 2022-0016. Follow the 
website instructions for submitting comments. Comments submitted in a 
manner other than the one listed above, including emails or letters 
sent to the Departments' officials, will not be considered comments on 
the rulemaking and may not receive a response from the Departments. 
Please note that the Departments cannot accept any comments that are 
hand-delivered or couriered. In addition, the Departments cannot accept 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs or USB drives. The Departments are not accepting mailed 
comments at this time. If you cannot submit your comment by using 
https://www.regulations.gov, please contact the Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, by telephone at 
(240) 721-3000 (not a toll-free call) for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 
    For DHS: Daniel Delgado, Director, Border and Immigration Policy, 
Office of Strategy, Policy, and Plans, U.S. Department of Homeland 
Security; telephone (202) 447-3459 (not a toll-free call).
    For Executive Office for Immigration Review (``EOIR''): Lauren 
Alder Reid, Assistant Director, Office of Policy, EOIR, Department of 
Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 
305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to submit comments on the specific 
issue identified in Section V of this preamble by submitting relevant 
written data, views, or arguments. To provide the most assistance to 
the Departments, comments should explain the reason for any 
recommendation and include data, information, or authority that 
supports the recommended course of action. Comments must be submitted 
in English, or an English translation must be provided. Comments 
submitted in a manner other than those listed above, including emails 
or letters sent to the Departments' officials, will not be considered 
comments on the rulemaking and may not receive a response from the 
Departments.
    Instructions: If you submit a comment, you must submit it to DHS 
Docket Number USCIS 2022-0016. All submissions may be posted, without 
change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to the 
Departments. The Departments may withhold information provided in 
comments from public viewing that they determine may impact the privacy 
of an individual or is offensive. For additional information, please 
read the Privacy and Security Notice available at https://www.regulations.gov.

II. Executive Summary

A. Purpose of Action

    Economic and political instability around the world is fueling the 
highest

[[Page 31315]]

levels of migration since World War II, including in the Western 
Hemisphere. Analysis by the DHS Office of Immigration Statistics 
(``OIS'') found that even while CDC's Title 42 public health Order \1\ 
has been in place, encounters at our SWB \2\--referring to the number 
of times U.S. officials encounter noncitizens \3\ attempting to cross 
the SWB of the United States without authorization to do so--reached an 
all-time high in 2022, driven in large part by an unprecedented exodus 
of migrants at different times from countries such as Brazil, Colombia, 
Cuba, Ecuador, Haiti, Nicaragua, Peru, and Venezuela.\4\ The U.S. 
Border Patrol (``USBP'') completed 221,710 encounters between ports of 
entry in December 2022, second only to May 2022 (224,371 encounters) 
for the most monthly encounters since at least Fiscal Year (``FY'') 
2000 (the period for which detailed records are available), and very 
likely the most ever.\5\ Daily encounters between Ports of Entry 
(``POEs'') averaged 7,152 for December 2022 and exceeded 8,000 per day 
11 times during the month, as compared to average daily encounters of 
1,977 for all of 2000-2019 and average daily encounters of 1,265 in the 
immediate pre-pandemic period, 2014-2019.\6\ Smuggling networks enable 
and exploit this unprecedented movement of people, putting migrants' 
lives at risk for smugglers' financial gain.\7\ Meanwhile, the current 
asylum system--in which a high number of migrants are initially 
determined eligible to pursue their claims, even though most ultimately 
are not granted asylum in the subsequent EOIR removal proceedings \8\--
has contributed to a growing backlog of cases awaiting review by asylum 
officers (``AOs'') and immigration judges (``IJs''). The practical 
result of this growing backlog is that those with meritorious claims 
may have to wait years for their claims to be granted, while 
individuals who are ultimately denied protection may spend years in the 
United States before being issued a final order of removal.\9\ As the 
demographics of border encounters have shifted in recent years to 
include larger numbers of non-Mexicans--who are far more likely to 
assert asylum claims--and as the time required to process and remove 
noncitizens ineligible for protection has grown (during which 
individuals may become eligible to apply for employment authorization), 
the deterrent effect of apprehending noncitizens at the SWB has become 
more limited.\10\
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    \1\ See Public Health Determination and Order Regarding 
Suspending the Right to Introduce Certain Persons from Countries 
Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 public 
health Orders, which ``suspend[ ] the right to introduce certain 
persons into the United States from countries or places where the 
quarantinable communicable disease exists in order to protect the 
public health from an increased risk of the introduction of COVID-
19'').
    \2\ United States Government sources refer to the U.S. border 
with Mexico by various terms, including ``SWB,'' ``the southern 
border,'' ``U.S.-Mexico border,'' or ``the land border with 
Mexico.'' In some instances, these differences can be substantive, 
referring only to portions of the border, while in others they 
simply reflect different word choices. The ``southern border'' is 
both a land and maritime border extending from beyond California to 
the west to beyond Florida to the east. This rule applies along the 
entirety of the U.S. land border with Mexico, referred to in the 
regulatory text as the ``southwest land border,'' but the 
Departments use different terms in the preamble to describe the 
border. This is in large part to reflect the source material 
supporting the rule, but the Departments believe that the factual 
circumstances described in the preamble call for applying the rule 
across the entirety of the U.S. land border with Mexico, referred to 
throughout as the ``SWB.'' As discussed in greater detail below, the 
Departments believe that the factual circumstances described in this 
preamble call for applying the rule to coastal borders adjacent to 
that land border as well; accordingly, this final rule applies to 
those who enter the United States from Mexico, whether at the 
southwest land border or adjacent coastal borders.
    \3\ For purposes of this discussion, the Departments use the 
term ``noncitizen'' to be synonymous with the term ``alien'' as it 
is used in the Immigration and Nationality Act. See INA 101(a)(3), 8 
U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020).
    \4\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023; OIS analysis of historic U.S. Border Patrol data.
    \5\ OIS analysis of OIS Production data based on data through 
March 31, 2023.
    \6\ OIS analysis of OIS Production data for fiscal year (``FY'') 
2000-March 2023 and OIS Yearbook data for FY 1925-FY 1999. As 
discussed further below, daily encounters between ports of entry 
fell sharply in January 2023 following the launch of the Cuba, 
Haiti, and Nicaragua parole processes, and daily encounters between 
ports of entry at the SWB averaged just over 5,200 a day the 30 days 
ending April 10, 2023. OIS analysis of Unified Immigration Portal 
(UIP) data pulled on April 13, 2023.
    \7\ Miriam Jordan, Smuggling Migrants at the Border Now a 
Billion-Dollar Business, N.Y. Times, July 25, 2022, https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html.
    \8\ See EOIR, Executive Office for Immigration Review 
Adjudication Statistics: Asylum Decision and Filing Rates in Cases 
Originating with a Credible Fear Claim (Jan. 16, 2023), https://www.justice.gov/eoir/page/file/1062976/download. The EOIR 
adjudication outcome statistics report on the total number of cases 
originating with credible fear claims resolved on any ground in a 
FY, without regard to whether an asylum claim was adjudicated. The 
asylum grant rate is a percentage of that total number of cases.
    \9\ OIS analysis of EOIR data as of March 31, 2023.
    \10\ For noncitizens encountered at the SWB in FY 2014-FY 2019 
who were placed in expedited removal, nearly 6 percent of Mexican 
nationals made fear claims that were referred to U.S. Citizenship 
and Immigration Services for adjudication, compared to nearly 57 
percent of people from Northern Central America (i.e., El Salvador, 
Guatemala, and Honduras), and just over 90 percent of all other 
nationalities. OIS analysis of Enforcement Lifecycle data as of 
December 31, 2022. Of note, according to OIS analysis of historic 
EOIR and CBP data, there is a clear correlation since FY 2000 
between the increasing time it takes to complete immigration 
proceedings, which results in a lower share of noncitizens being 
removed, and the growth in non-Mexican encounters at the SWB. Both 
trends accelerated in the 2010s, as non-Mexicans became the majority 
of border encounters, and they have accelerated further since FY 
2021, as people from countries other than Mexico and Northern 
Central America now account for the largest numbers of border 
encounters.
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    While the CDC's Title 42 public health Order has been in effect, 
migrants who do not have proper travel documents have generally not 
been processed into the United States; they instead have been expelled 
to Mexico or to their home countries under the Order's authority 
without being processed under the authorities set forth in Title 8 of 
the United States Code, which includes the Immigration and Nationality 
Act (``INA'' or ``the Act''). When the Order is lifted, however, the 
United States Government will process all migrants into the United 
States under Title 8 authorities, as required by statute. At that time, 
the number of migrants seeking to cross the SWB without authorization 
is expected to increase significantly, unless other policy changes are 
made. Such challenges were evident in the days following the November 
15, 2022, court decision that, had it not been stayed on December 19, 
2022, would have resulted in the lifting of the Title 42 public health 
Order effective December 21, 2022.\11\ Leading up to the expected 
termination date, migrants gathered in various parts of Mexico, 
including along the SWB, waiting to cross the border once the Title 42 
public health Order was lifted.\12\ According to internal Government 
sources, smugglers were also expanding their messaging and recruitment 
efforts, using the expected lifting of the Title 42 public health Order 
to claim that the border was open, thereby seeking to persuade would-be 
migrants to participate in expensive and dangerous human smuggling 
schemes. In the weeks between the November 2022 announcement that the 
Title 42 public health Order would be lifted, and the December 19, 
2022, stay order that kept the Title 42 public health Order in place, 
encounter rates jumped from an average of just under 7,700 per week 
(early November) to nearly 8,800 per

[[Page 31316]]

week (mid-December), a change not predicted by normal seasonal 
effects.\13\
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    \11\ See Huisha-Huisha v. Mayorkas, No. 21-100, 2022 WL 16948610 
(D.D.C. Nov. 15, 2022), cert. and stay granted, Arizona v. Mayorkas, 
143 S. Ct. 478 (2022).
    \12\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at 
the U.S.-Mexico Border. This Is Why, L.A. Times, Dec. 23, 2022, 
https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion.
    \13\ Month over month change from November to December for all 
of FY 2013-FY2022 averaged negative 2 percent. OIS analysis of OIS 
Persist Dataset based on data through March 31, 2023.
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    While a number of factors make it particularly difficult to 
precisely project the numbers of migrants who would seek to cross the 
SWB without authorization or present at a U.S. POE without documents 
sufficient for admission after the lifting of the Title 42 public 
health Order, DHS encounter projections and planning models from early 
April suggest that encounters could rise to 11,000 per day, absent 
policy changes and absent a viable mechanism for removing Cuban, 
Haitian, Nicaraguan, and Venezuelan (``CHNV'') nationals who do not 
have a valid protection claim.\14\ As discussed in greater detail 
below, data indicate that recently announced enforcement processes, as 
applied to CHNV nationals, which couple new parole processes with 
prompt returns of those who attempt to cross the SWB without utilizing 
these processes, are effectively deterring irregular migration \15\ 
from those countries to the United States, thus yielding a substantial 
decrease in encounter numbers for nationals of CHNV countries.\16\
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    \14\ OIS analysis of DHS SWB Encounter Planning Model generated 
April 18, 2023. The complexity of international migration limits the 
Department's ability to precisely project border encounters under 
the best of circumstances. The current period is characterized by 
greater than usual uncertainty due to ongoing changes in the major 
migration source countries (i.e., the shift from Mexico and Northern 
Central America to new countries of origin, discussed further 
below), the growing impact of climate change on migration, political 
instability in several source countries, the evolving recovery from 
the COVID-19 pandemic, and uncertainty generated by border-related 
litigation, among other factors.
    OIS leads an interagency SWB Encounter Projections Working Group 
that generates encounter projections every two to four weeks, with 
ongoing refinements to the model based on feedback from the working 
group and model diagnostics. The enterprise encounter projection 
utilizes a mixed method blended model that combines a Bayesian 
structural time series statistical model produced by OIS with 
subject matter expert input to account for real-time policy 
developments and pending litigation, among other factors, that are 
not captured by the statistical model. The blended model is run 
through a standard statistical process (Monte Carlo simulations) to 
generate 68 percent and 95 percent confidence intervals for each of 
33 separate demographic groupings. In light of the greater-than-
usual uncertainty at the current time, the Departments' planning 
models are designed to prepare the Departments for all reasonably 
likely eventualities, and therefore focus on the upper bounds of the 
blended model's 68 and 95 percent confidence intervals. As noted in 
Section IV.B.2 of this preamble, in the current context, the 
Departments must focus their planning efforts on the high and 
moderately high planning models rather than plan to an optimistic 
scenario that could leave enforcement efforts badly under-resourced 
and harm efforts to provide a safe and orderly process.
    \15\ In this preamble, ``irregular migration'' refers to the 
movement of people into another country without authorization.
    \16\ In the week prior to the announcement of the parole 
processes (ending October 12, 2022, for Venezuela and January 6, 
2023, for Cuba, Haiti, and Nicaragua), the daily average of CHNV 
encounters was nearly 2,000 between POEs. A month after the parole 
announcements, daily encounters of CHNV nationals averaged just 
under 300 encounters. In the most recent seven days ending April 10, 
2023, CHNV daily encounters averaged 195. OIS analysis of OIS 
Persist dataset based on data through March 31, 2023, and OIS 
analysis of CBP UIP data downloaded April 13, 2023.
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    However, DHS will no longer have a means to promptly expel migrants 
without a legal basis to stay in the United States following the 
termination of the Title 42 public health Order, which means that an 
important disincentive associated with the parole processes would no 
longer be present. In addition, there are a number of factors that 
could contribute to these gains being erased after the lifting of the 
Title 42 public health Order, including the presence of several large 
diaspora populations in Mexico and elsewhere in the hemisphere, the 
unprecedented recent growth in migration from countries of origin not 
previously typical, the already large number of migrants in proximity 
to the SWB, and the general uncertainty surrounding the expected impact 
of the termination of the Title 42 public health Order on the movement 
of migrants. Thus, the high end of the estimated encounter rate remains 
a possibility for which the Departments need to prepare. In the absence 
of the policy changes included in the rule, most non-Mexicans processed 
for expedited removal under Title 8 would likely establish credible 
fear and remain in the United States for the foreseeable future despite 
the fact that many of them will not ultimately be granted asylum,\17\ a 
scenario that would likely incentivize an increasing number of migrants 
to the United States and further increase the likelihood of sustained, 
high encounter rates.
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    \17\ See Section III.C of the preamble to the notice of proposed 
rulemaking, Circumvention of Lawful Pathways, 88 FR 11704, at 11715-
11716 (Feb. 23, 2023). Overall, 63 percent of non-Mexicans placed in 
expedited removal from 2014-2019 made fear claims, and 85 percent of 
those claiming fear (54 percent of all those placed in expedited 
removal) established fear or were otherwise placed in section 240 
removal proceedings as a result of their fear claim. These rates are 
likely to be higher after May 11, 2023, because of the growing 
prevalence of extra-regional nationals (i.e., noncitizens not from 
Mexico or Northern Central America), who are more likely than those 
from Northern Central American countries to make fear claims and to 
establish fear. OIS analysis of OIS Enforcement Lifecycle data based 
on data through February 28, 2023.
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    A sustained, high encounter rate risks overwhelming the 
Departments' ability to effectively process, detain, and remove, as 
appropriate, the migrants encountered. This would put an enormous 
strain on already strained resources, risk overcrowding in already 
crowded USBP stations and border POEs in ways that pose significant 
health and safety concerns, and create a situation in which large 
numbers of migrants--only a small proportion of whom are likely to be 
granted asylum--are subject to exploitation and risks to their lives by 
the networks that support their movements north.
    In response to this urgent and extreme situation, the Departments 
are issuing a rule that--
     incentivizes migrants to use lawful, safe, and orderly 
means for noncitizens to enter the United States to seek asylum and 
other forms of protection;
     provides core protections for noncitizens who would be 
threatened with persecution or torture in other countries; and
     builds upon ongoing efforts to share the responsibility of 
providing asylum and other forms of protection to eligible migrants 
with the United States' regional partners.
    At the same time, the rule addresses the reality of unprecedented 
migratory flows, the systemic costs those flows impose on the 
immigration system, and the ways in which increasingly sophisticated 
smuggling networks cruelly exploit the system for financial gain. 
Specifically, this rule establishes a presumptive condition on asylum 
eligibility for certain noncitizens who fail to take advantage of the 
existing and expanded lawful pathways \18\ to enter the United States, 
including the opportunity to schedule a time and place to present at a 
POE, and thus seek asylum or other forms of protection in a lawful, 
safe, and orderly manner, or to seek asylum or other protection in one 
of the countries through which they travel on their way to the United 
States.
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    \18\ The terms ``lawful pathways'' and ``lawful, safe, and 
orderly pathways,'' as used in this preamble, refer to the range of 
pathways and processes by which migrants are able to enter the 
United States or other countries in a lawful, safe, and orderly 
manner and seek asylum and other forms of protection as described in 
this rule.
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    This effort draws, in part, on lessons learned from the successful 
Venezuela parole process,\19\ as well as the similar processes for 
Cubans, Haitians, and Nicaraguans,\20\ under which DHS

[[Page 31317]]

coupled a mechanism for noncitizens from these countries to seek entry 
into the United States in a lawful, safe, and orderly manner, with the 
imposition of new consequences for those who cross the border without 
authorization to do so--namely returns to Mexico.\21\ Prior to the 
implementation of these processes, the Government of Mexico had not 
been willing to accept the return of such nationals; the Government of 
Mexico's independent decision to allow such returns was predicated, in 
primary part, on the implementation of these processes.
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    \19\ See DHS, Press Release, DHS Announces New Migration 
Enforcement Process for Venezuelans (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans; see also DHS, Implementation of a Parole 
Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
    \20\ See DHS, Press Release, DHS Continues to Prepare for End of 
Title 42; Announces New Border Enforcement Measures and Additional 
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
    \21\ While the Title 42 public health Order has been in place, 
those returns have been made under Title 42. As noted below, after 
the Title 42 public health Order is lifted, affected noncitizens may 
instead be subject to return or removal to Mexico under Title 8. See 
The White House, Mexico and United States Strengthen Joint 
Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ [hereinafter The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023)]; 
Government of Mexico, M[eacute]xico y Estados Unidos fortalecen Plan 
Humanitario Conjunto sobre Migraci[oacute]n (May 2, 2023), https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published.
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    A week before the announcement of the Venezuela parole process on 
October 12, 2022, Venezuelan encounters between POEs at the SWB 
averaged over 1,100 a day from October 5-11. About two weeks after the 
announcement, Venezuelan encounters averaged under 200 per day between 
October 18 and 24.\22\ U.S. Customs and Border Protection (``CBP'') 
encountered an average of 106 Venezuelans between POEs per day in March 
2023, about one-tenth the number of encounters prior to the 
announcement of the parole process.\23\ Similarly, the number of Cuban, 
Haitian, and Nicaraguan (``CHN'') nationals encountered between POEs 
dropped significantly in the wake of the introduction of the new 
processes, which coupled a lawful, safe, and orderly way for such 
nationals to seek parole in the United States with consequences (in the 
form of prompt returns to Mexico) for those who crossed the SWB without 
authorization. Between the announcement of these processes on January 
5, 2023, and January 21, 2023, the number of daily encounters between 
POEs of CHN nationals dropped from 928 to 73, a 92 percent decline.\24\ 
CHN encounters between POEs continued to decline to an average of fewer 
than 17 per day in March 2023.\25\ DHS estimates that the drop in CHNV 
encounters in January through March was almost four times as large as 
the number of people permitted entry under the parole processes.\26\
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    \22\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \23\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \24\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \25\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \26\ In December 2022, prior to the announcement of the CHN 
parole processes, the OIS Enterprise Encounter Projection predicted 
273,000 total encounters of CHNV nationals in January through March 
2023, a projection equivalent to 265,000 unique encounters given 
CHNV repeat encounter rates. During that same period, following the 
enactment of the CHN parole processes, unique SWB encounters 
(excluding scheduled arrivals via the CBP One app) of CHNV nationals 
was 20,204-245,000 fewer unique encounters than had been predicted. 
By comparison, a total of 61,967 CHNV nationals entered the United 
States pursuant to the CHNV parole processes during the same period. 
OIS analysis of OIS Persist Dataset based on data through March 31, 
2023, and of CBP OFO CHNV Advance Travel Authorization reports.
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    This rule, which draws on these successful processes, and which 
will apply only to those who enter during a limited, specified date 
range at the southwest land border or adjacent coastal borders, will 
discourage irregular migration by encouraging migrants to use lawful, 
safe, and orderly pathways and allowing for swift returns of migrants 
who bypass such pathways, even after the termination of the Title 42 
public health Order. It responds to the expected increase of migrants 
seeking to cross the SWB following the termination of the Title 42 
public health Order that would occur in the absence of a policy shift 
by encouraging reliance on lawful, safe, and orderly pathways, thereby 
shifting the incentives that otherwise encourage migrants to make a 
dangerous journey to the SWB. It is also responsive to the requests of 
foreign partners that have lauded the sharp reductions in irregular 
migration associated with the aforementioned process for Venezuelans 
and have urged that the United States continue and build on this kind 
of approach, which couples processes for individuals to travel directly 
to the United States with consequences at the land border for those who 
do not avail themselves of these processes. The United States has, as 
noted above, already extended this model to Cuba, Haiti, and Nicaragua, 
and the Government of Mexico and the United States recently announced a 
set of additional measures on migration, including the United States' 
continued commitment to welcoming CHNV nationals under these parole 
processes and Mexico's commitment to continue to accept back migrants 
on humanitarian grounds after May 11, 2023.\27\ The Departments assess 
that continuing to implement and build on this approach is critical to 
the United States' ongoing engagements with regional partners, in 
particular the Government of Mexico, regarding migration management in 
the region.\28\
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    \27\ The White House, Mexico and United States Strengthen Joint 
Humanitarian Plan on Migration (May 2, 2023).
    \28\ See also The White House, Joint Statement by President 
Biden and Prime Minister Trudeau (Mar. 24, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/24/joint-statement-by-president-biden-and-prime-minister-trudeau/ 
(reaffirming commitment of United States and Canada to a 
collaborative regional approach to migration centered on expanding 
legal pathways and humane border management, including deterrence of 
irregular migration).
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    Consonant with these efforts, over the past two years, the United 
States has taken significant steps to expand safe and orderly options 
for migrants to lawfully enter the United States. The United States 
has, for example, increased and will continue to increase--
     refugee processing in the Western Hemisphere;
     country-specific and other available processes for 
individuals seeking parole for urgent humanitarian reasons or 
significant public benefit on a case-by-case basis; and
     opportunities to lawfully enter the United States for the 
purpose of seasonal employment.
    In addition, once the Title 42 public health Order is terminated, 
the United States will expand implementation of the CBP One\TM\ mobile 
application (``CBP One app''),\29\ an innovative mechanism for 
noncitizens to schedule a time to arrive at POEs along the SWB, to 
allow an increasing number of migrants who may wish to claim asylum to 
request an available time and location to present and be inspected and 
processed at certain POEs, in accordance with operational limitations 
at each POE.\30\ Use of this app keeps

[[Page 31318]]

migrants from having to wait in long lines of unknown duration at the 
POEs, and enables the POEs to manage the flows in a safe and efficient 
manner, consistent with their footprint and operational capacity, which 
vary substantially across the SWB. Once present in the United States, 
those who use this mechanism can make claims for asylum and other forms 
of protection and are exempted from this rule's rebuttable presumption 
on asylum eligibility. They are vetted and screened, and assuming no 
public safety or national security concerns, may be eligible to apply 
for employment authorization as they await resolution of their 
cases.\31\
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    \29\ The Departments note that unless otherwise specified, 
references to the CBP One app refer to usage of the CBP One tool, 
which can be accessed via the smartphone application. Although there 
is a desktop version of the CBP One app, it does not currently allow 
users to submit their information in advance. CBP is developing the 
capability to use the desktop version for this purpose.
    \30\ As of January 12, 2023, this mechanism is currently 
available for noncitizens seeking to cross SWB land POEs to request 
a humanitarian exception from the Title 42 public health Order. See 
CBP, Fact Sheet: Using CBP OneTM to Schedule an 
Appointment (last modified Jan. 12, 2023), https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english. Once the Title 42 
public health Order is terminated, and the POEs open to all migrants 
who wish to seek entry into the United States, this mechanism will 
be broadly available to migrants in central and northern Mexico, 
allowing them to request an available time and location to present 
and be inspected and processed at certain POEs.
    \31\ Under current employment authorization regulations, there 
is no waiting period before a noncitizen parolee in this 
circumstance may apply for employment authorization, except where 
the noncitizen is in expedited removal proceedings, including after 
a positive credible fear determination, and paroled from custody. 
See 8 CFR 274a.12(c)(11), 235.3(b)(2)(iii), (b)(4)(ii).
---------------------------------------------------------------------------

    Moreover, on April 27, 2023, DHS and the Department of State 
announced several new measures to further reduce irregular migration 
across the Western Hemisphere, significantly expand lawful pathways for 
protection, and facilitate the safe, orderly, and humane processing of 
migrants.\32\ These new measures include--
---------------------------------------------------------------------------

    \32\ See DHS, Fact Sheet, U.S. Government Announces Sweeping New 
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration [hereinafter DHS, New 
Actions to Manage Regional Migration (Apr. 27, 2023)].
---------------------------------------------------------------------------

     creating family reunification parole processes for El 
Salvador, Guatemala, Honduras, and Colombia, as well as modernizing the 
longstanding Haitian Family Reunification Parole process and the Cuban 
Family Reunification Parole process;
     committing to referring for resettlement thousands of 
additional refugees per month from the Western Hemisphere, with the 
goal of doubling the number of refugees the United States committed to 
welcome as part of the Los Angeles Declaration on Migration and 
Protection (``L.A. Declaration'');
     establishing regional processing centers in key locations 
throughout the Western Hemisphere to reduce irregular migration;
     launching an aggressive anti-smuggling campaign targeting 
criminal networks in the Dari[eacute]n Gap and combating smuggler 
misinformation;
     surging AOs to complete credible fear interviews at the 
SWB more quickly; and
     ramping up coordination between state and local officials 
and other federal agencies to provide resources, technical assistance, 
and support.\33\
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    \33\ See id.
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    These measures will be implemented in close coordination with 
regional partners, including the governments of Mexico, Canada, 
Colombia, and Guatemala, as well as the government of Spain.\34\
---------------------------------------------------------------------------

    \34\ See id.; see also The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023) 
(committing to increase joint actions to counter human smugglers and 
traffickers, address root causes of migration, and continue to 
combine expanded lawful pathways with consequences for irregular 
migration).
---------------------------------------------------------------------------

    Available pathways provide lawful, safe, and orderly mechanisms for 
migrants to enter the United States and make their protection claims. 
Consistent with the CHNV processes, this rule also imposes consequences 
on certain noncitizens who fail to avail themselves of the range of 
lawful, safe, and orderly means for entering the United States and 
seeking protection in the United States or elsewhere. Specifically, 
this rule establishes a rebuttable presumption that certain noncitizens 
who enter the United States without documents sufficient for lawful 
admission are ineligible for asylum, if they traveled through a country 
other than their country of citizenship, nationality, or, if stateless, 
last habitual residence, unless they were provided appropriate 
authorization to travel to the United States to seek parole pursuant to 
a DHS-approved parole process; presented at a POE at a pre-scheduled 
time or demonstrate that the mechanism for scheduling was not possible 
to access or use due to language barrier, illiteracy, significant 
technical failure, or other ongoing and serious obstacle; or sought 
asylum or other protection in a country through which they traveled and 
received a final decision denying that application. Unaccompanied 
children (``UC'') are excepted from this presumption.\35\ This 
presumption may be rebutted, and would necessarily be rebutted if, at 
the time of entry, the noncitizen or a member of the noncitizen's 
family with whom they are travelling had an acute medical emergency, 
faced an imminent and extreme threat to life or safety, such as an 
imminent threat of rape, kidnapping, torture, or murder,\36\ or 
satisfied the definition of ``victim of a severe form of trafficking in 
persons'' provided in 8 CFR 214.11(a). The presumption also may be 
rebutted in other exceptionally compelling circumstances.
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    \35\ The term ``unaccompanied child'' as used in this rule is 
the same as ``unaccompanied alien child,'' which is defined at 6 
U.S.C. 279(g)(2) to mean ``a child who--(A) has no lawful 
immigration status in the United States; (B) has not attained 18 
years of age; and (C) with respect to whom--(i) there is no parent 
or legal guardian in the United States; or (ii) no parent or legal 
guardian in the United States is available to provide care and 
physical custody.''
    \36\ The term ``imminent'' refers to the immediacy of the 
threat; it makes clear that the threat cannot be speculative, based 
on generalized concerns about safety, or based on a prior threat 
that no longer poses an immediate threat. The term ``extreme'' 
refers to the seriousness of the threat; the threat needs to be 
sufficiently grave, such as a threat of rape, kidnapping, torture, 
or murder, to trigger this ground for rebuttal.
---------------------------------------------------------------------------

    The rebuttable presumption is a ``condition[ ]'' on asylum 
eligibility, INA 208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and 
(d)(5)(B), that applies in affirmative and defensive asylum application 
merits adjudications, as well as during credible fear screenings. 
Individuals who are subject to and do not rebut the presumption remain 
eligible for statutory withholding of removal and protection under the 
regulations implementing U.S. obligations under Article 3 of the 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment (``CAT'').\37\
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    \37\ Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 
U.N.T.S. 85, 114.
---------------------------------------------------------------------------

    With the ability to schedule a time and place to arrive at POEs and 
the availability of other orderly and lawful pathways, this system is 
designed to (1) protect against an unmanageable flow of migrants 
arriving at the SWB; (2) further ongoing efforts to share the 
responsibility of providing asylum and other forms of protection with 
the United States' regional partners; (3) ensure that those with valid 
asylum claims have an opportunity to seek protection, whether in the 
United States or elsewhere; (4) enable the Departments to continue 
administering the immigration laws fairly and effectively; and (5) 
reduce the role of exploitative transnational criminal organizations 
and smugglers.
    The rule applies to noncitizens who enter the United States without 
authorization from Mexico at the southwest land border or adjacent 
coastal borders on or after the date of termination of the Title 42 
public health Order and before a specified date, 24 months from the 
rule's effective date. However, the rule will continue to apply to such 
noncitizens who entered the United States during the 24-month time 
frame in their Title 8 proceedings and in any subsequent asylum 
applications, except for those applications filed after the two-year 
period by those who entered the United

[[Page 31319]]

States as minors and who apply as principal applicants. The Departments 
intend that the rule will be subject to review to determine whether the 
entry dates provided in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i) 
should be extended, modified, or remain as provided in the rule.

B. Effective Date

    Issuance of this rule is justified in light of the migration 
patterns witnessed in recent months, and the concern about the 
possibility of a surge in irregular migration upon, or in anticipation 
of, the lifting of the Title 42 public health Order. The Departments 
seek to underscore that migrants will not be able to cross the border 
without authorization to enter without consequence upon the eventual 
lifting of the Order. Under this rule, the Departments will use their 
Title 8 authorities to process, detain, and remove, as appropriate, 
those who enter the United States from Mexico at the southwest land 
border or adjacent coastal borders without authorization and do not 
have a valid protection claim.
    The Departments are issuing this rule without the 30-day delayed 
effective date typically required by the Administrative Procedure Act 
(``APA'') \38\ because the Departments have determined that it is 
necessary to implement the rule when the Title 42 public health Order 
is lifted. The lifting of the Order could occur as a result of several 
different litigation and policy developments, including the vacatur of 
the preliminary injunction entered in Louisiana v. CDC, 603 F. Supp. 3d 
406 (W.D. La. 2022), appeal pending, No. 22-30303 (5th Cir. June 15, 
2022); the lifting of the stay entered by the Supreme Court in Arizona 
v. Mayorkas, 143 S. Ct. 478 (2022); or ``the expiration of the 
Secretary of HHS' declaration that COVID-19 constitutes a public health 
emergency,'' Public Health Reassessment and Order Suspending the Right 
to Introduce Certain Persons from Countries Where a Quarantinable 
Communicable Disease Exists, 86 FR 42828, 42829 (Aug. 5, 2021). The 
expiration of the declaration by the Secretary of Health and Human 
Services (``HHS'') that COVID-19 constitutes a public health emergency 
is expected to occur on May 11, 2023, in light of the recent 
announcement that ``[a]t present, the Administration's plan is to 
extend'' the public health emergency to May 11 and then allow it to 
expire ``on that date.'' \39\ The Departments have thus sought to move 
as expeditiously as possible, while also allowing sufficient time for 
public comment.
---------------------------------------------------------------------------

    \38\ See 5 U.S.C. 553(d). The Departments further address this 
requirement in Section VI.A of this preamble.
    \39\ Office of Mgmt. & Budget, Exec. Office of the President, 
Statement of Administration Policy (Jan. 30, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf; see also HHS, Fact Sheet: COVID-19 Public Health 
Emergency Transition Roadmap (Feb. 9, 2023), https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html (``Based on current COVID-19 trends, the 
Department of Health and Human Services (HHS) is planning for the 
federal Public Health Emergency (PHE) for COVID-19, declared under 
Section 319 of the Public Health Service (PHS) Act, to expire at the 
end of the day on May 11, 2023.'').
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C. Changes From Proposed Rule to Final Rule

    On February 23, 2023, the Departments issued a notice of proposed 
rulemaking (``NPRM'' or ``proposed rule'') \40\ in anticipation of a 
potential surge of migration at the SWB following the eventual 
termination of the CDC's public health Order. Following careful 
consideration of public comments received, the Departments have made 
modifications to the regulatory text proposed in the NPRM, as described 
below. The rationale for the proposed rule and the reasoning provided 
in the proposed rule preamble remain valid, except as distinguished in 
this regulatory preamble.
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    \40\ 88 FR 11704.
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1. Removing Provisions Implementing the Proclamation Bar IFR and the 
TCT Bar Final Rule
    Consistent with the proposed rule, Circumvention of Lawful 
Pathways, 88 FR 11704, 11727-28 (Feb. 23, 2023), the Departments have 
added amendatory instructions to remove provisions enacted to implement 
the bars to asylum eligibility established in an interim final rule 
(``IFR'') entitled, Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protection Claims, 83 FR 
55934 (Nov. 9, 2018) (``Proclamation Bar IFR''), and a final rule 
entitled, Asylum Eligibility and Procedural Modifications, 85 FR 82260 
(Dec. 17, 2020) (``TCT Bar Final Rule'').\41\
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    \41\ The TCT Bar Final Rule amended an earlier IFR on the same 
topic. See Asylum Eligibility and Procedural Modifications, 84 FR 
33829 (July 16, 2019). The IFR was vacated prior to the issuance of 
the TCT Bar Final Rule. Additionally, where the Departments refer to 
the ``Proclamation Bar'' or ``TCT Bar'' without including ``IFR'' or 
``Final Rule,'' the Departments are referring to the bars as applied 
and not to the rulemaking documents that implemented them.
---------------------------------------------------------------------------

    To remove the provisions enacted to implement the Proclamation Bar 
IFR and TCT Bar Final Rule, the Departments have made the following 
changes:
     removed and reserved paragraphs 8 CFR 208.13(c)(3) and 
1208.13(c)(3), which previously included the requirements for the 
Proclamation Bar IFR's applicability;
     removed and reserved paragraphs 8 CFR 208.13(c)(4) and 
1208.13(c)(4), which previously included the requirements for the TCT 
Bar Final Rule's applicability;
     removed and reserved paragraphs 8 CFR 208.13(c)(5) and 
1208.13(c)(5), which provided that determinations made with regard to 
whether an applicant met one of the exceptions to the TCT Bar Final 
Rule would not bind Federal departments or agencies with respect to 
certain later adjudications;
     amended 8 CFR 208.30(e)(5) to remove paragraphs (ii) and 
(iii), which regard application during credible fear of the 
Proclamation Bar IFR and TCT Bar Final Rule, respectively;
     removed reference to 8 CFR 208.30(e)(5)(ii) through (iv) 
from what was previously (i) and redesignated (i) as (e)(5);
     amended 8 CFR 1003.42(d) to remove paragraphs (1) and (2) 
and redesignated paragraph (3) as (d) because paragraphs (d)(1) and (2) 
provided the standard of review for Proclamation Bar and TCT Bar 
determinations made during credible fear screenings; and
     removed and reserved 8 CFR 1208.30(g)(1), which provided 
instructions to IJs regarding the application of the Proclamation Bar 
and the TCT Bar during credible fear reviews.
2. Applicability of Rebuttable Presumption After the Two-Year Period
    The rule applies to certain noncitizens who enter during the two-
year period in any asylum application they submit, regardless of when 
the application is filed or if the noncitizen makes subsequent entries. 
See 8 CFR 208.13(f) (``For applications filed by aliens who entered the 
United States between May 11, 2023, and May 11, 2025, also refer to the 
provisions on asylum eligibility described in Sec.  208.33.''); 8 CFR 
1208.13(f) (same); 8 CFR 208.33(a)(1), 1208.33(a)(1) (providing that 
the rebuttable presumption applies to noncitizens who enter the United 
States from Mexico at the southwest land border or adjacent coastal 
borders without documents sufficient for lawful admission between the 
effective date and a date 24-months later and after the end of 
implementation of the Title 42 public health Order with certain 
exceptions).

[[Page 31320]]

To remove any potential ambiguity regarding the ongoing applicability 
of the lawful pathways rebuttable presumption, the final rule makes the 
presumption's ongoing applicability explicit in 8 CFR 208.33(c)(1) and 
1208.33(d)(1) by stating that the lawful pathways condition on 
eligibility shall apply to ``any asylum application'' that is filed by 
a covered noncitizen ``regardless of when the application is filed and 
adjudicated.''
    The Departments have exempted from this ongoing application of the 
rebuttable presumption certain noncitizens who enter the United States 
during the two-year period while under the age of 18 and who later seek 
asylum as principal applicants after the two-year period. In the NPRM, 
the Departments requested comment on ``[w]hether any further regulatory 
provisions should be added or amended to address the application of the 
rebuttable presumption in adjudications that take place after the 
rule's sunset date.'' 88 FR at 11708. After reviewing comments raising 
concerns about the impact of the rule on children who arrive as part of 
a family unit and who are thus subject to the decision-making of their 
parents, the Departments have decided to adopt a provision excepting 
such children from the rule in certain circumstances after the two-year 
period ends. See 8 CFR 208.33(c)(2), 1208.33(d)(2). The Departments 
recognize that children who enter with their families are generally 
traveling due to their parents' decision-making. Exempting children 
from the rebuttable presumption entirely would mean, under the rule, 
that all family units that include minor children would also be 
exempted, which could incentivize families who otherwise would not make 
the dangerous journey to do so. And if the rule were amended to only 
exempt the child, it could inadvertently lead to the separation of a 
family in many cases because every child would have to be treated 
separately from their family during the credible fear screening as they 
would not be subject to the rebuttable presumption but their parents 
could be.
    Although accompanied children remain subject to the rebuttable 
presumption generally, the Departments have determined that the 
presumption should not apply to them in any application for asylum they 
file after the two-year period, but only if they apply as a principal 
(as opposed to a derivative) applicant. The Departments believe this 
exception to the general applicability provision balances the interest 
in ensuring the rebuttable presumption has an impact on behavior, while 
at the same time recognizing the special circumstance of children who 
enter in a manner that triggers the rebuttable presumption, likely 
without intending to do so or being able to form an understanding of 
the consequences. Specifically, if the Departments were to extend this 
exception to all children after the two-year period, even if they 
applied only as a derivative, the Departments would risk incentivizing 
families to seek to prolong their proceedings to file their asylum 
applications after the two-year period expires, undermining the 
Departments' interest in efficient adjudications. In addition, any 
family that did so would be able to avoid the applicability of the 
presumption entirely, by virtue of the rule's family unity provision. 
The Departments have decided not to include such a broad exemption, in 
light of the urgent need to disincentivize a further surge in irregular 
migration.
3. Expansion of Applicability to Adjacent Coastal Borders
    As proposed in the NPRM, the rule would apply to certain 
noncitizens who enter the United States at the SWB--that is, ``along 
the entirety of the U.S. land border with Mexico.'' 88 FR at 11704 n.1. 
The Departments received comments that applying the rule only to those 
who enter the United States from Mexico across the U.S.-Mexico land 
border would inadvertently incentivize noncitizens without documents 
sufficient for lawful admission to circumvent the land border by making 
a hazardous attempt to reach the United States by sea. In this final 
rule, the Departments have decided to modify 8 CFR 208.33(a)(1) and 8 
CFR 1208.33(a)(1) to provide that the rule's rebuttable presumption of 
ineligibility for asylum applies to noncitizens who enter the United 
States from Mexico at ``adjacent coastal borders.'' The term ``adjacent 
coastal borders'' refers to any coastal border at or near the U.S.-
Mexico border. This modification therefore means that the rule's 
rebuttable presumption of ineligibility for asylum applies to 
noncitizens who enter the United States at such a border after 
traveling from Mexico and who have circumvented the U.S.-Mexico land 
border.
    This modification mirrors the geographic reach of the CDC's Title 
42 public health Order, which likewise applied--as relevant here--to 
certain covered noncitizens traveling from Mexico who would otherwise 
be introduced into a congregate setting ``at or near the U.S. land and 
adjacent coastal borders.'' See 86 FR at 42841. Because the Title 42 
public health Order did not define the phrase ``adjacent coastal 
borders,'' its meaning was developed during the public health Order's 
implementation. Specifically, as implemented by CBP, the term 
``adjacent coastal borders'' was interpreted to apply to the same 
population as the Amended CDC Order issued in May 2020, which first 
introduced the concept of ``coastal'' application. The Amended Order 
applied to ``persons traveling from Canada or Mexico (regardless of 
their country of origin) who would otherwise be introduced into a 
congregate setting in a land or coastal POE or Border Patrol station at 
or near the U.S. border with Canada or Mexico, subject to exceptions.'' 
\42\ With regard to persons traveling from Mexico, in line with the 
interpretation above, CBP implemented the Title 42 public health Order 
as covering any coastal border adjacent to the U.S.-Mexico border 
reached by an individual traveling from Mexico and landing within the 
United States having circumvented the U.S.-Mexico land border. Applying 
the same geographic reach that has been applied by CBP for the past 
three years to this rule will avoid the risk that smugglers would 
exploit what could be perceived as a new ``loophole'' following the 
lifting of the Title 42 public health Order to persuade migrants to 
make a perilous crossing to the United States from Mexico by sea. In 
DHS's experience, that risk may well materialize, as smugglers 
routinely prey on migrants using perceived changes in U.S. immigration 
law.\43\ Any such campaign by smugglers to persuade more migrants to 
circumvent the land border would result in life-threatening risks for 
migrants and DHS personnel, given the elevated danger associated with 
maritime crossings. As just one example of how dangerous such attempts 
can be, the Departments note that in March 2023, two suspected human 
smuggling boats from Mexico capsized and eight

[[Page 31321]]

people died off the coast near San Diego, California.\44\ This 
incident, as well as the increases in maritime migration over the past 
few years, as discussed further in Section V of this preamble, and 
commenters' concerns that the NPRM would have encouraged migration by 
sea, as discussed further in Section IV.B.8.i of this preamble, have 
led the Departments to extend the rebuttable presumption to the 
adjacent coastal borders. Specifically, in the interest of ensuring 
that this rule is not used to encourage intending migrants to undertake 
attempts that could end in similar tragedies, the Departments believe 
it is important that the text of 8 CFR 208.33(a)(1) and 8 CFR 
1208.33(a)(1) make clear that the rule's presumption applies equally to 
noncitizens who arrive from Mexico on coasts adjacent to the southwest 
land border.
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    \42\ See Amendment and Extension of Order Under Sections 362 and 
365 of the Public Service Act; Order Suspending Introduction of 
Certain Persons from Countries Where a Communicable Disease Exists, 
85 FR 31503 (May 26, 2020); CBP, CBP COVID-19 Response: Suspension 
of Entries and Imports Concept of Operations 1-3 (May 20, 2020), 
https://www.cbp.gov/document/foia-record/title-42.
    \43\ See Tech Transparency Project, Inside the World of 
Misinformation Targeting Migrants on Social Media (July 26, 2022), 
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of social 
media groups and pages identified by migrants showed . . . dubious 
offers of coyote or legal services, false claims about conditions 
along the route, misinformation about points of entry at which 
officials waive the rules, and baseless rumors about changes to 
immigration law.'').
    \44\ See Karen Kucher et al., 8 Reported Dead After 2 Suspected 
Smuggling Boats Crash at Black's Beach in San Diego, L.A. Times, 
Mar. 12, 2023, https://www.latimes.com/california/story/2023-03-12/8-reported-dead-after-2-suspected-smuggling-boats-crash-at-blacks-beach-in-san-diego; Wendy Fry, An Endless Fight: As Border 
Infrastructure on Land Improves, Smugglers Take to the Water, San 
Diego Tribune, Nov. 6, 2019, https://www.sandiegouniontribune.com/news/border-baja-california/story/2019-11-06/an-endless-fight-as-border-infrastructure-on-land-improves-smugglers-take-to-the-water.
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4. Clarification of Meaning of ``Final Decision''
    As was proposed in the NPRM, the rule excepts from the rebuttable 
presumption noncitizens who sought asylum or other protection in 
another country through which they traveled and received a ``final 
decision'' denying that application. See 8 CFR 208.33(a)(2)(ii)(C), 
1208.33(a)(2)(ii)(C). The Departments have amended this paragraph to 
further define what constitutes a ``final decision'' for the purposes 
of this exception. With this change, the final rule specifies that a 
``final decision includes any denial by a foreign government of the 
applicant's claim for asylum or other protection through one or more of 
that government's pathways for that claim.'' Id. The provision further 
states that a ``final decision does not include a determination by a 
foreign government that the noncitizen abandoned the claim.'' Id. The 
Departments have made this change in response to comments, as discussed 
below, and to provide clarity that a noncitizen must in fact pursue the 
claim since a denial based on abandonment would be insufficient.
5. Exception for Unaccompanied Children
    The NPRM provided that ``[u]naccompanied alien children, as defined 
in 6 U.S.C. 279(g)(2), are not subject to paragraph (a)(1) of this 
section.'' See 88 FR at 11750-51 (proposed 8 CFR 208.33(b), 
1208.33(b)). The Departments have modified the proposed language to 
explicitly state that this exception applies to noncitizens who were 
UCs at the time of entry.\45\ 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
---------------------------------------------------------------------------

    \45\ Numerous commenters recognized that the NPRM proposed an 
exception for UCs, but did not indicate a clear understanding of 
whether this exception applied to those who were UCs at the time of 
entry or at the time of adjudication.
---------------------------------------------------------------------------

    This added language makes clear that the UC exception aligns with 
other exceptions in this rule, which are based upon conditions at the 
time of a noncitizen's presentation at a POE, see 8 CFR 208.33(a)(2), 
1208.33(a)(2), and more closely aligns the regulatory text with the 
Departments' stated purpose in the NPRM that ``unaccompanied children 
would be categorically excepted from the rebuttable presumption,'' 88 
FR at 11724.
6. Expansion of Family Unity Provision
    The NPRM provided that where a principal applicant is eligible for 
statutory withholding of removal or CAT withholding and would be 
granted asylum but for the presumption, and where an accompanying 
spouse or child does not independently qualify for asylum or other 
protection from removal, the presumption shall be deemed rebutted as an 
exceptionally compelling circumstance. See 88 FR at 11752 (proposed 8 
CFR 1208.33(d)). Commenters raised concerns that excluding asylum 
applicants who travel without their families may inadvertently 
incentivize families to engage in irregular migration together so as 
not to risk that the principal applicant would be prevented from later 
applying for their family members to join them. This could involve 
making a dangerous journey with vulnerable family members, such as 
children. Accordingly, as discussed in Section IV.E.7.ii of this 
preamble, in response to these comments, the Departments have expanded 
the provision to also cover principal asylum applicants who have a 
spouse or child who would be eligible to follow to join that applicant 
as described in section 208(b)(3)(A) of the INA, 8 U.S.C. 
1158(b)(3)(A). See 8 CFR 1208.33(c).
7. Other Changes
    In addition to the changes this final rule makes to the NPRM 
detailed above, this final rule also makes other changes to the 
regulatory text set out in the NPRM.
    First, the Departments have reorganized and made other edits to 
proposed 8 CFR 208.33(a) and 1208.33(a) to improve clarity for 
noncitizens, counsel appearing before the Departments, other members of 
the public, and adjudicators. For example, the Departments added the 
exception for unaccompanied children to 8 CFR 208.33(a)(2)(i) and 
1208.33(a)(2)(i) rather than maintaining it as a standalone paragraph 
at 8 CFR 208.33(b) and 1208.33(b). Similarly, the Departments added 
headings and additional guideposts within 8 CFR 208.33(a) and 
1208.33(a). Second, the Departments revised 8 CFR 208.33 and 1208.33 to 
move instructions from 8 CFR 208.33 to 8 CFR 1208.33 regarding IJ 
review that are better placed in EOIR's regulations. For example, the 
Departments removed the sentence at proposed 8 CFR 208.33(c)(2)(ii) 
stating that noncitizens may apply for asylum, withholding of removal, 
and protection under the CAT in removal proceedings and included that 
at new 8 CFR 1208.33(b)(4). These revisions do not change the meaning 
of those provisions.

D. Rule Provisions

    The rule contains the following key provisions:
     The rule imposes a rebuttable presumption of ineligibility 
for asylum upon certain noncitizens who enter the United States from 
Mexico at the southwest land border or adjacent coastal borders without 
documents sufficient for lawful admission as described in INA 
212(a)(7), 8 U.S.C. 1182(a)(7). See 8 CFR 208.33(a)(1), 1208.33(a)(1). 
The rebuttable presumption applies to only those noncitizens whose 
entry was (1) between May 11, 2023 and May 11, 2025; (2) subsequent to 
the end of implementation of the Title 42 public health Order; and (3) 
after the noncitizen traveled through a country other than the 
noncitizen's country of citizenship, nationality, or, if stateless, 
last habitual residence, that is a party to 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'') or 1967 Protocol Relating to the 
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 
(``Refugee Protocol''). See 8 CFR 208.33(a)(1)(i) through (iii), 
1208.33(a)(1)(i) through (iii).

[[Page 31322]]

     The rule excepts from the rebuttable presumption any 
noncitizen who is an unaccompanied child as defined in 6 U.S.C. 
279(g)(2). See 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
     The rule also excepts from the rebuttable presumption a 
noncitizen if the noncitizen or a member of the noncitizen's family 
with whom the noncitizen is traveling (1) was provided appropriate 
authorization to travel to the United States to seek parole, pursuant 
to a DHS-approved parole process; (2) presented at a POE, pursuant to a 
pre-scheduled time and place, or presented at a POE without a pre-
scheduled time and place, if the noncitizen demonstrates by a 
preponderance of the evidence that it was not possible to access or use 
the DHS scheduling system due to language barrier, illiteracy, 
significant technical failure, or other ongoing and serious obstacle; 
or (3) sought asylum or other protection in a country through which the 
noncitizen traveled and received a final decision denying that 
application. See id. 208.33(a)(2)(ii), 1208.33(a)(2)(ii).
     The rule allows a noncitizen to rebut the presumption by 
demonstrating by a preponderance of the evidence that exceptionally 
compelling circumstances exist. A noncitizen necessarily rebuts the 
presumption if they demonstrate by a preponderance of the evidence that 
the noncitizen, or a member of the noncitizen's family with whom the 
noncitizen is traveling, (1) faced an acute medical emergency; (2) 
faced an imminent and extreme threat to life or safety, such as an 
imminent threat of rape, kidnapping, torture, or murder; or (3) 
satisfied the definition of ``victim of a severe form of trafficking in 
persons'' provided in 8 CFR 214.11(a). See id. 208.33(a)(3), 
1208.33(a)(3). In addition, as a measure to ensure family unity, the 
rule provides that in removal proceedings pursuant to section 240 of 
the INA, 8 U.S.C. 1229a (``section 240 removal proceedings''), where a 
principal asylum applicant is eligible for statutory withholding of 
removal or CAT withholding and would be granted asylum but for the 
rebuttable presumption, and where an accompanying spouse or child does 
not independently qualify for asylum or other protection from removal 
or where the principal asylum applicant has a spouse or child who would 
be eligible to follow to join them if they are granted asylum, as 
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), 
the presumption is deemed rebutted as an exceptionally compelling 
circumstance. See 8 CFR 1208.33(c).
     The rule establishes procedures, applicable in the 
expedited removal context, under which AOs will determine whether the 
noncitizen has made a sufficient showing that the rebuttable 
presumption does not apply or that they meet an exception to or can 
rebut the presumption. See id. 208.33(b). If the AO determines that the 
rebuttable presumption does not apply or the noncitizen falls within an 
exception or has rebutted the presumption, the general procedures in 8 
CFR 208.30 apply. See id. 208.33(b)(1)(ii). On the other hand, if the 
AO determines that the rebuttable presumption does apply and no 
exception or rebuttal ground applies, the AO will consider whether the 
noncitizen has established a reasonable possibility of persecution or 
torture with respect to the identified country or countries of removal. 
See id. 208.33(b)(1)(i), 208.33(b)(2).
     The rule provides that an AO's adverse determination as to 
the applicability of the rebuttable presumption, whether an exception 
applies or the presumption has been rebutted, and whether the 
noncitizen has established a reasonable possibility of persecution or 
torture, are all subject to de novo IJ review. See id. 
208.33(b)(2)(iii) through (v), 1208.33(b). The noncitizen must request 
such review by so indicating on a Record of Negative Fear Finding and 
Request for Review by Immigration Judge. See id. 208.33(b)(2)(iv) and 
(v), 1208.33(b)(1).
     The rule establishes procedures for such IJ review. 
Specifically, if the IJ determines that the noncitizen has made a 
sufficient showing that the rebuttable presumption does not apply to 
them or that they meet an exception to or can rebut the presumption, 
and that the noncitizen has established a significant possibility of 
eligibility for asylum, statutory withholding of removal, or CAT 
withholding, the IJ issues a positive credible fear finding and the 
case proceeds under existing procedures at 8 CFR 1208.30(g)(2)(iv)(B). 
See id. 208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that 
the rebuttable presumption applies and has not been rebutted and no 
exception is applicable, but the noncitizen has established a 
reasonable possibility of persecution or torture with respect to the 
identified country or countries of removal, the IJ will issue a 
positive credible fear finding and DHS will issue a Form I-862, Notice 
to Appear, to commence section 240 removal proceedings. See id. 
208.33(b)(2)(v)(B), 1208.33(b)(2)(ii). And finally, if the IJ issues a 
negative credible fear determination, the case is returned to DHS for 
removal of the noncitizen. See id. 208.33(b)(2)(v)(C), 
1208.33(b)(2)(ii). In such a circumstance, the noncitizen may not 
appeal the IJ's decision or request that U.S. Citizenship and 
Immigration Services (``USCIS'') reconsider the AO's negative 
determination, although USCIS may, in its sole discretion, reconsider a 
negative determination. See id. 208.33(b)(2)(v)(C).
     The rule provides that a noncitizen who is found to be 
subject to the lawful pathways condition during expedited removal 
proceedings may, if placed in section 240 removal proceedings, apply 
for asylum, statutory withholding of removal, or CAT protection, or any 
other form of relief or protection for which the noncitizen is eligible 
during those removal proceedings. See id. 1208.33(b)(4).
     The rule declines to adopt the Proclamation Bar IFR on a 
permanent basis and removes the language effectuating the Proclamation 
Bar. Specifically, the rule removes and reserves paragraphs 8 CFR 
208.13(c)(3) and 1208.13(c)(3), which previously included the 
requirements for the bar's applicability.
     The rule removes regulatory provisions implementing the 
TCT Bar Final Rule. The rule removes and reserves paragraphs 8 CFR 
208.13(c)(4) and 1208.13(c)(4), which previously included the 
requirements for the TCT Bar Final Rule's applicability. The rule also 
removes and reserves paragraphs 8 CFR 208.13(c)(5) and 1208.13(c)(5), 
which provided that determinations made with regard to whether an 
applicant met one of the exceptions to the TCT Bar Final Rule would not 
bind Federal departments or agencies with respect to certain later 
adjudications. Given the removal of the TCT Bar Final Rule and its 
implementing provisions, these provisions are no longer necessary.
     The rule also amends the CFR to remove provisions 
implementing the Proclamation Bar IFR and TCT Bar Final Rule during the 
credible fear process. The rule removes 8 CFR 208.30(e)(5)(ii) and 
(iii), which implemented the Proclamation Bar IFR and TCT Bar Final 
Rule, respectively. The rule also removes reference to (ii) though (iv) 
from what was previously (i) and redesignates (i) as (e)(5). Similarly, 
the rule also amends provisions relating to IJ standard of review for 
Proclamation Bar and TCT Bar determinations by removing 8 CFR 
1003.42(d)(2) and (3), and redesignates 8 CFR 1003.42(d)(1) as 
paragraph (d). Finally, the rule removes and reserves 8 CFR 
1208.30(g)(1), which provided instructions to IJs regarding the 
application of the Proclamation Bar

[[Page 31323]]

and the TCT Bar during credible fear reviews.
     The rule contains a special provision providing that the 
rebuttable presumption does not apply to an asylum application filed 
after May 11, 2025, if the noncitizen was under the age of 18 at the 
time of entry, and the noncitizen is applying for asylum as a principal 
applicant. See id. 208.33(c)(2), 1208.33(d)(2).
     The rule contains a severability clause reflecting the 
Departments' intention that the rule's provisions be severable from 
each other in the event that any aspect of the new provisions governing 
the rebuttable presumption is held to be invalid or unenforceable by 
its terms, or as applied to any person or circumstance. See id. 
208.33(d), 1208.33(e).

III. Legal Authority

    The Secretary and the Attorney General jointly issue this rule 
pursuant to their shared and respective authorities concerning asylum, 
statutory withholding of removal, and CAT determinations. The Homeland 
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as 
amended, created DHS and transferred to it many functions related to 
the administration and enforcement of Federal immigration law while 
maintaining many functions and authorities with the Attorney General, 
including concurrently with the Secretary.
    The INA, as amended by the HSA, charges the Secretary ``with the 
administration and enforcement of [the INA] and all other laws relating 
to the immigration and naturalization of aliens,'' except insofar as 
those laws assign functions to other agencies. INA 103(a)(1), 8 U.S.C. 
1103(a)(1). The INA also grants the Secretary the authority to 
establish regulations and take other actions ``necessary for carrying 
out'' the Secretary's authority under the immigration laws, INA 
103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6 U.S.C. 202.
    The HSA charges the Attorney General with ``such authorities and 
functions under [the INA] and all other laws relating to the 
immigration and naturalization of aliens as were [previously] exercised 
by the Executive Office for Immigration Review, or by the Attorney 
General with respect to [EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1); 
see also 6 U.S.C. 521. In addition, under the HSA, the Attorney General 
retains authority to ``establish such regulations, . . . issue such 
instructions, review such administrative determinations in immigration 
proceedings, delegate such authority, and perform such other acts as 
the Attorney General determines to be necessary for carrying out'' his 
authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2).
    Under the HSA, the Attorney General retains authority over the 
conduct of section 240 removal proceedings. These adjudications are 
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g), 8 
U.S.C. 1103(g). With limited exceptions, IJs within DOJ adjudicate 
asylum, statutory withholding of removal, and CAT protection 
applications filed by noncitizens during the pendency of section 240 
removal proceedings, including asylum applications referred by USCIS to 
the immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 
240(a)(1), 8 U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 
CFR 1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532, 
536-37 (7th Cir. 2018) (describing affirmative and defensive asylum 
processes). The Board of Immigration Appeals (``BIA''), also within 
DOJ, in turn hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1) 
and (b)(3); see also Garland v. Ming Dai, 141 S. Ct. 1669, 1677-78 
(2021) (describing appeals from IJ to BIA). In addition, the INA 
provides that the ``determination and ruling by the Attorney General 
with respect to all questions of law shall be controlling.'' INA 
103(a)(1), 8 U.S.C. 1103(a)(1).
    In addition to the separate authorities discussed above, the 
Attorney General and the Secretary share some authorities. Section 208 
of the INA, 8 U.S.C. 1158, authorizes the ``Secretary of Homeland 
Security or the Attorney General'' to ``grant asylum'' to a noncitizen 
``who has applied for asylum in accordance with the requirements and 
procedures established by'' the Secretary or the Attorney General under 
section 208 if the Secretary or the Attorney General determines that 
the noncitizen is a refugee. INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). 
Section 208 thereby authorizes the Secretary and the Attorney General 
to ``establish[ ]'' ``requirements and procedures'' to govern asylum 
applications. Id. The statute further authorizes them to ``establish,'' 
``by regulation,'' ``additional limitations and conditions, consistent 
with'' section 208, under which a noncitizen ``shall be ineligible for 
asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also INA 
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the 
Attorney General to ``provide by regulation for any other conditions or 
limitations on the consideration of an application for asylum not 
inconsistent with [the INA]'').\46\ The INA also provides the Secretary 
and Attorney General authority to publish regulatory amendments 
governing their respective roles regarding apprehension, inspection and 
admission, detention and removal, withholding of removal, deferral of 
removal, and release of noncitizens encountered in the interior of the 
United States or at or between POEs. See INA 235, 236, 241, 8 U.S.C. 
1225, 1226, 1231.
---------------------------------------------------------------------------

    \46\ Under the HSA, the references to the ``Attorney General'' 
in the INA also 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. 6 U.S.C. 557.
---------------------------------------------------------------------------

    The HSA granted DHS the authority to adjudicate asylum applications 
and to conduct credible fear interviews, make credible fear 
determinations in the context of expedited removal, and to establish 
procedures for further consideration of asylum applications after an 
individual is found to have a credible fear. INA 235(b)(1)(B), 8 U.S.C. 
1225(b)(1)(B); see also 6 U.S.C. 271(b) (providing for the transfer of 
adjudication of asylum and refugee applications from the Commissioner 
of Immigration and Naturalization to the Director of the Bureau of 
Citizenship and Immigration Services, now USCIS). Within DHS, the 
Secretary has delegated some of those authorities to the Director of 
USCIS, and USCIS AOs conduct credible fear interviews, make credible 
fear determinations, and determine whether a noncitizen's asylum 
application should be granted. See DHS, Delegation to the Bureau of 
Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); 8 CFR 
208.2(a), 208.9, 208.30.
    The United States is a party to the Refugee Protocol, which 
incorporates Articles 2 through 34 of the Refugee Convention. Article 
33 of the Refugee Convention generally prohibits parties to the 
Convention from expelling or returning (``refouler'') ``a refugee in 
any manner whatsoever to the frontiers of territories where his life or 
freedom would be threatened on account of his race, religion, 
nationality, membership of a particular social group or political 
opinion.'' 120%
    Congress codified these obligations in the Refugee Act of 1980, 
creating the precursor to what is now known as statutory withholding of 
removal.\47\ The Supreme Court has long recognized that the United 
States implements its non-refoulement obligations under Article 33 of 
the Refugee Convention (via the

[[Page 31324]]

Refugee Protocol) through the statutory withholding of removal 
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which 
provides that a noncitizen may not be removed to a country where their 
life or freedom would be threatened on account of one of the protected 
grounds listed in Article 33 of the Refugee Convention.\48\ See INA 
241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA 
also authorizes the Secretary and the Attorney General to implement 
statutory withholding of removal under section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3). See INA 103(a)(1) and (3), (g)(1) and (2), 8 U.S.C. 
1103(a)(1) and (3), (g)(1) and (2).
---------------------------------------------------------------------------

    \47\ Public Law 96-212, 94 Stat. 102 (``Refugee Act'').
    \48\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999); 
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987) 
(distinguishing between Article 33's non-refoulement prohibition, 
which aligns with what was then called withholding of deportation 
and Article 34's call to ``facilitate the assimilation and 
naturalization of refugees,'' which the Court found aligned with the 
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158). 
The Refugee Convention and Protocol are not self-executing. E.g., 
Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967 
Protocol is not self-executing, nor does it confer any rights beyond 
those granted by implementing domestic legislation.'').
---------------------------------------------------------------------------

    The Departments also have authority to implement Article 3 of the 
United Nations Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 
100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 
1994). The Foreign Affairs Reform and Restructuring Act of 1998 
(``FARRA'') provides the Departments with the authority to ``prescribe 
regulations to implement the obligations of the United States under 
Article 3 of the [CAT], subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention.'' Public Law 105-277, 
div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 1231 note). 
DHS and DOJ have implemented the United States' obligations under 
Article 3 of the CAT in the CFR, consistent with FARRA. See, e.g., 8 
CFR 208.16(c) through 208.18, 1208.16(c) through 1208.18; Regulations 
Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), 
as corrected by 64 FR 13881 (Mar. 23, 1999).
    This rule does not change the eligibility requirements for 
statutory withholding of removal or CAT protection. As further 
discussed below, the rule applies a ``reasonable possibility'' standard 
in screenings for statutory withholding of removal and CAT protection 
in cases where the presumption of asylum ineligibility is applied and 
not rebutted. While the application of this standard is a change from 
the prior practice in the expedited removal context, it is the same 
standard used in protection screenings in other contexts and is 
consistent with both domestic and international law. See 8 CFR 208.31.

IV. Public Comments and Responses

    The Departments received 51,952 comments on the proposed rule, the 
majority of which expressed opposition to the proposal. A range of 
governmental and non-governmental entities, public officials, and 
private persons submitted comments. The Departments summarize and 
respond to the public comments below.

A. General Support

1. General Support
    Comment: Many commenters stated their support for the rule overall. 
Commenters emphasized the importance of border security, stating that 
the Government must do what is necessary to both manage workloads at 
the border and stop migrants from entering the United States without 
permission.
    Response: Promulgation of this rule is needed because, once the 
Title 42 public health Order is lifted, the number of migrants 
traveling to the United States without authorization is expected to 
increase significantly, to a level that risks undermining the 
Departments' ability to safely, effectively, and humanely enforce and 
administer U.S. immigration law, including the asylum system. Such a 
surge would also place additional pressure on States, local 
communities, and non-governmental organization (``NGO'') partners both 
along the border and in the interior of the United States.
    To address these issues, the rule imposes a rebuttable presumption 
of asylum ineligibility for certain migrants who enter the United 
States outside of safe, orderly, and lawful pathways and without first 
seeking protection in a third country they have traveled through en 
route to the SWB, during a designated period of time. The rule (1) 
incentivizes the use of multiple existing lawful, safe, and orderly 
means for noncitizens to enter the United States to seek asylum and 
other forms of protection; (2) continues to provide core protections 
for noncitizens who would be threatened with persecution or torture in 
other countries; and (3) builds upon ongoing efforts to share the 
responsibility of providing asylum and other forms of protection to 
deserving migrants with the United States' regional partners.
    The successful implementation of the CHNV parole processes has 
demonstrated that an increase in lawful pathways, when paired with 
consequences for migrants who do not avail themselves of such pathways, 
can incentivize the use of such pathways and undermine transnational 
criminal organizations, such as smuggling operations. The rule, which 
is fully consistent with domestic and international legal obligations, 
provides the necessary consequences to maintain this incentive under 
Title 8 authorities. In short, the Departments expect the rule, coupled 
with an expansion of lawful, safe, and orderly pathways, to reduce the 
number of noncitizens seeking to cross the SWB without authorization to 
enter the United States.
    The benefits of reducing the number of encounters include 
protecting against overcrowding in border facilities; allowing for the 
continued effective, humane, and efficient processing of noncitizens at 
and between ports of entry; and helping to reduce reliance on dangerous 
human smuggling networks that exploit migrants for financial gain. Even 
where the rule applies, the presumption against asylum eligibility may 
be rebutted in certain circumstances, such as where, at the time of the 
noncitizen's entry into the United States, they or a family member with 
whom they are traveling are experiencing an acute medical emergency or 
an extreme and imminent threat to life or safety, or are a victim of a 
severe form of trafficking. Moreover, DHS will still screen migrants 
who cannot overcome the rebuttable presumption to determine if the 
migrant has established a reasonable possibility of persecution for the 
purposes of statutory withholding of removal or a reasonable 
possibility of torture for the purposes of protection under the 
regulations implementing the CAT. See 8 CFR 208.33(b)(2)(i). Should a 
migrant receive a negative credible fear determination, they can also 
seek review of the determination by an IJ. See 8 CFR 208.33(b)(2)(iii) 
through (v). Those who are found to have credible fear due to a 
reasonable possibility of persecution or torture will then have the 
opportunity for further consideration of their protection claims via a 
section 240 removal proceeding. See 8 CFR 208.33(b)(2)(ii).
2. Need, Effectiveness, and Rationale for the Rule
    Comment: Commenters described the rule as a common-sense approach 
to managing migration at the border and

[[Page 31325]]

discouraging illegal migration, while others stated that the rule would 
contribute to the ``rule of law'' at the border. Other commenters noted 
that a change such as that made by this rule is necessary, as it is 
simply impossible to admit all migrants who want to enter the United 
States. Some commenters stated that the rule is a reasonable solution 
until Congress can take legislative action to address the issue. Other 
commenters supported the rule's encouragement for migrants to first 
seek protection in third countries they pass through before requesting 
asylum at the SWB and asserted that such a requirement is standard in 
international law; commenters further stated that the rule would 
discourage ``asylum shoppers.'' Commenters stated that allowing 
migrants to cross multiple countries en route to the United States 
before claiming asylum defeats the true purpose of asylum. Some 
commenters stated that migrants know that claiming asylum allows them 
entry into the United States, and thus take advantage of the process.
    Response: As noted above, the Departments have designed this rule 
in response to the number of migrants expected to travel without 
authorization to the United States after the lifting of the Title 42 
public health Order, absent a policy change such as this one. In that 
case, the circumstances likely to occur include the following: an 
additional number of migrants anticipated to arrive at the border; the 
severe strain on resources that this influx of migrants would cause 
DHS; and a substantial resulting impact on U.S. Government operations, 
as well as local communities. DHS's successful Uniting for Ukraine 
(``U4U'') and CHNV parole processes--under which DHS coupled a 
mechanism for noncitizens from these countries to seek entry to the 
United States in a lawful, safe, and orderly manner with the imposition 
of new consequences for those who cross the SWB without authorization--
have demonstrated that an increase in the availability of lawful 
pathways paired with consequences for migrants who do not avail 
themselves of such pathways can incentivize the use of lawful pathways 
and undermine transnational criminal organizations, such as smuggling 
operations. The Departments expect similar benefits from this rule, 
especially a reduced number of encounters at the border, which will 
help to protect against overcrowding in border facilities; allow for 
the continued effective, humane, and efficient processing of 
noncitizens at and between ports of entry; and reduce reliance on 
dangerous human smuggling networks that exploit migrants for financial 
gain.
    The Departments designed the rule to strike a balance that 
maintains safe and humane processing of migrants while also including 
safeguards to protect especially vulnerable individuals. The rule 
provides exceptions to the rebuttable presumption and allows migrants 
to rebut the presumption in exceptionally compelling circumstances. 
These exceptions and opportunities for rebuttal are meant to ensure 
that migrants who are particularly vulnerable, who are in imminent 
danger, or who could not access the lawful pathways provided are not 
made ineligible for asylum by operation of the rebuttable presumption. 
Those who are not excepted from and are unable to rebut the presumption 
of ineligibility may still pursue statutory withholding of removal and 
protection under the CAT. In addition, to further aid migrants, the 
Departments plan to continue to work with foreign partners to expand 
lawful pathways for migration, as well as expand the Departments' 
mechanisms for lawful processing. Thus, the rule will disincentivize 
irregular migration and instead incentivize migrants--including those 
intending to seek asylum--to use lawful, safe, and orderly pathways to 
enter the United States, or seek asylum or other protection in another 
country through which they travel.
3. Mitigate Irregular Migration and the Associated Impacts
    Comment: Many commenters expressed support for the rule for a 
variety of reasons. Commenters supported the change in policy, noting 
that this rule would result in a more efficient use of government 
resources at the border. Commenters also supported the proposed rule's 
use of a formal process for asylum applicants. Some commenters stated 
their support for the rule because the journey to the SWB is dangerous 
due to harsh conditions and smugglers, and this rule would weaken 
smugglers and transnational criminal enterprises and reduce their 
exploitation of migrants. Commenters also stated that incentivizing 
migrants to present themselves at POEs would reduce their risk of 
exploitation by human traffickers or other harm when attempting to 
cross between POEs. Commenters commended the Departments for 
prioritizing safe and orderly processing methods for those seeking 
refuge. Some commenters indicated that border security is critical and 
expressed concerns that malicious actors could enter the United States 
more easily during a surge in migration.
    Response: The Departments recognize these commenters' support for 
the rule and agree that maintaining border security is critical. The 
Departments agree that irregular migration is dangerous and can lead to 
increased strain on SWB operations and resources, increased illegal 
smuggling activity, and increased pressure on communities along the 
SWB. The United States has taken several measures to meet the influx of 
migrants crossing the SWB and is taking new steps to address increased 
flows throughout the Western Hemisphere.\49\
---------------------------------------------------------------------------

    \49\ See DHS, New Actions to Manage Regional Migration (Apr. 27, 
2023).
---------------------------------------------------------------------------

    However, the anticipated increase in the number of migrants 
following the lifting of the Title 42 public health Order threatens to 
exceed the Departments' capacity to safely and humanely process 
migrants. By coupling the rule with additional lawful pathways and 
allowing migrants to schedule their arrival at a SWB POE, currently via 
the CBP One app, the rule will reduce the number of noncitizens seeking 
to cross the SWB without authorization to enter the United States. This 
reduction will protect against overcrowding in border facilities; allow 
for the continued effective, humane, and efficient processing of 
noncitizens at and between ports of entry; and help to reduce reliance 
on dangerous human smuggling networks that exploit migrants for 
financial gain. The Departments expect that this rule will result in 
decreased strain on border states, local communities, and NGOs and, 
accordingly, allow them to better absorb releases from CBP border 
facilities and provide support to the migrant community. Ultimately, 
this rule will disincentivize irregular migration and instead 
incentivize migrants to use safe, orderly, and lawful pathways to the 
United States or to seek protection in third countries.
4. Positive Impacts on Operations and Resources
    Comment: Commenters supported the rule, stating that allowing 
migrants to remain in the United States at the government's expense 
while waiting for their asylum claim to be adjudicated is a waste of 
government resources. Commenters said that the rule--specifically when 
coupled with the expanded use of the CBP One app and the ability for 
migrants to schedule appointments--would allow for more efficient 
processing at the SWB. Commenters stated that, by decreasing

[[Page 31326]]

the number of migrants seeking asylum, the Departments would adjudicate 
asylum claims much faster and decrease the amount of time migrants must 
wait in the United States before receiving a final decision in their 
case.
    Response: The Departments recognize these commenters' support and 
agree that the rule will have benefits for both those granted asylum 
and the U.S. immigration system. The rule encourages noncitizens to use 
lawful, safe, and orderly pathways to enter the United States, or seek 
asylum or other protection in another country through which they 
travel. The rule is designed to channel the high numbers of migrants 
expected to seek protection in the United States following the 
termination of the Title 42 public health Order into lawful, safe, and 
orderly pathways and ensure they can be processed in an effective, 
humane, and efficient manner. In addition, the Departments anticipate 
that the use of the CBP One app--the current scheduling mechanism that 
provides migrants with a means to schedule a time and place to present 
themselves at a SWB POE--will allow CBP to streamline the processing of 
noncitizens at POEs on the SWB and process significantly more 
individuals in a safe and orderly manner.
    Adjudication on the merits of an asylum claim for those who 
establish credible fear and are placed into removal proceedings can be 
a long process. Thirty-eight percent of all noncitizens who entered 
along the SWB, received a positive credible fear determination, and 
were placed into proceedings before EOIR between FY 2014 and FY 2019 
remained in EOIR proceedings as of December 31, 2022.\50\ Further, 
almost half (47 percent) of those in EOIR cases who received positive 
credible fear determinations resulting from FY 2019 encounters 
(referrals to EOIR) remained in proceedings as of December 31, 
2022.\51\ Excluding in absentia orders, the mean completion time for 
EOIR cases in FY 2022 was 3.7 years.\52\ Thus, those who have a valid 
claim to asylum in the United States often wait years for a final 
relief or protection decision; likewise, noncitizens who will 
ultimately be found ineligible for asylum or other protection--which 
occurs in the majority of cases--often have spent many years in the 
United States prior to being ordered removed.
---------------------------------------------------------------------------

    \50\ See OIS analysis of OIS Enforcement Lifecycle data based on 
data through December 31, 2022.
    \51\ Id.
    \52\ See OIS analysis of DOJ EOIR data based on data through 
March 31, 2023.
---------------------------------------------------------------------------

    This lengthy adjudications process means that migrants who can 
establish credible fear can expect to remain in the United States for 
an extended period regardless of whether they will ultimately obtain 
asylum status at an EOIR hearing on the merits. Allowing a migrant to 
remain in the United States for years before ultimately determining the 
migrant is ineligible for asylum or other protection is inefficient, 
risks creating a pull factor for other intending migrants, and runs 
counter to principles of judicial fairness, including the swift 
adjudication of claims. As discussed in the NPRM, see 88 FR at 11737, 
and below at Section IV.B.2 of this preamble, the Departments have 
determined that this rule will lead to increased efficiencies in the 
asylum adjudications process so that claims can be adjudicated without 
a lengthy delay.
5. Other Support
    Comment: Commenters agreed that the Departments have the legal 
authority to restrict asylum eligibility based on a migrant's failure 
to seek protection in a third country that they have traveled through 
on route to the SWB and that such a policy is consistent with both 
domestic and international law. Commenters stated that the rule was 
necessary because most migrants do not have legitimate asylum claims, 
noting low grant rates by EOIR, and are instead seeking economic 
opportunities in the United States. Other commenters expressed general 
support for the rule and stated a belief that asylum seekers do not 
have legitimate claims because they may be coached by NGOs or other 
organizations.At least one commenter stated that if a migrant traveled 
through a third country with a legitimate asylum process on their way 
to the United States, DHS should assume that the migrant is not really 
in fear for their life; otherwise, the U.S. asylum system would be used 
for economic migration, the demand for which should be addressed by 
other means. Another commenter said that the proposed rule encourages 
asylum-seekers to use the ``front door'' by presenting at POEs and 
fulfills domestic and international legal obligations by removing 
eligibility for asylum for those who fail to do so while maintaining 
access to statutory withholding of removal and protection under the 
CAT. The commenter noted that countries are within their rights to 
limit access to asylum. The commenter also stated that many individuals 
are barred from asylum eligibility for reasons such as fraud, criminal 
convictions, and illegal reentry, and that the proposed rule would add 
those who do not avail themselves of asylum in the nearest country and 
do not apply at a POE to this list, which should limit further unlawful 
entries and use of government resources. Some commenters supported the 
rule and suggested that the Government disseminate information about 
the rule in other countries to ensure migrants planning to seek asylum 
are aware of both the asylum process and the consequences of non-
compliance.
    Response: As discussed further below in Section IV.B.D, the 
Departments agree that the rule is consistent with U.S. obligations 
under both domestic and international law, including the INA; the 
Refugee Convention; the Refugee Protocol, which incorporates Articles 2 
through 34 of the Refugee Convention; and the CAT. While the 
Departments appreciate these commenters' support for the rule, the 
Departments emphasize that this rule is necessary to prevent the 
expected increase in the number of migrants who would otherwise seek to 
travel without authorization to the United States after the termination 
of the Title 42 public health Order, which would risk undermining the 
Departments' ability to safely, effectively, and humanely enforce and 
administer U.S. immigration law, including the asylum system. In other 
words, the Departments do not rely on the alternative goals or bases of 
support for the rule expressed in the comments summarized above.
    The Departments appreciate the importance of disseminating 
information about the rule to the public, including intending migrants, 
and are planning a robust communication effort in conjunction with and 
immediately following the publication of this rule.

B. General Opposition

1. General Opposition
    Comment: The Departments received many comments expressing general 
opposition to the rule. Some commenters expressed opposition to the 
rule and encouraged the Administration to withdraw it, without further 
explanation. Commenters also stated, without explanation, that the rule 
would allow future administrations the ability to decide which 
nationalities are afforded protections, instead of making protections 
available for everyone in need. Other commenters stated the rule 
creates barriers, not pathways, for asylum seekers.
    Response: The Departments take seriously the concerns expressed by 
commenters who generally oppose the rule. Because some of these 
comments failed to articulate specific reasoning underlying the general 
opposition, the

[[Page 31327]]

Departments are unable to provide a more detailed response to those 
comments. In general, the Departments emphasize that this rule is 
necessary to ensure that, after the lifting of the Title 42 public 
health Order, protection claims made by noncitizens encountered at the 
SWB can be processed in a manner that is effective, humane, and 
efficient. The rule is also designed to reduce overcrowding at DHS 
facilities and reduce migrants' reliance on exploitive smuggling 
networks. The Departments intend this rule to work in conjunction with 
other initiatives that expand lawful pathways to enter the United 
States, and thereby incentivize safe, orderly, lawful migration over 
dangerous, irregular forms of migration. Although some lawful pathways, 
which exist separate from this rule, are available only to particular 
nationalities, this rule does not deny protection on the basis of 
nationality. A noncitizen of any nationality may avoid the rebuttable 
presumption by, for instance, presenting at a POE pursuant to a pre-
scheduled time and place. As discussed in the NPRM and further below, 
the rule's presumption against asylum eligibility only applies to those 
who enter during a 2-year period, is rebuttable, and contains multiple 
exceptions to prevent undue harm to noncitizens with meritorious 
protection claims.
2. Need, Effectiveness, and Rationale for the Rule
    Comment: Commenters asserted that the Departments' concerns about a 
future surge of migration after the end of the Title 42 public health 
Order are speculative and unsupported. One commenter said that the 
surge numbers were unreliable at best, that entries between POEs were 
higher two decades ago, and that the surge could in part be the result 
of attempted suppression of normal migration. Some commenters 
questioned the Departments' planning projection of the number of border 
encounters it expects when the Title 42 public health Order is lifted 
as a valid justification of the NPRM. Another commenter stated that the 
numbers of unauthorized unique individuals detained at the border are 
far from an all-time high or a record, and that attempts to enter the 
country undetected have plummeted. One commenter stated that the Title 
42 public health Order increased the percentage of individuals 
attempting repeated crossings at the border, which has artificially 
inflated CBP's border apprehension statistics, and thereby overstated 
the scale of the problem at the border. Some commenters stated that the 
public is unable to properly evaluate the Departments' data used to 
justify the rule because the ``DHS SWB Encounter Planning Model 
generated January 6, 2023'' cited in the NPRM, e.g., 88 FR at 11705 
n.11, does not have a link to the model and it does not provide 
information on methodology, data sources, and alternative figures.
    Response: The Departments strongly disagree that the concerns 
stated in the NPRM regarding an ongoing and potential further surge of 
migration are speculative or unsupported. As noted in the NPRM, for the 
30 days ending December 24, 2022, total daily encounters along the SWB 
consistently fluctuated between approximately 7,100 and 9,700 per day, 
averaging approximately 8,500 per day, with encounters exceeding 9,000 
per day on 12 different occasions during this 30-day stretch.\53\ 88 FR 
at 11704-05. While commenters are correct that the Title 42 public 
health Order has increased the percentage of repeat crossing attempts 
relative to the 2010s, since 2022 over 97 percent of extra-regional 
migrants (i.e., migrants not from Mexico or Northern Central America 
\54\)--the people representing the greatest processing challenge--are 
unique encounters.\55\ Encounter totals reached an all-time high in FY 
2022, and they remain at historically high levels even as encounters of 
CHNV nationals have fallen in recent months.\56\
---------------------------------------------------------------------------

    \53\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \54\ Northern Central America refers to El Salvador, Guatemala, 
and Honduras.
    \55\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \56\ Concrete data on unique versus repeat encounters are only 
available since 2010. During that period, for the years prior to the 
implementation of Title 42 expulsions, the percentage of encounters 
that were unique increased each year from 2010-2019. OIS analysis of 
OIS Persist Dataset based on data through March 31, 2023. While 
specific data on numbers of unique encounters are not available 
prior to 2010, it is widely accepted that the years before the 2010, 
and particularly the years before 2000, were characterized by much 
larger numbers of repeat encounters, as most encounters were of 
Mexican nationals who were permitted to return to Mexico without 
being subject to formal removal proceedings or other enforcement 
consequences. See also DHS, FY 2021 Border Security Metrics Report 
(Apr. 27, 2022), https://www.dhs.gov/immigration-statistics/border-security/border-security-metrics-report.
---------------------------------------------------------------------------

    OIS leads an interagency working group that produces a roughly bi-
weekly SWB encounter projection used for operational planning, policy 
development, and short-term budget planning. The model used to produce 
encounter projections every two to four weeks is a mixed-method 
approach that combines a statistical predictive model with subject 
matter expertise intended to provide informed estimates of future 
migration flow and trends. The mixed methods approach blends multiple 
types of models through an ensemble approach of model averaging.\57\ 
The model includes encounter data disaggregated by country and 
demographic characteristics going back to FY 2013, data on 
apprehensions of third country nationals by Mexican enforcement 
agencies, and economic data. DHS uses the encounter projection to 
generate a range of planning models, including ``moderately-high'' 
planning models that are based on the 68 percent upper bound of the 
forecast interval and ``high'' planning models based on the 95 percent 
upper bound of the forecast interval.
---------------------------------------------------------------------------

    \57\ Blending multiple models and basing predictions on prior 
data has been understood to improve modeling accuracy. See, e.g., 
Spyros Makridakis et al., Forecasting in Social Settings: The State 
of the Art, 36 Int'l J. Forecasting 15, 16 (2020) (noting that it 
has ``stood the test of time [that] combining forecasts improves 
[forecast] accuracy''); The Forecasting Collaborative, Insights into 
the Accuracy of Social Scientists' Forecasts of Societal Change, 
Nat. Hum. Behaviour, Feb. 9, 2023, https://doi.org/10.1038/s41562-022-01517-1 (comparing forecasting methods and suggesting that 
forecasting teams may materially improve accuracy by, for instance, 
basing predictions on prior data and including scientific experts 
and multidisciplinary team members).
---------------------------------------------------------------------------

    Encounter projections are, of course, subject to some degree of 
uncertainty. International migration is an exceedingly complex process 
shaped by family and community networks, labor markets, environmental 
and security-related push factors, and rapidly evolving criminal 
smuggling networks, among other factors. Recent unprecedented changes 
in migration flows have further complicated the task of predicting 
future migration flows with precision. As recently as the 2000s, 
unauthorized migration to the SWB consisted almost entirely of single 
adults from Mexico.\58\ Families and UCs accounted for increasing 
shares of unauthorized migrants in the 2010s, as did migrants from 
Northern Central America; and ``extra-regional'' migrants have driven 
increased flows in the 2020s, accounting for an absolute majority of 
encounters in FY 2023

[[Page 31328]]

YTD.\59\ The OIS working group takes these recent changes in migration 
flows into account in preparing its roughly bi-weekly encounter 
projection models.
---------------------------------------------------------------------------

    \58\ According to historic OIS Yearbooks of Immigration 
Statistics, Mexican nationals accounted for 97 percent of all 
administrative arrests by the legacy Immigration and Nationality 
Service from 1981-1999. According to OIS Production data, Mexican 
nationals also accounted for 97 percent of SWB encounters from 2000-
2003. Mexico's share of SWB border encounters fell to 94 percent in 
2004, an all-time low, then averaged 91 percent for the remainder of 
the 2000s. OIS analysis of OIS Yearbook on Immigration Statistics, 
1981-1999; OIS Production Data, 2000-2009.
    \59\ Families and unaccompanied children accounted for an 
estimated 11 percent of SWB encounters in 2013, rising to 62 percent 
in 2019, and have averaged 30 percent from 2020 through March 2023. 
Data on unaccompanied children were first collected in 2008 and data 
on other family statuses were first collected in 2013, but not 
universally collected until 2016. Mexican nationals accounted for an 
average of 57 percent of SWB encounters from 2013-2015, fell to an 
all-time low of 24 percent in 2019 (when Northern Central Americans 
accounted for 64 percent of the total), and have averaged 35 percent 
of encounters from 2021 through March 2023. Extra regional nationals 
accounted for an average of 9 percent of SWB encounters from 2013-
2018, 12 percent from 2019-2020, and account for 52 percent in the 
first six months of FY 2023. OIS analysis of OIS Persist Dataset 
based on data through March 31, 2023.
---------------------------------------------------------------------------

    Demographic changes in migration flows have introduced new 
challenges in the field of border enforcement. For decades the 
challenge was to detect and interdict Mexican nationals seeking to 
evade detection and to return them to Mexico, which generally was 
cooperative in accepting back its nationals across the land border. 
Today's set of challenges is broader; the United States Government must 
humanely process family units and UCs and consider tens of thousands of 
asylum claims, granting relief or protection where appropriate and 
imposing enforcement consequences (such as removal or return, and in 
some cases criminal charges), all with limited processing resources and 
challenges relating to barriers to repatriations for nationals from 
certain countries. These changes have significant implications, 
requiring substantial resources from CBP, ICE, USCIS, EOIR, and HHS.
    An additional consideration in how the Departments utilize 
encounter projections for operational planning and budgeting is that it 
takes weeks or months to put new enforcement resources in place, while 
removing such resources takes much less time. For this reason, DHS 
generally must be conservative in its enforcement planning because the 
failure to have adequate resources in place at the start of a migration 
surge risks vicious cycles in which inadequate capacity to implement 
critically needed tools to disincentivize irregular migration, coupled 
with persistent and strong ``push factors,'' contribute to cascading 
adverse effects as the enforcement system becomes overwhelmed. Such 
effects include overcrowding in DHS facilities (which can endanger both 
migrants and DHS personnel), more noncitizens being released into the 
interior pending immigration proceedings, and additional flows of 
migrants. In the current context of added uncertainty in the encounter 
projection and evolving enforcement challenges, DHS focuses its 
operational planning efforts on the high and moderately-high planning 
models rather than planning for an optimistic scenario that could leave 
enforcement efforts badly under-resourced. As for this policymaking 
effort, the Departments believe the policies in this rule are justified 
``in light of the migration patterns witnessed in late November and 
December of 2022, and the concern about the possibility of a surge in 
irregular migration upon, or in anticipation of, the eventual lifting 
of the Title 42 public health Order.'' 88 FR at 11708.
    With respect to the suggestion that the Departments should have 
subjected the OIS planning model to more detailed review by commenters, 
the Departments respectfully disagree. In addition to the Departments' 
description of the planning model in the NPRM, see 88 FR at 11705 n.11, 
the Departments presented a range of the underlying data clearly 
demonstrating the scope of the problem the Departments face. See, e.g., 
88 FR at 11704-05 (``For the 30 days ending December 24, 2022, total 
daily encounters along the SWB consistently fluctuated between 
approximately 7,100 and 9,700 per day, averaging approximately 8,500 
per day, with encounters exceeding 9,000 per day on 12 different 
occasions during this 30-day stretch''); id. at 11708-14 (describing 
the historically unique nature of current migratory trends and the role 
of shifting demographics and other factors on these trends). Although 
the Departments did not describe the planning models in minute detail, 
the data make clear the basis for the proposed rule and no commenters 
submitted data suggesting that the Departments do not currently face, 
and will not imminently face, an urgent circumstance requiring a policy 
response.
    Comment: One commenter stated that concerns that NGOs and shelter 
networks have or are close to reaching their ``outer limit'' of 
capacity are unfounded, because according to the commenter, none of the 
$800 million newly allocated for humanitarian reception had been 
distributed as of the NPRM's publication in late February of this year. 
The commenter wrote that there are numerous ways that the 
Administration can work with Congress and NGO partners to continue to 
build shelter capacity and effectively respond to the needs of arriving 
migrants and asylum seekers. Similarly, a commenter noted that the 
Government pays private, for-profit detention facilities $320/day to 
detain noncitizens, but only pays shelters $25 for a single bed. The 
commenter wrote that they had been asking the Government for more than 
two years to provide more funding to shelters and increase cooperation 
with NGOs, to no avail.
    Response: The Departments acknowledge commenters' concerns about 
funds dedicated for NGOs and shelter networks as they work to respond 
to migratory flows and note that one expected effect of this rule is to 
disincentivize irregular migration, which may in turn result in reduced 
demand for certain NGO and shelter services. With respect to grant 
funding generally, as noted in the NPRM, the Federal Emergency 
Management Agency (``FEMA'') spent $260 million in FYs 2021 and 2022 on 
grants to non-governmental and state and local entities through the 
Emergency Food and Shelter Program--Humanitarian (``EFSP-H'') to assist 
migrants arriving at the SWB with shelter and transportation. See 88 FR 
at 11714. In November 2022, FEMA released $75 million through the 
program, consistent with the Continuing Appropriations and Ukraine 
Supplemental Appropriations Act, 2023.\60\ In addition, the Bipartisan 
Year-End Omnibus, which was enacted on December 29, 2022, directed CBP 
to transfer $800 million in funding to FEMA to support sheltering and 
related activities for noncitizens encountered by DHS. The Omnibus 
authorized FEMA to utilize this funding to establish a new Shelter and 
Services Program and to use a portion of the funding for the existing 
EFSP-H, until the Shelter and Services Program is established.\61\ On 
February 28, 2023, DHS announced a $350 million funding opportunity for 
EFSP-H.\62\ This is the first major portion of funding that is being 
allocated for humanitarian assistance under the Omnibus funding

[[Page 31329]]

approved in December.\63\ For the new Shelter and Services Program, 
FEMA and CBP have held several public listening sessions and are 
developing plans to release a Notice of Funding Opportunity prior to 
September 2023 for the second major portion of funding allocated by 
Omnibus to assist migrants encountered by DHS.
---------------------------------------------------------------------------

    \60\ Public Law 117-180, Division A, Sec. 101(6), Continuing 
Appropriations Act, 2023.
    \61\ Public Law 117-328, Division F, Title II, Security 
Enforcement, and Investigations, U.S. Customs and Border Protection, 
Operations and Support.
    \62\ See DHS, Press Release, The Department of Homeland Security 
Awards $350 Million for Humanitarian Assistance Through the 
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through; DHS Grant Opportunity DHS-
23-DAD-024-00-03, Fiscal Year 2023 Emergency Food and Shelter 
National Board Program--Humanitarian (EFSP) ($350M) (Feb. 28, 2023), 
https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460.
    \63\ DHS, Press Release, The Department of Homeland Security 
Awards $350 Million for Humanitarian Assistance Through the 
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through.
---------------------------------------------------------------------------

    The Departments emphasize that the reference to an ``outer limit'' 
in the NPRM was a prediction that the expected increase in migration at 
the border following the end of the Title 42 public health Order, 
without any other policy changes, could exceed the capacity of the 
Department of State, local governments, and NGOs to provide assistance 
to migrants. 88 FR at 11715. While commenters are correct that the $800 
million in funding approved in the recent Omnibus is still being 
distributed and allocated, the Departments disagree that this ongoing 
funding conflicts with the statement in the NPRM. In other words, 
funding allocated to date, and funding slated for further allocation 
under the Omnibus funding approved in December, is insufficient to 
address the impending further surge of migration expected after the 
termination of the Title 42 public health Order.
    Comment: Multiple commenters stated their opposition to 
``deterrence-oriented'' rules. At least one commenter stated the NPRM 
makes clear the Administration wants to make the asylum system 
``cumbersome and difficult to navigate'' to deter potential asylum 
seekers from coming to the United States, stating Vice President 
Harris' comment of ``do not come'' in 2021 was a message that those 
fleeing danger should not seek protection in the United States. Another 
commenter stated the proposed rule would not be an effective deterrent 
because of its similarity to the Migrant Protection Protocols (``MPP'') 
and the Title 42 public health Order in the past, which the commenter 
claimed ``outsourced and exacerbated the situation'' by leaving 
thousands of individuals in dangerous conditions in Mexican border 
cities waiting to see if, or when, they will get into the United 
States. Another commenter stated the rule does not serve as a 
deterrent, as evidenced by the growing numbers of asylum seekers at the 
border.
    Some commenters disagreed that the rule would reduce arrivals at 
the SWB. Commenters disagreed with the premise underlying the proposed 
rule--that the rebuttable presumption would disincentivize migrants 
from entering the United States except through a lawful and orderly 
pathway and lead to a reduction in encounters at the SWB. Another 
commenter argued that the rule is providing an opportunity to smuggling 
organizations and also providing an additional tool for extortion for 
noncitizens seeking to enter the United States. Another commenter 
stated that there is no evidence that the NPRM will deter asylum 
seekers from crossing the border and suggested that arrivals at the 
border would increase due to suppression of entries at POEs.
    Response: The Departments disagree that the rule generally seeks to 
discourage asylum seekers from coming to the United States. Rather, the 
rule seeks to strike a balance: It is intended to reduce the level of 
irregular migration to the United States, but also to preserve 
sufficient avenues for migrants with valid claims to apply for asylum 
or other protection, either in the United States or in third countries 
through which they travel. This rule is also intended to disincentivize 
the use of smugglers. To those ends, the rule encourages those with 
meritorious claims to either apply for asylum or other protection in 
the first safe country they reach or pursue available lawful pathways 
to the United States as set forth in the rule.
    The Departments also disagree with the comparison some commenters 
made between this rule and certain past policies, including MPP and 
application of the Title 42 public health Order. The rule's operation 
as a rebuttable presumption, and the rule's operation in conjunction 
with multiple available lawful pathways, are two of the multiple ways 
in which this rule differs from certain past policies, including MPP or 
expulsions under the Title 42 public health Order. As it relates to MPP 
in particular, the purpose and effect of this rule is not to return 
noncitizens to Mexico pending their removal proceedings. See INA 
235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C). Instead, it is to incentivize 
migrants, including those intending to seek asylum, to use lawful, 
safe, and orderly pathways to enter the United States, or seek asylum 
or other protection in another country through which they travel. 
Although some migrants may wait for some period of time in Mexico 
before obtaining a CBP One app appointment and before attending that 
appointment, the purpose and duration of such a stay would be different 
than under MPP. Absent this rule, DHS anticipates that its ability to 
process noncitizens at POEs, as well as continue to facilitate regular 
travel and trade, would be adversely impacted by the shifting of 
resources and personnel from POEs to help process individuals 
encountered between POEs.
    The Departments disagree with commenters' claim that this rule will 
not reduce entries and that it will incentivize irregular migration. 
The Departments have shown that an increase in the availability of 
lawful pathways, paired with immediate consequences for irregular 
migration, can incentivize the use of lawful pathways and thus reduce 
irregular migration. See 88 FR at 11705-06. Furthermore, the 
Departments disagree with commenters' assertion that the rule will push 
individuals away from POEs to cross between POEs. The rule incentivizes 
noncitizens who might otherwise attempt to enter without inspection 
between POEs to take advantage of expanded lawful pathways. The 
availability of lawful pathways, such as the ability to schedule an 
appointment through the CBP One app and the DHS-approved parole 
processes, and the rule's operation as a rebuttable presumption are two 
of the multiple ways in which this rule differs from certain efforts of 
the past Administration.
    Comment: Commenters raised concerns with Departmental data cited in 
the NPRM. For example, commenters referred to two of the Departments' 
statements in the NPRM: (1) that 83 percent of the people who were 
subject to expedited removal and claimed to have a credible fear of 
persecution or torture from 2014 to 2019 were referred to an IJ for 
section 240 proceedings, but only 15 percent of those cases that were 
completed were granted asylum or some other form of protection, see 88 
FR at 11716; and (2) while only 15 percent of all case completions 
result in relief or protection, OIS estimates that 28 percent of cases 
decided on their merits are grants of relief, 88 FR at 11716 n.97. 
Commenters stated that the 15 percent figure is misleading, because it 
is based on the total percentage of completed removal cases, and not 
the total percentage of cases decided on the merits of the asylum 
claim. Commenters claim that this method artificially deflates the 
asylum grant rate and creates the false impression that many asylum 
seekers were ineligible for asylum even where there was no decision on 
their asylum claim. Commenters also stated that the 28 percent figure 
itself was too low because, as described by the Departments, this 
figure excludes

[[Page 31330]]

withholding of removal, deferral of removal, cancellation of removal, 
and claimed status reviews.
    Commenters also claimed that asylum policies of the previous 
Administration artificially deflated asylum grant rates. Other 
commenters stated that it is logical that the percentage of cases 
passing the credible fear interview stage is far higher than the cases 
that eventually qualify for asylum, given that the credible fear 
process is supposed to have a low bar for passage. Another commenter 
stated that, by the Departments' logic, no asylum applicant should be 
entitled to an initial credible fear determination and full asylum 
merits hearing because their claims will probably be denied given the 
low approval rating of asylum.
    Response: The Departments cited relevant Departmental statistics--
which date back to 2014, prior to the implementation of any policies of 
the prior Administration--to demonstrate the general point that there 
is a significant disparity between positive credible fear 
determinations and ultimate relief in section 240 removal proceedings. 
See 88 FR at 11716. Whether one uses the 15-percent figure or the 28-
percent figure, ultimately, the number of individuals who are referred 
to an IJ at the beginning of the expedited removal process greatly 
exceeds the number who are granted asylum or some other form of relief 
or protection.
    Comment: A commenter stated that numerous factors beyond merit 
impact whether an asylum seeker's case is ultimately granted (e.g., 
access to counsel, availability of experts, changing regulations and 
procedures, and backlogs that affect the availability of evidence). 
Another commenter noted that many who seek asylum in the United States 
ultimately lose their cases not due to a lack of merit but instead 
because of ``our convoluted and dysfunctional'' immigration system, 
which the commenter claimed is difficult for asylum seekers to navigate 
and results in denial of many asylum claims on bases unrelated to the 
merits of the claim. One commenter asserted that modifying the legal 
requirements for asylum will not stop migrants from fleeing armed 
conflict, poverty or other dangers, because many are unaware of their 
right to apply for asylum. Another commenter stated that the number of 
migrants arriving is irrelevant to the merits of their asylum claims; 
the commenter also argued that the rule would screen out asylum seekers 
regardless of the merit of their case.
    Response: The Departments acknowledge commenters' concerns that 
factors unrelated to the merits of the claim, such as access to counsel 
and unfamiliarity with the asylum process, could affect the ultimate 
determination of an asylum claim, but disagree that these potential 
issues are exacerbated by the rule. As discussed in more detail later 
in Section IV.B.5 of this preamble, this rule does not deprive 
noncitizens of access to counsel during credible fear proceedings. 
Additionally, all AOs are trained to conduct interviews in a non-
adversarial manner and elicit relevant testimony from noncitizens. 
Specific training for implementation of this rule will include training 
on eliciting testimony related to whether a noncitizen can establish an 
exception or rebut the presumption of asylum ineligibility; therefore, 
noncitizens are not required to be familiar with the rule to remain 
eligible for asylum. The Departments emphasize that in all credible 
fear determinations, a noncitizen's credible testimony may be 
sufficient to overcome or establish an exception to the presumption 
against asylum ineligibility in this rule. INA 208(b)(1)(B)(ii), 8 
U.S.C. 1158(b)(1)(B)(ii). As discussed later in Section IV.D.1.iii of 
this preamble, the Departments note that the overall standard of proof 
for rebutting or establishing an exception to the presumption of asylum 
ineligibility during credible fear proceedings remains the 
``significant possibility'' standard; that standard must be applied in 
conjunction with the standard of proof required for the ultimate 
determination (i.e., preponderance of the evidence that an exception 
applies or that the presumption has been rebutted).
    As discussed throughout the NPRM, the lawful pathways condition, 
and the related modification of the withholding and CAT screening 
standard applied to noncitizens subject to the condition, would improve 
overall asylum processing efficiency by increasing the speed with which 
asylum claims are considered. See 88 FR at 11737. By encouraging 
noncitizens seeking to travel to the United States, including those 
seeking asylum, to pursue lawful pathways and processes, the rule 
promotes orderly processing and reduces the number of individuals who 
would be placed in lengthy section 240 removal proceedings and released 
into the United States pending such proceedings. Id. at 11736. 
Moreover, by reducing the number of noncitizens permitted to remain in 
the United States despite failing to avail themselves of a safe and 
lawful pathway to seek protection, the rule reduces incentives for 
noncitizens to cross the SWB, thus reducing the anticipated further 
surge that is expected to strain DHS resources. The Departments 
reiterate that the rule is not being promulgated to generally prevent 
noncitizens from seeking asylum in the United States but to strike a 
balance--reducing the level of irregular migration to the United States 
while providing sufficient avenues for migrants with valid claims to 
apply for asylum or other protection. The rule is needed because, 
absent this rule, after the termination of the Title 42 public health 
Order, the number of migrants expected to travel without authorization 
to the United States is expected to increase significantly, to a level 
that risks undermining the Departments' ability to safely, effectively, 
and humanely enforce and administer U.S. immigration law, including the 
asylum system.
    Comment: One commenter asserted that the real purpose of the rule 
is to incentivize an increasing number of migrants to use the CBP One 
app to make fraudulent asylum claims. The same commenter also stated 
``that the proposed rule and the CBP One app will incentivize increased 
rates of illegal immigration into the United States.'' The commenter 
further stated that because there is insufficient capacity to process 
all of the asylum claims of those using the CBP One app, the rule will 
simply increase the number of individuals who are paroled into the 
United States, incentivizing further illegal immigration. Another 
commenter argued that current migration levels result from the current 
Administration's actions to ``weaken border security, promote the 
influx of illegal immigration, and to remove integrity from the 
administration of both the legal immigration process (including asylum 
and credible fear measures) and overall enforcement of the laws.'' 
Similarly, another commenter stated that the root cause of this crisis 
was ``the Administration's reckless open borders policies.''
    Response: While the Departments acknowledge the commenters' 
concerns about increased rates of unauthorized immigration into the 
United States, the Departments disagree that the rule and use of the 
CBP One app will incentivize noncitizens to enter the United States to 
make fraudulent asylum claims. If anything, by adding a rebuttable 
presumption of ineligibility, this rule creates a strong disincentive 
for irregular migration relative to the status quo. The Departments 
note that no commenter submitted data suggesting that the rule will 
result in an increase in fraud or misrepresentation. As explained in 
Section IV.B.5.iii of this

[[Page 31331]]

preamble, the Departments are confident that AOs have the training, 
skills, and experience needed to assess credibility and appropriately 
determine whether a noncitizen has met an exception to or rebutted the 
presumption of ineligibility for asylum codified in the rule. Regarding 
commenters' concerns that use of the CBP One app will increase the 
number of individuals who are paroled into the United States and thus 
incentivize irregular migration, the Departments note that the rule 
does not provide for, prohibit, or otherwise set any policy regarding 
DHS's discretionary authority to make parole determinations for those 
who use the CBP One app. Even so, as outlined in the NPRM and later in 
Section IV.E.3.ii of this preamble, the expanded use of the CBP One app 
is expected to create efficiencies that will enable CBP to safely and 
humanely expand its ability to process noncitizens at POEs, including 
those who may be seeking asylum. See 88 FR at 11719. Notably, the rule, 
coupled with an expansion of lawful, safe, and orderly pathways, is 
expected to reduce the number of noncitizens seeking to cross the SWB 
without authorization to enter the United States. Additionally, the 
United States is undertaking a range of efforts to address irregular 
migration, including, for instance, working with partner countries to 
address the causes of migration, significantly increasing the 
availability of H-2 temporary worker visas and refugee processing in 
the Western Hemisphere, successfully implementing the CHNV parole 
processes, and addressing the pernicious role of human smugglers. See 
88 FR at 11718-21.
    The Departments strongly disagree with commenters who assert that 
the current migration levels are a result of any action by the 
Departments to ``weaken'' security at the border. Rather, as noted in 
the NPRM, economic and political instability around the world is 
fueling the highest levels of migration since World War II, including 
in the Western Hemisphere. See 88 FR 11704. Additionally, even while 
the Title 42 public health Order has been in place, the total number of 
encounters at the SWB reached an all-time high in FY 2022, and they 
remain at historically high levels even as encounters of CHNV nationals 
have fallen in recent months.\64\ See id. at 11704-05. During this 
time, the United States has been working to build on a multi-pronged, 
long-term strategy with countries throughout the region to support 
conditions that would decrease irregular migration while continuing 
efforts to increase immigration enforcement capacity and streamline 
processing of asylum seekers and other migrants. See 88 FR at 11720-23. 
This rule ensures that the United States meets its obligations under 
both U.S. and international law while ensuring that vulnerable 
populations are able to seek asylum or other protection through lawful, 
safe, and orderly pathways.
---------------------------------------------------------------------------

    \64\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023; OIS analysis of historic USBP data.
---------------------------------------------------------------------------

    Comment: Commenters stated that the rule is unnecessary because the 
goals of discouraging migrants from seeking asylum and swiftly removing 
migrants are invalid. These commenters further stated that immigration 
is good; there is no need to quickly remove asylum seekers, regardless 
of backlogs; and that overwhelmed immigration facilities are problems 
created by the Government that would be solved by welcoming migrants 
rather than treating them as a problem or as dangerous. A few 
commenters critiqued the need for the rule, writing that the proposed 
rule is unnecessary and the Administration should take responsibility 
for actions that have created an overloaded immigration system. Other 
commenters questioned whether restrictive border measures and quickly 
removing individuals actually reduce migratory flows. At least one 
commenter did not understand how this rule was a ``good thing'' that 
would change immigration policy in the United States, which the 
commenter described as a ``disaster.'' A commenter stated that the 
proposed rule is not needed and instead recommended implementing 
practical and humane solutions, including funding and coordinating with 
civil society organizations on the border and throughout the country. 
Another commenter stated that she lives within 100 miles of the border 
and does not feel threatened by the influx of migrants to her 
community, and thus the rule is unnecessary.
    One commenter stated that the U.S. immigration system is not broken 
but the current laws need to be strictly enforced, while another 
commenter stated that DHS should be strengthened so it can address each 
case instead of lumping people into categories. At least one commenter 
stated that there is no reason why DHS cannot process applicants more 
quickly, noting that the United States received a significant number of 
migrants in the early 1900s with far less technology, so the government 
should be able to do so much more efficiently now with the 
sophisticated technology, medical equipment, fingerprinting, and other 
means available now. Another commenter stated that the rule would not 
fix backlogs in immigration court, while a number of commenters 
suggested that it would actually increase the backlogs.
    A commenter questioned the need for the rule because the 
Departments had not demonstrated that they had considered other 
options. Another commenter requested that the Departments expressly 
consider a range of factors, such as the U.S. economic outlook and the 
role of other external variables (such as climate change) in driving 
migration. The commenter suggested that such factors may influence 
migration patterns to such a degree that the rule is unnecessary or 
likely to be ineffective.
    Response: The Departments disagree that the rule is unnecessary. 
The Departments reiterate that the goal of the rule is not to generally 
discourage migrants with valid claims from applying for asylum or other 
protection, but rather to encourage the use of lawful, safe, and 
orderly pathways into the United States. The Departments agree that the 
United States' historical openness to immigration has enriched our 
culture, expanded economic opportunities, and enhanced our influence in 
the world. However, the U.S. immigration system has experienced extreme 
strain with a dramatic increase of noncitizens attempting to cross the 
SWB in between POEs without authorization, reaching an all-time high of 
2.2 million encounters in FY 2022.\65\ The Departments believe that 
without a meaningful policy change, border encounters could 
dramatically rise to as high as 11,000 per day after the Title 42 
public health Order is lifted.\66\ As described in the NPRM, DHS does 
not currently have the resources to manage and sustain the processing 
of migratory flows of this scale in a safe and orderly manner, even 
with the assistance of modern technology. See 88 FR at 11712-13. In 
response to this urgent situation, the rule will establish a rebuttable 
presumption of asylum ineligibility for certain noncitizens who fail to 
take advantage of the existing and expanded lawful pathways to enter 
the United States, including the opportunity to schedule a time and 
place to present at a SWB POE, where they may seek asylum or other 
forms of protection, in a lawful, safe, and orderly manner, or to seek 
asylum or other protection in one of the countries through which they

[[Page 31332]]

travel on their way to the United States. See id at 11706. The 
Departments believe that this rule is necessary to address the 
anticipated surge in irregular migration.
---------------------------------------------------------------------------

    \65\ OIS analysis of historic USBP data.
    \66\ OIS analysis of DHS SWB Encounter Planning Model generated 
April 18, 2023.
---------------------------------------------------------------------------

    The Departments also believe the rule is necessary to improve the 
overall functioning and efficiency of the immigration system. See INA 
208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and (d)(5)(B). 
Specifically, the rule would efficiently and fairly provide relief to 
noncitizens who are in the United States and are eligible for relief, 
while also efficiently denying relief and ultimately removing those 
noncitizens who are determined to be ineligible for asylum and do not 
qualify for statutory withholding of removal or protection under the 
regulations implementing the CAT. The Departments acknowledge that 
despite the protections preserved by the rule and the availability of 
lawful pathways, the rebuttable presumption adopted in the rule will 
result in the denial of some asylum claims that otherwise may have been 
granted, but the Departments believe that the rule will generally offer 
opportunities for those with valid claims to seek protection. Moreover, 
the Departments have determined that the benefits to the overall 
functioning of the system, including deterrence of dangerous irregular 
migration and smuggling, justify the rule. In sum, the rule permissibly 
pursues efficient asylum processing while preserving core protections, 
which is within the Departments' authority conferred by section 208 of 
the INA, 8 U.S.C. 1158.
    The Departments acknowledge commenters' support for enforcing 
existing immigration laws. However, the Departments do not believe that 
current laws and regulations are sufficient to address the current 
levels of migratory flows and the anticipated increase in the number of 
migrants who will attempt to enter the United States following the 
lifting of the Title 42 public health Order. Likewise, a policy is 
necessary to ensure lawful, safe, and orderly processing of those 
migrants. Absent further action, POEs will be congested, migrants will 
be forced to wait in long lines for unknown periods of time, and once 
processed they will be released into local communities that are already 
at or near their capacity to absorb them. See 88 FR at 11715. By 
incentivizing noncitizens to use lawful pathways, this rule aims to 
encourage migrants to either pursue options that would allow them to 
avoid making the journey to the SWB, or to schedule in advance a time 
for arrival at a POE, which will alleviate additional strain on DHS 
resources. The Departments believe it would be inappropriate to elect 
inaction on the basis of conjecture regarding U.S. economic outlook and 
similar factors and the potential effects of such factors on the 
impending surge of irregular migration.
    In response to comments asserting that the Departments did not 
consider other options before promulgating this final rule, the 
Departments note that alternative approaches for managing the expected 
surge in migration were discussed in the NPRM and the Departments 
ultimately assessed, and continue to assess, that the rule is the best 
option for responding to the current situation at the border and the 
expected surge in migration after the lifting of the Title 42 public 
health Order. See 88 FR at 11730-32. Concerns regarding backlogs, 
government resources and funding are addressed in Sections IV.B.5.iv 
and IV.C.2 of this preamble.
    The Departments acknowledge commenters' suggestion that DHS 
``strengthen'' its resources to respond to the anticipated surge in 
migrants to the SWB. The Departments note that they have already 
deployed additional personnel, technology, infrastructure, and 
resources to the SWB and that continuing this ``strengthening'' of the 
SWB would require additional congressional actions, including 
significant additional appropriations, which are outside of the scope 
of this rulemaking.
i. Concerns Regarding the Sufficiency of the Lawful Pathways
    Comment: Commenters stated that in general, the available lawful 
pathways are insufficient to meet the significant demand for migration 
to the United States. Commenters stated that increasing legal pathways 
for some should not come at the expense of restricting access for 
asylum seekers seeking protection. Commenters stated that the existing 
lawful pathways are ``extremely narrow and unavailable to many 
people,'' and that it is fundamentally unjust to fault individuals for 
seeking safety and stability in the only way possible. Commenters 
stated that migrants who seek asylum in the United States rather than 
another country are doing so rationally and intentionally and they 
would seek asylum in a closer country if it was truly safe.
    Multiple commenters stated that H-2 temporary worker visas are 
insufficient substitutes for asylum. One commenter stated that the 
Administration is ``misguided'' in touting its efforts in the proposed 
rule to expand two of the most ``exploitative and troubled U.S. work 
visa programs--H-2A and H-2B'' because these programs are ``deeply 
flawed and in desperate need of reform.'' The same commenter stated 
that expanding temporary work visa programs like H-2B and H-2A makes 
little sense for those seeking asylum because they do not provide a 
permanent pathway to remain in the United States and would put migrants 
in danger by returning them to dangerous situations after the visa 
certification expires. Similarly, other commenters stated that the H-2 
programs do not provide or guarantee safety for migrants because they 
are not permanent or durable solutions and they do not allow for family 
unity in the United States.
    Response: The United States is both a nation of immigrants and a 
nation of laws. The Departments are charged with enforcing those laws 
and endeavor to do so humanely. The rule is needed because, absent this 
rule, after the termination of the Title 42 public health Order, the 
number of migrants expected to travel without authorization to the 
United States is expected to increase significantly, to a level that 
risks undermining the Departments' ability to safely, effectively, and 
humanely enforce and administer U.S. immigration law, including the 
asylum system. The rule, coupled with an expansion of lawful, safe, and 
orderly pathways, is expected to reduce the number of noncitizens 
seeking to cross the SWB without authorization to enter the United 
States.
    Though the Departments acknowledge that existing lawful pathways 
may not be available to every migrant, the Departments disagree with 
comments stating that the existing lawful pathways are extremely 
narrow. The United States Government has been working to significantly 
expand access to lawful pathways and processes for migrants since 
January 2021. In addition to the new processes DHS has implemented for 
CHNV nationals, which are discussed at length in the NPRM, DHS has been 
working with other Federal departments and agencies to increase access 
to labor pathways; restart, streamline, and expand family reunification 
parole programs; and significantly rebuild and expand refugee 
processing in the region. See 88 FR at 11718-23.\67\
---------------------------------------------------------------------------

    \67\ See also DHS, New Actions to Manage Regional Migration 
(Apr. 27, 2023).
---------------------------------------------------------------------------

    For example, DHS has worked with the Department of State and the 
Department of Labor (``DOL'') to significantly expand access to the H-
2A and H-2B temporary agricultural and nonagricultural worker visas in 
order to

[[Page 31333]]

help address labor shortages and provide safe and orderly pathways for 
migrants seeking economic opportunity in the United States. On December 
15, 2022, DHS and DOL jointly published a temporary final rule 
increasing the total number of noncitizens who may receive an H-2B 
nonimmigrant visa by up to 64,716 for the entirety of FY 2023. See 
Exercise of Time-Limited Authority to Increase the Numerical Limitation 
for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and 
Portability Flexibility for H-2B Workers Seeking to Change Employers, 
87 FR 76816 (Dec. 15, 2022). In particular, the number of H-2 visas 
issued to nationals of El Salvador, Honduras, and Guatemala has 
increased by 250 percent between FYs 2020 and 2022: in FY 2022, the 
Department of State issued 19,295 H-2 visas to those three countries, 
compared to just 5,439 in FY 2020.\68\ The Departments disagree that 
expanding use of these programs is misguided; although improvements are 
possible, these programs are established features of the immigration 
system and an appropriate mechanism to support lawful, safe, and 
orderly travel to the United States. Moreover, these programs represent 
two of several available lawful pathways, some of which provide 
protection that is not temporary and does allow for derivative 
protection for family members. For example, the United States 
Government has restarted the Central American Minors Refugee and Parole 
Program, which provides certain qualified children who are nationals of 
El Salvador, Guatemala, and Honduras, as well as certain family members 
of those children, an opportunity to apply for refugee status and 
possible resettlement in the United States.\69\
---------------------------------------------------------------------------

    \68\ See Department of State, H-2 Visa Data for El Salvador, 
Guatemala, and Honduras, FY 2015-FY2023 Mid-Year (last reviewed Feb. 
24, 2023).
    \69\ See USCIS, Central American Minors (CAM) Refugee and Parole 
Program, https://www.uscis.gov/CAM (last visited Apr. 5, 2023).
---------------------------------------------------------------------------

    The United States Government also provides durable solutions for 
humanitarian protection through the U.S. Refugee Admissions Program for 
qualifying applicants. In 2022, concurrent with the announcement of the 
L.A. Declaration, the United States announced that it intends to refer 
for resettlement at least 20,000 refugees from Latin America and the 
Caribbean in FY 2023 and FY 2024, which would put the United States on 
pace to more than triple refugee admissions from the Western Hemisphere 
this fiscal year alone.\70\ On April 27, 2023, DHS announced that it 
would commit to welcoming thousands of additional refugees per month 
from the Western Hemisphere--with the goal of doubling the number of 
refugees the United States committed to welcome as part of the L.A. 
Declaration.\71\ The United States Government also continues to work 
with our partners to expand access to refugee resettlement more broadly 
throughout the Western Hemisphere. For instance, Canada recently 
announced that it will take significant steps to expand safe and 
orderly pathways for migrants from the Western Hemisphere to enter 
Canada lawfully. Building on prior commitments, Canada will provide an 
additional 15,000 migrants from Latin America and the Caribbean with 
access to legal pathways to Canada; and enter into arrangements with 
the United States and like-minded countries to promote lawful labor 
mobility pathways.\72\
---------------------------------------------------------------------------

    \70\ See The White House, Fact Sheet: The Los Angeles 
Declaration on Migration and Protection U.S. Government and Foreign 
Partner Deliverables (June 10, 2022) (``L.A. Declaration Fact 
Sheet''), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/.
    \71\ See DHS, New Actions to Manage Regional Migration (Apr. 27, 
2023).
    \72\ See DHS, Press Release, United States and Canada Announce 
Efforts to Expand Lawful Migration Processes and Reduce Irregular 
Migration (Mar. 24, 2023), https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and.
---------------------------------------------------------------------------

    Comments asserting insufficiencies associated with the CHNV parole 
processes and other lawful pathways identified in the rule are further 
addressed in Section IV.3 of this preamble.
    The rule will not impact those who use these lawful pathways that 
the United States is offering for migrants to obtain entry into the 
United States. Additionally, the rule will not apply to noncitizens who 
enter the United States with documents sufficient for admission. 
Instead, the rule is meant to promote the use of these lawful pathways 
and disincentivize irregular migration.
ii. Similarity to Actions of Past Administration
    Comment: Many commenters stated that the proposed rule is 
functionally indistinguishable from prior asylum-related rules that 
were issued by the prior Administration, particularly the TCT Bar IFR 
and Final Rule, which have been enjoined, or would cause similar harm 
to asylum seekers. At least one commenter criticized that the addition 
of the ``rebuttable presumption'' in this rule is not enough to 
distinguish it from previous rules. For example, commenters described 
the rule as ``resurrect[ing] Trump-era categorical bans on groups of 
asylum seekers.'' Similarly, some commenters stated that this rule is 
similar to the ``asylum bans'' the past Administration attempted to 
advance. Another commenter asserted that this rule operates similarly 
to rules from the prior Administration because it would operate as a 
ban for asylum seekers based on factors that do not relate to their 
fear of return and would result in asylum denials for all who are 
unable to establish that they qualify for exceptions the commenter 
characterized as extremely limited. A commenter claimed that while the 
Departments repeatedly assert throughout the NPRM that the rebuttable 
presumption is distinguishable from the TCT Bar, the opportunity to 
rebut the presumption would occur only under the most extreme scenarios 
and in excess of what would ordinarily be sufficient to claim asylum. 
Another commenter predicted that the proposed rule would revive 
attempts to ``rig the credible fear process.'' While comparing the 
rebuttable presumption standards to the non-refoulement screening 
standard used under MPP, the commenter argued that the proposed rule 
would impose a ``more likely than not'' screening standard that far 
exceeds the standard for an asylum grant. The commenter further stated 
that the ``deficient'' non-refoulement screenings carried out during 
MPP foreshadow the dangers asylum seekers would face under the proposed 
rule if finalized.
    In comparing this rule to those issued by the prior Administration, 
commenters stated that the previous rules led to asylum denials, 
prolonged detention for many with bona fide claims, and family 
separations. At least one commenter stated that a recent congressional 
investigation found that not one person sent to Guatemala under the 
prior Administration's Asylum Cooperative Agreements received asylum; 
instead, migrants were forced to return to their originating country. A 
commenter also stated that the rule attempts to differentiate itself 
from prior policies via exceptions and alternative pathways to asylum 
but that the exceptions are insufficient because they would fail to 
protect the most vulnerable. Several commenters stated that asylum bans 
have been proven to be ineffective at deterring noncitizens from 
seeking safety. One commenter stated that calling the rule a 
``rebuttable presumption'' was merely a semantic difference from prior 
asylum bans, which had narrow exceptions.
    Response: The Departments acknowledge these commenters'

[[Page 31334]]

concerns but disagree that the final rule is indistinguishable from 
asylum-related rulemakings and policies issued by the prior 
Administration. The TCT Bar IFR and Final Rule and the Proclamation Bar 
IFR, for instance, categorically barred covered individuals from 
certain types of relief. While the TCT Bar Final Rule only allowed 
limited exceptions to its eligibility bar, including for trafficking 
victims and other grounds, this rule includes a number of broader 
exceptions and means for rebutting the presumption. A noncitizen can 
rebut the presumption by, for example, demonstrating exceptionally 
compelling circumstances by a preponderance of the evidence during a 
full merits hearing. See 8 CFR 208.33(a)(3); 8 CFR 1208.33(a)(3). A 
noncitizen can rebut the presumption if they establish that they or a 
member of their family with whom the noncitizen is traveling meet any 
of the three per se grounds for rebuttal, which provide that, at the 
time of entry: (1) they faced an acute medical emergency; (2) they 
faced an imminent and extreme threat to their life or safety; or (3) 
they were a ``victim of a severe form of trafficking in persons'' as 
defined in 8 CFR 214.11. In addition to the per se grounds for 
rebuttal, a noncitizen could also rebut the presumption in other 
exceptionally compelling circumstances. One exceptionally compelling 
circumstance recognized by the rule is included specifically to avoid 
family separations. See 8 CFR 1208.33(c). Protecting against family 
separation is one example of how this rule includes appropriate 
safeguards for vulnerable populations. Depending on individual 
circumstances, AOs and IJs may find that certain especially vulnerable 
individuals meet the exceptionally compelling circumstances standard.
    The Departments acknowledge concerns about opportunities to rebut 
the presumption but disagree that the rule would impose a higher 
standard for rebutting the presumption than the standard to establish 
asylum eligibility. The ``significant possibility'' standard is the 
overall assessment applied during credible fear screenings; that 
standard must be applied in conjunction with the standard of proof 
required for the ultimate determination (i.e., preponderance of the 
evidence that the presumption has been rebutted or an exception 
established). As discussed below in Section IV.E.1 of this preamble, a 
noncitizen can satisfy their burden of proof through credible testimony 
alone; the rule does not require any particular evidence to rebut or 
establish an exception to the presumption under 8 CFR 208.33(a)(3), 
1208.33(a)(3). See INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii); 
INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Accordingly, the 
Departments believe that the means of rebutting or establishing an 
exception to the presumption are not unduly burdensome.
    The Departments have considered the approaches taken in multiple 
rulemaking efforts of the last few years and now believe that the more 
tailored, time-limited approach in this final rule is better suited to 
address the increased migrant flows into the United States expected 
after the Title 42 public health Order terminates. See 88 FR at 11728. 
This rule encourages use of lawful, safe, and orderly pathways to enter 
the United States and, unlike those prior rulemakings, retains a 
noncitizen's ability to be found eligible for asylum should they enter 
through an enumerated lawful pathway or otherwise overcome the 
condition imposed by this rule. The Departments believe that the rule's 
more balanced approach renders the TCT Bar Final Rule and the 
Proclamation Bar IFR unnecessary, and that those rules conflict with 
the approach taken in this rule.\73\ As proposed in the NPRM and 
discussed at Sections IV.E.9 and IV.E.10 of this preamble, the 
Departments have decided to remove those prior rules from the CFR. See 
88 FR at 11728.
---------------------------------------------------------------------------

    \73\ Both the TCT Bar Final Rule and the Proclamation Bar IFR 
are discussed further in Sections IV.E.9 and IV.E.10 of this 
preamble.
---------------------------------------------------------------------------

    The Departments disagree with some commenters that this final rule 
will cause harms similar to those attributed to the TCT Bar Final Rule 
and the Proclamation Bar IFR, which commenters allege include asylum 
denials, prolonged detention, and family separation. This rule's scope 
and effect are significantly different from the TCT Bar Final Rule. 
Unlike the TCT Bar Final Rule, the presumption would not completely bar 
asylum eligibility based on the availability of protection in a third 
country. First, while this rule takes into account whether individuals 
sought asylum or other forms of protection in third countries while 
traveling to the United States, the rule would not require that all 
noncitizens make such an application to be eligible for asylum, unlike 
the TCT Bar Final Rule. For example, if the noncitizen received 
authorization to travel to the United States to seek parole or 
scheduled an appointment through the CBP One app to present themselves 
at a POE, then the condition on asylum eligibility would not apply to 
that noncitizen regardless of whether the noncitizen sought protection 
in a third country. Second, while the TCT Bar Final Rule only allowed 
limited exceptions to its eligibility bar, including for trafficking 
victims and other grounds, this rule includes a number of exceptions 
and means for rebutting the presumption, including an exception for 
trafficking victims. This rule encourages noncitizens to use orderly, 
lawful pathways to enter the United States, and it will only become 
relevant whether the noncitizens applied for protection in a third 
country through which they traveled in cases in which noncitizens do 
not avail themselves of one of the pathways.
    The Departments acknowledge commenters' concerns with the 
effectiveness of Safe Third Country Agreements (``STCA'') or asylum 
cooperative agreements. The Departments acknowledge that negotiating 
such agreements is a lengthy and complicated process that depends on 
the agreement of other nations. See 88 FR at 11732. The Departments 
note that the only such agreement in effect is the Canada-U.S. STCA. 
See generally 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, 88 FR 18227 
(Mar. 28, 2023). The rule does not implement or change the framework 
for negotiating STCAs, which involves extensive diplomatic 
negotiations. As discussed more in Section IV.E.3.iv of this preamble, 
the safe-third-country provision in section 208(a)(2)(A) of the INA, 8 
U.S.C. 1158(a)(2)(A), indicates that a noncitizen may be removed, 
pursuant to ``a safe-third-country agreement,'' and the noncitizen may 
not apply for asylum ``unless the Attorney General finds that it is in 
the public interest for the alien to receive asylum in the United 
States.'' This rule operates differently. Under this rule, noncitizens 
may apply for asylum and other protection in the United States. While 
the rule would create a rebuttable presumption, it specifies 
circumstances in which that presumption is necessarily rebutted as well 
as other exceptions. By encouraging noncitizens seeking to travel to 
the United States, including those intending to seek asylum, to use 
lawful pathways and processes, the Departments expect the rule to 
promote orderly processing, reduce the anticipated surge that is 
expected to strain DHS resources, reduce the number of individuals who 
would be placed in lengthy removal proceedings pursuant to section 240 
of

[[Page 31335]]

the INA and released into the United States pending such proceedings, 
allow for the expeditious removal of noncitizens who failed to avail 
themselves of a safe and lawful pathway to seek protection, and reduce 
incentives for noncitizens to cross the border using dangerous 
smuggling networks. See 88 FR at 11736. Regarding comments about the 
ineffectiveness of the rule to deter migrants from seeking safety, the 
rule does not discourage migrants with valid claims from applying for 
asylum or other protection. The rule encourages those with meritorious 
claims to either apply for asylum or other protection in the first safe 
country they find or pursue available lawful pathways, such as the U4U 
and CHNV parole processes--which early data indicate are deterring 
irregular migration from those countries, see 88 FR at 11706--or 
presenting at a POE at a pre-scheduled time and place.
    Comment: Some commenters noted the rise in recidivist encounters 
following the end of the prior Administration despite many efforts to 
restrict asylum access and stated that removals under this rule would 
increase rates of recidivism.
    Response: The Departments disagree that removals under this rule 
will increase the rate of recidivism. The Departments note that a range 
of external considerations (such as the COVID-19 pandemic, litigation 
resulting in injunctions or vacatur of those rules prior to or during 
initial stages of their implementation,\74\ and differences in the 
operation of the Title 42 public health Order and this rule) prevent 
the Departments from drawing any firm conclusions applicable to this 
rulemaking based solely on recidivism numbers following the end of the 
prior Administration. The application of the Title 42 public health 
Order at the border has had unpredictable impacts on migration. Because 
Title 42 expulsions have no consequence, aside from the expulsion 
itself, DHS has seen a substantial increase in recidivism for 
individuals processed under Title 42 as compared to those processed 
under Title 8 authorities. In March 2023, for example, 26 percent of 
encounters at the SWB involved individuals who had at least one prior 
encounter during the previous 12 months, compared to an average 1-year 
re-encounter rate of 14 percent for FYs 2014-2019.\75\
---------------------------------------------------------------------------

    \74\ Federal courts have either vacated or enjoined the 
Departments from implementing the TCT Bar IFR and Final Rule, 
Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202 
(Oct. 21, 2020) (``Criminal Asylum Bars Rule''), and Procedures for 
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear 
Review, 85 FR 80274 (December 11, 2020) (``Global Asylum Rule''). 
See, e.g., Capital Area Immigrants' Rights Coal. v. Trump, 471 F. 
Supp. 3d 25 (D.D.C. 2020) (vacating the TCT Bar IFR); E. Bay 
Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East 
Bay I'') (affirming injunction of the TCT Bar IFR); E. Bay Sanctuary 
Covenant v. Barr, 519 F. Supp. 3d 663 (N.D. Cal. 2021) (``East Bay 
II'') (enjoining the TCT Bar Final Rule); Pangea Legal Servs. v. 
DHS, 501 F. Supp. 3d 792 (N.D. Cal. 2020) (enjoining the Criminal 
Asylum Bars Rule) (``Pangea I''); Pangea Legal Servs. v. U.S. Dep't 
of Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021) 
(``Pangea II'') (preliminarily enjoined the Departments ``from 
implementing, enforcing, or applying the [Global Asylum Rule] . . . 
or any related policies or procedures.''); E. Bay Sanctuary Covenant 
v. Biden, 993 F.3d 640, 681 (9th Cir. 2021) (``East Bay III''); see 
O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting the 
history of the litigation over the Proclamation Bar IFR and vacating 
it).
    \75\ Including CBP enforcement encounters at or between ports of 
entry. OIS Persist based on data through March 31, 2023.
---------------------------------------------------------------------------

    Overall, since the start of the pandemic and the initiation of 
Title 42 expulsions, 39 percent of all Title 42 expulsions have been 
followed by a re-encounter of the same individual within 30 days versus 
a 9 percent 30-day re-encounter rate for Title 8 repatriations.\76\ 
Similarly, the 12-month re-encounter rates are 51 percent for Title 42 
expulsions versus 20 percent for Title 8 repatriations.\77\ While a 
portion of the overall gap between Title 42 and Title 8 re-encounter 
rates is likely explained by the fact that many Title 42 expulsions are 
to Mexico and almost all Title 8 repatriations are to individuals' 
countries of citizenship, it is notable that a large gap between Title 
42 and Title 8 re-encounter rates is also observed in the case of 
Mexican nationals, all of whom are repatriated to Mexico.\78\
---------------------------------------------------------------------------

    \76\ Title 8 repatriation, as used here, refers to both removals 
(noncitizen required to depart based on a removal order) and returns 
(noncitizen required to depart leaves without a formal order of 
removal).
    \77\ OIS analysis of OIS Enforcement Lifecycle based on data 
through December 31, 2022.
    \78\ For Mexican nationals, since the start of the pandemic, the 
30-day re-encounter rates are 44 percent for Title 42 expulsions 
versus 15 percent for Title 8 repatriations, and the 12-month re-
encounter rates are 55 percent for Title 42 expulsions versus 26 
percent for Title 8 repatriations. OIS analysis of OIS Enforcement 
Lifecycle based on data through December 31, 2022.
---------------------------------------------------------------------------

    This gap is likely, in part, because a removal under Title 8 
carries with it at least a five-year bar to admission, among other 
legal consequences. As a result, it is the Departments' assessment that 
a return to Title 8 processing of all noncitizens will likely reduce 
recidivism at the border. Moreover, the Departments believe it would be 
unwarranted to conclude that, based on recidivist apprehensions while 
the Title 42 public health Order has been in place, conditions on 
asylum eligibility do not discourage attempts to enter the United 
States unlawfully. This rule, which will take effect upon the lifting 
of the Title 42 public health Order, anticipates that those who receive 
negative credible fear determinations will be removed upon issuance of 
final orders of removal and be subject to at least a five-year bar on 
admission in addition to having the rebuttable presumption apply to any 
subsequent asylum application the noncitizen may file in the future.
iii. Unnecessary Given the Asylum Processing IFR
    Comment: Some commenters questioned why this proposed rule is 
necessary given that the Asylum Processing IFR was adopted less than 
one year ago. See Procedures for Credible Fear Screening and 
Consideration of Asylum, Withholding of Removal, and CAT Protection 
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (``Asylum 
Processing IFR''). In referencing the Asylum Processing IFR, one 
commenter noted that this rule is an ``abrupt change in reasoning from 
less than a year ago,'' which, according to the commenter, indicates 
that the rule is ``political'' rather than based on reasoned decision 
making. Some commenters noted that in the Asylum Processing IFR, the 
Departments explained that applying the TCT Bar Final Rule at the 
credible fear stage as proposed by the past Administration was 
inefficient and consumed considerable resources so there is ``no basis 
to suddenly reverse course again.'' A commenter argued that the 
proposal would depart from conclusions DHS reached within the last year 
in the Asylum Processing IFR recommitting agencies to the statutory 
``significant possibility'' standard for asylum claims. One commenter 
asserted that while the proposed rule is premised on the idea that 
applying a higher ``reasonable possibility'' standard can weed out non-
meritorious asylum cases, the Departments recently acknowledged in the 
Asylum Processing IFR that the higher standard is not effective at 
screening out such claims. The same commenter expressed concern that 
the Government's ``abrupt about-face'' is not based on new data, but 
rather on the lack of evidence that the reasonable possibility standard 
is not effective in the context in which it is currently used. Another 
commenter similarly wrote that the application of the reasonable 
possibility standard at the credible fear screening stage represents a 
``stark reversal'' from DHS's position in the Asylum Processing IFR 
that asylum eligibility bars should not be applied at the initial 
screening stage and

[[Page 31336]]

that the ``significant possibility'' standard should be applied when 
screening for all protection claims (i.e., asylum, withholding of 
removal, and CAT protection). A commenter stated that the proposed rule 
introduces conflict with the Asylum Processing IFR and expressed 
concern that implementation of the new rule would be difficult for AOs. 
One commenter stated that the Departments should make greater use of 
the recent 2022 asylum merits interview process, which would provide a 
solution to the problems the Departments asserted in the NPRM.
    Response: The Departments recognize that under the Asylum 
Processing IFR issued in March 2022, certain noncitizens determined to 
have a credible fear are referred to an AO, in the first instance, for 
further review of the noncitizen's asylum application. See 87 FR at 
18078. For noncitizens subject to that IFR, following a positive 
credible fear determination, AOs conduct an initial asylum merits 
interview instead of referring the case directly for removal 
proceedings pursuant to section 240 of the INA. If USCIS does not grant 
asylum, the individual is referred to EOIR for streamlined removal 
proceedings pursuant to section 240. In issuing the Asylum Processing 
IFR, the Departments concluded that protection determinations during 
the expedited removal process could be made more efficient. See 87 FR 
at 18085. The purpose of the Asylum Processing IFR was to 
simultaneously increase the promptness, efficiency, and fairness of the 
process by which noncitizens who enter the United States without 
appropriate documentation are either removed or, if eligible, granted 
relief or protection. Id. at 18089. Additionally, the Asylum Processing 
IFR enables meritorious cases to be resolved more quickly, reducing the 
overall asylum system backlog, and using limited AO and IJ resources 
more efficiently. Id. at 18090. The entire process is designed to take 
substantially less time than the average of over four years it takes to 
adjudicate asylum claims otherwise. See 88 FR at 11716. This final rule 
builds upon this existing system while implementing changes, namely 
that AOs will apply the lawful pathways rebuttable presumption during 
credible fear screenings.
    The Departments disagree with commenters' suggestion that the 
proposed rule was political and not based on reasoned decisions. 
Rather, the rule's primary purpose is to incentivize migrants, 
including those intending to seek asylum, to use lawful, safe, and 
orderly pathways to enter the United States, or seek asylum or other 
protection in another country through which they travel. The rule 
establishes procedures for AOs and IJs to follow when determining 
whether the rebuttable presumption applies to a noncitizen and, if it 
does, whether the noncitizen has established any exceptions to or 
rebutted the presumption. See 8 CFR 208.33(b). In addition, for 
noncitizens found to be ineligible for asylum under 8 CFR 208.33, the 
rule establishes procedures for AOs to further consider a noncitizen's 
eligibility for statutory withholding of removal or protection under 
the regulations implementing the CAT. See 8 CFR 208.33(c)(2). 
Individuals subject to the lawful pathways condition will still be 
placed into removal proceedings under section 240 if they meet the 
``reasonable possibility'' of persecution or torture standard. One of 
the goals of the Asylum Processing IFR is to streamline the expedited 
removal process, and this rule is complementary to that goal, but is 
also necessary to incentivize lawful, safe, and orderly migratory 
flows. This rule does not foreclose processing noncitizens through the 
process established by the Asylum Processing IFR.
    The Departments acknowledge that the approach in this rule is 
different in certain respects from that articulated in the Asylum 
Processing IFR issued in March 2022. However, the Departments believe 
the current and impending situation on the ground along the SWB 
warrants departing in some respects from the approach generally applied 
in credible fear screenings. See 88 FR at 11742. The Asylum Processing 
IFR was designed for non-exigent circumstances. However, as noted in 
the NPRM, encounters of non-Mexican nationals at the SWB between POEs 
have reached a 10-year high of 1.5 million in FY 2022,\79\ driven by 
smuggling networks that enable and exploit this unprecedented movement 
of people. This heightened migratory flow has overburdened the current 
asylum system, resulting in a growing backlog of cases awaiting review 
by AOs and IJs. See 88 FR at 11705. The exigent circumstances giving 
rise to this rule arose after the Asylum Processing IFR was issued and 
require departing from the general approach in the Asylum Processing 
IFR in specific ways--i.e., applying the condition on eligibility 
during credible fear screenings, applying the ``reasonable 
possibility'' standards to individuals who cannot show a ``significant 
possibility'' of eligibility for asylum based on the presumption 
established in the rule, requiring an affirmative request for IJ review 
of a negative credible fear determination, and limiting requests for 
reconsideration after IJ review and instead providing for 
reconsideration based only on USCIS's discretion.
---------------------------------------------------------------------------

    \79\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
---------------------------------------------------------------------------

    The Departments believe that the condition on eligibility and this 
rule's departures from the Asylum Processing IFR are reasonable and 
necessary for the reasons discussed in the NPRM. See 88 FR at 11744-47. 
The rule will help achieve many of the goals outlined in the Asylum 
Processing IFR, including improving efficiency; streamlining the 
adjudication of asylum, statutory withholding of removal, and CAT 
protection claims; and reducing the strain on the immigration courts by 
screening out and removing those with non-meritorious claims more 
quickly. See 87 FR 18078.
    The Departments note that the rule does not apply a higher 
``reasonable possibility'' standard to asylum claims; rather, the rule 
applies the statutory ``significant possibility'' standard to asylum 
claims, as explained elsewhere in this preamble. The rule only applies 
the ``reasonable possibility'' standard to statutory withholding and 
CAT claims, and only if a noncitizen is subject to and has not 
established an exception to or rebutted the presumption at the credible 
fear screening. Additionally, the Asylum Processing IFR did not 
conclude that the higher standard was ``not effective'' at screening 
out non-meritorious statutory withholding and CAT claims, but rather 
made a policy determination that the higher standard was inefficient 
given the circumstances of that particular rule. See 87 FR at 18092. 
The Departments reached a different policy conclusion after the Asylum 
Processing IFR was issued and believe that this rule is necessary to 
address the current and exigent circumstances described throughout the 
NPRM. See 88 FR at 11744-47.
    The Departments appreciate commenters' support for the asylum 
merits interview process, but the Departments reiterate the discussion 
from the NPRM that the asylum merits interview process should not be 
used for noncitizens subject to the presumption. See 88 FR at 11725-26. 
This is because each such proceeding, in which the noncitizen would 
only be eligible for forms of protection that the AO cannot grant 
(withholding of removal or CAT protection), would have to ultimately be 
adjudicated by an IJ. Further, the Departments note that the processes 
relating to management of those who have already established a credible 
fear

[[Page 31337]]

are different from the processes for migrants seeking entry into the 
United States who are making an initial claim of fear.
iv. Unnecessary Given Parole Processes
    Comment: Some commenters objected that although the Departments 
stated that they anticipate a surge in CHNV individuals claiming fear 
at the SWB after the termination of the Title 42 public health Order, 
the proposed rule also claims that the parole processes for these 
populations are working to limit irregular migration from these 
countries.
    Response: In an effort to address the significant increase in CHNV 
migrants at the SWB, the United States has taken significant steps to 
expand safe and orderly processes for migrants from these countries to 
lawfully come to the United States. Specifically, these processes 
provide a lawful and streamlined way for eligible CHNV nationals and 
their family members to apply to come to the United States without 
having to make the dangerous journey to the SWB.\80\ Individuals can 
request an advance authorization to travel to the United States to be 
considered on a case-by-case basis for a grant of temporary parole by 
CBP. Noting the success of the CHNV parole processes coupled with 
enforcement measures in limiting irregular migration of CHNV nationals, 
the Departments also recognize that there are a number of factors that 
could prevent the same level of success after the lifting of the Title 
42 public health Order absent additional policy changes. See 88 FR at 
11706. These factors include the presence of large CHNV populations 
already in Mexico and elsewhere in the hemisphere as a result of past 
migratory flows and the already large number of migrants from these 
countries in the proximity of the SWB after they were expelled to 
Mexico under the Title 42 public health Order. See id. In addition, as 
the Departments noted in the NPRM, the incentive structure created by 
the CHNV parole processes relies on the availability of an immediate 
consequence, such as the application of expedited removal under this 
rule, for those who do not have a valid protection claim or lawful 
basis to stay in the United States. See 88 FR at 11731. The parole 
processes thus work with this rule in a complementary manner to address 
the expected surge in migration after the Title 42 public health Order 
is lifted.
---------------------------------------------------------------------------

    \80\ See DHS, Press Release, DHS Continues to Prepare for End of 
Title 42; Announces New Border Enforcement Measures and Additional 
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
---------------------------------------------------------------------------

v. Unnecessary Given Lack of Access to Asylum
    Comment: Some commenters stated that the rule would not succeed at 
meeting its goal of deterring irregular immigration since migrants are 
already aware, even without the rule, that there is a low chance of 
actually receiving asylum in the United States.
    Response: The Departments reiterate that the rule's primary goal is 
to incentivize migrants, including those intending to seek asylum, to 
use lawful, safe, and orderly pathways to enter the United States, or 
seek asylum or other protection in another country through which they 
travel. The rule is intended to reduce the level of irregular migration 
to the United States without discouraging migrants with valid claims 
from applying for asylum or other protection. Even assuming migrants 
are aware of the relative likelihood of success of their asylum claims, 
the Departments do not believe the low ultimate approval rate for 
asylum and other forms of protection, which has long been the status 
quo, has served as a strong disincentive against making protection 
claims given the comparatively high chance of receiving a positive 
credible fear determination (83 percent for FYs 2014-19, see 88 FR at 
11716) after which migrants are able to wait in the United States to 
present their claims, the multi-year backlog of immigration court 
cases,\81\ and the fact that many migrants who are denied asylum are 
not ultimately removed, see id. Additionally, many noncitizens who are 
encountered at the border and released pending their immigration 
proceedings will spend years in the United States, regardless of the 
outcome of their cases. See id. Indeed, most noncitizens who receive a 
positive credible fear determination will be able to live and work in 
the United States for the duration of their removal proceedings--which, 
on average, take almost 4 years.\82\ This reality provides a powerful 
incentive for noncitizens to make protection claims. Therefore, a low 
approval rate for asylum applications does not necessarily offer much 
disincentive against making protection claims.
---------------------------------------------------------------------------

    \81\ See TRAC, Immigration Court Asylum Backlog through February 
2023, https://trac.syr.edu/phptools/immigration/asylumbl/ (last 
visited Mar. 14, 2023) (average 1,535 days from I-589 filing to 
merits hearing).
    \82\ OIS analysis of DOJ EOIR data based on data through March 
31, 2023.
---------------------------------------------------------------------------

vi. Ineffective Without Changes to Withholding of Removal or CAT 
Adjudications
    Comment: Some commenters stated that if the process for applying 
for statutory withholding of removal or CAT protection stays the same, 
the rule would not be an effective deterrent for people who do not have 
a meritorious claim for asylum who are seeking to delay their removal 
from the United States. One commenter suggested that because those 
subject to the rule can seek protection through statutory withholding 
of removal and CAT, even with this rule in place, they will likely 
continue to arrive without using a lawful pathway. The commenter 
further stated that people fleeing unlivable conditions at home, the 
overwhelmingly majority of whom have no real knowledge of U.S. 
immigration law, are unlikely to carefully dissect the rule's subtle 
changes to eligibility standards. And as long as migrants know there is 
the possibility of protection in the United States--no matter whether 
through asylum or another form of relief--they will likely continue to 
make the dangerous trek to the border, where they will then cross.
    Response: The Departments note that the rule would implement 
changes to the existing credible fear screening process. Specifically, 
if noncitizens cannot make a sufficient showing that the lawful 
pathways condition on eligibility for asylum is inapplicable or that 
they are subject to an exception or rebuttal ground, then the AO will 
screen the noncitizen for statutory withholding of removal and 
protection under the CAT using the higher ``reasonable possibility'' 
standard. See 8 CFR 208.33(b)(2)(i). This ``reasonable possibility'' 
standard is a change from the practice currently applied for statutory 
withholding of removal and CAT protection in the credible fear process. 
As explained in the NPRM, the Departments have long applied--and 
continue to apply--the higher ``reasonable possibility'' of persecution 
or torture standard in reasonable-fear screenings because this standard 
better predicts the likelihood of succeeding on the ultimate statutory 
withholding of removal or CAT protection application than does the 
``significant possibility'' of establishing eligibility for the 
underlying protection standard, given the higher burden of proof for 
statutory withholding of removal and CAT protection. See 88 FR at 
11746-47. The Departments also assess that applying the ``reasonable 
possibility'' of persecution or torture standard where the lawful 
pathways condition renders

[[Page 31338]]

the noncitizen ineligible for asylum will result in fewer individuals 
with non-meritorious claims being placed into removal proceedings under 
section 240 of the INA, and more such individuals being quickly 
removed. The Departments believe that using the ``reasonable 
possibility'' standard to screen for statutory withholding and CAT 
protection in this context, and quickly removing individuals who do not 
have a legal basis to remain in the United States, may serve as a 
disincentive for migrants who would otherwise make the perilous journey 
to the United States without first attempting to use a lawful pathway 
or seeking protection in a country through which they travel.
vii. Ineffective Because Exceptions Will Swallow the Rule
    Comment: Some commenters raised concerns that the rebuttable 
presumption of ineligibility could be too easily overcome or perceived 
as easy to overcome, due to the number of exceptions and means of 
rebuttal. One commenter referred to the proposed rule as ``a facially 
stricter threshold'' than under current practice and said that the 
rebuttable presumption was ``a tougher standard in name only.'' Another 
commenter opined that the proposed rule would be largely ineffective 
and urged the Departments to eliminate exceptions to the presumption 
against asylum eligibility, which they said are overbroad, easy to 
exploit, and threaten to swallow the rule. Similarly, other commenters 
stated that there should be no exceptions to the condition on asylum. 
Commenters stated that migrants would quickly learn the various 
exceptions to the presumption and how to fraudulently claim them to 
obtain asylum. One commenter alleged, without evidence, that various 
NGOs and legal organizations coach people on which ``magic words'' they 
must utter to gain entry into the United States. One commenter stated 
that noncitizens may falsely claim to be Mexican nationals to 
circumvent the rule.
    One commenter proposed that the rule's exceptions be limited to (1) 
those who received a final judgment denying them protection in at least 
one country through which they transited; (2) victims of a severe form 
of trafficking; (3) those who have transited only through countries 
that are not parties to the Refugee Convention, the Refugee Protocol, 
or CAT; and (4) UCs. Another commenter proposed that the Departments 
should eliminate the CBP One app exception and should apply the 
presumption to UCs. One commenter stated that the rule should require, 
not encourage, migrants to use lawful, safe, and orderly pathways.
    Response: The Departments acknowledge these concerns but believe it 
is necessary to maintain the exceptions to and means of rebutting the 
presumption of ineligibility for asylum to prevent undue hardship. The 
Departments have limited the means of rebutting the presumption to 
``exceptionally compelling circumstances,'' where it would be 
unreasonable to require use of the DHS appointment scheduling system or 
pursuit of another lawful pathway. The rule lists three examples of 
exceptionally compelling circumstances that would be considered at both 
the credible fear and merits stages: acute medical emergencies, 
imminent and extreme threats to life or safety, and victims of severe 
forms of human trafficking. See 8 CFR 208.33(a)(3)(i), 
1208.33(a)(3)(i). AOs and IJs will assess the noncitizen's testimony, 
along with any other evidence in the record, to determine whether the 
noncitizen meets an exception to or rebuts the presumption against 
asylum eligibility. INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B); INA 
240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B); 8 CFR 208.30.
    The Departments do not believe that the rule creates significant 
incentive for migrants to falsely pose as Mexican nationals. Even if 
successful, this would only be a plausible strategy for migrants who 
are hoping to voluntarily return to Mexico instead of being placed in 
expedited removal. Once in expedited removal, any incentive to pose as 
a Mexican national dissipates quickly. It will likely be difficult for 
the noncitizen to establish a credible fear of persecution or torture 
in Mexico, a country with which they are less familiar than their 
actual country of nationality. The noncitizen will not be able to seek 
any assistance from their consulate without disclosing their true 
country of nationality. And it will become very difficult for the 
noncitizen to qualify for asylum or other protection before an IJ, 
where they will need to prove identity.\83\ Noncitizens who falsify 
their nationality could face serious consequences, as any such false 
pretenses would be likely to have an adverse effect on their 
credibility and could result in a permanent bar from all future 
immigration benefits.\84\
---------------------------------------------------------------------------

    \83\ See Matter of O-D-, 21 I&N Dec. 1079, 1081 (BIA 1998) (``A 
concomitant to such claim is the burden of establishing identity, 
nationality, and citizenship.''); INA 208(d)(5)(A)(i), 8 U.S.C. 
208(d)(5)(A)(i) (``[A]sylum cannot be granted until the identity of 
the applicant has been checked.''); 8 CFR 1003.47 (Identity, law 
enforcement, or security investigations or examinations relating to 
applications for immigration relief, protection, or restriction on 
removal).
    \84\ See INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii) 
(credibility determinations in asylum proceedings); INA 208(d)(6), 8 
U.S.C. 1158(d)(6) (frivolous asylum applications); 8 CFR 1003.47(g) 
(preventing IJs from granting asylum applications until they can 
consider complete and current identity, law enforcement, and 
security investigations).
---------------------------------------------------------------------------

3. Concerns Related to Impacts on Asylum Seekers or Conflicts With 
Humanitarian Values
i. Belief That the Rule Is Motivated by Unlawful Intent and 
Inconsistent With U.S. Values
    Comment: Some commenters generally asserted that the rule targets 
certain nationalities, groups, or types of claims and that it was 
motivated by racial animus; that it has discriminatory effects; and 
that it was intended to address political issues or to mollify those 
harboring racial animus. Commenters stated that issuing this rule would 
advance the agendas of anti-immigration groups. At least one commenter 
stated that the proposed rule could fuel existing anti-immigrant and 
anti-Latinx sentiments in the United States by sensationalizing 
immigration. Another commenter expressed opposition to the proposed 
rule stating that it would continue to uphold an ``ableist, xenophobic, 
and white supremacist'' notion of accessibility into the United States. 
One commenter urged DHS to consider the impact that previous white 
supremacist and race-based policies have had on the U.S. immigration 
system. Furthermore, a commenter opposed the rule concluding that it 
continues a ``legacy of structural racism'' in U.S. immigration policy.
    Commenters compared the rule to race-based historical immigration 
laws in the United States, such as the Chinese Exclusion Act and other 
past immigration actions, including actions of the prior 
Administration. Another commenter compared the rule to nationality-
based quotas instituted by the Immigration Act of 1924 and stated that 
the rule serves a similar purpose of excluding ``undesirable'' migrant 
populations, while others compared the rule to limits on migration 
before, during, and after World War II, including turning away Jewish 
refugees seeking protection on the ship the St. Louis. At least one 
commenter stated that asylum seekers from countries located 
geographically further away would have a higher burden for no reason 
beyond their national origin. Further, commenters stated that 
differentiating between the ``types'' of people admitted to the United 
States or

[[Page 31339]]

detained at the border is akin to authoritarian regime policies that 
have prohibited entry to ``undesirables'' and ``other inconvenient 
group[s].''
    Some commenters stated that the proposed rule is inhumane, 
xenophobic, and against everything the current Administration is 
supposed to stand for. Other commenters noted that the rule would only 
affect migrants seeking to enter at the SWB, but that migrants crossing 
the northern border from Canada are excluded, which the commenter 
called ``inequitable'' and evidence of racism. Some commenters stated 
that limiting who to help in the time of a ``global crisis'' is 
``shameful'' because the United States is one of the richest countries 
in the world. Some commenters stated that with all the terrible things 
happening in the world we should be making it easier and not harder to 
seek asylum. An advocacy group expressed further concern that the rule 
may instead reinforce a notion that immigrants are unwelcome or 
otherwise do not belong in the United States. Another advocacy group 
expressed disappointment that words like ``surge'' in the NPRM could 
frame asylum seekers as a problem that needs to be mitigated or 
reduced. Some commenters stated that the rule was only written in 
response to political pressure by political opponents to address the 
situation at the SWB, thus placing migrants in danger for the sake of a 
political agenda. One commenter stated that they expected the United 
States to ``treat migrants as human beings rather than playing pieces 
that could affect political outcomes.''
    Response: The Departments reject these commenters' claims 
concerning the Departments' basis for promulgating the rule. As 
explained in the NPRM, 88 FR at 11704, the Departments are promulgating 
the rule to address the following considerations. First, the reality of 
large numbers of migrants crossing the SWB has placed a substantial 
burden on the resources of Federal, State, and local governments. See 
88 FR 11715. While the United States Government has taken extraordinary 
steps to address this burden, the current level of migratory movements 
and the anticipated increase in the numbers of individuals seeking 
entry into the United States following the lifting of the Title 42 
public health Order, without policy changes, threaten to exceed the 
capacity to maintain the safe and humane processing of noncitizens who 
cross the SWB without authorization. See id at 11704. Second, this 
reality allows pernicious smuggling networks to exploit migrants--
putting migrants' lives at risk for the smugglers' financial gain. 
Finally, the unprecedented migratory flow of non-Mexican migrants, who 
are far more likely to apply for protection,\85\ has contributed to a 
growing backlog of cases awaiting review by AOs and IJs. As a result, 
those who have a valid claim to asylum may have to wait years for their 
claims to be granted, while individuals who will ultimately be found 
ineligible for protection may spend years in the United States before 
being ordered removed. None of these considerations are racially 
motivated, inhumane, or xenophobic.
---------------------------------------------------------------------------

    \85\ For noncitizens encountered at the SWB in FYs 2014-2019 who 
were placed in expedited removal, 6 percent of Mexican nationals 
made fear claims that were referred to USCIS for adjudication 
compared to 57 percent of people from Northern Central America and 
90 percent of all other nationalities. OIS analysis of Enforcement 
Lifecycle data as of December 31, 2022.
---------------------------------------------------------------------------

    The Departments reiterate that the United States Government has 
implemented, and will continue to implement, a number of measures 
designed to enhance and expand lawful pathways and processes for 
noncitizens who may wish to apply for asylum to come to the United 
States. DHS has recently created new processes for up to 30,000 CHNV 
nationals per month to apply for advance authorization to seek parole 
into the United States, enabling them to travel by air to the United 
States.\86\ DHS and its interagency partners have also increased H-2B 
nonimmigrant visa availability and refugee processing for countries 
within the Western Hemisphere. See 88 FR at 11718. Noncitizens who are 
not eligible for these pathways can schedule an appointment to present 
at a southwest land border POE through the CBP One app and be exempted 
from the rule. Finally, the rule does not apply to migrants crossing 
into the United States from Canada because, as discussed in more detail 
below, the STCA between the United States and Canada, along with the 
Additional Protocol of 2022, announced March 24, 2023, already enable 
sufficient management of migration from Canada.\87\ The Additional 
Protocol expands the STCA to apply to migrants who claim asylum or 
other protection after crossing the U.S.-Canada border between POEs, 
thus providing another disincentive for irregular migration.\88\
---------------------------------------------------------------------------

    \86\ See 87 FR 63507 (Oct. 19, 2022); DHS, Implementation of a 
Parole Process for Haitians, 88 FR 1243 (Jan. 9, 2023); DHS, 
Implementation of a Parole Process for Nicaraguans, 88 FR 1255 (Jan. 
9, 2023); DHS, Implementation of a Parole Process for Cubans, 88 FR 
1266 (Jan. 9, 2023).
    \87\ See DHS, Press Release, United States and Canada Announce 
Efforts to Expand Lawful Migration Processes and Reduce Irregular 
Migration (Mar. 24, 2023), https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and.
    \88\ See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h); 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, 88 FR 18227 (Mar. 25, 2023).
---------------------------------------------------------------------------

    Comment: Other commenters stated that there is a disconnect between 
President Biden's remarks in Poland in February 2023 regarding 
accepting and welcoming refugees and this rule. Some commenters stated 
that the proposed rule is not in line with the American value of 
welcoming refugees and asylum seekers. Many commenters referenced the 
Statue of Liberty and the American tradition of welcoming the poor and 
other vulnerable immigrants and quoted Emma Lazarus' poem. Commenters 
stated that the ability to seek asylum is a legally recognized right 
and that the proposed rule would effectively deny that right to many 
asylum seekers, as well as that the United States should instead live 
up to its legal responsibilities and ideals. Commenters stated that the 
need to reduce strain at the border is an insufficient reason to 
support the reduction in asylum access that would result from the rule.
    Response: The Departments acknowledge that the United States has a 
long tradition of accepting and welcoming refugees and note that in the 
past two years, the United States Government has taken steps to 
significantly expand refugee admissions from Latin America and the 
Caribbean. However, simply welcoming migrants into the United States 
without a policy in place to ensure lawful, safe, and orderly 
processing of those migrants would exceed DHS's already limited 
resources and facilities--especially given the anticipated increase in 
the numbers of migrants who will attempt to enter the United States 
following the lifting of the Title 42 public health Order.
    The Departments underscore that the rebuttable presumption will not 
apply to noncitizens who availed themselves of safe, orderly, and 
lawful pathways to enter the United States or sought asylum or other 
protection in a third country and were denied. The rule lists three per 
se grounds for rebuttal: if a noncitizen demonstrates that, at the time 
of entry, they or a member of their family as described in 8 CFR 
208.30(c) with whom the noncitizen is traveling faced an acute medical 
emergency; faced an imminent and extreme threat to their life or 
safety; or were a ``victim of a severe form of trafficking in persons'' 
as defined in 8 CFR 214.11. See 8 CFR 208.33(a)(3), 1208.33(a)(3). The 
rule also

[[Page 31340]]

contains a specific exception to the rebuttable presumption for 
unaccompanied children. See 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i). 
Noncitizens who are subject to the lawful pathways condition on 
eligibility for asylum and who do not qualify for an exception or rebut 
the presumption of the condition's applicability, remain eligible to 
apply for CAT protection or for statutory withholding of removal, which 
implements U.S. non-refoulement obligations under the 1967 Protocol. 
See, e.g., Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun 
v. U.S. Att'y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017).
    Exceptionally compelling circumstances will also be found if, 
during section 240 removal proceedings, the noncitizen is found 
eligible for statutory withholding of removal or CAT withholding, they 
would be granted asylum but for the presumption against asylum, and 
their accompanying spouse or child does not independently qualify for 
asylum or other protection against removal or the noncitizen has a 
spouse or child who would be eligible to follow to join them as 
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), 
if they were granted asylum. See 8 CFR 1208.33(c). As discussed in the 
NPRM, the Departments have determined that applying the lawful pathways 
condition on eligibility for asylum is necessary to ensure the 
Departments' continued ability to safely, humanely, and effectively 
enforce and administer U.S. immigration laws and to reduce the role of 
exploitative and dangerous smuggling and human trafficking networks.
    Comment: Many commenters stated that if the United States cannot be 
a safe place for people being persecuted, then it is not living up to 
constitutional and moral values. A commenter stated that anyone not of 
Native American ancestry is here because our relatives came here for a 
better life for themselves and their family. Some commenters stated 
that America is a nation of immigrants, while others stated that we 
should remember our ancestors, as many were immigrants too, and invoked 
their family's migration to the United States as examples. A commenter 
stated that it is inherently evil to ignore, mistreat, or in any way 
harm desperate people fleeing their homes because they would likely 
suffer or even die if they stay. Commenters described the rule as 
inhumane, not in alignment with Christian or Judeo-Christian morals, 
and immoral and contrary to American values. A commenter stated that 
the use of the term ``humane'' in connection with the proposed rule was 
cynical and cruel. Another commenter stated that the rule would 
inevitably lead to unnecessary harm and death. One commenter stated 
that the rule would cause survivors and victims of crime to distrust 
systems.
    Many commenters cited the harms resulting from the United States' 
failure to provide protection for those fleeing Nazi persecution, which 
commenters said led to the development of the modern asylum system. 
Multiple commenters stated that, as a wealthy country that claims to be 
a leader in democracy, the United States has a special obligation to 
make it easy to seek asylum here, and that the proposed rule would put 
barriers in the way of desperate people. Commenters stated that the 
Departments should not forget the contributions of immigrants to the 
United States' workforce and diversity and should not deny protection 
to people in need. Some commenters stated that the asylum seekers who 
would be denied under the rule would be contributing members of society 
that the country needs. One commenter stated the rule conflicts with 
the American tradition of ``innocent until proven guilty,'' another 
protested ``the presumption of guilt of undocumented immigrants which 
underlies this proposed rule,'' and others stated that refugees should 
not be treated as criminals. At least one commenter stated that the 
rule would amount to ``cruel and unusual punishment'' and other 
commenters described it as ``cruel'' or ``wrong'' and ``un-American.'' 
One commenter stated that the rule imposes an arbitrary punishment on 
the very individuals whom the asylum laws were intended to protect. At 
least one commenter stated that the rule should have a presumption in 
favor of applicants. Another commenter said that one of America's 
principles is that ``all men are created equal,'' noting that it says 
``men'' and does not refer to U.S. citizens only.
    Response: The Departments disagree that this rule is inhumane or 
contrary to morals and values. For decades, U.S. law has protected 
vulnerable populations from return to a country where they would be 
persecuted or tortured. The Departments note that the rule is designed 
to safely, effectively, and humanely process migrants seeking to enter 
the United States, and to reduce the influence and role of the lawless 
and pernicious human smuggling organizations that put migrants' lives 
in peril for profit. See 88 FR at 11713-14. The Departments considered 
the dangerous journeys made by migrants who put their lives at risk 
trying to enter the United States without authorization. The rule is 
designed to disempower criminal enterprises that seek to take advantage 
of desperate migrants, leading to untold human suffering and far too 
many tragedies. See id. The rule pursues this goal by encouraging 
migrants to seek protection in other countries in the region and to use 
lawful pathways and processes to access the U.S. asylum system, 
including pathways and processes that do not require them to take a 
dangerous journey. In order to ensure that particularly vulnerable 
migrants are not unduly affected by the rule, the Departments have 
included exceptions and multiple ways that migrants may rebut the 
presumption and thereby remain eligible for asylum, as well as access 
to other protection. A noncitizen who seeks to apply for asylum can 
also schedule their arrival at a land border POE through the CBP One 
app and be exempted from the rule.
    Regarding comments stating that the rule conflicts with ``innocent 
until proven guilty,'' or that the rule attaches a presumption of guilt 
to migrants, or that the rule amounts to ``cruel and inhumane 
treatment,'' the Departments note that this rule is not intended to 
ascribe guilt or innocence or punishment to anyone but rather to 
encourage the use of lawful, safe, and orderly pathways to enter the 
United States. The rule also does not subject anyone to ``cruel and 
inhumane treatment,'' and indeed ensures that individuals who fear 
torture or persecution can seek statutory withholding of removal or CAT 
protection. Similarly, the Departments disagree with comments 
recommending a presumption in the rule that favors eligibility for 
asylum. The Departments note that asylum eligibility requirements set 
forth in section 208(b)(1) of the INA place the burden on the 
noncitizen. Creating a presumption in the rule to favor eligibility for 
asylum would remove that burden from the noncitizen and would not 
achieve the Departments' goals of disincentivizing migrants from 
crossing the SWB without authorization. Finally, as explained in 
Section IV.D.1.ii of this preamble, the rule is fully consistent with 
the Departments' legal authority and obligations on asylum eligibility 
pursuant to section 208 of the INA, 8 U.S.C. 1158.
    Comment: Commenters described this rule as a ``broken promise'' to 
fix the asylum system and stated that President Biden had criticized 
the Title 42 public health Order and indicated that he would pursue 
policies that reflect the United States' commitment to asylum seekers 
and refugees. A commenter urged the Departments to withdraw the

[[Page 31341]]

rule, reasoning that it would contravene the Biden Administration's 
values by putting vulnerable migrants at greater risk for violence 
without shelter or protection. Another commenter expressed concern that 
the proposed rule would be antithetical to President Biden's prior 
promises to reduce migrants' reliance on smuggling networks, to reduce 
overcrowding in migrant detention facilities, and to provide effective 
humane processing for migrants seeking protections in the United 
States. Other commenters stated that the rule would contravene 
President Biden's promise to uphold U.S. laws humanely and to preserve 
the dignity of ``immigrant families, refugees, and asylum seekers.'' 
One commenter stated that during the presidential election, President 
Biden campaigned to ``restore the soul of America'' and cutting off 
asylum seekers is not part of that promise. Another commenter urged 
that President Biden be held accountable for the ``promises he made 
before his election.'' A commenter likewise stated that the proposed 
rule would fail to uphold the Biden Administration's commitments to 
promote regional cooperation and shared migration management.
    Response: Political and economic instability, coupled with the 
lingering adverse effects of the COVID-19 global pandemic, have fueled 
a substantial increase in migration throughout the world. This global 
increase is reflected in the trends on the SWB, where the United States 
has experienced a sharp increase in encounters of non-Mexican nationals 
over the past two years, and particularly in the final months of 2022. 
See 88 FR at 11708. DHS was encountering an average of approximately 
8,800 noncitizens per day during the first ten days of December 2022--a 
new record--and expects that encounter numbers could increase to 11,000 
per day following the termination of the Title 42 public health 
Order.\89\ The rule is a response to the even more urgent situation 
that the Departments could face after the lifting of the Title 42 
public health Order. The Departments believe that these circumstances 
warrant this policy, which will encourage those migrants who wish to 
seek asylum to avail themselves of lawful, safe, and orderly pathways 
into the United States.
---------------------------------------------------------------------------

    \89\ See DHS Post-Title 42 Planning Model generated April 18, 
2023; see also OIS analysis of CBP UIP data downloaded January 13, 
2023.
---------------------------------------------------------------------------

    Consistent with the principle of establishing a fair, orderly, and 
humane asylum system, the United States Government has implemented a 
multi-pronged approach to managing migration throughout North and 
Central America. The United States Government is working closely with 
international organizations and the governments in the region to 
establish a comprehensive strategy for addressing the causes of 
migration in the region; build, strengthen, and expand Central and 
North American countries' asylum systems and resettlement capacity; and 
increase opportunities for vulnerable populations to apply for 
protection closer to home. See E.O. 14010, Creating a Comprehensive 
Regional Framework to Address the Causes of Migration, To Manage 
Migration Throughout North and Central America, and To Provide Safe and 
Orderly Processing of Asylum Seekers at the United States Border, 86 FR 
8267, 8270 (Feb. 2, 2021). These commitments were further enshrined and 
expanded beyond Central and North America in the June 2022 L.A. 
Declaration endorsed by the United States and 19 nations in the Western 
Hemisphere.\90\ Indeed, the L.A. Declaration specifically outlines 
``the need to promote the political, economic, security, social, and 
environmental conditions for people to lead peaceful, productive, and 
dignified lives in their countries of origin'' and states that 
``addressing irregular international migration requires a regional 
approach.'' \91\ At the same time, the United States is expanding 
efforts to protect refugees by increasing refugee admissions and 
expanding refugee processing within the Western Hemisphere. In fact, on 
April 27, 2023, DHS announced that it would commit to welcoming 
thousands of additional refugees each month from the Western 
Hemisphere--with the goal of doubling the number of refugees the United 
States committed to welcome as part of the L.A. Declaration.\92\ 
Therefore, the United States is enhancing lawful pathways for migration 
to this country while improving efficiencies within the U.S. asylum 
system.
---------------------------------------------------------------------------

    \90\ The 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/.
    \91\ Id.
    \92\ See DHS, New Actions to Manage Regional Migration (Apr. 27, 
2023).
---------------------------------------------------------------------------

    Comment: Commenters stated that the United States should welcome 
and not punish asylum seekers because the United States is responsible 
for creating the conditions and other problems that have caused many of 
the migrants seeking asylum to leave their countries, such as through 
American military, intelligence, political, or economic actions. 
Commenters also stated that the United States should not limit access 
to asylum for migrants coming from countries where the United States 
Government supported a regime change that created the circumstances 
that the migrants are fleeing. For example, one commenter referenced 
the United States' support in prior conflicts in Guatemala and El 
Salvador and the current support for the controversial leadership in El 
Salvador as reasons the commenter believed the United States was the 
cause of migration. One commenter stated that the United States has 
played a role in creating the political instability that cause many 
Central American refugees to flee and seek asylum in the United States. 
Other commenters expressed a belief that many migrants are fleeing 
because of climate change, to which the United States has greatly 
contributed, or because of challenging conditions in some countries, 
including Haiti. Another commenter argued that the U.S. war on drugs 
has contributed to the circumstances from which migrants are fleeing to 
seek asylum at the SWB.
    Response: The Departments recognize commenters' concerns that 
numerous factors may have contributed to migrants seeking asylum. As 
noted in the preceding comment response, political and economic 
instability, coupled with the lingering adverse effects of the COVID-19 
global pandemic, have fueled a substantial increase in migration 
throughout the world. This global increase is reflected in the trends 
on the SWB, where the United States has experienced a sharp increase in 
encounters of non-Mexican nationals over the past two years, and 
particularly in the final months of 2022. See 88 FR at 11708. This rule 
addresses the Departments' continued ability to safely, effectively, 
and humanely enforce and administer U.S. immigration law, including the 
asylum system, in anticipation of a potential further surge of 
migration at the SWB, regardless of any factors that may have 
contributed to migration flows. The Departments have sought to address 
this situation by increasing lawful pathways while also imposing 
consequences for not using those pathways. The Departments further note 
that the United States has worked closely with its regional partners to 
prioritize and implement a strategy that advances safe, orderly, legal, 
and humane migration, including taking measures to address the root 
causes of migration, expand access to lawful pathways, improve the U.S. 
asylum system, and address the pernicious role of smugglers. For

[[Page 31342]]

instance, the United States Government has implemented new parole 
processes for CHNV nationals that have created a strong incentive for 
these individuals to wait where they are to access an orderly process 
to come to the United States.\93\ Additionally, the United States has 
expanded refugee processing in the region which provides another 
orderly option for refugees to lawfully enter the United States. See 88 
FR at 11719. Consistent with these processes, this rule would further 
incentivize noncitizens to avail themselves of other lawful, safe, and 
orderly means for seeking protection in the United States or elsewhere.
---------------------------------------------------------------------------

    \93\ See DHS, Press Release, DHS Continues to Prepare for End of 
Title 42; Announces New Border Enforcement Measures and Additional 
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
---------------------------------------------------------------------------

    Comment: Some commenters stated that the United States is applying 
inconsistent policy by ending expulsions of noncitizens under the Title 
42 public health Order while simultaneously creating new restrictions 
on asylum. Commenters stated that the United States Government should 
not use the end of the Title 42 public health Order as an excuse to 
resurrect asylum restrictions. Commenters stated that the United States 
has expelled individuals from ``Central America, Haiti, and . . . 
Venezuela,'' nearly 2.5 million times while the Title 42 public health 
Order has been in place, which, according to commenters, has led to 
increasing numbers of deaths along the border. One commenter stated 
that it is ``ludicrous'' that the Government has acted as if the 
pandemic is over except in the context of welcoming asylum seekers. 
Conversely, some commenters stated that the ending of Title 42 is 
within the Administration's control and is not a necessary 
justification for the rule, and further critiqued the recent actions of 
the Departments to prepare for the termination as causative of the 
recent border crisis.
    Response: The Departments respectfully disagree that this action is 
inconsistent with the lifting of the Title 42 public health Order. It 
is important to note that the CDC's April 2022 decision to terminate 
the Title 42 public health Order and HHS's separate decision to not 
renew the public health emergency after May 11, 2023, resulting in the 
impending termination of the Title 42 public health Order, were based 
on considerations of public health, not immigration policy. HHS and CDC 
exercise authority under Title 42 of the U.S. Code to make public 
health determinations for a range of purposes. See 42 U.S.C. 265, 268; 
section 319 of the Public Health Service Act; 42 CFR 71.40. Throughout 
the COVID-19 pandemic, DHS and DOJ have relied and will continue to 
rely on the public health expertise of CDC and HHS, and DHS will 
implement relevant CDC orders to the extent that they remain in effect.
    After the Title 42 public health Order is lifted, migrants will be 
subject to Title 8 processing. The Departments anticipate that in the 
absence of this rulemaking, a significant further surge in irregular 
migration would then occur. Such a surge would risk (1) overwhelming 
the Departments' ability to effectively process, detain, and remove, as 
appropriate, the migrants encountered; and (2) placing additional 
pressure on States, local communities, and NGO partners both along the 
border and in the interior of the United States. This rule will 
disincentivize irregular migration and instead incentivize migrants to 
take safe, orderly, and lawful pathways to the United States or to seek 
protection in a third country.
ii. Ports of Entry Should Be Open to Anyone To Make an Asylum Claim
    Comment: Commenters stated that everyone escaping persecution 
should be able to seek safety in the United States by presenting at a 
POE, and that migrants should not be required to make appointments to 
present themselves or to seek asylum in third countries where they may 
face harm. Another commenter stated that the rule would limit asylum to 
the ``privileged and connected'' despite longstanding legal precedent 
holding that individuals should be able to access asylum regardless of 
manner of entry. One commenter stated that even if migrants have a 
relatively low chance of approval, they have a right to enter the 
United States and apply for asylum, because some claims will be 
successful. Commenters stated that the United States denies visas to 
many people who face persecution, so those same people should not be 
denied asylum for failing to travel with a visa. For example, at least 
one commenter stated that an average person from Central America would 
struggle to get a tourist, student, or other visa. Another commenter 
stated that everyone, regardless of manner of entry, manner of transit, 
nationality, or other arbitrary restriction, should have the right to 
seek asylum in the United States.
    Response: As discussed in more detail in Section IV.D.1 of this 
preamble, this rule does not deny anyone the ability to apply for 
asylum or other protection in the United States; instead, the 
Departments have exercised their authority to adopt additional 
conditions for asylum eligibility by adopting a rebuttable presumption 
of ineligibility for asylum in certain circumstances. The Departments 
acknowledge and agree that any noncitizen who is physically present in 
the United States may apply for asylum, but note that there is no 
freestanding right to enter or to be processed in a particular manner. 
See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 357, 452 (1950) (``At 
the outset we wish to point out that an alien who seeks admission to 
this country may not do so under any claim of right. Admission of 
aliens to the United States is a privilege granted by the sovereign 
United States Government''). Importantly, under this rule, any 
noncitizen will be able to present at a POE, and no individual--
regardless of manner of entry into the United States--will be turned 
away or denied the opportunity to seek protection in the United States 
under this rule. Noncitizens who lack documents appropriate for 
admission to the United States are encouraged and incentivized, but not 
required, to make an appointment using the CBP One app to present 
themselves at a POE for inspection.
    The use of the CBP One app will contribute to CBP's efforts to 
expand its SWB POE migrant processing capacity well beyond the 2010-
2016 daily POE average,\94\ resulting in increased access for 
noncitizens to POEs. Those who arrive at a POE without an appointment 
via the CBP One app may be subject to longer wait times for processing 
at the POE depending on daily operational constraints and 
circumstances. And this rule does not preclude such noncitizens, or 
other noncitizens who cross the southwest land border or adjacent 
coastal borders, from filing an asylum application. Indeed, in all 
cases, any noncitizen who is being processed for expedited removal may 
express or indicate a fear of return during the expedited removal 
process, and will be referred to USCIS for a credible fear interview, 
as appropriate. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). 
Also, noncitizens in section 240 removal proceedings have the 
opportunity to present information asserting fear or concern of 
potential removal. See INA 240(c)(4), 8 U.S.C. 1229a(c)(4). Although 
such individuals

[[Page 31343]]

may be presumptively ineligible for asylum under this rule, they may 
seek to establish that they are subject to an exception or to rebut 
that presumption, and they may also still seek statutory withholding of 
removal and CAT protection in the United States, as outlined in Section 
IV.E.8 of this preamble. The Departments also note that a purpose of 
this rule is to facilitate safe and orderly travel to the United 
States. Individuals who lack a visa are generally inadmissible to the 
United States, see INA 212(a)(7), 8 U.S.C. 1182(a)(7), and will remain 
so under this rule.
---------------------------------------------------------------------------

    \94\ See CBP STAT Division, U.S. Customs and Border Protection 
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of 
Field Operations (OFO) Daily Average (internal data report, 
retrieved Apr. 13, 2023).
---------------------------------------------------------------------------

iii. Belief That the Rule Will Result in Denial of Valid Asylum Claims
    Comment: Commenters stated that the rule would result in the denial 
of valid asylum claims and described the right to seek asylum as a 
human right. One commenter emphasized that, when Congress created the 
credible screening process, the premise of the screening was for 
adjudicators to err on the side of protection. Multiple commenters 
expressed concern that implementing the proposed rule would increase 
the likelihood that asylum seekers would be refouled or migrants 
returned to harmful conditions. One commenter said that denying a bona 
fide asylum claim and putting a would-be applicant at risk of danger is 
a greater mistake than making a positive credible fear determination 
that does not result in asylum. At least one commenter disagreed with 
the proposed rule's assertion that noncitizens who forgo certain lawful 
or orderly procedures are less likely to have a well-founded fear than 
those who do and stated that this assertion is unsupported.
    Commenters stated that the rule imposes conditions on noncitizens' 
access to asylum that have nothing to do with the merits of their 
asylum claims and merely puts up bureaucratic hurdles. One commenter 
stated that people often have no control or choice in how they get to 
the United States, which is a matter of survival. Another commenter 
stated that rushed procedure created by this rule would result in what 
the commenter describes as false negatives, as asylum seekers subjected 
to this process would be disoriented from their days in CBP's holding 
facilities, especially after undergoing a harrowing journey to the 
United States that likely included violence, persecution, and trauma. 
Commenters stated that instead of filtering out migrants with weak 
asylum claims, the rule would stop the most vulnerable from being able 
to apply for asylum. One commenter stated that it may be necessary for 
asylum seekers to cross the border by unscrupulous means to escape 
their persecutors and that this bolsters their case for asylum rather 
than detracts. Commenters stated that the exceptions to the proposed 
rule do little to provide meaningful safeguards for asylum seekers and 
would result in erroneous denials and forced return to countries where 
the noncitizen would face danger. Commenters stated that asylum seekers 
who are otherwise eligible for asylum but banned by the rule would 
likely be deported to danger. Other commenters stated that the 
framework of the rebuttable presumption would have negative effects and 
de facto be dispositive of asylum eligibility before noncitizens have a 
``fair shot at making their case.'' One commenter wrote that, 
concerning the one-year asylum filing deadline, numerous reports have 
shown the impact of such bars on returning individuals to harm.
    Response: The Departments disagree that the rule creates an 
unwarranted risk of denial of valid asylum claims. The U.S. asylum 
system is governed by statute and implementing regulations. To receive 
asylum, noncitizens must establish that (1) they meet the definition of 
a ``refugee,'' under section 101(a)(42) of the INA, 8 U.S.C. 
1101(a)(42), (2) they are not subject to a bar to applying for asylum 
or a bar to the granting of asylum, and (3) they merit a favorable 
exercise of discretion. See INA 208(a)(2), 8 U.S.C. 1158(a)(2); INA 
208(b)(1), 8 U.S.C. 1158(b)(1); INA 240(c)(4)(A), 8 U.S.C. 
1229a(c)(4)(A); 8 CFR 1240.8(d); see also Moncrieffe v. Holder, 569 
U.S. 184, 187 (2013) (describing asylum as a form of ``discretionary 
relief from removal''); Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 
2007) (``Asylum is a discretionary form of relief . . . . Once an 
applicant has established eligibility . . . it remains within the 
Attorney General's discretion to deny asylum.''). Because asylum is a 
discretionary form of relief from removal, the assumption that this 
rule will result in the risk of denial of valid asylum claims is 
incorrect because the noncitizen bears the burden of showing both 
eligibility for asylum and why the Attorney General or Secretary should 
exercise the discretion to grant relief. See INA 208(b)(1), 8 U.S.C. 
1158(b)(1); INA 240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A)(ii); 8 CFR 
1240.8(d); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).
    The Departments acknowledge that despite the protections preserved 
by the rule and the availability of lawful pathways, the rebuttable 
presumption adopted in the rule will result in the denial of some 
asylum claims that otherwise may have been granted, but the Departments 
believe that the rule will generally offer opportunities for those with 
valid claims to seek protection through asylum, statutory withholding 
of removal, or protection under the CAT. Moreover, the Departments have 
determined that the benefits to the overall functioning of the system, 
including deterrence of dangerous irregular migration and smuggling, 
justify the rule.
    The rule encourages those with meritorious claims to either apply 
for asylum or other protection in the first safe country they reach or 
pursue available lawful pathways as set forth in the rule. Noncitizens 
who apply for and are denied protection in a third country are not 
barred from asylum eligibility under this rule. The rule will preserve 
core asylum protections by permitting noncitizens subject to the 
presumption of asylum ineligibility to rebut it by showing 
exceptionally compelling circumstances that excuse their failure to 
pursue lawful pathways or processes. Furthermore, under the rule, 
noncitizens who are ineligible for asylum due to the lawful pathways 
condition remain eligible for protections from persecution and torture. 
Indeed, noncitizens who establish a reasonable possibility of 
persecution or torture are placed in section 240 removal proceedings 
where they can apply for asylum, statutory withholding of removal, and 
protection under CAT. 8 CFR 1208.33(b)(2)(ii), (b)(4). Thus, the rule 
does not prevent noncitizens from pursuing asylum nor does the rule 
create an unwarranted risk of denial of valid asylum claims.
iv. Belief That the Rule Will Increase Smuggling or Trafficking
    Comment: Commenters agreed that human trafficking is a serious 
concern, but asserted that this rule would make the problem worse. 
Commenters stated the proposed rule will not result in asylum seekers 
relying less on smuggling networks, but will actually increase their 
reliance on smugglers and increase their vulnerability to trafficking. 
One stated that desperate people turn to traffickers because they fear 
being turned away by authorities, and that the most effective way to 
remove traffickers' leverage is to open safe and legal pathways for 
immigration. Another commenter stated that the United States should 
make it easier to legally enter for work as a way to discourage 
trafficking by smugglers rather than implement the proposed rule. Some 
commenters stated human smuggling and trafficking were

[[Page 31344]]

problems of the Government's own making, and by discouraging migrants 
from coming to the border in a legal manner, the rule would increase 
the interactions between migrants and smugglers, as well as increasing 
the number of noncitizens without lawful immigration status in the 
United States. Commenters also stated that closing off the SWB and 
trapping migrants in dangerous parts of Mexico for a prolonged time 
exposes them to greater violence, exploitation, and other dangers, and 
heightens their risk of being trafficked. One commenter stated that in 
the event that people are unable to get an appointment through the CBP 
One app and are blocked from access to asylum, smuggling operations and 
organized crime in Mexico will only gain more power, take individuals 
on more treacherous routes to evade detection, and cause USBP to invest 
more resources to detain individuals. Another commenter stated that the 
rule would further embolden organized crime, corrupt state actors, and 
criminals, making migrants even more of a target and placing them at 
greater risk of being trafficked. One commenter stated, without 
evidence, that the TCT Bar Final Rule advantaged drug cartels and 
criminal organizations that target vulnerable populations, and asserted 
that this rule would have the same result.
    Commenters said that technical difficulties associated with the CBP 
One app have opened new avenues for exploitation; for example, 
traffickers claiming an ability to obtain appointments, or scams 
charging fees for completing a CBP One app registration. Similarly, one 
commenter said that individuals who lack access to stable Wi-Fi may 
seek Wi-Fi in dangerous places, including cities controlled by cartels. 
Another commenter wrote that the need for migrants to borrow a 
smartphone from a third party could create an opportunity to take 
advantage of migrants trapped at the U.S.-Mexico border to target them 
for extortion, sexual violence, or other harm. In contrast, based on 
its field monitoring, a different commenter stated that the CBP One app 
has led to a reduction in instances of fraud and abuse of migrants who 
previously relied on local actors to get on lists to request an 
exception to the Title 42 public health Order.
    Another commenter expressed concern that the proposed rule may 
discourage migrants from contacting U.S. law enforcement for fear of 
deportation, increasing the likelihood of trafficking and smuggling. 
One comment stated that the rule would continue the Administration's 
shameful legacy of facilitating mass trafficking and smuggling of 
vulnerable noncitizens because it is ``all bark and no bite'' due to 
its ``numerous loopholes and exceptions,'' unlike the TCT Bar 
rulemaking, which the commenter described as part of a multi-pronged 
strategy to secure the border.
    Response: The Departments acknowledge the commenters' concerns 
about smuggling and trafficking, but disagree with the either/or 
approach urged by some commenters. To prevent migrants from falling 
victim to smugglers and traffickers, the Departments believe it is 
necessary to both increase the availability of lawful pathways for 
migration and discourage attempts to enter the United States without 
inspection. The Departments anticipate that the newly expanded lawful 
pathways to enter the United States, in conjunction with the rule's 
condition on asylum eligibility for those who fail to exercise those 
pathways, will ultimately decrease attempts to enter the United States 
without authorization, and thereby reduce reliance on smugglers and 
human traffickers.
    DHS has recently created alternative means for migrants to travel 
to the United States via air through the CHNV parole processes, 
increased refugee processing in the Western hemisphere, and increased 
admissions of nonimmigrant H-2 workers from the region. 88 FR at 11718-
20. DHS also recently announced that it plans to create new family 
reunification parole processes for nationals of El Salvador, Guatemala, 
Honduras, and Colombia, and to modernize the existing Haitian Family 
Reunification Parole process and the Cuban Family Reunification Parole 
process.\95\ In addition, noncitizens' use of the CBP One app to 
schedule appointments to present at land border POEs is expected to 
enhance DHS's ability to process such individuals in a safe, orderly 
manner. As discussed later in Section IV.E.3.ii.a of this preamble, CBP 
anticipates processing several times more migrants each day at SWB POEs 
than the 2010-16 daily average,\96\ including through the use of the 
CBP One app. While the CBP One app provides noncitizens access to 
schedule arrivals at a POE, no CBP officer will dissuade or prevent any 
noncitizen who lacks a scheduled appointment from applying for 
admission to the United States. See INA 235(a)(4), U.S.C. 1225(a)(4); 8 
CFR 235.1, 235.4 (decision to withdraw application for admission must 
be made voluntarily).
---------------------------------------------------------------------------

    \95\ See DHS, New Actions to Manage Regional Migration (Apr. 27, 
2023).
    \96\ See CBP STAT Division, U.S. Customs and Border Protection 
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of 
Field Operations (OFO) Daily Average (internal data report, 
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec. 
Ass't Comm'r, Off. of Field Operations, from Troy A. Miller, Acting 
Comm'r, CBP, Re: Guidance for Management and Processing of 
Undocumented Noncitizens at Southwest Border Land Ports of Entry 
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------

    The Departments disagree that the CBP One app or accessibility 
issues associated with the CBP One app will increase reliance on 
smugglers and traffickers. The CBP One app is a free, public-facing 
application that can be downloaded on a mobile phone. 88 FR at 11717. 
As noted in the received comments, the International Organization for 
Migration (``IOM'') has, during its recent field monitoring, observed 
that the CBP One app has led to a reduction in instances of fraud and 
abuse of migrants who previously relied on local actors to get on lists 
to request an exception to the Title 42 public health Order, and 
recommended that CBP further develop the CBP One app to prevent 
glitches and incorporate improvements suggested by IOM and other 
stakeholders. CBP is continuing to improve the CBP One app and engage 
with stakeholders on potential improvements. The rule also contains an 
exception for situations where it was not possible to access or use the 
app due to language barrier, illiteracy, significant technical failure, 
or other ongoing and serious obstacle. 8 CFR 208.33(a)(2)(B), 
1208.33(a)(2)(B).
    The Departments also disagree with the assertion that, due to its 
exceptions and means of rebuttal, the rule will facilitate mass 
trafficking and smuggling of vulnerable noncitizens. The recently 
expanded lawful pathways are designed to allow migrants to travel 
directly to the United States without having to travel through Central 
America, where they might rely on smugglers or traffickers. In 
addition, some of the specific examples of exceptionally compelling 
circumstances are designed to protect victims or those at risk of 
trafficking. See 8 CFR 208.33(a)(3)(i)(B) and (C), 1208.33(a)(3)(i)(B) 
and (C).
    Finally, the Departments do not believe that the rule will 
discourage migrants from contacting U.S. law enforcement due to fear of 
deportation, and thereby place them at further risk of trafficking and 
smuggling. Migrants who enter the United States without inspection or 
apprehension by CBP are already subject to removal, see INA 
212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A), and victims of severe forms of 
trafficking or other crimes may be eligible to apply for

[[Page 31345]]

T or U nonimmigrant status, see INA 101(a)(15)(T) and (U), 8 U.S.C. 
1101(a)(15)(T) and (U).
4. Negative Impacts and Discrimination Against Particular Groups
i. General Comments on Discrimination
    Comment: Commenters raised concerns that the proposed rule could 
have a disproportionate impact on certain populations that may be 
vulnerable, including those without legal representation, those with 
limited English proficiency (``LEP''), families and children, victims 
of domestic and gender-based violence, victims of human trafficking, 
women, the LGBT community, those with mental impairments and associated 
competency issues, elderly individuals, those with limited 
technological literacy, those with physical disabilities, those with 
health problems or who are otherwise in need of medical attention, 
people of color, indigenous groups, survivors of persecution or 
torture, and those with post-traumatic stress disorder (``PTSD''), 
among others.
    For example, commenters stated that those without legal 
representation or with limited English proficiency may have difficulty 
understanding and complying with the process proposed by the rule, 
which commenters claimed requires access to technology, technological 
proficiency, and an understanding of the requirements prior to 
attempting entry at the SWB. Likewise, commenters suggested that groups 
including survivors of persecution or torture, the LGBT community, 
victims of domestic and gender-based violence, women, and noncitizens 
with mental impairments and associated competency issues may have 
difficulty applying for relief in a third country, as those countries 
may not have sufficiently robust humanitarian-relief systems to 
accommodate the particular issues faced by these and similar groups. 
For instance, many such individuals may have difficulty recounting the 
harms they suffered in their home countries without specialized 
procedures, and some third countries may not recognize their harms as 
qualifying for asylum in the same way that U.S. asylum law does. 
Similarly, commenters stated, some groups may also face particular 
discrimination or violence in third countries based on the same 
immutable characteristics for which they were persecuted in their home 
countries. Other commenters highlighted anecdotally that membership in 
one group has often intersected with membership in another, compounding 
the harm noncitizens have experienced in transit.
    Response: The Departments are committed to the equal treatment of 
all persons. This rule is intended to promote lawful, safe, and orderly 
pathways to the United States and is intended to benefit particularly 
vulnerable groups by removing the incentive to make a dangerous 
irregular migration journey and reducing the role of exploitative 
transnational criminal organizations and smugglers. See 88 FR at 11707. 
As detailed in the NPRM, irregular migration journeys can be 
particularly fraught for vulnerable groups, including those discussed 
in the following sections. See 88 FR at 11713 (explaining that women 
and children are ``particularly vulnerable to attack and injury'' as 
well as illness along an important migratory route). The incentivizing 
of the lawful pathways described in the NPRM is intended in part to 
encourage vulnerable groups to avoid such journeys while simultaneously 
preserving their ability to apply for asylum consistent with existing 
law and regulations. See, e.g., 88 FR at 11718 (explaining that the 
United States has taken ``meaningful steps'' to enhance lawful pathways 
for migrants to access protection). In addition, depending on 
individual circumstances, AOs and IJs may find that certain especially 
vulnerable individuals meet the exceptionally compelling circumstances 
standard.
ii. Children and Families
    Comment: Commenters raised concerns about the proposed rule's 
impact on children and families. In general, commenters stated that the 
United States has a legal and moral obligation to act in the best 
interest of children by preserving family unity and should be doing 
whatever it can to protect children seeking asylum, especially after 
prior family separation policies at the border. Commenters generally 
asserted that the proposed rule would expose children and families to 
continued violence and danger, limit their right to seek asylum, and 
deny children the opportunity to be safe and protected. Commenters 
provided anecdotal examples of migrant families and children who had 
been harmed or killed while waiting at the border to secure an 
appointment through the CBP One app or while attempting to travel to 
POEs with available appointments. Commenters asserted that the proposed 
rule would prevent accompanied children from presenting their own 
asylum claims independent of a claim presented by their parent or 
guardian. Commenters were concerned that the asylum ineligibility 
presumption would encourage families to separate at the SWB and prevent 
noncitizens from petitioning for their eligible derivatives, which 
commenters claimed would be a form of family separation, and described 
potential attendant negative consequences for children and families, 
such as trauma, familial instability, developmental delays, 
vulnerability to harm and exploitation, detention, placement in 
orphanages, and detention in inhumane conditions.
    Further, commenters asserted that all children, because of their 
unique needs and challenges, deserve additional procedural protections 
and child-sensitive considerations not included in the proposed rule. 
Commenters highlighted the vulnerability of children, the fact that 
children process trauma differently than adults do, and children's 
varied ability to understand complex immigration requirements, stating 
that the law recognizes the need for additional protections for 
children and to account for their best interests. Commenters also 
suggested that the proposed rule and any detention that it may require 
would re-traumatize children who have already experienced trauma, 
including trauma from their journey to the SWB. Other commenters 
suggested that any required detention may have serious ramifications on 
a child's well-being, mental health, and development.
    Additionally, commenters posited that the proposed rule could 
incentivize entire families to make a potentially dangerous journey to 
the United States together. Commenters stated that prior to the 
proposed rule, one family member might have journeyed alone to the 
United States to seek asylum with the understanding that they would be 
able to petition for family members upon being granted asylum. But 
under the proposed rule, those commenters stated, many families may be 
incentivized by what commenters consider a lack of asylum availability 
to undertake an unsafe journey to the SWB together rather than risk 
permanent family separation. Relatedly, commenters indicated that 
children compelled to wait at the SWB with a member of their family, so 
as not to be subject to the NPRM's condition on eligibility, may be 
deprived of access to other forms of status for which they may be 
eligible in the United States, such as Special Immigrant Juvenile 
classification. Commenters urged the Departments to prioritize 
processing family unit applications to keep families together and 
expressed that families deserve a chance to live together in the

[[Page 31346]]

United States to escape violence in their home countries.
    One commenter stated that children have little control over whether 
their parents can pre-schedule their arrival at a POE or choose to 
apply for protection in transit countries, but the proposed rule would 
condition asylum eligibility for the child on whether their parent did 
so. Similarly, other commenters stated that the proposed rule failed to 
consider or make an exception for the fact that children and young 
people generally have less control and choice with respect to their 
movement and may depend on the assistance of a parent, who may have 
been jailed or killed by persecutors, or who may themselves have harmed 
the child or young person, to apply and be approved for a visa.
    Response: The Departments share commenters' concerns about the 
vulnerability of children and note that UCs are entitled to special 
protections under the law. See 88 FR at 11724 (citing INA 208(a)(2)(E), 
8 U.S.C. 1158(a)(2)(E) (providing that safe-third-country bar does not 
apply to UCs); INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) (stating that 
an AO has initial jurisdiction over the asylum claims of UCs); and 8 
U.S.C. 1232(d)(8) (``Applications for asylum and other forms of relief 
from removal in which an unaccompanied alien child is the principal 
applicant shall be governed by regulations which take into account the 
specialized needs of unaccompanied alien children and which address 
both procedural and substantive aspects of handling unaccompanied alien 
children's cases.'')). The Departments also recognize commenters' 
concerns that children may be at risk for exploitation by criminal 
actors at and around the SWB, and the Departments note that UCs are of 
particular concern.
    Because of UCs' unique vulnerability and the special protections 
granted to them by law, the rule contains a provision categorically 
excepting UCs from the rebuttable presumption of ineligibility for 
asylum. 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i). Accordingly, because 
UCs will not be subject to the rebuttable presumption of ineligibility 
for asylum created by this rule, the Departments emphasize that UCs do 
not need to wait, potentially vulnerable, in Mexico before seeking 
entry to the United States or rely on smugglers to undertake a 
potentially dangerous journey across the SWB. Further, the Departments 
expect that the rule, by creating efficiencies and freeing up resources 
due to non-UC migrants pre-scheduling their arrival at SWB POEs, will 
allow for faster, smoother processing of UCs presenting at the SWB. See 
88 FR at 11719-20 (describing anticipated efficiencies from 
implementation of pre-scheduling through the CBP One app). The 
Departments believe that the rule sufficiently recognizes the unique 
situation of UCs and provides appropriate safeguards. For discussion of 
the exception to the condition on asylum eligibility for UCs, and 
comments suggesting a similar exception for accompanied children, 
please see Section IV.E.3.v of this preamble.
    The Departments acknowledge commenter concerns that children may 
not have the autonomy to make decisions about their transit or manner 
of entry into the United States. With those important realities in 
mind, the Departments have amended the language proposed in the NPRM to 
ensure that the presumption of asylum ineligibility will not apply to 
certain noncitizens who entered as children and who file asylum 
applications after the date range set forth in 8 CFR 208.33(a)(1)(i) 
and 1208.33(a)(1)(i)--specifically, those who are applying as principal 
applicants. See 8 CFR 1208.33(d)(2). Further, the Departments recognize 
that some children could be traveling with an adult but still meet the 
definition of UC at 6 U.S.C. 279(g)(2), for example, where the adult is 
not the child's parent or legal guardian. Such children would also be 
excepted from the presumption against asylum eligibility as UCs. See 8 
CFR 208.33(a)(2)(i), 1208.33(a)(2)(i). The Departments believe that the 
aforementioned provisions of the rule prevent those who entered as 
children from facing a continuing impact on asylum eligibility based 
upon decisions that others likely made for them.
    As discussed in more detail in Section IV.E.3.ii.b of this 
preamble, the Departments emphasize that family units traveling 
together should schedule their appointments together through the CBP 
One app. Families or groups traveling together who do not register 
together on one CBP One app account may not be accommodated at the same 
POE or date. Further, as stated in the NPRM, when family units are 
subject to a credible fear screening, USCIS will find that the entire 
family passes the screening if one family member establishes a credible 
fear. 88 FR at 11724; see 8 CFR 208.30(c). Likewise, when the 
reasonable possibility standard applies, USCIS will continue to process 
claims from family units in this way. 88 FR at 11724 (``USCIS will 
continue to process family claims in this manner even when applying the 
reasonable possibility standard.'').
    The Departments also acknowledge commenter concerns related to the 
impact that any potential detention may have on children and families, 
as well as the effects of trauma on children. However, this rule 
neither addresses nor expands detention policies, and therefore 
specific concerns related to detention are outside the scope of this 
rule. Further, with respect to the effects of trauma on children and 
concerns about re-traumatization, the Departments are confident in the 
ability of AOs and IJs to follow appropriate safeguards available for 
children in processing with USCIS and the immigration courts and note 
that adjudicators receive training and guidance related to special 
considerations in cases involving children.\97\
---------------------------------------------------------------------------

    \97\ See, e.g., Department of Justice, EOIR, OPPM 17-03: 
Guidelines for Immigration Court Cases Involving Juveniles, 
Including Unaccompanied Alien Children (Dec. 20, 2017), https://www.justice.gov/eoir/file/oppm17-03/download (recognizing unique 
circumstances presented by immigration cases involving children and 
providing guidance for those cases); USCIS, RAIO Directorate--
Officer Training: Children's Claims (last revised Dec. 20, 2019), 
https://www.uscis.gov/sites/default/files/document/foia/Childrens_Claims_LP_RAIO.pdf [hereinafter USCIS, Children's Claims] 
(providing guidelines for adjudicating children's claims).
---------------------------------------------------------------------------

    However, the Departments disagree with commenters' contention that 
children waiting for an appointment to present at a POE together with 
their family unit will be deprived of Special Immigrant Juvenile 
classification. Whether a noncitizen enters alone or with a family unit 
is not dispositive to the statutory definition of a ``special 
immigrant.'' See INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J) (defining 
``special immigrant,'' in part, as an immigrant who is present in the 
United States ``who has been declared dependent on a juvenile court 
located in the United States or whom such a court has legally committed 
to, or placed under the custody of, an agency or department of a State, 
or an individual or entity appointed by a State or juvenile court 
located in the United States,'' and whose reunification with one or 
both of the immigrant's parents ``is not viable due to abuse, neglect, 
abandonment, or a similar basis found under State law''). Further, the 
Departments highlight that nothing in this rulemaking prevents a 
noncitizen child from obtaining Special Immigrant Juvenile 
classification after entering the United States, provided that they are 
otherwise eligible for such status.
    Moreover, the Departments disagree with the characterization of 
this rule as contributing to family separation rather

[[Page 31347]]

than focusing on family unity. The Departments drafted this rule with 
the goal of eliminating the risk of separating families. As explained 
above, the rule has several provisions to ensure that family units are 
processed together. For example, if any noncitizen in a family unit 
traveling together meets an exception to, or is able to rebut, the 
asylum ineligibility presumption, the presumption will not apply to 
anyone in the family unit traveling together. 8 CFR 1208.33(a). 
Similarly, the rule contains an explicit family unity provision 
applicable in removal proceedings. Id. 1208.33(c). The provision states 
that if a principal applicant for asylum is eligible for statutory 
withholding of removal or withholding of removal under the CAT and 
would be granted asylum but for the rebuttable presumption created by 
this rule, the presumption ``shall be deemed rebutted as an 
exceptionally compelling circumstance'' where an accompanying spouse or 
child does not independently qualify for asylum or other protection or 
the principal asylum applicant has a spouse or child who would be 
eligible to follow to join that applicant as described in section 
208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), if the applicant were 
granted asylum. Id. This provision is intended to prevent the 
separation of families. Additionally, this provision is intended to 
avoid incentivizing families to engage in irregular migration together, 
so as not to risk that the principal applicant be prevented from later 
applying for their family members to join them. This may involve making 
a dangerous journey with vulnerable family members such as children.
    Further, the rule incentivizes families, as well as individuals 
traveling without their families, to take advantage of the lawful 
pathways outlined in this rule, rather than rely on smugglers or 
criminal organizations to facilitate a potentially dangerous journey. 
The rebuttable presumption is intended to disincentivize making such 
irregular journeys. See, e.g., 88 FR at 11730 (``The proposed rule aims 
to achieve that shift in incentives by imposing a rebuttable 
presumption of asylum ineligibility.''). The Departments believe that 
the meaningful pathways detailed in the rule, combined with the 
exceptions and rebuttals to the presumption, provide sufficient 
opportunities for individuals to meet an exception to or rebut the 
presumption, which could preclude asylee status and the ability to 
later petition for eligible derivatives. Finally, commenter concerns 
related to placing separated children in orphanages are outside the 
scope of this rulemaking, but the Departments emphasize that nothing in 
this rule would authorize such a process.
    For additional discussion of concerns related to due process, see 
Section IV.B.5 of this preamble. For more discussion of the family 
unity provision applicable in removal proceedings, please see Section 
IV.E.7.ii of this preamble.
iii. Individuals With LEP
    Comment: Commenters expressed the belief that the proposed rule 
would function as a complete ban on asylum for noncitizens who are not 
sufficiently proficient or literate in the languages they would need to 
use to successfully navigate available lawful pathway options. As a 
foundational issue, commenters voiced the opinion that due to language 
and literacy barriers, many noncitizens, particularly those who speak 
rare languages and those with limited literacy in their native 
languages, would not be able to understand what lawful pathways are 
available to them or the consequences that may result from not pursuing 
a lawful pathway under the proposed rule. For example, some commenters 
stated that many asylum seekers who are unfamiliar with U.S. 
immigration law may not know what steps to take to preserve their 
eligibility for asylum.
    Commenters also indicated that many noncitizens would be unable to 
meaningfully access the CBP One app due to inadequate proficiency or 
literacy in the app's supported languages and therefore would be unable 
to pre-schedule their appearance at a POE, making them subject to the 
rule's presumption of asylum ineligibility. Commenters provided 
examples of individuals who they asserted would be disproportionately 
impacted by the rule and face particular challenges, including those 
who speak an Afghan dialect of the Persian language, monolingual 
speakers of indigenous languages, and members of the Asian-Pacific 
Islander community whose primary languages do not utilize the Latin 
script.
    Response: Due to the safeguards crafted into the rule and the 
success of similar, recently implemented parole processes, the 
Departments disagree with commenters' contentions that language and 
literacy barriers will prevent many noncitizens from foundationally 
understanding what lawful pathway options are available to them.
    The Departments acknowledge commenters' concerns that some 
noncitizens who wish to use the lawful pathway of pre-scheduling their 
arrival may have language and literacy-related difficulty with 
accessing and using the CBP One app. Accordingly, the rule provides an 
exception to application of the rebuttable presumption of asylum 
ineligibility for noncitizens who present at a POE without a pre-
scheduled appointment who can demonstrate through a preponderance of 
the evidence that, because of a language barrier or illiteracy, it was 
not possible for them to access or use the DHS scheduling system to 
pre-schedule an appointment. 8 CFR 208.33(a)(2)(ii)(B), 
1208.33(a)(2)(ii)(B). AOs will follow established procedures for 
interviewing individuals to determine applicability of this exception. 
Similarly, IJs will follow established procedures for soliciting 
testimony and developing the record, as appropriate.
    The Departments also believe the processes highlighted in this 
rulemaking will be navigable for noncitizens--regardless of language 
spoken--as evidenced by the success of the recent, similar U4U and CHNV 
parole processes, both of which are offered to noncitizens from 
countries where the primary language is one other than English. See, 
e.g., 88 FR at 11706-07 (noting that the U4U and CHNV parole processes 
resulted in vastly fewer irregular border crossings, demonstrating that 
noncitizens from Ukraine, Cuba, Haiti, Nicaragua, and Venezuela were 
able to take advantage of the U4U and CHNV parole processes). The 
success of the U4U and CHNV parole processes suggests that these 
noncitizens are broadly aware of changes to U.S. immigration processes, 
that such information is being communicated to noncitizens outside the 
United States, and that noncitizens are changing migration behaviors in 
response. In addition, the Departments intend to engage in robust 
regional public awareness campaigns to promote understanding of the 
rule, building on ongoing efforts to encourage intending migrants to 
avail themselves of lawful pathways and publicize the perils of 
irregular migration. Therefore, the Departments believe that, 
irrespective of language spoken, noncitizens outside of the United 
States will become apprised of the lawful pathway options laid out in 
this rule.
iv. Individuals With Mental Impairments and Associated Mental 
Competency Issues
    Comment: Commenters raised concerns about the proposed rule's 
effect on noncitizens who have mental impairments and associated mental 
competency issues. Commenters stated

[[Page 31348]]

that some mental impairments result in symptoms that would impact an 
individual's ability to apply for asylum under any circumstances, 
especially if access to medical services is unavailable. Moreover, 
commenters stated that downloading, registering for, and using the CBP 
One app may be too difficult for some noncitizens with mental 
impairments and associated mental competency issues. Thus, commenters 
recommended exempting such persons from the rule.
    Response: The Departments recognize the difficulties faced by 
noncitizens with mental impairments and associated competency issues. 
Under this rule, AOs and IJs may consider, on a case-by-case basis, 
whether a noncitizen's or accompanying family member's mental 
impairments or associated competency issues presented an ``ongoing and 
serious obstacle'' to accessing the DHS scheduling system. 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). In addition, depending on 
the noncitizen's or accompanying family member's particular 
circumstances, any serious mental impairments or associated competency 
issues may qualify as an ``exceptionally compelling circumstance'' 
sufficient to rebut the presumption of ineligibility for asylum. 8 CFR 
208.33(a)(3)(i), 1208.33(a)(3)(i). Notably, the ``acute medical 
emergency'' ground for rebutting the presumption of asylum 
ineligibility is not limited to physical medical ailments but could 
include mental health emergencies. 8 CFR 208.33(a)(3)(i)(A), 
1208.33(a)(3)(i)(A).
    Procedurally, DHS has discretion to place noncitizens in expedited 
removal proceedings or refer noncitizens to EOIR for section 240 
removal proceedings. Matter of E-R-M- & L-R-M, 25 I&N Dec. 520 (BIA 
2011). Therefore, DHS may choose to refer noncitizens who exhibit 
indicia of mental incompetency to EOIR for removal proceedings under 
section 240 of the INA, where an IJ may more fully consider whether the 
noncitizen shows indicia of incompetency and, if so, which safeguards 
are appropriate. See, e.g., Matter of M-A-M-, 25 I&N Dec. 474 (BIA 
2011).
v. Low-Income Individuals
    Comment: Commenters asserted that the proposed rule discriminates 
against noncitizens who cannot afford to arrive in the United States by 
air or sea and favors individuals with more financial resources. In 
general, commenters stressed that a noncitizen's method of arrival in 
the United States--whether by land, air, or sea--should not dictate 
their eligibility for asylum and stated that asylum laws should not 
have a ``wealth test'' for access to protection from persecution. 
Pointing to the fact that the proposed rule would only apply to 
noncitizens arriving by land at the SWB, commenters said that the 
proposed rule would have a disparate impact on individuals, 
particularly working-class, non-white migrants, who do not have the 
economic means to purchase a plane ticket or obtain a visitor visa or 
passport and may not have existing supportive relationships within the 
United States. Commenters stated that the lawful pathways identified in 
the proposed rule--including parole programs and use of DHS scheduling 
technology--prioritize individuals with financial means over those who 
are indigent.
    At least one commenter stated that the proposed rule would cause 
migrants financial hardship, as not all migrants have the financial 
resources to travel to a third country to seek asylum before attempting 
to cross the SWB. Commenters also suggested that the proposed rule 
would privilege migrants with the economic means to maintain a working 
smartphone capable of operating the CBP One app and either pay for data 
roaming capability or remain in an area with internet access. 
Commenters also stated that the proposed rule unfairly benefits 
wealthier noncitizens who are more likely to be able to use an approved 
parole process because such noncitizens may be immediately eligible for 
employment authorization while low-income noncitizens who are not able 
to use such a parole process remain without immediate employment 
authorization. Commenters concluded that the proposed rule would amount 
to a de facto ban on asylum that targets economically disadvantaged 
noncitizens without options other than arriving at the SWB.
    Response: As explained in the NPRM, the Departments are issuing 
this rule specifically to address an anticipated surge of migration at 
the SWB following the lifting of the CDC's Title 42 public health 
Order. 88 FR at 11704. Through this rule, the Departments have decided 
to address such a surge one step at a time, beginning with the SWB, 
where the Departments expect a surge to focus most intensely and 
immediately. So, tailoring the rule to apply exclusively to migrants 
arriving from Mexico at the southwest land border or adjacent coastal 
borders \98\ who meet certain conditions but not to migrants arriving 
via other means is appropriate based on existing and anticipated 
conditions at the SWB, many of which the Departments outlined in the 
NPRM. See id. at 11705-07. Where conditions necessitate, the 
Departments can reevaluate the scope of the rule. Cf. FCC v. Fox 
Television Stations, Inc., 556 U.S. 502, 522, 129 S. Ct. 1800, 1815 
(2009) (stating that ``[n]othing prohibits federal agencies from moving 
in an incremental manner''); City of Las Vegas v. Lujan, 891 F.2d 927, 
935 (D.C. Cir. 1989) (explaining that ``agencies have great discretion 
to treat a problem partially'' including through a ``step toward a 
complete solution''). Indeed, as stated above, the Departments intend 
that the rule will be subject to review to determine whether the entry 
dates provided in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i) should be 
extended, modified, or remain as provided in the rule.
---------------------------------------------------------------------------

    \98\ As explained in Section II.C.3 of this preamble, the 
Departments have decided to apply this rule to migrants arriving 
from Mexico not only at the southwest land border but also at 
``adjacent coastal borders,'' which matches the geographic scope of 
the CDC's Title 42 public health Order.
---------------------------------------------------------------------------

    Commenters who expressed concerns that this rule would cause 
financial hardship to migrants by requiring them to travel to a third 
country to seek asylum before arriving at the SWB misunderstand the 
terms of this rule. The rule does not require any migrant to travel to 
a third country to overcome the rebuttable presumption--indeed, the 
rebuttable presumption does not apply to those who did not travel 
through a third country--and seeking protection in a third country is 
merely one of several means to qualify for an exception to or rebut the 
presumption. Moreover, this rule is intended in part to address 
existing conditions impacting low-income individuals by reducing 
opportunities for smugglers to recruit migrants to participate in 
``expensive and dangerous human smuggling schemes.'' 88 FR at 11705.
    Further, except for those for whom Mexico is their country of 
nationality or last habitual residence, individuals arriving at the 
southwest land border or adjacent coastal borders, whether they have 
traveled by land, air, or sea, to arrive there, necessarily travel 
through another country--and, often, more than one other country--en 
route to the United States. Also, while individuals traveling from 
their country of nationality or last habitual residence to the United 
States may arrive directly in the United States without transiting 
another country, they generally are not permitted to board an aircraft 
or vessel to a U.S. location without first demonstrating that they have 
the travel documents required for entry into the United States. See, 
e.g., INA 211, 8 U.S.C. 1181 (setting forth requirements for immigrant 
admission); see also INA

[[Page 31349]]

217, 8 U.S.C. 1187 (visa waiver requirements); INA 221 through 224, 8 
U.S.C. 1201 through 1204 (visas); INA 231, 8 U.S.C. 1221 (establishing 
air and vessel manifest requirements including mandating the collection 
of passport numbers); see also 8 CFR 212.5(f) (providing that DHS may 
issue ``an appropriate document authorizing travel'' for those seeking 
to travel to the United States without a visa).
    This rule does not intend to penalize migrants based on economic 
status, a lack of travel documents, lack of phone or internet access, 
or exigent circumstances, nor does it do so in effect. Indeed, the 
Departments recognize that many individuals are only able to enter the 
United States via the SWB due to just such circumstances and, in 
recognition of this reality, have identified several pathways and 
processes through which such individuals may travel to the SWB in a 
safe and orderly fashion and, once present, seek asylum or other 
protection. One such pathway or process includes pre-scheduling their 
arrival, which at this time can be accomplished via the CBP One app. 
Without a pre-scheduling system, migrants seeking to travel to the SWB 
may have to wait for an indeterminate amount of time for CBP to have 
resources available to process them. See 88 FR at 11720. Pre-scheduling 
provides noncitizens seeking to present at a SWB POE with a clear 
understanding of when CBP expects to process them, which allows them to 
plan for safer transit and reduces opportunities for smugglers and 
criminal organizations. See id. at 11707. Moreover, the rule excepts 
from application of the condition on asylum eligibility those 
noncitizens who presented at a POE and can establish, based on the 
preponderance of the evidence, that it was not possible for them to 
access or use the DHS scheduling system, including because they had 
insufficient phone or internet access. See 8 CFR 208.33(a)(2)(ii)(B), 
1208.33(a)(2)(ii)(B) (providing the presumption does not apply ``if the 
alien demonstrates by a preponderance of the evidence that it was not 
possible to access or use the DHS scheduling system due to . . . 
significant technical failure, or other ongoing and serious 
obstacle'').
    In response to commenters' concerns about differences in 
eligibility for employment authorization depending on whether a migrant 
entered the United States following use of the CBP One app, a DHS-
approved parole process, or some other means, the Departments 
acknowledge that the employment authorization rules may vary depending 
on the pathway that a noncitizen uses to enter the United States and 
how the noncitizen is processed. This has always been the case, and 
although this rule recognizes certain lawful pathways as a basis to 
avoid the rebuttable presumption, such pathways would exist 
irrespective of this rulemaking. The Departments also note that 
individuals in expedited removal proceedings, including those 
determined to have a credible fear who are then paroled from custody, 
remain ineligible to apply for employment authorization on the basis of 
this exercise of parole. 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). The NPRM 
did not propose to revise any regulations governing employment 
authorization eligibility, and the final rule does not make any such 
changes either.
vi. Allegations of Discrimination on Race, Ethnicity, or Nationality 
Grounds
    Comment: Commenters raised concerns that the proposed rule would 
have a discriminatory impact based on nationality and effectively deny 
protection to migrants from certain countries. For example, commenters 
alleged that the proposed rule would have a disproportionately negative 
impact on noncitizens from countries in Africa, the Caribbean, Central 
America, and Latin America who do not currently fall under any large-
scale parole initiatives and are more likely to seek asylum via arrival 
at the SWB, with some commenters describing the rule as a de facto ban 
for these populations. Commenters also stated that noncitizens from 
China specifically, and Asia more generally, would be 
disproportionately impacted by the rule as a result of lasting effects 
from reduced refugee admissions under the prior Administration, which, 
commenters said, increased the number of individuals from these 
countries seeking entry to the United States at the SWB. Likewise, 
commenters noted that noncitizens from Afghanistan would be 
disproportionately impacted by the rule due to potential danger in 
third countries.
    Further, commenters noted that the Administration has created 
special immigration programs for citizens of certain countries--
including Cuba, Haiti, Nicaragua, Ukraine, and Venezuela--in response 
to various political and humanitarian conditions in those countries, 
but has not done so for citizens of certain other countries. Commenters 
questioned why citizens from these countries are offered special 
programs to enter the United States while citizens from other countries 
do not have the same opportunities, which commenters claimed was 
discriminatory and raised equal protection concerns.
    Commenters also raised equal protection concerns because 
noncitizens subject to the rule's rebuttable presumption would be 
treated differently from those not subject to the rule based on the 
date, location, and manner of their entry into the United States. As a 
result, commenters argued that the rule would have a disparate impact 
on asylum applicants from less affluent countries, who do not have easy 
access to air travel or nonimmigrant visas.
    Additionally, commenters asserted that the rule discriminates based 
on race and ethnicity and would have a disproportionate impact on 
persons of certain races and ethnicities for equal protection purposes. 
Commenters pointed to the Government's response to Ukrainian refugees 
as evidence that the United States is capable of accepting asylum 
seekers and refugees and stated that the difference in treatment 
between Ukraine and other countries was racially motivated.
    Lastly, commenters suggested that it was facially discriminatory to 
require migrants from countries other than Mexico to first apply for 
asylum in transit countries, as it would result in their quick removal 
and force them to wait for a number of years before they could reapply 
for asylum in the United States.
    Response: The rule does not classify noncitizens based on race, 
ethnicity, nationality, or any other protected trait. Nor, as 
elaborated below, are the Departments issuing the rule with 
discriminatory intent or animus. As the Departments explained in the 
NPRM, the rule is intended to address an anticipated increase in 
migrants arriving at the SWB following the lifting of the Title 42 
public health Order and the resultant strain the anticipated surge 
would put on DHS and DOJ resources. See 88 FR at 11728. As such, the 
rule's scope and applicability are intended to address this anticipated 
migration surge. See generally id.
    Additionally, although the rule imposes a rebuttable presumption of 
ineligibility if noncitizens seek to enter the United States at the SWB 
outside of an established lawful pathway and do not seek protection in 
a third country through which they travel en route to the United 
States, that presumption does not constitute a ``de facto ban'' on 
asylum for noncitizens of any race, ethnicity, or nationality, given 
the opportunities to avoid the presumption and, for those unable to do 
so, to establish an exception to or rebut it. Irrespective of race, 
ethnicity, or

[[Page 31350]]

nationality, noncitizens will not be subject to the presumption if they 
apply for and are denied asylum or other protection in a third country 
they transit while en route to the United States, but no noncitizen is 
required to do so. See 8 CFR 208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). 
Likewise, regardless of race, ethnicity, or nationality, noncitizens 
will not be subject to the presumption if they schedule an appointment 
to present at a POE using the CBP One app. See 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). In addition, irrespective of 
race, ethnicity, or nationality, noncitizens who are subject to the 
rule's presumption will have the opportunity to rebut it in certain 
circumstances, including if at the time of their entry they or a family 
member with whom they traveled was experiencing an acute medical 
emergency, an imminent and extreme threat to life or safety, a severe 
form of trafficking, or another exceptionally compelling circumstance. 
8 CFR 208.33(a)(3), 1208.33(a)(3). Further, noncitizens of every race, 
ethnicity, and nationality may apply for other relevant immigration 
processes that are applicable to them. The rule's approach balances the 
needs to address current and expected circumstances at the SWB, to 
avoid unduly negative consequences for noncitizens, to avoid unduly 
negative consequences for the U.S. immigration system, and to provide 
ways for individuals to seek protection in the United States and other 
countries in the region. 88 FR at 11730.
    The Departments disagree that the rule violates the Equal 
Protection Clause \99\ to the extent that the rule applies to 
noncitizens who arrive in the United States at a particular location, 
by a particular method, or after a particular date. Noncitizens who 
utilize a lawful pathway, meet an exception to the rule's presumption, 
or rebut the presumption will not be subject to the rule's condition on 
eligibility, irrespective of their country of origin or the method by 
which they arrive. The ability to afford a plane ticket or qualify for 
a visa is not a requirement to meet an exception to or rebut the 
presumption of ineligibility under the rule. And with respect to 
concerns about dates of entry, the Departments note that Federal 
immigration laws, including regulations that impose conditions on 
asylum, routinely apply to migrants who arrive or file their 
application for relief after, but not before, a particular effective 
date. See, e.g., INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B); 8 CFR 
208.4(a) (imposing filing deadline on asylum applications filed after 
April 1, 1997, and tying that deadline to the applicant's date of 
arrival in the United States); 8 CFR 208.13(b)(3), 1208.13(b)(3) (2020) 
(imposing conditions related to internal relocation, applied per 8 CFR 
208.1(a) to applications filed after the regulatory effective date of 
April 1, 1997).\100\
---------------------------------------------------------------------------

    \99\ Although the Equal Protection Clause of the Fourteenth 
Amendment does not apply to the United States Government, the 
Supreme Court in Bolling v. Sharpe, 347 U.S. 497, 499 (1954), held 
that while `` `equal protection of the laws' is a more explicit 
safeguard of prohibited unfairness than `due process of law,' . . . 
discrimination may be so unjustifiable as to be violative of due 
process.'' The Court concluded that ``[i]n view of [its] decision 
that the Constitution prohibits the states from maintaining racially 
segregated public schools, it would be unthinkable that the same 
Constitution would impose a lesser duty on the Federal Government.'' 
Id. at 500.
    \100\ This provision was amended by a prior rulemaking, 
Procedures for Asylum and Withholding of Removal; Credible Fear and 
Reasonable Fear Review, 85 FR 80274, 80281 (Dec. 11, 2020), which 
was preliminarily enjoined and its effectiveness stayed before it 
became effective. See Pangea II, 512 F. Supp. 3d at 969-70 
(preliminarily enjoining the rule). The district court's order 
remains in effect, and thus the 2020 version of this provision--the 
version immediately preceding the enjoined amendment--is currently 
effective.
---------------------------------------------------------------------------

    Further, as detailed in the NPRM, the United States previously has, 
and is still, committed to taking significant steps to expand pathways 
and processes for migrants to enter the country in a safe and lawful 
way. 88 FR at 11718-20. In addition to creating parole processes for 
citizens of certain countries, the United States has announced 
``significant increases to H-2 temporary worker visas and refugee 
processing in the Western Hemisphere'' and worked closely with other 
countries in the region ``to prioritize and implement a strategy that 
advances safe, orderly, legal, and humane migration, including access 
to international protection for those in need, throughout the Western 
Hemisphere.'' Id. at 11718, 11720. Moreover, the Departments remain 
committed to continuing to work with foreign partners on expanding 
their legal options for migrants and expanding the Departments' own 
mechanisms for processing migrants who lawfully arrive in the United 
States. Id. at 11720, 11722, 11729.
    As to certain commenters' concerns that the rule discriminates 
among noncitizens based on whether their country of nationality has a 
parole process, the Departments did not promulgate the rule, or design 
its applicability and scope, with a discriminatory purpose or intent. 
Instead, the rule is designed to ``encourage migrants to avail 
themselves of lawful, safe, and orderly pathways into the United 
States, or otherwise to seek asylum or other protection in countries 
through which they travel, thereby reducing reliance on human smuggling 
networks that exploit migrants for financial gain.'' Id. at 11704. As 
elaborated on later in this preamble, lawful pathways are available to 
noncitizens from all countries, and country-specific processes are 
available without regard to race or ethnicity. See, e.g., id. at 11704, 
11706 (listing and explaining processes and programs). Thus, the 
existence of special processes and programs for qualifying noncitizens 
from certain countries does not demonstrate that the rule was 
promulgated ``for a discriminatory purpose or intent,'' as required to 
show a violation of the Equal Protection Clause. United States v. 
Barcenas-Rumualdo, 53 F.4th 859, 864 (5th Cir. 2022) (citing Village of 
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 
(1977)). Moreover, Congress regularly makes laws that distinguish among 
individuals on the basis of nationality; indeed, the ``whole of Title 8 
of the United States Code, regulating aliens and nationality, is 
founded on'' such distinctions. Mathews v. Diaz, 426 U.S. 67, 78 n.12, 
80 (1976). Yet, ``such disparate treatment'' is not by itself 
```invidious.''' Id. at 80.
vii. Other Underserved or Vulnerable Populations
a. Women, Domestic Violence Survivors, and LGBT Individuals
    Comment: Commenters raised concerns that the rule would have a 
disproportionate impact on certain particularly vulnerable populations, 
such as women, including domestic violence and sexual assault survivors 
and younger, pregnant, and indigenous women, as well as the LGBT 
community, and those noncitizens who are disabled, elderly, or HIV 
positive, among others. Commenters stated that these populations would 
face discrimination, violence, extortion, and persecution in transit 
countries. Commenters also asserted that applying for a parole process 
and waiting for approval in one's home country may not be a viable 
option for such groups who need to leave a dangerous situation 
immediately. As a result, commenters stated that such groups should be 
exempted from the rule.
    Commenters asserted, for example, that women and girls would be at 
high risk for sexual and gender-based violence in transit countries or 
if forced to wait in Mexico for their scheduled SWB POE appointments. 
Similarly, commenters raised concerns that the LGBT community would 
face persecution, violence, and inadequate

[[Page 31351]]

access to medical care, among other harms, in transit countries, 
particularly if required to wait to schedule an SWB POE appointment 
through the CBP One app or apply for asylum in those countries. 
Commenters also noted that it is unclear if claims related to 
persecution based on sexual orientation and gender identity would be 
recognized in many common transit countries. Additionally, commenters 
stated that the rule, particularly the family unity provision, would 
exclude LGBT families, as legal protections such as marriage or LGBT-
inclusive family protections are unavailable or inaccessible to LGBT 
individuals and families in many countries.
    Further, commenters noted that many of these groups, including 
domestic violence survivors, torture survivors, and those with PTSD, 
may, as a result of psychological trauma, have difficulty recounting 
traumatic events underlying their claims during credible fear 
screenings--a difficulty that commenters said would be exacerbated if 
members of such groups must also present evidence about the rebuttable 
presumption of asylum ineligibility. As a result, commenters stated 
that traumatized noncitizens would not have sufficient time to gather 
their thoughts or collect relevant evidence. Moreover, commenters 
stated that recounting such incidents may risk retraumatizing such 
individuals. Similarly, commenters asserted that such groups are often 
reluctant to speak about what happened to them and may not express 
their fear of return to someone in a third country who could inform 
them of their right to apply for asylum.
    Response: The Departments recognize that certain populations may be 
particularly vulnerable during transit to the United States. 
Accordingly, the purpose of the rule is to encourage migrants, 
including those who may be seeking asylum, to pursue safe, orderly, and 
lawful pathways to the United States rather than attempt irregular 
migration journeys, which often subject migrants to dangerous human 
smuggling networks. See, e.g., 88 FR at 11713-14 (noting that women 
face particular vulnerabilities along certain portions of the irregular 
migration route to the SWB). The rule details multiple potential 
pathways and processes available to many migrants, including those who 
seek protection, that do not involve a dangerous journey to the United 
States. See id. at 11718-23. Notably, amongst those options, the rule 
does not require noncitizens to apply for asylum in third countries 
where they may also face persecution or other harm. Moreover, applying 
for asylum in a third country is only one of multiple options migrants 
may pursue. For a more in-depth examination of third-country safety for 
migrants, please see the further discussion of specific third countries 
later in this preamble in Section IV.E.3.iv (``Third Countries''). See 
also 88 FR at 11720-23 (NPRM discussing ``Increased Access to 
Protection and Other Pathways in the Region''). Additionally, the 
Departments note that the rule provides that its presumption of asylum 
ineligibility can be rebutted by noncitizens, including those with 
particular vulnerabilities, who do not utilize a lawful pathway but who 
face imminent and extreme threats to life or safety, such as an 
imminent threat of rape, kidnapping, torture, or murder, or who were 
victims of a severe form of trafficking in persons. See 8 CFR 
208.33(a)(3)(i)(B) and (C), 1208.33(a)(3)(i)(B) and (C).
    The Departments also recognize that migrants' protection claims may 
be premised on past traumatic events in their home countries, which can 
be difficult to recount. However, the rule does not change the credible 
fear process that Congress has instituted, which involves detailing 
these events to a DHS officer so that the officer can make a credible 
fear determination. See generally INA 235(b)(1)(B), 8 U.S.C. 
1225(b)(1)(B); 8 CFR 208.30(d) and (e). The rule merely adds a 
condition on asylum eligibility in the form of a rebuttable 
presumption. During the credible fear screening, noncitizens may 
demonstrate why they believe that the presumption is inapplicable or an 
exception or rebuttal ground exists. The rule does not impose an 
infeasible requirement for noncitizens with meritorious claims to show 
that the presumption does not apply, or that they qualify for an 
exception or rebuttal to the presumption, during the credible fear 
screening process. See 8 CFR 208.30(d)(4). In addition, AOs and IJs 
have conducted credible fear assessments for many years and are well-
trained in accounting for any potential trauma that may be relevant.
b. Unrepresented Individuals
    Comment: Commenters raised concerns that unrepresented noncitizens 
would not understand the rule's requirements, particularly the need to 
take affirmative steps outside of the United States, such as through 
applying for protection in a third country or scheduling an SWB POE 
appointment through the CBP One app. Commenters also expressed that the 
proposed rule did not explain how information about the rule's 
requirements would be disseminated. Similarly, commenters stated that 
unrepresented noncitizens may have received little or no information 
during the screening process and may not understand their rights during 
the process or the consequences of failing to assert them. Commenters 
also asserted that unrepresented individuals may not understand the 
burdens of proof in the rule and may be unable to present a legal 
argument sufficient to overcome its presumption of ineligibility. 
Additionally, commenters were concerned that the rule would 
dramatically increase the likelihood of denials for relief for 
unrepresented noncitizens who are subject to the asylum ineligibility 
presumption and stated that individuals with meritorious claims are no 
less deserving of asylum because they do not have counsel. Further, 
commenters pointed to various statutory provisions that they claimed 
showed a recognition by Congress that unrepresented noncitizens need 
assistance to present their claims. As a result, commenters suggested 
that unrepresented noncitizens should be exempted from the rule or be 
provided more resources to navigate the immigration system.
    Response: The Departments recognize that unrepresented noncitizens 
can have additional difficulties navigating the U.S. immigration 
system, as compared to those with counsel. This is to be expected with 
respect to any unrepresented individuals in a legal setting. As a 
general matter, the Departments strongly support efforts for 
noncitizens to obtain or confer with counsel in immigration 
proceedings.\101\
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    \101\ See, e.g., EOIR Director's Memorandum (``DM'') 22-01, 
Encouraging and Facilitating Pro Bono Legal Services (Nov. 5, 2021), 
https://www.justice.gov/eoir/book/file/1446651/download.
---------------------------------------------------------------------------

    However, for those noncitizens who do not retain counsel, the 
Departments do not believe that the rule presents an overly complicated 
process for migrants seeking protection, including asylum. The rule 
does not change the right to confer with a person or persons of the 
noncitizen's choosing in the existing expedited removal and credible 
fear screening processes. See 8 CFR 208.30(d)(4). Rather, the rule 
simply adds a determination about the asylum ineligibility presumption 
to the credible fear screening. As such, the Departments decline to 
create a wholesale exception from the rule for unrepresented 
noncitizens, which would significantly reduce the incentives for using 
the lawful pathways described in the rule, as well as disincentivize 
obtaining counsel as needed.

[[Page 31352]]

    The rule is intended to provide clear options for migrants, 
including asylum seekers, to follow, such as applying for asylum in a 
third country or presenting at an SWB POE at a pre-scheduled time and 
place. See generally 8 CFR 208.33(a)(2), 1208.33(a)(2). Noncitizens may 
also be able to pursue other pathways to the United States that would 
not trigger the rule's presumption, such as an employment-based visa or 
refugee admission through the United States Refugee Admissions Program 
(``USRAP''). 88 FR at 11719 (describing expansions of labor pathways 
and increases in USRAP processing). If unrepresented noncitizens choose 
to forgo such options and instead unlawfully enter the United States, 
they will be subject to the rule's rebuttable presumption of asylum 
ineligibility, with an opportunity to establish an exception to or 
rebut the presumption, including for exceptionally compelling 
circumstances. See 8 CFR 208.33(a)(3), 1208.33(a)(3). For instance, 
such noncitizens who present at a POE without a pre-scheduled 
appointment may be excepted from the presumption if they can 
demonstrate that they were unable to access or use the DHS scheduling 
system due to ongoing and serious obstacles, such as a language 
barrier, illiteracy, or a significant technical failure. See 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
    The Departments believe these processes will be navigable for 
unrepresented noncitizens based on the significant usage and success of 
other recent processes for Cuban, Haitian, Nicaraguan, Ukrainian, and 
Venezuelan nationals. See, e.g., 88 FR at 11706, 11711-12 (explaining, 
for example, that the Venezuela process has had a ``profound impact'' 
and that, in one measured period, there was an over 95 percent decrease 
in SWB unlawful encounters with Venezuelan migrants). These statistics, 
along with the success of the U4U and CNHV parole processes, show that 
noncitizens outside the United States are broadly aware of information 
about changes to U.S. immigration processes and that noncitizens alter 
migration behaviors accordingly, regardless of their representation 
status. As for commenters' desire for additional information about how 
the rule's requirements will be communicated, the Departments note that 
they have numerous, non-regulatory tools at their disposal that they 
may use to disseminate information to the public, as appropriate, 
including press releases,\102\ policy memoranda, web-based tools,\103\ 
and other statements in public fora, among others. The Departments 
further describe their efforts to communicate the rule's requirements 
to the public in Section IV.B.5.iv of this preamble.
---------------------------------------------------------------------------

    \102\ See EOIR, Communications and Legislative Affairs Division, 
https://www.justice.gov/eoir/communications-and-legislative-affairs-division (last visited Apr. 25, 2023) (``The Communications and 
Legislative Affairs Division (CLAD) serves as the Executive Office 
for Immigration Review's liaison with Congress, the news media, and 
other interested parties by communicating accurate and timely 
information about the agency's activities and programs.'').
    \103\ See, e.g., EOIR, Immigration Court Online Resource, 
https://icor.eoir.justice.gov/en/ (last visited Apr. 25, 2023) 
(providing information about immigration processes in Chinese, 
Haitian Creole, Portuguese, Punjabi, and Spanish).
---------------------------------------------------------------------------

c. Climate Migration
    Comment: Commenters noted that global migration is increasingly 
driven in part by the effects of climate change and that governments of 
many migrants' home countries are unable to stop or redress such 
effects. As such, commenters expressed concerns that the proposed rule 
would unlawfully deny noncitizens from countries disproportionately 
affected by climate change the right to be meaningfully heard on their 
asylum claims. Commenters also asserted that ecological disasters 
resulting from climate change, such as famine and flooding, would 
prevent noncitizens from countries experiencing such disasters from 
being able to pursue a lawful pathway so as not to be subject to the 
rule's rebuttable presumption. As a result, commenters recommended 
expanding asylum eligibility to account for displacement caused by 
climate change.
    Response: Comments related to climate change are generally outside 
the scope of this rulemaking, which focuses on incentivizing migrants 
to use lawful pathways to pursue their claims. To the extent that 
commenters raised concerns about the effects of climate change--such as 
a severe environmental disaster--creating a necessity for noncitizens 
to enter the United States outside of the lawful pathways described in 
the rule, the Departments note that the rule includes an exception to 
its asylum ineligibility presumption for ``exceptionally compelling 
circumstances.'' See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Evidence 
of exceptionally compelling circumstances will be considered on a case-
by-case basis.\104\
---------------------------------------------------------------------------

    \104\ The Departments note that, to the extent commenters have 
substantive comments related to the interaction of climate change 
and immigration or asylum law, such as how adjudicators should 
consider the effects of climate change in making asylum 
determinations, commenters may raise those concerns as relevant in 
response to future potential Departmental rulemakings that address 
other substantive asylum provisions. See, e.g., Introduction to the 
Unified Agenda of Federal Regulatory and Deregulatory Actions--Fall 
2022, 88 FR 10966, 11054, 11088-89 (Feb. 22, 2023) (including a 
future rulemaking addressing particular social groups and related 
definitions and interpretations for asylum and withholding of 
removal).
---------------------------------------------------------------------------

    To the extent that commenters argued that the rule's application in 
the context of the alleged exigencies of climate change migration would 
violate the due process rights of noncitizens, the Supreme Court has 
held that the rights of noncitizens applying for admission at the U.S. 
border are limited to ``only those rights regarding admission that 
Congress has provided by statute.'' DHS v. Thuraissigiam, 140 S. Ct. 
1959, 1983 (2020).
d. Indigenous People and People of Color
    Comment: Commenters raised concerns that the rule would have a 
particularly detrimental impact on members of indigenous communities 
and people of color. As a result, commenters recommended exempting 
these groups from the rule and for the Departments to articulate 
actions taken to mitigate any disparate impacts on such groups.
    Commenters stated that such populations would face discrimination, 
racism, persecution, prolonged detention, medical neglect, 
homelessness, erasure of indigenous identity, and other harms in 
transit countries. Commenters also believed that these groups would 
face difficulty applying for asylum or related protection in a third 
country, due to discrimination and insufficiently robust asylum 
systems, among other reasons. Additionally, commenters asserted that 
persons from predominantly Black countries had higher rates of visa 
denials, which limit their lawful pathways when compared to other 
groups. In support of these contentions, commenters stated that 
immigration court asylum denial rates increased for these groups while 
the TCT Bar Final Rule was in effect.
    Further, commenters maintained that the proposed rule would 
disproportionately impact indigenous migrants and people of color 
because such groups often lack the means or ability to enter the United 
States other than by land through the SWB and, therefore, would be more 
likely to be subject to the rule's rebuttable presumption of 
ineligibility. Relatedly,

[[Page 31353]]

commenters maintained that these populations have disproportionately 
low access to the technology commenters stated is mandated by the rule, 
thereby precluding such groups from taking advantage of the available 
lawful pathways. Similarly, commenters raised a number of concerns with 
the CBP One app and its use by indigenous migrants and people of color, 
including language barriers and difficulties experienced by those with 
darker skin tones in taking valid pictures.
    Response: As previously stated, the rule includes various 
exceptions to the rebuttable presumption--including for instances where 
noncitizens have been denied asylum or other protection in a third 
country or show, by a preponderance of the evidence, that it was not 
possible to access or use the CBP One app--and the rule allows 
noncitizens to rebut the presumption where they face certain safety 
issues. See 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). For 
additional material addressing commenter concerns about the CBP One app 
and indigenous migrants and people of color, please see Section 
IV.E.3.ii.a of this preamble.
    Further, if any noncitizens, including members of indigenous 
communities and people of color, do not believe that they will be able 
to meaningfully access protection in a third country, then those 
noncitizens may be excepted from the presumption of ineligibility by 
availing themselves of other lawful pathways to enter the United 
States, such as by pre-scheduling an appointment to present themselves 
at a POE, or by obtaining appropriate authorization to travel to the 
United States to seek parole pursuant to a DHS-approved parole process. 
See 8 CFR 208.33(a)(2)(ii), 1208.33(a)(2)(ii). Such noncitizens may 
also be able to pursue other pathways to entering the United States 
that would not trigger the rule's application, such as an employment-
based visa or refugee admission through USRAP. 88 FR at 11719 
(describing expansions of labor pathways and increases in USRAP 
processing). Accordingly, the Departments believe that the rule 
provides sufficient flexibility to account for issues identified by 
commenters as related to indigenous communities and people of color.
5. Due Process and Procedural Concerns
i. General Due Process and Procedural Concerns
    Comment: Commenters voiced general concerns that the rule violates 
due process and is thus unconstitutional or arbitrary. One commenter 
argued that due process standards for asylum cases should be consistent 
with criminal procedure in the United States. At least one commenter 
said that the proposed rule would violate due process in that it would 
separate families, restrict access to asylum, and prohibit the granting 
of asylum to those who travel by land through a safe third country. 
Specifically, one commenter argued that for family members whose asylum 
cases are connected, separation obstructs family members' opportunities 
to present necessary corroborating witness testimony or access critical 
evidence in presenting their claims for relief, which may violate their 
constitutional and statutory rights to present evidence and can result 
in inconsistent case timelines and outcomes that permanently sever 
family relationships. Another commenter said that the rule would make 
it easier for the United States Government to simply deny entry to 
asylum seekers and deport migrants without due process. Other 
commenters stated that no asylum seekers should be prevented from 
presenting their case to a judge. Further, commenters said that the 
rule would violate due process by requiring asylum seekers to 
affirmatively request IJ review of negative credible fear findings and 
eliminating USCIS reconsideration of such findings. Commenters also 
stated that due process concerns would be magnified because of the plan 
to conduct credible fear interviews within days or hours of an asylum 
seeker's arrival in custody in what commenters characterized as 
notoriously difficult conditions, such as where they lack food, water, 
showers, sleep, and access to counsel. Another commenter echoed these 
concerns regarding conditions for individuals in CBP custody and stated 
that poor conditions were not conducive to asylum seekers being able to 
clearly articulate their claims. Commenters asserted that these 
obstacles are so high as to render success unachievable for most 
noncitizens, regardless of the merits of their claims. Finally, one 
commenter stated that the rule would raise the standard from 
``credible'' to ``reasonable'' fear and would thereby give rise to a 
procedural due process violation, as it would alter the intended 
purpose of the screening interview.
    Response: The Departments disagree that the rule would violate the 
Due Process Clause of the Fifth Amendment or impermissibly restrict 
access to asylum. With respect to application of the rule in the 
expedited removal process, the Departments note that the rule does not 
have any impact on where noncitizens may be detained pending credible 
fear interviews. Additionally, noncitizens who are encountered in close 
vicinity to and immediately after crossing the border and are placed in 
expedited removal proceedings, including those in the credible fear 
screening process, have ``only those rights regarding admission that 
Congress has provided by statute.'' \105\ Thuraissigiam, 140 S. Ct. at 
1983; see also Mendoza-Linares v. Garland, 51 F.4th 1146, 1148 (9th 
Cir. 2022) (concluding that ``an arriving immigrant caught at the 
border . . . `has no constitutional rights regarding his application' 
for asylum'' (quoting Thuraissigiam, 140 S. Ct. at 1982)). Regarding 
arguments by commenters that the due process standards that apply in 
criminal proceedings should also apply in the context of asylum and 
credible fear interviews, the Departments first note that Congress has 
created, by statute, a process applicable to individuals in expedited 
removal that is significantly different from the process that applies 
in criminal cases. The Departments decline to use this rule to change 
the due process rights of noncitizens, and the rule ensures that 
noncitizens receive a fair process consistent with the law.
---------------------------------------------------------------------------

    \105\ Courts also have held that noncitizens do not have an 
independently cognizable substantive due process interest in the 
receipt of asylum because asylum is a discretionary form of relief. 
See, e.g., Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (holding 
that ``an alien who has already filed one asylum application, been 
adjudicated removable and ordered deported, and who has nevertheless 
remained in the country illegally for several years, does not have a 
liberty or property interest in a discretionary grant of asylum''); 
Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (``Due process 
rights do not accrue to discretionary forms of relief, . . . and 
asylum is a discretionary form of relief.''); Mudric v. Att'y Gen., 
469 F.3d 94, 99 (3d Cir. 2006) (holding that an eight-year delay in 
processing the petitioner's asylum application was not a 
constitutional violation because the petitioner ``had no due process 
entitlement to the wholly discretionary benefits of which he and his 
mother were allegedly deprived''); cf. Munoz v. Ashcroft, 339 F.3d 
950, 954 (9th Cir. 2003) (``Since discretionary relief is a 
privilege created by Congress, denial of such relief cannot violate 
a substantive interest protected by the Due Process clause.'').
---------------------------------------------------------------------------

    As to the allegation that the rule raises the standard in expedited 
removal proceedings from ``credible'' fear to ``reasonable'' fear, the 
Departments note that the rule does not change the standard except to 
the extent that a noncitizen cannot show a significant possibility of 
establishing eligibility for asylum due to operation of the rule's 
condition on asylum eligibility. In that circumstance, the AO or IJ 
will determine whether the noncitizen has a reasonable fear of 
persecution or torture in the country or countries of removal, as has 
long been the process for other

[[Page 31354]]

noncitizens who are screened for eligibility for statutory withholding 
of removal and CAT protection and who are not eligible for asylum, as 
discussed in more detail in Section IV.D.1.iii of this preamble.
    Moreover, although the rule changes some procedures, as discussed 
throughout the rule, it leaves much of the process unaltered. 
Individuals in the credible fear process maintain the right to consult 
with an attorney or other person or persons of their choosing prior to 
their interview, and such persons may be present for the interview 
itself. 8 CFR 208.30(d)(4). Asylum seekers also may present evidence 
relevant to their claim during the interview. Id. Additionally, USCIS 
provides interpreter services to noncitizens who are unable to proceed 
effectively in English at the agency's expense. 8 CFR 208.30(d)(5). And 
noncitizens may request review of a negative fear determination before 
an IJ. Compare 8 CFR 208.30(g)(1) (providing the standard process for 
requesting IJ review in credible fear proceedings), with 8 CFR 
208.33(b)(2)(iii) through (v) (explaining the process for requesting IJ 
review for those subject to and unable to rebut the rule's 
presumption). Although the rule amends the standard process so that 
noncitizens must affirmatively request such review when asked, rather 
than the review being granted upon a failure to respond, IJ review 
remains available in all cases with a negative credible fear 
determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g)(2). These 
procedural safeguards are therefore not undermined by the rule, which 
is fully consistent with the Departments' legal authority and 
obligations.
    Furthermore, the rule does not violate any procedural due process 
rights noncitizens may have in section 240 removal proceedings. The 
rule's condition on eligibility will be litigated in those proceedings 
before an IJ with all the attendant procedural rights that apply in 
section 240 removal proceedings. In addition, the rule provides several 
procedural protections to ensure that asylum applicants receive a full 
and fair hearing before an IJ and that the condition on eligibility 
applies only to noncitizens properly within the scope of 8 CFR 
208.33(a) and 1208.33(a). If an AO finds a noncitizen is subject to the 
rule's condition on eligibility, the noncitizen may request review of 
that determination, and an IJ will evaluate de novo whether the 
noncitizen is subject to the presumption and, if so, whether the 
noncitizen has established any exceptions to or rebutted the 
presumption. 8 CFR 208.33(b)(2)(iii) through (v), 1208.33(b). 
Furthermore, even where an IJ denies asylum because the presumption 
applies and has not been rebutted and no exception applies, if the 
noncitizen has demonstrated a reasonable possibility of persecution or 
torture in the country or countries of removal, they will have an 
opportunity to apply for statutory withholding of removal, protection 
under the CAT regulations, or any other form of relief or protection 
for which the noncitizen is eligible in section 240 removal 
proceedings. 8 CFR 208.33(b)(2)(ii) and (v)(B), 1208.33(b)(4). These 
standards help to ensure--in contrast to commenters' concerns--that the 
outcome of the process delineated in the rule is not predetermined and 
that noncitizens potentially subject to the condition on eligibility 
receive a full and fair hearing that satisfies any due process rights 
they may have.
    To the extent commenters raised due process concerns related to 
arguments that the rule would result in separation of families, these 
arguments are addressed above in Section IV.B.4.ii of this preamble. As 
elaborated there, for example, the rule includes provisions designed to 
prevent the separation of families. Moreover, to the extent that 
commenters argued that the rule would separate families and thereby 
raise due process concerns by preventing individuals from presenting 
evidence, the Departments note that the rule does not change the 
provision on the treatment of family units with respect to credible 
fear screenings, found at 8 CFR 208.30(c), which provides that when 
family units are subject to a credible fear screening, USCIS will find 
that the entire family passes the screening if one family member 
establishes a credible fear. Further, the rule contains provisions to 
promote family unity both by making exceptions and providing rebuttal 
grounds applicable to family units traveling together, and by providing 
a family unity provision for those in removal proceedings. See 8 CFR 
208.33(a)(2)(ii) and (3)(i), 1208.33(c).
    To the extent commenters argued that these concerns implicate the 
constitutional rights of specific groups of noncitizens, the rule does 
not deprive any group of the rights that Congress provided by statute, 
and the rule is one of equal application that does not bar any 
particular classes of noncitizens from seeking asylum or other 
protection due to the nature of the harm the noncitizen has suffered or 
their race, religion, nationality, political opinion, or membership in 
a particular social group. See 8 CFR 208.33(a)(1) through (3), 
1208.33(a)(1) through (3) (defining scope of rule's application and 
creating condition on eligibility and a rebuttable presumption rather 
than a bar). Additionally, to the extent that commenters claimed there 
would be due process implications because of the language and certain 
technical limitations of the CBP One app, the same commenters 
acknowledged that due process rights are limited to individuals located 
on U.S. soil. Because users of the CBP One app will, by definition, be 
located outside of the United States, the commenters' CBP-One-app-
related due process concerns are misplaced. Moreover, these commenters 
provided no specific citations to show that the CBP One app's limited 
set of foreign languages or technical limitations violate any other 
Federal law. For instance, the Departments note that Executive Order 
13166, Improving Access to Services for Persons with Limited English 
Proficiency, 65 FR 50121 (Aug. 11, 2000), ``does not create any right 
or benefit, substantive or procedural, enforceable at law or equity by 
a party against the United States, its agencies, its officers or 
employees, or any person.'' Id. at 50121-22.
    In addition, notwithstanding the above, the rule contains multiple 
means for particularly vulnerable noncitizens to potentially overcome 
the presumption against eligibility for asylum where applicable, 
depending on the individual's circumstances. To the extent that 
commenters are concerned about the ability of noncitizens who have a 
language barrier, disability, mental incompetence, or past trauma to 
pre-schedule a time and location to appear at a POE, these noncitizens 
may be able to establish an exception to the presumption if they 
present at a POE and establish that ``it was not possible to access or 
use the DHS scheduling system due to a language barrier, illiteracy, 
significant technical failure, or other ongoing and serious obstacle.'' 
See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). And among the 
``exceptionally compelling circumstances'' that may rebut the 
presumption against eligibility, the rule includes acute medical 
emergencies and other situations where the noncitizen faces an imminent 
and extreme threat to life or safety at the time of entry. See 8 CFR 
208.33(a)(3)(i)(A) and (B), 1208.33(a)(3)(i)(A) and (B). Furthermore, 
the Departments note that even if a noncitizen is found ineligible for 
asylum, if they fear persecution on account of a protected ground, or 
torture in another country that has been

[[Page 31355]]

designated as a country of removal, they may seek statutory withholding 
of removal or CAT protection to avoid being returned to that country.
    Finally, to the extent that commenters expressed concerns about how 
the fact of noncitizens' detention, the conditions in DHS facilities, 
and the timing of credible fear screenings allegedly impact such 
screenings and the ability of noncitizens to meet their burden to show 
a credible fear, those concerns are predominantly addressed below in 
Section IV.D.1.iii of this preamble, where the Departments discuss the 
nature of the evidence that may be available to the AO during credible 
fear interviews. As to commenters' concerns about the timing of the 
credible fear process and where noncitizens are detained pending 
credible fear interviews, these concerns are misplaced, as the rule 
does not have any impact on the steps in the credible fear process or 
where noncitizens may be detained pending credible fear interviews. To 
the extent that commenters have concerns about detention and conditions 
in CBP custody, such concerns are beyond the scope of this rule, as 
discussed further in Section IV.B.5.v of this preamble.
    Comment: Commenters expressed a range of other concerns that the 
rule does not establish sufficient procedural protections for 
noncitizens subject to the presumption against eligibility for asylum. 
Some commenters expressed concern that AOs are likely to make errors in 
assessing whether applicants are subject to the rule's condition on 
asylum eligibility. Commenters likewise asserted that credible fear 
interviews are quick screenings, during which individuals usually lack 
documentary evidence for their claims, and that migrants would not be 
able to present evidence of country conditions in connection with such 
interviews. Further, one commenter stated that expedited removal denies 
children the opportunity to make a claim for protection independent of 
their parent or legal guardian, and specifically raised concerns about 
CBP agents questioning children.
    Response: The Departments acknowledge the commenters' concerns but 
disagree that there are insufficient procedural protections for 
individuals subject to the rule. All AOs are trained in non-adversarial 
interview techniques to elicit relevant and useful information. 8 CFR 
208.1(b). A noncitizen's testimony and evidence available to the AO may 
be sufficient to establish an exception to or rebut the condition on 
asylum. AOs are trained to consult country conditions information. Id. 
All credible fear determinations are reviewed by a Supervisory AO. 8 
CFR 208.30(e)(8). Those who receive negative determinations may request 
review from an IJ. See 8 CFR 208.33(b)(2)(iii) through (v). If the IJ 
affirms a negative credible fear determination, USCIS may also 
reconsider the determination at its own discretion. See 8 CFR 
208.33(b)(2)(v)(C). For those who are initially found subject to the 
rule's condition on asylum eligibility but who establish a reasonable 
possibility of persecution or torture upon removal, the IJ will make a 
de novo determination of whether the noncitizen is subject to the 
condition on asylum eligibility during removal proceedings. See 8 CFR 
208.33(b)(2)(v).
    The Departments disagree that the rule denies children the 
opportunity to make a claim for protection independent of their parent 
or legal guardian. As explained above, the rule does not change the 
provision on treatment of family units with respect to credible fear 
evaluations, found at 8 CFR 208.30(c). The rule further provides at 8 
CFR 208.33(c)(2) and 1208.33(d)(2) that its ineligibility presumption 
does not apply to an asylum application filed by a noncitizen after the 
two-year period in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i), if the 
noncitizen was under the age of 18 at the time of the entry referenced 
in 8 CFR 208.33(a)(1) and 1208.33(a)(1), respectively, and the 
noncitizen is applying as a principal applicant.
ii. Concerns Regarding Access to Counsel, Unrepresented Applicants, and 
the Ability or Time To Obtain Evidence and Prepare
    Comment: Some commenters stated that the rule raises serious 
questions about access to counsel during the credible fear process. In 
addition to the general comments regarding due process described and 
addressed above, commenters also expressed specific concerns that the 
rule violates the Fifth Amendment's Due Process Clause because it 
allegedly deprives noncitizens of access to counsel or decreases their 
already limited access to counsel. For instance, some commenters 
expressed concern that individuals in CBP detention facilities lack 
meaningful access to counsel to prepare for their credible fear 
interviews because it takes time to find counsel and the rule will 
amplify the problems of a fast-tracked removal process, and because 
there is a lack of free or low-cost attorneys in border areas where 
credible fear interviews take place. Other commenters stated that 
individuals awaiting their CBP One app appointments abroad lack 
meaningful access to counsel to prepare for their credible fear 
interviews. These commenters stated that attorneys located in the 
United States face obstacles to representing individuals outside the 
United States due to ethics concerns and liability insurance coverage, 
while asylum seekers awaiting appointments would be unable to meet with 
counsel in person prior to their appointments, allegedly leading to 
representation deficiencies and difficulty obtaining assistance in 
navigating the CBP One app. For example, citing data from the Human 
Trafficking Institute, one commenter wrote that 80 percent of migrants 
awaiting their asylum hearings in the United States can find 
representation, compared to 7.6 percent of migrants waiting in Mexico.
    Other commenters characterized the rule's provisions as complicated 
and punitive, making access to counsel even more important and 
exacerbating the access-to-counsel issues commenters identified above. 
Commenters who are legal services providers said that the rule would 
increase the time and resources needed to provide adequate legal advice 
and representation to asylum seekers, leading to diversion of limited 
resources and increased pressure on staff. Some commenters recommended 
that the United States Government increase funding for representation 
of asylum seekers or provide migrants with legal counsel and release 
them swiftly rather than detain them, stating that it would assist with 
backlogs and protect due process rights.
    Multiple commenters remarked that a person who could retain an 
attorney is far more likely to succeed in immigration court. Commenters 
said concerns relating to fast-tracked immigration proceedings, known 
as the ``Dedicated Docket,'' would be amplified by the addition of a 
new evaluation of a rebuttable presumption against asylum eligibility. 
Commenters claimed that those individuals subject to the rebuttable 
presumption who pass the heightened ``significant possibility'' 
screening standard applied under the rule and are placed on the 
Dedicated Docket during the resulting section 240 removal proceeding 
would find it even more difficult to obtain counsel because of its 
accelerated timelines.
    Finally, some commenters alleged that the United States Government 
currently restricts access to counsel for noncitizens in credible fear 
proceedings. Commenters similarly claimed that EOIR's Immigration Court 
Practice Manual (``ICPM'') denies asylum seekers

[[Page 31356]]

the right to counsel in credible fear review hearings before IJs.
    Response: The rule does not deprive noncitizens of access to 
counsel in violation of the Fifth Amendment's Due Process Clause. As 
explained above, the Supreme Court has held that the rights of 
individuals seeking asylum at the border are limited to ``only those 
rights regarding admission that Congress has provided by statute.'' 
Thuraissigiam, 140 S. Ct. at 1983. And the INA provides only that a 
noncitizen ``may consult with a person or persons of the alien's 
choosing prior to the interview or any review thereof, according to 
regulations prescribed by the Attorney General,'' and the statute 
specifies that ``[s]uch consultation shall be at no expense to the 
Government and shall not unreasonably delay the process.'' INA 
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv). Thus, due process and the 
INA do not guarantee that every noncitizen in expedited removal 
proceedings will have counsel, for example, if a noncitizen involved in 
such proceedings cannot find an attorney who is willing and able to 
provide representation. The rule does not bar noncitizens in expedited 
removal proceedings from exercising their statutory rights under the 
INA, and therefore cannot violate such noncitizens' rights to due 
process. See Guerrier v. Garland, 18 F.4th 304, 313 (9th Cir. 2021) 
(Thuraissigiam clarified that ``the due process rights of noncitizens 
who have not `effected an entry' into the [United States] are 
coextensive with the statutory rights Congress provides'').
    Nor does the rule deprive noncitizens of access to counsel in 
violation of the Fifth Amendment's Due Process Clause insofar as it 
allegedly creates additional matters for attorneys and noncitizens to 
discuss prior to a noncitizen's credible fear interview, including when 
the noncitizen is outside the United States. The statutory right to 
consult, described above, does not attach until a noncitizen becomes 
eligible for a credible fear interview. See INA 235(b)(1)(B)(iv), 8 
U.S.C. 1225(b)(1)(B)(iv) (``An alien who is eligible for such interview 
may consult with a person or persons of the alien's choosing prior to 
the interview or any review thereof, according to regulations 
prescribed by the Attorney General.''). And the regulations that 
implement expedited removal elaborate that ``[s]uch consultation shall 
be made available in accordance with the policies and procedures of the 
detention facility where the alien is detained[.]'' 8 CFR 
235.3(b)(4)(ii). ``Read together, the text of these provisions provides 
noncitizens with a right to consultation while they are detained 
pending expedited removal, but also plainly establish that the 
consultation right is subordinate to the expedition that this removal 
process is designed to facilitate, and that the scope of the right to 
consult is determined by the facility in which these noncitizens are 
detained.'' Las Americas Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 
1, 25 (D.D.C. 2020) (Jackson, J.). Thus, the INA does not guarantee, 
and the Constitution does not require, that noncitizens who have not 
entered the United States must have an opportunity to consult with any 
other individual concerning an anticipated asylum application.
    The Departments decline to amend existing practices with respect to 
credible fear proceedings around a noncitizen's ability to obtain and 
consult with counsel, including with regard to the availability of 
counsel or time it takes to secure counsel in areas near the SWB. The 
Departments disagree with any implication by commenters that the 
Departments have control over where free or low-cost immigration 
attorneys choose to locate their practices within the United States. In 
any event, nothing in the rule alters a noncitizen's existing ability 
to consult with persons of their choosing prior to the credible fear 
interview, see INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv), or 
prior to IJ review of a negative credible fear determination, see 8 CFR 
1003.42(c). The Departments acknowledge commenters' concerns but do not 
believe that the rule makes it more challenging for detained 
noncitizens to access legal representation. To the extent that 
commenters seek improved access to counsel during the credible fear 
process in general, that issue lies outside the scope of this 
rulemaking. Commenters' concerns regarding the Dedicated Docket 
similarly fall beyond the scope of the rulemaking. As discussed later 
in Section IV.B.5.iv of this preamble, the Departments do not believe 
that the rule greatly adds to the complexity of U.S. asylum law or that 
noncitizens in the credible fear process will require the assistance of 
an attorney to establish an exception to or rebut the rule's 
presumption against asylum eligibility. During the credible fear 
process, AOs will elicit relevant testimony in a non-adversarial manner 
to determine whether the rebuttable presumption against asylum 
eligibility applies and, if so, whether the presumption is rebutted or 
any exception exists.\106\ Therefore, noncitizens will not need to be 
familiar with every aspect of the rule to overcome the presumption.
---------------------------------------------------------------------------

    \106\ See, e.g., USCIS, RAIO Directorate--Officer Training: 
Interviewing: Eliciting Testimony 12 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Eliciting_Testimony_LP_RAIO.pdf [hereinafter USCIS, Eliciting 
Testimony] (``In cases requiring an interview, although the burden 
is on the applicant to establish eligibility, equally important is 
your obligation to elicit all pertinent information.''); USCIS, RAIO 
Directorate--Officer Training: Interviewing: Introduction to the 
Non-Adversarial Interview 13 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf [hereinafter 
USCIS, Non-Adversarial Interview] (``You control the direction, 
pace, and tone of the interview and have a duty to elicit all 
relevant testimony.''); Comment Submitted by National Citizenship 
and Immigration Services Council 119 at 16 (Mar. 27, 2023), https://www.regulations.gov/comment/USCIS-2022-0016-12267.
---------------------------------------------------------------------------

    With regard to commenter claims that EOIR's ICPM restricts the 
right to counsel during credible fear review, the Departments first 
note that the contents of the ICPM are outside of the scope of this 
rulemaking. In any event, the ICPM is consistent with the INA and 
regulations, all of which make clear that noncitizens have the right to 
consult with a person or persons of their choosing prior to a credible 
fear interview and any subsequent review. See ICPM, Chapter 
7.4(d)(4)(C) (Nov. 14, 2022); INA 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv); 8 CFR 1003.42(c). Beyond such consultation, any 
ability of such persons to attend or participate in a credible fear 
proceeding is fully within the discretion of the IJ. See 8 CFR 
1003.10(b) (describing IJs' discretion to take any action consistent 
with their authorities under the INA and regulations that is 
appropriate and necessary for the disposition of a case).
    Comment: Commenters said that represented individuals receive 
relief more frequently than non-represented individuals, and expressed 
concern that many asylum seekers who lack counsel would not be able to 
pass their credible fear screenings. One commenter claimed, without 
specific evidence, that AOs are less thorough when adjudicating 
credible fear cases of unrepresented noncitizens. Commenters argued 
that unrepresented individuals may not receive meaningful notice about 
the CBP One app, asylum procedures, or the exceptions to the rule's 
condition on eligibility that may apply in their cases. One commenter 
wrote that the rule's preponderance of the evidence standard for 
rebutting the presumption against asylum eligibility would create 
another hurdle for asylum seekers who lack counsel.
    Response: To the extent that commenters expressed concern that 
unrepresented individuals might face difficulty understanding the 
credible

[[Page 31357]]

fear process, the INA provides that ``[t]he Attorney General shall 
provide information concerning the asylum interview . . . to aliens who 
may be eligible.'' INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8 
CFR 235.3(b)(4)(i). The rule does not change that obligation. As for 
commenters' concerns that noncitizens may not receive adequate notice 
regarding the CBP One app or other aspects of the rule, ``the general 
rules concerning adequacy of notice through publication in the Federal 
Register apply in the immigration context.'' Williams v. Mukasey, 531 
F.3d 1040, 1042 (9th Cir. 2008) (holding that publication of CAT 
regulations in the Federal Register provided notice that due process 
required).
    As discussed earlier and in Section IV.B.5.iv of this preamble, the 
rule does not affect noncitizens' current access to counsel during 
credible fear proceedings or significantly increase the complexity of 
U.S. asylum law, and noncitizens should not require the assistance of 
an attorney to establish an exception to or rebut the presumption 
against asylum eligibility. Prior to conducting a credible fear 
interview, an AO must verify that the noncitizen ``has received in 
writing the relevant information regarding the fear determination 
process'' and ``has an understanding of'' that process. 8 CFR 
208.30(d)(2); see also USCIS, Form M-444, Information About Credible 
Fear Interview (May 31, 2022). AOs are trained to conduct interviews in 
a non-adversarial manner and elicit relevant testimony,\107\ and they 
will ask relevant questions to determine whether the rebuttable 
presumption against asylum eligibility applies, so noncitizens need not 
be familiar with the rule to remain eligible for asylum. Regarding the 
standard of proof for rebutting the presumption against asylum 
eligibility during credible fear proceedings, as discussed later in 
Section IV.D.1.iii of this preamble, the overall standard remains the 
significant possibility standard, but that standard must be applied in 
conjunction with the standard of proof required for the ultimate 
determination on eligibility for asylum (i.e., preponderance of the 
evidence that an exception to the presumption applies or that the 
presumption has been rebutted). Other concerns about rebutting the 
rule's presumption of ineligibility are addressed in Section IV.E.1 of 
this preamble.
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    \107\ See USCIS, Non-Adversarial Interview; USCIS, Eliciting 
Testimony; Comment Submitted by National Citizenship and Immigration 
Services Council 119 at 16 (Mar. 27, 2023), https://www.regulations.gov/comment/USCIS-2022-0016-12267.
---------------------------------------------------------------------------

iii. CBP Official, AO, and IJ Conduct and Training
a. CBP Official Conduct and Training
    Comment: Some commenters expressed concerns about the actions of 
CBP officials, including with respect to the use of the CBP One app. 
Regarding the CBP One app generally, one commenter stated that migrants 
are often unable to seek asylum at a POE due to metering policies and 
that migrants have no other option to access safety than to cross the 
SWB without permission. Another commenter stated that the requirement 
to use the CBP One app would effectively cap the number of people who 
may seek asylum based on the number of appointments available. 
Commenters also stated that the CBP One app equates to another metering 
system imposed by CBP officials, including causing turnbacks of 
children, which Federal courts have found to be illegal. In particular, 
one commenter stated that, even with appointments, some families are 
not able to cross the border, or they receive appointments at a POE far 
from their current location, requiring them to travel long distances 
within Mexico. Various commenters alleged that requiring use of the CBP 
One app raises concerns that access to the system will be based not on 
wait time but on luck, technological skills, or resources to secure an 
appointment. Other commenters similarly stated that the CBP One app has 
very limited appointment slots and turns asylum access into a lottery. 
And at least one commenter expressed concern that the CBP One app does 
not ask if a migrant is seeking asylum in the United States, nor are 
migrants interviewed by CBP officials upon arrival to determine if they 
have any vulnerabilities that may show eligibility for asylum.
    As for alleged misconduct by CBP officials, one commenter expressed 
concern that CBP officials at POEs have turned away many asylum seekers 
without cause, been affirmatively hostile to claims of protection, or 
only allowed a handful of individuals per day to present themselves for 
processing. The commenter also suggested that there would not be a 
meaningful opportunity under the rule for asylum seekers to present 
themselves and demonstrate that they were unable to use the CBP One app 
to request an appointment. Similarly, another commenter stated that the 
rule would allow CBP officers to turn away individuals without a 
smartphone.
    Additionally, commenters alleged that CBP officials regularly fail 
to protect the rights of individuals in expedited removal proceedings, 
including through failing to ask questions related to fear claims, 
failing to refer individuals for credible fear interviews, and 
subjecting individuals to harassment, directly or indirectly.
    Other commenters raised concerns that there are inadequate 
protections against rogue CBP officer behavior more generally, noting 
that individuals with appointments in February 2023 were rejected at 
POEs, including those with Title 42 exception appointments being 
rejected even though they had valid appointments. One commenter 
asserted that when families expressed concern about the Title 42 
exception process, CBP officials threatened to call Mexican police and 
urged people to depart. Another commenter noted that CBP officers use 
abuse, threats and intimidation, coercion, and misrepresentations, make 
unfounded claims about capacity restrictions, use waitlists, and 
illegally deny access to the asylum process. Some commenters alleged 
that CBP officers harassed and physically and sexually abused 
noncitizens at POEs, stole their documents, and failed to record 
statements by noncitizens expressing a fear of return. Another 
commenter expressed concerns that Mexican officials, at the request of 
the United States Government, improperly intercepted individuals at its 
own southern border so that those individuals would not come to the 
United States.
    Response: As an initial matter, the Departments note that migrants 
do not apply for asylum with CBP at a POE. At POEs, CBP is responsible 
for the inspection and processing of all applicants for admission, 
including individuals who may intend to seek asylum in the United 
States. 8 CFR 235.1(a) (concerning all applicants for admission at 
POEs), 235.3(b)(4) (concerning individuals processed for expedited 
removal and claiming fear of persecution or torture). CBP's ability to 
process undocumented noncitizens in a timely manner at land border POEs 
is dependent on CBP resources, including infrastructure and personnel; 
CBP is committed to continuing to increase its capacity to process 
undocumented noncitizens at SWB POEs.\108\ The CBP

[[Page 31358]]

One app is one key way that CBP is streamlining and increasing its 
capacity to process undocumented noncitizens.\109\ Noncitizens are able 
to schedule appointments through the CBP One app at one of eight POEs 
along the SWB, providing noncitizens with options to choose the POE 
that works best for them geographically. The app is not a method of 
seeking asylum in the United States, and CBP officers do not determine 
the validity of any claims for protection. Noncitizens are not required 
to make an appointment in the CBP One app to present at a POE, and CBP 
policy provides that in no instance will an individual be turned away 
from a POE. All noncitizens who arrive at a POE will be inspected for 
admission into the United States. See 8 CFR 235.1(a). That said, those 
noncitizens who arrive at a POE without a pre-scheduled appointment 
will be subject to the rule's presumption of asylum ineligibility 
unless they establish the applicability of an exception to or a ground 
for rebutting the presumption.
---------------------------------------------------------------------------

    \108\ Memorandum for William A. Ferrara, Exec. Ass't Comm'r, 
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP, 
Re: Guidance for Management and Processing of Undocumented 
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021), 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
    \109\ See id.
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    The Departments disagree that the CBP One app is a ``metering 
system,'' and CBP and DHS have rescinded all previous metering 
policies. Following the termination of the Title 42 public health 
Order, CBP will process noncitizens without documents sufficient for 
admission who present at an SWB land POE in accordance with its 
November 2021 memorandum ``Guidance for Management and Processing of 
Undocumented Noncitizens.'' Moreover, as noted, CBP remains committed 
to processing as many noncitizens at POEs as is operationally 
feasible.\110\
---------------------------------------------------------------------------

    \110\ See id.
---------------------------------------------------------------------------

    To the extent that commenters' reference to metering policies 
relates to any allegation of misconduct by CBP officers, and with 
respect to any other commenter concerns about such alleged misconduct, 
the Departments note that CBP takes allegations of employee misconduct 
very seriously. Under a uniform system, allegations of misconduct are 
documented and referred to the DHS Office of Inspector General 
(``OIG'') for independent review and assessment.\111\ Cases are either 
retained by the DHS OIG for investigation or referred to CBP's Office 
of Professional Responsibility (``OPR'') for further handling. 
Allegations of misconduct by a CBP employee or contractor can be sent 
to CBP OPR's Joint Intake Center via email at [email protected] 
or via phone at 1-877-2INTAKE (246-8253) Option 5.\112\ Such 
allegations can also be sent to the DHS OIG Hotline via OIG's website, 
https://www.oig.dhs.gov/hotline, or via phone at 1-800-323-8603. Upon 
completion of an investigation, CBP management reviews all evidence, 
the CBP Standards of Conduct, the CBP Table of Offenses and Penalties, 
and how the agency has handled similar misconduct in the past, in order 
to determine what, if any, disciplinary action is appropriate.\113\
---------------------------------------------------------------------------

    \111\ See, e.g., DHS OIG, Hotline Poster, https://www.oig.dhs.gov/sites/default/files/DHS_OIG_Hotline-optimized_without_fax.jpg (last visited Apr. 17, 2023); CBP, DHS/
CBP/PIA-044, Privacy Impact Assessment for the Joint Integrity Case 
Management System (JICMS) at 1-2 (July 18, 2017), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp044-jicms-july2017.pdf; CBP, CBP Pub. No. 1686-0322, Report on Internal 
Investigations and Employee Accountability--Fiscal Year 2021 at 11-
12 (Mar. 2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-May/fy21-cbp-opr-internal-investigation-accountability_1.pdf.
    \112\ CBP, How to Make a Report, https://www.cbp.gov/about/care-and-custody/how-make-report (last visited Apr. 17, 2023).
    \113\ See CBP, CBP Pub. No. 1686-0322, Report on Internal 
Investigations and Employee Accountability Fiscal Year 2021 at 17 
(2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-May/fy21-cbp-opr-internal-investigation-accountability_1.pdf.
---------------------------------------------------------------------------

    Commenter concerns about the processing of individuals seeking 
exceptions to the Title 42 public health Order at POEs are misplaced. 
As an initial matter, the rule will take effect only once the Title 42 
public health Order is lifted, at which time CBP will inspect and 
process all noncitizens who arrive at a POE under Title 8. Title 42 is 
a statutory scheme that operates separate from Title 8. Thus, concerns 
about the Title 42 exception process in and of itself are not relevant 
to this rulemaking. While noncitizens seeking to enter a POE under 
Title 8 may experience some wait times, those wait times are not 
equivalent to rejections; CBP policy provides that in no instance will 
an individual be turned away or ``rejected'' from a POE.
    Comment: One commenter stated that the use of the CBP One app to 
schedule an appointment to present at a POE conflicts with the 
inspection requirement in 8 U.S.C. 1225(a)(3), requiring that all 
applicants for admission be inspected by CBP officers. The commenter 
specifically referred to the district court's order in Al Otro Lado, 
Inc. v. McAleenan, 394 F. Supp. 3d 1168 (S.D. Cal. 2019), holding that 
this provision applies to migrants who are approaching a POE but have 
not yet entered the United States. The commenter stated that, because 
the number of appointments provided does not approach the demand, the 
CBP One app is functionally a system of metering. Another commenter 
also asserted that it was not clear whether noncitizens without an 
appointment who approach a POE would, in fact, be inspected and 
processed, or whether they would be turned away in violation of CBP's 
mandatory duty to inspect and process noncitizens at POEs.
    Response: The Departments respectfully disagree that the use of the 
CBP One app to schedule an appointment to present at a POE conflicts 
with CBP's duties under 8 U.S.C. 1225(a)(3), unlawfully withholds 
access to the asylum process, or operates as a form of metering (though 
the Departments maintain that DHS's prior metering policies are 
lawful). The Departments acknowledge the district court's holding in Al 
Otro Lado--which the Government has appealed--but the use of CBP One 
app appointments as contemplated by this rule does not implicate that 
holding. CBP's policy is to inspect and process all arriving 
noncitizens at POEs, regardless of whether they have used the CBP One 
app. In other words, the use of the CBP One app is not a prerequisite 
to approach a POE, nor is it a prerequisite to be inspected and 
processed under 8 U.S.C. 1225(a)(3). Individuals without appointments 
will not be turned away. CBP is committed to increasing the number of 
noncitizens processed at POEs and to processing noncitizens in an 
expeditious manner.\114\
---------------------------------------------------------------------------

    \114\ See Memorandum for William A. Ferrara, Exec. Ass't Comm'r, 
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP, 
Re: Guidance for Management and Processing of Undocumented 
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021), 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------

    In addition, any noncitizen who is inspected and processed for 
expedited removal upon arrival at a POE and who expresses a fear of 
return, whether or not they use the CBP One app, will be referred to 
USCIS for a credible fear interview with an AO. See INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). The AO will determine 
whether the presumption applies or whether the individual can rebut or 
establish an exception to the presumption. CBP officers do not 
determine or evaluate the merits of any claim of fear, nor do they make 
determinations on whether the rule's presumption applies. See id. 
(providing that credible fear interviews are conducted by AOs).

[[Page 31359]]

b. AO Conduct and Training
    Comment: Several commenters expressed concern that the rule would 
lead to erroneous asylum decisions made by AOs, given alleged 
deficiencies in AO conduct and training. Commenters asserted that the 
rule would lead to asylum decisions that are too swift. Multiple 
commenters also expressed concern that AOs have conducted inadequate 
credible fear screenings and made erroneous decisions in such 
screenings, resulting in errors in adjudicating asylum claims. For 
instance, citing an investigation by the DHS Office for Civil Rights 
and Civil Liberties, one commenter alleged that AOs have misapplied or 
failed to apply existing asylum law, ignored relevant portions of 
asylum seekers' testimony, failed to perform pattern and practice 
analysis and consider country conditions, failed to ask relevant 
follow-up questions and develop the record, and failed to take accurate 
notes. In addition, the same commenter said some AOs can be hostile and 
belligerent, and even the best trained and most effective AOs have 
limited time for credible fear interviews. Another commenter stated 
that AOs are ill-equipped to conduct the additional analysis required 
by the rule, given alleged deficiencies in the credible fear lesson 
plan, failure of AOs to apply current legal standards, failure to 
provide appropriate language interpretation, failure to interview 
vulnerable populations within agency guidelines, and interference with 
access to counsel.
    Some commenters also stated that AOs are not medical experts and 
lack the required expertise to evaluate whether something is or is not 
an acute medical emergency. Another commenter stated that DHS should 
train all staff who interact with LGBT asylum seekers. Some commenters 
likewise stated that the rule should explicitly instruct AOs to 
affirmatively elicit information about whether a person could qualify 
for an exception to the rule or rebut its ineligibility presumption, 
such as details about any family or personal medical emergencies, 
threats of violence, difficulties using the CBP One app, and other 
matters that bear on the exceptions and grounds for rebuttal.
    One commenter expressed concerns that noncitizens who are subject 
to the rule's rebuttable presumption of asylum ineligibility would be 
deprived of the right to be meaningfully heard on their claims because 
adjudicators applying the presumption would understand the rule to 
favor overall deterrence of asylum seeking, such that decisionmakers 
would allegedly err on the side of denying asylum or making negative 
credible fear determinations. This commenter also argued that the 
expedited removal system leads to a systemic, unjustified skepticism 
amongst adjudicators toward meritorious claims.
    Response: The Departments acknowledge these commenter concerns but 
disagree that AOs lack the competence, expertise, or training to make 
determinations on whether the presumption of ineligibility for asylum 
applies or an exception or rebuttal ground has been established. AOs 
frequently assess physical and psychological harm when adjudicating 
asylum applications and are trained to do so in a sensitive 
manner.\115\ AOs already evaluate harm resulting from the 
unavailability of necessary medical care or specific medications when 
assessing ``other serious harm'' under 8 CFR 208.13(b)(1)(iii)(B).\116\ 
Additionally, all AOs receive specific training on adjudicating asylum 
claims of LGBT individuals.\117\ As for commenters' requests that the 
rule explicitly instruct AOs to affirmatively elicit information about 
the presumption, such an instruction is unnecessary, as AOs conducting 
credible fear interviews are already required to specifically ask 
questions to elicit all relevant testimony in a non-adversarial 
manner.\118\ This will necessarily include information related to 
whether the rule's presumption applies or an exception or rebuttal 
ground has been established, regardless of whether the noncitizen 
affirmatively raises these issues.
---------------------------------------------------------------------------

    \115\ For example, AOs adjudicate cases involving forms of 
persecution like female genital mutilation, forced abortion, or 
forced sterilization. See Matter of Kasinga, 21 I&N Dec. 357 (BIA 
1996); INA 101(a)(42)(B), 8 U.S.C. 1101(a)(42)(B); see also USCIS, 
RAIO Directorate--Officer Training, Gender-Related Claims at 24-28 
(Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Gender_Related_Claims_LP_RAIO.pdf.
    \116\ See USCIS, RAIO Directorate--Officer Training: Definition 
of Persecution and Eligibility Based on Past Persecution, Supp. B at 
60 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Persecution_LP_RAIO.pdf.
    \117\ See generally USCIS, RAIO Directorate--Officer Training: 
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and 
Intersex (LGBTI) Refugee and Asylum Claims (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/LGBTI_Claims_LP_RAIO.pdf.
    \118\ See generally USCIS, Non-Adversarial Interview; USCIS, 
Eliciting Testimony.
---------------------------------------------------------------------------

    USCIS takes any allegations of AO misconduct seriously and is aware 
of the ongoing investigation by the DHS Office of Civil Rights and 
Civil Liberties cited by commenters. However, the Departments strongly 
disagree with any claims that AOs systematically exhibit an unjustified 
skepticism or insensitivity toward asylum claims, that they routinely 
fail to follow law or procedure, or that they would do so when applying 
this rule. AOs are career government employees and are selected based 
on merit. They undergo special training on non-adversarial interview 
techniques, cross-cultural communication, interviewing children, and 
interviewing survivors of torture and other severe trauma.\119\ While 
the Departments disagree with the commenters' premise, the Departments 
also note that government officials are entitled to the presumption of 
official regularity in the way they conduct their duties. See United 
States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). Commenters 
failed to provide persuasive evidence of systematic bias or 
misapplication of the law or procedure by AOs.
---------------------------------------------------------------------------

    \119\ See 8 CFR 208.1(b); see also USCIS, Non-Adversarial 
Interview; USCIS, Eliciting Testimony; USCIS, RAIO Directorate--
Officer Training: Cross-Cultural Communication and Other Factors 
that May Impede Communication at an Interview (Dec. 20, 2019), 
https://www.uscis.gov/sites/default/files/document/foia/CrossCultural_Communication_LP_RAIO.pdf; USCIS, Children's Claims; 
USCIS, RAIO Directorate--Officer Training: Interviewing Survivors of 
Torture and Other Severe Trauma (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Survivors_of_Torture_LP_RAIO.pdf [hereinafter USCIS, Interviewing 
Survivors of Torture].
---------------------------------------------------------------------------

c. IJ Conduct and Training
    Comment: Several commenters expressed concern with IJ conduct and 
their training vis-[agrave]-vis application of the rule's condition on 
asylum eligibility. One commenter expressed concerns that noncitizens 
who are subject to the rule's rebuttable presumption of asylum 
ineligibility would be deprived of the right to be meaningfully heard 
on their claims because adjudicators applying the presumption would 
understand the proposed rule to favor overall deterrence, such that IJs 
would allegedly err on the side of denial or negative credible fear 
findings. The commenter argued that the expedited removal system and 
prior hiring practices within EOIR lead to a systemic inclination 
toward unjustified skepticism among IJs with respect to meritorious 
claims.
    Commenters also averred that IJs are not medical experts with the 
required expertise to evaluate medical issues implicated by the 
rebuttable presumption. Commenters stated that a significant number of 
IJs hired in the past several years lacked prior immigration law 
experience, yet, as IJs, they make complex legal determinations in 
brief credible fear proceedings. Commenters also asserted that some IJs 
have engaged in unprofessional and

[[Page 31360]]

hostile behavior toward asylum seekers and noted that some IJs have 
asylum denial rates of 90 percent or higher. Additionally, commenters 
expressed concern about potential IJ bias or lack of sufficient 
training for IJs related to, in particular, asylum claims of LGBT 
individuals.
    Response: The Departments respectfully disagree with commenters' 
concerns about IJs' conduct and training. IJs, like AOs, are career 
employees who are selected through a competitive process. Likewise, IJs 
receive ``comprehensive, continuing training and support'' directed at 
``promot[ing] the quality and consistency of adjudications.'' 8 CFR 
1003.0(b)(1)(vii). Relatedly, the Chief Immigration Judge has the 
authority to ``[p]rovide for appropriate training of the immigration 
judges and other OCIJ staff on the conduct of their powers and 
duties.'' 8 CFR 1003.9(b)(2). Regulations also require IJs to ``resolve 
the questions before them in a timely and impartial manner consistent 
with the [INA] and regulations.'' 8 CFR 1003.10(b).
    The Departments likewise do not share commenters' concerns 
regarding newly hired IJs' professional experience or ability to make 
appropriate legal determinations in the context of credible fear 
reviews or section 240 removal proceedings. The Departments believe 
that IJs' diverse professional backgrounds contribute to their ability 
to address complex legal issues in all cases arising before them. 
Notably, IJs are selected on merit with baseline qualifications, 
including possession of a J.D., LL.M., or LL.B. degree; active 
membership in a State bar; and seven years of experience as a licensed 
attorney working in litigation or administrative law. Upon entry on 
duty, new IJs receive extensive training, and throughout their tenure, 
all IJs receive both annual and periodic training on specialized topics 
as necessary. IJs are also expected to maintain professionalism and 
competence in the law.\120\
---------------------------------------------------------------------------

    \120\ See EOIR, Ethics and Professionalism Guide for Immigration 
Judges 2 (Jan. 31, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf.
---------------------------------------------------------------------------

    Moreover, the Departments disagree with commenter concerns about 
IJs' ability to assess medical records. Nothing in the rule requires 
adjudicators to make a formal medical diagnosis to determine whether a 
noncitizen is exempt from or has rebutted the rule's condition on 
eligibility. Rather, adjudicators will make a factual determination 
regarding whether certain exigencies, such as an acute medical 
emergency, caused a noncitizen to enter the United States outside of an 
available lawful pathway. 8 CFR 208.33(a)(2), 1208.33(a)(2). Given the 
IJ's role as the finder of fact in proceedings before EOIR, IJs are 
well-equipped to make such fact-based determinations.
    Further, to the extent that commenters' concerns amount to 
allegations that IJs are biased or fail to comport themselves in a 
manner consistent with their duties, the Departments note that IJs are 
attorneys, 8 CFR 1003.10(a), and must comply with all ethical conduct 
and training requirements for DOJ attorneys. See, e.g., 5 CFR 
2635.101.\121\ Additionally, as evidenced by the existence and work of 
EOIR's Judicial Conduct and Professionalism Unit (``JCPU''), 
``[a]lleged misconduct by [IJs] is taken seriously by [DOJ] and 
[EOIR].'' \122\ EOIR strives to adjudicate every case in a fair manner 
and to treat all parties involved with respect. Individuals or groups 
who believe that an IJ or other EOIR adjudicator has engaged in 
misconduct may submit a complaint to EOIR's JCPU via mail at Executive 
Office for Immigration Review, attn.: Judicial Conduct and 
Professionalism Unit, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 
22041 or via email at [email protected]. Additionally, JCPU 
may launch its own investigation if information related to potential 
misconduct comes to JCPU's attention by other means, including through 
news reports, Federal court decisions, and routine reviews of agency 
proceedings.\123\ JCPU will review all complaints, docket cases 
alleging judicial misconduct, gather relevant materials, and forward 
the complaint, relevant documents, and a summary of JCPU's preliminary 
fact-gathering to the IJ's supervisor for investigation and 
resolution.\124\ Complaints can be resolved by dismissal, conclusion, 
corrective action, or disciplinary action, and JCPU will provide 
written notice to the complainant when the matter is closed.\125\
---------------------------------------------------------------------------

    \121\ See also ICPM, Chapter 1.3(c) (Nov. 14, 2022) 
(``Immigration judges strive to act honorably, fairly, and in 
accordance with the highest ethical standards, thereby ensuring 
public confidence in the integrity and impartiality of immigration 
court proceedings.'').
    \122\ See id.
    \123\ See EOIR, Judicial Complaint Process (Feb. 2023), https://www.justice.gov/eoir/page/file/1100946/download (explaining the 
steps of the judicial complaint process).
    \124\ Id.
    \125\ Id.; see also EOIR, Statistics and Reports, https://www.justice.gov/eoir/statistics-and-reports (last visited Apr. 19, 
2023) (providing IJ complaint statistics).
---------------------------------------------------------------------------

    While the Departments disagree with the commenters' premise, 
moreover, the Departments also note that government officials are 
entitled to the presumption of official regularity in the way they 
conduct their duties, Chem. Found., 272 U.S. at 14-15, and commenters 
failed to provide persuasive evidence of systematic bias amongst IJs.
iv. Concerns Regarding Confusion, Delays, Backlog, and Inefficiencies
    Comment: Commenters described the rule as ``convoluted,'' 
``elaborate,'' or ``unclear,'' and expressed concerns that it would be 
confusing to migrants and make it difficult for legal services 
organizations to advise clients, partner organizations, and the 
communities that they serve. Commenters said that the proposed rule 
would impose a two-tier approach and additional fact-intensive queries 
for credible fear interviews, thereby increasing interview times and 
complexity of credible fear cases and adding to the burden and 
confusion of AOs. Additionally, commenters stated that prior asylum 
policy changes have led to confusion amongst attorneys and migrants and 
resulted in erroneous deportations. Moreover, one commenter stated that 
a confusing legal framework does not prevent and sometimes promotes an 
increase of irregular migration. Another commenter recommended that the 
Government provide guidance or an FAQ document to accompany and explain 
the rule's exceptions and means of rebuttal.
    In addition, commenters expressed concern that, by adding to the 
evidentiary requirements, complexity, and length of asylum 
adjudications, the rule would exacerbate delays and backlogs, 
inefficiently prolong the asylum process for legitimate asylum seekers, 
increase erroneous denials, decrease the number of attorneys available 
to help clear backlogs, and strain limited government resources. 
Commenters also pointed to previous instances where changes in 
procedure led to an increased backlog, citing the Citizenship and 
Immigrant Services Ombudsman 2022 annual report to highlight this 
dynamic. Another commenter stated that cases wrongly referred to the 
immigration court by the Asylum Office due to erroneous applications of 
the rule would unnecessarily add to immigration court backlogs. And 
commenters stated that the NPRM failed to provide any evidence or 
explanation that the proposed rule would mitigate backlogs. In response 
to these efficiency concerns, one commenter suggested that the 
Departments should pursue alternate solutions for addressing the USCIS 
and

[[Page 31361]]

EOIR backlogs, such as more dedicated dockets, smarter prioritization 
of cases, expanded use of administrative closure or deferred action, or 
establishing an independent immigration court. One commenter likewise 
maintained that the Departments, in their efforts to help the 
immigration court system function more efficiently and effectively must 
still respect the due process rights of asylum seekers.
    Response: The Departments do not believe that the rule's provisions 
are unduly confusing or complex. However, as described in Section 
II.C.7 of this preamble, the Departments have streamlined the 
regulatory text significantly to improve clarity, and the Departments 
believe this final rule publication should provide much of the guidance 
sought by commenters. Substantively, the rule simply outlines a 
circumstance in which a noncitizen will be presumed ineligible for 
asylum, and includes a list of exceptions to and means of rebutting the 
presumption. As explained in Section IV.B.5.iii.a of this preamble, AOs 
conducting credible fear interviews will specifically ask questions to 
elicit all relevant testimony in a non-adversarial manner, including 
with respect to whether the presumption applies or any exception or 
rebuttal ground is applicable in a given case, regardless of whether 
the noncitizen affirmatively raises these issues. Furthermore, 
noncitizens who are found by an AO to be subject to the condition on 
eligibility may request review of that determination, and an IJ will 
evaluate de novo whether the noncitizen is subject to the presumption, 
and if so, whether the noncitizen has established an exception to or 
rebutted the presumption. 8 CFR 208.33(b)(1), (2). And even where the 
presumption applies and no exception or rebuttal ground has been 
established at the credible fear stage, if the noncitizen has 
demonstrated a reasonable possibility of persecution or torture, they 
will have an opportunity to apply for asylum, statutory withholding of 
removal, CAT protection, or any other form of relief or protection for 
which the noncitizen is eligible in removal proceedings under section 
240 of the INA. See 8 CFR 208.33(b)(2)(ii), (b)(2)(v)(B); id. 
1208.33(b)(4).
    In relation to the concern that the rule's provisions are unclear 
or that additional public-facing materials may be necessary to clarify 
and raise awareness about provisions of the rule, the Departments 
intend to execute a robust communications plan to notify and inform the 
public of the rule's requirements. This plan entails engagement with 
stakeholders, including NGOs, international organizations, legal 
services organizations, and others. The Departments also plan to mount 
communications campaigns as appropriate throughout the Western 
Hemisphere in coordination with interagency partners and partner 
governments in order to educate potential migrants about the rule's 
requirements, including consequences of failing to use available lawful 
pathways.
    These efforts are in addition to preexisting and ongoing 
communications efforts, including publicization of removal and 
enforcement statistics, English-, Spanish-, Portuguese-, and Haitian 
Creole-language interviews with media outlets in the region, and 
regularly updated Web resources on which the Departments can provide 
additional information in response to demand from the public.
    The Departments acknowledge concerns regarding delays, backlogs, 
and limited government resources, but believe that these concerns are 
outweighed by the anticipated benefits of the rule. The rule is 
expected to ultimately reduce the number of cases pending before the 
immigration courts and reduce ancillary benefit requests to USCIS. See 
8 CFR 208.7 (employment authorization for pending asylum applicants). 
This would also alleviate the burden on ICE of removing non-detained 
noncitizens who receive final orders of removal at the conclusion of 
removal proceedings under section 240 of the INA but who do not comply 
with their orders. See, e.g., 8 CFR 241.4(f)(7) (in considering whether 
to recommend further detention or release of a noncitizen, an 
adjudicator must consider ``[t]he likelihood that the alien is a 
significant flight risk or may abscond to avoid removal''). The 
Departments also anticipate that the rule will redirect migratory flows 
towards lawful, safe, orderly pathways in ways that make it easier to 
process their requests for admission. 88 FR at 11729. The Departments 
believe that this will ultimately result in fewer credible fear cases 
than would otherwise be processed, and that these improvements in 
efficiency would outweigh a potential increase in credible fear 
interview times. The Departments do not anticipate that the rule will 
be applied frequently in affirmative asylum cases decided by the Asylum 
Office, since only a small percentage of these applicants enter the 
United States from Mexico across the southwest land border or adjacent 
coastal borders, apart from UCs who are not subject to the rule.\126\ 
When all the effects are considered on balance, this rule will serve 
one of the key goals of the U.S. asylum system, which is to efficiently 
and fairly provide protection to noncitizens who are in the United 
States and have meritorious claims, while also efficiently denying and 
ultimately removing those who are not deemed eligible for discretionary 
forms of protection and do not qualify for statutory withholding of 
removal or protection under the CAT. See 88 FR at 11729.
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    \126\ The annual percentage of affirmative asylum applicats who 
entered between POEs and were not UCs has steadily declined over the 
past two decades. The percentage for 2020-22 have been 16.00 
percent, 14.85 percent, and 13.92 percent, respectively. So far in 
fiscal year 2023, the percentage has been 9.06 percent. USCIS Data 
Collection, Apr. 13, 2023.
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    Comments advocating for other immigration policy changes or 
statutory reforms that could potentially create efficiencies in 
immigration proceedings are outside the scope of this rulemaking. 
However, as stated in the NPRM, the Departments note that EOIR has 
created efficiencies by reducing barriers to access immigration courts. 
See 88 FR at 11717. In that regard, EOIR has expanded the Immigration 
Court Helpdesk program to several additional courts, issued guidance on 
using the Friend of the Court model to assist unrepresented 
respondents, and reconstituted its pro bono liaison program at each 
immigration court. The above measures promote efficiency as, where a 
noncitizen is represented, the IJ is less likely to have to engage in 
time-consuming discussions at hearings to ascertain whether the 
noncitizen is subject to removal and potentially eligible for any 
relief. In addition, a noncitizen's counsel can assist the noncitizen 
in gathering evidence, can prepare the noncitizen to testify, and can 
work with DHS counsel to narrow the issues the IJ must decide. While 
critically important, these process improvements are not, on their own, 
sufficient to respond to the significant resource needs associated with 
the increase in migrants anticipated following the lifting of the Title 
42 public health Order.
    To the extent commenters argued that adjudication timeline concerns 
implicate the due process rights of noncitizens, as explained above, 
the Supreme Court has held that the due process rights of noncitizens 
applying for admission at the border are limited to ``only those rights 
regarding admission that Congress has provided by statute.'' 
Thuraissigiam, 140 S. Ct. at 1983. However, upon referral of a fear

[[Page 31362]]

claim, USCIS seeks to issue credible fear determinations for detained 
noncitizens in a timely manner. Furthermore, the statute that governs 
expedited removal provides that upon a noncitizen's request for review 
of an AO's negative credible fear determination, an IJ will review the 
determination ``in no case later than 7 days after the date of the 
determination.'' INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). In any event, because there is no statute 
guaranteeing any noncitizen that their expedited removal or credible 
fear process will be completed in a given amount of time, any failure 
to meet this obligation is not in the nature of a due process 
violation. See Thuraissigiam, 140 S. Ct. at 1983.
    Comment: Commenters expressed concerns that a lack of notice about 
the rule for asylum seekers could lead to confusion and due process 
violations. Some expressed concern that noncitizens who are traveling 
to the United States when the rule becomes effective would not have 
sufficient notice about the CBP One app or the need to schedule an 
appointment in order to seek asylum without being subject to a 
rebuttable presumption of ineligibility. Commenters expressed concern 
that individuals who had contracted with smugglers in transit would 
receive disinformation from the smugglers about lawful pathways, 
thereby preventing them from using a lawful pathway to enter the United 
States. Other commenters said that noncitizens should receive notice of 
the rebuttable presumption prior to their credible fear interviews.
    Response: The Departments believe that comments about lack of 
notice are misguided for several reasons. First, as just discussed, the 
rule's requirements are not unduly confusing or complex, and the 
Departments intend to implement a robust communications plan to notify 
and inform the public of requirements under the rule, minimizing any 
potential confusion. Second, the Departments provided advance notice of 
the potential issuance of this policy by issuing the NPRM on February 
23 of this year, and by announcing the impending issuance of such 
proposed rule in January.\127\ Third, any lack of notice would not 
constitute a violation of the Fifth Amendment's Due Process Clause. As 
explained above, the Supreme Court has held that the rights of 
noncitizens applying for admission at the border are limited to ``only 
those rights regarding admission that Congress has provided by 
statute.'' Thuraissigiam, 140 S. Ct. at 1983. The Departments are aware 
of no statutory requirement that notice regarding any of the INA's 
provisions be provided to individuals outside the United States, 
including those who may be subject to expedited removal provisions or 
conditions on asylum eligibility upon arrival. Finally, courts have 
long held that ``ignorance of the legal requirements for filing an 
asylum application'' is ``no excuse'' for failing to comply with such 
requirements, particularly where, as here, the enactment of such 
requirements is published in the Federal Register. Alquijay v. Garland, 
40 F.4th 1099, 1103 (9th Cir. 2022) (quotation marks omitted) (citing, 
e.g., Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 
573, 581 (2010)); see Williams v. Mukasey, 531 F.3d 1040, 1042 (9th 
Cir. 2008).
---------------------------------------------------------------------------

    \127\ See DHS, Press Release, DHS Continues to Prepare for End 
of Title 42; Announces New Border Enforcement Measures and 
Additional Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
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v. Other Procedural Concerns
    Comment: Commenters stated that it would be extremely challenging 
or impossible for many asylum seekers to show that the rule does not 
apply to them or to establish an exception to or rebut the presumption 
of ineligibility, despite having bona fide claims. According to these 
commenters, the expedited removal process is extremely flawed and rife 
with erroneous removals due to a number of factors. Asylum seekers are 
detained in remote areas (in abusive and dangerous conditions of 
confinement), where attorney access is limited and they have no chance 
to gather evidence. Credible fear screenings typically occur over the 
phone (often with poor call quality and sporadic connection, with 
little or no privacy). The commenters also stated that the lack of 
privacy during these screenings makes it more difficult and potentially 
retraumatizing for applicants to share their stories and make their 
cases. One commenter stated that, although the noncitizen may be in a 
private room, there is often a lot of noise and commotion in the 
passageways that can be distracting. One commenter wrote that trauma 
severely impacts a survivor's ability to coherently and compellingly 
present an asylum claim by negatively affecting memory and emotional 
state and causing them to behave in ways that untrained people may read 
as indicating a lack of credibility. Another commenter stated that 
credible fear screenings can trigger increased traumatic response, 
rather than increased disclosure about the circumstances of persecution 
or torture. The presence of noncitizens' children during the interview 
can be distracting or deter the person from disclosing sensitive 
elements of their persecution story. Commenters also stated that 
language barriers, including English-only availability for written 
notices, make the process more difficult. One commenter also stated 
that translators may be unfamiliar with certain dialects and slang. 
Commenters stated that these alleged factors would worsen if the 
Administration were to pursue its reported plan to conduct credible 
fear interviews within days of asylum seekers' arrival in CBP custody, 
based on the conditions in CBP custody and lack of access to counsel, 
as shown by the increase in negative credible fear determinations 
during the Prompt Asylum Case Review (``PACR'') program and the 
Humanitarian Asylum Review Program (``HARP'').
    Response: To the extent commenters argued that conditions in which 
credible fear interviews take place, such as location, interview 
procedures, and surrounding circumstances, implicate the due process 
rights of noncitizens, as explained above, the Supreme Court has held 
that the due process rights of noncitizens applying for admission at 
the border are limited to ``only those rights regarding admission that 
Congress has provided by statute.'' Thuraissigiam, 140 S. Ct. at 1983. 
As further explained above, the statute that governs expedited removal 
provides only that the noncitizen may ``consult with a person or 
persons of the alien's choosing prior to the interview or any review 
thereof, according to regulations prescribed by the Attorney General. 
Such consultation shall be at no expense to the Government and shall 
not unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv).
    In any event, the Departments disagree with these characterizations 
of credible fear interviews. With regard to commenter concerns about 
lack of privacy during credible fear interviews, the Departments note 
that these interviews are conducted ``separate and apart from the 
general public.'' 8 CFR 208.30(d). The Departments are mindful of their 
duties under 8 CFR 208.6 and 1208.6 to prevent unauthorized disclosure 
of records pertaining to any credible fear determination, and AOs are 
required to explain these confidentiality requirements to noncitizens 
prior to credible fear interviews.\128\ Noncitizens in credible

[[Page 31363]]

fear proceedings are also informed that interpreters are sworn to keep 
their testimony confidential.\129\ All AOs receive training on working 
with interpreters, which includes assessing competency and recognizing 
other factors that may affect the accuracy of interpretation.\130\ 
Credible fear interviews are conducted ``in a nonadversarial manner, 
separate and apart from the general public.'' 8 CFR 208.30(d). AOs are 
trained to elicit all relevant testimony during credible fear 
interviews,\131\ and will not preemptively issue negative credible fear 
determinations due to phone connectivity issues. All AOs receive 
training on interviewing survivors of torture and other severe 
trauma.\132\
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    \128\ See USCIS, Non-Adversarial Interview; see also Form M-444, 
Information About Credible Fear Interview 1 (May 31, 2022) (``U.S. 
law has strict rules to prevent the government from telling others 
about what you say in your credible fear interview.'').
    \129\ Form M-444, Information About Credible Fear Interview 2 
(May 31, 2022) (``The interpreter will be sworn to keep the 
information you discuss confidential.'').
    \130\ USCIS, RAIO Directorate--Officer Training, Interviewing--
Working with an Interpreter (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Working_with_an_Interpreter_LP_RAIO.pdf.
    \131\ USCIS, Eliciting Testimony 12 (``In cases requiring an 
interview, although the burden is on the applicant to establish 
eligibility, equally important is your obligation to elicit all 
pertinent information.''); USCIS, Non-Adversarial Interview 13 
(``You control the direction, pace, and tone of the interview and 
have a duty to elicit all relevant testimony.'').
    \132\ USCIS, Interviewing Survivors of Torture.
---------------------------------------------------------------------------

    Finally, commenters' concerns related to the potential for 
conducting credible fear interviews while noncitizens are in CBP 
custody are outside the scope of this rule. This rule does not specify 
where noncitizens may be held in custody during credible fear 
proceedings. Any decision to conduct credible fear interviews while the 
noncitizen is in CBP custody will take into account a range of factors, 
including operational limitations associated with the facility, 
staffing, and throughput. Additionally, to the extent that commenters 
have concerns about conditions in CBP custody, such comments are 
outside the scope of this rule. DHS notes, however, that it is 
committed to providing safe, sanitary, and humane conditions to all 
individuals in custody, and that it is committed to transferring 
individuals out of CBP custody in an expeditious manner. The 
Departments further note that one anticipated effect of this rule is to 
alleviate overcrowding in DHS detention facilities. See 88 FR at 11704.
6. Recent Regional Migration Initiatives
    Comment: Commenters stated that the rule conflicts with several 
migration declarations and other compacts into which the United States 
has recently entered. For example, at least one commenter stated that 
the rule conflicts with the L.A. Declaration, in which the United 
States committed ``to promote access to protection and complementary 
pathways for asylum seekers, refugees, and stateless persons in 
accordance with national legislation and with respect for the principle 
of non-refoulement.'' \133\ One commenter stated the former presidents 
of Colombia and Costa Rica object to the proposed rule on the basis 
that it is not in line with the L.A. Declaration.
---------------------------------------------------------------------------

    \133\ The 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/.
---------------------------------------------------------------------------

    Response: The Departments disagree that the rule conflicts with any 
recent regional migration initiatives. The Departments' rule is fully 
consistent with the United States' commitments under the L.A. 
Declaration, including our responsibility as a signatory country to 
``manage mixed movements across international borders in a secure, 
humane, orderly, and regular manner.'' \134\ As described in the NPRM, 
political and economic instability, coupled with the lingering adverse 
effects of the COVID-19 global pandemic, have fueled a substantial 
increase in migration throughout the world. See, e.g., 88 FR at 11708-
14.
---------------------------------------------------------------------------

    \134\ Los Angeles Declaration.
---------------------------------------------------------------------------

    Current DHS encounter projections and planning models suggest that 
encounters at the SWB could rise to 11,000 encounters per day after the 
lifting of the Title 42 public health Order.\135\ Absent policy 
changes, most non-Mexicans processed for expedited removal under Title 
8 would likely establish credible fear and remain in the United States 
for the foreseeable future despite the fact that many of them will not 
ultimately be granted asylum, a scenario that would likely incentivize 
an increasing number of migrants to the United States and further 
increase the likelihood of sustained high encounter rates.
---------------------------------------------------------------------------

    \135\ OIS analysis of DHS SWB Encounter Planning Model generated 
April 18, 2023.
---------------------------------------------------------------------------

    The Departments' promulgation of this rule is an attempt to avert 
this scenario in line with the United States and other signatory 
nations' responsibility to manage migration responsibly and humanely as 
described in the L.A. Declaration. Contrary to commenters' assertion, 
the rule is consistent with the Collaborative Migration Management 
Strategy (``CMMS'') \136\ and the L.A. Declaration's support for a 
collaborative and regional approach to migration and forced 
displacement, pursuant to which countries in the hemisphere commit to 
implementing programs to stabilize communities hosting migrants and 
asylum seekers, providing increased regular pathways and protections 
for migrants and asylum seekers who reside in or traveled through their 
countries, and humanely enforcing existing immigration laws.
---------------------------------------------------------------------------

    \136\ See The White House, Collaborative Migration Management 
Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf.
---------------------------------------------------------------------------

    The rule works in combination with several other policy actions to 
secure the SWB while upholding the principles enshrined in the L.A. 
Declaration. These policy actions include resumption of the Cuban and 
Haitian Family Reunification Parole Programs, the plans to streamline 
those programs and extend them to nationals of certain other countries, 
the establishment of regional processing centers, expansion of refugee 
resettlement commitments globally and in the region, expansion of labor 
pathways, including expanded access in the region to H-2B temporary 
nonagricultural worker visas, creation of the parole processes for CHNV 
nationals, the Asylum Processing IFR, and other processing improvements 
geared toward expanding access to lawful pathways. 88 FR at 11716-
19.\137\ These actions are consistent with the specific goal laid out 
in the L.A. Declaration to collectively ``[e]xpand access to regular 
pathways for migrants and refugees.'' Together with the rule, these 
policy actions will help address unprecedented migratory flows, the 
systemic costs those flows impose on the immigration system, and the 
ways in which a network of increasingly sophisticated human smuggling 
networks cruelly exploit the system for financial gain.
---------------------------------------------------------------------------

    \137\ See also DHS, New Actions to Manage Regional Migration 
(Apr. 27, 2023).
---------------------------------------------------------------------------

7. Negative Impacts on the Workforce and Economy
    Comment: Some commenters stated that the Departments should not 
enact restrictions on immigration due to current labor shortages and 
the general benefits of immigration. Commenters stated that the rule 
will stifle the flow of immigration to American communities, which will 
suffer because immigrants are central to community development, 
economic prosperity, and maintaining a strong workforce. A commenter 
stated that U.S. history has shown that immigrants, even those who

[[Page 31364]]

arrive here in the weakest of circumstances, strengthen our country in 
the long run. Commenters said that the U.S. population is stagnating or 
shrinking, so the United States should welcome migrants--especially 
young migrants--who can support the economy, fill jobs, and contribute 
to Social Security. A commenter stated that beginning in 2019, levels 
of immigration to the United States dropped significantly, and that by 
the end of 2021 there were close to 2 million fewer working-age 
immigrants in the United States than there would have been if pre-
pandemic immigration continued unchanged, according to researchers from 
the University of California, Davis.
    Some commenters opposed the proposed rule on the ground that 
immigrants are willing to work difficult jobs that many already in the 
United States are not willing to take. Commenters stated that there is 
currently a severe shortage of certain workers in the United States, 
such as in the health care, agriculture, and service industries, and 
that migrants who undertake an arduous overland journey to the United 
States are likely to work hard and become productive members of U.S. 
society. One commenter noted that immigrant-owned businesses account 
for over 8 million jobs and 1.3 trillion dollars in the U.S. economy. 
Another commenter stated that individuals in the asylum process who are 
working with work authorization contribute about $11 billion to the 
economy each year. Commenters also stated that migrants do not have a 
significant negative impact on the wages of local-born residents and 
that migrants contribute more to the U.S. economy than the cost of 
community and government services they use. One commenter stated that 
the proposed rule improperly restricts asylum seekers being integrated 
into the workforces of the States and that State-funded services for 
asylum seekers would be put under strain as a result.
    Response: The Departments agree that immigrants make important 
contributions to the U.S. economy. However, the Departments disagree 
that the benefits of immigration render this rule unnecessary or 
invalid. The Departments emphasize that the U.S. immigration system has 
experienced extreme strain with a dramatic increase of noncitizens 
attempting to cross the SWB in between POEs without authorization, 
reaching an all-time high of 2.2 million encounters in FY 2022. Without 
a meaningful policy change, border encounters could dramatically rise 
to as high as 11,000 per day after the Title 42 public health Order is 
lifted,\138\ and DHS does not currently have the resources to manage 
and sustain the processing of migratory flows of this scale in a safe 
and orderly manner. See 88 FR at 11712-13. This rule is therefore 
designed to incentivize migrants to choose lawful, safe, and orderly 
pathways to entering the United States over dangerous, irregular 
pathways.
---------------------------------------------------------------------------

    \138\ OIS analysis of DHS SWB Encounter Planning Model generated 
April 18, 2023.
---------------------------------------------------------------------------

    Over the last several months, DHS has endeavored to promote and 
expand lawful, safe, and orderly pathways. For instance, in January 
2023, DHS implemented new parole processes for CHN nationals that built 
on the successful process for Venezuelans and created an accessible, 
streamlined way for eligible individuals to travel to and enter the 
United States via a lawful and safe pathway. Through a fully online 
process, individuals can seek advance authorization to travel to the 
United States and be considered, on a case-by-case basis, for a 
temporary grant of parole for up to two years. Individuals who are 
paroled through these processes can apply for employment authorization 
immediately following their arrival to the United States.\139\
---------------------------------------------------------------------------

    \139\ See USCIS, Frequently Asked Questions About the Processes 
for Cubans, Haitians, Nicaraguans, and Venezuelans (Mar. 22, 2023), 
https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.
---------------------------------------------------------------------------

    Furthermore, the United States Government has significantly 
expanded access to the H-2 labor visa programs to address labor 
shortages and provide safe and orderly pathways for migrants seeking to 
work in the United States. For example, on December 15, 2022, DHS and 
the Department of Labor (``DOL'') jointly published a temporary final 
rule increasing the total number of noncitizens who may receive an H-2B 
nonimmigrant visa by up to 64,716 for the entirety of FY 2023. 87 FR 
76816 (Dec. 15, 2022). In 2022, concurrent with the announcement of the 
L.A. Declaration, the United States announced that it intends to 
welcome at least 20,000 refugees from Latin America and the Caribbean 
in FY 2023 and FY 2024, which would put the United States on pace to 
more than triple the number of refugee admissions from the Western 
Hemisphere this fiscal year alone.\140\ On April 27, 2023, DHS 
announced that it would commit to referring for resettlement thousands 
of additional refugees per month from the Western Hemisphere--with the 
goal of doubling the number of refugees the United States committed to 
welcome as part of the L.A. Declaration.\141\ The Departments also note 
that the United States admitted significantly more noncitizens in 
nonimmigrant status in fiscal year 2022 (96,700,000) than in previous 
years.\142\
---------------------------------------------------------------------------

    \140\ See L.A. Declaration Fact Sheet.
    \141\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
    \142\ Compare OIS, Legal Immigration and Adjustment of Status 
Report Fiscal Year 2022, Quarter 4, https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration, with OIS, Annual Flow 
Report: U.S. Nonimmigrant Admissions: 2021 (July 2022), https://www.dhs.gov/sites/default/files/2022-07/2022_0722_plcy_nonimmigrant_fy2021.pdf, and OIS, Annual Flow Report: 
U.S. Nonimmigrant Admissions: 2018 (Oct. 2018), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2018/nonimmigrant_admissions_2018.pdf.
---------------------------------------------------------------------------

    The Departments believe that these new or expanded lawful pathways, 
and particularly employment-based pathways, are effective ways to 
address labor shortages and encourage lawful migration. The Departments 
also believe that, by reducing migrants' incentives to use human 
smugglers and traffickers to enter the United States, this final rule 
will reduce the likelihood that newly arrived migrants will be 
subjected to labor trafficking. The Departments further reiterate that 
noncitizens who avail themselves of any of the lawful, safe, and 
orderly pathways recognized in this rule will not be subject to the 
rebuttable presumption.
8. Other Opposition
i. Encourages Migration by Sea or Other Dangerous Means
    Comment: A commenter predicted that the proposed rule may increase 
the number of migrants seeking to travel to the United States by sea, 
which is dangerous and could lead to an increase in migrant deaths and 
drownings, and another suggested that attempted immigration directly by 
sea would pose a significant burden on Coast Guard and other resources. 
One commenter expressed concern that the rule would incentivize 
migrants to avoid detection by CBP, remarking that migrants may attempt 
to enter the United States by crossing the Rio Grande River or along 
the Pacific coast, where they face a high risk of drowning.
    Commenters stated that the proposed rule would do nothing to stem 
the flow of migrants to the United States but would instead force 
people to seek out other means of coming to the United States and leave 
people with few choices, including the very choices the rule purports 
to wish to avoid. Some commenters stated that the rule will result in 
migrants, who are in a desperate humanitarian situations or

[[Page 31365]]

fear for their lives, resorting to more dangerous routes between POEs 
to enter the United States. One commenter stated that these dangerous 
border crossings can result in severe injuries, dehydration, 
starvation, and drownings as well as kidnappings and other violent 
attacks by cartels and other organized criminal groups that exert 
influence at the U.S.-Mexico border. Another commenter claimed that 
data shows that CBP's ``prior metering program'' increased border 
apprehensions by 36 percent, which suggests that making the CBP One app 
mandatory may in fact increase border crossings and make them riskier.
    Response: First, the Departments share commenters' concerns that 
noncitizens seeking to avoid the rebuttable presumption may take 
dangerous sea routes, leading to migrant deaths and drownings. Because 
applying the rule only to those who enter the United States from Mexico 
across the southwest land border would inadvertently incentivize 
noncitizens without documents sufficient for lawful admission to 
circumvent that land border by making a hazardous attempt to reach the 
United States from Mexico by sea, the Departments have determined that 
it is appropriate to apply the rebuttable presumption to those who 
enter the United States from Mexico at both the southwest land border 
and adjacent coastal borders. Similar considerations that led the 
Departments to pursue this rulemaking with respect to land arrivals at 
the SWB apply in this specific maritime context, as the anticipated 
increase in migration by land could lead migrants attempting to avoid 
the rebuttable presumption to make the final portion of their journey 
from Mexico by sea. In light of the inherent dangers such attempts 
could create for migrants and DHS personnel, and to avoid a significant 
further increase in maritime interdictions and landfall by noncitizens 
along the adjacent coastal borders as compared to the already 
significant surge that the Departments have seen in recent years, the 
Departments have extended the rebuttable presumption to apply to 
noncitizens who enter the United States from Mexico at adjacent coastal 
borders. 8 CFR 208.33(a)(1), 1208.33(a)(1).
    Extension of the rebuttable presumption to noncitizens who enter 
the United States from Mexico at adjacent coastal borders is supported 
by the growing number of migrants taking to sea under dangerous 
conditions, which puts lives at risk and stresses DHS's resources. The 
IOM Missing Migrants Project reported at least 321 documented deaths 
and disappearances of migrants throughout the Caribbean in 2022, 
signaling the highest recorded number since it began tracking such 
events in 2014 and a 78 percent overall increase over the 180 
documented cases in 2021.\143\ Total migrants interdicted at sea by the 
U.S. Coast Guard (``USCG'') increased by 502 percent between FY 2020 
(2,079) and FY 2022 (12,521).\144\ Interdictions continued to rise in 
FY 2023 with 8,822 migrants interdicted at sea through March, almost 70 
percent of the total in FY 2022 within six months.\145\ Interdictions 
occurred primarily in the South Florida Straits and the Caribbean 
Sea.\146\ The USCG views its migrant interdiction mission as a 
humanitarian effort to rescue those taking to the sea and to encourage 
noncitizens to pursue lawful pathways to enter the United States. By 
allocating additional assets to migrant interdiction operations and to 
prevent conditions that could lead to a maritime mass migration, the 
USCG assumes certain operational risk to other statutory missions. 
Recently, some USCG assets have been reallocated from other key mission 
areas, including counter-drug operations, protection of living marine 
resources, and support for shipping navigation. The Departments expect 
that the strategy of coupling expanded lawful, safe, and orderly 
pathways into the United States with this rule's application of the 
rebuttable presumption to noncitizens who make landfall at adjacent 
coastal borders after traveling through Mexico, would lead to a 
reduction in the numbers of migrants who would otherwise undertake a 
dangerous journey to the United States by sea. By avoiding a further 
increase in maritime migration, USCG can in turn avoid incurring 
greater risk to its other statutory missions.
---------------------------------------------------------------------------

    \143\ Int'l Org. for Migration, Missing Migrants in the 
Caribbean Reached a Record High in 2022 (Jan. 24, 2023), https://www.iom.int/news/missing-migrants-caribbean-reached-record-high-2022.
    \144\ OIS analysis of USCG data through March 31, 2023.
    \145\ Id.
    \146\ Testimony of Jonathan Miller, ``Securing America's 
Maritime Border: Challenges and Solutions for U.S. National 
Security'' at 4 (Mar. 23, 2023), https://homeland.house.gov/media/2023/03/3.23.23-TMS-Testimony.pdf.
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    Second, the Departments disagree with commenters' concerns that 
this rule will incentivize more migrants to use other dangerous means 
of entering the United States, such as concealment in a vehicle 
crossing a SWB POE or crossing between POEs at remote locations. As 
noted in Section IV.B.3.iv of this preamble, the Departments anticipate 
that the newly expanded lawful pathways to enter to the United States, 
in conjunction with the rule's condition on asylum eligibility for 
those who fail to exercise those pathways, will ultimately decrease 
attempts to enter the United States without authorization, and thereby 
reduce reliance on smugglers and human traffickers.
    The Departments further disagree with the commenter's claims that 
the use of the CBP One app to schedule an appointment to present at a 
POE is a ``metering program'' or that use of the CBP One app will 
increase irregular migration or incentivize riskier irregular migration 
routes. CBP will inspect and process all arriving noncitizens at POEs, 
regardless of whether they have used the CBP One app. In other words, 
the use of the CBP One app is not a prerequisite to approach a POE, nor 
is it a prerequisite to be inspected and processed under the INA. CBP 
will not turn away individuals without appointments. CBP is committed 
to increasing the number of noncitizens processed at POEs and is 
committed to processing noncitizens in an expeditious manner.\147\
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    \147\ See Memorandum for William A. Ferrara, Exec. Ass't Comm'r, 
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP, 
Re: Guidance for Management and Processing of Undocumented 
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021), 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
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    Moreover, the Departments intend for this rule to work in 
conjunction with other initiatives that expand lawful pathways to enter 
the United States, and thereby incentivize safe, orderly, lawful 
migration over dangerous, irregular forms of migration. Noncitizens who 
enter the United States in vehicles without scheduling an appointment 
to present at a POE and who are inadmissible under section 212(a)(7) of 
the INA, 8 U.S.C. 1182(a)(7), are subject to the rebuttable 
presumption. Similarly, noncitizens who attempt to cross the southwest 
land border between POEs are subject to the rebuttable presumption. 
Likewise, noncitizens who attempt to enter the United States from 
Mexico at adjacent coastal borders are subject to the rebuttable 
presumption. Additionally, DHS has changed the respective parole 
processes for Cubans and Haitians, such that Cubans and Haitians who 
are interdicted at sea after April 27, 2023, are ineligible for such 
parole processes. See Implementation of a Change to the Parole Process 
for Cubans, 88 FR 26329 (Apr. 28, 2023); Implementation of a Change to 
the Parole Process for Haitians, 88 FR 26327 (Apr. 28, 2023). The 
Departments anticipate that these

[[Page 31366]]

disincentives, coupled with the newly expanded pathways for lawful 
migration and the rule's exceptions and means of rebuttal, will 
ultimately lead fewer noncitizens to attempt to enter the United States 
in an unsafe manner.
ii. Inconsistent With Actions of Other Countries and Harmful to Foreign 
Relations
    Comment: Commenters stated that the proposed rule would almost 
completely abandon the United States' commitment to work with other 
countries to meet growing refugee and asylum seeker protection needs, 
instead placing the burden on transit countries. Commenters stated that 
many European countries have opened their borders to millions of 
immigrants, and that the United States should do the same to help 
people who are facing desperate situations at home. Commenters observed 
that other countries in Latin America or the Western hemisphere have 
taken in many more migrants and taken on a greater burden than the 
United States. One commenter expressed concern that other countries may 
seek to follow in the United States' footsteps and enact similar 
restrictive asylum measures. Another commenter stated the rule will not 
improve foreign relations with hemispheric partner nations.
    Response: The Departments acknowledge the comments and reiterate 
that the purpose of this rule is to encourage migrants to choose safe, 
orderly, and lawful pathways of entering the United States, while 
preserving the opportunity for individuals fleeing persecution to 
pursue protection-based claims consistent with the INA and 
international law. The rule is needed because, absent this rule, after 
the termination of the Title 42 public health Order, the number of 
migrants expected to travel without authorization to the United States 
is expected to increase significantly, to a level that risks 
undermining the Departments' ability to safely, effectively, and 
humanely enforce and administer U.S. immigration law, including the 
asylum system. This rule is one policy within a broad range of actions 
being implemented to ensure that there is a regional framework for 
addressing and responding to historic levels of migration within the 
hemisphere.\148\
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    \148\ See The White House, FACT SHEET: The Biden Administration 
Blueprint for a Fair, Orderly and Humane Immigration System (July 
27, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/27/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/; The White House, 
FACT SHEET: Update on the Collaborative Migration Management 
Strategy (Apr. 20, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/; L.A. Declaration Fact 
Sheet.
---------------------------------------------------------------------------

    The United States Government is expanding its efforts to protect 
refugees, those seeking asylum, and those fleeing civil conflict. Since 
FY 2020, the United States has increased its annual refugee admissions 
ceiling eightfold and expanded refugee processing within the Western 
hemisphere.\149\ On April 27, 2023, DHS and the Department of State 
announced that they would commit to referring for resettlement 
thousands of additional refugees per month from the Western 
Hemisphere--with the goal of doubling the number of refugees the United 
States committed to welcome as part of the L.A. Declaration.\150\ 
Similarly, DHS and the Department of State recently announced 
enhancements to the Central American Minors Refugee and Parole Program, 
which expands eligibility criteria for those who may request USRAP 
access for qualifying children.\151\ DHS has also implemented 
comprehensive processes to facilitate the lawful, safe, and orderly 
migration of CHNV nationals by introducing the CHNV parole 
processes.\152\ Additionally, DHS has recently implemented special 
lawful processes for nationals of Ukraine.\153\
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    \149\ Compare Presidential Determination on Refugee Admissions 
for Fiscal Year 2021, 85 FR 71219 (Nov. 6, 2020) (15,000), with 
White House, Memorandum on Presidential Determination on Refugee 
Admissions for Fiscal Year 2023 (Sept. 27, 2022), https://www.whitehouse.gov/briefing-room/presidential-actions/2022/09/27/memorandum-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2023/ (125,000).
    \150\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
    \151\ Notice of Enhancements to the Central American Minors 
Program, 88 FR 21694 (Apr. 11, 2023).
    \152\ See USCIS, Frequently Asked Questions About the Processes 
for Cubans, Haitians, Nicaraguans, and Venezuelans (Mar. 22, 2023), 
https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.
    \153\ See DHS, Uniting for Ukraine (Mar. 21, 2023), https://www.dhs.gov/ukraine; DHS, Operation Allies Welcome (Mar. 13, 2023), 
https://www.dhs.gov/allieswelcomes.
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iii. Other
    Comment: A commenter stated that the rule would allow noncitizens 
who entered the United States after lying on a visa petition to remain 
eligible for asylum while barring those who never submitted false 
information and objected to this outcome as ``absurd.''
    Response: The Departments acknowledge the commenter's concern but 
reiterate that the purpose of this rulemaking is to address an 
anticipated further surge of migration at the SWB following the 
expiration of the CDC's Title 42 public health Order, which may 
compromise the Departments' ability to process claims for asylum and 
related forms of protection in a manner that is effective, humane, and 
efficient. The Departments do not anticipate that noncitizens who 
attempt to enter on nonimmigrant visas obtained through 
misrepresentation will contribute to this surge in any substantial way.
    In addition, the Departments disagree with the premise of this 
comment. Willful misrepresentations in connection with a nonimmigrant 
visa application may affect an applicant's eligibility for asylum or 
adjustment of status. Prior misrepresentations to immigration officials 
can affect credibility determinations, see INA 208(b)(1)(B)(iii), 8 
U.S.C. 1158(b)(1)(B)(iii), and may be negative discretionary factors in 
asylum and adjustment of status determinations.\154\ Applicants for 
adjustment of status under section 209(b) of the INA, 8 U.S.C. 1159(b), 
who have previously sought to obtain immigration benefits through fraud 
or willful misrepresentation of material fact are inadmissible under 
section 212(a)(6)(C)(i) of the INA, 8 U.S.C. 1182(a)(6)(C)(i), unless 
they obtain a discretionary waiver of inadmissibility under section 
209(c) of the INA, 8 U.S.C. 1159(c).
---------------------------------------------------------------------------

    \154\ See Matter of Pula, 19 I&N Dec. 467, 473 (BIA 1987) 
(finding that the circumvention of immigration laws can be 
considered as a negative discretionary factor in asylum 
adjudications); USCIS Policy Manual, Volume 7, Adjustment of Status, 
Part A, Adjustment of Status Policies and Procedures, Chapter 10, 
Legal Analysis and Use of Discretion [7 USCIS-PM A.10] (Apr. 21, 
2023), https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10#footnote-31.
---------------------------------------------------------------------------

    Comment: One commenter stated that the application of the 
presumption against asylum eligibility at the credible fear stage would 
lead to absurd and irrational results. As an example, the commenter 
stated a noncitizen may admit to terrorism in their home country and 
still receive a positive credible fear determination, whereas a 
noncitizen subject to the rule who fails to rebut the presumption would 
receive a negative determination.
    Response: The Departments strongly dispute the commenter's 
suggestion that noncitizens who admit to terrorism would receive 
superior treatment than noncitizens who are subject to the rule. 
Noncitizens subject to the INA's terrorism-related inadmissibility 
grounds (``TRIG''), see INA 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B), may 
not be ordered released by an IJ during removal proceedings 
irrespective of any relief

[[Page 31367]]

from removal for which they may be eligible. INA 236(c), 8 U.S.C. 
1226(c); 8 CFR 1003.19(h)(2)(i)(C); INA 241(a)(2), 8 U.S.C. 1231(a)(2); 
INA 236A(a), 8 U.S.C. 1226a(a). Noncitizens subject to TRIG are 
ineligible for asylum, statutory withholding of removal, or withholding 
of removal under the CAT, absent a discretionary exemption from DHS, 
INA 208(b)(2)(v), 8 U.S.C. 1158(b)(2)(v); INA 241(b)(3)(B)(iv), 8 
U.S.C. 1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2); INA 212(d)(3)(B)(i), 8 
U.S.C. 1182(d)(3)(B)(i), as are noncitizens for whom there are 
reasonable grounds to regard as dangers to the security of the United 
States, INA 208(b)(2)(iv), 8 U.S.C. 1158(b)(2)(iv); INA 
241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2).
    Comment: A local government voiced concern that the five-year re-
entry ban if the asylum seeker violates the rule creates additional 
roadblocks for the most vulnerable individuals.
    Response: The five-year ground of inadmissibility for those ordered 
removed following expedited removal proceedings is based on statute, 
INA 212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i), and cannot be changed 
through administrative rulemaking. This statute applies equally to 
noncitizens who are not subject to this rule. Despite prior removal, 
noncitizens can still seek statutory withholding of removal or 
protection under the CAT within the five-year period. See INA 
241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 1208.16.

C. Alternatives and Other General or Mixed Feedback

1. Address Root Causes of Migration
    Comment: A number of commenters requested additional information on 
the Administration's ongoing efforts to address the root causes of 
migration, and suggested that, instead of implementing this rule, the 
United States should focus on providing economic, social, and political 
support to the countries from which the migrants are fleeing. Another 
commenter stated that long-term solutions are needed, such as investing 
in regional stability and humanitarian aid that contribute to human 
security, addressing the precursors of forced migration, and 
diminishing the threats that put vulnerable communities at risk. Some 
commenters suggested that there should be a comprehensive plan to both 
improve the conditions in Latin American and Caribbean countries by 
eliminating U.S. sanctions, as well as ``offering asylum to large 
groups of refugees'' in the United States. Commenters also stated that 
we should devote more resources to helping people from countries such 
as Haiti, Venezuela, and other Central American countries. Similarly, 
commenters stated that the United States should provide additional aid 
to the region and promote democratic values and good governance with an 
eye towards creating meaningful reforms, particularly in areas that 
drive irregular migration such as corruption and lack of opportunity. 
Other commenters stated that in determining eligibility for asylum, the 
proposed rule would fail to consider significant dangers such as gang 
violence, starvation, and natural disasters. A commenter expressed 
further concern that the proposed rule attempts to control the border 
by reducing the number of USBP encounters with migrants, reasoning that 
this approach would not address the root cause of increased migration.
    One commenter stated that, while deterrence programs may result in 
temporary dips in the number of people presenting or apprehended at the 
border, they have no long-term effect because they do not address the 
root causes forcing people from their homes. Another commenter stated 
that for many individuals, fleeing their countries in haste and without 
resources is not optional and they will continue to do so unless the 
situation in their countries changes. Another commenter stated that the 
United States should support Latin and Central American governments' 
capacity to strengthen humanitarian protections and migration 
management systems by investing in technical assistance and 
institutional capacity and investing in sustainable infrastructural 
needs and social safety nets (including education, stable employment, 
public safety, and economic support) in Mexico and Central America.
    Response: The Departments agree that the United States must 
consistently engage with partners throughout the Western Hemisphere to 
address the hardships that cause people to leave their homes and come 
to our border. The migratory trends at the SWB today will persist long 
into the future if the root causes of migration are not addressed. The 
United States has been engaging with regional partners to address the 
root causes of migration, but this rule is nonetheless necessary to 
address a potential surge of migrants at the SWB in the near term.
    In June 2022, the United States partnered with 19 other countries 
in the Western Hemisphere in endorsing the L.A. Declaration, which 
asserts ``the need to promote the political, economic, security, 
social, and environmental conditions for people to lead peaceful, 
productive, and dignified lives in their countries of origin. Migration 
should be a voluntary, informed choice and not a necessity.'' \155\ In 
addition, nations including the United States committed to implementing 
programs to stabilize communities hosting migrants and asylum seekers, 
providing increased lawful pathways and protections for migrants and 
asylum seekers residing in or traveling through their countries, and 
humanely enforcing existing immigration laws.\156\
---------------------------------------------------------------------------

    \155\ The 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/.
    \156\ Id.
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    Earlier, in July 2021, the United States began working closely with 
countries in Central America to prioritize and implement a strategy 
that addresses the root causes of irregular migration with the desired 
end-state being ``a democratic, prosperous, and safe Central America, 
where people advance economically, live, work, and learn in safety and 
dignity, contribute to and benefit from the democratic process, have 
confidence in public institutions, and enjoy opportunities to create 
futures for themselves and their families at home.'' \157\ At the same 
time, the United States also presented the CMMS, which aims to advance 
safe, orderly, legal, and humane migration, including access to 
international protection for those in need throughout North and Central 
America.\158\ On April 27, 2023, DHS and the Department of State 
announced plans to establish regional processing centers and expand 
refugee resettlement commitments in the region.\159\ Existing high 
levels of irregular migration, however, make clear that such efforts 
are, on their own, insufficient in the near term to fundamentally 
influence migrants' decision-making, to reduce the risks associated 
with current levels of irregular migration and the anticipated further 
surge of migrants to the border after the Title 42 public health Order 
is terminated, or to protect migrants from human smugglers that profit 
from their vulnerability. See 88 FR at 11716. The United States will 
continue to work with our regional

[[Page 31368]]

partners to manage migration across the Hemisphere.
---------------------------------------------------------------------------

    \157\ See, e.g., National Security Council, U.S. Strategy for 
Addressing the Root Causes of Migration in Central America 5 (July 
2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
    \158\ See, e.g., The White House, Fact Sheet: The Collaborative 
Migration Management Strategy (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/.
    \159\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
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2. Prioritize Funding and Other Resources
    Comment: Many commenters urged the Government to prioritize 
funding, other resources, or alternative policies, reasoning that these 
would make border processing and asylum adjudications more effective 
and efficient. Some commenters focused on funding, suggesting that the 
Government should request additional funding from Congress, that the 
Departments should be prioritizing funding and staffing for the HHS, 
Office of Refugee Resettlement, USCIS, and U.S. immigration courts, or 
that the Government should prioritize investing in community-based 
alternatives, including robust funding and expansion of asylum 
processing at POEs and investment in NGOs and civil society 
organizations.
    Other commenters suggested more generally that the Government 
devote other resources to immigrant arrivals. For example, one 
commenter said that DHS should focus on ``increasing the number of 
resources at the SWB to safely and fairly process the influx of 
migration at the border itself,'' including creating shelters near the 
southern border for noncitizens without family and friends to support 
them while they await processing of their claim. Another commenter, 
however, instead suggested that asylum seekers be transferred to 
communities throughout the United States, along with resources to 
ensure that asylum seekers and receiving communities are supported. One 
commenter stated that, instead of the proposed rule, DHS should train 
border officials to identify asylum claims or assess credible fear. 
Conversely, another commenter stated that more AOs, not CBP officers, 
are needed to interview asylum seekers. Commenters also stated the 
Departments should address significant failures in structure, 
functioning, and processing through staffing, budget review, training 
for AOs and judges to reduce appeals, training for DHS attorneys about 
docket management, and other means.
    Another commenter requested that DHS consider ``improving border 
infrastructure for high volume facilities,'' and noted that DHS did not 
explain why it lacked the infrastructure, personnel, and funding to 
sustain processing levels of high numbers of migrants. One commenter 
expressed concern that CBP does not have sufficient resources in 
sectors along the SWB to patrol the border and detain migrants and 
expressed concern about the number of migrants who successfully evade 
USBP and enter the country.
    Some commenters suggested alternative policy proposals to pursue 
instead of the proposed rule. For example, commenters recommended that 
DHS widely advertise the need for sponsors for asylum seekers and 
facilitate their applications for sponsorship. One commenter suggested 
providing additional resources to Mexico and other transit countries to 
improve their asylum-processing capacities.
    Response: The Departments acknowledge commenters' suggestions for 
increasing resources, both financial and otherwise, to account for 
migrant arrivals at the SWB. The Departments first note that they have 
already deployed additional personnel, technology, infrastructure, and 
resources to the SWB and that additional financial support would 
require additional congressional actions, including significant 
additional appropriations, which are outside of the scope of this 
rulemaking. The Departments agree with commenters that additional 
resources would provide benefits for managing the border. The 
Departments have, for example, significantly increased hiring of AOs 
and IJs over the past decade.\160\ AOs and IJs possess experience in 
handling asylum and related adjudications; receive regular trainings on 
asylum-related country conditions and legal issues, as well as non-
adversarial interviewing techniques; and have ready access to country-
conditions experts.\161\ However, it is not feasible for the 
Departments to quickly hire sufficient qualified personnel or increase 
other resources to efficiently, effectively, and fairly handle the 
volume of encounters projected by May 2023, when a further surge of 
migrants to the SWB is expected following the lifting of the Title 42 
public health Order.
---------------------------------------------------------------------------

    \160\ EOIR, Adjudication Statistics: Immigration Judge Hiring 
(Jan. 2023), https://www.justice.gov/eoir/page/file/1242156/download; Citizenship and Immigration Services Ombudsman, Annual 
Report 2020 at 45 (June 30, 2020), https://www.dhs.gov/sites/default/files/publications/20_0630_cisomb-2020-annual-report-to-congress.pdf.
    \161\ See 8 CFR 208.1(b).
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    Furthermore, the Departments note that they are leading ongoing 
Federal Government efforts to support NGOs and local and state 
governments as they work to respond to migratory flows impacting their 
communities. As noted in the NPRM, FEMA spent $260 million in FYs 2021 
and 2022 on grants to non-governmental and state and local entities 
through the EFSP-H to assist migrants arriving at the SWB with shelter 
and transportation. See 88 FR at 11714. In November 2022, FEMA released 
$75 million through the program, consistent with the Continuing 
Appropriations and Ukraine Supplemental Appropriations Act, 2023.\162\ 
In addition, the Bipartisan Year-End Omnibus, which was enacted on 
December 29, 2022, directed CBP to transfer $800 million in funding to 
FEMA to support sheltering and related activities for noncitizens 
encountered by DHS. The Omnibus authorized FEMA to utilize this funding 
to establish a new Shelter and Services Program and to use a portion of 
the funding for the existing EFSP-H, until the Shelter and Services 
Program is established.\163\ On February 28, 2023, DHS announced a $350 
million funding opportunity for EFSP-H.\164\ This is the first major 
portion of funding that is being allocated for humanitarian assistance 
under the Omnibus funding approved in December.\165\ For the new 
Shelter and Services Program, FEMA and CBP have held several public 
listening sessions and are developing plans to release a Notice of 
Funding Opportunity prior to September 2023 for the second major 
portion of funding allocated by Omnibus to assist migrants encountered 
by DHS.
---------------------------------------------------------------------------

    \162\ Public Law 117-180, Division A, sec. 101(6), 131 Stat. 
2114, 2115.
    \163\ Public Law 117-328, Division F, Title II, Security 
Enforcement, and Investigations, U.S. Customs and Border Protection, 
Operations and Support.
    \164\ See DHS, Press Release, The Department of Homeland 
Security Awards $350 Million for Humanitarian Assistance Through the 
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through; DHS Grant Opportunity DHS-
23-DAD-024-00-03, Fiscal Year 2023 Emergency Food and Shelter 
National Board Program--Humanitarian (EFSP) ($350M) (Feb. 28, 2023), 
https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460.
    \165\ Id.
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    Additionally, on April 27, 2023, DHS announced that it has awarded 
more than $135 million to communities to date this fiscal year and will 
award an additional $290 million in the coming weeks.\166\ The 
Departments are also ramping up coordination between state and local 
officials and other Federal agencies to provide resources, technical 
assistance, and support, including through regular information sessions 
with stakeholders to ensure that the program is broadly understood and 
the funds are accessible.\167\ The Departments will continue to 
mobilize

[[Page 31369]]

faith-based and non-profit organizations supporting migrants, including 
those providing temporary shelter, food, transportation, and 
humanitarian assistance as individuals await the outcome of their 
immigration proceedings.\168\
---------------------------------------------------------------------------

    \166\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
    \167\ See id.
    \168\ See id.
---------------------------------------------------------------------------

    With regard to CBP resources at the border, CBP continues to 
increase facility capacity and to look to new facilities to further 
expand capacity. See 88 FR at 11714. In addition, CBP continues to take 
steps to facilitate more efficient processing of encountered migrants 
so that agents are able to remain in the field and patrol the border. 
For example, USBP has deployed non-uniformed Border Patrol Processing 
Coordinators (``BPPCs''), who can provide crucial support to USBP 
facilities, including humanitarian care to individuals in custody, 
transportation, and processing assistance.\169\ As of March 15, 2023, 
USBP had hired 961 BPPCs, with more individuals in the hiring 
process.\170\ Additionally, CBP has invested in virtual and mobile 
processing technologies, which enables USBP agents and officers to 
assist SWB sectors without needing to be physically present in these 
locations.\171\ All of these steps enable USBP agents to return to the 
field to conduct their law enforcement duties, while ensuring safe 
conditions for individuals in custody. However, as noted in the NPRM, 
the increased numbers of migrants entering the United States--and the 
anticipated surge following the lifting of the Title 42 public health 
Order--will continue to strain CBP resources. See 88 FR at 11706. Thus, 
the Departments believe that this rule is necessary to disincentivize 
migrants from attempting to enter the United States without 
authorization.
---------------------------------------------------------------------------

    \169\ Testimony of Raul Ortiz, ``Failure by Design: Examining 
Sec'y Mayorkas' Border Crisis'' (Mar. 15, 2023), https://www.cbp.gov/about/congressional-resources/testimony/Ortiz-CHS-15MAR23.
    \170\ Id.
    \171\ Id.
---------------------------------------------------------------------------

    The Departments do not agree with commenters' suggestions that 
alternative policies should be pursued in place of this rule. For 
example, advertising the need for asylum sponsors would not 
sufficiently address the anticipated influx of migration at the SWB. 
The Departments have created, and continue to expand, lawful pathways 
to enter the United States, which will be available alongside this rule 
to encourage the use of all lawful pathways and discourage irregular 
migration to the United States. In contrast, were the Departments to 
take a hiring-only approach that does not expand lawful pathways or 
consequences for unlawful entry, the Departments estimate that 
irregular arrivals would likely increase after the expiration of the 
Title 42 public health Order, adding to the current backlog of asylum 
cases. Such a policy would likely have no immediate effect on arrivals 
at the SWB, necessitating continued surges of DHS resources to POEs and 
the SWB to support processing.
    The Departments note that the rule requires collaboration across 
the Departments. CBP, USCIS, and DOJ are all part of the whole-of-
government approach necessary to address irregular migration and ensure 
that the U.S. asylum system is fair, orderly, and humane. The 
Departments acknowledge comments suggesting that CBP officials should 
be trained to conduct credible fear screenings. The Asylum Processing 
IFR clarified that a ``USCIS asylum officer'' will conduct the credible 
fear interview. 8 CFR 208.30(d). This is consistent with the INA, which 
specifies that only AOs (as opposed to immigration officers) conduct 
credible fear interviews, see INA 235(b)(1)(B)(i), 8 U.S.C. 
1225(b)(1)(B)(i); 8 CFR 208.30(d), and make those determinations, see 
INA 236(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii); see also 8 CFR 
208.30(c) through (e); 87 FR at 18136. AOs receive training and possess 
experience in handling asylum and related adjudications; receive 
regular trainings on asylum-related country conditions and legal 
issues, as well as non-adversarial interviewing techniques; and have 
ready access to country conditions experts. See 87 FR at 18136. As 
noted above, hiring of additional AOs is ongoing, and DHS recently 
announced that it is surging AOs to complete credible fear interviews 
at the SWB more quickly.\172\
---------------------------------------------------------------------------

    \172\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
---------------------------------------------------------------------------

    Comment: Some commenters suggested that DHS should better utilize 
or increase its detention capacity to account for the anticipated 
migratory flow, as an alternative to the approach adopted in this rule. 
One commenter suggested that DHS increase its detention capacity to 
account for the mandatory detention requirements at section 
235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), and to better 
use the capacity it has, citing unused detention space in the summer of 
2021. The same commenter noted that section 212(d)(5)(A) of the INA, 8 
U.S.C. 1182(d)(5)(A), allows DHS to parole noncitizens into the United 
States in limited circumstances, but claimed that the proposed rule 
makes parole the default and detention the exception, contrary to 
statute. The commenter argued that expanded use of detention would 
serve as a greater deterrent than this rule and objected to a reduction 
in detention capacity it identified in the Administration's FY 2024 
budget. Similarly, another commenter stated that the Departments should 
request from Congress the resources necessary to expand detention 
centers' capacity to handle the current migratory flow.
    Response: To the extent that the commenters are contending that DHS 
is capable of obtaining bedspace sufficient for detaining all 
inadmissible noncitizens predicted to enter the United States who could 
potentially be subject to detention pursuant to section 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), following the lifting of 
the Title 42 public health Order, the Departments strongly disagree. 
DHS's ability to detain an individual on any given day is determined by 
many different factors, including the availability of appropriated 
funds; the number and demographic characteristics of individuals in 
custody, as well as those encountered at or near the border or within 
the interior of the United States; and the types of facilities with 
available bedspace. In addition, there are capacity restrictions at 
individual facilities imposed for a variety of reasons ranging from 
public health requirements to court-ordered limitations that also 
constrain the availability of detention space.
    The Departments also disagree with the commenter's assertion that 
this rule makes parole the default. This rule does not address parole 
or change DHS's detention practices. Rather, this rule creates a 
rebuttable presumption regarding eligibility for asylum.
3. Further Expand Refugee Processing or Other Lawful Pathways
    Comment: Several commenters suggested increasing access to 
protection and improving processes to encourage noncitizens to seek 
asylum in lawful and orderly ways, but without imposing a condition on 
eligibility for asylum for noncitizens who fail to do so. Commenters 
suggested that the United States should expand regional refugee 
processing, increase asylum processing and humanitarian programs, and 
expand and create new lawful pathways, in lieu of pursuing the proposed 
rule. One commenter said the Administration should use Temporary 
Protected Status broadly, including for the countries focused on in the 
proposed rule and other countries

[[Page 31370]]

where safe return is impossible. Others recommended creating viable 
alternatives to asylum for lawful admission to the United States, 
including decreasing waits for family-based immigration or increasing 
and streamlining migration opportunities based on skilled labor, citing 
the Canadian Federal Skilled Worker Express Entry policy as a 
successful example. Another commenter stated that the Departments 
should consider policies facilitating fast-track arrival in the United 
States, including quickly approved in-country visas and widely 
available humanitarian parole, and streamlining asylum regulations to 
more broadly encompass the types of dangers and persecution migrants 
are fleeing today.
    Response: The United States has made and will continue to make 
extensive efforts to expand refugee processing and lawful pathways 
generally. See Section IV.B.2.i of this preamble. For example, on April 
27, 2023, DHS and the Department of State announced they will establish 
regional processing centers in several countries in the Western 
Hemisphere, including Guatemala and Colombia, ``to reduce irregular 
migration and facilitate safe, orderly, humane, and lawful pathways 
from the Americas.'' \173\ Individuals from the region will be able to 
make an appointment to visit the nearest regional processing center 
before traveling, receive an interview with immigration specialists, 
and if eligible, be processed rapidly for lawful pathways to the United 
States, Canada, and Spain, including USRAP.\174\ Existing levels of 
unlawful migration, however, make clear that such efforts are, on their 
own, insufficient in the near term to change the incentives of 
migrants, reduce the risks associated with current levels of irregular 
migration and the anticipated surge of migrants to the border, and 
protect migrants from human smugglers that profit from their 
vulnerability. See 88 FR at 11716. The Departments' recent experience 
has shown that an increase in lawful pathways coupled with consequences 
for not using such pathways can significantly--and positively--affect 
behavior and undermine smuggling networks, as described in Section II.A 
of this preamble. The Departments also note that while they will 
consider the commenters' specific suggestions for other lawful pathways 
or alternatives for entry to the United States, this rule does not 
create, expand, or otherwise constitute the basis for any lawful 
pathways.
---------------------------------------------------------------------------

    \173\ DHS, New Actions to Manage Regional Migration (Apr. 27, 
2023).
    \174\ See id.
---------------------------------------------------------------------------

4. Require Migrants To Wait in Mexico or Other Countries
    Comment: Some commenters stated that the United States should 
reimplement the MPP, with one stating that MPP caused a drop in border 
crossings. A commenter argued that reinstating MPP would have all the 
benefits that the Departments are seeking to achieve via the proposed 
rule, but without the rule's downsides, which the commenter argued 
include increasing incentives for irregular migration. The commenter 
also stated that the Departments' justifications for ending MPP, 
including a lack of infrastructure and cooperation from Mexico, are 
insufficient, arguing that if attempted border crossings are deterred 
by MPP then many fewer resources will be required, and that the 
Administration has not sufficiently explained why Mexico would not be 
willing to cooperate with a reimposition of MPP when it agreed to do so 
in the recent past. Another commenter suggested that MPP should be 
restarted and the United States pay for safe housing and food for 
migrants who are waiting in Mexico during their legal proceedings.
    Response: The Departments disagree with commenters' contentions 
that the explanation given in the NPRM regarding why the Departments 
are not reinstituting MPP is insufficient. See 88 FR at 11731. The 
Secretary of Homeland Security weighed the full range of MPP's costs 
and benefits, explaining, among other things, that MPP is not the best 
tool for deterring unlawful migration; that MPP exposes migrants to 
unacceptable risks to their physical safety; and that MPP detracts from 
the Executive's efforts to manage regional migration. Moreover, given 
the Departments' knowledge and understanding of their own resources and 
infrastructure constraints, as well as the Government of Mexico's 
statement on February 6, 2023, affirming its willingness to cooperate 
in international agreements relating to refugees (including the L.A. 
Declaration) and endorsing lawful pathways, including the CHNV 
processes,\175\ the Departments continue to believe that promulgation 
of this rule is the appropriate response to manage and avoid a 
significant further surge in irregular migration after the Title 42 
public health Order is lifted.
---------------------------------------------------------------------------

    \175\ Government of Mexico, SRE rechaza reimplementaci[oacute]n 
de estancias migratorias en M[eacute]xico bajo la secci[oacute]n 
235(b)(2)(C) de la Ley de EE.UU. (Feb. 6, 2023), https://www.gob.mx/sre/prensa/sre-rechaza-reimplementacion-de-estancias-migratorias-en-mexico-bajo-la-seccion-235-b-2-c-de-la-ley-de-inmigracion-y-nacionalidad-de-eeuu.
---------------------------------------------------------------------------

    As explained in the NPRM, programmatic implementation of the 
contiguous-territory return authority requires Mexico's concurrence and 
ongoing support and collaboration. See 88 FR at 11731. When DHS was 
previously under an injunction requiring it to re-implement MPP, the 
Government of Mexico would only accept the return of MPP enrollees 
consistent with available shelter capacity in specific regions, and 
indeed had to pause the process at times due to shelter constraints. 
Notably, Mexico's shelter network is already strained from the high 
volume of northbound irregular migration happening today. In February 
2023, the Government of Mexico publicly announced its independent 
decision that it would not accept the return of individuals pursuant to 
section 235(b)(2)(C) of the INA, 8 U.S.C. 1225(b)(2)(C).\176\
---------------------------------------------------------------------------

    \176\ Id.
---------------------------------------------------------------------------

    Additionally, the resources and infrastructure necessary to use 
contiguous-territory return authority at the scale that would be 
required given current and anticipated flows are not currently 
available. To employ the contiguous-territory return authority at a 
scale sufficient to meaningfully address the anticipated migrant flows, 
the United States would need to rebuild, redevelop, and significantly 
expand infrastructure for noncitizens to be processed in and out of the 
United States and attend immigration court hearings throughout the 
duration of their removal proceedings. This would require, among other 
things, the construction of substantial additional court capacity along 
the border. It would also require the reassignment of IJs and ICE 
attorneys to conduct the hearings and CBP personnel to receive and 
process those who are corning into and out of the country to attend 
hearings.
    Comment: Other commenters suggested numerous ideas that would 
require migrants to wait for cases to be heard outside the United 
States or to create additional opportunities to apply for asylum from 
outside of the United States. One commenter suggested that the United 
States allow asylum seekers to present themselves at embassies, refugee 
camps, or U.S. military bases to make their claims without the need to 
undertake the dangerous journey to the U.S. border. A commenter 
suggested setting up a controlled process to allow a fixed number of 
migrants into the United States this year, managed through embassies 
abroad, and stated

[[Page 31371]]

that it is inhumane to allow migrants to travel to the border only to 
turn them down. The same commenter also stated that such a controlled 
process would stop trafficking, drugs, and criminals from entering the 
country.
    Commenters suggested implementing remote teleconferencing 
technology so that credible fear interviews could be conducted over 
Zoom or another platform from outside the United States in lieu of 
using the CBP One app to make appointments, with at least one 
suggesting that if the migrant's credible fear claim is accepted, they 
be sent an email stating that the migrant can be granted humanitarian 
parole into the United States for a final asylum hearing. Another 
commenter suggested that, instead of implementing this rule, DHS should 
create a virtual application and video hearing system that would allow 
migrants to apply and be processed for asylum while still abroad. At 
least one commenter suggested that migrants be given a temporary work 
card and ID and be required to pay a penalty tax and U.S. taxes to 
cover the expenses of managing immigration services. At least one 
commenter suggested creating a single border crossing dedicated to 
processing asylum claims, similar to the historical practice at Ellis 
Island.
    Response: Pursuant to section 208(a)(1) of the INA, 8 U.S.C. 
1158(a)(1), only noncitizens who are ``physically present in the United 
States or who arrive[] in the United States'' can apply for asylum. 
Similarly, the expedited removal provisions in section 235(b)(1) of the 
INA, 8 U.S.C. 1225(b)(1), apply only to noncitizens within the United 
States. Thus, while credible fear interviews may be conducted remotely 
(i.e., telephonically), such interviews cannot be conducted for those 
who are abroad and have not--as required for such interviews--entered 
the United States, been processed for expedited removal, and asserted a 
fear of persecution or torture or of return to their country or an 
intention to apply for asylum.\177\ In any event, the intent of this 
rule is to address the expected surge of migration following the 
lifting of the Title 42 public health Order on May 11, 2023. 
Commenters' suggestion that the Departments should create opportunities 
for noncitizens who have not entered the United States to apply for 
asylum at U.S. embassies, military bases, a virtual application abroad, 
or other locations, even if legally available, would not be available 
in the short-term or at the scale that would be required given current 
and anticipated flows. Similarly, creating a single border crossing 
dedicated to processing asylum claims, even if legally permissible, 
would not be operationally feasible, particularly in the short term.
---------------------------------------------------------------------------

    \177\ See INA 235(b)(1), 8 U.S.C. 1225(b)(1).
---------------------------------------------------------------------------

    However, as noted elsewhere in this document, USRAP is expanding 
its operations in the Western Hemisphere, which is the appropriate 
pathway for noncitizens outside the United States to seek admission as 
a refugee. See INA 207, 8 U.S.C. 1157. On April 27, 2023, DHS and the 
Department of State announced that the United States Government in 
cooperation with other countries of the L.A. Declaration will establish 
regional processing centers in several locations throughout the Western 
Hemisphere to reduce irregular migration.\178\ The United States 
Government will commit to welcoming thousands of additional refugees 
per month from the Western Hemisphere--with the goal of doubling the 
number of refugees the United States as part of the L.A. 
Declaration.\179\ The Departments also note that Congress has provided 
that asylum applicants may receive employment authorization no less 
than 180 days subsequent to the filing of their asylum application. See 
INA 208(d)(2), 8 U.S.C. 1158(d)(2). Additionally, it is not within the 
Departments' authority to impose taxes.
---------------------------------------------------------------------------

    \178\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
    \179\ See id.
---------------------------------------------------------------------------

5. Additional Measures
    Comment: Commenters suggested that the United States adopt more 
restrictive measures instead of this rule, such as requiring all SWB 
arrivals to seek asylum in Mexico first; requiring all migrants to be 
returned to their country of origin for two years to wait for their 
cases to be heard; or creating a bar to asylum for those who are denied 
asylum in other countries. Another commenter recommended that the rule 
require that a migrant must seek and be denied protection in each 
country through which they travel, rather than just one country.
    One commenter suggested that the President should use the authority 
provided by section 212(f) of the INA, 8 U.S.C. 1182(f), to suspend the 
entry of migrants in order to address the border crisis. This commenter 
also suggested that DHS make efforts to enforce all deportation orders, 
expand the use of expedited removal to the fullest extent authorized by 
Congress, and post ICE agents in courtrooms to immediately enforce 
removal orders.
    Another commenter suggested the rule should also apply to the 
Northern border and the maritime borders of the United States.
    Response: The Departments acknowledge the commenters' suggestions 
but do not believe the alternatives proposed by the commenters are 
suitable to address operational concerns or meet the Departments' 
policy objectives.
    As an initial matter, a categorical requirement that all 
individuals arriving at the SWB seek asylum in Mexico first would be 
inconsistent with the United States' ongoing efforts to share the 
responsibility of providing asylum and other forms of protection with 
the United States' regional partners. The United States Government 
remains committed to working with regional partners to jointly address 
historic levels of migration in the hemisphere and will continue to 
engage with the governments of Mexico and other regional partners to 
identify and implement solutions. Furthermore, there may be individuals 
for whom Mexico is not a safe alternative.
    The Departments disagree with the commenter's suggestion that 
noncitizens be required to seek and be denied protection in each 
country through which they travel. Mexico or other countries through 
which certain individuals travel en route to the United States may not 
be a safe alternative for particular individuals, as discussed 
elsewhere in this preamble, see Sections IV.B.4.vii and IV.E.3.iv.d-
(e). The rule therefore strikes a balance: It provides an exception 
from its presumption of ineligibility for individuals who seek and are 
denied protection in a third country, but it recognizes that for some 
individuals, particular third countries--or even all third countries--
may not be a viable option. The rule therefore provides additional 
exceptions and rebuttal grounds for the presumption of ineligibility it 
creates.
    Additionally, U.S. obligations under international and domestic law 
prohibit returning noncitizens to a country where their life or freedom 
would be threatened because of a protected ground, or where they would 
be subject to torture.\180\ DHS cannot remove a

[[Page 31372]]

noncitizen without first obtaining a removal order and cannot remove a 
noncitizen to a country about which the noncitizen has expressed fear 
of return without first determining whether they are entitled to 
protection pursuant to the withholding of removal statute and the 
regulations implementing the CAT.
---------------------------------------------------------------------------

    \180\ INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.16, 
1208.17. The Departments note that 8 CFR 208.16(b)(3), 1208.16(b)(3) 
were amended by the by Procedures for Asylum and Withholding of 
Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274 
(December 11, 2020), which was preliminarily enjoined and its 
effectiveness stayed before it became effective. See Pangea Legal 
Servs. v. U.S. Dep't of Homeland Sec., 512 F. Supp. 3d 966, 969-70 
(N.D. Cal. 2021) (``Pangea II'') (preliminarily enjoining the rule). 
Similarly, 8 CFR 208.16(e), 1208.16(e) were removed by the Criminal 
Asylum Bars Rule, Procedures for Asylum and Bars to Asylum 
Eligibility, 85 FR 67202 (Oct. 21, 2020), which was also 
preliminarily enjoined. Pangea Legal Servs. v. U.S. Dep't of 
Homeland Sec., 501 F. Supp. 3d 792, 827 (N.D. Cal. 2020). These 
orders remain in effect, and thus the 2020 version of these 
provisions--the version immediately preceding the enjoined 
amendments--are currently effective. The current version of 8 CFR 
208.16 is effective with regard to all other provisions of that 
section.
---------------------------------------------------------------------------

    The Departments disagree with the recommendation to establish a bar 
to asylum for those who are denied asylum in other countries. Those 
denials may be due to a variety of factors unrelated to the applicant's 
underlying claim, such as the foreign country's unique restrictions on 
asylum. Furthermore, such a proposal could discourage asylum seekers 
from applying for asylum in other countries, since a denial from other 
countries would result in the harsher consequence of also being 
ineligible for asylum in the United States.
    Regarding the suggestion to suspend entry pursuant to section 
212(f) of the INA, 8 U.S.C. 1182(f), the Departments note that 
suspension of entry requires a presidential proclamation, which is 
beyond the Departments' authorities. With this rule, which is fully 
consistent with domestic and international legal obligations, the 
Departments are exercising their authorities to address current and 
expected circumstances at the SWB, to avoid unduly negative 
consequences for noncitizens, to avoid unduly negative consequences for 
the U.S. immigration system, and to provide ways for individuals to 
seek protection in the United States and other countries in the region. 
88 FR at 11730.
    Separate from this rulemaking, DHS has been increasing and 
enhancing the use of expedited removal for those noncitizens who cannot 
be processed under the Title 42 public health Order.\181\ The 
Departments have been dedicating additional resources, optimizing 
processes, and working with the Department of State and countries in 
the region to increase repatriations.\182\ On April 27, 2023, DHS 
announced that the United States, in coordination with regional 
partners, has dramatically scaled up the number of removal flights per 
week, which will double or triple for some countries.\183\ With this 
increase in removal flights, migrants who cross the U.S. border without 
authorization and who fail to qualify for protection should expect to 
be swiftly removed and subject to at least a five-year bar to returning 
to the United States.\184\ Regarding the suggestion to expand the use 
of expedited removal, the Departments note that this rule works in 
conjunction with expedited removal, as the rebuttable presumption will 
be applied during credible fear interviews for noncitizens placed in 
expedited removal after claiming a fear. To the extent that the 
commenter is suggesting that the Secretary should exercise his ``sole 
and unreviewable discretion'' to extend expedited removal proceedings 
to certain other categories of noncitizens who have not shown that they 
have been physically present in the United States for two years, that 
suggestion lies outside the scope of this rulemaking. See INA 
235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).\185\ Finally, the 
Departments note the process for taking noncitizens into custody for 
the execution of removal orders also is beyond the scope of this rule.
---------------------------------------------------------------------------

    \181\ DHS, Press Release, DHS Continue to Prepare for End of 
Title 42; Announces New Border Enforcement Measures and Additional 
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
    \182\ See id.
    \183\ See DHS, New Actions to Manage Regional Migration (Apr. 
27, 2023).
    \184\ See id.
    \185\ Section 235 of the INA continues to refer to the Attorney 
General, but the Homeland Security Act of 2002 (HSA), Public Law 
107-296, 116 Stat. 2135, transferred immigration enforcement 
authorities to the Secretary of Homeland Security and provided that 
any reference to the Attorney General in a provision of the INA 
describing functions that were transferred from the Attorney General 
or other Department of Justice officials to DHS by the HSA ``shall 
be deemed to refer to the Secretary'' of Homeland Security. 6 U.S.C. 
557 (codifying HSA sec. 1517); see also 6 U.S.C. 542 note; 8 U.S.C. 
1551 note.
---------------------------------------------------------------------------

    With respect to a commenter's suggestion that the rule apply to the 
Northern border, the Departments do not currently assess that 
application of the rebuttable presumption to such entries is necessary 
at the U.S.-Canada land border. With limited exceptions, these 
noncitizens are ineligible to apply for asylum in the United States due 
to the safe-third-country agreement with Canada, see INA 208(a)(2)(A), 
8 U.S.C. 1158(a)(2)(A); 8 CFR 208.30(e)(6), and the United States is 
implementing other measures to address irregular migration at that 
border, such as the Additional Protocol of 2022 to the STCA between the 
United States and Canada. The Additional Protocol expands the STCA to 
apply to migrants who claim asylum or other protection after crossing 
the U.S.-Canada border between POEs. Under the STCA, migrants who cross 
from Canada to the United States, with limited exceptions, cannot 
pursue an asylum or other protection claim in the United States and are 
instead returned to Canada to pursue their claim.\186\
---------------------------------------------------------------------------

    \186\ See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h); 88 FR 18227; 
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 (Dec. 29, 2004).
---------------------------------------------------------------------------

    With respect to a commenter's suggestion that the rule apply to 
maritime borders, the Departments have determined it is appropriate to 
extend the application of the rebuttable presumption not only to the 
U.S.-Mexico southwest land border, but also to adjacent coastal 
borders. The term ``adjacent coastal borders'' refers to any coastal 
border at or near the U.S.-Mexico border. This modification therefore 
means that the rule's rebuttable presumption of ineligibility for 
asylum applies to noncitizens who enter the United States at such a 
border after traveling from Mexico and who have circumvented the U.S.-
Mexico land border. Moreover, the Departments are also considering and 
requesting comment on whether to apply the rebuttable presumption to 
noncitizens who enter the United States at a maritime border without 
documents sufficient for lawful admission during the same temporary 
time period, whether or not they traveled through a third country, see 
Section V of this preamble.
    Comment: A commenter also suggested pursuing STCAs with transit 
countries as an alternative to the rule, stating that the proposed 
rule's reasoning on that point was insufficient. The commenter noted 
that the proposed rule stated that STCAs require long negotiations, but 
that the proposed rule itself is time-limited to noncitizens who enter 
within a two-year period. The commenter also stated that the proposed 
rule's claim that STCAs would provide lesser protection to noncitizens 
failed to account for the costs to states of allowing such noncitizens 
to have their claims adjudicated in the United States.
    Response: The Departments agree that STCAs can be an important tool 
for managing the border. For example, on March 28, 2023, the 
Departments announced an update to the preexisting STCA between the 
United States and Canada. See 88 FR at 18227. That rule implemented a 
supplement to the U.S.-Canada STCA to extend its application to 
individuals who cross between the 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

[[Page 31373]]

of persecution or torture within 14 days after such crossing. Id.
    However, as noted in the NPRM, development of an STCA is a lengthy 
process. 88 FR at 11731. The recent supplement to the U.S.-Canada STCA 
aptly demonstrates this point; the negotiations that led to the 
supplement began in early 2021, over two years prior to its eventual 
publication. Id. at 18232. For this reason, the Departments find that 
the enactment of this rule is preferable to pursuing additional STCAs 
at this time because the Departments need a solution in the immediate 
short-term to manage the significant increase in the number of migrants 
expected to travel without authorization to the United States after the 
termination of the Title 42 public health Order.
    Regarding commenters' belief that an STCA could be preferable to 
this rule because a STCA would prevent affected noncitizens from having 
their claims adjudicated in the United States, the Departments 
reiterate that the goal of this rule is to incentivize migrants, 
including those intending to seek asylum, to use lawful, safe, and 
orderly pathways to enter the United States, or seek asylum or other 
protection in another country through which they travel, and they 
expect it to reduce the number of noncitizens seeking to cross the SWB 
without authorization.
    Comment: A commenter suggested amending the rule to prioritize the 
cases of noncitizens who follow the lawful pathways outlined in the 
NPRM, rather than implementing the rebuttable presumption against those 
who do not. This commenter argued that doing so would encourage use of 
lawful pathways but not risk returning noncitizens to countries where 
they may be persecuted or tortured.
    Response: The Departments agree that prioritizing the cases of 
those noncitizens who follow lawful, safe, and orderly pathways to 
entering the United States may result in some noncitizens with valid 
claims to asylum more quickly being granted asylum. However, 
noncitizens who do not follow such lawful, safe, and orderly pathways, 
including those noncitizens ultimately found ineligible for asylum or 
other protection, would continue to wait years for a decision on their 
claim for asylum or other protection. As previously noted in this 
preamble, the expectation that noncitizens will remain in the United 
States for a lengthy period during the adjudication of their claims for 
asylum or other protection may drive even more migration to the United 
States. Under this rule, such noncitizens, however, will remain in the 
United States for less time before a final order is entered in their 
case. Furthermore, prioritization alone will not address the need for 
quick processing of those who arrive at the SWB and the lack of 
resources to do so safely and efficiently. Moreover, the success of the 
CHNV parole processes demonstrates that the United States can 
effectively discourage irregular migration by coupling incentives for 
use of lawful pathways with disincentives to cross the SWB irregularly.
    Comment: One commenter recommended the United States advance 
dissuasive messaging, including announcements of legal action, against 
relatives, friends, and criminal organizations that may promote and 
finance migration to the United States. Another commenter recommended 
that an education and awareness campaign across the Western Hemisphere 
and a clearer definition of the ``significant possibility'' standard 
could prove a potent combination of policies to restore the integrity 
and manageability of the U.S. asylum system at the SWB, while also 
preserving the country's long-standing commitment to humanitarian 
values.
    Response: The Departments understand and agree with the need for 
robust messaging relating to the dangers of irregularly migrating to 
the United States SWB. Strengthening regional public messaging on 
migration is one of the eight lines of effort outlined in the 
CMMS.\187\ In addition, the Departments regularly publicize law 
enforcement action and efforts against human trafficking, smuggling, 
and transnational criminal organizations that profit from irregular 
migration, often in conjunction with partners in the region.\188\ The 
Departments intend to continue these efforts once the rule is in place.
---------------------------------------------------------------------------

    \187\ The White House, FACT SHEET: The Collaborative Migration 
Management Strategy (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/.
    \188\ See, e.g., L.A. Declaration Fact Sheet (``The United 
States will announce a multilateral `Sting Operation' to disrupt 
human smuggling networks across the Hemisphere.'').
---------------------------------------------------------------------------

    The Departments acknowledge the commenter's concern regarding the 
``significant possibility'' standard but disagree that there is a need 
for clarifying regulations on the statutory standard at section 
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v). In the context 
of the condition established by this rule, however, the Departments 
have provided additional clarification regarding the ``significant 
possibility'' standard in Section IV.D.1.iii of this preamble.

D. Legal Authority and Background

1. Immigration and Nationality Act
i. Section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1)
    Comment: Commenters claim that the proposed rule would violate both 
the Refugee Act and the INA. Specifically, commenters cited the Refugee 
Act, which they say both contains principles of non-refoulement and 
bars any distinction, including based on nationality, for noncitizens 
who are ``physically present in the United States or at a land border 
or port of entry.'' Refugee Act of 1980, 94 Stat. at 105. Additionally, 
commenters stated this proposed rule goes further by adding additional 
requirements that did not exist in the Refugee Act and do not exist in 
the INA. While some commenters acknowledge and agree that the proposed 
rule is within the scope of the Departments' authority and is 
consistent with the INA, other commenters expressed concern that the 
proposed rule would be contrary to the plain language of section 
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), which states, ``Any alien 
who is physically present in the United States or who arrives in the 
United States (whether or not at a designated port of arrival and 
including an alien who is brought to the United States after having 
been interdicted in international or United States waters), 
irrespective of such alien's status, may apply for asylum in accordance 
with this section or, where applicable, section 1225(b) of this 
title.'' Commenters asserted that the INA does not require those 
seeking protection to apply before entering or at a POE or to schedule 
an appointment through a website or app in order to make an 
application, but instead allows applications from anywhere along the 
border. Some commenters described a fundamental right to apply for 
asylum for anyone inside the United States. Commenters asserted that 
entering the United States either through a POE or across the SWB and 
asking for asylum constitutes a ``lawful pathway.'' Another asserted 
that the proposed rule effectively creates a new legal framework by 
which to evaluate asylum claims in conflict with the statutory process 
provided by Congress, while another commenter stated that the proposed 
rule will cause confusion among asylum seekers. Commenters stated that 
the proposed rule would result in migrants who seek refuge at the SWB 
being turned away. At least one commenter asserted that the proposed 
rule violates the Refugee Act because it violates the right to uniform 
treatment.

[[Page 31374]]

Another commenter described the proposed rule as disparate treatment 
based on manner of entry, with particular concern for those who entered 
between POEs. Commenters stated that Congress clearly intended to allow 
noncitizens to apply for asylum regardless of manner of entry without 
requiring that a noncitizen first apply for asylum elsewhere while in 
transit. Commenters further asserted that analyzing an asylum 
application should focus on the applicant's reasonable fear of 
persecution rather than their manner of entry. Commenters similarly 
stated that the Departments should not and cannot categorically deny 
asylum for reasons unrelated to the merits of the claim itself. 
Commenters also asserted that, under Matter of Pula, 19 I&N Dec. 467 
(BIA 1987), manner of entry may not be the dispositive factor in 
deciding whether a noncitizen is eligible for asylum. Similarly, 
commenters argued that Matter of Pula is binding precedent and 
precludes consideration of manner of entry over all other factors.
    Response: This rule is consistent with U.S. law. As a threshold 
response, the rule does not require the Departments to turn away 
migrants at the SWB or to categorically deny all asylum applications 
filed by migrants who enter the United States from Mexico at the 
southwest land border or adjacent coastal borders. Nor does the rule 
prohibit any noncitizen from seeking protection solely because of the 
manner or location of entry into the United States. Rather, the rule is 
a lawful condition on eligibility for asylum, as authorized by section 
208(b)(2)(C), (d)(5)(B) of the INA, 8 U.S.C. 1158(b)(2)(C), (d)(5)(B).
    In response to comments that the rule violates the non-refoulement 
provision of the Refugee Act, as stated elsewhere in this preamble, the 
United States has implemented its non-refoulement obligations through 
section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and the regulations 
implementing CAT protections at 8 CFR 208.16(c), 208.17, 208.18, 
1208.16(c), 1208.17, 1208.18, and the conditions provided by this rule 
are not a penalty in violation of international law.
    Regarding comments that the Refugee Act and subsequent amendments 
to the INA provide access to applying for asylum for any noncitizen 
``physically present in'' or arriving in the United States, ``whether 
or not at a designated port of arrival'' and regardless of status, the 
Departments respond that this rule is not inconsistent. INA 208(a)(1), 
8 U.S.C. 1158(a)(1); see Refugee Act of 1980, 94 Stat. at 105 
(providing that the Attorney General establish ``a procedure for an 
alien physically present in the United States or at a land border or 
port of entry, irrespective of such alien's status, to apply for 
asylum''); Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (``IIRIRA''), Public Law 104-208, 110 Stat. 3009, 3009-690 
(amending INA 208(a)(1), 8 U.S.C. 1158(a)(1), to permit any noncitizen 
``who is physically present in the United States or who arrives in the 
United States (whether or not at a designated port of arrival . . .)'' 
to apply for asylum ``irrespective of'' the noncitizen's immigration 
status). Critically, the rule does not prevent anyone from applying for 
asylum. IIRIRA separated and distinguished the ability to apply for 
asylum from the conditions for granting asylum. Compare INA 208(a)(1), 
8 U.S.C. 1158(a)(1), with INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see 
also INA 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A) (establishing procedures 
for consideration of asylum applications). Section 208(a)(1) of the 
INA, 8 U.S.C. 1158(a)(1) retains the ability for most noncitizens who 
are physically present in the United States to apply for asylum 
irrespective of whether they arrived in the United States at a POE, 
except that Congress created three categories of noncitizens who are 
barred from making an application. INA 208(a)(2)(A) through (C), 8 
U.S.C. 1158(a)(2)(A) through (C).\189\ Separately, Congress provided 
``[c]onditions for granting asylum,'' which include six statutory 
exceptions to demonstrating eligibility for asylum as well as authority 
for the Departments to promulgate additional conditions and limitations 
on eligibility for asylum. INA 208(b)(2)(A)(i) through (vi), (C), 8 
U.S.C. 1158(b)(2)(A)(i) through (vi), (C).\190\ As some commenters 
noted, by creating exceptions to who is eligible to receive asylum and 
by authorizing the Departments to create new exceptions to eligibility, 
Congress saw nothing inconsistent in barring some individuals who may 
apply for asylum from receiving that relief.\191\ See R-S-C v. 
Sessions, 869 F.3d 1176, 1187 (10th Cir. 2017).
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    \189\ See INA 208(a)(2)(A) through (C), 8 U.S.C. 1158(a)(2)(A) 
through (C) (enumerating: (A) noncitizens who may be removed to a 
safe third country pursuant to a bilateral or multilateral 
agreement; (B) noncitizens who did not file for asylum within one 
year after arriving in the United States unless they demonstrate the 
existence of extraordinary or materially changed circumstances; and 
(C) noncitizens who previously applied for asylum and had that 
application denied unless they demonstrate the existence of 
extraordinary or materially changed circumstances).
    \190\ See INA 208(b)(2)(A)(i) through (vi), 8 U.S.C. 
1158(b)(2)(A)(i) through (vi) (barring asylum for individuals who: 
participate in the persecution of others, have been convicted of a 
particularly serious crime, have committed a serious nonpolitical 
crime outside the United States, are regarded as a danger to the 
security of the United States, have engaged in certain terrorism-
related activities, or were firmly resettled in another country 
prior to arriving in the United States).
    \191\ One important distinction between the exceptions 
enumerated in subsection 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), 
and those enumerated in 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), is 
that noncitizens who may apply for asylum but may be ineligible due 
to a (b)(2)(A) bar on eligibility may seek work authorization while 
their application is being adjudicated. 8 CFR 208.7(a)(1). A 
noncitizen who is barred from applying, i.e., someone subject to a 
subsection (a)(2) bar, cannot obtain work authorization during this 
time. Because this rule does not create a bar on applying for asylum 
under section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), there is no 
inconsistency with the provision of immediate work authorization to 
noncitizens who use one of the provided lawful parole processes to 
enter the United States and apply for asylum. 88 FR at 11707 n.26.
---------------------------------------------------------------------------

    Additionally, under this rule and contrary to commenter assertions, 
manner of entry, standing alone, is never dispositive. Cf. E. Bay 
Sanctuary Covenant v. Biden (``East Bay III''), 993 F.3d 640, 669-70 
(9th Cir. 2021) (enjoining the Proclamation Bar IFR as ``effectively a 
categorical ban on migrants who use a method of entry explicitly 
authorized by Congress in section 1158(a)''). Rather, the rule provides 
that a subset of noncitizens seeking asylum--i.e., those who travel 
through a specified third country, enter the United States during a 
two-year period after the effective date of the rule, and are not 
subject to one of four enumerated categories of excepted individuals, 
including those who use an identified lawful pathway to enter the 
United States--are subject to a rebuttable presumption of 
ineligibility. 8 CFR 208.33(a)(1) through (3), 1208.33(a)(1) through 
(3); 88 FR at 11707. This presumption is not categorical, but rather 
involves a case-by-case consideration of facts and factors. Indeed, as 
discussed in Sections IV.B.2.ii and IV.D.2 of this preamble, the 
narrower application and numerous exceptions and methods of rebutting 
the presumption demonstrate the differences between the prior, 
categorical bars that are now enjoined, and one of which is vacated. 
See also Sections IV.E.9 and IV.E.10 of this preamble (removing the TCT 
Bar Final Rule and the Proclamation Bar IFR from the CFR).
    Furthermore, the rule is within the scope of the Departments' 
authority because it adds a condition on eligibility for asylum 
permitted under section 208(b)(2)(C), (d)(5)(B) of the INA, 8 U.S.C. 
1158(b)(2)(C), (d)(5)(B), not a sweeping categorical bar that would 
preclude a grant of asylum solely based

[[Page 31375]]

on manner of entry, which some courts have found to conflict with 
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). 88 FR at 11735, 
11740. Cf. East Bay III, 993 F.3d at 669-70 (concluding that the 
Proclamation Bar was ``effectively a categorical ban'' on migrants 
based on their method of entering the United States, and that such a 
categorical bar is in conflict with section 208(a)(1) of the INA, 8 
U.S.C. 1158(a)(1)). Section 208(b)(2)(C) of the INA, 8 U.S.C. 
1158(b)(2)(C), provides that the Attorney General and Secretary ``may 
by regulation establish additional limitations and conditions, 
consistent with [section 208], under which an alien shall be ineligible 
for asylum.'' Similarly, section 208(d)(5)(B) of the INA, 8 U.S.C. 
1158(d)(5)(B), specifies that the Attorney General and Secretary ``may 
provide by regulation for any other conditions or limitations on the 
consideration of an application for asylum,'' so long as those 
conditions or limitations are ``not inconsistent with this chapter.'' 
See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (establishing certain procedures 
for consideration of asylum applications). As the Tenth Circuit 
explained, ``carving out a subset of'' noncitizens seeking asylum and 
placing a condition or limitation on their asylum applications falls 
within the limitations allowed by section 208(b)(2)(C), (d)(5)(B) of 
the INA, 8 U.S.C. 1158(b)(2)(C), (d)(5)(B), and is not inconsistent 
with section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). R-S-C, 869 F.3d 
at 1187 n.9. Precluding such a regulation would ``render 1158(b)(2)(C) 
[and (d)(5)(B)] meaningless, disabling the Attorney General from 
adopting further limitations while the statute clearly empowers him to 
do so.'' Id.
    Consistent with this authority, the Departments have promulgated 
other limitations or conditions on asylum eligibility, including some 
provisions that Congress later adopted and codified in the INA. See 
Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392, 
37392 (June 2, 1980) (imposing firm resettlement bar); Aliens and 
Nationality; Asylum and Withholding of Deportation Procedures, 55 FR 
30674, 30678, 30683 (July 27, 1990) (promulgating 8 CFR 208.14(c) 
(1990), which provided for mandatory regulatory bars to asylum for 
those who have been convicted in the United States of a particularly 
serious crime and who constitute a danger to the security of the United 
States while retaining a prior regulatory bar to asylum for noncitizens 
who have been firmly resettled); Asylum Procedures, 65 FR 76121, 76127 
(Dec. 6, 2000) (including internal relocation); see also, e.g., Afriyie 
v. Holder, 613 F.3d 924, 934-36 (9th Cir. 2010) (discussing internal 
relocation). Restraining the Departments' authority to promulgate 
additional limitations and conditions on the ability to establish 
eligibility for asylum would be contrary to congressional intent. See 
Thuraissigiam, 140 S. Ct. at 1966 (recognizing that the ``theme'' of 
IIRIRA ``was to protect the Executive's discretion from undue 
interference by the courts'') (alteration and quotation marks omitted); 
R-S-C, 869 F.3d at 1187 (reasoning that the ``delegation of authority'' 
in section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), ``means 
that Congress was prepared to accept administrative dilution'' of 
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1)); see also INS v. 
Cardoza-Fonseca, 480 U.S. 421, 444-45 (1987); 88 FR at 11740.
    Regarding comments that the condition created by the rule is 
inconsistent with the statute because it does not relate to whether a 
noncitizen qualifies as a refugee, the Departments respond that bars, 
limitations, and conditions on asylum do not necessarily and need not 
directly relate to whether a noncitizen satisfies the definition of a 
``refugee'' within the meaning of section 101(a)(42)(A) of the INA, 8 
U.S.C. 1101(a)(42)(A), but instead can embrace policy considerations 
that justify a finding of ineligibility. See, e.g., Zheng v. Mukasey, 
509 F.3d 869, 871 (7th Cir. 2007) (noting that IIRIRA enacted several 
provisions, including the one-year bar, ``intended to reduce delays and 
curb perceived abuses in removal proceedings''); Ali v. Reno, 237 F.3d 
591, 594 (6th Cir. 2001) (recognizing that asylum law ``was never 
intended to open the United States to refugees who had found shelter in 
another nation and had begun to build new lives'') (internal marks and 
quotation omitted); Matter of Negusie, 28 I&N Dec. 120, 125 (A.G. 2020) 
(discussing the history of the persecutor bar, and noting that Congress 
intended to make ``certain forms of immigration relief,'' including 
asylum, ``unavailable to persecutors'').
    This rule also does not, contrary to commenter concerns, violate 
the Refugee Act by establishing a non-uniform procedure for applying 
for asylum. The rule, consistent with the Refugee Act's objective to 
provide systematic and comprehensive procedures, establishes procedures 
and conditions to support the lawful, orderly processing of asylum 
applications. 88 FR at 11704, 11728; see Refugee Act, sec. 101(b), 94 
Stat. at 102 (``The objectives of this Act are to provide a permanent 
and systematic procedure for the admission to this country of refugees 
of special humanitarian concern to the United States, and to provide 
comprehensive and uniform provisions for the effective resettlement and 
absorption of those refugees who are admitted.''). To be sure, the rule 
will not lead to the same result for each noncitizen: For example, the 
rebuttable presumption will not apply to noncitizens who enter the 
United States using a lawful pathway but will apply to noncitizens who 
enter the United States from Mexico at the southwest land border or 
adjacent coastal borders and do not establish an exception to the 
presumption or otherwise rebut the presumption. But the rule will apply 
in a uniform way to all asylum applications filed by noncitizens who 
are subject to its terms during the applicable time period.
    The rule is likewise within the Departments' broad authority, 
within existing statutory bounds, to establish procedures that are 
tailored to different situations. INA 208(d)(1), 8 U.S.C. 1158(d)(1) 
(requiring the Attorney General to ``establish a procedure for the 
consideration of asylum applications''). Notably, asylum applicants 
navigate several procedurally different paths depending on their 
arrival in the United States and timing of their applications; some 
noncitizens file affirmative applications with USCIS after arriving in 
the United States, and others file defensive applications after being 
placed in expedited removal proceedings and found to have a credible 
fear of persecution. Others submit defensive applications while in 
section 240 removal proceedings. Contrary to commenter concerns, the 
lawful pathways to enter the United States outlined in this rule do not 
eliminate any of these existing procedures or categorically bar any of 
these applications for asylum.
    Furthermore, it is not inconsistent with the INA to provide a 
lawful pathway that relies on use of the CBP One app. The Departments 
note that it is not uncommon to implement policies that encourage the 
use of new technologies as they become available to create efficiencies 
in processing, including with respect to asylum applications, such as 
new forms, e-filing, the use of video teleconference hearings, and 
digital audio recording of hearings.\192\ See, e.g., Executive Office

[[Page 31376]]

for Immigration Review Electronic Case Access and Filing System, 86 FR 
70708 (Dec. 13, 2021) (implementing EOIR's electronic case management 
system); Immigration Court Practice Manual, Chapter 4.7 (Apr. 10, 2022) 
(providing guidance for video teleconference hearings); id. at Chapter 
4.10(a) (providing for electronic recording of hearings). In this rule, 
the Departments are implementing a rebuttable presumption of 
ineligibility that will encourage the use of lawful pathways, including 
use of the CBP One app, which the Departments expect will enable POEs 
to manage migratory flows in a safe and efficient manner. Importantly, 
those who present at a POE without a CBP One appointment and 
demonstrate that it was not possible to access or use the CBP One app 
due to language barrier, illiteracy, significant technical failure, or 
other ongoing and serious obstacle will not be subject to the 
presumption. 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). Further, 
using the app is not required in order to qualify for an exception from 
or to rebut the presumption, such as where a noncitizen applied for 
asylum or other protection in a third country and received a final 
decision denying that application or where the noncitizen shows 
exceptionally compelling circumstances. Thus, although the rule 
encourages increased use of the CBP One app, which is expected to 
facilitate more efficient and streamlined processing along the SWB, use 
of the app is not required.
---------------------------------------------------------------------------

    \192\ In 1998, Congress passed the Government Paperwork 
Elimination Act, which requires federal agencies to provide the 
public with the ability to conduct business electronically, when 
practicable, with the Federal government. See Public Law 105-277, 
1701-10, 112 Stat. 2681, 2681-749 to -751 (1998). Similarly, in 
2002, Congress passed the E-Government Act of 2002, which promotes 
electronic government services and requires agencies to use 
internet-based technology to increase the public's access to 
government information and services. See Public Law 107-347, 116 
Stat. 2899 (2002).
---------------------------------------------------------------------------

    In response to commenters' assertions that crossing the SWB and 
applying for asylum is in itself a ``lawful pathway,'' the Departments 
reiterate that this rule does not bar a noncitizen from entering the 
United States from Mexico at the southwest land border or adjacent 
coastal borders and subsequently seeking asylum. 88 FR at 11707. 
However, crossing the southwest land border or adjacent coastal borders 
without authorization is not one of the lawful pathways provided to 
encourage and increase safe, orderly transit to the United States. 
Thus, noncitizens who choose to cross the southwest land border or 
adjacent coastal borders without making an appointment to present at a 
POE during the period covered by this rule, and who do not otherwise 
qualify for an exception enumerated in 8 CFR 208.33(a)(2), 
1208.33(a)(2), will have to address the rebuttable presumption as part 
of establishing eligibility for relief, but they will nevertheless be 
able to apply for asylum.
    As to commenters' statements that the Departments' reliance on 
Matter of Pula is misplaced, the Departments respond that the rule is 
consistent with historical consideration of manner of entry as a 
relevant factor in considering an asylum application. In Matter of 
Pula, the BIA identified--as relevant factors as to whether a 
noncitizen warrants the favorable exercise of discretion in granting 
asylum--the noncitizen's ``circumvention of orderly refugee 
procedures,'' including their ``manner of entry or attempted entry''; 
whether they ``passed through any other countries or arrived in the 
United States directly''; ``whether orderly refugee procedures were in 
fact available to help'' in any transit countries; and whether they 
``made any attempts to seek asylum before coming to the United 
States.'' Matter of Pula, 19 I&N Dec. at 473-74. The BIA explained that 
section 208(a) of the INA, 8 U.S.C. 1158(a), required the Attorney 
General to establish procedures for adjudicating applications filed by 
any noncitizen, ``irrespective of such alien's status,'' but the BIA 
did not preclude consideration of the manner of entry in assessing 
whether to grant asylum. Id. at 472. The BIA also stated that while the 
manner of entry could ``be a serious adverse factor, it should not be 
considered in such a way that the practical effect is to deny relief in 
virtually all cases.'' Id. at 473. The BIA cautioned against placing 
``too much emphasis on the circumvention of orderly refugee 
procedures'' because ``the danger of persecution should generally 
outweigh all but the most egregious of adverse factors.'' Id. at 473-
74.
    The Departments acknowledge that this rule places more weight on 
manner of entry than the Board did in Matter of Pula. 88 FR at 11736. 
But in line with Matter of Pula, the rule also considers factors other 
than manner of entry, including providing a categorical rebuttal ground 
for noncitizens who faced an imminent and extreme threat to life or 
safety at the time of entry. Id.; 8 CFR 208.33(a)(3)(i)(B), 
1208.33(a)(3)(i)(B). And like Matter of Pula, this rule provides for 
consideration of manner of entry in assessing eligibility for some 
asylum seekers, but this factor is not considered in ``a way that the 
practical effect is to deny relief in virtually all cases.'' 19 I&N 
Dec. at 473. Rather, the manner of entry is only impactful for 
individuals who do not enter the United States using a lawful pathway, 
do not establish an exception to the rebuttable presumption, and do not 
rebut the presumption. 88 FR at 11707, 11735-36.
    The Departments also recognize that the specific analysis discussed 
in Matter of Pula (considering manner of entry in the discretionary 
decision of whether to grant asylum) is distinct from how the rule 
considers manner of entry (as part of provisions governing eligibility 
for asylum). See Matter of Pula, 19 I&N Dec. at 472. Nevertheless, 
Matter of Pula supports the proposition that it is lawful to consider, 
and in some cases rely on, manner of entry for asylum applicants. 
Moreover, adjudicators are not precluded from considering the same 
facts when evaluating both eligibility and discretion. Indeed, it is 
possible for a single fact to be relevant to both determinations but 
dispositive as to only one. See Kankamalage v. INS, 335 F.3d 858, 864 
(9th Cir. 2003) (concluding that a conviction did not render a 
noncitizen ineligible for asylum, but stating that the Board was ``not 
prohibited from taking into account Kankamalage's robbery conviction 
when it decides whether or not to grant asylum as a matter of 
discretion''); Matter of Jean, 23 I&N Dec. 373, 385 (A.G. 2002) 
(concluding that even a noncitizen who ``qualifies as a `refugee' '' 
and whose criminal conviction did ``not preclude her eligibility'' for 
asylum could nevertheless be ``manifestly unfit for a discretionary 
grant of relief'').
    Moreover, the Departments, in exercising their broad discretion to 
issue regulations adopting additional limitations and conditions on 
asylum eligibility, are not bound to consider manner of entry only as a 
factor contributing to whether a particular noncitizen warrants a 
favorable exercise of discretion. The Departments similarly disagree 
with the commenter who stated that the Departments are seeking to 
``excuse themselves from complying with long-established Board 
precedent simply because the `regulatory regime' in place today is 
different than the regime at the time the Board decided Matter of 
Pula.'' This rule is not in conflict with Matter of Pula, which remains 
the applicable standard for discretionary determinations. And the rule 
takes Matter of Pula as providing support for the proposition that it 
is lawful to consider, and in some cases rely on, manner of entry for 
asylum applicants. 88 FR at 11735-36.
    In sum, as with other conditions and limitations imposed by section 
208(b)(2) of the INA, 8 U.S.C. 1158(b)(2), this rule is grounded in 
important policy objectives, including providing those

[[Page 31377]]

with valid asylum claims an opportunity to have their claims heard in a 
timely fashion, preventing an increased flow of migrants arriving at 
the SWB that will overwhelm DHS's ability to provide safe and orderly 
processing, and reducing the role of exploitative transnational 
criminal organizations and smugglers. 88 FR at 11704. In seeking to 
enhance the overall functioning of the immigration system and to 
improve processing of asylum applications, the Departments are, in the 
exercise of the authority to promulgate conditions and limitations on 
eligibility for asylum, placing greater weight on manner of entry to 
encourage migrants to seek protection in other countries in the region 
and to use lawful pathways and processes to enter the United States and 
access the U.S. asylum system.
ii. Statutory Bars to Asylum
    Comment: Commenters stated that the proposed rule would be 
inconsistent with the statutory firm-resettlement and safe-third-
country bars. See INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); INA 
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). Commenters argued that Congress 
intended for these two bars to be the sole means by which a noncitizen 
may be denied asylum based on a relationship with a third country. 
Commenters disagreed with the proposed rule, asserting it would bar 
asylum for anyone who travels through what the United States deems a 
``safe third country.'' Similarly, another commenter stated that the 
proposed rule would penalize migrants who do not live adjacent to a 
safe third country to which they could travel directly in order to seek 
protection.
    Response: This rule is within the Departments' broad authority to 
create new conditions on eligibility for asylum, and the Departments 
disagree that the rule conflicts with any of the exceptions to a 
noncitizen's ability to apply for asylum or a noncitizen's eligibility 
for asylum under sections 208(a)(2) or (b)(2) of the INA, 8 U.S.C. 
1158(a)(2) or (b)(2). The INA's safe-third-country provision prohibits 
a noncitizen from applying for asylum if the noncitizen ``may be 
removed, pursuant to a bilateral or multilateral agreement'' to a safe 
third country in which the noncitizen would not be subject to 
persecution and ``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 firm-resettlement provision 
precludes a noncitizen who ``was firmly resettled in another country 
prior to arriving in the United States'' from demonstrating eligibility 
for asylum. INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); see also 
8 CFR 208.15 (2020), 1208.15 (2020).\193\ The two provisions provide 
categorical bars to asylum for noncitizens who have available, 
sustained protection in another country, and help protect against forum 
shopping. Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per 
curiam) (noting that the policy behind the safe-third-country statutory 
bar includes the principle that ``[t]he United States offers asylum to 
refugees not to provide them with a broader choice of safe homelands, 
but rather, to protect those arrivals with nowhere else to turn.''); 
Rosenberg v. Yee Chien Woo, 402 U.S. 49, 55, 56 (1971) (noting that the 
concept of firm resettlement is historically rooted in the notion of 
providing ``a haven for the world's homeless people'' while encouraging 
``other nations to do likewise.''); see also Maharaj v. Gonzales, 450 
F.3d 961, 988-89 (9th Cir. 2006) (en banc) (O'Scannlain, J., 
concurring, in part) (recognizing that the firm-resettlement bar 
protects against forum shopping, an issue ``that our immigration laws 
have long sought to avoid.''); United States v. Malenge, 294 F. App'x 
642, 645 (2d Cir. 2008) (noting that a purpose of the safe-third-
country agreement with Canada was to prevent forum shopping).
---------------------------------------------------------------------------

    \193\ These provisions were amended by Procedures for Asylum and 
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 
FR 80274 (December 11, 2020), which was preliminarily enjoined and 
its effectiveness stayed before it became effective. See Pangea 
Legal Services v. U.S. Dep't of Homeland Security (Pangea II), 512 
F. Supp. 3d 966, 969-70 (N.D. Cal. 2021). This order remains in 
effect, and thus the 2020 version of these provisions--the version 
immediately preceding the enjoined amendment--is currently 
effective.
---------------------------------------------------------------------------

    The Departments disagree with commenters because the INA permits 
the Attorney General and Secretary to create new eligibility conditions 
and does not limit this authority based on the content of the existing 
statutory conditions. See Trump, 138 S. Ct. at 2411-12 (recognizing 
that the INA ``did not implicitly foreclose the Executive from imposing 
tighter restrictions'' in ``similar'' areas); E. Bay Sanctuary Covenant 
v. Garland, 994 F.3d 962, 979 (9th Cir. 2020) (``East Bay I '') 
(acknowledging that the INA does not limit the Departments' ``authority 
to the literal terms of the two safe-place statutory bars''); R-S-C, 
869 F.3d at 1187 (noting that Congress's delegation of authority in 
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C) ``means that 
Congress was prepared to accept administrative dilution'' of the right 
to seek asylum). Indeed, section 208(b)(2)(C), (d)(5)(B) of the INA, 8 
U.S.C. 1158(b)(2)(C), (d)(5)(B), provides no subject-matter limit, 
other than requiring any regulation be ``consistent with'' section 208 
of the INA, 8 U.S.C. 1158. See R-S-C, 869 F.3d at 1187 n.9. The 
condition created by this rule is consistent with section 208 of the 
INA, 8 U.S.C. 1158, as a whole, and it is consistent with the safe-
third-country and firm-resettlement bars in particular. 88 FR at 11736.
    Critically, unlike the safe-third-country bar, the rule does not 
consider whether the noncitizen could now safely relocate to a third 
country, and unlike the firm-resettlement bar, this rule does not 
categorically preclude a noncitizen from demonstrating eligibility for 
asylum because they are no longer in flight from persecution. Cf. Ali, 
237 F.3d at 594 (noting that the firm-resettlement bar does not 
conflict with Congress's intent in providing for asylum relief 
``[b]ecause firmly resettled aliens are by definition no longer subject 
to persecution'') (marks and citation omitted). Rather, as discussed in 
the NPRM, the rule encourages use of lawful pathways for migrants 
seeking to come to the United States, including noncitizens wishing to 
seek asylum in the United States. 88 FR at 11707. The rule is designed 
to improve processing of such asylum applications. Id. at 11704, 11706-
07. Noncitizens will not be subject to the rebuttable presumption if 
they travel through a third country and seek entry into the United 
States through a lawful, safe, and orderly pathway. Id. at 11707; 8 CFR 
208.33(a)(2)(ii), 1208.33(a)(2)(ii). They also will not be subject to 
the rebuttable presumption if they seek and are denied asylum or other 
protection in a third country. 88 FR at 11707; 8 CFR 
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). And unaccompanied children 
are excepted from the presumption. 8 CFR 208.33(a)(2)(i), 
1208.33(a)(2)(i). Moreover, even if a noncitizen is subject to the 
presumption of ineligibility under 8 CFR 208.33(a)(1), 1208.33(a)(1), 
the noncitizen may rebut that presumption in any of several ways that 
account for protecting the safety of those fleeing imminent harm. 88 FR 
at 11707; 8 CFR 208.33(a)(3), 1208.33(a)(3). Accordingly, the rule 
encourages noncitizens seeking to enter the United States, including 
those seeking asylum who have transited through a third country before 
arriving in the United States, to enter through lawful, safe, and 
orderly pathways by imposing an additional condition on the asylum 
eligibility of individuals who did not avail

[[Page 31378]]

themselves of such pathways. 88 FR at 11706-07. The rule does not 
preclude noncitizens who have transited through third countries without 
applying for protection in those countries from obtaining asylum in the 
United States. Id. at 11706-07. In addition, the rule expressly 
accounts for migrants who have been denied a safe haven elsewhere; if 
an applicant seeks asylum in a third country and is denied, the 
rebuttable presumption does not apply. 8 CFR 208.33(a)(2)(ii)(C), 
1208.33(a)(2)(ii)(C).
    Comment: Commenters stated that the proposed rule would conflict 
with the firm-resettlement bar to asylum eligibility or render the 
firm-resettlement bar superfluous because it would negate the need to 
determine whether the noncitizen has firmly resettled or whether any 
potential or obtained status in a third country would not be reasonably 
available or reasonably retained due to issues such as processing 
backlogs in the third country. Commenters were also concerned that the 
proposed rule would not account for the risk of harm that the 
noncitizen might face in the third country. Commenters stated that the 
proposed rule would ignore congressional intent that the noncitizen 
have a more significant relationship with the third country--i.e., be 
firmly resettled in that country rather than be merely transiting 
through the country--to be effectively rendered ineligible for asylum. 
Commenters asserted that requiring individuals to apply for protection 
in a third transit country would create a new hurdle for them because 
it could subject them to the firm-resettlement bar.
    Response: As discussed above, the INA does not limit the 
Departments' authority regarding eligibility conditions relating to a 
noncitizen's conduct in third countries to the boundaries of the firm-
resettlement statutory bar. Trump, 138 S. Ct. at 2411-12 (recognizing 
that the INA ``did not implicitly foreclose the Executive from imposing 
tighter restrictions'' in ``similar'' areas); see also East Bay I, 994 
F.3d at 979 (noting that the INA does not limit the Departments' 
``authority to the literal terms of the two safe-place statutory 
bars''). The Departments disagree that the rule conflicts with the 
firm-resettlement bar, which focuses on protecting against forum 
shopping when a migrant has already found a safe refuge. INA 
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); Bonilla v. Mukasey, 539 
F.3d 72, 80 (1st Cir. 2008); Ali, 237 F.3d at 594. This rule focuses on 
encouraging migrants to use safe, orderly, and lawful pathways to enter 
the United States. 88 FR at 11707, 11736. Accordingly, the relevant 
facts and analysis for considering firm resettlement and the 
application of the rebuttable presumption are materially different.
    Additionally, the rule does not overlook commenter concerns about 
the accessibility to or processing times of applications in third 
countries. Even if noncitizens determine that protection in a third 
country is inaccessible or would take more time than the noncitizens 
believe they can wait, the rule provides other ways that the noncitizen 
can seek protection. Seeking protection in a third country and 
receiving a denial excepts a noncitizen from the presumption but is not 
a requirement--the noncitizen may still either enter using a lawful 
pathway, pre-schedule an appointment to present themselves at a POE, or 
show one of several other circumstances that allow an individual to be 
excepted from the rule's rebuttable presumption. 8 CFR 208.33(a)(2), 
1208.33(a)(2). The rule also explicitly protects family unity by 
providing that if one member of a family traveling together is excepted 
from the presumption of asylum ineligibility or has rebutted the 
presumption then the other members of the family are similarly treated 
as excepted from the presumption or having rebutted the presumption. 8 
CFR 208.33(a)(2)(ii), (3), 1208.33(a)(2)(ii), (3); 88 FR at 11730. And 
if during removal proceedings a principal applicant is eligible for 
statutory withholding of removal or CAT withholding and would be 
granted asylum but for the presumption and has either an accompanying 
spouse or child who would not qualify for asylum or protection from 
removal or a spouse or child who would be eligible to follow to join 
them as described in section 208(b)(3)(A) of the INA, 8 U.S.C. 
1158(b)(3)(A), if the principal applicant were granted asylum, the 
applicant will be deemed to have established an exceptional 
circumstance that rebuts the presumption. 8 CFR 1208.33(c). 
Additionally, any principal asylum applicants who enter the United 
States during the two-year period of the rebuttable presumption while 
under the age of eighteen and apply for asylum after the two-year 
period are not subject to the presumption. 8 CFR 208.33(c)(2), 
1208.33(d)(2). Furthermore, the rule does not affect a noncitizen's 
ability to apply for statutory withholding of removal and CAT 
protection. 88 FR at 11730.
    The rule also does not render the firm-resettlement bar 
superfluous; instead, this rule and the firm-resettlement bar apply 
independently. The operative firm-resettlement regulations provide that 
a noncitizen is barred from receiving asylum in the United States if 
they have received an offer of safe, established permanent resettlement 
that is not substantially and consciously restricted. 8 CFR 208.15, 
1208.15 (2020). The firm-resettlement bar is divorced from any inquiry 
into how or when a noncitizen enters the United States. INA 
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); 8 CFR 208.15, 1208.15 
(2020). Put differently, the firm-resettlement bar applies with equal 
force to noncitizens who enter the United States using an identified 
lawful pathway and those who do not. Abdalla v. INS, 43 F.3d 1397, 1400 
(10th Cir. 1994) (``The pertinent regulations specifically focus on 
resettlement status prior to the alien's entry into this country . . . 
. ''). Conversely, this rule does not turn exclusively on whether the 
noncitizen received an offer of permanent resettlement in a third 
country. 88 FR at 11723. Under the rule, a migrant's time in a third 
country is primarily relevant in two circumstances: (1) when a 
noncitizen travels through a third country and does not enter the 
United States through established lawful pathways, or (2) if the 
noncitizen applied for protection in the third country and was denied. 
8 CFR 208.33(a)(1)(iii), (2)(ii)(C), 1208.33(a)(1)(iii), (2)(ii)(C). In 
the first circumstance, the noncitizen is subject to the rule's 
condition on asylum eligibility unless they can demonstrate an 
applicable exception or successfully rebut the presumption. 8 CFR 
208.33(a)(2) and (3), 1208.33(a)(2) and (3). In the second 
circumstance, the noncitizen is categorically not subject to the 
rebuttable presumption of asylum ineligibility regardless of whether 
they entered the United States through established lawful pathways. 8 
CFR 208.33(a)(2)(ii)(C),1208.33(a)(2)(ii)(C). But neither circumstance 
involves determining whether the noncitizen was firmly resettled, as 
defined in 8 CFR 208.15, 1208.15 (2020), before traveling to the United 
States.\194\ Thus, the firm-resettlement bar and this rule are simply 
different conditions with different scopes.
---------------------------------------------------------------------------

    \194\ Indeed, the firm-resettlement bar, if applicable to a 
particular noncitizen, would not be applied by an AO in credible 
fear proceedings and would be applied only if the noncitizen's 
application is considered by an IJ in section 240 removal 
proceedings or an AO during an asylum merits interview. 8 CFR 
208.30(e)(5)(i).
---------------------------------------------------------------------------

    In addition, the rule properly accounts for the risk of harm a 
noncitizen might face in the third country. As at least one commenter 
in favor of the rule noted, not all migrants

[[Page 31379]]

who travel through third countries are actively fleeing persecution and 
some choose to come to the United States for other reasons. But should 
the noncitizen be fleeing harm, one of the enumerated grounds that will 
necessarily rebut the presumption of asylum ineligibility is that the 
noncitizen faced an imminent and extreme threat to life or safety at 
the time of entry into the United States. 8 CFR 208.33(a)(3)(i)(B), 
1208.33(a)(3)(i)(B); 88 FR at 11704, 11707, 11736. In response to the 
comment that requiring a noncitizen to seek protection in a transit 
country would add a hurdle to obtaining asylum in the United States 
insofar as that noncitizen may need to address the firm-resettlement 
bar, the Departments note that noncitizens subject to the firm-
resettlement bar are not in need of protection in the United States. 
See Ali, 237 F.3d at 594 (recognizing that asylum law ``was never 
intended to open the United States to refugees who had found shelter in 
another nation and had begun to build new lives'' (quoting Rosenberg v. 
Yee Chien Woo, 402 U.S. 49, 56 (1971)); East Bay I, 994 F.3d at 977 
(recognizing ``the `core regulatory purpose of asylum,' which is `to 
protect [refugees] with nowhere else to turn,' because `by definition' 
an applicant barred by a safe-place provision has somewhere else to 
turn'' (quoting Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013), 
overruled on other grounds by Zepeda-Lopez v. Garland, 38 F.4th 315, 
326 (2d Cir. 2022)); Constitution of the International Refugee 
Organization, ch. V, sec. (D)(c), Dec. 15, 1946, 18 U.N.T.S. 20 
(determining that a refugee or displaced person ``will cease to be the 
concern of the Organization . . . when they have . . . become otherwise 
firmly established''). Likewise, the rule does not deny asylum to a 
noncitizen who obtained asylum in a third country (and therefore 
presumably has a cognizable claim to refugee status) but thereafter 
comes to the United States and seeks asylum. That person may seek to 
enter through a lawful pathway and file an asylum application like any 
other migrant, at which point they would likely need to address the 
firm-resettlement bar. Should they enter the United States from Mexico 
at the southwest land border or adjacent coastal borders without 
authorization or at a POE without an appointment and not otherwise be 
covered by an exception, they, like any other noncitizen in that 
situation, will be able to address the rebuttable presumption.
    Finally, the Departments disagree that the rule ignores 
congressional intent underlying the firm-resettlement bar. As explained 
above, this rule has the policy objective of encouraging the use of 
safe, orderly, and lawful pathways by noncitizens, including those 
seeking asylum, to enter the United States to present their claims, 88 
FR at 11704, 11707, and is distinct from the firm-resettlement bar, 
which is grounded in the policy objective of protecting against forum 
shopping by migrants who have already found a safe refuge, East Bay I, 
994 F.3d at 977; Bonilla, 539 F.3d at 80; Ali, 237 F.3d at 595.
    Comment: Commenters stated that the proposed rule would be 
inconsistent with or would circumvent the safe-third-country bar to 
applying for asylum because the safe-third-country bar was intended to 
ensure that any third country was safe and had a fair procedure for 
asylum or temporary protection before requiring that a noncitizen avail 
themselves of protection in that country. Commenters asserted that the 
proposed rule essentially or implicitly declares Mexico, Guatemala, or 
other transit countries to be safe third countries without obtaining 
the requisite bilateral or multilateral agreements. Commenters also 
claimed that this proposed rule, which would apply regardless of 
whether the United States has an agreement with the transit country, 
would not adequately consider or require an individualized 
determination as to whether a third country is ``safe'' for asylum 
seekers or has an adequate system for granting protection against 
persecution and torture. Instead, commenters explained that this 
proposed rule relies on a third country being a party to specified 
international accords, which commenters stated are not sufficient to 
ensure the noncitizen's safety and, therefore, would result in refugees 
being returned to the countries where they will be persecuted--in 
conflict with the non-refoulement principles of the Refugee Act. One 
commenter specified that the asylum structures in Mexico, El Salvador, 
Honduras, and Guatemala do not meet the international standard for 
refugee protection and thus cannot constitute a safe third country.
    Response: As a threshold matter, the Departments distinguish the 
categorical safe-third-country bar found in section 208(a)(2)(A) of the 
INA, 8 U.S.C. 1158(a)(2)(A), from this rule because this rule, unlike 
the safe-third-country bar, is neither a categorical bar on the ability 
to apply for asylum nor does it hinge exclusively on the availability 
of protection in a third country. 88 FR at 11723, 11736. While the 
Departments believe that protection is available for many noncitizens 
in third countries through which they transit before arriving in the 
United States from Mexico at the southwest land borders or adjacent 
coastal borders, the Departments have carefully refrained from making 
asylum eligibility in the United States turn exclusively on whether the 
noncitizen could have sought protection in any third country. Nor does 
this rule act as or constitute a third-country agreement for purposes 
of section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A). 88 FR at 
11732. Critically, the purpose behind this rule is to encourage 
noncitizens to take advantage of existing and expanded safe, orderly, 
and lawful pathways for noncitizens to enter the United States to 
present asylum claims. 88 FR at 11704, 11719. And the rule does not, 
contrary to commenters' suggestions, require a noncitizen to return to 
or go to a third country without evaluating the safety of that country 
simply because of their method of entering the United States. Cf. East 
Bay I, 994 F.3d at 977. Rather, the rule is more limited. The rule 
provides that noncitizens who have traveled through a third country and 
enter the United States through a provided lawful pathway may seek 
asylum through an orderly and directed process. 88 FR at 11707, 11723; 
see 8 CFR 208.33(a)(2)(ii), 1208.33(a)(2)(ii). Noncitizens who travel 
through a third country that is a party to the Refugee Convention or 
Protocol and do not enter the United States through a provided lawful 
pathway, and who do not first seek (and are denied) protection in that 
third country, may still present a claim for relief and protection 
based on fear of persecution--but, in order to be eligible for asylum, 
they must first establish an exception to or rebut a presumption of 
ineligibility for asylum. 88 FR at 11707, 11723; see 8 CFR 
208.33(a)(3), 1208.33(a)(3). And even if the noncitizen is subject to 
the presumption of ineligibility for asylum, the noncitizen may still 
seek and be eligible for statutory withholding of removal or CAT 
protection. 88 FR at 11737; see 8 CFR 208.33(b)(2)(i) and (ii), 
1208.33(b)(2)(i) and (ii). Simply put, the rule imposes a condition on 
asylum (and only asylum) eligibility relating to whether the noncitizen 
availed themselves of a lawful pathway, but the rule does not direct an 
inquiry as to whether the noncitizen can or should return to a third 
country. 88 FR at 11737-38.
iii. Expedited Removal
    Comment: Some commenters stated that the proposed rule creates a 
higher standard of proof (preponderance of the evidence) for rebutting 
the presumption

[[Page 31380]]

against asylum, as compared to the ``significant possibility'' standard 
for establishing a credible fear. Commenters expressed a belief that 
the rule requires noncitizens ``to actually establish, at their 
credible fear interview, that they are eligible for asylum'' (emphasis 
in original), not simply that they have a significant possibility of 
demonstrating eligibility. These commenters expressed concern that the 
rule could be read to require AOs to make a finding that a noncitizen 
is ineligible for asylum without assessing the presumption under the 
``significant possibility'' standard. These commenters further argued 
that the touchstone of the ``significant possibility'' standard was 
whether a noncitizen ``could show, after a full hearing with factual 
development,'' that the presumption does not apply.
    Response: The ``significant possibility'' standard is required by 
statute, and the rule does not impose a different standard during the 
credible fear process.\195\ The INA mandates that, when determining 
whether a noncitizen has a ``credible fear,'' the AO must determine 
whether there is a ``significant possibility . . . that the alien could 
establish eligibility for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v). When it comes to the rebuttable presumption, the AO 
will determine whether there is a significant possibility that the 
noncitizen would be able to show at a full hearing by a preponderance 
of the evidence that the presumption does not apply or that they meet 
an exception to or can rebut the presumption. 8 CFR 208.33(a)(2), 
(3)(i), 1208.33(a)(2), (3)(i). In other words, the ``significant 
possibility'' standard is the overall assessment applied at the 
credible fear stage, but that standard must be applied in conjunction 
with the standard of proof required for the ultimate merits 
determination. Although the ``significant possibility'' standard 
applies when determining the presumption's applicability and whether it 
has been rebutted, the Departments expect that noncitizens rarely would 
be found exempt from or to have rebutted the presumption for credible 
fear purposes and subsequently be found not to be exempt from or to 
have rebutted the presumption at the merits stage. The ``significant 
possibility'' standard asks a predictive question: whether there is a 
``significant possibility'' that the noncitizen ``could establish'' 
asylum eligibility at a merits hearing. INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v). And given the nature of the inquiry under this rule's 
presumption, the Departments expect that AOs or IJs will almost always 
be able to determine based on the evidence before them at the credible 
fear stage whether a noncitizen would be unable to establish asylum 
eligibility at the merits stage.
---------------------------------------------------------------------------

    \195\ Previous limitations on asylum eligibility have used 
similar regulatory language that does not explicitly include the 
phrase ``significant possibility'' while also stating in the rules' 
preambles that the ``significant possibility'' standard applied to 
those limitations. See, e.g., Security Bars and Processing, 85 FR 
84160, 84175 (Dec. 23, 2020) (``Security Bars Rule'') (explaining 
that ``[t]he rule does not, and could not, alter the standard for 
demonstrating a credible fear of persecution, which is set by 
statute''); Asylum Eligibility and Procedural Modifications, 84 FR 
33829, 33837 (July 16, 2019) (``TCT Bar IFR'') (providing that 
``[t]he asylum officer will ask threshold questions to elicit 
whether an alien is ineligible for a grant of asylum pursuant to the 
third-country-transit bar. If there is a significant possibility 
that the alien is not subject to the eligibility bar (and the alien 
otherwise demonstrates that there is a significant possibility that 
he or she can establish eligibility for asylum), then the alien will 
have established a credible fear.''); Aliens Subject to a Bar on 
Entry Under Certain Presidential Proclamations; Procedures for 
Protection Claims, 83 FR 55934, 55943 (Nov. 9, 2018) (``Proclamation 
Bar'') (providing that ``[t]he asylum officer will ask threshold 
questions to elicit whether an alien is ineligible for a grant of 
asylum pursuant to a proclamation entry bar. If there is a 
significant possibility that the alien is not subject to the 
eligibility bar (and the alien otherwise demonstrates sufficient 
facts pertaining to asylum eligibility), then the alien will have 
established a credible fear.'').
---------------------------------------------------------------------------

    First, the evidence necessary to determine whether a person is 
excepted from or can rebut the presumption should generally be 
available to the AO at the time of the credible fear interview, whether 
from the noncitizen or otherwise. Unlike some of the more complex 
factual inquiries required for other elements of asylum eligibility, 
such as nexus or particular social group, which often require evidence 
about country conditions or other evidence, and often regard events 
that did not happen recently, AOs will--except in exceptional 
circumstances--be able to assess eligibility for such exceptions or 
rebuttal circumstances at the credible fear interview through 
consideration of the noncitizen's credible testimony and available 
evidence, including government records relating to their circumstances 
at the time of their entry into the United States.
    For instance, a noncitizen should not generally need testimony from 
a witness in their home country or evidence of country conditions to 
show that they faced an acute medical emergency at the time of entry or 
that it was not possible to access or use the CBP One app due to 
language barrier, illiteracy, significant technical failure, or other 
ongoing and serious obstacle. See 8 CFR 208.33(a)(2)(ii)(B), (3)(i)(A), 
1208.33(a)(2)(ii)(B), (3)(i)(A). In some cases, the absence of 
documentation and DHS records--such as a record that a noncitizen was 
provided appropriate authorization to travel to the United States to 
seek parole--may make it unlikely that the noncitizen could make the 
requisite showing at a full merits hearing. In other situations, the 
noncitizen's credible testimony may be sufficient to prove the 
noncitizen's claims, although AOs also may consider any evidence 
noncitizens have with them at the time they entered the United States 
from Mexico at the southwest land border or adjacent coastal borders, 
and evidence regarding the State in which they were encountered at or 
near the border. Thus, AOs should have all the necessary evidence 
before them during the credible fear interview to determine whether a 
noncitizen will be exempt from or able to rebut the presumption, and 
additional evidence is not likely to change whether an exception to or 
rebuttal of the presumption applies.
    Second, as with factual determinations, the legal analysis for 
determining whether a person is exempt from or can rebut the 
presumption is straightforward because most of the enumerated grounds 
for those determinations are narrow and clearly defined. There is 
little gray area in determining whether a noncitizen transited through 
a third country, and the rule provides clear examples of the types of 
threats that constitute an imminent and extreme threat to life or 
safety--that is, an imminent threat of rape, kidnapping, torture, or 
murder. See 8 CFR 208.33(a)(1)(iii), (3)(i)(B), 1208.33(a)(1)(iii), 
(3)(i)(B). As a result, the question of whether a noncitizen has a 
``significant possibility'' of meeting these standards should not 
require much legal analysis after the AO has considered the evidence 
before them. That again differs from other questions that may arise 
during a credible fear inquiry--such as whether the noncitizen is a 
member of a cognizable particular social group--which can be quite 
complex; AOs or IJs may reasonably defer such difficult questions by 
finding credible fear. See 8 CFR 208.30(e)(4) (``In determining whether 
the alien has a credible fear of persecution . . . or a credible fear 
of torture, the asylum officer shall consider whether the alien's case 
presents novel or unique issues that merit a positive credible fear 
finding . . . in order to receive further consideration of the 
application for asylum and withholding of removal.''). Hence, in this 
unique context, applying the ``significant possibility'' standard will 
almost always

[[Page 31381]]

lead to a similar conclusion as applying the ultimate eligibility 
standard.
    However, the Departments acknowledge that in some rare cases the 
outcome from applying the ``significant possibility'' standard may 
differ from application of the ultimate merits standard, such that a 
noncitizen who is found to have met the ``significant possibility'' 
standard may ultimately be found after a merits hearing to be subject 
to the presumption of ineligibility. It is the Departments' expectation 
that such cases will be rare, and that applying the ``significant 
possibility'' standard will not differ meaningfully from application of 
the ultimate merits standard in this context.
    Comment: Commenters stated that Congress intended to set a low 
screening standard for the credible fear process and alleged that the 
proposed rule raised the screening standard for statutory withholding 
of removal and CAT protection during this process without providing a 
justification for doing so. Commenters argued that Congress intended 
the plain language of the statute, which uses a ``significant 
possibility'' standard for asylum, to also apply to related fear 
claims, such as statutory withholding of removal and CAT protection.
    Response: As a preliminary matter, this rule does not change the 
screening standard for asylum claims. Instead, it imposes an additional 
condition on asylum eligibility: a rebuttable presumption of asylum 
ineligibility for certain noncitizens who neither avail themselves of a 
lawful, safe, and orderly pathway to the United States nor seek asylum 
or other protection in a country through which they travel. 88 FR at 
11750; INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). AOs will 
continue to apply the statutory ``significant possibility'' standard to 
determine credible fear. Id. In considering whether a noncitizen can 
establish a significant possibility of eligibility for asylum, the AO 
will be required to consider whether the noncitizen has shown a 
significant possibility that they could establish that the presumption 
does not apply or that they meet an exception to or can rebut the 
presumption. 88 FR at 11750. Only after determining that a noncitizen 
could not demonstrate a ``significant possibility'' of eligibility for 
asylum would the AO apply the long-established ``reasonable 
possibility'' standard to assess whether further proceedings on a 
possible statutory withholding or CAT protection claim are warranted. 
Id. at 11746, 11750.
    In contrast to the establishment of a statutory ``significant 
possibility'' standard to screen for asylum, Congress did not specify a 
statutory standard for screening statutory withholding of removal or 
CAT protection claims in expedited removal proceedings. See INA 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v) (referencing only 
``asylum''). Since 1999, AOs have applied the ``reasonable 
possibility'' standard to statutory withholding of removal and CAT 
protection claims in streamlined proceedings for reinstatement and 
administrative removal where noncitizens are statutorily ineligible for 
asylum. See 8 CFR 208.31, 1208.31 (2020) \196\ (implementing the 
reasonable fear process for noncitizens subject to administrative 
removal orders); 8 CFR 241.8(e) (implementing the reasonable fear 
process for noncitizens subject to reinstatement of a prior order of 
removal). While the ``reasonable possibility'' standard is lower than 
the ``clear probability'' standard required to demonstrate eligibility 
for statutory withholding or CAT protection, it is a more demanding 
standard than the ``significant possibility'' standard used in credible 
fear proceedings to screen for asylum. Regulations Concerning the 
Convention Against Torture, 64 FR 8474, 8485 (Feb. 19, 1999). At the 
time the CAT regulations were implemented, the goal of the reasonable 
fear process was to ensure that the United States complied with its 
non-refoulement obligations under the CAT ``without unduly disrupting 
the streamlined removal processes applicable.'' Id. at 8479. The 
justification for using the reasonable possibility standard was also 
explained at the time the reasonable fear proceedings were created: 
``[b]ecause the standard for showing entitlement to these forms of 
protection (a probability of persecution or torture) is significantly 
higher than the standard for asylum (a well-founded fear of 
persecution), the screening standard adopted for initial consideration 
of withholding and deferral requests in these contexts is also 
higher.'' Id. at 8485.
---------------------------------------------------------------------------

    \196\ These provisions were amended by the Global Asylum Rule, 
which was preliminarily enjoined and its effectiveness stayed before 
it became effective. See Pangea II, 512 F. Supp. 3d at 969-70. This 
order remains in effect, and thus the 2020 version of these 
provisions--the version immediately preceding the enjoined 
amendments is currently effective.
---------------------------------------------------------------------------

    For the purpose of this rule, the Departments have judged that, in 
those cases where an applicant cannot establish a significant 
possibility of eligibility for asylum due to the lawful pathways 
condition, the use of the ``reasonable possibility'' standard to assess 
statutory withholding of removal and CAT claims better reflects the 
goals of the rule as a whole. As explained in the NPRM, while this is a 
different judgment than what was made by the Asylum Processing IFR, the 
application of the heightened standard is in line with the goal of 
identifying non-meritorious claims at the screening stage, allowing the 
heavily burdened immigration courts to focus on those claims most 
likely to warrant protection. 88 FR at 11742. The Departments believe 
that applying the ``reasonable possibility'' standard, which is 
tailored to statutory withholding of removal and CAT claims, ``better 
predicts the likelihood of succeeding'' on an application for statutory 
withholding of removal or CAT protection because it appropriately 
accounts for the higher burden of proof. 88 FR at 11746-47. The use of 
the standard specific to statutory withholding and CAT claims, since 
its inception, has allowed the United States to meet its obligations 
under international law while simultaneously balancing the need to 
expeditiously identify non-meritorious claims. Moreover, as stated in 
the NPRM, the Departments seek to protect those who have viable claims 
while also considering the ``downstream effects'' on immigration 
courts. 88 FR at 11746. The application of standards tailored to the 
type of relief for which the noncitizen is eligible is designed to 
accomplish that goal.
2. TCT Bar and Proclamation Bar Litigation
    Comment: Several commenters argued that the proposed rule is no 
different than the TCT Bar Final Rule and the Proclamation Bar IFR. 
Many commenters submitted only a general reference to precedent issued 
in litigation regarding the Proclamation Bar IFR and the TCT Bar rules, 
without any discussion or consideration of the distinctions provided in 
the proposed rule. Some asserted that the proposed rule conflicts with 
or violates the injunctions issued regarding those rules, or that the 
existing injunction should apply to the proposed rule. Commenters also 
asserted that the proposed rule is similar to the TCT Bar rules and 
Proclamation Bar IFR and will cause confusion. An organization 
expressed concern that members of a certified class for purposes of 
injunctive relief, see Al Otro Lado, Inc. v. McAleenan, No. 17-CV-
02366-BAS-KSC, 2022 WL 3142610 (S.D. Cal. Aug. 5, 2022), would be 
subject to the rebuttable presumption. The commenter stated that 
application of the rebuttable presumption to such class members would 
likely violate the injunction in that case because that injunction

[[Page 31382]]

requires that the Departments apply ``pre-Asylum Ban practices for 
processing the asylum applications'' of class members. See id.
    Response: The Departments reiterate that this rule is materially 
different from the TCT Bar IFR and Final Rule and Proclamation Bar IFR. 
88 FR at 11738-39; see also Section IV.B.2.ii of this preamble. And 
contrary to commenter concerns, there is no risk of confusion because 
neither the TCT Bar nor the Proclamation Bar is in effect. Capital Area 
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020) 
(vacating the TCT Bar IFR); East Bay Sanctuary Covenant v. Barr, 964 
F.3d 832 (9th Cir. 2020) (enjoining the TCT Bar IFR); E. Bay Sanctuary 
Covenant v. Barr (``East Bay II''), 519 F. Supp. 3d 663, 668 (N.D. Cal. 
2021) (enjoining the TCT Bar Final Rule); East Bay III, 993 F.3d at 
681; see O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting 
the history of the litigation over the Proclamation Bar IFR and 
vacating it).\197\ As discussed later in Sections IV.E.9 and IV.E.10 of 
this preamble, removal of provisions implementing the TCT Bar Final 
Rule and the Proclamation Bar IFR is warranted. But even separate from 
the removal of provisions implementing those rules, the Departments 
respond that the litigation surrounding those rules does not mean that 
this distinct rule is invalid, unenforceable, or arbitrary and 
capricious.
---------------------------------------------------------------------------

    \197\ The district court in O.A. vacated the Proclamation Bar 
IFR for similar substantive reasons to those articulated in East Bay 
III. O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019). O.A. v. Trump 
is subject to a pending appeal that is presently held in abeyance. 
O.A. v. Biden, No. 19-5272 (D.C. Cir. Oct. 11, 2019). Similarly, in 
Al Otro Lado, Inc. v. Mayorkas, No. 17-cv-2366, 2022 WL 3970755 
(S.D. Cal. Aug. 23, 2022), a different district court issued an 
injunction relating to application of the TCT Bar rules that the 
Departments disagree with and have appealed. Al Otro Lado, Inc. v. 
Mayorkas, Nos. 22-55988, 22-56036 (9th Cir. Nov. 7, 2022).
---------------------------------------------------------------------------

    The Departments also disagree with the generalized comparisons 
between this rule and the Proclamation Bar IFR and the TCT Bar rules. 
88 FR at 11736. As stated in the NPRM, this rule is substantively 
distinct from the eligibility bars in those rules. The TCT Bar rules 
focused exclusively on the noncitizen's travel prior to entering the 
United States, see 85 FR at 82261-62, and the Proclamation Bar IFR 
imposed a strict eligibility bar for anyone entering outside a POE, see 
83 FR at 55935. In comparison, this rule is not a categorical bar on 
asylum eligibility, but instead is a rebuttable presumption, including 
several exceptions that are adjudicated on a case-by-case basis, for 
certain noncitizens who enter the United States without availing 
themselves of any of numerous lawful pathways during a temporary period 
of time. 88 FR at 11707, 11739-40; 8 CFR 208.33(a)(2) and (3), 
1208.33(a)(2) and (3). Notably, and contrary to claims by some 
commenters, the rule does not block access to asylum for those who need 
it most. Cf. East Bay I, 994 F.3d at 980. The rule contains exceptions 
to and ways to rebut the presumption, including several ways to avoid 
the presumption that account for protecting the safety of those fleeing 
imminent harm. In addition, the rule is intended to better manage 
already-strained resources, thereby protecting against overcrowding in 
border facilities and helping to ensure that the processing of migrants 
seeking protection in the United States is done in an effective, 
humane, and efficient manner. 88 FR at 11704, 11713-16, 11730. In that 
vein, as discussed in Sections IV.E.9 and IV.E.10 of this rule, the TCT 
Bar IFR and Final Rule and Proclamation Bar IFR pursued approaches and 
policies that differ in important respects from this rule. Compare TCT 
Bar IFR, 84 FR at 33831, and Proclamation Bar IFR, 83 FR at 55935, with 
88 FR at 11706-07. Moreover, this rule is designed to address a 
specific exigency that did not exist when the TCT Bar rules and 
Proclamation Bar IFR were promulgated. 88 FR at 11705-06.
    Second, this rule is not in conflict with or precluded by existing 
injunctions and court precedent relating to litigation surrounding 
those rules. See United States v. Cardales-Luna, 632 F.3d 731, 735 (1st 
Cir. 2011) (recognizing that ``a decision dependent upon its underlying 
facts is not necessarily controlling precedent as to a subsequent 
analysis of the same question on different facts and a different 
record'') (marks and citation omitted); Overseas Shipholding Group, 
Inc. v. Skinner, 767 F. Supp. 287, 296 (D.D.C. 1991) (noting that 
neither the law of the case nor stare decisis doctrines applied in ``an 
entirely separate rulemaking process''); cf. Associated Builders and 
Contractors, Inc. v. Brock, 862 F.2d 63, 67 (3d Cir. 1988) (considering 
the adequacy of notice of proposed rulemaking and concluding that an 
argument was foreclosed because a prior panel ``applied the law'' to 
facts that had ``not changed''). Procedurally, the injunctions issued 
against the TCT Bar rules and Proclamation Bar IFR were limited to the 
specific facts and specific rules at issue in those cases and do not 
bar the issuance of this materially distinct rule. See E. Bay Sanctuary 
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019) (enjoining 
the Departments ``from taking any action continuing to implement'' the 
TCT Bar IFR), affirmed by East Bay I, 994 F.3d at 988; East Bay II, 519 
F. Supp. 3d at 668 (enjoining the Departments ``from taking any action 
continuing to implement the [TCT Bar] Final Rule''); E. Bay Sanctuary 
Covenant v. Trump, 349 F. Supp. 3d 838, 868 (N.D. Cal. 2018), affirmed 
by East Bay III, 993 F.3d at 680-81; see also California v. Texas, 141 
S. Ct. 2104, 2115 (2021) (noting that remedies ``do not simply operate 
on legal rules in the abstract'') (quotation marks and citation 
omitted). Substantively, the opinions in those cases were limited to 
categorical eligibility bars premised on manner of entry or whether a 
noncitizen first sought asylum in another country, and this rule 
creates no such categorical bar. The more nuanced approach in this rule 
will have different effects and is premised on different factual 
circumstances and new reasoning, including an increased focus on 
available lawful pathways. 88 FR at 11739.
    Regarding the application of the proposed rule to Al Otro Lado 
injunction class members, as noted in the NPRM, the Departments do not 
view the permanent injunction in the Al Otro Lado litigation--see Al 
Otro Lado, Inc. v. Mayorkas, No. 17-CV-02366-BAS-KSC, 2022 WL 3970755 
(S.D. Cal. Aug. 23, 2022)--which they have appealed to the Ninth 
Circuit,\198\ as limiting the Departments' discretionary authority to 
apply new asylum limitations conditions consistent with section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), to the injunction 
class. See, e.g., Milliken v. Bradley, 433 U.S. 267, 281-82 (1977) 
(``The well-settled principle that the nature and scope of the remedy 
are to be determined by the violation means simply that federal-court 
decrees must directly address and relate to the [alleged wrongful 
conduct] itself.''); Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1480 
(9th Cir. 1994); see also, e.g., Thomas v. Cty. of Los Angeles, 978 
F.2d 504, 509 (9th Cir. 1992) (reversing injunction that ``fail[ed] to 
specify the act or acts sought to be restrained as required by'' 
Federal Rule of Civil Procedure 65(d)).\199\ In any

[[Page 31383]]

event, certain injunction class members whose cases are reopened or 
reconsidered under the Al Otro Lado injunction because they were 
removed following application of the TCT Bar may follow a DHS-
established process to request ``appropriate authorization to travel to 
the United States to seek parole, pursuant to a DHS-approved parole 
process,'' as outlined in 8 CFR 208.33(a)(2)(ii)(A), 
1208.33(a)(2)(ii)(A), to participate in renewed removal proceedings. 
Injunction class members who follow those procedures would thus not be 
subject to the rebuttable presumption.
---------------------------------------------------------------------------

    \198\ See Al Otro Lado, Inc. v. Mayorkas, Nos. 22-55988, 22-
56036 (9th Cir. Oct. 25, 2022)
    \199\ Further, the commenter's position that the Al Otro Lado 
injunction applies to this rule is inconsistent with Al Otro Lado 
Class Counsel's website: ``[T]he Biden Administration proposed a 
similar rule in February 2023, but the Al Otro Lado v. Mayorkas 
court order does not cover the new rule. The court order only 
applies to the rule implemented on July 16, 2019. See American 
Immigration Council, Your Rights Under Al Otro Lado v. Mayorkas, 
https://www.americanimmigrationcouncil.org/al-otro-lado-mayorkas 
(last visited Apr. 21, 2023).
---------------------------------------------------------------------------

    Comment: Many commenters noted that the courts, in addressing the 
TCT Bar rules and the Proclamation Bar IFR, held that the Departments 
could not promulgate a regulation that restricts access to asylum based 
on manner or location of entry into the United States or transit 
through a third country. Commenters similarly asserted, citing the 
Ninth Circuit's decision in East Bay III, that the proposed rule is not 
``consistent with'' section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), 
and also violates international law.
    Response: The holdings relating to the TCT Bar rules and the 
Proclamation Bar IFR do not undermine this rule. As discussed in 
Section IV.D.1.ii of this preamble, this rule does not conflict with 
the INA's safe-third-country and firm-resettlement bars. 88 FR at 
11736; see R-S-C, 869 F.3d at 1187 n.9. While the applicability of the 
rebuttable presumption of ineligibility turns in part on transit 
through a third country, 8 CFR 208.33(a)(1)(iii), 1208(a)(1)(iii), the 
ultimate eligibility decision requires case-by-case evaluation of 
whether an exception applies and whether the noncitizen rebutted the 
presumption. 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3); cf. 
East Bay I, 994 F.3d at 982-83 (indicating that the Departments cannot 
rely ``solely'' on a noncitizen's decision not to seek asylum in a 
third country in denying their asylum application in the United 
States).
    Regarding the Proclamation Bar, East Bay III enjoined a categorical 
entry bar as inconsistent with the statutory provision allowing 
``migrants arriving anywhere along the United States's border'' to 
apply for asylum. 993 F.3d at 669. Unlike the Proclamation Bar IFR, 
this rule involves a rebuttable presumption that includes consideration 
of numerous factors unrelated to the manner of entry, including transit 
through a third country. 88 FR at 11707; 8 CFR 208.33(a)(1)(iii), (2) 
and (3), 1208.33(a)(1)(iii), (2) and (3). And, as discussed in Section 
IV.D.1.i of this preamble, the rule is consistent with INA section 208, 
8 U.S.C. 1158. See 88 FR at 11707, 11740; 8 CFR 208.33(a)(2), 
1208.33(a)(2) (providing for exceptions to applicability of the 
rebuttable presumption); 8 CFR 208.33(a)(3), 1208.33(a)(3) (providing 
ways to rebut the presumption of ineligibility). The provided lawful 
pathways, third country transit components, exceptions to the 
presumption, and the fact-intensive, case-by-case analysis for 
rebutting the presumption demonstrate that the condition imposed by 
this rule is distinct from the ``categorical ban'' enjoined in East Bay 
III, 993 F.3d at 669-70. Notwithstanding this distinction, the 
Departments reiterate that they disagree with the holding in East Bay 
III that the Proclamation Bar IFR was inconsistent with section 208(a) 
of the INA, 8 U.S.C. 1158(a). 88 FR at 11739; see E. Bay III, 993 F.3d 
at 670; see also Section IV.D.1.i of this preamble.
    The rule also does not violate the United States' obligations under 
international treaties. As discussed in Section IV.D.3 of this 
preamble, the rule is not a penalty based on manner of entry and does 
not violate treaty commitments regarding non-refoulement. The 
Departments also disagree with the decision in East Bay III on this 
point as applied to the Proclamation Bar IFR. 88 FR at 11739; see East 
Bay III, 993 F.3d at 672-75. In any event, East Bay III does not render 
this rule unlawful. In East Bay III, the Ninth Circuit determined that 
the Proclamation Bar IFR ``ensure[d] neither'' ``the safety of those 
already in the United States'' nor ``the safety of refugees,'' which 
were the purposes behind the asylum bars in the INA and in the Refugee 
Convention. 993 F.3d at 673. Conversely, as explained in the NPRM, a 
purpose of this rule is to reduce reliance on dangerous routes to enter 
the United States used by criminal organizations and smugglers, thus 
protecting the safety of refugees. 88 FR at 11707. Furthermore, one of 
the enumerated categories for rebutting the presumption in the rule is 
demonstrating that the noncitizen faced an imminent and extreme threat 
to life or safety at the time of entry into the United States. 8 CFR 
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Ninth Circuit's concerns 
are therefore not present in this rule.
    Comment: Relying on cases enjoining the TCT Bar rules and the 
Proclamation Bar IFR, commenters asserted that the proposed rule is 
invalid because the condition in the proposed rule is unrelated to the 
merits of the asylum claim.
    Response: The Departments disagree that the cases involving the TCT 
Bar rules demonstrate that this rule is invalid. As discussed in 
Section IV.D.1.i of this preamble, the INA provides the Departments 
with the authority to impose limitations or conditions on asylum 
eligibility. INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), 
(d)(5)(B). But the statute neither qualifies what types of limitations 
or conditions may be imposed--except insofar as such limitations or 
conditions must be consistent with the INA--nor states that any such 
limitations or conditions must relate to whether the noncitizen has 
demonstrated or can demonstrate that they meet the definition of a 
refugee under section 101(a)(42)(A) of the INA, 8 U.S.C. 
1101(a)(42)(A). Indeed, several of the statutory restrictions on asylum 
eligibility are unrelated to whether the noncitizen has established 
that they are a refugee within the meaning of section 101(a)(42)(A) of 
the INA, 8 U.S.C. 1101(a)(42)(A). See, e.g., INA 208(b)(2)(A)(i), 8 
U.S.C. 1158(b)(2)(A)(i) (participating in the persecution of others); 
INA 208(b)(2)(A)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) (reasonable grounds 
for considering the noncitizen a danger to the security of the United 
States). And section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), 
provides for the promulgation of ``additional limitations and 
conditions.'' (emphasis added). The existence of exceptions and 
conditions that are unrelated to the refugee definition both 
demonstrates that it is lawful for the Departments to promulgate this 
condition on asylum eligibility and undermines the Ninth Circuit's 
limitation on scope of any regulatory condition. E. Bay I, 994 F.3d at 
979. There is no basis to assume that Congress intended to circumscribe 
the scope of limitations or conditions that the Departments can 
promulgate when the statute does not do so and Congress itself provided 
for exceptions unrelated to the meaning of ``refugee'' in section 
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). R-S-C, 869 F.3d at 1187 n.9 
(rejecting a statutory construction that would circumscribe the type of 
limitations or conditions promulgated under section 208(b)(2)(C) of the 
INA, 8 U.S.C. 1158(b)(2)(C), because such restrictions ``would render 
[section] 1158(b)(2)(C) meaningless, disabling the Attorney General 
from adopting further

[[Page 31384]]

limitations while the statute clearly empowers him to do so.'').
    In addition, the rule is not precluded by either East Bay I or East 
Bay III. Neither of these decisions require that a condition on asylum 
eligibility relate to the definition of refugee under section 
101(a)(42)(A), 8 U.S.C. 1158(a)(42)(a). Accordingly, the injunctions 
and vacatur decisions relating to the TCT Bar rules and the 
Proclamation Bar do not render this rule unlawful.
3. International Law
    Comment: Commenters expressed concern that the NPRM, if finalized, 
would violate the United States' non-refoulement obligations under 
international law, including Article 33 of the Refugee Convention, 
which the commenters generally explained as prohibiting the return of 
asylum seekers to a country where their lives or freedom would be 
threatened on account of a protected ground. Specifically, commenters 
voiced apprehension that the NPRM would ``bar'' most protection-seeking 
noncitizens from being eligible for asylum, leaving them able to apply 
only for statutory withholding of removal or CAT protection. Commenters 
predicted that many noncitizens would not be able to satisfy the 
comparatively higher standards of proof for statutory withholding and 
CAT claims and that, in turn, would lead to the refoulement of persons 
who, if not for the NPRM's ``bar'' to asylum eligibility, would have 
been granted asylum.
    Applying similar reasoning, some commenters raised that the 
proposed rule may violate Article 3 of the CAT, which prohibits state 
parties from returning people to a country where there is sufficient 
likelihood that they would be tortured. One commenter stated that 
conditioning asylum based on manner of entry would be in violation of 
the CAT.
    Commenters also argued the rule conflicted with other provisions of 
the Refugee Convention and Protocol. Commenters noted that Article 31 
of the Refugee Convention prohibits states from imposing improper 
penalties for irregular entry, which commenters argued included 
administrative penalties and limits on access to asylum. Commenters 
also stated the proposed rule would violate Article 3, which prohibits 
non-discrimination, and Article 16, which protects refugees' access to 
the courts. One commenter stated that the proposed rule is more 
expansive than the Refugee Convention's exclusion for migrants who 
secured residency or status in another country.
    Relatedly, several commenters pointed to United Nations High 
Commissioner for Refugees (``UNHCR'') statements and guidance 
interpreting the Refugee Convention and the Refugee Protocol. 
Specifically, commenters pointed to UNHCR guidance interpreting those 
documents as providing that asylum seekers are not required to apply 
for protection in the first country where protection is available. 
Further, commenters noted that UNHCR interprets those documents as not 
requiring refugees to be returned to a country through which they 
transited. Commenters further noted UNHCR's positions that asylum 
should not be refused only on the basis that it could have been sought 
in another country and that asylum seekers should not be required to 
seek protection in a country to which they have no established links. A 
commenter also noted that UNHCR has repeatedly denounced attempts to 
impose similar bans, and that such rules undermine international human 
rights and refugee law, because the right to seek asylum is a human 
right regardless of the person's origin, immigration status, or manner 
of arrival at the border.
    Several commenters also argued that the rule violated the United 
States' obligations under other international documents. Some 
commenters simply made a general assertion that the rule would violate 
international treaties and degrade the United States' international 
standing. Several commenters stated that the proposed rule is contrary 
to the Universal Declaration of Human Rights (``UDHR''). Commenters 
argued that the UDHR protects the right to seek asylum, and that any 
restriction or limitation to access asylum is a violation of the letter 
and spirit of the UDHR. Other commenters stated that the rule violated 
the United Nations Convention on the Rights of the Child (``CRC'') 
because it did not provide for a robust, individualized assessment of a 
child's asylum claim. One commenter stated that the rule would place 
migrant children and their families at a higher risk of exploitation 
and trafficking, in contravention of obligations pursuant to the 
Optional Protocol on the Sale of Children and the Protocol to Prevent, 
Suppress and Punish Trafficking in Persons, Especially Women and 
Children (``The Palermo Protocol''). Another commenter contended the 
rule violates Article 7 of the International Covenant on Civil and 
Political Rights (``ICCPR''), which forbids subjecting individuals to 
``torture or to cruel, inhuman or degrading treatment or punishment,'' 
and violates Article 12, which confirms the rights of individuals to 
leave any country. Several commenters claimed that the rule would 
violate anti-discrimination principles in a variety of agreements and 
declarations including the ICCPR, International Convention on the 
Elimination of All Forms of Racial Discrimination (``ICERD''), the 
American Declaration on the Rights and Duties of Man, Vienna 
Declaration, and San Jose Action Statement. Another commenter stated 
the proposed rule violates the right to life, human dignity, and 
equality before the law in the ICCPR because the proposed rule was 
``discriminatory'' and establishes ``great inequality.'' Commenters 
also claimed conflicts with treaties including Article 6 of the Rome 
Statute of International Criminal Court, which prohibits genocide, and 
Article 32 of the Geneva Convention.
    Response: This rule is consistent with the United States' 
obligations under international law. Three primary documents govern the 
rights of refugees and corresponding obligations of states in 
international law: the Refugee Convention; the Refugee Protocol, which 
incorporates Articles 2 through 34 of the Refugee Convention; and the 
CAT. Together, these documents provide a framework for states to 
provide protection to migrants fleeing persecution or torture and 
establish the principle of non-refoulement, which prohibits states from 
returning refugees to territories in specific circumstances. While the 
United States is a party to the Refugee Protocol and the CAT, these 
treaties are not directly enforceable in U.S. law. See INS v. Stevic, 
467 U.S. 407, 428 & n.22 (1984); Al-Fara v. Gonzales, 404 F.3d 733, 743 
(3d Cir. 2005) (``The 1967 Protocol is not self-executing, nor does it 
confer any rights beyond those granted by implementing domestic 
legislation.''). Instead, the United States has implemented its 
obligations through domestic legislation and implementing regulations, 
and the Protocol ``serves only as a useful guide in determining 
congressional intent in enacting the Refugee Act.'' Barapind v. Reno, 
225 F.3d 1100, 1107 (9th Cir. 2000). The Refugee Convention's non-
refoulement obligation is contained in Article 33.1, which prohibits 
contracting states from returning a refugee to a territory ``where his 
life or freedom would be threatened'' on account of an enumerated 
ground. The United States has implemented the non-refoulement 
provisions of Article 33.1 of the Refugee Convention through the 
withholding of removal provisions at section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3), rather than through the

[[Page 31385]]

asylum provisions at section 208 of the INA, 8 U.S.C. 1158. See 
Cardoza-Fonseca, 480 U.S. at 429, 440-41. The CAT's non-refoulement 
provision is in Article 3, which prohibits the return of a person to a 
country where there are ``substantial grounds for believing'' the 
person will be tortured. The United States implemented its obligations 
under the CAT through regulations. See Foreign Affairs Reform and 
Restructuring Act of 1998 (``FARRA''), Public Law 105-277, sec. 
2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note); 8 CFR 
208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, 1208.18. The rule does 
not change or limit eligibility for statutory withholding of removal or 
CAT protection. Instead, applicants subject to the rule's rebuttable 
presumption will be screened for eligibility for statutory withholding 
of removal and CAT protection under a reasonable possibility standard. 
As explained earlier in Section IV.D.1.iii of this preamble, the 
reasonable possibility standard is the same standard that has been used 
to ensure the United States complies with its non-refoulement 
obligations under international law in withholding-only proceedings for 
decades.
    The rule's rebuttable presumption will limit asylum eligibility for 
some noncitizens. But as the Supreme Court has explained, asylum ``does 
not correspond to Article 33 of the Convention, but instead corresponds 
to Article 34,'' which provides that contracting countries ``shall as 
far as possible facilitate the assimilation and naturalization of 
refugees.'' Cardoza-Fonseca, 480 U.S. at 441 (quotation marks omitted). 
Article 34 ``is precatory; it does not require the implementing 
authority actually to grant asylum to all those who are eligible.'' Id. 
Because application of the presumption does not affect eligibility for 
statutory withholding of removal or protection under the CAT 
regulations, the rule is consistent with U.S. non-refoulement 
obligations under the Refugee Protocol (incorporating, inter alia, 
Article 33 of the Refugee Convention) and the CAT. See R-S-C, 869 F.3d 
at 1188 n.11 (explaining that ``the Refugee Convention's non-
refoulement principle--which prohibits the deportation of aliens to 
countries where the alien will experience persecution--is given full 
effect by the Attorney General's withholding-only rule''); Cazun v. 
U.S. Att'y Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia 
v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016).
    The Departments agree that asylum is an important protection in 
international law and acknowledge that the right to seek asylum has 
been recognized under the UDHR, Art. 14, G.A. Res. 217A (III), U.N. 
Doc. A/810 (1948). The UDHR is a non-binding human rights resolution of 
the UN General Assembly, and thus it does not impose legal obligations 
on the United States. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 
(2004) (``[T]he [UDHR] does not of its own force impose obligations as 
a matter of international law.''). Instead, the right enshrined in the 
UDHR--``to seek and to enjoy in other countries asylum from 
persecution,'' UDHR, Art. 14, G.A. Res. 217A (III), U.N. Doc. A/810 
(1948)--is also reflected in the non-refoulement provisions of the 
Refugee Protocol and the CAT. As previously explained, the rule does 
not impact eligibility for statutory withholding of removal or CAT 
protection, and accordingly does not implicate the United States' non-
refoulement obligations. Moreover, the rebuttable presumption in the 
rule does not prohibit any person from seeking asylum, statutory 
withholding of removal, or CAT protection. Instead, the rule creates a 
condition on eligibility for asylum by creating a rebuttable 
presumption of ineligibility for those who neither avail themselves of 
a lawful pathway to the United States nor apply for asylum or seek 
other protection, and await a decision thereon, in a country they 
travel through. The rule similarly does not bar those seeking asylum 
from procedures that protect them from refoulement. All noncitizens 
processed for expedited removal who express a fear of return are 
entitled to a credible fear interview. As with any eligibility 
criteria, the presumption will apply in some cases to limit eligibility 
for noncitizens based on the individual circumstances presented, 
including at the credible fear stage. Even in those cases where the AO 
determines that the noncitizen cannot demonstrate a significant 
possibility of being granted asylum because the presumption has not 
been rebutted, the noncitizen may still demonstrate credible fear by 
showing a reasonable possibility of persecution or torture. Similarly, 
after applying for asylum before an IJ, if the presumption has not been 
rebutted, noncitizens may still demonstrate eligibility for statutory 
withholding of removal or CAT protection.
    The rule is also consistent with the Refugee Convention and the 
corresponding obligations under international law, including specific 
provisions cited by commenters. The rule does not violate the non-
discrimination requirement in Article 3 of the Refugee Convention. 
Article 3 prohibits discrimination on the basis of ``race, religion or 
country of origin.'' The rule does not discriminate on the basis of any 
of these protected characteristics. Instead, it is a rule of equal 
application based on the actions of the noncitizen. The application of 
the rule is limited to those circumstances where the noncitizen who is 
not excepted from its coverage has neither utilized an available lawful 
pathway nor sought protection and received a decision denying 
protection in a country traveled through, and cannot demonstrate that 
the failure to do was excusable under the rule or otherwise rebut the 
presumptive ineligibility. For the same reason, the rule does not 
violate other anti-discrimination requirements in international law, 
including the ICERD, Dec. 21, 1965, 660 U.N.T.S. 195, 212, and the 
ICCPR, Dec. 16, 1966, 999 U.N.T.S. 171.
    Neither is the rule inconsistent with Article 16 of the Refugee 
Convention. Article 16 establishes that refugees should be given ``free 
access to the courts,'' and in the country of a refugee's habitual 
residence, access should be equivalent to that of a national. This 
enshrines the right of the refugee to sue and be sued in practice--not 
merely in name--by removing barriers to participating in court such as 
access to government-provided counsel (where the government otherwise 
provides it), ensuring court fees are not higher for refugees than 
nationals, and prohibiting cautio judicatum solvi, the practice of 
requiring a bond for the costs of litigation as a pre-requisite to 
filing a complaint. See Refugee Convention, Art. 16, Travaux 
Pr[eacute]paratoires & Commentaries. These rights are not implicated by 
the rule.
    Similarly, the rule is not inconsistent with Article 31 of the 
Refugee Convention, which prohibits states from ``impos[ing] 
penalties'' on refugees based on ``illegal entry or presence.'' As the 
commentary to the Refugee Convention explains, the term ``penalties'' 
in Article 31 refers ``to administrative or judicial convictions on 
account of illegal entry or presence, not to expulsion.'' Refugee 
Convention Art. 31, commentary; see Cazun v. Att'y Gen. U.S., 856 F.3d 
249, 257 & n.16 (3d Cir. 2017) (rejecting argument that the 
reinstatement bar to asylum was a ``penalty'' within the meaning of 
Article 31). The rule does not change any rules or policies relating to 
detention or convictions for unlawful entry or presence. The 
Departments acknowledge that the Ninth Circuit concluded in East Bay 
III, 993 F.3d at 674, that the bar to asylum at issue in that case 
violated Article 31 of the

[[Page 31386]]

Refugee Convention because it imposed a ``penalty.'' As described in 
the NPRM, the rule here does not create a categorical bar to asylum, 
but instead a rebuttable presumption, and East Bay III accordingly does 
not address the lawfulness of this rule. 88 FR at 11739. Moreover, the 
Ninth Circuit's conclusion was erroneous because the denial of 
discretionary relief is not a penalty within the meaning of Article 31. 
Id.
    Some commenters correctly observed that the Refugee Convention does 
not require refugees to apply for asylum in the first country they pass 
through. This rule, however, does not require noncitizens to apply for 
asylum in the first--or any--country through which they travel. 
Instead, the rule applies a rebuttable presumption to certain 
noncitizens who failed to avail themselves of a lawful pathway. One 
such pathway is to apply for asylum and receive a final denial in a 
transit country, but it is not the sole lawful pathway available. 
Noncitizens who fail to avail themselves of a lawful pathway may still 
rebut the presumption of ineligibility for asylum. Regardless, the 
Convention does not require the United States to grant asylum to every 
person who qualifies as a ``refugee'' under the INA; instead, the 
United States implements the Convention's prohibitions on refoulement 
through statutory withholding of removal. UNHCR has stated that ``the 
primary responsibility to provide protection rests with the State where 
asylum is sought.'' \200\ But UNHCR also acknowledges that ``refugees 
do not have an unfettered right to choose their `asylum country.' '' 
\201\
---------------------------------------------------------------------------

    \200\ UNHCR, Guidance Note on bilateral and/or multilateral 
transfer arrangements of asylum-seekers, para. 3(i) (May 2013), 
http://www.refworld.org/docid/51af82794.html.
    \201\ UNHCR, Legal Considerations Regarding Access to Protection 
and a Connection Between the Refugee and the Third Country in the 
Context of Return or Transfer to Safe Third Countries, at 1 (Apr. 
2018), https://www.refworld.org/pdfid/5acb33ad4.pdf.
---------------------------------------------------------------------------

    In any event, UNHCR's interpretations of or recommendations 
regarding the Refugee Convention and Refugee Protocol are ``not binding 
on the Attorney General, the BIA, or United States courts.'' INS v. 
Aguirre-Aguirre, 526 U.S. 415, 427 (1999). ``Indeed, [UNHCR's Handbook 
on Procedures and Criteria for Determining Refugee Status] itself 
disclaims such force, explaining that `the determination of refugee 
status under the 1951 Convention and the 1967 Protocol . . . is 
incumbent upon the Contracting State in whose territory the refugee 
finds himself.' '' Id. at 427-28 (quoting Cardoza-Fonseca, 480 U.S. at 
439 n. 22). Such guidance ``may be a useful interpretative aid,'' id. 
at 427, but it does not create obligations for the United States.
    The rule similarly does not violate the United States' obligations 
under other international laws and treaties, including the Geneva 
Conventions, the Rome Statute, the ICCPR, the CRC, or customary 
international law. First, the Geneva Conventions, a series of treaties 
that regulate the conduct of armed conflict, have no bearing on the 
rule. Commenters pointed to Articles 32 and 33 of the Fourth Geneva 
Convention, which prohibit corporal punishment or mass punishment 
against protected persons. Geneva Convention Relative to the Protection 
of Civilian Persons in Time of War (``Fourth Geneva Convention''), 12 
Aug. 1949, 75 UNTS 287. Under Article 4, ``protected persons'' are 
limited to those who, during a conflict or occupation, are ``in the 
hands of a Party to the conflict or Occupying Power.'' As the rule does 
not implicate a conflict or occupation, there is no conflict with the 
Geneva Conventions. While at least one commenter pointed to the 
definition of genocide in Article 6 of the Rome Statute, the United 
States is not a party to and has no obligations pursuant to the Rome 
Statute. In any event, the rule plainly does not constitute or involve 
genocide in any way. See Rome Statute of the International Criminal 
Court, United Nations Diplomatic Conference of Plenipotentiaries on the 
Establishment of an International Criminal Court, July 17, 1998, U.N. 
Doc. A/CONF.183/9 (1998). Similarly, the United States has not ratified 
the CRC and thus has no obligations under that instrument, 1577 
U.N.T.S. 3, reprinted in 28 I.L.M. 1448, 1456 (Nov. 20, 1989).\202\ 
Again, even if considered customary international law--although the 
United States maintains that it is not--the CRC requires only that 
States take appropriate measures to protect children who are refugees. 
See CRC, Article 22. The rule accounts for the interests of children 
through creating robust screening procedures, exempting unaccompanied 
children from the application of the rule, having a family unity 
exception, and exempting certain noncitizens who enter as children from 
ongoing application of the presumption after the two-year period. 
Additionally, the adjudicator may consider on a case-by-case basis 
whether the child's situation presents exceptionally compelling 
circumstances, including considering the circumstances surrounding the 
child's manner of entry, thus rebutting the presumption.
---------------------------------------------------------------------------

    \202\ See Status of Ratification, Office of the High 
Commissioner for Human Rights, https://indicators.ohchr.org/.
---------------------------------------------------------------------------

4. Recent Executive Orders
    Comment: Some commenters stated without explanation that the rule 
is contrary to Executive Order 14012, Restoring Faith in Our Legal 
Immigration Systems and Strengthening Integration and Inclusion Efforts 
for New Americans, 86 FR 8277 (Feb. 2, 2021). Other commenters stated 
that to restore faith in the U.S. asylum system as the Executive Order 
aims to do, the ``government'' should take various steps, including 
``adequately fund[ing] a fair asylum system'' rather than ``wast[e] 
money on immigration enforcement that separates families, traumatizes 
children, and tears our communities apart.'' Commenters further stated 
that the Administration should end the use of expedited removal, 
increase the scale and pace of refugee admissions, and expand lawful 
pathways for people ``fleeing from countries with failed government and 
uncontrolled violence.'' On the other hand, some commenters were 
critical of the rule because they believed it was not strict enough 
and, accordingly, averred that the rule is consistent with the 
Executive Order because it will ``remov[e] barriers to immigration.''
    Response: As a threshold matter, Executive Order 14012 does not 
require DOJ or DHS to adopt any specific policies but rather to (1) 
identify barriers that impede access to immigration benefits and fair, 
efficient adjudications of these benefits and make recommendations on 
how to remove these barriers; (2) identify any agency actions that fail 
to promote access to the legal immigration system and recommend steps, 
as appropriate and consistent with applicable law, to revise or rescind 
those agency actions; (3) submit a plan describing the steps they will 
take to advance these policies; and (4) submit reports regarding 
implementation of those plans. 86 FR 8277. Because Executive Order 
14012 does not require the adoption of specific policies, the actions 
taken here do not violate that Executive Order.
    To the extent commenters believe that the rule is inconsistent with 
Executive Order 14012, the Departments disagree. Consistent with 
Executive Order 14012's promotion of removing barriers to accessing 
immigration benefits and access to the legal immigration system, DHS 
has created multiple parole processes to provide certain migrants with 
pathways to temporarily enter and remain in the United States. During

[[Page 31387]]

those periods of stay, those noncitizens may seek asylum and related 
protection or other benefits for which they may be eligible. The rule 
furthers the policy discussed in the Executive Order by encouraging 
noncitizens to use those parole processes, as well as the CBP One app 
to enter the United States through a safe, orderly process. This rule 
also discourages unlawful border crossings that overwhelm limited 
government resources along the SWB. The Departments believe that there 
will be efficiency gains from having noncitizens pre-register for 
appointments--saving considerable processing time--and from decreased 
encounters between POEs with persons who claim a fear of persecution or 
torture, the processing of whom requires more resources than processing 
noncitizens who pursue a lawful pathway. It is correct that 
implementing the rule will increase the duration of some credible fear 
screenings. However, the Departments expect that fewer individuals with 
non-meritorious claims will receive positive screening determinations, 
which will result in a more efficient asylum system overall.
    The Departments acknowledge commenters' recommendations to provide 
additional funding for the asylum system and end expedited removal. 
Both of those actions are outside the Departments' authority and would 
require congressional action. Ending the use of expedited removal in 
the absence of congressional action is outside the scope of this 
rulemaking. The Departments have considered commenters' recommendation 
of adding lawful pathways for people leaving countries with failed 
governments. This rule does not create any lawful pathways and thus the 
comment is outside the scope of this rulemaking.
    Comment: Commenters expressed concern that the rule is inconsistent 
with Executive Order 14010, 86 FR 8267, because they believe it 
contradicts the instruction to develop policies and procedures for the 
safe and orderly processing of asylum claims at the U.S. land borders. 
Commenters stated that rather than developing policies for the safe and 
orderly processing of asylum claims, the rule instead would restrict 
the availability of asylum in a way that would make it impossible for 
most asylum seekers to access the asylum system. Commenters further 
asserted that rather than restoring faith in the U.S. asylum system, 
the rule attempts to ``deport refugees to danger based on manner of 
entry and transit in circumvention of existing refugee law and treaty 
obligations.'' Commenters also suggested that the rule resurrects the 
PACR and HARP programs that the Executive Order ended.
    Commenters also criticized the Departments for not following ``the 
collaborative process called for in'' the Executive Order. 
Specifically, commenters stated that Departments have failed to 
``follow Executive Order 14010's mandate to consult with affected 
organizations'' as they are unaware of any ``consultation or planning'' 
that has occurred between when the Executive Order was issued and the 
publication of the NPRM.
    Response: The Departments disagree with these commenters because 
the rule, as directed by Executive Order 14010, encourages use of 
lawful pathways to enter the United States, which will foster safe, 
orderly, and more efficient processing of asylum claims for those 
individuals seeking asylum, while discouraging unlawful border 
crossings that overwhelm limited resources and unfairly delay the 
adjudication of meritorious claims for asylum and other forms of 
protection. The rule is designed to incentivize noncitizens to avail 
themselves of a lawful pathway to enter the United States, which allows 
for more efficient use of DHS resources. By incentivizing the pursuit 
of lawful pathways, the Departments are promoting safe and orderly 
processing along the SWB as Executive Order 14010 instructs--processing 
that seeks to minimize the role of criminal organizations that 
prioritize profits over migrants' lives.
    The Departments disagree with commenters that the rule resurrects 
PACR and HARP. Those programs were developed by DHS to promptly address 
credible fear claims of single adults and family units while the 
noncitizens remained in CBP custody.\203\ This rule, in contrast, does 
not change the timeline for credible fear screenings. Nor does it 
affect where noncitizens are located during such screenings. Thus, 
commenters' comparisons to PACR and HARP are misplaced.
---------------------------------------------------------------------------

    \203\ See Mem. of Law in Opp'n to Pls.'s Mot. for Summ. J. & in 
Supp. of Defs.' Cross-Mot. for Summ. J. at 8-11, Las Ams. Immigrant 
Advoc. Ctr. v. Wolf, No. 19-cv-3640 (D.D.C. Feb. 6, 2020).
---------------------------------------------------------------------------

    Commenters are similarly mistaken regarding DHS's responsibilities 
under the Executive Order. Commenters are correct that the Executive 
Order instructed the Secretary and Director of the CDC, ``in 
coordination with the Secretary of State, . . . [to] promptly begin 
consultation and planning with international and non-governmental 
organizations to develop policies and procedures for the safe and 
orderly processing of asylum claims at United States land borders, 
consistent with public health and safety and capacity constraints.'' 86 
FR at 8269. DHS has worked with NGOs to implement the exceptions to the 
Title 42 public health Order and continues to seek collaboration 
through seeking comment on this rule.
    Comment: Some commenters stated that the rule violates Executive 
Order 14011, Establishment of Interagency Task Force on the 
Reunification of Families, 86 FR 8273 (Feb. 2, 2021), and amounts to 
the legalization of family separation, in contravention of that 
Executive Order.
    Response: In Executive Order 14011, President Biden announced the 
creation of a task force to identify children who were separated from 
their families between January 20, 2017, and January 20, 2021, and, 
among other things, to the greatest extent possible, facilitate and 
enable the reunification of those children with their families. 86 FR 
at 8273. In doing so, President Biden stated that his Administration 
``will protect family unity and ensure that children entering the 
United States are not separated from their families, except in the most 
extreme circumstances where a separation is clearly necessary for the 
safety and well-being of the child or is required by law.'' Id. The 
rule is consistent with this policy statement. The rule includes 
multiple provisions aimed at ensuring that families who enter the 
United States from Mexico at the SWB or adjacent coastal borders are 
not inadvertently separated. For example, where an exception or 
rebuttal circumstance applies to one member of a family, it is applied 
to all members of the family. See 8 CFR 208.33(a)(2)(ii), (3)(i), 
1208.33(a)(2)(ii), (3)(i). And where asylum is denied to a noncitizen 
because of the presumption of ineligibility but one member of the 
noncitizen's family who traveled with the noncitizen obtains protection 
from removal through statutory withholding of removal or CAT, the 
circumstance will be deemed exceptionally compelling for the noncitizen 
denied such relief, allowing the family to remain together. See 8 CFR 
1208.33(c). Finally, as described in Section IV.E.7.ii of this 
preamble, the Departments have expanded the family unity provision to 
cover spouses and children who would be eligible to follow to join the 
applicant if that applicant were granted asylum, as described in 
section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A). 8 CFR 
1208.33(c). Such measures were adopted in accordance with Executive 
Order 14011 to ensure that family units will not be separated as a 
result of this rule.

[[Page 31388]]

    Comment: Commenters stated that the Departments should take into 
account Executive Order 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government, 86 FR 7009 
(Jan. 20, 2021), and the more recent Executive Order 14091, Further 
Advancing Racial Equity and Support for Underserved Communities Through 
the Federal Government, 88 FR 10825 (Feb. 16, 2023), and stated that 
the agencies have not considered these underserved populations and that 
this rule is evidence that these Executive Orders were not considered 
in the rule-making process. Commenters more broadly criticized the rule 
as ``betraying promises'' made in the Executive Orders because they 
believe the rule will have a disproportionate effect on certain groups 
of noncitizens and argued that the rule is generally out of line with 
the Executive Orders. Commenters also suggested that ``[o]verly relying 
on the [CBP One] app . . . will significantly thwart the Biden 
administration's stated commitment to racial justice and equity.'' 
Commenters further stated that the rule undermines the commitment in 
the Executive Orders and ``will endanger Black, Brown, and Indigenous 
asylum seekers.'' Commenters asserted that the rule ``will perpetuate 
systemic and institutional racism and injustice,'' noting concerns 
about the accessibility of the CBP One app for those who speak 
languages other than English, Spanish, and Haitian Creole; ``the app's 
widely reported misidentification of people of color''; the 
exacerbation of ``existing discrepancies in outcome[s] for individuals 
without legal representation''; and the ``further solidif[ication of] 
inequities and injustice in our immigration system.''
    Response: On President Biden's first day in office, January 20, 
2021, he issued Executive Order 13985. On February 16, 2023, he issued 
Executive Order 14091, which reiterated the policy goals detailed in 
Executive Order 13985 and discussed the ways in which those policy 
goals had been furthered since that Executive Order. Both Executive 
Orders describe President Biden's policy of ``advancing equity for all, 
including communities that have long been underserved, and addressing 
systemic racism in our Nation's policies and programs.'' 88 FR at 
10825. As discussed throughout this preamble, the Departments have 
designed the rule to include a tailored rebuttable presumption in order 
to address a specific problem along the SWB. As discussed in Section 
IV.B.4.vi of this preamble, the Departments do not have any 
discriminatory purpose in adopting the rule. The Departments have 
addressed concerns about the disparate impact of the rule on various 
communities in Section IV.B.4 of this preamble, the concerns relating 
to the CBP One app's liveness software are addressed in Section 
IV.E.3.ii of this preamble, and concerns about pro se individuals are 
discussed in Section IV.B.5.ii of this preamble. Finally, as discussed 
in Section IV.E.3 of this preamble, the rule provides an exception to 
the application of the rebuttable presumption for those who appear at a 
POE without a pre-scheduled appointment and for whom scheduling an 
appointment was impossible due to a language barrier. See 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
5. Other Comments on Legal Authority
    Comment: One commenter noted that the proposed rule ``is not a 
legislative act'' and is instead subject to the Administrative 
Procedure Act, but ``the persons to whom the rule applies are excluded 
from appearing within the USA to challenge the administrative 
requirement for exhaustion of remedies.''
    Response: The Departments agree that this rule is not a legislative 
act but instead the promulgation of agency regulations pursuant to the 
APA. The Departments disagree that the rule implicates or changes the 
exhaustion requirements in administrative law. The Departments note 
that the rule does not apply to noncitizens in other countries; the 
rule only applies to noncitizens who enter the United States and 
thereafter file applications for asylum. Put differently, it will only 
apply to noncitizens within the United States, who are not precluded 
from filing an APA challenge by virtue of being outside of the United 
States, but who may be limited in the types of challenges they can 
bring to its application during the credible fear process under section 
242(e) of the INA, 8 U.S.C. 1252(e). The Departments further note that 
noncitizens who avail themselves of a lawful pathway to enter the 
United States will not otherwise need to address the provisions of this 
rule, as any subsequently filed asylum application will not be subject 
to the rebuttable presumption. Any noncitizen subject to the rebuttable 
presumption will be able to address its application to them and any 
applicable exceptions or rebuttal grounds before an AO or IJ, and in 
any available administrative appeal. Thus, the commenter's concern 
about being able to bring an APA challenge from a foreign jurisdiction 
are unfounded.
    Comment: Commenters stated that litigation over and injunctions 
against the rule would only exacerbate the confusion at the SWB.
    Response: As explained previously in Section IV.D of this preamble, 
the Departments believe this rule is lawful and that it should not be 
subject to an injunction or otherwise halted in litigation. To the 
extent it is possible that the rule will be halted or enjoined, the 
Departments believe the risks are outweighed by the need to ensure safe 
and orderly processing at the SWB.
    Comment: Commenters stated that the proposed rule was silent as to 
retroactive applicability and urged the Departments to ``make an 
affirmative pronouncement'' that the rule will not apply retroactively. 
Commenters were specifically concerned about the rule applying to 
``anyone whose latest entry into the United States was prior to the 
effective date(s) of the rule,'' which commenters stated is required by 
section 551(4) of the APA, 5 U.S.C. 551(4). Commenters further raised 
concerns that application of the rule to those who enter before its 
effective date would ``infringe upon due process rights.''
    Response: As written, the rule will not apply to anyone who enters 
the United States before the rule is effective. The Departments believe 
the NPRM's proposed language and the final language in this rule 
clearly provide that the rebuttable presumption may only be applied to 
those who enter the United States between the rule's effective date and 
a date 24 months later. See 8 CFR 208.13(f), 208.33(a)(1)(i), 
1208.13(f), 1208.33(a)(1)(i). The Departments decline to address the 
applicability or requirements of due process or the APA in this regard 
because the rule is explicit that it is only potentially triggered by 
entries that take place after its effective date.
    Comment: A commenter argued that the proposal fails to account for 
``refugees''' reliance interests. The commenter wrote that refugees 
have an interest and right against refoulement and in the United States 
upholding domestic and international refugee law generally. The 
commenter argued that the Departments only have ``circumscribed'' 
discretion in administering asylum, citing INA 208, 8 U.S.C. 1158, and 
case law on establishing refugee status, and thus that refugees have a 
cognizable reliance interest in asylum.
    Response: As described earlier in Section IV.D.3 of this preamble, 
the United States implements its non-

[[Page 31389]]

refoulement obligations through statutory withholding of removal, not 
asylum. Thus, it is incorrect to suggest that the non-refoulement 
obligations can raise a reliance interest in asylum. Additionally, 
asylum is a discretionary form of relief to which no applicant is 
entitled. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (``The Secretary 
of Homeland Security or the Attorney General may grant asylum . . . 
.''). Although ``longstanding policies may have `engendered serious 
reliance interests that must be taken into account,''' Encino 
Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016) (quoting Fox 
Television, 556 U.S. at 515), the commenter does not explain in what 
way noncitizens who are outside the United States have relied upon U.S. 
asylum law. To the extent noncitizens outside the United States have 
any cognizable reliance interests in the current rules governing 
asylum, the Departments believe those interests would be outweighed by 
the interest in incentivizing noncitizens to pursue safe, orderly, and 
lawful pathways to seek protection, and preventing a potential surge of 
migration at the southern border that threatens to overwhelm the 
Departments' ability to process asylum claims in a safe and orderly 
manner.
    Comment: Commenters stated that the rule would violate the Pangea 
injunction. See Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966 (N.D. 
Cal. 2021).
    Response: The court's order preliminarily enjoining the 
implementation of Procedures for Asylum and Withholding of Removal; 
Credible Fear and Reasonable Fear Review, 85 FR 80274 (December 11, 
2020) (``Global Asylum Rule'') and related policies in Pangea II, 512 
F. Supp. 3d 966, does not prohibit the Departments from issuing this 
rule or otherwise limit the Departments' discretionary authority to 
adopt new asylum limitations consistent with section 208(b)(2)(C) of 
the INA, 8 U.S.C. 1158(b)(2)(C). See, e.g., Milliken v. Bradley, 433 
U.S. 267, 281-82 (1974) (``The well-settled principle that the nature 
and scope of the remedy are to be determined by the violation means 
simply that federal-court decrees must directly address and relate to 
the [alleged wrongful conduct] itself.''); Meinhold v. U.S. Dep't of 
Def., 34 F.3d 1469, 1480 (9th Cir. 1994); see also Thomas v. Cty. of 
Los Angeles, 978 F.2d 504, 509 (9th Cir. 1992) (reversing injunction 
that ``fail[ed] to specify the act or acts sought to be restrained as 
required by'' Federal Rule of Civil Procedure 65(d)).

E. Comments on the Rule Provisions

1. General Feedback on the Rebuttable Presumption of Ineligibility
    Comment: Commenters expressed concern that the requirements to 
overcome the presumption would deprive asylum seekers of a meaningful 
opportunity to seek protection, subject them to removal if they could 
not meet the elevated standard for statutory withholding of removal, 
and put them at risk of violence or other harmful conditions. 
Commenters said that the proposed rule would require noncitizens to 
gather evidence and present arguments to rebut the presumption against 
asylum eligibility, establish an exception, or prove that they are not 
subject to the rule. Some said it would be difficult or impossible for 
noncitizens arriving at the SWB to do so, given that most are detained 
during credible fear proceedings; that they may lack access to 
supporting documentation; that CBP officers may confiscate their 
property; and that the determination is made in a single interview. 
Therefore, commenters stated, the rule would categorically deny relief, 
bar asylum, or result in ``automatic ineligibility'' for most or all 
noncitizens who would be subject to it. Commenters stated that 
noncitizens would be at the mercy of the AOs' credibility assessment 
and discretion. Some commenters said there was no indication that AOs 
would have to elicit relevant testimony and suggested this requirement 
should be included in the rule. One commenter wrote that individuals 
who have previously experienced any of the per se exemptions for 
rebuttal may still be experiencing long-lasting effects that limit 
their ability to rebut the presumption in the present. A commenter 
stated that children and families would be unable to rebut the 
presumption due to limited language access, absence of legal counsel, 
and having their belongings confiscated.
    Some commenters said that the grounds for rebutting the presumption 
against asylum eligibility were too narrow, limited, or extreme and did 
not relate to the merits of an asylum claim; they recommended that the 
grounds be expanded. One commenter stated that the current examples of 
exceptionally compelling circumstances would not protect the vast 
majority of refugees who would qualify for asylum under U.S. law, 
including many who enter the United States without an appointment due 
to safety risks, medical issues, and other protection needs. Some 
stated that narrow terms like ``exceptionally compelling,'' ``imminent 
and extreme,'' and ``severe'' made the presumption too difficult to 
rebut, while others expressed concern about the perceived vagueness of 
these terms and said the rule provided inadequate guidance on them. One 
commenter wrote that the nature of the grounds and exceptions make them 
inherently difficult to corroborate with physical evidence. One 
commenter expressed concerns that the proposed means of rebuttal do not 
reference a subjective component, such as where the asylum seeker 
believed they faced an acute medical emergency or imminent and extreme 
threat. A legal services provider compared the proposed rule to the 
one-year deadline to apply for asylum and stated that the one-year 
deadline allows for even greater opportunities for rebuttal by allowing 
an individual to show a number of exceptional circumstances beyond 
those in the NPRM. Some commenters expressed concern about possible 
lack of clarity in the evidentiary requirements to rebut the 
presumption against asylum eligibility. Some stated that the lack of 
definitions and documentary evidence requirements in the NPRM would 
leave the adjudicator with an inordinate amount of discretion to decide 
whether the presumption had been rebutted. Some commenters urged the 
Departments to reverse the presumption or apply a rebuttable 
presumption of eligibility for torture survivors.
    Response: The Departments acknowledge these concerns but disagree 
with them. As discussed throughout Section IV.B.5 of this preamble, AOs 
conducting credible fear interviews have an affirmative duty to elicit 
all testimony relevant to assessing eligibility for protection, which 
will necessarily include testimony relevant to the rebuttable 
presumption.\204\ Similarly, credible fear review by an IJ ``include[s] 
an opportunity for the alien to be heard and questioned by the [IJ].'' 
INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). In 
section 240 proceedings, IJs have a duty to develop the record, which 
again will necessarily include facts and testimony relevant to the 
rebuttable presumption. 8 CFR 1003.10(b) (``[IJs] shall administer 
oaths, receive evidence, and interrogate, examine, and cross-examine 
aliens and any witnesses.''); Quintero v. Garland, 998 F.3d 612, 626 
(4th Cir. 2021). A noncitizen may be able to satisfy their burden of 
proof through credible testimony alone, INA 208(b)(1)(B)(ii), 8

[[Page 31390]]

U.S.C. 1158(b)(1)(B)(ii), and the rule does not require any particular 
evidence, including documentary evidence, to rebut or establish an 
exception to the presumption under 8 CFR 208.33(a) and 1208.33(a).
---------------------------------------------------------------------------

    \204\ USCIS, Eliciting Testimony; USCIS, Non-Adversarial 
Interview 13 (``You control the direction, pace, and tone of the 
interview and have a duty to elicit all relevant testimony.'').
---------------------------------------------------------------------------

    The Departments believe that the exceptions to and means of 
rebutting the presumption are appropriate in scope and detail and that 
they need not be expanded by, for example, incorporating means of 
rebuttal similar to the exceptions to the one-year deadline for 
applying for asylum. To the extent that, at the time of entry, a 
noncitizen reasonably believed that they faced an acute medical 
emergency or imminent and extreme threat to life or safety, the rule 
permits adjudicators to consider whether this situation may constitute 
an ``exceptionally compelling circumstance[.]'' 8 CFR 208.33(a)(3)(i), 
1208.33(a)(3)(i). As to concerns about disparate application amongst 
AOs, all credible fear determinations undergo supervisory review to 
ensure consistency, 8 CFR 208.30(e)(8), and noncitizens can request IJ 
review of a negative determination, 8 CFR 208.33(b), 1208.33(b). 
Determinations made by IJs in section 240 proceedings, including 
determinations about the presumption, are subject to review by the BIA. 
See 8 CFR 1003.1(b). Comments regarding AO and IJ conduct and training 
are further addressed in Section IV.B.5.iii of this preamble. The 
Departments decline to ``reverse'' the presumption of ineligibility for 
certain cases, which would function as an additional exception to the 
rule and undermine the rule's goal of incentivizing migrants, including 
those intending to seek asylum, to use lawful, safe, and orderly 
pathways to enter the United States or seek asylum or other protection 
in another country through which they travel. However, even if 
ineligible for asylum due to the presumption against asylum 
eligibility, noncitizens who establish a reasonable possibility of 
persecution or torture, 8 CFR 208.33(b)(2)(i), 1208.33(b)(2)(ii), 
remain eligible to apply for statutory withholding of removal and 
protection under the CAT. 8 CFR 208.16.
    Comment: Commenters expressed opposition to the proposed 
requirement that noncitizens satisfy the preponderance of the evidence 
standard to rebut the presumption of ineligibility. Commenters stated 
that using the preponderance of the evidence standard violates section 
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v), by imposing a 
different, higher standard than the ``significant possibility'' 
standard. Citing a 1996 statement from U.S. Senator Orrin Hatch, one 
commenter stated that the application of the ``preponderance of the 
evidence'' standard during the credible fear stage was considered and 
rejected by Congress and that the Departments lack the authority to 
resurrect and implement that standard through regulation. Some 
commenters emphasized that the ``significant possibility'' standard is 
an intentionally low screening standard for credible fear interviews 
established by Congress. Some commenters stated that the 
``preponderance of the evidence'' standard is even higher than the 
``reasonable possibility'' standard to show a well-founded fear, which 
in turn is higher than the ``significant possibility'' standard. Some 
commenters stated that the ``preponderance of the evidence'' standard 
imposes too high a burden on noncitizens in credible fear proceedings. 
Commenters said it would be particularly difficult for detained, 
unrepresented individuals to satisfy this burden or that the rule would 
be hardest on disadvantaged noncitizens. One commenter recommended that 
this heightened standard of proof not be implemented and that the 
existing standard of proof be revised for consistency with 
international norms to exclude only cases that are ``manifestly 
unfounded or clearly abusive.''
    Response: Commenters' concerns are based on an incorrect premise. 
At the credible fear stage, AOs will apply the ``significant 
possibility'' standard in assessing whether a noncitizen may ultimately 
rebut the presumption of asylum ineligibility by a preponderance of the 
evidence during a full merits adjudication. Because the ``significant 
possibility'' standard is set by statute, see INA 235(b)(1)(B)(v), 8 
U.S.C. 1225(b)(1)(B)(v), the Departments lack the authority to alter it 
through rulemaking. For further discussion of this issue, see Section 
IV.D.1.iii of this preamble.
    Comment: Commenters stated that applying the rule's presumption of 
ineligibility at the credible fear stage is different from how other 
eligibility bars function in credible fear determinations. Some 
commenters stated that the complex means of rebuttal would require a 
lengthy, fact-based interview and ``intensive factual analysis,'' which 
they claimed are not appropriate for credible fear interviews because 
those interviews offer insufficient procedural protections. Another 
commenter stated that the Departments recently recognized due process 
problems with this approach when they rescinded the requirement that 
certain mandatory bars to asylum be considered at the credible fear 
screening stage.
    One commenter expressed concern with the perceived discretion of 
border officials during the proposed rebuttable presumption process, 
asserting that the NPRM gave no clear indication of how, when, or in 
front of whom the asylum seeker will have to present their evidence. 
One commenter stated that DHS has a poor track record of making similar 
determinations in the past, citing instances where noncitizens were 
erroneously enrolled in the MPP, and stated that DHS has historically 
failed to effectively screen asylum seekers for certain characteristics 
and processes. One commenter stated that, under the NPRM, AOs would 
determine whether individuals presented at the SWB without documents 
sufficient for lawful admission pursuant to section 212(a)(7) of the 
INA, 8 U.S.C. 1182(a)(7), but that AOs do not receive the same training 
as CBP officers regarding that section.
    Response: The Departments acknowledge that statutory bars to asylum 
eligibility have not historically applied at the credible fear stage. 
However, the Departments have authority to apply conditions on asylum 
eligibility at that stage. The INA authorizes AOs to assess whether 
there is a significant possibility that the noncitizen could establish 
eligibility for asylum, INA 235(b)(1)(v), 8 U.S.C. 1225(b)(1)(v), which 
may include additional eligibility conditions that the Departments 
establish by regulation, see 88 FR at 11742. Moreover, the Departments 
believe that the rebuttable presumption of ineligibility under this 
rule is less complex than the mandatory bars provided in section 
208(b)(2)(A) of the INA, 8 U.S.C. 1158(b)(2)(A) (barring from asylum 
eligibility noncitizens (1) who have participated in persecution; (2) 
who have been convicted of a particularly serious crime; (3) for whom 
there are serious reasons to believe committed a serious nonpolitical 
crime; (4) for whom there are reasonable grounds to regard as a danger 
to the United States; (5) who are described under certain provisions 
relating to terrorist activity; or (6) who were firmly resettled before 
coming to the United States). Also, most of the facts relevant to the 
applicability of, exceptions to, and means of rebutting the presumption 
involve circumstances at or near the time of the noncitizen's entry. 
Because credible fear interviews occur near the time of entry when the 
events and circumstances giving rise to the presumption's exceptions 
and rebuttal grounds occur, the Departments believe noncitizens will 
have a sufficient opportunity to provide testimony regarding such 
events and

[[Page 31391]]

circumstances while they are fresh in noncitizens' minds. Furthermore, 
delaying application of the presumption against asylum eligibility 
until the final merits stage would undermine the Departments' goals of 
incentivizing migrants, including those intending to seek asylum, to 
use lawful, safe, and orderly pathways to enter the United States or 
seek asylum or other protection in another country through which they 
travel.
    This rule provides that AOs and IJs, not CBP officers, will assess 
whether noncitizens are subject to the rule's presumption of asylum 
ineligibility and can rebut the presumption. 8 CFR 208.33(b), 
1208.33(b). Also, the Departments note that the ``significant 
possibility'' standard applied at the credible fear stage is lower than 
the ``more likely than not'' standard that was used by DHS to assess 
whether a noncitizen could be returned to Mexico pursuant to the 
MPP.\205\ The Departments disagree that the rule requires AOs to assess 
whether noncitizens are inadmissible under section 212(a)(7) of the 
INA, 8 U.S.C. 1182(a)(7), and subject to expedited removal. CBP 
officers will continue to determine whether a noncitizen is subject to, 
and will be placed in, expedited removal.
---------------------------------------------------------------------------

    \205\ USCIS, PM 602-0169, Policy Memorandum: Guidance for 
Implementing Section 235(b)(2)(C) of the Immigration and Nationality 
Act and the Migrant Protection Protocols (Jan. 28, 2019), https://www.uscis.gov/sites/default/files/document/memos/2019-01-28-Guidance-for-Implementing-Section-35-b-2-C-INA.pdf.
---------------------------------------------------------------------------

    Comment: Commenters stated that the term ``rebuttable presumption'' 
as used in the rule is misleading and inaccurate and that the rule 
instead creates an outright bar with exceptions.
    Response: The Departments believe that the description of the 
rule's main provision as a rebuttable presumption accurately reflects 
the operation of that provision, including the availability of 
exceptions and bases to rebut the presumption. Unlike the TCT Bar Final 
Rule, which included only narrow, categorical exceptions to its 
application, under this rule, if the noncitizen is not exempted from 
this rule's application, the lawful pathways condition may be rebutted 
where the noncitizen demonstrates to the adjudicator's satisfaction 
that exceptionally compelling circumstances are present. See 8 CFR 
208.33(a)(3), 1208.33(a)(3). Because a noncitizen to whom the condition 
applies and for whom an exception is not available under 8 CFR 
208.33(a)(2), 1208.33(a)(2), may nevertheless avoid its effect in 
certain non-categorical circumstances, the Departments believe that 
referring to it as a ``rebuttable presumption'' is accurate.
2. Grounds for Rebutting the Presumption
i. Acute Medical Emergency
    Comment: Commenters expressed concerns regarding the acute medical 
emergency means of rebuttal. One commenter asserted that this was a 
novel concept under immigration law and that the NPRM's description of 
this ground of rebuttal made clear that this standard is designed to be 
impossible to meet. Some commenters stated that the proposed rule 
failed to provide definitions or guidance to inform assessments of what 
constitutes an acute medical emergency. Some commenters wrote that this 
means of rebuttal should include non-life-threatening and other non-
medical needs. One commenter, who is a doctor, stated that the 
definition of ``medical emergency'' should include curable conditions 
that would be fatal in the short term and conditions that could be 
commonly treated in the United States to restore health and function, 
assuming that sufficient care would not be available in the originating 
country. Commenters expressed concern regarding how people living with 
HIV will be assessed under this provision, given that their condition 
could lead to a life-threatening emergency without treatment. 
Commenters also expressed concern that the proposed rule gave 
inadequate consideration to the unique attributes of children's 
physical and mental health and noted that signs differentiating a child 
with illness from one with severe illness are quite subtle. Some 
commenters also expressed concern that the proposed rule would not 
require that children be assessed by trauma-informed physicians. 
Another commenter expressed concerns that the rule would not account 
for potential emergencies for pregnant women.
    Some commenters stated that the ``preponderance of the evidence'' 
standard for establishing an acute medical emergency is too high. 
Commenters said that the rule did not explain how an individual would 
prove that their medical issue was ``acute,'' and one stated that this 
determination is possible only after medical care is already being 
provided. Some commenters stated that noncitizens may lack medical 
documentation or knowledge of the severity of their condition and that 
AOs and IJs are not medical experts with the required expertise to 
evaluate these types of medical issues. Other commenters stated that 
the proposed rule does not specify which officials will be making this 
determination or whether any medical training or expertise would be 
required. Commenters expressed concerns that asking immigration 
officials to make medical assessments would yield inconsistent 
application of the rebuttable presumption and undermine the welfare of 
asylum seekers. Commenters expressed concern that this means of 
rebutting the presumption would require noncitizens to share private 
details about their medical histories and bodies with a stranger on the 
phone. One commenter said that an individual may not know that they are 
suffering an acute medical emergency, while another stated that a 
noncitizen's medical condition could worsen by the time that the AO 
decides whether the presumption has been rebutted. Some commenters 
added that the rule should specify what would occur in scenarios where 
families rebut the presumption based on the acute medical emergency 
ground and the individual with the medical emergency subsequently dies 
or the individual lacks access to medical care to address their medical 
emergency.
    Commenters said that CBP had denied Title 42 health exceptions to 
those with acute medical needs, despite extensive documentation of 
their conditions, which raised the concern that the term ``acute 
medical emergency'' would also be applied stringently under the rule. 
Another commenter stated that the rule would ``restrict access to 
medical care and humanitarian aid if asylum seekers are denied by 
CBP,'' which would impede the gathering of evidence needed to rebut the 
presumption of asylum ineligibility.
    Another commenter expressed concern that an acute medical emergency 
may also be easy to feign or fabricate, though the commenter did not 
provide any example of how that could be done.
    Response: The Departments believe the acute medical emergency means 
of rebuttal at 8 CFR 208.33(a)(3)(i)(A) and 1208.33(a)(3)(i)(A), is 
drafted so that those noncitizens with acute medical emergencies can 
rebut the condition on asylum eligibility. In general, as stated in the 
NPRM, acute medical emergencies include situations in which someone 
faces a life-threatening medical emergency or faces acute and grave 
medical needs that they cannot adequately address outside of the United 
States. See 88 FR at 11723. If a noncitizen rebuts the presumption 
based on the acute medical emergency of a family member with whom they 
were traveling, the noncitizen's

[[Page 31392]]

eligibility for asylum will not change if the family member who faced 
the medical emergency subsequently passes away; this is because the 
language of the rebuttal circumstance focuses on whether the family 
member faced an acute medical emergency ``at the time of entry.'' 8 CFR 
208.33(a)(3)(i), 1208.33(a)(3)(i).
    The Departments believe that, in general, broadening this means of 
rebuttal would undermine the purpose of the rule, which is to 
incentivize noncitizens to utilize lawful, safe, and orderly pathways 
of migration. A medical condition that is not an acute emergency would 
not ordinarily or necessarily justify failing to pursue a lawful 
pathway. However, while an acute medical emergency is a per se example 
of an exceptionally compelling circumstance to rebut the presumption of 
ineligibility, AOs and IJs may determine, on a case-by-case basis, 
whether less severe health-related situations also qualify as 
``exceptionally compelling circumstances.'' See 8 CFR 208.33(a)(3), 
1208.33(a)(3).
    The Departments also disagree with comments concerning the ability 
of AOs and IJs to properly assess this rebuttal ground and the ability 
of noncitizens to establish it. As discussed in Section IV.D.1.iii of 
this preamble, AOs will apply the ``significant possibility'' standard 
during credible fear interviews to determine whether a noncitizen would 
be able to rebut the presumption because they faced an acute medical 
emergency at the time of entry. Again, the Departments emphasize that 
noncitizens may be able to rebut the presumption of asylum 
ineligibility through testimony alone, and the rule does not require 
any particular evidence to rebut the presumption under 8 CFR 
208.33(a)(3) and 1208.33(a)(3). AOs are trained to elicit all relevant 
testimony in a non-adversarial manner, which will necessarily include 
testimony related to this ground for rebuttal.\206\ As discussed 
earlier in Section IV.B.5.iii.a of this preamble, AOs frequently assess 
physical and psychological harm when adjudicating asylum applications 
and are trained to do so in a sensitive manner. As discussed in Section 
IV.B.5.iii.c of this preamble, the rule does not require adjudicators 
to make a formal medical diagnosis or analyze whether a noncitizen 
meets specific medical criteria to determine whether a noncitizen has 
rebutted the rule's condition on eligibility. Instead, adjudicators 
will make a factual determination of whether an acute medical emergency 
existed at the time of entry. 8 CFR 208.33(a)(3)(i)(A), 
1208.33(a)(3)(i)(A). To the extent that a noncitizen experienced such a 
medical emergency during their time in CBP custody, AOs may be able to 
consult CBP records. Specifically, if a noncitizen experiences a 
medical issue during their time in CBP custody, CBP medical staff will 
evaluate the noncitizen, and, if appropriate based on the severity of 
the issue, refer them to a local medical facility. This treatment would 
be documented.\207\ Regarding the concerns raised about sharing private 
medical details, noncitizens in credible fear proceedings, as discussed 
in Section IV.B.5.v of this preamble, are advised of the confidential 
nature of the interview. As noted earlier in Sections IV.B.5.i and 
IV.E.1 of this preamble, credible fear determinations undergo multiple 
levels of review to ensure consistency, and decisions made in section 
240 proceedings are subject to administrative appeal.
---------------------------------------------------------------------------

    \206\ USCIS, Eliciting Testimony 12 (``In cases requiring an 
interview, although the burden is on the applicant to establish 
eligibility, equally important is your obligation to elicit all 
pertinent information.''); USCIS, Non-Adversarial Interview 13 
(``You control the direction, pace, and tone of the interview and 
have a duty to elicit all relevant testimony.'')
    \207\ CBP, Directive 2210-004, Enhanced Medical Support Efforts 
(Dec. 31, 2019), https://www.cbp.gov/document/directives/directive-2210-004-cbp-enhanced-medical-efforts.
---------------------------------------------------------------------------

    The Departments note that, like all exceptionally compelling 
circumstances, AOs in credible fear proceedings or IJs in immigration 
court, not CBP officers at POEs, will determine whether a noncitizen 
faced an acute medical emergency. Accordingly, to the extent commenters 
are concerned by how CBP officers have considered medical issues in the 
context of the application of the Title 42 public health Order, such 
concerns are inapplicable to this rule. Additionally, CBP will process 
all noncitizens who arrive and seek admission at a POE without regard 
to whether the presumption may ultimately be found to apply.
    Regarding concerns of fraud, the commenter did not provide any 
explanation or example of how an acute medical emergency would be easy 
to fabricate, and AOs and IJs will assess the credibility of any claims 
that the noncitizen faced an acute medical emergency. INA 
208(b)(1)(B)(2), 8 U.S.C. 1158(b)(1)(B)(2); INA 240(c)(4)(B), 8 U.S.C. 
1229a(c)(4)(B); 8 CFR 208.30(e)(2).
ii. Imminent and Extreme Threat to Life and Safety
    Comments: Commenters expressed concern over the high level of risk 
required to rebut the presumption based on an imminent and extreme 
threat to life and safety. Some commenters stated this means of 
rebuttal requires a higher degree of risk than is required for 
eligibility for asylum or statutory withholding of removal. One 
commenter stated that it would require migrants to ``predict the 
future'' in deciding whether to wait for an appointment at the border, 
which can be dangerous because violence happens randomly and 
unexpectedly. Some said that, if an asylum seeker is forced to remain 
in Mexico until a threat is imminent, it may well be too late to avoid 
such harm, thus putting the person in a ``catch-22.'' A commenter 
stated that the rule appears to exclude anyone who has already been 
gravely harmed while in Mexico but who cannot prove that another harm 
is ``imminent,'' while others recommended that if an individual 
circumvents other pathways to cross the U.S.-Mexico border due to the 
severity of past threats or harms, the ``imminent and extreme threat'' 
ground should automatically apply. Another commenter stated that, due 
to the complicated and lengthy regulatory definition of torture, that 
term should be replaced with ``severe pain or suffering.''
    Commenters also expressed concern about the ability for specific 
populations to meet this rebuttal ground. Commenters stated that the 
rule forces LGBT and HIV-positive people, who already face significant 
hostility in Mexico, to put themselves in even worse danger to satisfy 
the imminence requirement of the ``imminent and extreme'' ground for 
rebuttal. Commenters wrote that this rebuttal ground should be 
broadened so that adjudicators may favorably consider circumstances 
involving threats to life or safety that might not necessarily be 
considered imminent or extreme. For example, one commenter noted that 
there are many forms of gender-based harm that are unlikely to meet the 
requirement that the threat to life or safety is ``imminent and 
extreme'' because such forms of harm are not always highly violent 
acts. One commenter wrote that pervasive discrimination or physical 
abuse--as, for example, experienced by LGBT individuals in Mexico, 
where discrimination against such persons is still commonplace--would 
not meet the threshold of ``imminent and extreme threat to life and 
safety'' if experienced in either a transit country or their home 
country. The commenter also stated that individuals forced to hide 
their identity

[[Page 31393]]

to avoid discrimination would be hindered in their ability to meet this 
ground for rebuttal.
    Commenters expressed concern that noncitizens would not have 
sufficient evidence to show an ``imminent and extreme'' threat to rebut 
the presumption. Similar to their comment regarding the ``acute medical 
emergency'' means of rebuttal, one commenter asserted that the 
``imminent and extreme'' threat means of rebuttal is a novel concept 
under immigration law and that the description of this ground of 
rebuttal in the NPRM made clear that this standard is designed to be 
impossible to meet. One commenter stated that proving a specific threat 
may be near impossible because individualized threats are frequently 
made orally and in person, not in writing, and hence are not amenable 
to proof in a formalized setting. The commenter also stated that such 
threats are usually directly followed by the harm itself. One commenter 
wrote that the most deserving individuals in the asylum process will be 
hard-pressed to produce evidence of an ``imminent threat'' because 
persecution frequently does not leave documentary evidence. A few 
commenters emphasized that survivors of sexual assault would face 
extreme difficulty in obtaining documentation to meet the evidentiary 
burden from another country unless they had others assisting them; some 
survivors, for example, may have only their own account of the assault. 
A legal services provider expressed concern that survivors of violence 
would not necessarily have the proof, language, or support needed to 
explain what imminent danger they faced, leading to the denial of bona 
fide asylum claims and the refoulment of individuals facing extreme 
persecution.
    Commenters expressed concerns that the lack of definition of an 
``extreme and imminent threat to life or safety'' left adjudicators 
with an inordinate amount of discretion. One commenter stated that 
asylum seekers in Mexican border regions so often face a serious risk 
to their safety that it is unclear what an asylum seeker would need to 
show to establish an ``imminent and extreme'' threat to life. 
Commenters expressed concern that this ground of rebuttal calls for a 
subjective assessment of the temporality and qualitative extremity of 
the threats faced by asylum seekers, which may exclude many genuine 
refugees.
    Other commenters stated concerns that this means of rebuttal was 
overly broad or would lead to fraud. One commenter said that AOs and 
IJs would have difficulty determining whether someone has fabricated 
evidence to support a claim that they faced an imminent threat to life 
or safety, especially when strong evidence exists that migrants who 
travel to the U.S.-Mexico border by way of smuggling networks are 
frequently subject to such violence. Another commenter stated that the 
journey to the southwest border of the United States is inherently a 
journey where migrants will face extreme threats to life and safety 
from beginning to end; adding this means of rebuttal would thus exempt 
the entire population of migrants who have traveled with the assistance 
of smugglers and other criminal enterprises.
    Response: The Departments acknowledge these concerns but believe 
that only imminent and extreme threats to life or safety should 
constitute a per se ground to rebut the presumption of asylum 
ineligibility. For threats that are less imminent or extreme, 
noncitizens may attempt to demonstrate on a case-by-case basis that 
they otherwise present ``exceptionally compelling circumstances'' that 
overcome the presumption of ineligibility. Including lesser threats in 
the per se grounds for rebuttal would undermine the Departments' goal 
of incentivizing migrants to use lawful, safe, and orderly pathways to 
enter the United States or seek asylum or other protection in another 
country through which they travel.
    As noted in the NPRM, threats cannot be speculative, based on 
generalized concerns about safety, or based on a prior threat that no 
longer posed an immediate threat at the time of entry. 88 FR at 11707 
n.27. The term ``extreme'' refers to the seriousness of the threat; the 
threat needs to be sufficiently grave, such as a threat of rape, 
kidnapping, torture, or murder, to trigger this ground for rebuttal. 
Id. Where the noncitizen is a member of a particularly vulnerable group 
(e.g., LGBT or HIV-positive people), their membership in such a group 
may be a relevant factor in assessing the extremity and immediacy of 
the threats faced at the time of entry. In response to the 
recommendation that the word ``torture'' be replaced with ``severe pain 
and suffering,'' the Departments note that the imminent and extreme 
threats to life and safety listed in the rule are not exhaustive and 
that this means of rebuttal may in certain circumstances encompass 
imminent and extreme threats of severe pain and suffering.
    The Departments disagree that noncitizens will have to ``predict 
the future'' to rebut the presumption against asylum in this manner. 
For this per se rebuttal ground to apply, the noncitizen must 
demonstrate there was an imminent and extreme threat to life or safety, 
not that the feared harm was actively taking place or certain to occur. 
See 8 CFR 208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Departments also 
note that ``imminent'' and ``extreme'' are standards that are commonly 
used in asylum adjudications. See, e.g., Fon v. Garland, 34 F.4th 810, 
813 (9th Cir. 2022) (``[P]ersecution is an extreme concept'' (quoting 
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995))); Li v. Att'y Gen. of 
U.S., 400 F.3d 157, 164 (3d Cir. 2005) (``[U]nfulfilled threats must be 
of a highly imminent and menacing nature in order to constitute 
persecution'' (citing Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 
1997))). As already discussed in Section IV.E.1 of this preamble, 
noncitizens may be able to rebut the presumption against asylum 
eligibility through credible testimony alone. In response to commenter 
concerns about inconsistent application of the rule, the Departments 
note that an AO's decision is subject to supervisory and potentially IJ 
review, and determinations made in section 240 proceedings may be 
administratively appealed.
    The Departments acknowledge commenters' concern about fraud, but 
during credible fear screenings, AOs will assess the credibility of a 
noncitizen's testimony regarding dangers faced at the time of entry, 
which will necessarily include an evaluation of the whether a claimed 
threat is fraudulent. As discussed earlier in Section IV.D.1.iii of 
this preamble, whether a noncitizen is able to establish an exception 
to the rule or rebut the presumption will generally involve a 
straightforward analysis, and the Departments expect that, except in 
rare cases, application of the ``significant possibility'' standard 
will not meaningfully differ from application of the ultimate merits 
standard. The Departments believe that this ground of rebuttal is 
sufficiently narrow to prevent broad application to all citizens who 
attempt to enter the United States from Mexico across the SWB or 
adjacent coastal borders.
iii. Other Exceptionally Compelling Circumstances
    Comment: Some commenters stated that the provision allowing a 
noncitizen to show ``exceptionally compelling circumstances'' to rebut 
the presumption was not sufficiently defined and hence that applying it 
would lead to disparate results amongst adjudicators. One commenter 
stated that

[[Page 31394]]

the rule does not clarify whether the exceptionally compelling 
circumstance must be one that prevented the asylum seeker from 
scheduling an appointment or whether it may be an equitable factor that 
mitigates in favor of granting humanitarian protection. Another 
commenter expressed concerns that the adverb ``exceptionally'' is 
redundant or excessive and would result in different interpretations by 
adjudicators. The same commenter stated that applying the term 
``exceptionally compelling circumstances'' would also be difficult 
because the term is rarely used in immigration law and is restrictively 
defined by the Departments.
    While some commenters expressed concern that requiring noncitizens 
to show ``exceptionally compelling circumstances'' by a preponderance 
of the evidence would be too demanding of a standard, which they 
asserted renders the provision inaccessible to many asylum seekers and 
will result in unfair denials, other commenters claimed that the 
standard would, in practice, allow for any official to create an 
exemption for any reason.
    Response: The Departments respectfully disagree with commenters' 
concerns about the ``exceptionally compelling circumstances'' standard 
being insufficiently defined or not amenable to consistent 
determinations. The rule provides that a noncitizen necessarily 
demonstrates exceptionally compelling circumstances if, at the time of 
entry, they or a family member with whom they were traveling (1) had an 
acute medical emergency; (2) faced an imminent and extreme threat to 
life or safety; or (3) satisfied the definition of ``victim of a severe 
form of trafficking in persons'' provided in 8 CFR 214.11. See 8 CFR 
208.33(a)(3), 1208.33(a)(3). The non-exhaustive nature of this list 
preserves flexibility and ensures that the rule does not foreclose 
adjudicators from considering facts giving rise to exceptionally 
compelling circumstances.
    The Departments emphasize that exceptionally compelling 
circumstances are not limited to the examples enumerated in 8 CFR 
208.33(a)(3)(i) and 1208.33(a)(3)(i). In fact, the rule recognizes 
additional per se exceptionally compelling circumstances in section 240 
removal proceedings to, along with other provisions in the rule, 
eliminate the possibility that this rule will cause separation of 
family members who traveled together or long-term separation that would 
result by preventing family members from following to join principal 
applicants who would be granted asylum but for the presumption. 8 CFR 
1208.33(c).
    The Departments also note that AOs and IJs regularly apply various 
standards in the course of their adjudications, such as the 
``extraordinary circumstances'' standard to determine whether an asylum 
applicant qualifies for an exception to the one-year filing deadline, 
see INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), and the discretionary 
``compelling reasons'' standard to determine whether an applicant who 
has suffered past persecution but lacks a well-founded fear of future 
persecution should be granted asylum in the exercise of discretion, see 
8 CFR 208.13(b)(1)(iii)(A); 1208.13(b)(1)(iii)(A). Hence, although the 
Departments acknowledge the concerns of some commenters about 
noncitizens' ability to demonstrate ``exceptionally compelling 
circumstances,'' the Departments believe that the best way to assess 
the variety of fact patterns presented by noncitizens is to use a fact-
specific approach on a case-by-case basis. Using this fact-specific 
approach on a case-by-case basis is consistent with other aspects of 
asylum adjudication, such as establishing an exception to the one-year 
filing deadline, see INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), 
determining whether harm rises to the level of persecution, see Stevic, 
467 U.S. at 423 n.18, or determining whether an individual was harmed 
on account of a protected ground, see 8 CFR 208.13(b)(1).
    AOs receive extensive training that is designed to enable them to 
conduct non-adversarial interviews, assess testimony, and exercise 
their judgment in a fair and impartial manner.\208\ Likewise, IJs have 
extensive experience and training in applying such concepts to 
individual cases.\209\ Accordingly, the Departments strongly believe 
that IJs and AOs will fairly and competently examine the facts and 
circumstances of an individual's case to determine whether they 
demonstrated exceptionally compelling circumstances to rebut the lawful 
pathways presumption of asylum ineligibility. In response to commenter 
concerns about consistency of determinations, credible fear 
determinations, as noted above, are subject to review by a Supervisory 
AO, and determinations made in section 240 proceedings are subject to 
administrative appeal.
---------------------------------------------------------------------------

    \208\ See USCIS, Non-Adversarial Interview.
    \209\ See 8 CFR 1003.0(b)(1)(vii) (EOIR Director's authority to 
``[p]rovide for comprehensive, continuing training and support'' for 
IJs); 8 CFR 1003.9(b)(1) and (2) (Chief Immigration Judge's 
authority to issue ``procedural instructions regarding the 
implementation of new statutory or regulatory authorities'' and 
``[p]rovide for appropriate training of the [IJs] . . . on the 
conduct of their powers and duties''); DOJ EOIR, Legal Education and 
Research Services Division (Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``The Legal 
Education and Research Services Division (LERS) develops and 
coordinates headquarters and nationwide substantive legal training 
and professional development for new and experienced judges, 
attorneys, and others within EOIR who are directly involved in 
EOIR's adjudicative functions. LERS regularly distributes new 
information within EOIR that includes relevant legal developments 
and policy changes from U.S. government entities and international 
organizations.'').
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iv. Victim of Severe Form of Trafficking in Persons
    Comment: A number of commenters stated concern about noncitizens' 
ability to rebut the presumption by satisfying the definition of a 
``victim of a severe form of trafficking in persons.'' Some commenters 
stated that trafficking victims cannot be expected to have evidence 
prepared to demonstrate, by a preponderance of the evidence, that they 
were trafficked. A few commenters expressed concern that it would be 
very difficult for the population that is vulnerable to trafficking to 
rebut the presumption due to lack of evidence and the exemption being 
narrowly applied. Others stated that the NPRM's reference to 8 CFR 
214.11, which defines victims of severe forms of trafficking, was not 
sufficiently specific. Some commenters wrote that this ground of 
rebuttal should be broadened to apply to circumstances in which 
individuals may be at risk of trafficking and to apply regardless of 
severity. One commenter stated that the victims of trafficking rebuttal 
ground is very narrow and fails to take into account the many other 
forms of gender-based persecution, including domestic violence, sexual 
assault, stalking, female genital cutting, and forced marriage. A few 
other commenters expressed concerns that officials may retraumatize 
individuals in the process of validating a claim for rebutting the 
presumption and may end up returning them to their traffickers if they 
find that the noncitizen did not rebut the presumption of asylum 
ineligibility. One commenter wrote that, because the severity of human 
trafficking is hard to ``grade,'' it is important to apply the broadest 
understanding of new trends and definitions provided under the 
universal human rights instruments to prevent underreporting and 
insufficient identification of victims of this human rights violation.
    One commenter wrote that the definition of ``victim of a severe 
form of trafficking'' is highly technical and requires a thorough 
analysis of several components usually (in the T nonimmigrant status 
context, from

[[Page 31395]]

which the definition derives) completed after review of a complete 
application package, including extensive supporting evidence and 
briefing prepared by legal counsel. The same commenter added that a 
survivor presenting at the border under the circumstances described 
above is unlikely to be able to meet this standard. Some commenters 
stated that the rule would force trafficking victims to rebut the 
presumption at a higher legal standard--preponderance of the evidence--
rather than ``any credible evidence'' as would be required if they were 
already in the United States and applying for T nonimmigrant status.
    One commenter stated that the Departments should remove the 
trafficking rebuttal ground because migrants who voluntarily utilized 
smugglers would falsely claim to have been trafficked to qualify for 
the exception.
    Response: The Departments acknowledge commenters' concerns about 
victims of human trafficking but disagree that the existing rebuttal 
ground should be revised or expanded.
    As described in the NPRM, see 88 FR at 11730, the presumption in 
this rule is necessarily rebuttable in certain circumstances, including 
if, at the time of entering the United States, the noncitizen satisfied 
the definition of ``victim of a severe form of trafficking in persons'' 
provided in 8 CFR 214.11. See 8 CFR 208.33(a)(3)(i)(C), 
1208.33(a)(3)(i)(C). The Departments disagree with the premise that 
this rule's reference to the definition of ``victim of a severe form of 
trafficking in persons'' found in 8 CFR 214.11 is insufficiently 
specific. This final rule relies upon, and is consistent with, the 
definition used in the T nonimmigrant status context, which itself is 
consistent with the applicable statutory definition.\210\
---------------------------------------------------------------------------

    \210\ See 8 CFR 214.11(b) (cross-referencing INA 
101(a)(15)(T)(i), 8 U.S.C. 1101(a)(15)(T)(i)).
---------------------------------------------------------------------------

    The Departments also emphasize that they are not applying the 
``preponderance of the evidence'' standard to trafficking victims who 
are initially seeking to rebut the lawful pathways presumption during 
credible fear screenings. The standard of proof applied in credible 
fear screening is a ``significant possibility . . . that the alien 
could establish eligibility for asylum,'' INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), which also applies to ``exceptionally compelling 
circumstances.'' During credible fear screenings, then, a noncitizen 
would have to show a significant possibility that they could satisfy 
the definition of victim of a severe form of trafficking by a 
preponderance of the evidence in a full hearing. The Departments 
recognize that many victims of trafficking are unlikely to possess 
written evidence of their trafficking; however, the credible fear 
screening process involves eliciting testimony from individuals seeking 
protection and does not require noncitizens to provide written 
statements or other documentation. See INA 235(b)(1)(B), 8 U.S.C. 
1225(b)(1)(B); 8 CFR 208.30(d). Moreover, the Departments note that, in 
addition to receiving extensive training in substantive law and 
procedure, AOs are also trained to identify and interview vulnerable 
individuals, including victims of trafficking.\211\ For merits 
adjudications, both AOs \212\ and IJs \213\ receive training and have 
experience assessing evidence and the credibility of noncitizens who 
appear before them for interviews or hearings, even in the absence of 
other documentation. Indeed, the INA explicitly provides that 
``testimony of the applicant may be sufficient to sustain the 
applicant's burden without corroboration.'' INA 208(b)(1)(B)(ii), 8 
U.S.C. 1158(b)(1)(B)(ii).
---------------------------------------------------------------------------

    \211\ See USCIS, RAIO Directorate--Detecting Possible Victims of 
Trafficking Lesson Plan (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Trafficking_LP_RAIO.pdf; see also 
USCIS, Asylum Division Training Programs (Dec. 19, 2016), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/asylum-division-training-programs.
    \212\ USCIS, RAIO Directorate--Officer Training: Decision Making 
(Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Decision_Making_LP_RAIO.pdf.
    \213\ See 8 CFR 1003.0(b)(1)(vii) (EOIR Director's authority to 
``[p]rovide for comprehensive, continuing training and support'' for 
IJs); 8 CFR 1003.9(b)(1) and (2) (Chief Immigration Judge's 
authority to issue ``procedural instructions regarding the 
implementation of new statutory or regulatory authorities'' and 
``[p]rovide for appropriate training of the [IJs] . . . on the 
conduct of their powers and duties''); DOJ EOIR, Legal Education and 
Research Services Division (Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``[LERS] 
develops and coordinates headquarters and nationwide substantive 
legal training and professional development for new and experienced 
judges, attorneys, and others within EOIR who are directly involved 
in EOIR's adjudicative functions. LERS regularly distributes new 
information within EOIR that includes relevant legal developments 
and policy changes from U.S. government entities and international 
organizations.'').
---------------------------------------------------------------------------

    With respect to the commenter's suggestion that the Departments 
should remove the trafficking-victims ground for rebuttal because the 
commenter believed that noncitizens who are smuggled will falsely claim 
they are trafficked, the Departments strongly believe it is important 
to treat trafficking as an exceptionally compelling circumstance. The 
Departments included this provision to allow this vulnerable population 
to rebut the lawful pathways presumption and seek protection in the 
United States. The Departments note that the commenter did not include 
any reliable evidence or data to support their allegation that 
individuals who are smuggled will falsely claim to be trafficked. In 
addition, the TCT Bar IFR also included a limited exception for victims 
of severe forms of trafficking, and the Departments are unaware of 
evidence that it was abused while that IFR was in effect.
    Commenters' suggestions regarding broadening the grounds to rebut 
the presumption are addressed below in Section IV.E.3 of this preamble.
3. Exceptions to the Presumption
i. Proposed Exceptions for Migrants Facing Danger in Third Countries
    Comment: Commenters expressed concern that the rule contains no 
exceptions for asylum seekers who would face danger in transit 
countries even though many asylum seekers are at serious risk in common 
transit countries. Multiple commenters suggested that the exemption for 
imminent threat of rape, kidnapping, torture, or murder should be 
expanded to include general threats of violence, as many individuals 
within the asylum process would be forced to stay in Mexico or other 
countries where general threats of violence are much more common and 
put their lives or safety at risk. Another commenter stated that, when 
asylum seekers are waiting in some of the most dangerous towns and 
cities in the world, they face real threats that the rule should 
recognize as an exception to the presumption.
    Several commenters noted that the members of one family, when using 
the Title 42 exception process, tried to travel more than 1200 miles 
across Mexico and were kidnapped and taken hostage during that travel, 
only to be expelled from the United States when they sought help from 
the USBP. Another commenter noted that movement along the U.S.-Mexico 
border is notoriously difficult and unsafe. In contrast, one commenter 
stated that reports of localized violence in certain areas of Mexico 
are not indicative of the conditions in Mexico as a whole.
    Response: The Departments acknowledge the concerns raised by 
commenters and reiterate that noncitizens who face an extreme and 
imminent threat to life or safety in Mexico at the time of entry can 
rebut the presumption of asylum ineligibility, see 8 CFR 
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B), without needing to

[[Page 31396]]

qualify for any additional exception. In addition, the rule provides 
that they may rebut the presumption by showing that, at the time of 
entry, they faced an acute medical emergency or were victims of a 
severe form of trafficking. See 8 CFR 208.33(a)(3)(i)(A) and (C), 
1208.33(a)(3)(i)(A) and (C). However, the Departments decline to 
enumerate additional, broader ways to rebut the presumption, such as a 
ground based on general threats of violence; and the Departments 
likewise believe that they need not enumerate additional exceptions to 
the presumption. In the absence of other exceptionally compelling 
circumstances, see 8 CFR 208.33(a)(3)(i), 1208(a)(3)(i), the 
Departments believe that danger in Mexico generally would justify 
failing to pre-schedule a time and place to appear at a POE and 
eschewing lawful and orderly pathways for entering the United States 
only when it amounts to an extreme and imminent threat to life or 
safety. For noncitizens who face dangers in other countries besides 
Mexico, or who face less imminent and extreme threats in Mexico, there 
ordinarily remain reasonable opportunities to take advantage of other 
lawful pathways contemplated by the rule. To the extent a noncitizen's 
individual circumstances make lawful pathways unavailable, or otherwise 
warrant rebuttal of the presumption, noncitizens may attempt to 
demonstrate as much on a case-by-case basis under the ``exceptionally 
compelling circumstances'' means of rebuttal. Noncitizens may choose to 
apply for asylum or other protection in a different country where they 
do not face dangers or schedule appointments to appear at a SWB POE 
using the CBP One app. CHNV nationals may also apply for advanced 
authorization for parole while outside their country of nationality. 
With regard to concerns about traveling along the U.S.-Mexico border to 
access available CBP One app appointments, CBP intends to increase the 
number of available appointments when the Title 42 public health Order 
is lifted, as detailed in Section IV.E.3.ii.a of this preamble. As 
detailed in Section IV.E.3.ii.b of this preamble, CBP is implementing 
updates to the CBP One app process that will enable noncitizens to 
request a preferred POE to schedule an appointment, thus helping 
noncitizens avoid unpredictable travel along the U.S.-Mexico border.
ii. Concerns About the Exception for Scheduled Arrivals at Ports of 
Entry
a. General Comments Regarding the CBP One App
    Comment: One commenter, a legal services provider, expressed 
concern about the future impact of the CBP One app based on their 
experiences with the use of the app in the context of seeking Title 42 
exceptions. Specifically, the commenter stated that the use of the app 
had barred ``thousands'' from seeking exceptions to the Title 42 public 
health Order. This commenter stated that, before January 2023, it was 
able to schedule appointments for its clients with POEs directly, 
without using the app. The organization said that this process was 
``orderly and calm'' and that clients rarely waited more than four to 
six weeks for an appointment. The organization stated that, following 
the implementation of the scheduling capability, many of their clients 
had been unable to secure appointments, and the process takes longer. 
The organization stated that CBP did not provide notice that the CBP 
One app would be the sole way to seek exceptions to Title 42.
    Response: To the extent that commenters have concerns about the 
processing of individuals seeking exceptions to the Title 42 public 
health Order at POEs, including concerns about the number of 
appointments available under the Title 42 exception process, these 
concerns are outside the scope of this rule. This rule is designed to 
manage the anticipated increase in the number of individuals expected 
to travel to the United States without documents sufficient for lawful 
admission following the termination of the Title 42 public health Order 
and will take effect once the Title 42 public health Order is lifted. 
At that time, CBP will inspect and process all noncitizens who arrive 
at a POE under Title 8 authorities, which include the INA, as required 
by statute. Title 42 is a separate statutory scheme that operates 
separately from Title 8.
    Additionally, following the termination of the Title 42 public 
health Order, CBP intends to increase the number of available 
appointments in the CBP One app and is committed to processing as many 
noncitizens as is operationally feasible. Further, in no instance will 
CBP turn a noncitizen away from a POE, regardless of whether they 
utilize the CBP One app.
    Comment: Commenters expressed concern about the security of the 
personally identifiable information (``PII'') that users submit through 
the CBP One app. A commenter asserted that the CBP One app poses 
serious privacy concerns regarding the collection, storage, and use of 
private personal information and alleged that requiring use of the CBP 
One app is ``another means of enlarging what is an already expansive 
surveillance infrastructure that relentlessly targets immigrant 
communities.'' A commenter also stated that, while the Departments have 
previously indicated that use of the CBP One app is voluntary, the rule 
will significantly expand use of the app, with the result that it will 
be the only way for certain noncitizens to seek asylum in the United 
States and thus that ``many people do not have a genuine choice in 
whether to consent.'' Commenters questioned the wisdom of encouraging 
migrants to disclose personal details while in transit in temporary 
shelters and non-secure settings.
    Particularly in light of a recent ICE data breach, commenters 
expressed concern about what measures CBP and DHS will take to secure 
the PII that applicants will have to provide in order to secure an 
appointment through the CBP One app. The commenters expressed concern 
that a similar breach regarding CBP One app data could place applicants 
waiting for appointments outside the United States at a greater risk 
than individuals affected by the recent breach, who were primarily in 
the United States. Commenters alleged that this risk could have a 
chilling effect on otherwise meritorious applications.
    Commenters expressed a range of PII-related concerns regarding the 
use of the CBP One app in the context of asylum seekers and asylum 
applications. For example, a commenter expressed concern that use of 
the CBP One app and the need to rely on publicly accessible internet 
connections may violate 8 CFR 208.6, which establishes limits on the 
disclosure to third parties of information contained in or pertaining 
to records related to credible fear determinations, asylum 
applications, and similar records. Another commenter similarly noted 
that use of the app may be tracked by government officials or 
persecutors, placing migrants in further danger.
    A commenter also expressed concern that the lack of privacy may be 
particularly harmful for those fleeing domestic violence and that use 
of a smart device to access the CBP One app may permit GPS tracking and 
put the noncitizen at heightened risk of being located by their abuser, 
as well as put them at risk of financial abuse. A commenter expressed 
concern that information provided by migrants through the CBP One app 
could be

[[Page 31397]]

shared with law enforcement agencies beyond CBP, which are not bound by 
CBP privacy and information-sharing policies. A few commenters 
expressed concern with requiring the use of a Login.gov account because 
the underlying provider for that site has a history of data breaches.
    Response: The Departments disagree with the statement that migrants 
must use, or are unable to meaningfully consent to using, the CBP One 
app. While noncitizens who present at a POE without scheduling an 
appointment using the CBP One app will be subject to the rebuttable 
presumption unless otherwise excepted, noncitizens are not required to 
use the app in order to be processed at a POE.\214\ The Departments 
note that the rebuttable presumption does not apply to noncitizens who 
either were provided authorization to travel to the United States to 
seek parole pursuant to a DHS-approved parole process or who sought 
asylum or other protection in a country through which they traveled and 
received a final decision denying that application. 8 CFR 
208.33(a)(2)(ii)(A) and (C), 1208.33(a)(2)(ii)(A) and (C). The 
presumption also does not apply to noncitizens who arrive at a port of 
entry without scheduling an appointment if the scheduling system was 
not possible to access or use due to language barrier, illiteracy, 
significant technical failure, or other ongoing and serious obstacle. 8 
CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
---------------------------------------------------------------------------

    \214\ See, e.g., CBP, DHS/CBP/PIA-076, Privacy Impact Assessment 
for the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 18 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
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    For those who choose to utilize the CBP One app to schedule an 
appointment, CBP has taken steps to protect users' information. First, 
in accordance with DHS policy, apps developed by DHS--including the CBP 
One app--must meet certain baseline privacy and security 
requirements.\215\ These requirements include app-specific privacy and 
notice policies; limitations on the collection of sensitive content, 
including PII; and appropriate encryption for the transmission of 
data.\216\ The app was reviewed for compliance prior to development and 
is reviewed again every time a change is made that impacts the 
collection and use of PII.\217\ All CBP systems have undergone 
comprehensive testing and evaluation to assess the respective security 
features and have been granted an Authority to Operate (``ATO'').\218\ 
In particular, the app serves only as a tool for the collection of 
information.\219\ Once the information is received, CBP temporarily 
retains the submitted CBP One app photographs of undocumented 
individuals within the Automated Targeting System (``ATS''). Upon an 
individual's arrival at a POE, the advance information is imported into 
a Unified Secondary (``USEC'') event.\220\ The information is then 
verified by an officer and stored as part of standard CBP 
processes.\221\ All data in ATS and USEC is treated and retained in 
accordance with the relevant retention schedules.\222\ These systems 
are subject to continuous evaluation of security protocols so that CBP 
may quickly respond if there is a change in the risk posture in any of 
the systems. The information CBP collects via the CBP One app and 
transmits to downstream systems is the same information CBP already 
collects when a noncitizen encounters a CBP officer at a POE--it is 
simply collected earlier to make processing at the POE more orderly and 
efficient.\223\ CBP has published a Privacy Impact Assessment (``PIA'') 
for the CBP One app generally and a standalone, function-specific PIA 
for the collection of advance information from certain undocumented 
noncitizens.\224\
---------------------------------------------------------------------------

    \215\ See DHS, Instruction 047-01-003 (Rev. 00.1), Privacy 
Policy for DHS Mobile Applications 7-10 (Dec. 14, 2018), https://www.dhs.gov/publication/privacy-policy-dhs-mobile-applications.
    \216\ Id.
    \217\ See id. at 10.
    \218\ See DHS, DHS 4300A Sensitive Systems Handbook 47 (Nov. 15, 
2015), https://www.dhs.gov/publication/dhs-4300a-sensitive-systems-handbook.
    \219\ See CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for 
CBP OneTM Mobile Application 4 (Feb. 19, 2021), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf. CBP has updated this impact 
assessment multiple times since February 19, 2021.
    \220\ See id. at 15.
    \221\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for 
the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 11-12, 21 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
    \222\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for 
the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 10, 13 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
    \223\ See id. at 17-18.
    \224\ CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for CBP 
OneTM Mobile Application (Feb. 19, 2021), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf; CBP, DHS/CBP/PIA-076, Privacy 
Impact Assessment for the Collection of Advance Information from 
Certain Undocumented Individuals on the Land Border (Jan. 19, 2023), 
https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
---------------------------------------------------------------------------

    With regard to the commenters' concerns regarding privacy notices 
related to biometrics and facial recognition technology, CBP takes such 
concerns seriously. In the referenced GAO audit, GAO-20-568, GAO made 
five recommendations to CBP, with which CBP concurred. Three of the 
recommendations were related to privacy considerations, including (1) 
ensuring privacy notices are complete and current, (2) ensuring notices 
are available at all locations using facial recognition technology, and 
(3) developing and implementing a plan to audit its program partners 
for privacy compliance.\225\ At the time of the publication of the 
NPRM, all of these privacy-related recommendations had been 
implemented, and the recommendations were closed by GAO.\226\ CBP has 
since created a new website that outlines the locations (air, land, and 
seaports) where CBP uses facial comparison technology, and CBP 
continues to take steps to ensure that appropriate notice is provided 
to travelers.\227\
---------------------------------------------------------------------------

    \225\ See GAO, Facial Recognition: CBP and TSA are Taking Steps 
to Implement Programs, but CBP Should Address Privacy and System 
Performance Issues 72-73 (Sept. 2020), https://www.gao.gov/assets/gao-20-568.pdf.
    \226\ GAO, Facial Recognition: CBP and TSA are Taking Steps to 
Implement Programs, but CBP Should Address Privacy and System 
Performance Issues, https://www.gao.gov/products/gao-20-568 
(reporting on the changes that CBP made that resulted in closure of 
the recommendations).
    \227\ CBP, Say Hello to the New Face of Speed, Security and 
Safety: Introducing Biometric Facial Comparison, https://biometrics.cbp.gov/ (last visited May 1, 2023).
---------------------------------------------------------------------------

    With regard to commenters' concerns about Login.gov, the 
Departments note that Login.gov is owned and operated by the General 
Services Administration (``GSA''),\228\ and thus the Departments have 
no control over the data privacy or data security considerations of 
that platform. However, the Departments note that GSA has a system 
security plan for Login.gov, and Login.gov has an ATO.\229\
---------------------------------------------------------------------------

    \228\ See GSA, Privacy Impact Assessment for Login.gov 1, 5 
(Mar. 17, 2023), https://www.gsa.gov/cdnstatic/Logingov_PIA_March2023.pdf.
    \229\ See id. at 27.
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    Comment: At least one commenter raised a concern that the CBP One 
app is an untested pilot program.
    Response: The Departments respectfully disagree. The CBP One app 
was initially launched in October 2020 to serve as a single portal to 
access CBP services.\230\ In May 2021, CBP updated the app to provide 
the ability for certain NGOs to submit information to CBP on

[[Page 31398]]

behalf of an undocumented noncitizen and schedule a time for such 
undocumented noncitizens to present at a POE to be considered for an 
exception from the Title 42 public health Order.\231\ This 
functionality included submitting individuals' information in advance, 
including a photo, and scheduling a date and time to present at a 
POE.\232\ In April 2022, CBP expanded the ability for noncitizens to 
directly submit information and schedule appointments to present at a 
land border POE to noncitizens seeking to enter the United States under 
the U4U process.\233\ To further expand the accessibility of the CBP 
One Title 42 exception process, in January 2023, the advance 
information submission and scheduling process was made publicly 
available to all undocumented noncitizens seeking to travel to a land 
POE to be considered for an exception to the Title 42 public health 
Order.\234\ Significant enhancements and changes to the CBP One app 
have been and will continue to be made in response to user and 
stakeholder feedback.\235\
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    \230\ CBP, CBP OneTM Mobile Application (Apr. 10, 
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \231\ CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for the 
Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 4 (Jan. 19, 2023), https://www.dhs.gov/publication/dhscbppia-076-collection-advance-information-certain-undocumented-individuals-land.
    \232\ Id.
    \233\ CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for CBP 
OneTM Mobile Application 16-17 (Feb. 19, 2021), https://www.dhs.gov/publication/dhscbppia-068-cbp-one-mobile-application.
    \234\ Id. at 17-18.
    \235\ CBP, CBP OneTM Mobile Application (Apr. 10, 
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
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    Comment: Commenters stated that the CBP One app is not workable. 
For example, commenters stated that there are more migrants seeking 
asylum than there are appointments available, that the number of 
appointments was entirely too limited, that the rule does not provide 
for a minimum number of appointments, and that after a final rule is 
issued, demand for appointments would only increase. Another commenter 
noted that the INA does not limit the number of people who may arrive 
at a POE, nor does the rule provide information about how the 
government will apportion daily appointments. This commenter also noted 
that the number of appointments at the border is currently ``capped,'' 
but that this limitation is not legally binding and could be increased. 
At least one commenter said it would be ``inherently unjust to demand'' 
that individuals use an information system that cannot handle the 
number of people expected to use it. Commenters argued that requiring 
use of this system will create a backlog and require people to wait for 
their appointments for a significant period of time in Mexico.
    Other commenters raised concerns about flaws in the CBP One app and 
suggested it would empower smugglers. Commenters noted that the CBP One 
app was created for other purposes and not as an appointment system for 
asylum seekers. A commenter noted that some individuals have to create 
a new account every day because of flaws in the app. Another commenter 
asserted that there is a significant risk that appointments will be 
resold, pointing to a lack of security within the app that would permit 
such resale. Commenters also stated that CBP indicated that criminal 
groups were creating fraudulent appointments to obtain information and 
funds from asylum seekers seeking entry to the United States. A 
commenter stated that requiring use of the CBP One app has already led 
to increased exploitation by criminal groups and others who seek to 
take advantage of migrants and is likely to push individuals to travel 
by more dangerous routes. Another commenter noted that the availability 
of appointments only at certain POEs had led to migrants traversing 
dangerous parts of Mexico to travel to a POE for their appointment. The 
commenter stated that traversing Mexico was particularly difficult 
because transportation companies and Mexican authorities impede 
migrants' ability to travel through Mexico. Another commenter 
recommended the creation of a process parallel to the CBP One app 
process for highly vulnerable migrants to be considered for entry into 
the United States in an expedited manner. At least one commenter stated 
that the CBP One app should allow for prioritization based on 
vulnerability. Another commenter stated that smugglers will have more 
power because of the limited number of appointments, as people will pay 
smugglers to find alternate routes into the United States.
    Response: The Departments acknowledge that there are currently many 
migrants waiting to present at a POE and that demand for CBP One app 
appointments may exceed the number of appointments that can reasonably 
be made available on a given day. However, CBP is committed to 
processing as many individuals at POEs as operationally feasible, based 
on available resources and capacity, while executing CBP's mission to 
protect national security and facilitate lawful trade and travel.\236\ 
While the Title 42 public health Order remains in effect, the CBP One 
app is being used to schedule appointments for individuals who are 
seeking to present at a land POE to be considered for an exception from 
the Title 42 public health Order. During this time, the number of 
appointments available has been limited. However, when the Title 42 
public health Order is lifted, CBP intends to increase the number of 
available appointments and anticipates processing several times more 
migrants each day at SWB POEs than the 2010 through 2016 daily average, 
including through use of the CBP One app.\237\ While CBP recognizes and 
acknowledges that demand for appointments may exceed the number of 
appointments that can reasonably be made available on a given date, 
there has been a large number of migrants waiting in Mexico to enter 
the United States since long before the introduction of the app, and 
CBP expects that use of the app will help facilitate the processing of 
such individuals. The CBP One app is a scheduling tool that provides 
efficiencies and streamlines processing at POEs. Additionally, while 
CBP acknowledges that some noncitizens who are unable to schedule an 
appointment might conceivably turn to smuggling or more dangerous 
routes, CBP is implementing changes to the CBP One app to permit 
noncitizens to select a preferred arrival POE in an effort to mitigate 
any perceived need to travel to another location. Additionally, CBP is 
transitioning scheduling in the CBP One app to a daily appointment 
allocation process to allow noncitizens additional time to complete the 
process. This process change will allow noncitizens to submit a request 
for an appointment, and available appointments will then be allocated 
to those who made such a request, and the app will now provide a 23-
hour period

[[Page 31399]]

for individuals allotted appointments to complete the scheduling 
process and confirm their appointments. In addition to the increased 
number of appointments made available after the end of the Title 42 
public health Order, it is anticipated that these changes will reduce 
the likelihood of noncitizens seeking to travel by alternate routes.
---------------------------------------------------------------------------

    \236\ Memorandum for William A. Ferrara, Exec. Ass't Comm'r, 
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP, 
Re: Guidance for Management and Processing of Undocumented 
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021), 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
    \237\ See CBP STAT Division, U.S. Customs and Border Protection 
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of 
Field Operations (OFO) Daily Average (internal data report, 
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec. 
Ass't Comm'r, Off. of Field Operations, from Troy A. Miller, Acting 
Comm'r, CBP, Re: Guidance for Management and Processing of 
Undocumented Noncitizens at Southwest Border Land Ports of Entry 
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
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    The capacity to process migrants at POEs and the utilization of the 
CBP One app to secure appointments are separate and distinct issues. 
Officers will process all individuals who present at a POE regardless 
of a CBP One app appointment. Although a noncitizen who presents at a 
POE without an appointment may be subject to the rebuttable presumption 
under this rule, they will be able to present any protection claims, as 
well as any evidence to rebut the presumption or establish an exception 
to its application--including evidence related to their inability to 
access the CBP One app due to language barrier, illiteracy, significant 
technical failure, or other ongoing and serious obstacle--during either 
expedited removal or section 240 removal proceedings, with an AO or IJ, 
as applicable. Processing times will vary based on capacity and 
available resources, and those without a CBP One app appointment may be 
subject to longer wait times before being processed by a CBP officer.
    With regard to commenters' suggestions regarding the prioritization 
of vulnerable individuals, the Departments decline to adopt such a 
process. As an initial matter, the Departments reiterate that the CBP 
One app is a method of facilitating entry into the United States. Once 
individuals are present in the United States at a POE, CBP must inspect 
and process all noncitizens, regardless of vulnerability. See, e.g., 
INA 235(a)(3), 8 U.S.C. 1225(a)(3); 8 CFR 235.1(a). While in some cases 
an individual who is particularly vulnerable may warrant more 
expeditious processing, such prioritization and processing does not 
occur until the individual is physically present in the United States. 
In other words, while an individual's vulnerability may, in some cases, 
be a factor in the noncitizen's processing disposition at the time of 
processing, this vulnerability is not validated or taken into account 
prior to a migrant's arrival in the United States in the context of the 
CBP One app.
    Comment: Commenters raised concerns about limitations on where and 
when an appointment can be made using the CBP One app. One commenter 
noted that the geofencing portion of the app does not perform 
accurately, as indicated by individuals who are present in Mexico 
receiving error messages saying they are not. Another commenter noted 
that, since the geofencing limits where people can be to make 
appointments, they have no option but to make a dangerous journey 
before they even begin a lawful process; the commenter urged instead 
that individuals be permitted to schedule appointments prior to 
embarking on their journey to ensure that appointments are provided in 
a fair manner. At least one commenter expressed concern that 
individuals would use Virtual Private Networks to do an end run around 
the geofencing. Another commenter stated that the app allows for 
scheduling appointments up to 13 days in advance, but that individuals 
accessing the app from their home countries may not be able to make it 
to the United States in 13 days. Similarly, a commenter stated that, 
although the rule contemplated expanding CBP One access to locations 
beyond the SWB, such an expansion would not alleviate the risk of harm 
that migrants face, as it would not be possible for the migrant to 
schedule a date and time to present at a POE before leaving their home 
country, and migrants seeking to access the app from their home 
countries would lack access to NGOs and other entities at the SWB that 
could provide assistance.
    Response: At this time, the ability to schedule an appointment 
through the CBP One app is available only to migrants located in 
central and northern Mexico.\238\ The geofenced area allows migrants to 
remain in shelters and other support networks instead of congregating 
at the border in unsafe conditions, facilitating a safe and orderly 
presentation at POEs. The app does not facilitate travel to Mexico in 
order to schedule an appointment to present at a POE. Individuals 
outside northern and central Mexico are encouraged to use various 
pathways available to lawfully travel to the United States, and they 
will be able to use the app once they are in the geofenced area and 
thus closer to the United States.
---------------------------------------------------------------------------

    \238\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for 
the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 6 n.24 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
---------------------------------------------------------------------------

    CBP is aware of reports of users attempting to circumvent the 
geofenced area and has taken steps to prevent this from occurring. CBP 
has also received reports of users who were in Mexico in close 
proximity to the SWB, but whose phones were showing that they were 
within the United States, thus generating error messages. To address 
this issue, CBP adjusted the geofencing to accommodate individuals 
located in Mexico in close proximity to the SWB.
    Comment: Some commenters stated that requiring people to wait in 
Mexico until their appointment date is dangerous, as indicated, for 
example, by the number of violent attacks on migrants who have been 
turned back under the Title 42 public health Order since President 
Biden took office and the dangers that individuals faced in Mexico 
during MPP. One commenter expressed concern that the rule included no 
exception to the rebuttable presumption for asylum seekers' inability 
to secure a timely opportunity to present themselves, even though CBP 
One appointments have been ``extremely difficult to access'' and have 
taken weeks or months to secure. Another commenter noted that the 
first-come, first-served scheduling design is haphazard, and that there 
is no priority for migrants who have been waiting for longer periods of 
time.
    Another commenter cited a Human Rights First study that found that 
there were 1,544 reported cases of violence against asylum seekers--
including two murders--during the first two years of MPP. One commenter 
stated that the delays caused by the CBP One app increase the dangers 
for those waiting for a POE appointment in Mexico. Commenters stated 
that asylum seekers who are unable to secure appointments through the 
CBP One app will be forced to remain indefinitely at the border in 
dangerous conditions, including conditions where they have no access to 
or must rely on third parties for safe housing, food, electricity, 
internet, or stable income, all while continuing to try to make an 
appointment. One commenter noted that this was particularly problematic 
for those with chronic or serious health problems because access to 
health care in areas where individuals must wait is limited. Commenters 
expressed concern that criminal organizations, including cartels, could 
exploit individuals during the period that they must remain in northern 
Mexico waiting for an appointment. Another commenter expressed concern 
that those individuals in Mexico awaiting an appointment are at risk of 
deportation to their home countries, where they could experience 
persecution.
    A commenter also stated that the United States Government should 
engage with the Government of Mexico to ensure that noncitizens waiting 
in Mexico for a CBP One app appointment have documents authorizing a

[[Page 31400]]

temporary stay in Mexico for that purpose and that the lack of official 
documents regarding status in Mexico leaves noncitizens at risk of 
fraud and abuse. Another commenter recommended that CBP provide 
instruction on the use of the app to personnel in Mexico.
    Response: The Departments acknowledge that individuals seeking to 
make an appointment to present at a POE will generally need to wait in 
Mexico prior to their appointment. The Departments also acknowledge 
that, in some cases, the conditions in which such individuals wait may 
be dangerous. However, noncitizens are currently waiting in northern 
Mexico, and, as addressed in the NPRM, the Departments anticipate that 
larger numbers of individuals will seek to enter the United States 
after the lifting of the Title 42 public health Order. See 88 FR at 
11705. Therefore, as noted in the NPRM, the Departments have concluded 
that this anticipated influx warrants the implementation of a more 
transparent and efficient system for facilitating orderly processing 
into the United States. Although the use of the CBP One app may, as 
commenters noted, sometimes cause delays, the Departments believe that, 
on balance, the benefits of the more transparent and efficient system 
created by use of the app outweigh the drawbacks and that use of the 
app will ultimately inure to noncitizens' benefit by allowing the 
Departments to more expeditiously resolve their claims. CBP has 
conducted extensive outreach and communication with stakeholders who 
may be able to assist noncitizens in accessing the CBP One app to 
register and schedule an appointment, including shelters and other 
entities in Mexico.
    The Departments also note that migrants are not categorically 
required to preschedule an appointment to present at a POE, and all 
migrants who arrive at a POE, regardless of whether they have an 
appointment, will be inspected and processed. Migrants who present 
without an appointment may be subject to the presumption, but, among 
other exceptions, the presumption will not apply for those for whom it 
was not possible to access or use the DHS scheduling system due to 
language barrier, illiteracy, significant technical failure, or other 
ongoing and serious obstacle. 8 CFR 208.33(a)(2)(ii)(B), 
1208.33(a)(2)(ii)(B). Additionally, migrants who demonstrate 
``exceptionally compelling circumstances,'' such as an imminent and 
extreme threat to their life or safety, an acute medical emergency, or 
status as a victim of a severe form of trafficking, may rebut the 
presumption, in accordance with 8 CFR 208.33(a)(3)(i)(A) through (C), 
1208.33(a)(3)(i)(A) through (C).
b. CBP One App Accessibility
    Comment: Commenters expressed a range of concerns regarding the 
accessibility of the CBP One app for migrants seeking to enter the 
United States.
    Many commenters stated the CBP One app is not available to all 
migrants, especially those who do not have smartphones, reliable 
internet access, or passports, and that all appointments are claimed 
almost immediately because the supply is insufficient. Multiple 
commenters suggested that many low-income individuals do not have 
access to a working phone or the internet in their home country, making 
use of the CBP One app infeasible. Commenters stated that many 
oppressive regimes limit access to the internet and asked how the 
Departments planned to provide access to the CBP One app to migrants in 
such countries. Relatedly, at least one commenter conveyed, 
anecdotally, that some migrants with limited economic means are 
forgoing food so that they can purchase enough data to attempt to make 
an appointment on the CBP One app to cross the SWB and seek asylum in 
the United States. Some commenters noted that many migrants become 
victims of crime while traveling to the United States, and their phones 
may be stolen, lost, or broken. Another commenter pointed out that some 
individuals may have phones but cannot afford to pay for telephone 
services for the phone. A commenter stated that it was unreasonable to 
place the burden on migrants to obtain internet and broadband access, 
as some migrants must choose between ``sustenance and digital access.'' 
The commenter stated that this requirement perpetuated the crisis of 
unequal access to justice. At least one commenter noted that 
individuals may dispose of their cell phones out of concern that those 
they fear could track them using that phone and so no longer have a 
smartphone to use the CBP One app. One commenter suggested finding 
donors to provide phones for families to schedule appointments.
    Others stated concerns with relying on a web and mobile application 
because technology can fail. At least one commenter stated that the 
Departments should not rely only on the CBP One app because cellular 
signals along the SWB are inconsistent and Wi-Fi options are limited, 
and some migrants, such as Afghans who travel through South and Central 
America, do not have local connectivity. At least one commenter asked 
how having a cell phone with good coverage so a migrant can obtain an 
appointment relates to the merits of their asylum claim, while another 
stated that migrants without internet access would effectively be held 
to a higher standard than those with internet access, which many would 
not be able to overcome due to the lack of legal representation in 
initial screenings.
    Another commenter stated that the rule did not provide sufficient 
information on how the Government conducted a study of the number of 
migrants who may have smartphones. Another asserted that the study had 
a sampling bias since it only surveyed individuals seeking a Title 42 
exception, which they claimed required the use of the CBP One app. A 
commenter provided data comparing the percentages of smartphone 
ownership in Mexico, Cuba, Haiti, Nicaragua, and Venezuela, which, they 
stated, showed that while Mexico and Haiti had a high percentage of 
users, Nicaragua and Venezuela did not. On the other hand, at least one 
commenter noted that cell phones, including smartphones, are very 
common and that as a result people should be able to apply for CBP One 
app appointments.
    Other commenters noted that people who cannot use the application 
would be at a serious risk of being turned away at the border and 
disagreed with the Departments' statements to the contrary.
    A commenter claimed that CBP has yet to implement a desktop version 
of the app and has provided little clarity on whether and when such a 
version would be available. The commenter also stated that many 
migrants lack regular access to desktop computers.
    Response: The Departments disagree that the CBP One app is a 
barrier to seeking asylum. The Departments also disagree with the 
contention that this rule sets up a linkage between access to an 
adequate cell phone or internet and the merits of an individual's 
asylum claim. Rather, the CBP One app is a tool that DHS has 
established to process the flow of noncitizens seeking to enter the 
United States in an orderly and efficient fashion. CBP intends to 
increase the number of available appointments when the Title 42 public 
health Order is lifted and anticipates processing several times more 
migrants each day at the SWB POEs than the 2010-2016 daily average, 
including through use of the CBP One app.\239\ Further, noncitizens who

[[Page 31401]]

present at a POE without using the CBP One app are not automatically 
barred from asylum.\240\ The determination of whether the rebuttable 
presumption applies will be determined by an AO during the credible 
fear process or by an IJ in section 240 removal proceedings, at which 
time the noncitizen can demonstrate it was not possible to use the CBP 
One app due to language barrier, illiteracy, significant technical 
failure, or other ongoing and serious obstacle. CBP officers will not 
be making determinations about whether the rebuttable presumption is 
applicable.
---------------------------------------------------------------------------

    \239\ See CBP, CBP STAT, U.S. Customs and Border Protection 
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of 
Field Operations (OFO) Daily Average (internal data report, 
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec. 
Ass't Comm'r, Off of Field Operations, CBP, from Troy A. Miller, 
Acting Comm'r, CBP, Guidance for Management and Processing of 
Undocumented Noncitizens at Southwest Border Land Ports of Entry 
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
    \240\ In addition, under this rule, any noncitizen will be able 
to present at a POE, and CBP will not turn away any individuals--
regardless of manner of entry into the United States--or deny them 
the opportunity to seek admission to the United States. However, 
those who arrive at a POE without an appointment via the CBP One app 
may be subject to longer wait times for processing depending on 
daily operational constraints and circumstances.
---------------------------------------------------------------------------

    The CBP One app is free to use and publicly available. As noted in 
the NPRM, a limited study conducted at two POEs in December 2022 found 
that individuals had a smartphone in 93 out of 95 Title 42 exception 
cases. At the time of this survey, migrants were not required to 
utilize the CBP One app to schedule an appointment to be considered for 
a Title 42 exception; that requirement was implemented in January 
2023.\241\ Additionally, independent studies demonstrate that 
approximately two-thirds of individuals worldwide had smartphones by 
2020.\242\ The Departments acknowledge that other studies provided by 
commenters show varying rates of smartphone access among migrants, that 
not all migrants may have access to a smartphone or be able to easily 
use the CBP One app, and that lack of smartphone access may hinder a 
migrant's ability to use the CBP One app. However, individuals who do 
not have a smartphone or who have other phone-related problems can seek 
assistance from trusted partners, who may be able to share their phones 
or provide translation or technical assistance if needed to submit 
information in advance. In addition, CBP has conducted extensive 
engagement with NGOs and stakeholders and has received feedback and 
information about the challenges associated with the use of the CBP One 
app. Throughout these engagements, access to smartphones has been 
raised, although not as a significant concern for most individuals. CBP 
is aware that NGOs provide support and assistance with access to mobile 
devices and internet connectivity. CBP notes that from January 12, 
2023, when appointment scheduling launched, through the end of March 
2023, over 74,000 noncitizens have scheduled an appointment via the CBP 
One app.\243\
---------------------------------------------------------------------------

    \241\ See CBP, CBP OneTM Mobile Application (Apr. 10, 
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \242\ Allan Jay, Number of Smartphone and Mobile Phone Users 
Worldwide in 2022/2023: Demographics, Statistics, Predictions (Mar. 
16, 2023), https://financesonline.com/number-of-smartphone-users-worldwide/.
    \243\ CBP, CBP Releases March 2023 Monthly Operational Update 
(Apr. 17, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-march-2023-monthly-operational-update.
---------------------------------------------------------------------------

    Nevertheless, CBP acknowledges there can be connectivity gaps and 
unreliable Wi-Fi in central and northern Mexico. CBP reiterates that 
the use of the app to schedule an appointment to present at a POE is 
geofenced to only those migrants who are present in central and 
northern Mexico, and so commenters' concerns regarding internet 
censorship in other countries are misplaced. However, in response to 
feedback about connectivity issues, on February 18 and 23, 2023, CBP 
released updates to the CBP One app to improve the submission and 
scheduling process for individuals with lower bandwidth. In addition, 
based on user and stakeholder feedback, CBP will transition CBP One 
scheduling to a daily appointment allocation process to allow 
noncitizens additional time to complete the process. This process 
change will allow noncitizens to submit a request for an appointment, 
and then available appointments will be allocated to those who made 
such a request. Individuals who are issued an appointment will have a 
23-hour period to complete the scheduling process and confirm their 
appointment. Each day, unconfirmed appointments will be reallocated 
among the current pool of registrations. This change will reduce the 
burden on the noncitizen to have connectivity at the precise moment of 
the daily appointment release, as is currently the case. This process 
will also enable noncitizens to request a preferred POE at which to 
schedule an appointment. Future and ongoing enhancements to the app are 
expected based on user and stakeholder feedback to ensure equity in the 
scheduling process.
    The Departments acknowledge concerns about the availability of a 
desktop app for scheduling appointments. There is currently a desktop 
version of the CBP One app,\244\ but it is not currently available for 
noncitizens to submit advance information. CBP is updating the desktop 
capability to provide the ability for undocumented noncitizens to 
register via the desktop version. This update is expected to be 
available in summer 2023. However, CBP does not have plans to enable 
users to schedule an appointment using the desktop version of the CBP 
One app because the desktop version does not allow for specific 
requirements that CBP has determined are needed such as geofencing and 
a live photo. This scheduling functionality will only be available via 
a mobile device.
---------------------------------------------------------------------------

    \244\ See CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for 
CBP OneTM Mobile Application 15 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf.
---------------------------------------------------------------------------

    CBP notes that commenters' concerns about access to the CBP One app 
are misplaced. Noncitizens seeking to schedule an appointment to 
present at a land POE are not required to have a passport.\245\ Other 
functions of the CBP One app, including the Advance Travel 
Authorization (``ATA'') functionality used as part of the CHNV parole 
processes, require an individual to provide their passport 
information.\246\
---------------------------------------------------------------------------

    \245\ See id. at 15 n.18.
    \246\ See id. at 21-22.
---------------------------------------------------------------------------

    Comment: One commenter expressed concerns that the Departments 
relied on use of the CBP One app among the Venezuelan population as 
part of the CHNV parole processes to justify use of the CBP One 
exception in this rule. In particular, the commenter asserted that the 
use of the app among the Venezuelan population seeking to travel to the 
United States to seek parole was not a good indicator of the app's use 
among other populations of migrants, many of whom were less technically 
savvy and required more assistance with the app.
    Response: This commenter's concern is misplaced because the 
Departments have not relied on any data regarding Venezuelan migrants' 
access to CBP One in this rule. The Departments acknowledge and agree 
that use of the CBP One app in the ATA context is not comparable to the 
use of the app to seek an appointment to present at a POE and note that 
the ATA process is separate and distinct from the use of the CBP One 
app to schedule an appointment to present at a POE.
    Comment: Commenters also stated that use of the CBP One app is 
particularly difficult for families who

[[Page 31402]]

may be unable to make appointments together. Another commenter stated 
that families may not have time to register together before all of the 
appointments are taken. Other commenters noted that family separation 
may occur because of both stress and confusion. Another commenter noted 
that CBP officers told individuals that they had the option of leaving 
children behind, trying to get another appointment, or sending children 
alone, underscoring that the CBP One app increases the likelihood that 
families will separate themselves in order to get appointments or to 
enter the United States. At least one commenter noted that there should 
be an adequate number of appointments set aside for families. 
Commenters also stated that the CBP One app is insufficient as a lawful 
pathway because it does not allow families to register together. One 
commenter, a legal services provider, stated that it had raised 
concerns to CBP about the length of time that families were waiting to 
seek an appointment. The commenter stated that CBP told the entity that 
the delay for families was likely a result of criminal groups making 
fraudulent appointments, which the commenter concluded was evidence 
that expansion of the CBP One app would increase exploitation of 
migrants. One legal services clinic stated that it had been informed by 
a CBP Field Office on the SWB in March 2023 that officers had not 
interviewed any families with more than six members, which was 
concerning given the number of larger families waiting to enter. A 
commenter stated that children should not be held responsible, through 
their eligibility for asylum, for whether their parents used the CBP 
One app to enter. One commenter noted that in February 2023 a family 
was not permitted to enter because the appointment did not list the 
children's names.
    Response: CBP acknowledges the concerns regarding the ability of 
families to submit appointments together and has been working to 
address such concerns. Following the initial implementation, CBP 
received feedback that the app was timing out during the registration 
process of families with babies or young children and determined that 
this was caused by delays in the third-party liveness verification 
(that is, the process to verify that each person listed is, in fact, a 
live person). In February 2023, CBP updated the workflow in the app to 
address this issue by removing liveness detection as part of the 
registration process. Users are now only required to take a still photo 
of each traveler at the time of registration, the same action as if 
taking any photo from a mobile device, which only takes a few seconds. 
Following this update to remove liveness detection from the 
registration process, CBP has received feedback from NGOs that there 
are fewer reported errors.
    CBP has also consolidated appointment slots to increase the number 
of available appointments at the same time, where feasible, making it 
easier for family units to get an appointment together. For example, if 
a POE previously had two separate appointment times with 10 
appointments each, they might have been combined to create one 
appointment time with 20 slots, making it easier to accommodate larger 
groups.
    CBP continues to advise users and NGOs that one member of the 
family should create a registration on behalf of the entire family. 
While each member of a family must have a unique appointment, one 
member of a family can create the submission on behalf of the entire 
family group and complete the scheduling process, including the photo 
capture, to secure appointments for all registered family members. 
Functionally, this is similar to buying airline tickets. A designated 
person accesses the website, the website ensures there are seats for 
the indicated number of people, and the designated person provides the 
details for each individual to complete the purchase. At this stage, 
only the individual submitting the registration on the family's behalf 
is required to provide a live photograph.
    Following the rollout of these enhancements, as of April 18, 2023, 
CBP data show that, for appointments scheduled from March 8, 2023, 
through May 1, 2023, groups make up an average of 83 percent of the CBP 
One scheduled appointments. Families or groups who do not register 
together on one CBP One account may not be accommodated at the same POE 
or on the same date. The Departments acknowledge that challenges remain 
for larger families, but the Departments believe that these changes 
have significantly ameliorated the concerns raised by commenters that 
family groups have been unable to obtain appointments.
    CBP shares commenters' concerns about fraud and exploitation and 
has taken several steps to try to mitigate such issues. Specifically, 
the app uses 1-to-1 facial matching, meaning that it compares still 
photos submitted by users during the registration process to subsequent 
photos submitted by the same users while scheduling an appointment. 
This photo matching helps to ensure that the individual making an 
appointment is the same person who registered for the appointment. 
Additionally, the app's liveness detection verifies that a person 
submitting an appointment is, in fact, a live person. Finally, users 
have a limited number of submissions per Login.gov authenticated 
identity, helping to prevent one individual from submitting bulk 
appointment requests.
    With respect to the comment stating that children should not be 
held responsible for whether their parents used the CBP One app to 
enter, the Departments note that they have exempted from this ongoing 
application of the rebuttable presumption noncitizens who entered the 
United States during the two-year period while under the age of 18 and 
who later seek asylum as principal applicants after the two-year 
period. 8 CFR 208.33(c)(2), 1208.33(d)(2).
    Comment: Commenters noted that the app is only available in 
English, Spanish, and Haitian Creole, which limits accessibility for 
many, such as speakers of indigenous languages or other languages 
outside this limited list. A commenter referred to a study that, in 
January 2021, identified more than forty different languages spoken by 
individuals with pending MPP proceedings, which, according to the 
commenter, rendered it ``alarming'' that the app was available in only 
three. One commenter stated that, as of January 2023, the app was not 
available in Creole. Other commenters expressed concern about those who 
may be illiterate who are still seeking to access the app, including 
those who may not be literate in one of the languages available on the 
app. At least one commenter noted that Login.gov is also only available 
in English, Spanish, and French, noting that based on at least one 
report these are not the most common languages and that third party 
assistance does not adequately address this concern. Another commenter 
stated that due to limited resources and high demand, it is not clear 
whether non-profit service providers will be able to help asylum 
seekers overcome the CBP One app's language barriers.
    Commenters also expressed concern about specific portions of the 
CBP One app that they stated are only available in English. 
Specifically, commenters stated that the CBP One app's advisals 
regarding the terms and conditions of use and the repercussions of 
fraud or willful misrepresentation are presented exclusively in 
English. Other commenters said that all answers entered into the app 
must be in English, resulting in many individuals requiring assistance, 
including Spanish and Haitian Creole speakers, even though

[[Page 31403]]

the CBP One app is available in their native language. Other commenters 
noted that the app's error messages are only in English, even if the 
user selects a different language, which makes using the app difficult 
for asylum seekers who cannot understand English. Commenters expressed 
that the limited availability of interpreters and the time required to 
enter information using interpreters added to difficulties in obtaining 
appointments through the CBP One app for non-English speakers. 
Commenters maintained that translating the CBP One app into additional 
languages would not resolve access issues for individuals with no or 
limited literacy.
    Commenters also expressed concern about migrants' ability to meet 
the language barrier exception. One commenter stated that asylum 
seekers will struggle to meet the language barrier exception because 
the rule does not provide a clear process for how they can demonstrate 
that they were unable to use the CBP One app due to language issues. 
The commenter stated it is unclear whether the asylum seekers must show 
that they sought help from a third party before presenting themselves 
at a POE. One commenter stated that the rule does not explain how 
noncitizens with language, literacy, or technology issues can access 
this exception.
    Response: As commenters noted, the CBP One app is currently 
available in English, Spanish, and Haitian Creole. The addition of 
Haitian Creole, on February 1, 2023, was based on stakeholder feedback. 
The translation of terms and conditions into all three languages was 
added on April 6, 2023. Initial analysis conducted in March 2023 
indicated the current three languages account for 82 percent of the 
application users, with the next most common language being Russian, at 
9 percent. Currently, CBP has not received any requests to make the app 
available in Russian. However, CBP will continue to consider the 
inclusion of additional primary languages, which will be made available 
based on analysis of populations encountered at the border and user 
feedback. Additionally, outside entities, including NGOs, or other 
persons may provide assistance with the appointment scheduling process 
in the CBP One app.
    CBP is also implementing the translation of all drop-down menus as 
well as allowing for special characters, which is expected to be 
complete by May 11, 2023. This update will also allow users to input 
answers in the three available languages. While most of the error 
messages are translated, CBP acknowledges that not all messages are 
translated, as a few system errors stem from different sources that do 
not have translation capabilities. However, CBP also has detailed user 
guides--which are available in English and Spanish (and Haitian Creole 
by the end of May 2023)--fact sheets--which are available in English, 
Spanish, Haitian Creole, Portuguese, and Russian--and video 
introductions available for free on the CBP.gov website, which provide 
visual overviews on how to submit information in advance.\247\
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    \247\ CBP, CBP OneTM Mobile Application, https://www.cbp.gov/about/mobile-apps-directory/cbpone.
_____________________________________-

    With regard to Login.gov, that website is an independent 
authentication service for government mobile applications, and 
therefore CBP has no authority to make changes to it. However, CBP has 
submitted a request to GSA to consider adding Haitian Creole as an 
additional language.
    The Departments acknowledge commenters' concerns about application 
of the exception to the rebuttable presumption of asylum ineligibility 
for those who can demonstrate that it was not possible to access or use 
the CBP One app due to language barrier, illiteracy, or another serious 
and ongoing obstacle, 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B), 
and such concerns are discussed further in Section IV.E.3.ii.d of this 
preamble.
    Comment: Commenters stated that the CBP One app is inaccessible for 
many migrants, particularly the most vulnerable. A commenter stated 
that they had done volunteer work with asylum seekers from a few 
African countries and from many Spanish-speaking countries, and that 
reliance on the CBP One app is unfair because it assumes that migrants 
have a level of literacy, electricity, and time that are often 
unavailable to those desperately seeking safety. Another commenter 
noted that those with mental impairments or physical impairments, 
including arthritis, may not be able to use the CBP One app. One 
commenter stated that there is no rebuttal available for people with 
educational, mental, or psychological disabilities or who are unable to 
secure a timely appointment. One commenter stated that the proposed 
rule does not provide reasonable accommodations related to difficulties 
of using the CBP One app for people with disabilities, which the 
commenter asserted violated section 504 of the Rehabilitation Act, 29 
U.S.C. 701 et seq.
    Response: CBP acknowledges that certain individuals may have 
difficulty accessing the CBP One app. However, CBP has taken several 
steps to facilitate awareness of and access to the app. In particular, 
CBP has conducted extensive engagement with NGOs and stakeholders and 
has provided several opportunities to non-profit and advocacy 
organizations to provide feedback and receive information about the use 
of the CBP One app. Such entities may also serve as a resource for 
technological, humanitarian, and other assistance to migrants accessing 
the app. Management at POEs where the app is being utilized are also in 
regular contact with these support organizations to address any issues 
and concerns in real time.
    Additionally, the CBP One app is undergoing a compliance review 
under section 508 of the Rehabilitation Act of 1973, which is expected 
to be completed by the end of May 2023. CBP expects a final 
certification by the end of August 2023. There are also several 
assistive technologies that can be utilized to translate the app 
independently, such as free apps that provide screen readers, 
magnification, and translation.
c. CBP One Technological Issues and Functionality
    Comment: Commenters expressed concerns that the CBP One app has 
multiple glitches and problems, most notably that it allegedly does not 
capture or register darker skin tones and does not allow some 
individuals to upload their photos, instead displaying error messages. 
Some commenters referred to studies that demonstrated racial bias in 
facial recognition technology. One commenter stated that certain 
disabilities or conditions, including blindness and autism, prevented 
users from effectively capturing a live photograph for the app. A 
commenter expressed concern that transgender individuals may present 
differently at the border than they did at the time their photograph 
was taken.
    Response: The Departments are committed to equal access to the CBP 
One app for individuals of all races and ethnicities. At this time, CBP 
has not found any indication of meaningful discrepancies in app 
functionality based on skin tone. The predominant reason for error 
messages during the photo process was the volume of submissions at one 
time with low connectivity and bandwidth of other technological 
platforms that supported the app. To ensure equity for all 
nationalities in the photo process, CBP is continuing to assess and 
study the software's performance.
    For additional context, there are two photo capture technologies 
utilized in the CBP One process: the Traveler Verification Service 
(``TVS'') and

[[Page 31404]]

``liveness detection.'' TVS is a facial recognition technology that 
allows a CBP One submitter's photo to be compared against subsequent 
submitted photos to ensure it is the same individual each time a photo 
is submitted.\248\ This system is utilized at two different points in 
the process: (1) during the process of scheduling an appointment, to 
verify that the photo submitted matches the photo previously provided 
during registration; and (2) upon a noncitizen's arrival at a POE, 
where officers take another photo of the individual as part of the 
inspection process and verify that that photo matches the photograph 
submitted at the time of scheduling. However, there are alternative 
methods to verify that the individual presenting at the POE matches the 
individual who scheduled through CBP One if facial matching is not 
possible. For example, an officer can enter the unique confirmation 
number provided by the CBP One application or biographic data.\249\ 
Additionally, CBP has partnered with the National Institute of 
Standards and Technology, the DHS Science and Technology Directorate, 
and the DHS Office of Biometric Identity Management to assess and test 
facial recognition technology and algorithms as part of efforts to 
improve the effectiveness of the process.\250\ Additional information 
is publicly available in the TVS Privacy Impact Assessment.\251\
---------------------------------------------------------------------------

    \248\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for 
the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 10 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf; CBP, DHS/CBP/PIA-056, 
Privacy Impact Assessment for the Traveler Verification Service 
(2018), https://www.dhs.gov/publication/dhscbppia-056-traveler-verification-service.
    \249\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for 
the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 10-11 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
    \250\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for 
the Traveler Verification Service 15-16 (2018), https://www.dhs.gov/publication/dhscbppia-056-traveler-verification-service.
    \251\ See generally id.
---------------------------------------------------------------------------

    CBP One also relies on ``liveness detection.'' The vast majority of 
feedback CBP has received regarding issues identifying people of color 
were identified as related to liveness detection during the 
registration process. As explained in more detail below, CBP One 
previously utilized liveness detection during both the registration and 
scheduling processes. For context, the CBP One app utilizes third-party 
software to verify ``genuine presence'' or ``liveness'' during 
registration and scheduling an appointment.\252\ The liveness 
verification confirms the user is a live person and is not taking a 
photo of a photo or video.\253\ Such verification ensures that 
appointments are given to bona fide individuals and family groups, 
rather than brokers or middlemen who might seek to book appointments in 
bulk and then sell them to migrants.
---------------------------------------------------------------------------

    \252\ See, e.g., CBP, DHS/CBP/PIA-076, Privacy Impact Assessment 
for the Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border 23 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf; see also DHS, News Release: 
DHS S&T Awards IPROOV $198K to Pilot Genuine Presence Detection and 
Anti-Spoofing Capability (Nov. 6, 2020), https://www.dhs.gov/science-and-technology/news/2020/11/06/news-release-st-award-genuine-presence-detection-and-anti-spoofing.
    \253\ DHS, News Release: DHS S&T Awards IPROOV $198K to Pilot 
Genuine Presence Detection and Anti-Spoofing Capability (Nov. 6, 
2020), https://www.dhs.gov/science-and-technology/news/2020/11/06/news-release-st-award-genuine-presence-detection-and-anti-spoofing.
---------------------------------------------------------------------------

    When the scheduling capability was initially implemented in January 
2023, CBP originally required users to take a live photograph at the 
time they input their biographic information to register for the app, 
and, if they were unable to schedule an appointment at the same time, 
they were required to take a live photograph again at the time they 
scheduled an appointment. This requirement took significant bandwidth, 
which resulted in many users experiencing difficulty. However, based on 
feedback from users and stakeholders, and consistent with its security 
protocols, CBP has determined the liveness check is no longer required 
during the registration process and implemented this change in February 
2023. Therefore, while users are required to submit a photo at the time 
of registration, this photo does not need to be a live photo. Rather, 
the user is only required to submit a live photo at the time of 
scheduling an appointment, so that the liveness check and facial 
matching only occur during the scheduling of the appointment. When 
scheduling an appointment on behalf of a family or group, only one 
member of that family group is required to submit a live photograph. At 
that time, the CBP One app utilizes the live photo and facial matching 
technology to match the photo submitted during scheduling to the 
original photo submitted upon initial registration to verify that both 
photos are of the same person. Thus, an individual must only present 
similarly in photographs at the time of registration and the time of 
submission. Following this change, as well as others made during 
February 2023 to increase bandwidth, CBP has received feedback that 
there are fewer errors.
    In addition, with regard to concerns about disparities based on 
skin tone, the third-party vendor has conducted their own equality 
study, which was provided to CBP, and concluded that across their 
global platform, differences in performance between ethnicities are on 
the order of tenths of a percent. As of the end of March 2023, Haitians 
are one of the top three nationalities using the CBP One app.\254\ 
Regarding concerns about the ability of the app to capture a live 
photograph from individuals with certain disabilities or conditions, 
including blindness and autism, such individuals are not required to 
submit a live photograph if they are part of a family or group, as 
another member of that family or group can submit the live photograph 
on their behalf. In the event that an individual is unable to submit a 
live photograph as part of the submission process, they are encouraged 
to seek assistance from another person to take the photo for them. In 
addition, CBP consistently evaluates the registration and scheduling 
process, including the use of live photographs, and will continue to 
make enhancements and adjust the process based on feedback and 
operations.
---------------------------------------------------------------------------

    \254\ See CBP, CBP Releases March 2023 Monthly Operational 
Update (Apr. 17, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-march-2023-monthly-operational-update.
---------------------------------------------------------------------------

    Comment: Commenters noted a range of technology-related concerns 
with the CBP One app. Commenters described the CBP One app as very 
difficult to use, stating that it often crashes or is prone to 
glitches. Another commenter stated that there have been reports of the 
CBP One app freezing when noncitizens try to send confirmation of their 
interview dates. Some commenters noted that those seeking to enter the 
United States may not have the technical ability to navigate the app. A 
commenter noted that, although the Departments stated in the NPRM that 
CBP had conducted ``extensive testing'' of the app's technical 
capabilities, such statement was not supported by any publicly 
available studies or information. Commenters also recommended that CBP 
develop timely and effective mechanisms to receive and address reports 
of errors in the CBP One app.
    Response: The Departments recognize commenters' frustration with 
the CBP One app. As noted above in Section IV.E.3.ii.a of this 
preamble, CBP systems

[[Page 31405]]

undergo comprehensive testing and evaluation to assess the respective 
security features as part of the process of being granted an ATO.\255\ 
The advanced information and scheduling capabilities addressed in this 
rule in particular have undergone various rounds of testing prior to 
and post deployment. CBP also conducted limited user testing both 
internally and in partnership with an NGO partner. The primary issues 
identified by users since the app's implementation have been caused by 
issues that cannot be fully identified in a testing environment.
---------------------------------------------------------------------------

    \255\ See DHS, DHS 4300A Sensitive Systems Handbook 47 (2015), 
https://www.dhs.gov/publication/dhs-4300a-sensitive-systems-handbook.
---------------------------------------------------------------------------

    CBP continues to make improvements to the app based on stakeholder 
feedback, including updates to enhance usability in low bandwidth and 
connectivity scenarios, and to streamline the submission and scheduling 
process. CBP primarily receives reports of errors or other concerns 
through three mechanisms. The first and primary mechanism is the CBP 
One email inbox,\256\ to which users may send an inquiry or concern 
about any capability within the CBP One app. Since CBP One has many 
capabilities and functionalities, and is available to a diverse 
audience, the inbox initially responds by asking the author to select 
the appropriate topic pertaining to their specific issue. Emails 
related to the ability to schedule appointments at POEs are addressed 
by one of three teams: CBP Customer Service, CBP's Office of 
Information Technology, or the CBP One team within CBP's Office of 
Field Operations. CBP also receives reports of errors or issues through 
recurrent briefings and sessions with NGOs. Third, CBP personnel both 
at local POEs and within CBP Headquarters receive direct email 
communications from NGOs.
---------------------------------------------------------------------------

    \256\ See CBP, CBP OneTM Mobile Application (Apr. 10, 
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
---------------------------------------------------------------------------

    The reported issues are a result of the volume of activity and the 
strain this may put on local bandwidth and connectivity. In an effort 
to improve app performance in low or limited bandwidth and connectivity 
situations, CBP determined the live photo could be removed as part of 
the registration process. This change was implemented in February 2023, 
and based on feedback from NGOs and stakeholders, it has reduced the 
number of reported errors users experienced. CBP is actively working to 
improve application hang-up-error logging and reporting to better 
inform on user complaints and application improvements.
d. Exception for Certain Failures To Pre-Schedule a Time and Place To 
Present at a POE \257\
---------------------------------------------------------------------------

    \257\ This section describes comments and responses related to 
the exception to the rebuttable presumption for noncitizens who 
present at a POE without having pre-scheduled a time and place for 
an appointment. 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). 
Currently, as explained in the NPRM, the only available system for 
scheduling such an appointment is the CBP One app. 88 FR at 11723. 
Accordingly, this section's comments and responses are focused on 
the use of the CBP One app for this exception, although the 
exception would apply similarly to any other scheduling system 
developed for this purpose.
---------------------------------------------------------------------------

    Comment: Commenters provided comments on the proposed exception to 
the presumption for individuals who present at a POE and demonstrate 
that it was not possible to access or use the CBP One app due to 
language barrier, illiteracy, significant technical failure, or another 
serious and ongoing obstacle.
    Regarding the ``illiteracy'' and ``language barrier'' provisions, 
commenters questioned how noncitizens would prove that they cannot 
understand any of the languages offered by the CBP One app, and whether 
testimony about their language proficiency would suffice as evidence 
for an exemption. One commenter said the proposed rule does not provide 
a standard for how officials will determine asylum seekers' language 
proficiency, which could lead to erroneous denials. Another commenter 
said it is unclear whether asylum seekers with language barriers must 
show that they sought help from a third party before presenting 
themselves at a POE. A commenter expressed concern that refugees who 
have basic communication skills in English or Spanish, but who cannot 
read or write proficiently in either of those languages, would wrongly 
be found to not have a language barrier that would exempt them from the 
requirement to use the app. Another commenter wrote that the exemptions 
based on illiteracy and language barriers are reasonably clear but the 
rule should clarify that literacy in the dominant language of a country 
should not be presumed for citizens of that country because, for 
example, many indigenous people in Guatemala do not speak Spanish. One 
commenter expressed concern that individuals with limited English 
proficiency would face difficulty establishing this exception due to 
the unavailability of qualified interpreters and recommended that if 
the Government cannot obtain interpreters for individuals, they should 
be placed directly in section 240 removal proceedings.
    Multiple commenters said the proposed rule fails to clearly define 
what constitutes a ``significant technical failure.'' Several 
commenters said the proposed rule did not outline how individuals could 
document technical difficulties such as app malfunctions or 
inaccessibility. A commenter said it may not be possible to screenshot 
the app to document a glitch if the app is frozen and producing this 
evidence would be hard for migrants in detention where they may not 
have access to their phones. Another commenter asked if this exception 
would include inability to afford a smartphone, having a phone stolen 
or broken, or inability to access stable Wi-Fi. Another commenter 
stated that additional usage of the CBP One app after the Title 42 
public health Order is terminated would likely exacerbate technical 
problems, leading migrants to irregularly cross the border and claim 
that the rebuttable presumption does not apply due to technical 
difficulties.
    One commenter stated that the Departments should update the 
regulatory text to specify that ``significant technical failure'' 
refers to an inability of the DHS scheduling system to provide, on the 
date that the noncitizen attempted to use it, an appointment for entry 
within the two weeks after such attempt, together with the failure of 
that system, when access to it is sought at the POE at which the 
noncitizen has presented, to provide an appointment at that POE within 
the following two weeks. A commenter similarly recommended that, for 
the first 12-18 months after the lifting of the Title 42 public health 
Order, the Departments should assess the application of the exception 
based on a ``more liberal'' standard than the preponderance of the 
evidence, based on an assumption that the CBP One app is likely to have 
numerous technical failures.
    Commenters stated that the proposed rule failed to clearly define 
what constitutes an ``ongoing and serious obstacle.'' Commenters 
questioned whether a failed attempt to make an appointment using the 
CBP One app is likely to be considered sufficient. A commenter also 
stated that the Departments should specify certain foreseeable 
obstacles in the regulations as ongoing and serious obstacles, such as 
mental impairments or physical conditions that affect one's ability to 
use a smartphone. One commenter questioned whether the dangers that 
marginalized asylum seekers face in parts of central and northern 
Mexico

[[Page 31406]]

would be deemed an ongoing and serious obstacle. Another commenter said 
the Departments should provide a list of anticipated obstacles to 
prevent arbitrary and inconsistent determinations and recommended that 
the list ``include, for example, mental impairments; physical 
impairments such as severe arthritis of the hands that prevent the use 
of a cell phone or other device to access the CBP One app; lack of 
access to such a device coupled with poverty such that the noncitizen 
could not reasonably purchase such a device; and a continuing lack of 
appointments in the near future to enter at the POE at which the 
noncitizen has presented.''
    One commenter recommended that if the app is crashing or the 
available appointments are so limited near where the asylum seeker is 
located that they cannot promptly obtain an appointment, then the 
affected asylum seeker should not have the burden of proving the 
impossibility of accessing the system. That commenter proposed that 
USCIS should assign an official to monitor the app and capacity of 
processing facilities and post on a public website whether the app was 
functioning and the availability of appointments. According to that 
commenter, this public information, showing that the app was 
functioning and that prompt entry appointments were available, would 
create a presumption that no significant failure had occurred. 
Similarly, another commenter suggested that the exception should also 
take into account the potential for human error, specifically referring 
to a situation in which a migrant believes they have an appointment, 
the app failed to register that appointment, and a CBP officer permits 
the individual to enter the POE. The commenter stated that, in such a 
case, the migrant ``should not be punished when they are following the 
rules'' and should not be required to show that there were significant 
technical failures. The commenter suggested amending the regulatory 
text so that the rebuttable presumption would not apply if the 
noncitizen shows ``that it was not possible to access or use the DHS 
scheduling system due to language barrier, illiteracy, significant 
technical failure, or human error.'' The commenter also recommended 
amending the regulatory text to include a statement that ``such 
evidence may include data on the performance of the CBP One app which 
DHS will make publicly available as well as records of problems 
reported by users.''
    Commenters also noted potential procedural concerns with 
application of this exception. Some commenters stated that it will be 
difficult for noncitizens to meet the burden of demonstrating this 
exception, since the issue will arise in credible fear interviews when 
people are not likely to be represented. One commenter said it was 
impossible for asylum seekers to show they meet this exception because 
it would require them to prove a negative. Another commenter stated 
that CBP often confiscates people's phones while they are in CBP 
custody or people may have borrowed phones to access the app, meaning 
that they would not have access to the evidence they need to prove they 
encountered obstacles using the CBP One app.
    Commenters said it is unclear who will determine if this exception 
applies and expressed concern that some individuals would be turned 
away without the chance to seek asylum. One commenter wrote that it was 
unclear if the failure of an individual to indicate that they qualify 
for an exemption would be counted against them when an AO reviews their 
case. Another commenter recommended the creation of a standardized form 
of questions for officials to use when determining whether individuals 
should be exempted from the CBP One appointment requirement. One 
commenter wrote that the NPRM failed to consider the practicality of 
conducting the analysis for this exception at the credible fear 
interview stage.
    Some commenters expressed concern that the exception is too broad 
or easy to exploit. One commenter stated that applying the significant 
possibility standard for this exception could result in ``carte 
blanche'' acceptance of testimony that such an obstacle was present and 
thereby undermine the intent of the rulemaking. Others said that this 
exception was broad and easy to exploit because it could encompass a 
wide variety of difficult-to-verify claims, such as losing one's mobile 
phone, losing access to cell service, and being unable to pay for a new 
mobile phone or data plan. One commenter also said that the CBP One 
app's publicized technical issues would make it easy to claim the 
exception. Another commenter stated that, based on the app's rating in 
the app store, the app almost appeared to be ``designed to fail,'' to 
permit noncitizens to take advantage of the exception. Another 
commenter expressed general support for the inclusion of exceptions but 
predicted confusion and that migrants would prefer to present at a POE 
with an exception given the frequency of instances where it is not 
possible to access or use the DHS scheduling system. One commenter 
disagreed with the proposed exception relating to language barriers to 
accessing the CBP One app, asserting that migrants would take advantage 
of this exception to appear at a POE without an appointment. Another 
commenter stated that the rule ``impermissibly'' shifts the burden onto 
DHS to refute a noncitizen's assertion that it was not possible to use 
the app and therefore expressed concern about ``exploitation'' of the 
standard.
    Some commenters recommended that the Departments should expand the 
exception for failure to use the CBP One app when it is not possible to 
do so to include noncitizens who enter the United States without 
inspection, rather than only applying to noncitizens who present at a 
POE.
    Response: The rule provides the same exception set forth in the 
NPRM to the applicability of the rebuttable presumption if the 
noncitizen presented at a POE and demonstrates by a preponderance of 
the evidence that it was not possible to access or use the CBP One app 
due to language barriers, illiteracy, significant technical failure, or 
other ongoing and serious obstacle. See 8 CFR 208.33(a)(2)(ii)(B), 
1208.33(a)(2)(ii)(B). This exception captures a narrow set of 
circumstances in which it was truly not possible for the noncitizen to 
access or use the CBP One app. See 88 FR at 11723 n.173.
    The Departments appreciate the commenters' suggestions about the 
scope of the exceptions in 8 CFR 208.33(a)(2)(ii)(B) and 
1208.33(a)(2)(ii)(B). With regard to the ``illiteracy'' exception, the 
Departments acknowledge and agree that citizenship is not necessarily a 
proxy for literacy in a particular language, and there is no 
presumption in the CBP One app or in this rule regarding a particular 
migrant's language. The Departments note, however, that individuals may 
seek assistance, including translation assistance, in using the app. 
And, to the extent that an individual is unable to access the app due 
to their language barriers, they may be excepted from the presumption, 
as discussed earlier in this preamble. The Departments decline to 
specify precise ways by which a noncitizen must prove, or particular 
language standards by which an AO or IJ must assess, that the 
noncitizen qualifies for a language barrier or illiteracy exception. 
This is to preserve flexibility and account for the unique 
circumstances of certain noncitizens who are illiterate or who face 
language barriers. Exceptions under this part of the rule will be 
assessed on a case-by-case basis.

[[Page 31407]]

    The Departments also acknowledge that the parameters of the 
exception do not include a specific definition of ``significant 
technical failure'' and thank the commenter for their suggested 
definition. However, the Departments decline to add this definition to 
the regulatory text, as the Departments believe that there may be any 
number of ways that an individual could show a ``significant technical 
failure.'' The Departments also note that this exception is intended to 
cover technical failures of the app itself--e.g., the app is not 
available due to a CBP network or server issue causing it to crash--
rather than a situation in which a migrant is unable to schedule an 
appointment due to high demand or one where there is a fleeting, 
temporary technical error. In such a situation, the Departments 
encourage noncitizens to continue seeking to schedule an appointment, 
but, to the extent that they are prevented from doing so because of 
exigent circumstances, they may be able to show that they have 
experienced another ``ongoing and serious obstacle,'' such that they 
are excepted from the presumption. The Departments likewise decline to 
amend the regulatory text to take into account human error or specific 
data on the performance of the CBP One app. As noted above, there may 
be any of number of ways to show a significant technical issue, or, as 
described in more detail below, an ``ongoing and serious obstacle,'' 
which may be specific to the individual user. As noted below, the 
determination of whether the presumption applies will be made on a 
case-by-case basis.
    The Departments appreciate commenters' concerns about what 
constitutes an ``ongoing and serious obstacle.'' The Departments agree 
that an individual with a mental or physical impairment may have 
difficulty accessing the app but decline to add a new categorical 
exception to the regulatory text for individuals with mental or 
physical impairment. This is in part because the Departments do not 
intend to limit the exception to a specified category or group of 
conditions, and AOs and IJs will determine the application of the 
exception on an individualized basis. The Departments also decline to 
create further rules regarding which situations will generally or 
categorically qualify for this exception, including on the basis of 
failed attempts to make an appointment through the CBP One app. This 
will preserve flexibility and account for the unique circumstances that 
noncitizens may face while attempting to schedule an appointment to 
appear at different POEs at different times. Exceptions under this part 
of the rule will be assessed on a case-by-case basis.
    The Departments respectfully disagree with commenters' concerns as 
to noncitizens' ability to establish this exception. First, with regard 
to the commenters' concerns about access to counsel in credible fear 
interviews, that issue is discussed earlier in Section IV.B.5.ii of 
this preamble. The Departments decline to alter the burden of proof 
required for a migrant to show that it truly was not possible for them 
to access the CBP One app. As an initial matter, the Departments note 
that noncitizens outside of the United States have no freestanding 
right to enter, and no right to enter in a particular manner or at a 
particular time. See, e.g., Shaughnessy, 338 U.S. at 542. The CBP One 
app does not alter this longstanding principle, but rather is intended 
to incentivize and facilitate an orderly flow of travel into the United 
States. Thus, the Departments decline to change the burden of proof 
from the noncitizen to the Government or adopt a more liberal standard 
for noncitizens who enter the United States during the initial months 
after the rule takes effect.
    Concerns about who will assess whether the exception applies are 
misguided. The rule tasks AOs and IJs, not CBP officers, with 
determining whether a noncitizen meets this exception to the rule. 8 
CFR 208.33(b)(1) (``The asylum officer shall first determine whether 
the alien is covered by the presumption . . . .''); id. 1208.33(b)(2) 
(``The immigration judge shall first determine whether the alien is 
covered by the presumption . . . .''). So too are concerns as to an 
inability to access physical evidence to prove the exception while in 
custody. Noncitizens may be able to establish that they meet the 
exception through testimony so long as it is credible, persuasive, and 
refers to specific facts to establish the exception. INA 
208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). A noncitizen also does 
not need to affirmatively raise this issue to qualify for the 
exception; adjudicators are trained to elicit testimony relevant to 
establishing a credible fear, as described in Section IV.B.5 of this 
preamble. However, if a noncitizen fails to disclose a technical 
failure or other obstacle when questioned about their failure to 
schedule an appointment using the CBP One app, this could potentially 
affect the credibility of their testimony if they later claim an 
exception in subsequent proceedings.
    The Departments also disagree with commenters who claimed this 
exception is too broad or easy to exploit. The Departments disagree 
with the assertion that this exception will cause noncitizens to appear 
at a POE without an appointment. Noncitizens are not required to make 
an appointment in the CBP One app to present at a POE, and in no 
instance will an individual be turned away from a POE. All noncitizens 
who arrive at a POE will be inspected for admission into the United 
States. 8 CFR 235.1(a). Those, however, who present at a POE without 
making an appointment in the CBP One app, and do not meet another 
exception, will be subject to the presumption. For the exception to 
apply, the noncitizen must do more than merely assert that they could 
not access the scheduling system for one of the identified reasons, 
without further explanation. Rather, AOs and IJs will assess whether 
the noncitizen has demonstrated that they meet the exception on a case-
by-case basis as part of the credible fear process or in section 240 
removal proceedings. Additionally, the Departments note the app is not 
intended or designed to ``fail,'' and that AOs and IJs will evaluate on 
a case-by-case basis whether a noncitizen has shown that it was not 
possible to access the app due to language barriers, illiteracy, 
significant technical failure, or other ongoing serious obstacle.
    Finally, the Departments decline to expand this exception to 
noncitizens to enter the United States without inspection instead of 
presenting at a POE. The Departments believe this would undermine the 
rule's purpose of incentivizing migrants to use lawful, safe, and 
orderly pathways to enter the United States. In cases where it was 
truly not possible for a noncitizen to access or use the CBP One app 
due to one of the rule's enumerated reasons, the Departments believe it 
would be preferrable to incentivize that noncitizen to seek admission 
at a POE rather than attempt a potentially dangerous entry between 
POEs. The latter could require the assistance of smugglers or 
traffickers and could place further strain on DHS resources in 
apprehending the noncitizen and commencing removal proceedings.
iii. Adequacy of Parole
    Comment: While many commenters expressed support for the parole 
processes referenced in the NPRM, many also expressed a range of 
concerns about the role of the parole processes in the rule's 
rebuttable presumption. A commenter stated that the parole processes 
only account for small numbers of potential asylum seekers. One 
commenter stated that the parole programs have little bearing on asylum

[[Page 31408]]

access at the SWB or the Departments' stated goal to reduce border 
apprehensions. The commenter also stated that those who have the time 
and means to use these parole programs are not the same people who flee 
and approach the SWB. Another stated that the parole processes should 
not be the only way for migrants to come to the United States and 
petition for asylum. Another commenter stated that while Afghan 
migrants might be able to apply for humanitarian parole, the wait for 
the applications to be processed is too long for those who are living 
in danger in their country, and alleged that nearly 90 percent of 
humanitarian parole applications filed from outside the United States 
in the last year were denied.
    Commenters stated that the CHNV parole processes are flawed because 
(1) they are limited to CHNV nationals; (2) they have a monthly cap, 
limiting the number of people who may enter the United States each 
month; (3) they require applicants to hold unexpired passports, which 
is uncommon for most citizens of Latin America and the Caribbean 
because of financial constraints; (4) they require a U.S.-based contact 
with the financial wherewithal to sponsor the applicant, which favors 
wealthy applicants and those with a broader network of support in the 
United States; (5) the applicant will need additional financial 
resources to afford a plane ticket and to meet vaccination and other 
requirements; and (6) humanitarian parole is not a substitute for 
asylum. Commenters stated that government officials may confiscate 
passports or target passport applicants at government offices, and 
noncitizens may not be able to wait for a passport or for receipt of 
advanced authorization due to the risk of harm or death. One commenter 
stated that huge backlogs related to the parole program have 
overwhelmed Haiti's passport system.
    One commenter stated that the rule's impact on those who have been 
pre-approved by CBP to present for parole at POEs under section 
212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), due to urgent humanitarian 
reasons or significant public benefit is unknown because the rule does 
not clarify whether those pre-approved to present for parole by port 
officials will face the presumption of asylum ineligibility.
    Another commenter expressed concern that the CHNV parole processes 
would simply add to the population of migrants present in the United 
States without status, which according to the commenter would impose a 
burden on American taxpayers, and that the parole processes simply 
``kicks the can down the road.''
    Response: The parole processes established for CHNV nationals are 
available lawful pathways--though not the only available lawful 
pathways--for qualifying individuals seeking to come to the United 
States. Each month, DHS issues advance travel authorizations for up to 
30,000 CHNV nationals to travel to the United States to be considered 
by CBP on a case-by-case basis for a temporary grant of parole for a 
period of up to two years. Once the individuals have arrived in the 
United States, they may apply for immigration benefits for which they 
may be eligible, including asylum and other humanitarian protections. 
The Departments recognize that the parole processes are not universally 
available, even to the covered populations; in addition, the parole 
processes established for CHNV nationals and Ukrainians are distinct 
from applying for asylum and are not a substitute for applying for 
asylum. Although noncitizens who are eligible for these processes may 
apply for asylum after being paroled into the United States, there is 
no requirement that they do so. These processes do, however, represent 
one lawful, safe, and orderly pathway available to certain CHNV 
nationals seeking to enter the United States.
    Similarly, while DHS recognizes that several commenters have raised 
concerns about the adequacy of the parole processes, this rule's 
reference to the parole processes is not intended to suggest that the 
parole processes are an alternative to or replacement for asylum. 
Rather, the parole processes are lawful, safe, and orderly pathways 
that the Departments wish to encourage in light of the urgent 
circumstances presented. Eligible noncitizens may use these processes 
to seek entry into the United States, and, thereafter, apply for asylum 
if desired. Moreover, with respect to the commenters' concern about the 
ongoing status of CHNV parolees--including obstacles they face in 
seeking parole and the impact that allowing parolees into the country 
will have on taxpayers--such concerns are outside the scope of this 
rulemaking because the parole processes exist separate and apart from 
this rule. To the extent that this rulemaking encourages noncitizens to 
use those parole processes and thereafter apply for asylum, rather than 
migrating irregularly, parolees who do so may remain in the United 
States to await the adjudication of any pending asylum application, and 
during that time may be eligible for employment authorization. See 8 
CFR 274a.12(c)(11) (employment authorization available for duration of 
parole); id. 274a.12(c)(8) (employment authorization available for 
asylum applicants).
    With respect to the commenter's suggestion that the CHNV parole 
processes have little bearing on the Departments' goal of reducing 
irregular migration, the Departments note that these processes have 
substantially reduced the number of encounters between POEs. For 
instance, between the announcement of the CHN processes on January 5, 
2023, and January 21, 2023, the number of daily encounters between POEs 
of CHN nationals dropped from 928 to 73, a 92 percent decline.\258\ CHN 
encounters between POEs continued to decline to an average of fewer 
than 17 per day in March 2023.\259\ The Departments offer further 
metrics in support of these processes' efficacy in Section II of this 
preamble.
---------------------------------------------------------------------------

    \258\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \259\ Id.
---------------------------------------------------------------------------

    While CHNV and Ukrainian nationals who lack a supporter cannot take 
advantage of these parole processes, such individuals can present at a 
POE by using a DHS scheduling mechanism to schedule a time to arrive at 
POEs at the SWB and not be subject to the presumption of ineligibility. 
See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). If the noncitizen 
can establish that the scheduling mechanism is not possible to access 
or use due to a language barrier, illiteracy, significant technical 
failure, or other ongoing and serious obstacle, then the noncitizen can 
present at a POE to seek asylum without a pre-scheduled appointment, 
and not be subject to the presumption of ineligibility. Id. This 
process is available to all noncitizens seeking protection, regardless 
of their nationality.
    With respect to the commenters' concern about individuals ``pre-
approved'' by CBP to present at the SWB, the Departments note that the 
rebuttable presumption does not apply to any noncitizen who presents at 
a land POE, pursuant to a pre-scheduled time and place. See 8 CFR 
208.33(a)(2)(ii)(B), 1208.33 (a)(2)(ii)(B). This is not limited to 
those who schedule a time through the CBP One app. Therefore, in the 
rare circumstance that noncitizens have scheduled a time to present at 
such a POE through another means, they would not be subject to the 
rebuttable presumption. Additionally, the Departments reiterate that 
the presumption does not apply to a noncitizen who has been provided 
appropriate authorization to travel to seek parole pursuant to a DHS-
approved parole process, including the CHNV

[[Page 31409]]

processes. See 8 CFR 208.33(a)(2)(ii)(A), 1208.33 (a)(2)(ii)(A).
    Comment: Commenters recognized that the parole processes had 
positive results in the decrease of CHNV nationals encountered at the 
SWB, but predicted that the deterrence would decrease as more 
applicants are denied.
    Commenters also stated that the requirement to travel directly to 
the United States by air may for some noncitizens be more challenging 
than traveling to the SWB, and raised the concern that the rebuttable 
presumption would apply to individuals who have received advance travel 
authorization under the CHNV processes, if those individuals arrive at 
the SWB rather than traveling directly by air. A commenter asserted 
that such a ``disqualification'' would be based on a ``technicality,'' 
not on any material facts.
    Commenters cited statistics stating that since January 2023, 
Haitian nationals had 11,300 approved paroles, but only 5,100 of those 
traveled to the United States. Commenters noted that parolees would add 
to the backlog of asylum applicants.
    Response: With respect to commenters' caution that the magnitude of 
the CHNV processes' impact on unauthorized arrivals at the SWB may 
change over time, as discussed in Section II of this preamble, the CHNV 
parole processes have remained effective since the rollout of the 
Venezuela process in October. The Departments disagree that this will 
necessarily change as more applicants are denied, because any intending 
migrant who cannot access the CHNV parole processes may still be 
dissuaded from migrating irregularly because even those applicants who 
are denied authorization to travel under those processes may respond to 
the disincentives to irregular migration made possible by those 
processes and this rule. The Departments acknowledge, however, that 
since mid-April, there has been an increase in Venezuelan migrants 
crossing between POEs at the SWB, while others continue making the 
treacherous journey through the Dari[eacute]n Gap to reach the United 
States--even as encounters of Cubans, Nicaraguans, and Haitians remain 
near their lowest levels this year.\260\ The Departments believe that 
this increase in Venezuelan migration has been driven in part by the 
current limited availability of CBP One appointments and misinformation 
campaigns by smugglers, in the aftermath of the fire in a Mexican 
government facility that killed a number of Venezuelan migrants in 
March.\261\ Although the number of CBP One app appointments available 
has been limited while the Title 42 public health Order has been in 
place, as detailed in Section IV.E.3.ii.a of this preamble, when the 
Title 42 public health Order is lifted, CBP intends to increase the 
number of available appointments. In addition, as discussed in more 
detail in Section II.A of this preamble, DHS and the Department of 
State announced new measures on April 27, 2023, that are expected to 
significantly expand lawful pathways, which, along with the expanded 
ability to present at a land POE pursuant to a pre-scheduled time and 
place, are expected to further reduce the overall volume of irregular 
migration. The Departments also note that there has not been a similar 
rise in encounters of CHN nationals, and believe that the rule's 
approach of incentivizing the use of safe, orderly, and lawful pathways 
while imposing a meaningful consequence for those who fail to do so and 
cannot otherwise rebut the presumption against asylum eligibility will 
reduce the number of noncitizens seeking to cross the SWB without 
authorization.
---------------------------------------------------------------------------

    \260\ See Reyes Mata III & Nick Miroff, Surge of Migrants 
Strains U.S. Capacity Ahead of May 11 Deadline, Wash. Post. Apr. 28, 
2023, https://www.washingtonpost.com/nation/2023/04/28/border-migrants-biden-title-42/.
    \261\ See, e.g., id.; Nicole Acevedo & Albinson Linares, 
Misinformation Fuels False Hopes Among Migrants after Deadly Fire in 
Mexico, NBC News, Mar. 30, 2023, https://www.nbcnews.com/news/latino/misinformation-fuels-false-hopes-migrants-mexico-fire-rcna77398 (``Over 1,000 migrants lined up outside international 
bridges to El Paso, Texas, on Wednesday afternoon [March 29, 2023] 
after false information spread on social media and by word of mouth 
that the U.S. would allow them to enter the country.'').
---------------------------------------------------------------------------

    With respect to commenters' objection regarding the CHNV parole 
processes' stated requirements with respect to air travel to an 
interior POE, the Departments are aware that some noncitizens may have 
trouble securing air travel, but also note the potentially significant 
costs associated with irregular migration, including substantial fees 
that some migrants pay to smugglers and cartels to facilitate such 
travel.\262\ The specific requirements for participation in the CHNV 
parole processes are outside the scope of this rulemaking, but DHS is 
actively monitoring the effects of the processes and may make 
adjustments as necessary.
---------------------------------------------------------------------------

    \262\ See, e.g., Ariel G. Ruiz Soto et al., Charting a New 
Regional Course of Action: The Complex Motivations and Costs of 
Central American Migration (Nov. 2021), https://www.migrationpolicy.org/sites/default/files/publications/mpi-wfp-mit_migration-motivations-costs_final.pdf.
---------------------------------------------------------------------------

    The Departments also acknowledge that parolees who apply for asylum 
will add to the number of pending asylum applications; however, as 
discussed in Section II of this preamble, the net effect of the CHNV 
parole processes has been to significantly reduce rates of irregular 
migration and avoid a corresponding increase in the immigration court 
backlog.
    Comment: A commenter stated that the Departments must consider how 
they would ensure that those migrants who use a parole program to enter 
the United States, such as Venezuelans or Nicaraguans, are not falling 
prey to scams. The commenter stated that there is reporting that those 
who do not have friends or relatives in the United States are going 
online to try to find sponsors, and stated that ``there are posts 
online demanding up to $10,000.00 USD for financial sponsorship.'' The 
commenter stated that if the Departments require use of the parole 
processes, the Departments should make efforts to ``end the financial 
abuse of potential parolees,'' similar to efforts to end human 
smuggling.
    Response: As an initial matter, the specific requirements for 
participation in the CHNV parole processes are outside the scope of 
this rulemaking. In any event, the Departments recognize that 
immigration processes can be complex and that applicants, petitioners, 
and requestors are at risk of becoming victims of scams or fraud. The 
United States Government takes immigration scams and fraud seriously 
and is engaged in regular efforts to combat such behavior.\263\ 
Additionally, the Departments conduct public-facing communications to 
advise all applicants to ensure that they only accept legal advice on 
immigration matters from an attorney or an accredited representative 
working for a DOJ-recognized organization.\264\ The Departments also 
provide information to help applicants avoid immigration scams.\265\
---------------------------------------------------------------------------

    \263\ See, e.g., USCIS, Fraud Detection and National Security 
Directorate (last updated June 15, 2022), https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate.
    \264\ See, e.g., USCIS, Find Legal Services (last updated Mar. 
27, 2023), https://www.uscis.gov/scams-fraud-and-misconduct/avoid-scams/find-legal-services.
    \265\ See, e.g., USCIS, Avoid Scams (last updated Feb. 17, 
2023), http://www.uscis.gov/scams-fraud-and-misconduct/avoid-scams.
---------------------------------------------------------------------------

    DHS notes in public communications that access to the parole 
processes is free; neither the U.S.-based supporter nor the beneficiary 
is required to pay the United States Government a fee to

[[Page 31410]]

file the Form I-134A or to be considered for travel authorization, or 
parole.\266\ DHS also provides a list of resources for victims of 
abuse, violence, or exploitation, as well as advice for protecting 
against immigration scams.\267\
---------------------------------------------------------------------------

    \266\ See USCIS, Processes for Cubans, Haitians, Nicaraguans, 
and Venezuelans (last updated Mar. 22, 2023), https://www.uscis.gov/CHNV.
    \267\ Id.
---------------------------------------------------------------------------

    Comment: One commenter noted the pending litigation regarding the 
CHNV parole processes and stated that the proposed rule presumes that 
the processes will continue to exist. If the parole processes are 
ultimately found to be unlawful, the commenter asserted that an 
injunction would nullify a central premise of the rule. The commenter 
also noted that the rule extends into the first several months of the 
next administration, which may end the parole processes. Another 
commenter argued that the parole processes are overbroad and contrary 
to statute, and that it is ``improper'' for the Departments to cite the 
parole processes as effective tools in support of the rule.
    Response: The parole processes that DHS established in 2022 and 
2023 for Ukrainian and CHNV nationals provide lawful pathways for 
individuals seeking to enter the United States. The Departments 
recognize that there is currently litigation over the CHNV parole 
processes. See Texas v. DHS, No. 6:23-cv-00007 (S.D. TX filed Jan. 24, 
2023). The Departments are vigorously defending the processes as 
permitted under section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), and 
believe that the CHNV parole processes are permitted under the statute, 
for the reasons described in the Federal Register notices announcing 
each process. Should this litigation result in an injunction or other 
hold on any parole process, the Departments do not believe that such an 
injunction or hold would affect the application of this rule.
    The parole processes established for CHNV nationals do not 
represent the only available options for noncitizens seeking entry to 
the United States. If these parole processes are enjoined, Ukrainian 
and CHNV nationals would still be able to avoid the rebuttable 
presumption if they present at a POE pursuant to a pre-scheduled time 
and place. See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). 
Moreover, if the noncitizen establishes that the mechanism for 
scheduling was not possible to access or use due to a language barrier, 
illiteracy, significant technical failure, or other ongoing and serious 
obstacle, then the noncitizen can present at a POE without a pre-
scheduled appointment and would not be subject to the presumption of 
ineligibility for asylum. Id. Similarly, these noncitizens would also 
be excepted from the presumption of ineligibility if they sought asylum 
or other protection in a country through which they traveled and 
received a final decision denying that application. 8 CFR 
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). The Departments believe that 
these alternative pathways for a noncitizen to be excepted from or 
rebut the presumption against asylum eligibility are sufficient, such 
that the rule would be justified even if the CHNV parole processes were 
to end. The rule incentivizes migrants, including those intending to 
seek asylum, to use lawful, safe, and orderly pathways, not simply the 
CHNV parole processes, to enter the United States, or seek asylum or 
other protection in another country through which they travel and thus 
reduce the number of noncitizens seeking to cross the SWB without 
authorization to enter the United States.
    As stated at 8 CFR 208.33(d) and 1208.33(e), the Departments intend 
for the provisions of this rule to be severable from each other such 
that if a court holds that any provision is invalid or unenforceable as 
to a particular person or circumstance, the presumption will remain in 
effect as to any other person or circumstance. See also 88 FR 11726-27. 
This intention for maximum severability extends to the parole processes 
themselves, which are authorized separate from this rulemaking and 
would exist even in the absence of 8 CFR 208.33(a)(2)(ii)(A), 
1208.33(a)(2)(ii)(A).
iv. Third Countries
a. 1951 Convention and 1967 Protocol Signatories Alone Insufficient
    Comment: A commenter stated that migrants may not be able to apply 
for protection in third countries if such countries do not have 
functioning asylum systems. A commenter suggested that the Departments 
revise the rule to except noncitizens who demonstrate that the country 
or countries through which the noncitizen traveled, that are party to 
the 1951 Convention or 1967 Protocol, did not provide a minimally safe, 
orderly, expeditious, and effective protection process in the 
noncitizen's circumstances. Another noted that while many countries in 
South and Central America are taking on a significant portion of the 
burden of migration in the Western Hemisphere, many of these countries 
cannot be considered ``safe'' for asylum seekers. Numerous commenters 
expressed a belief that the conditions and options in most or all third 
countries are insufficient to provide true or reasonable alternatives 
to seeking protection in the United States. Commenters stated that 
government records and NGO reports both make it clear that ``these 
countries have not developed working asylum systems and that, for many 
migrants, it would be pointless and life-threatening to stay and 
apply.'' Commenters noted that these conditions are the reason many 
migrants are fleeing and seeking to come to the United States in the 
first place. Further, some commenters noted that while Costa Rica has a 
successful asylum system, Costa Rica has significantly more asylum 
seekers per capita than the United States, and expressed a belief that 
Costa Rica is unlikely to be able to absorb more.
    Response: The Departments do not agree with the commenter's 
suggestion to add an exception for noncitizens who demonstrate that a 
country did not provide an adequate protection process in that 
noncitizen's circumstances. First, the rule provides for several 
exceptions to, and means to rebut, the condition on asylum eligibility 
beyond having sought and been denied asylum or other protection in a 
third country. Second, the rule does not require that a noncitizen seek 
protection in any particular country. Finally, a noncitizen who seeks 
protection in a country through which they traveled, believes that the 
protection process was unfair in that country, and receives a final 
decision denying asylum or other protection from that country would 
still qualify for an exception to the presumption against asylum 
ineligibility.
    The Departments do not agree with the generalizations that the 
nations through which a noncitizen might transit, including Mexico and 
countries in South and Central America, lack functioning asylum systems 
and invariably cannot be considered safe for those who apply for asylum 
in those countries. Many of these countries have taken substantial and 
meaningful steps in recent years that demonstrate their willingness to 
provide protection to those who need it, which is reflected in their 
international commitments and their efforts as described later in this 
response. To be relevant for the rebuttable presumption analysis, the 
country through which the noncitizen transited must be a party to the 
Refugee Convention or Protocol. Noncitizens traveling through the 
Western

[[Page 31411]]

Hemisphere have many options in this regard; of the countries in North, 
Central, and South America, only one is not party to the Convention or 
the Protocol.\268\ Several countries through which noncitizens may 
transit have also joined the non-binding Cartagena Declaration on 
Refugees (``Cartagena Declaration'').\269\ Delegations from Belize, 
Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, 
Nicaragua, Panama, and Venezuela joined the Declaration on November 22, 
1984.\270\ Among other things, the Cartagena Declaration includes a 
pledge to promote the adoption of national laws and regulations 
facilitating the application of the 1951 Convention and the 1967 
Protocol.\271\ The Cartagena Declaration also expands the definition of 
``refugee'' to include those fleeing ``generalized violence, foreign 
aggression, internal conflicts, massive violation of human rights or 
other circumstances which have seriously disturbed public order.'' 
\272\ This ``refugee'' definition is more expansive than that in U.S. 
law, see 8 U.S.C. 1101(a)(42)(A), thus providing some who may apply for 
protection, such as asylum, with more grounds on which to make their 
claim than they would have in the United States.
---------------------------------------------------------------------------

    \268\ See Maja Janmyr, The 1951 Refugee Convention and Non-
Signatory States: Charting a Research Agenda, 33 Int'l J. Refugee L. 
188, 189 (2021); UNHCR, States Parties, Including Reservations and 
Declarations, to the 1951 Refugee Convention, https://www.unhcr.org/us/media/38230 (last visited Apr. 25, 2023).
    \269\ See Cartagena Declaration on Refugees, Colloquium on the 
International Protection of Refugees in Central America, Mexico and 
Panama, Nov. 19-22, 1984, https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.
    \270\ Id.
    \271\ Id.
    \272\ Id.
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    Nations throughout the Hemisphere are continuously demonstrating 
their commitment to providing protection to refugees, migrants, and 
asylum seekers. Colombia, Belize, and Mexico have made significant 
strides in developing their asylum systems and expanding protections 
for migrants. In 2021, Colombia adopted legislation that allows 
Venezuelans to apply for temporary protection status, which grants 
Venezuelans 10-year residency and allows them to access public 
education, health care, and employment.\273\ By February 2022, about 
2.4 million Venezuelans had applied for that status, and Colombian 
migration authorities had approved nearly 1.4 million by July 
2022.\274\ Belize offers an amnesty program for registered asylum 
seekers and certain irregular migrants that provides permanent 
residence and a path to citizenship.\275\ The Government of Mexico has 
made exceptional strides to improve conditions for asylum seekers, 
migrants, and refugees within its borders. Mexico's Federal Public 
Defender's Office offers legal counseling and support to asylum seekers 
and migrants who have filed claims with Mexico's Commission for Refugee 
Assistance (``COMAR'') and has increased both its specialized staff and 
visits to migration stations.\276\ Mexico has also committed to 
integrating 20,000 refugees into the Mexican labor market over the next 
three years and is expanding labor opportunities for Central American 
workers.\277\
---------------------------------------------------------------------------

    \273\ Int'l Crisis Group, Hard Times in a Safe Haven: Protecting 
Venezuelan Migrants in Colombia (Aug. 2022), https://www.crisisgroup.org/latin-america-caribbean/andes/colombia-venezuela/hard-times-safe-haven-protecting-venezuelan.
    \274\ Id.
    \275\ Government of Belize, Amnesty Background Information (Dec. 
7, 2022), https://immigration.gov.bz/amnesty-background-information.
    \276\ Comprehensive Regional Protection and Solutions Framework, 
MIRPS in Mexico (Aug. 2022), https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico.
    \277\ Government of Mexico, Secretary of External Relations, 
Mexico to Expand Labor Mobility Programs and Integrate Refugees into 
its Labor Market (June 10, 2022), https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en.
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    Comment: Commenters stated that it is inhumane to require asylum 
seekers to first seek protection in third countries because they are 
particularly vulnerable in those countries to harms like exploitation, 
kidnapping, assault, rape, robbery, or extortion. Commenters noted that 
many transit countries struggle with high levels of violence, 
corruption, and ineffective judicial or political systems, citing a 
range of facts to illustrate political and other concerns in many 
transit countries, including the trial of Mexican officials for 
conspiracy with cartels and the extradition of the former Honduran 
president to face charges in the United States. One commenter asserted 
that requiring victims of persecution to expose their personal 
information to possibly corrupt or hostile governments is ``an 
extension of the persecution they fled in the first place,'' while 
another stated that the act of applying for asylum in a third country 
would make migrants targets of the governments they are fleeing. 
Commenters also noted that most immigrants to the United States only 
travel through countries that also have a large number of emigrants 
seeking to enter the United States, which the commenter believes 
demonstrates that those countries are not safe.
    Response: The Departments recognize that certain noncitizens may 
feel unsafe seeking protection in certain nations through which they 
might transit, including Mexico and countries in South and Central 
America, due to the concerns commenters describe. However, as discussed 
above, the Departments do not agree with generalizations that these 
countries are universally unsafe and cannot provide protection to 
asylum seekers. The Departments also note that the rule does not 
require any noncitizen to seek protection in a country where they do 
not feel safe. Applying for, and being denied, asylum or other 
protection in a third country is one exception to the rebuttable 
presumption, but noncitizens who choose not to pursue this path may 
instead seek authorization to travel to the United States to seek 
parole pursuant to a DHS-approved process, or present at a POE at a 
pre-scheduled time or place (or demonstrate that it was not possible to 
do so for a reason covered by the rule). See 8 CFR 208.33(a)(2)(ii), 
1208.33(a)(2)(ii).
    Noncitizens may also rebut the presumption by showing that 
exceptionally compelling circumstances exist, including an acute 
medical emergency or an imminent and extreme threat to life or safety 
at the time of entry. 8 CFR 208.33(a)(3), 1208.33(a)(3). Although the 
Departments expect that many migrants seeking protection will be able 
to access asylum or other protection in at least one transit country, 
they recognize that not every country will be safe for every migrant 
and have provided other exceptions and means for rebutting the 
presumption to account for those circumstances. Although noncitizens 
may prefer to apply for asylum in the United States, it is not 
unreasonable to expect that they would pursue other safe options.\278\
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    \278\ See UNHCR, Legal Considerations Regarding Access to 
Protection and a Connection Between the Refugee and the Third 
Country in the Context of Return or Transfer to Safe Third Countries 
1 (Apr. 2018), https://www.refworld.org/pdfid/5acb33ad4.pdf 
(``[R]efugees do not have an unfettered right to choose their 
`asylum country.' '').
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b. Concerns About Length of Process and Documentation Provided by Third 
Countries
    Comment: Several commenters stated that third countries are not 
efficient in providing proper documentation for asylum seekers, thus 
increasing wait times and creating additional issues in overcoming the 
presumption at the SWB. Another raised concerns that

[[Page 31412]]

requiring migrants to first apply and be rejected for asylum in a third 
country could force them to wait for that third country's asylum 
adjudication for months before they can continue their journey to the 
SWB. One commenter stated that the proposed regulations require a 
noncitizen to produce documentation (paper or electronic) to show 
denial of asylum in a third country, which the commenter stated is 
contrary to the INA's specification that noncitizens may establish 
asylum eligibility though testimony alone. One commenter expressed 
concern that the Departments have given no assurances that a denial of 
asylum in another country will not be used against an asylum applicant 
here in the United States, where our asylum eligibility guidelines are 
many times more stringent.
    Response: To determine if an applicant has met their burden to 
demonstrate that they sought asylum or protection in a third county and 
were denied, adjudicators may weigh an applicant's credible testimony 
with other evidence. See INA 208(b)(1)(B)(ii), 8 U.S.C. 
1158(b)(1)(B)(ii). Even when an applicant's testimony is credible, an 
adjudicator may, where appropriate, request evidence to corroborate 
this credible testimony, including documentation of the final denial. 
In that case, the applicant is not required to provide the evidence if 
they do not have the evidence and cannot reasonably obtain it. Id.
    Regarding commenters' statements that requiring migrants to seek 
asylum in third countries will increase wait times, the Departments 
believe that wait times would likely be significantly longer in the 
absence of this rulemaking. For those who are unwilling or unable to 
seek asylum or other protection in a third country and wait for a final 
decision, the Departments note that there are multiple ways to avoid or 
rebut the rule's presumption of ineligibility, only one of which 
involves seeking asylum or other protection in a third country. See 8 
CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). Noncitizens who do not 
feel comfortable or safe applying for asylum outside the United States 
may avoid the rebuttable presumption by seeking parole under one of the 
authorized parole processes or using the CBP One app to present 
themselves at a pre-scheduled time at a POE. See id. 
208.33(a)(2)(ii)(A) and (B), 1208.33(a)(2)(ii)(A) and (B). 
Additionally, noncitizens may rebut the presumption in exceptionally 
compelling circumstances, including where they faced an immediate and 
extreme threat to life and safety at the time of their entry into the 
United States. 8 CFR 208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). Those who 
are not excepted from and are unable to rebut the presumption of 
ineligibility may still pursue statutory withholding of removal and 
protection under the CAT.
    With respect to the comment the Departments have given no 
assurances that a denial of asylum in another country will not be used 
against an asylum applicant here in the United States, the Departments 
note that AOs and IJs will consider the noncitizen's fear of returning 
to their country of origin on a case-by-case basis through the 
noncitizen's credible testimony and other relevant evidence 
demonstrating a fear of persecution.
c. Concerns About Differential Treatment of Migrants
    Comment: Commenters raised concerns about unintended inequitable 
treatment of migrants under the rule. For example, commenters raised 
concerns that the rule arbitrarily disfavors migrants who live farther 
away, stating that it would be unfair to penalize those who do not have 
the good fortune of living in a nation close enough to the United 
States that they do not have to pass through a third country in their 
journey to the SWB. Another commenter noted that migrants who travel 
through third countries en route to the United States have necessarily 
traveled a lengthy distance, which may suggest that their claims are in 
fact more likely than others' to be meritorious. Similarly, commenters 
noted that a migrant who does not live close to a country that provides 
strong protections may not realize until after they passed through a 
third country that they should have applied for asylum in that country, 
and that many migrants cannot afford what may be a months-long process 
of applying for protection in a third country.
    Some commenters stated that the United States should not summarily 
deny asylum claims based on whether migrants have passed through 
another ``safe third country,'' as the third country may not have been 
safe for each individual migrant, especially for vulnerable 
populations. At least one commenter stated that requiring migrants to 
seek asylum in third countries on their journey to the SWB is 
counterintuitive if the migrant has relatives or another support system 
in the United States. One commenter also noted that individuals with 
conditions that may cause cognitive difficulties or deficits, such as 
post-traumatic stress disorder, depression, or head trauma, may not be 
able to find the medical services that would allow them to participate 
in the asylum process of a country through which they transited, even 
if those countries had a functioning asylum system.
    Response: The rule's primary purpose is to incentivize migrants, 
including those intending to seek asylum, to use lawful, safe, and 
orderly pathways to enter the United States, or seek asylum or other 
protection in another country through which they travel. Migrants who 
do not avail themselves of such a lawful pathway or seek protection in 
a country through which they travel will be subject to a rebuttable 
presumption of ineligibility for asylum. That said, the Departments 
recognize that many migrants face challenging circumstances in their 
home countries and en route to the United States, and appreciate that 
not every country will be viable for every migrant, including those who 
may apply for asylum or other protection, depending upon their 
individual circumstances. With regards to concerns that migrants may 
not receive sufficient notice of the exception to seek and be denied 
asylum or other protection in a transit country, the Departments note 
that this is only one of multiple exceptions and means of rebuttal that 
the rule allows. As discussed in Section IV.B.5.iv of this preamble, 
the rule does not deprive noncitizens of notice in violation of the 
Fifth Amendment Due Process Clause.
    With respect to concerns about ``requiring'' migrants to seek 
protection in a third country when they have relatives already in the 
United States, the Departments reiterate that the rule does not require 
any migrant to seek protection elsewhere; there are multiple ways to 
avoid or rebut that presumption of ineligibility, only one of which 
involves seeking asylum or other protection in a third country. 
Eligible noncitizens who cannot safely apply for asylum outside the 
United States may (while residing in any country) seek parole under an 
authorized parole process. Alternatively, they may use the CBP One app 
to present themselves at a pre-scheduled time at a POE. Additionally, 
the presumption may be rebutted in exceptionally compelling 
circumstances, such as by demonstrating that one faces an acute medical 
emergency or imminent and extreme threat to life or safety at the time 
of entry, or by satisfying the definition of a victim of a severe form 
of trafficking in persons under 8 CFR 214.11(a). 8 CFR 208.33(a)(3)(i), 
1208.33(a)(3)(i). Those who are not excepted from and are unable to 
rebut the presumption of ineligibility may still pursue statutory 
withholding of

[[Page 31413]]

removal and protection under the CAT. The Departments are not aware, 
however, of any evidence establishing a direct link between distance 
traveled and validity of protection claims.
    Finally, the Departments note that a location that may be unsafe 
for one person may not only be safe for, but may offer a much-needed 
refuge to, others. For example, some countries in the region may have a 
larger number of individuals who leave the country to seek protection 
elsewhere than who seek protection in the country, perhaps because 
those specific individuals experience a targeted threat of violence or 
fear of persecution in that country. At the same time, such a country 
may demonstrably provide protection for other individuals or groups of 
individuals, particularly those originating from third countries, who 
consider the country to be a safe option where they can be free from 
persecution or torture. To the extent commenters raise concerns about 
the ability of certain individuals to participate in the asylum 
processes of third countries, the Departments note that, as discussed 
above, many regional partners have protection frameworks that are in 
some respects more expansive than those of the United States. As 
detailed in the preamble to the NPRM, see 88 FR at 11720-23, many 
countries in the region have significantly increased protection options 
to address the unprecedented movement of migrants throughout the 
hemisphere. Finally, humanitarian protection is not the only available 
lawful pathway to intending migrants. In some instances, employment-
based migration may be the best option for migrants for whom economic 
issues are a key factor motivating them (which studies have shown are a 
high percentage of those moving through the region).\279\
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    \279\ See, e.g., Ariel G. Ruiz Soto et al, Charting a New 
Regional Course of Action: The Complex Motivations and Costs of 
Central American Migration, 18 (Nov. 2021), https://www.migrationpolicy.org/sites/default/files/publications/mpi-wfp-mit_migration-motivations-costs_final.pdf (reporting that 92 percent 
of respondents to a UN World Food Programme household survey ``cited 
economic reasons related to their livelihoods as being key 
motivating factors'' for migration).
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    Further discussion of the potential effects of this rule with 
respect to specific groups is contained in Section IV.B.4 of this 
preamble.
d. Concerns About Conditions and Asylum Process in Third Countries 
Generally
    Comment: Commenters stated that lawful pathways in third countries 
do not necessarily promote family unity, and that opportunities for 
family unity depend on the specific pathway.
    Response: The Departments acknowledge that countries in the region 
have differing asylum systems and requirements. However, this rule does 
not require that noncitizens apply for asylum or other protection in a 
specific third country in order to preserve family unity. Rather, such 
an application is one of multiple options for noncitizens under the 
rule. DHS-approved parole processes represent another set of options 
available to some noncitizens. Additionally, any noncitizen may present 
at a POE via an appointment that includes a pre-scheduled time and 
place or may present at a POE without a pre-scheduled time and place 
and be excepted from the presumption if the noncitizen demonstrates by 
a preponderance of the evidence that it was not possible to access or 
use the DHS scheduling system due to language barrier, illiteracy, 
significant technical failure, or other ongoing and serious obstacle. 
The Departments also note the discussion in Section IV.E.3.ii.b of this 
preamble of CBP's ongoing efforts to improve CBP One app functionality 
for families.
    Comment: Numerous commenters stated that the third country 
exception would cause serious bodily harm to noncitizens, lengthening 
the amount of time noncitizens spend in unsafe transit countries, and 
exposing them to further risks of persecution, torture, and death in 
third countries. Multiple commenters expressed concern that the rule 
ignores the realities asylum seekers face, including violence, 
persecution, and inadequacy of asylum systems in third countries, and 
reflects a misunderstanding of the conditions of noncitizens fleeing 
persecution. Multiple other commenters stated that applying for asylum 
and awaiting a subsequent denial in a third country is nearly 
impossible for noncitizens. Several commenters argued that requiring 
noncitizens to apply for asylum in third countries and wait for a 
decision would prolong their journey to safety. Another commenter 
stated that it was unreasonable to require noncitizens to wait for 
extended periods of time in third countries and suggested that the 
Departments revise the rule to except noncitizens who waited for six 
months or more without a decision. Similarly, a commenter stated that 
the third country exception was a way to delay the safety and stability 
of noncitizens. A commenter also stated that prior ``safe third 
country'' policies relating to Guatemala, among other places, forced 
asylum seekers into dangerous situations in third countries. A 
commenter said that although the NPRM states that preventing human 
trafficking is a consideration for the rule, the third country 
exception would drive people further into traffickers' hands. Numerous 
commenters provided narrative examples of noncitizens who had 
successfully gained asylum in the United States, and added that it 
would not have been possible for them to gain asylum if the third 
country exception was enacted.
    Response: Regarding comments stating that ``safe third country'' 
and similar policies force those who might otherwise apply for asylum 
in the United States into dangerous situations in third countries, the 
Departments recognize that not all third countries will be safe for all 
noncitizens seeking asylum and acknowledge that some migrants may feel 
that the dangers noted by commenters, or the risk that a particular 
country's asylum system would be unduly delayed or leave them 
vulnerable to refoulement, make applying for protection in that country 
untenable. However, the rule does not require any noncitizen to seek 
protection in any particular country and therefore the Departments 
likewise decline to add an exception for noncitizens who waited for a 
certain period of time in a third country without a final decision.
    The Departments also strongly disagree that the third country 
exception will heighten risks of human trafficking. Rather, the 
Departments expect that the rule will reduce reliance on dangerous 
human smuggling networks that exploit migrants for financial gain, 
including via human trafficking. If a noncitizen does not believe it 
would be safe to apply for asylum or related protection in any third 
country, they may avoid the presumption against asylum eligibility by 
availing themselves of any of the other available lawful pathways, or, 
if applicable, they may be able to rebut the presumption of 
ineligibility by demonstrating exceptionally compelling circumstances.
    Comment: Some commenters oppose the rule because they believe it 
encourages individuals to remain in countries where they may not be 
safe and are closer to their feared persecutor(s) to avoid being 
disqualified from asylum should they try to enter at the SWB. For 
example, one commenter cited the experiences of individuals who are 
being imminently threatened by gangs and have to flee and therefore are 
unable to remain in their country to apply for a lawful pathway to the 
United States. Similarly, many

[[Page 31414]]

commenters stated that it was unfair and unrealistic to expect 
noncitizens to seek asylum in areas that are unsafe and do not have 
meaningful protections for refugees.
    Response: The Departments disagree that the rule encourages 
noncitizens to remain in dangerous conditions or remain close to their 
feared persecutors so as to preserve their chance to be eligible for 
asylum in the United States. The Departments understand that in some 
cases it would be dangerous for a noncitizen to remain in their home 
country while they seek a safe, orderly, and lawful pathway into the 
United States, but note that eligible migrants who have already left 
their country of origin may apply for the CHNV processes, and all 
migrants may, if within the appropriate area in Mexico, schedule an 
appointment to present at a POE. Moreover, the Departments note that 
lawful pathways such as applying for asylum in a country they transited 
through or scheduling an appointment through the CBP One app to present 
at a POE are recognized by the rule and are available to migrants who 
have already left their country of origin. The Departments do not agree 
that this rule creates a strong incentive for those facing danger to 
remain in their home countries.
e. Concerns About Conditions and Asylum Process in Mexico Specifically
    Comment: Several commenters expressed concerns about the adequacy 
of the asylum process in Mexico in particular. For example, one 
commenter stated that they had worked as a lawyer with migrants in 
Mexico for a year, and that COMAR is extremely overwhelmed and lacks 
the staff and funds to process the hundreds of thousands of asylum 
applications they have received from people in Mexico in the past few 
years. The commenter stated that they had personally witnessed the 
inability to receive a timely decision, or even to get access to COMAR 
in order to file an application in many parts of Mexico. The commenter 
also stated that Mexican civil society cannot meet the legal and social 
service needs of hundreds of thousands of asylum seekers, because such 
organizations are underfunded and under-resourced and cannot begin to 
meet the basic humanitarian and legal needs of the many people in need 
of protection who transit through Mexico. Other commenters stated that 
COMAR is underfunded and that immigration advocates have documented 
mismanagement and instances of denials of meritorious claims.
    One commenter stated that Mexico's asylum system is not prepared to 
actually grant asylum to refugees from South and Central American 
countries, stating that conditions for refugees in Mexico are ``harsh'' 
and that Mexico does not provide refugees with ``legal residence or 
adequate legal rights to keep them free of exploitation.''
    A commenter stated that unless an applicant is granted a transfer 
request by COMAR, they cannot leave the geographical area where they 
applied for asylum. The commenter added that many applicants move due 
to safety or economic concerns, and as a result, their cases are 
considered abandoned. The commenter stated that an abandoned case would 
not be considered a denial under Mexican law, and that a person who 
abandoned their application would not qualify under the NPRM. A 
commenter stated that they have not seen evidence that the Departments 
have reviewed the ability of asylum seekers to obtain protection in 
Mexico and that failure to do so would lead to arbitrary and capricious 
rulemaking.
    Response: The Departments recognize that managing migration is a 
collective responsibility and, as part of a whole-of-government 
approach, requires working closely with countries throughout the region 
to prioritize and implement a strategy that advances safe, orderly, 
legal, and humane migration throughout the Western Hemisphere. With 
regard to Mexico's ability to handle asylum claims, as stated in the 
NPRM, 88 FR at 11721, Mexico is the third highest recipient of asylum 
claims in the world; in 2022, COMAR reported receiving 118,478 
applicants for refugee status.\280\ Of applications completed in 2021, 
COMAR granted asylum in 72 percent of cases; an additional two percent 
of applicants were granted complementary protection (a form of 
protection available to those who are not eligible for refugee 
status).\281\ Of applications completed in 2022, COMAR granted asylum 
in 61 percent of cases; an additional two percent of applicants were 
granted complementary protection.\282\ The average case takes 8-12 
months to adjudicate.\283\ With United States Government funding and 
the support of international organizations, Mexico has also 
substantially increased its Local Integration Program, which relocates 
individuals granted asylum to safe areas of Mexico's industrial 
corridor and integrates them into such areas. These individuals are 
then matched with jobs and provided apartments, and their children are 
enrolled in local schools. In May 2022, the program reached the 
milestone of reintegrating 20,000 asylum seekers in Mexico.\284\ And in 
June 2022, Mexico committed to support local labor integration for an 
additional 20,000 asylees over the next three years.\285\ The 
Government of Mexico has announced substantial increases to its labor 
visa programs over the past two years to help those seeking protection 
enter the labor market.\286\ The Departments acknowledge that, like the 
United States, Mexico has a significant asylum backlog. Nonetheless, it 
remains a viable option for many seeking protection in Mexico.\287\
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    \280\ Government of Mexico, La COMAR en N[uacute]meros, 
Diciembre 2022 (Jan. 16, 2023), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf.
    \281\ See id.; UNHCR, Asylum Capacity Support Group, Mexico: 
Granting Complementary Protection, https://acsg-portal.org/tools/mexico-granting-complementary-protection/ (last visited Apr. 26, 
2023).
    \282\ Government of Mexico, La COMAR en N[uacute]meros, 
Diciembre 2022 (Jan. 16, 2023), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf.
    \283\ Refugees Int'l, Mexico's Use of Differentiated Asylum 
Procedures: An Innovative Approach to Asylum Processing (July 20, 
2021), https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5.
    \284\ UNHCR, M[aacute]s de 20.000 Reubicaciones como Parte de 
los Esfuerzos de Integraci[oacute]n de Personas Refugiadas en 
M[eacute]xico (May 25, 2022), https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html.
    \285\ See L.A. Declaration Fact Sheet.
    \286\ See id.
    \287\ See Global Compact on Refugees, Mexico, https://globalcompactrefugees.org/gcr-action/countries/mexico (last visited 
Mar. 9, 2023); Government of Mexico, Law on Refugees, Complementary 
Protection, and Political Asylum, Article 28, January 27, 2011, 
https://www.diputados.gob.mx/LeyesBiblio/pdf/LRPCAP.pdf.
---------------------------------------------------------------------------

    As it relates to the comment regarding abandoned claims, the 
Departments note that, as discussed in Section IV.E.3.iv.f of this 
preamble, under this rule, a final decision does not include a 
determination by a foreign government that the noncitizen abandoned the 
claim. See 8 CFR 208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). A 
noncitizen who has abandoned their asylum claim in Mexico would not 
qualify, on that basis, for an exception to the rebuttable presumption. 
Such noncitizens may nonetheless qualify for another exception to the 
rebuttable presumption or be able to rebut the presumption. For these 
reasons, the Departments have declined to revise the rule in response 
to this comment.
    Comment: Other commenters stated that towns along Mexico's northern 
border are not equipped to provide food, shelter, health care, and 
sanitation services to migrants waiting for an

[[Page 31415]]

asylum hearing. Commenters also stated that migrant camps in Mexico are 
dangerous, unsanitary, and negatively impact migrants' mental health. A 
commenter stated that organized crime operates across Central America 
and Mexico with impunity, and that a target of organized crime fleeing 
one location would likely be found and targeted in Mexico as well. 
Another commenter stated that persecutors have followed asylum seekers 
into Mexico and harmed them there.
    Commenters also stated conditions in Mexico are unsafe, especially 
for asylum seekers. Specifically, commenters stated that the proposed 
rule would cause additional harm for migrants forced to wait in Mexico 
before applying for asylum in the United States due to the risk of 
rape, murder, kidnapping, extortion, robbery, and other violence; 
violent detention by Mexican government officials; denial of medical 
care for serious illnesses; displacement and homelessness; 
discrimination or harassment due to race, gender, and sexual 
orientation; abusive employment arrangements; and denial of access to 
basic services and protections due to language barriers. One commenter 
expressed concern that migrants in Mexico face discrimination from drug 
cartels and other criminals as well as from Mexican authorities, 
including police and immigration officials. Some commenters pointed to 
advisories issued by the U.S. Department of State warning U.S. citizens 
not to travel to areas in Mexico, and stated that there are many 
examples of migrants being seriously harmed while waiting for asylum in 
Mexico or for the chance to enter the United States.
    Commenters also stated that these risks were further heightened for 
members of vulnerable groups, such as women and children, Black, brown, 
and indigenous persons, and LGBT persons.
    Response: The Departments recognize commenters' concerns about 
potential harm to migrants in Mexico, particularly for members of 
vulnerable groups, but again note that more than 100,000 individuals 
felt safe enough to apply for asylum in Mexico in 2022. The Departments 
also emphasize that the rule does not require any noncitizen to apply 
for asylum or other protection in Mexico or any other country. Applying 
for and being denied protection in Mexico is only one of multiple ways 
to be excepted from or rebut the presumption of ineligibility for 
asylum. See 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). The rule 
also provides that the presumption of asylum ineligibility can be 
rebutted by noncitizens who do not utilize a lawful pathway but who 
face an imminent and extreme threat to life or safety, such as an 
imminent threat of rape, kidnapping, torture, or murder or who were 
victims of a severe form of trafficking in persons. See 8 CFR 
208.33(a)(3)(i)(A) through (C), 1208.33(a)(3)(i)(A) through (C).
    For further discussion of this rule and vulnerable populations, 
please see Section IV.B.4 of this preamble.
    Comment: A commenter expressed concern that Mexican asylum seekers 
would have to wait for an appointment with CBP in the same country 
where they are experiencing persecution.
    Response: This concern is based on a misunderstanding of the rule. 
The rebuttable presumption only applies to noncitizens who travel 
through a country other than their country of citizenship, nationality, 
or, if stateless, last habitual residence, and that is a party to the 
Refugee Convention or Protocol, and thereafter enter the United States 
from Mexico at the SWB or adjacent coastal borders without documents 
sufficient for lawful admission. See 8 CFR 208.33(a)(1), 1208.33(a)(1). 
Mexican nationals would not have traveled through a country other than 
Mexico en route to the SWB, and therefore are not subject to the 
rebuttable presumption. See 8 CFR 208.33(a)(1)(iii), 
1208.33(a)(1)(iii).
f. Final Decision of Foreign Government is Undefined
    Comment: Commenters asked how U.S. officials would know the 
adjudication and appeal processes of third countries, such that they 
could confirm that a noncitizen's application for asylum or other 
protection in a third country had been denied in a final decision. 
Commenters stated that a requirement for a final decision could 
introduce years of uncertainty depending on the backlogs and resources 
of third countries. One commenter stated that proving the denial of 
protection in a third country may be entirely impossible in the context 
of a credible fear interview.
    Response: The Departments agree that further clarity on the meaning 
of the term ``final decision'' will help noncitizens understand, and 
IJs and AOs apply, this provision. The Departments are therefore 
revising 8 CFR 208.33(a)(2)(ii)(C) and 1208.33(a)(2)(ii)(C) to except 
from the rebuttable presumption noncitizens who ``[s]ought asylum or 
other protection in a country through which the noncitizen traveled and 
received a final decision denying that application. A final decision 
includes any denial by a foreign government of the applicant's claim 
for asylum or other protection through one or more of that government's 
pathways for that claim. A final decision does not include a 
determination by a foreign government that the noncitizen abandoned the 
claim.''
    The Departments also acknowledge that, like the United States, many 
countries have asylum backlogs that contribute to significant wait 
times for applicants. However, this rule does not require noncitizens 
to apply for asylum in a third country and wait for a final decision 
before applying for asylum in the United States; rather, that is simply 
one of the lawful pathways recognized by the rule. As an alternative to 
applying for asylum in a third country and seeking a final decision 
before migrating to the United States, noncitizens can utilize the CBP 
One app to pre-schedule an appointment to present at a POE or seek 
parole pursuant to a lawful parole process (such as the CHNV parole 
processes). See 8 CFR 208.33(a)(2)(ii)(A) and (B), 1208.33(a)(2)(ii)(A) 
and (B). The rule also allows noncitizens to whom the presumption 
applies to rebut it in exceptionally compelling circumstances. 8 CFR 
208.33(a)(3), 1208.33(a)(3).
    The Departments acknowledge that each of the lawful pathways 
outlined in the rule is subject to limitations, including, e.g., 
capacity constraints, limitations on eligibility, and geographic 
availability. The Departments further acknowledge that the pathways' 
combined limitations could constrain some individuals' ability to 
access pathways at a given time or place, and that some of those 
individuals may also not be able to establish an exception to, or 
rebut, the presumption. However, the Departments have concluded that 
the interests of migrants and the immigration system as a whole, 
including the asylum system, are best promoted by incentivizing 
noncitizens to pursue safe, orderly, and lawful pathways to enter the 
United States rather than failing to take adequate actions to respond 
to a potential further surge of irregular migrations at the SWB that 
threatens to overwhelm the immigration system and prevent orderly 
processing of claims for protection.
    Comment: Commenters stated that the proposed exception for those 
who sought and were denied asylum or ``other protection'' was unduly 
vague, because the term ``other protection'' is undefined. Commenters 
stated that if a migrant applied for and was denied an immigration 
status other than asylum, they would not necessarily know such

[[Page 31416]]

denial would qualify them for an exception to the rebuttable 
presumption. Commenters further stated that the absence of a definition 
would result in inconsistent application of the exception.
    Response: The preamble of the NPRM described the United States' 
efforts throughout the region to prioritize and implement a strategy 
that advances safe, orderly, legal, and humane migration, including 
access to international protection. Such efforts are put forward in 
three policy-setting documents: the U.S. Strategy for Addressing the 
Root Causes of Migration in Central America; \288\ the CMMS; \289\ and 
the L.A. Declaration. The NPRM provided a detailed discussion of 
increased access to protection and other pathways in the region, 
specifically identifying available programs and processes in Mexico, 
Guatemala, Belize, Costa Rica, Colombia, Ecuador, and Canada. See 88 FR 
at 11720-23. While these countries provide an opportunity for 
individuals to apply for asylum or refugee status, they also offer 
other protection that is not dependent on the applicant meeting the 
definition of a refugee as provided by the Refugee Convention. For 
example, Mexico offers protection to individuals whose lives are in 
danger or where there are well-founded reasons to believe that they 
would be in danger of being subjected to torture or other cruel, 
inhuman, or degrading treatment or punishment.\290\ Colombia, Costa 
Rica, and Ecuador have also offered other protection via regularization 
programs for individuals of specific nationalities.\291\
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    \288\ The White House, U.S. Strategy for Addressing the Root 
Causes of Migration in Central America (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
    \289\ The White House, Collaborative Migration Management 
Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf?utm_medium=email&utm_source=govdelivery.
    \290\ Government of Mexico, Law on Refugees, Complementary 
Protection, and Political Asylum, Article 28, January 27, 2011, 
https://www.diputados.gob.mx/LeyesBiblio/pdf/LRPCAP.pdf.
    \291\ UNHCR, Temporary Protection Status in Colombia (November 
2021) (Dec. 3, 2021), https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0; Costa Rica, 
Special Temporary Category for Nationals of Cuba, Costa Rica and 
Nicaragua with Pending or Denied Refugee Claims (Apr. 17, 2023), 
https://www.migracion.go.cr/Paginas/Categor%C3%ADa%20Migratorias%20(Extranjer%C3%ADa)/Categor%C3%ADa-
Especial-Temporal.aspx; Reuters, Ecuador Begins Regularization 
Process for Thousands of Venezuelan Migrants Sept. 1, 2022, https://www.reuters.com/world/americas/ecuador-begins-regularization-process-thousands-venezuelan-migrants-2022-09-01/.
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    Because such protection and other pathways in the region are 
country-specific and, as exemplified by the increased access to 
protection in the region as a result of the CMMS and L.A. Declaration, 
are subject to change, the Departments have determined that appropriate 
pathways and other protections are best determined on a case-by-case 
basis, considering the evidence presented relating to the nature and 
basis of the noncitizen's application for protection in the third 
country. Nevertheless, the Departments note that the ``final decision 
denying asylum or other protection'' is intended to include denials of 
asylum and other forms of humanitarian protection related to fear of 
returning to one's home country as well as other temporary protections 
akin to that of temporary protected status under section 244 of the 
INA, 8 U.S.C. 1254a.
    Comment: Commenters stated that the proposed rule gives preference 
to applicants who were denied asylum by another country over those who 
did not apply or who did apply and received asylum. Commenters stated 
that the proposed rule would not filter out people with weak asylum 
claims, as commenters believe the Departments intend, but would rather 
prevent the most vulnerable people from seeking asylum altogether.
    Response: The Departments disagree with the assertions that this 
rule necessarily gives preference to applicants who were denied asylum 
by another country over those who do not apply and disagree that the 
rule would prevent the most vulnerable people from seeking asylum 
altogether. The rule imposes consequences on certain noncitizens who 
enter the United States without availing themselves of a lawful pathway 
for entering the United States. Seeking protection and receiving a 
final decision in a country through which a noncitizen traveled is one 
of the lawful pathways recognized by the rule, but it is not the only 
lawful pathway available. A noncitizen who does not seek protection in 
a third country may nonetheless establish an exception to the 
presumption--just as a noncitizen who has sought and been denied such 
protection would--by presenting at a POE at a pre-scheduled time, or by 
pursuing a DHS-approved parole process.
    The rule incentivizes intending migrants to pursue lawful pathways 
as part of a regional approach to migration management, including by 
incentivizing migrants to seek protection in countries through which 
they travel. With respect to any concern that noncitizens denied 
protections in a third country are less deserving of protection here, 
the Departments do not agree that a denial in a third country 
necessarily means that the applying individual would not merit 
protection under U.S. law.
    In addition, the Departments do not agree that the rule necessarily 
gives preference to applicants who have been denied asylum in another 
country. Rather, the rule incentivizes migrants to avail themselves of 
lawful alternatives to irregular migration and see them through to 
completion (e.g., receiving a final decision in another country). Those 
noncitizens meeting that requirement who are ultimately granted asylum 
or other protections in other countries would have no need to continue 
on to the United States and may, in many cases, be subject to the firm 
resettlement bar to asylum, and thus, in the Departments' view, such 
noncitizens need not be excepted from the rebuttable presumption. 
However, those who have been denied may still have a need for 
protection in the United States. Therefore, the Departments believe 
that maintaining asylum eligibility in the United States for those who 
have been denied asylum in third countries is appropriate and supports 
the larger goal of incentivizing noncitizens to pursue available lawful 
pathways, as part of an effort to build a regional approach to 
migration management.
    Moreover, as noted above, there are additional lawful pathways to 
which noncitizens could avail themselves to avoid application of the 
rebuttable presumption as well as multiple circumstances in which the 
presumption of asylum ineligibility could be rebutted. See 8 CFR 
208.33(a)(2) and (3), 1208.33(a)(2) and (3). The Departments 
acknowledge that each of the lawful pathways outlined in the rule is 
subject to limitations and that the pathways' combined limitations 
could constrain any individual's ability to access them at a given time 
or place. However, the Departments have concluded as a matter of policy 
that the interests of migrants and the immigration system as a whole 
are best promoted by incentivizing noncitizens to pursue safe, orderly, 
and lawful pathways to enter the United States rather than failing to 
take adequate actions to respond to a potential further surge of 
irregular migration at the SWB that threatens to overwhelm the 
immigration system and prevent orderly processing of claims for 
protection.
g. Pursuit of Lawful Pathways May be Improperly Used as Evidence
    Comment: Some commenters expressed concern that taking time to

[[Page 31417]]

pursue lawful pathways may be used as evidence that noncitizens who do 
not flee their country immediately do not have a legitimate well-
founded fear of persecution.
    Response: The Departments disagree that the rule will increase the 
likelihood of adverse determinations against those noncitizens who 
choose to remain in their home countries while seeking access to one of 
the enumerated lawful pathways. As noted elsewhere in this section, 
this rule does not discourage any person from fleeing a dangerous 
circumstance, and in fact highlights the options potentially available 
to persons who do so. Moreover, such migrants may still provide 
relevant evidence to support their eligibility for asylum, including a 
well-founded fear of future persecution, notwithstanding their decision 
to remain in their country to seek a lawful pathway to the United 
States. See 88 FR at 11737; see also 8 CFR 208.13. In short, despite 
assertions made by some commenters, this rule will not result in the 
elimination of claims for asylum based on a well-founded fear of future 
persecution, even for applicants who spend some amount of time in their 
country of origin attempting to access an orderly and lawful pathway to 
the United States. AOs and IJs will still consider the noncitizen's 
fear of returning to their country of origin on a case-by-case basis 
through the noncitizen's credible testimony and other relevant evidence 
demonstrating a fear of persecution.
v. Unaccompanied Children
    Comment: Commenters disagreed with the exception for UCs, stating 
that children need their parents to keep them safe during their journey 
to the SWB and that the proposed rule would discourage whole families 
from seeking asylum together. Some commenters stated that the UC 
exception would encourage family separation, arguing that families 
often separate as a perceived means to obtain protection for their 
children. Specifically, commenters stated that excepting UCs from the 
rebuttable presumption would incentivize families to send their 
children on a dangerous journey to the SWB unaccompanied, leading to a 
surge in the number of UCs arriving at the SWB. Similarly, commenters 
expressed that in lieu of waiting together in Mexico, many families may 
choose, or be ``forced'' by the lack of sufficient appointment slots 
for family members or concerns related to their children's safety, to 
send their children unaccompanied to the SWB while waiting to schedule 
their own appointment through the CBP One app. Commenters pointed to 
reports of such voluntary separations under MPP and the Title 42 public 
health Order and said that the proposed rule would lead to similar 
outcomes, and that implementing a policy that would foment such 
separations would be inhumane and unacceptable. Commenters stated that 
family separations can cause severe emotional trauma to children and 
may increase the risk that a child will be exploited or trafficked.
    Some commenters suggest that the Departments should remove the UC 
exception and instead award a higher priority to family unit 
applications, as this would keep family units together, grant asylum to 
those that qualify, and disincentivize sending UCs to the SWB. Other 
commenters asserted that accompanied children should also qualify for 
an exception, since the exception for UCs creates a perverse incentive 
to send children alone to the border if families are not first 
successful together. Another noted that children arriving with their 
families do not choose where to cross the border or whether to first 
obtain an appointment, nor do they choose whether to first apply for 
asylum in another country, especially when fleeing danger.
    Response: The Departments fully agree with commenters that keeping 
families unified and avoiding family separation and the associated 
trauma is an important goal, but disagree that the rule, including the 
exception for UCs, will increase separations of families and result in 
more UCs arriving in the United States. See, e.g., E.O. 14011, 
Establishment of Interagency Task Force on the Reunification of 
Families, 86 FR 8273 (Feb. 5, 2021). As noted in the preamble of the 
NPRM, applicability of the rebuttable presumption will be considered 
during the credible fear process for those noncitizens processed for 
expedited removal, as well as applied to merits adjudications. 88 FR at 
11707. Pursuant to section 235 of the Trafficking Victims Protection 
Reauthorization Act of 2003 (``TVPRA''), UCs whom DHS seeks to remove 
cannot be processed for expedited removal and, thus, are never subject 
to the credible fear process. 8 U.S.C. 1232(a)(5)(D). As UCs are 
already excluded from expedited removal, the Departments do not 
expect--based on their experience implementing current law concerning 
expedited removal and asylum--that this exclusion of UCs from the 
rebuttable presumption would serve as a significant incentive for 
families to send their children unaccompanied to the United States.
    In addition, under this rule, families may avail themselves of 
lawful pathways and processes to enter the United States to avoid 
application of the rebuttable presumption. The rule also states that if 
one member of a family travelling together, including both parents and 
children, is excepted from the presumption or has rebutted the 
presumption, all members of the family are treated as excepted from or 
as having rebutted the presumption. 8 CFR 208.33(a)(2)(ii) and (3)(i), 
1208.33(a)(2)(ii) and (3)(i); 88 FR at 11730 (providing that ``if one 
member of a family traveling together is excepted from the presumption 
that the condition applies or has rebutted the presumption, then the 
other members of the family as described in 8 CFR 208.30(c) are 
similarly treated as excepted from the presumption or as having 
rebutted the presumption''); see 8 CFR 208.30(c)(2) (``The asylum 
officer in the officer's discretion may also include other accompanying 
family members who arrived in the United States concurrently with a 
principal [applicant] in that [applicant's] positive fear evaluation 
and determination for purposes of family unity.'').
    To the extent commenters suggest that all children, including those 
traveling with a parent or legal guardian, be excluded from 
applicability of the rule, the Departments agree that children may have 
limited agency in their manner of arrival in the United States. The 
Departments have therefore added a provision to the rule that allows 
principal asylum applicants who were under the age of 18 at the time of 
entry to avoid the condition on asylum eligibility for applications if 
they file as principal applicants after May 11, 2025, as discussed in 
more detail at Section II.C.2 of this preamble. 8 CFR 208.33(c)(2), 
1208.33(d)(2). However, the Departments do not wish to create an 
incentive for adults to arrive at the border with children falsely 
claiming to be a family unit in order to be excepted from the rule or 
for parents or legal guardians to bring their children with them on the 
dangerous journey to the United States when they otherwise would not do 
so, and therefore decline to add an exception for all accompanied 
minors. The Departments seek to encourage families that may choose to 
travel to the United States together to travel via a lawful pathway 
rather than by entrusting smugglers or criminal organizations to 
facilitate a potentially dangerous journey.

[[Page 31418]]

vi. Other General Comments on Exceptions
    Comment: Several commenters stated that the exceptions to the 
rebuttable presumption are too narrow and, therefore, would preclude 
many noncitizens from obtaining asylum. One commenter suggested 
creating a broad fourth exception that would exempt particularly 
vulnerable demographics from the rebuttable presumption, much like the 
proposed rule already exempts unaccompanied children. Another commenter 
suggested creating an exception for the elderly, who are significantly 
less likely to be repeat unauthorized crossers.
    Response: The Departments believe that the rule will generally 
offer opportunities for those with valid claims to seek protection, and 
decline to add additional exceptions to the rule. The Departments 
believe that the existing exceptions to application of the rebuttable 
presumption against asylum eligibility at 8 CFR 208.33(a)(2) and 
1208.33(a)(2) provide the desired incentive for noncitizens seeking to 
enter the United States do so via safe, orderly, and lawful pathways, 
and that additional exceptions, particularly broad exceptions such as 
those suggested by commenters, would be contrary to the purpose of the 
rule. Regardless of whether certain populations may be more or less 
likely to be repeat, unauthorized border crossers, the Departments 
believe that all noncitizens seeking to enter the United States should 
do so via safe, orderly, and lawful pathways if possible.
    The Departments also note that in addition to the enumerated 
exceptions, the rule includes means of rebutting the presumption 
against asylum eligibility at 8 CFR 208.33(a)(3) and 1208.33(a)(3) 
where exceptionally compelling circumstances exist, including where at 
the time of entry the noncitizen or a member of their family with whom 
they are traveling faced an acute medical emergency, faced an imminent 
and extreme threat to life or safety, or were a victim of a severe form 
of trafficking in persons. The Departments believe that together, the 
exceptions and grounds for rebuttal strike the correct balance between 
incentivizing use of safe, orderly, and lawful pathways for entry into 
the United States while also recognizing that in certain limited 
circumstances use of these pathways may not be feasible.
4. Other General Comments on the Rebuttable Presumption
    Comment: At least one commenter suggested that the Departments 
should permit an applicant to override the lawful pathways condition if 
they establish a reasonable possibility of persecution or torture.
    Response: To best effectuate the policy aims underpinning this 
rulemaking, the Departments believe that even those noncitizens who 
establish a reasonable fear of persecution or torture generally should 
remain subject to this asylum eligibility condition. Such noncitizens 
remain eligible for statutory withholding of removal or for CAT 
protection, consistent with U.S. non-refoulement obligations under the 
Refugee Convention and Protocol and Article 3 of the CAT. See Mejia v. 
Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun v. U.S. Att'y Gen., 
856 F.3d 249, 257 n.16 (3d Cir. 2017). Additionally, as discussed in 
Section IV.E.7.ii of this preamble, the Departments have included 
protections for family members of principal asylum applicants who are 
eligible for statutory withholding of removal or CAT protection and 
would be granted asylum but for the lawful pathways rebuttable 
presumption, where an accompanying spouse or child would not qualify 
for asylum or other protection from removal on their own or where the 
principal asylum applicant has a spouse or child who would be eligible 
to follow to join that applicant as described in section 208(b)(3)(A) 
of the INA, 8 U.S.C. 1158(b)(3)(A), if the applicant were granted 
asylum. In that context, the Departments have determined that the 
possibility of separating the family would constitute an exceptionally 
compelling circumstance that rebuts the lawful pathways presumption of 
ineligibility for asylum. See 8 CFR 1208.33(c).
    Comment: One commenter stated that the United States and Mexico 
should establish certain parameters for non-Mexicans waiting in Mexico 
for an appointment or for entry by other means, which must take into 
account safety, security, and humanitarian conditions in the locations 
where asylum seekers may be forced to wait. The commenter suggested 
that those parameters should include permission to remain lawfully in 
Mexico while awaiting appointments and ensuring relevant standards of 
protection and treatment under the Refugee Convention and international 
human rights standards.
    Response: It would be the Government of Mexico's prerogative to 
establish any such parameters. The Departments remain committed to 
continuing to work with foreign partners on expanding their legal 
options for migrants and expanding the Departments' mechanisms for 
processing migrants who lawfully arrive in the United States. See 88 FR 
at 11720.
5. Screening Procedures and Review
i. Requests for Reconsideration
    Comment: Some commenters opposed eliminating noncitizens' ability 
to seek reconsideration of a negative fear determination by USCIS and 
contended that the proposed rule would eliminate AO reconsideration of 
negative credible fear determinations. Commenters stated that the use 
of reconsiderations is needed to safeguard the rights of and due 
process for asylum seekers where the AO in the first instance issues an 
erroneous decision. Commenters stated that reconsideration has shielded 
asylum seekers from deportation to persecution and torture for decades, 
and observed that between FYs 2019-21 requests for reconsideration 
resulted in 569 reversals of negative credible fear determinations. One 
commenter stated that even one reversal in the request for 
reconsideration process is significant enough. One commenter wrote 
that, contrary to the proposed rule's ``theory that'' requests for 
reconsideration ``are a waste of resources because so few are 
granted,'' their experience was that so few are granted because 
migrants cannot adequately state their fear in the initial interview 
nor access assistance with the process. Another commenter said the 
elimination of the possibility of reconsideration leaves an applicant's 
fate entirely to the quality and circumstances of the initial 
interview. Another commenter stated that the Departments should not use 
USCIS's ``abysmal grant rate to justify eliminating this critical 
opportunity for justice and to right a wrong in an asylum seeker's 
application for protection.'' Another commenter expressed concern that 
this proposed rule would apply only to people who receive negative 
credible fear determinations due to this proposed rule, thereby 
creating different sets of procedural rules for asylum seekers denied 
under this proposed rule and those denied for other reasons.
    Response: At the outset, the Departments note that contrary to some 
commenters' assertions, the rule does not eliminate reconsideration of 
negative credible fear determinations. If the IJ upholds the AO's 
negative

[[Page 31419]]

determination, USCIS can still exercise its discretion to reconsider a 
negative determination. See 8 CFR 208.33(b)(2)(v)(C). The rule does 
eliminate the ability to request such reconsideration for noncitizens 
deemed ineligible for asylum by operation of the rebuttable 
presumption. While the Departments acknowledge concerns about 
eliminating a noncitizen's ability to request reconsideration in this 
context, they believe it is important to efficiently resolve credible 
fear cases that are subject to the rebuttable presumption against 
asylum eligibility. The rule's effectiveness in channeling migration 
into safe and orderly pathways depends in part on the efficient 
resolution of credible fear cases, and the inclusion of further review 
procedures in this context would unnecessarily prolong the credible 
fear process.
    In response to concerns about fairness, the Departments note that 
there remain multiple safeguards to ensure that the process is fair and 
to guard against inadvertent error for those subject to the rule. All 
credible fear determinations undergo initial review by a Supervisory 
AO. 8 CFR 208.30(e)(8). If the supervisor concurs with the negative 
determination, the noncitizen can request review of that determination 
by an IJ. See 8 CFR 208.33(b)(2)(iii) through (v). Those who are found 
subject to the presumption against asylum eligibility but who are still 
placed in section 240 removal proceedings can seek a de novo decision 
regarding the presumption. See 8 CFR 1208.33(b)(4). Furthermore, the 
Departments note that few requests for review of negative credible fear 
determinations ultimately result in the reversal of those 
determinations. See 87 FR at 18132; 88 FR at 11747. The Departments 
assess that, in light of the safeguards in place and the low rate of 
reversal, efficiency interests outweigh the interest in providing 
further opportunity to request reconsideration; the Departments 
therefore respectfully disagree with the commenter stating that even 
one reversal would be significant enough to warrant the ability to 
request reconsideration. Regarding the claim that few requests for 
reconsideration are granted due to noncitizens' lack of opportunity to 
state their fear during the initial interview and lack of assistance 
with the process, the commenter offered only anecdotal evidence for 
this. Moreover, this assertion does not change the Departments' 
assessment that providing further opportunity to request 
reconsideration carries insufficient benefits to justify its costs. To 
the extent that commenters argued that these limits on reconsideration 
implicate the due process rights of noncitizens, as explained 
previously in Section IV.B.5.i of this preamble, the Supreme Court has 
held that the due process rights of noncitizens applying for admission 
at the border are limited to ``only those rights regarding admission 
that Congress has provided by statute.'' Thuraissigiam, 140 S. Ct. at 
1983 (citing INA 235(b)(1)(B)(ii) and (v), 8 U.S.C. 1225(b)(1)(B)(ii) 
and (v)). The INA provides no statutory right to reconsideration of an 
AO's negative credible fear determination. See INA 235(b)(1), 8 U.S.C. 
1225(b)(1).
    The Departments acknowledge that noncitizens who are not subject to 
the presumption are subject to different rules for reconsideration. See 
8 CFR 208.30(g)(1)(i). However, the Departments note that the decision 
to reconsider a negative credible fear determination under that rule is 
still subject to USCIS discretion and is also time limited. Id. By 
contrast, there are no time limits for USCIS to reconsider negative 
determinations in cases subject to this rule. 8 CFR 208.33(b)(2)(v)(C). 
And due to the exigent circumstances discussed throughout this rule, 
including in Sections II.A and IV.B.2 of this preamble, the Departments 
believe it necessary to limit requests for reconsideration in cases 
subject to this rule.
ii. ``Significant Possibility'' Standard and Mechanisms for Evaluating 
Asylum and Withholding of Removal
    Comment: Some commenters alleged that the rule would elevate the 
``significant possibility'' standard established by Congress to the 
``reasonable possibility'' standard, which is much harder for asylum 
seekers to meet. One commenter stated that the complexity of the 
presumption of ineligibility will require ``intensive factual 
analysis'' during credible fear interviews and stated that application 
of the reasonable possibility standard for screenings for withholding 
of removal or CAT protection violates the Global Asylum Rule 
injunction. Other commenters suggest that it will be ``an extremely 
onerous undertaking'' for the Departments to apply a ``reasonable 
fear'' standard in cases where the lawful pathways condition applies, 
which could lead to more complex and resource-intensive credible fear 
screening interviews with a ``high risk of error that would send bona 
fide refugees back to danger.'' Another commenter stated that, by 
applying the ``reasonable possibility'' standard to cases subject to 
the rule, the rule would essentially turn the credible fear interview, 
which is intended to be a low-bar screening, into an asylum merits 
hearing for these individuals. One commenter said that procedural and 
judicial errors are likely to increase as AOs are asked to apply the 
more onerous ``reasonable possibility'' standard.
    A commenter stated that the rule may not be necessary as long as 
statutory withholding of removal and protection under CAT are 
available, as migrants would not distinguish between asylum, 
withholding, and CAT protection and instead would arrive at the SWB 
with the intention of seeking whatever relief is available to them. 
Other commenters expressed concern that those who cannot rebut the 
presumption would then be forced to meet a more difficult standard to 
be able to present a claim to lesser protections in the form of 
statutory withholding of removal or CAT protection. One commenter 
stated that the fact that the Departments have long applied the higher 
standard in reasonable fear screenings is ``inapposite,'' reasoning 
that the rule is not about reasonable fear screenings, which impact 
those who were previously ordered removed and then re-entered without 
inspection.
    Response: To the extent commenters suggest that the ``reasonable 
possibility'' standard will apply at the credible fear stage to asylum 
claims under this rule, they are incorrect. The statutory ``significant 
possibility'' standard will continue to apply to such asylum claims. 
See Section IV.D.1.iii of this preamble. The rule would apply a 
``reasonable possibility'' standard only to screen for claims of 
withholding of removal and CAT protection, and only where a noncitizen 
has failed to establish a significant possibility that they would be 
able to show at a full hearing by a preponderance of the evidence that 
the presumption does not apply or that they meet an exception to or can 
rebut the presumption of ineligibility. See 88 FR at 11724.
    That said, the Departments acknowledge commenters' concerns that 
certain noncitizens will be subject to a higher burden of proof for 
statutory withholding of removal and CAT protection. The Departments 
acknowledge that use of the ``reasonable possibility'' standard is a 
change from the practice currently applied in the expedited removal 
context as articulated in the Asylum Processing IFR; however, it is the 
same standard used in other protection screening contexts. See 8 CFR 
208.31; see also 88 FR 11742-44. Notably, this higher screening 
standard

[[Page 31420]]

accords with the higher standard a noncitizen must meet for statutory 
withholding of removal and protection under CAT in section 240 removal 
proceedings, 8 U.S.C. 1229a. See INS. v. Cardoza-Fonseca, 480 U.S. 421 
(1987). As explained in the NPRM, the Departments therefore believe 
that the ``reasonable possibility'' standard ``better predicts the 
likelihood of succeeding on the ultimate statutory withholding or CAT 
protection application than the `significant possibility' of 
establishing eligibility for the underlying protection standard, given 
the higher burden of proof.'' 88 FR at 11746-47. The application of 
standards tailored to the type of relief or protection that the 
noncitizen is eligible for will not foreclose an opportunity for those 
with meritorious claims to seek protection.
    While the INA specifies the ``significant possibility'' standard 
for the purpose of screening for potential asylum eligibility in 
credible fear proceedings, INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), the INA does not specify a standard to be used in 
screening for potential eligibility for statutory withholding of 
removal or CAT protection. Congress did not require the same 
eligibility standards for asylum, statutory withholding of removal, and 
protection under the CAT in the ``credible fear'' screening process. 
See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also The Foreign 
Affairs Reform and Restructuring Act of 1998 (``FARRA''), Public Law 
105-277, 112 Stat. 2681-822. Thus, the Departments have determined 
that, where the rebuttable presumption of asylum ineligibility applies 
and has not been rebutted, applying the ``reasonable possibility'' of 
persecution or torture standard to screen claims for statutory 
withholding of removal and CAT protection would better advance the 
Departments' systemic goal of processing protection claims in a manner 
that is efficient, orderly, and safe.
    The Departments acknowledge that in multiple rulemaking efforts in 
recent years, the Departments promulgated divergent standards for 
screening for potential eligibility for asylum as compared with 
statutory withholding of removal and CAT protection, along with 
variable standards for individuals barred from certain types of 
protection, which are currently not in effect.\292\ In June 2020, the 
Departments published the Global Asylum Rule, which amended provisions 
relating to the expedited removal and credible fear screening process, 
including raising the standards of proof for screening all claims for 
statutory withholding of removal and CAT protection to a ``reasonable 
possibility'' of persecution or torture and applying all mandatory bars 
to asylum and statutory withholding of removal during the credible fear 
screening. See Global Asylum Rule, 85 FR at 80277-78. The Global Asylum 
Rule continues to be the subject of lawsuits challenging the rule on 
multiple grounds.\293\ Most of the changes to the credible fear process 
in expedited removal made by the Global Asylum Rule were superseded by 
the Asylum Processing IFR. As explained in the NPRM, the considerations 
that led to those decisions do not apply here. See 88 FR at 11744. This 
rule implements the new condition on eligibility in credible fear 
screenings through a stand-alone provision rather than a catch-all as 
the Departments sought to do through the Global Asylum Rule. Moreover, 
the Departments have determined that it would be appropriate to apply 
the lawful pathways condition on asylum eligibility during the credible 
fear screening stage such that the ``reasonable possibility'' of 
persecution or torture standard would then be used to screen the 
remaining applications for statutory withholding of removal and CAT 
protection. See id.
---------------------------------------------------------------------------

    \292\ See Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protection Claims, 83 FR 
55934, 55939, 55943 (Nov. 9, 2018) (``Proclamation Bar IFR''); 
Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July 
16, 2019) (``Third Country Transit (TCT) Bar IFR''); Asylum 
Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 
2020) (``TCT Bar Final Rule''); Procedures for Asylum and 
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 
FR 36264 (June 15, 2020) (``Global Asylum NPRM''); Procedures for 
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear 
Review, 85 FR 80274 (Dec. 11, 2020) (``Global Asylum Rule''); 
Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020) 
(``Security Bars Rule'').
    \293\ See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 
501 F. Supp. 3d 792 (N.D. Cal. 2020); Immigration Equality v. U.S. 
Dep't of Homeland Sec., No. 3:20-cv-09258 (N.D. Cal. filed Dec. 21, 
2020); Human Rights First v. Mayorkas, No. 1:20-cv-3764 (D.D.C. 
filed Dec. 21, 2020); Tahirih Justice Ctr. v. Mayorkas, No. 1:21-cv-
00124 (D.D.C. filed Jan. 14, 2021).
---------------------------------------------------------------------------

    The Departments disagree with commenters' assertions that applying 
a higher burden of proof to screen for statutory withholding of removal 
and CAT protection where the presumption of asylum ineligibility 
applies and is not rebutted will result in errors. AOs and IJs have 
long applied, and continue to apply, the ``reasonable possibility'' of 
persecution or torture standard successfully to noncitizens who are 
subject to administrative removal orders under section 238(b) of the 
INA, 8 U.S.C. 1228(b), or reinstated orders under section 241(a)(5) of 
the INA, 8 U.S.C. 1231(a)(5). See generally 8 CFR 208.31 and 1208.31. 
There is therefore no reason to conclude that AOs and IJs will not be 
able to appropriately apply that standard successfully in the context 
of this rule.
    The Departments disagree with commenters' suggestion that the rule 
will increase irregular migration because noncitizens will still travel 
to the United States to pursue any avenue of relief available to them. 
The rule's primary purpose is to incentivize migrants, including those 
intending to seek asylum, to use lawful, safe, and orderly pathways to 
enter the United States, or seek asylum or other protection in another 
country through which they travel. The rule, coupled with an expansion 
of lawful, safe, and orderly pathways, is expected to reduce the number 
of noncitizens seeking to cross the SWB without authorization to enter 
the United States. The rule is intended to reduce the level of 
irregular migration to the United States without discouraging migrants 
with valid claims from applying for asylum or other protection. The 
Departments believe the rule will generally offer opportunities for 
those with valid claims to seek protection.
    The Departments' application of a higher standard for statutory 
withholding and CAT protection in ``reasonable fear'' screenings, see 8 
CFR 208.31 and 1208.31, is not inapposite in the context of this rule, 
where a noncitizen does not meet an exception to or rebut the 
presumption of asylum ineligibility. As in the ``reasonable fear'' 
context, this standard would be applied only where noncitizens are 
ineligible for asylum--and because the standard for showing entitlement 
to statutory withholding and CAT protection (a probability of 
persecution or torture) is significantly higher than the standard for 
asylum (well-founded fear of persecution), the Departments have 
determined that the screening standard adopted for initial 
consideration of withholding and deferral requests in these contexts 
should also be higher.
    In promulgating this rule, the Departments considered and drew upon 
the established framework for considering the likelihood of a grant of 
statutory withholding of removal or CAT protection in the reasonable-
fear context. See 88 FR at 11743. The Departments have authority to 
establish screening procedures and standards for statutory withholding 
of removal and CAT protection. See INA 103(a)(1), 8 U.S.C. 1103(a)(1). 
The Departments have frequently invoked these authorities to

[[Page 31421]]

establish or modify procedures in expedited removal proceedings. See 
id. Noncitizens who establish a reasonable fear of persecution or 
torture would still be able to seek protection in proceedings before 
IJs. See CFR 1208.33(b)(2)(ii).
    Comment: One commenter supported the Departments' assessment that 
applying the higher standard would lead to fewer noncitizens with non-
meritorious claims being placed in section 240 removal proceedings, and 
that using this standard would further systemic goals without violating 
statutory or international obligations. However, the commenter 
recommended that DHS raise the screening standard from ``significant 
possibility'' to ``reasonable possibility'' for statutory withholding 
of removal and CAT protection during all credible fear interviews. The 
commenter reasoned that such an approach would be consistent with the 
INA, the FARRA, and U.S. non-refoulement obligations, and would reduce 
``historic and unsustainable strains'' on the U.S. asylum system by 
deterring unauthorized immigration into the United States.
    Response: The Departments decline to apply the ``reasonable 
possibility'' standard to screen all withholding of removal and CAT 
claims. The Departments believe that continuing to use the 
``significant possibility'' standard to screen for all three types of 
claims--asylum, statutory withholding of removal, and CAT protection--
when the noncitizen is excepted from or has overcome the presumption 
would avoid AOs and IJs applying divergent standards to the same sets 
of facts in a credible fear interview, thus simplifying the screening 
process for those noncitizens.
    The commenter did not provide any explanation or evidence regarding 
how applying a higher standard during the credible fear screening to 
all claims for protection will reduce fraudulent claims. While the 
Departments acknowledge the commenter's concern, the Departments 
emphasize that the rule's primary intent is not to identify fraudulent 
asylum claims, but rather to reduce the level of irregular migration to 
the United States without discouraging migrants with valid claims from 
applying for asylum or other protection.
6. Effective Date, Temporary Period, and Further Action
    Comments: Commenters raised concerns regarding the effective date 
of the rule and the two-year temporary duration of the rule. Several 
commenters expressed a concern that the two-year period is unexplained. 
Some commenters argued that two years was too short of a time period to 
assess the effectiveness of the program. Another commenter stated that 
the two-year temporary duration of the rule allowed for sufficient time 
to assess the effects of the rule and to deter migrants. Some 
commenters questioned why the rule would expire after two years and 
requested further explanation, stating that if the Departments believe 
it is sound policy, it is not clear why the changes are not permanent. 
Others stated that the two-year period was too long for a ``temporary'' 
program designed to address ``exigent circumstances,'' and stated that 
the Departments should have considered a much shorter duration, such as 
30 days or 90 days, reconsideration every 6 months, or a sunset before 
the end of 2025. Another commenter stated that the Departments should 
specify conditions that would trigger the expiration of the rule. 
Commenters also expressed concern that the rule does not sufficiently 
lay out the criteria for determining whether the rule should be 
extended at the end of the 24-month period, or that the criteria are 
highly subjective. Commenters also noted that previous immigration 
policies, including MPP and those stemming from the Title 42 public 
health Order, have been difficult to sunset.
    Response: The Departments intend for the rule to address the surge 
in migration that is anticipated to follow the lifting of the Title 42 
public health Order. For that reason, and consistent with the 
Departments' initial assessment as stated in the NPRM, see 88 FR at 
11727, the rule will only cover those who enter during a specific time 
period, applying to those who enter the United States at the SWB during 
the 24-month period following the rule's effective date. The 
Departments believe that a 24-month period provides sufficient time to 
implement and assess the effects of the policy contained in this rule. 
In addition, the Departments believe that a 24-month period is 
sufficiently long to impact the decision-making process for noncitizens 
who might otherwise pursue irregular migration and make the dangerous 
journey to the United States, while a shorter duration, or one based on 
specified conditions, would likely not have such an effect.
    During this time, the United States will continue to build on the 
multi-pronged, long-term strategy with our foreign partners throughout 
the region to support conditions that would decrease irregular 
migration, work to improve refugee processing and other immigration 
pathways in the region, and implement other measures as appropriate, 
including continued efforts to increase immigration enforcement 
capacity and streamline processing of asylum seekers and other 
migrants. Recognizing, however, that there is not a specific event or 
demarcation that would occur at the 24-month mark, the Departments will 
closely monitor conditions during this period in order to review and 
make a decision, consistent with the requirements of the APA, whether 
additional rulemaking is appropriate to modify, terminate, or extend 
the rebuttable presumption and the other provisions of this rule. Such 
review and decision would consider all relevant factors, including the 
following: current and projected migration patterns, including the 
number of migrants seeking to enter the United States or being 
encountered at the SWB; resource limitations, including whether the 
number of noncitizens seeking or expected to seek to enter the United 
States at the SWB exceeds or is likely to exceed the Departments' 
capacity to safely, humanely, and efficiently administer the 
immigration system, including the asylum system; the availability of 
lawful, safe, and orderly pathways to seek protection in the United 
States and partner nations; and foreign policy considerations. The 
Departments expect to consider their experience under the rule to that 
point, including the effects of the rebuttable presumption on those 
pursuing asylum claims. In addition, the Departments expect to consider 
changes in policy views and imperatives, including foreign policy 
objectives, in making any decision regarding the future of the rule. 
The Departments do not believe that establishment of specific metrics 
for renewal ex ante would be appropriate, given the dynamic nature of 
the circumstances at the SWB and the multifaceted domestic and foreign 
policy challenges facing the Departments.
    Comment: Commenters expressed concern about the rationale for 
adopting the two-year duration and potential extensions of the rule in 
subsequent administrations. Some commenters stated that the 
Departments' rationale for the two-year temporary duration was 
pretextual, with the true motivations being political and partisan in 
nature. One commenter disagreed with allowing the rule to be effective 
after the end of the current presidential term because it could be 
indefinitely extended, and another similarly stated that the fact that 
the rule is ``temporary'' does not mean that a subsequent presidential 
administration could not renew it.

[[Page 31422]]

Commenters stated that, by sunsetting the rule after the end of the 
current presidential term, the Departments were inviting such a result.
    Response: The Departments disagree that the rationale for the 24-
month duration of the rule is political, partisan, or pretextual in 
nature. The rule's primary purpose is to incentivize migrants, 
including those intending to seek asylum, to use lawful, safe, and 
orderly pathways to enter the United States, or seek asylum or other 
protection in another country through which they travel. The rule is 
needed because, absent this rule, after the termination of the Title 42 
public health Order, the number of migrants expected to travel without 
authorization to the United States is expected to increase 
significantly, to a level that risks undermining the Departments' 
ability to safely, effectively, and humanely enforce and administer 
U.S. immigration law, including the asylum system. The 24-month 
duration of the rule is discussed in more detail in Section IV.E.6 of 
this preamble.
    Comment: Commenters questioned how the temporary nature of the rule 
would practically work, noting the range of new procedures, training, 
and other Notices required to start and stop such a large program. 
These commenters hypothesized that the time spent training and making 
other updates for implementation would directly cut into the limited 
time the rule would be in effect, reducing its effectiveness.
    Response: The Departments agree that implementation of the rule 
requires training and guidance, and are taking steps to ensure that it 
can be implemented in a timely, fair, and efficient manner after it 
goes into effect. The Departments are confident that the new procedures 
required can be put into effect with minimal disruption or delay in 
both merits adjudications and credible fear screenings.
    Comment: Commenters stated that although the rule proposed a two-
year effective period, it would have a permanent impact. A few 
commenters expressed concern about the potential for two identical 
asylum seekers to be treated differently based on whether they seek 
asylum before or after the sunset date of the rule. One commenter urged 
the Departments to provide clarity regarding adjudications that take 
place after the rule's sunset date for individuals that entered prior 
to the sunset date.
    Response: The Departments appreciate commenters' concerns that the 
rule, which would only apply to those entering during a specified, 
time-limited date range, could lead to confusion, and appreciate the 
opportunity to clarify how it will be implemented. The Departments also 
recognize that due to the nature of the rule, noncitizens who enter 
during the specified date range will be subject to its terms while 
those who enter before or after the period will not. However, the 
Departments disagree that the effects of the condition should be time-
limited in duration. The rule was designed to apply to anyone who 
entered during the specified time period in order to avoid the 
possibility of individuals entering without documents sufficient for 
lawful admission during the time period covered by the rule, then 
waiting out the condition imposed by the rule before applying for 
asylum, thereby contributing to the existing immigration court backlog 
and rendering the rule ineffective in its aims of reducing unauthorized 
arrivals to the SWB and encouraging utilization of available lawful 
pathways. To clarify to noncitizens and adjudicators that the 
rebuttable presumption has continuing effect, the Departments added 
language to the regulations stating that the rebuttable presumption 
will continue to apply to all asylum applications filed by people who 
enter in the specified manner during the 24-month period regardless of 
when the application is filed and adjudicated. See 8 CFR 208.33(c)(1), 
1208.33(d)(1). To further clarify, and in response to commenters' 
concerns in relation to individuals who enter as minors in a family 
unit who may have entered during the rule's effective period through no 
fault or agency of their own, the Departments have added language to 
the rule to ensure children brought to the United States during the 24-
month effective period are not subject to the lawful pathways 
rebuttable presumption of asylum ineligibility in the rule if they file 
an application for asylum as a principal applicant after expiration of 
the 24-month period. 8 CFR 208.33(c)(2), 1208.33(d)(2).
    Comment: Several commenters stated that the rule is contrary to 
international law, and that its temporary nature, or the emergency 
rationale behind it, do not justify or excuse such a violation.
    Response: For discussion of the rule's compliance with 
international law and U.S. treaty obligations, please see Section 
IV.D.3 of this preamble.
7. EOIR Proceedings
i. EOIR IJ Credible Fear Review Procedures
    Comment: Commenters objected to the provision in the proposed rule 
that would require noncitizens to affirmatively request IJ review of 
negative credible fear determinations, which differs from existing 
procedures where review is given to those who do not affirmatively 
decline review. Commenters stated that IJ review of negative credible 
fear determinations is an important safeguard that is guaranteed by 
statute, pointing to data detailing how many negative credible fear 
determinations were overturned by IJs. Commenters stated that this 
change favors expedience over access to protection in the United States 
and would inevitably result in an increase in deportations to countries 
where asylum seekers have a credible fear of return. Commenters stated 
that negative credible fear determinations should automatically receive 
IJ review unless the noncitizen affirmatively declines it, as expecting 
a noncitizen to know to affirmatively ask for an IJ's review is 
unrealistic and effectively denies the noncitizen the opportunity for a 
judicial review. Commenters explained that many individuals may not 
request review, or know to request review, even if asked whether they 
wish to seek further review before an IJ, for a variety of reasons. The 
provided reasons included unfamiliarity with the immigration system; 
lack of counsel or education; inability to identify legal errors by the 
AO; language issues; time in custody; mental health conditions; 
confusion; trauma; and deference to authority; among others. Further, 
commenters also stated that changing the explanations of the right to 
IJ review would not serve as a sufficient safeguard.
    Commenters also stated that the Departments did not give a reasoned 
justification for this policy change and that the rationale in the NPRM 
for requiring noncitizens to affirmatively request IJ review 
contradicts the Asylum Processing IFR, which, after the Global Asylum 
Final Rule implemented a requirement that noncitizens affirmatively 
request review, reinstated the default rule that negative 
determinations would be automatically referred for IJ review absent 
explicit declination by the noncitizen. Moreover, commenters asserted 
that this rule change would cause confusion as DHS officers would be 
required to apply the automatic credible fear review provision 
differently for asylum seekers with negative credible fear 
determinations based on the rebuttable presumption in this rule, as 
compared to determinations made on another basis. Commenters also 
expressed concern that the NPRM did not include statistics regarding 
automatic IJ credible

[[Page 31423]]

fear review, including how many asylum seekers succeeded in their 
review without having articulated a desire for IJ review to the AO, or 
how many IJ credible fear reviews were expeditiously resolved after the 
IJ explained the asylum seeker's rights and the asylum seeker chose to 
not pursue further review.
    Separately, regarding credible fear reviews more generally, 
commenters stated that it was unclear whether an IJ could review the 
asylum ineligibility presumption during a credible fear review. 
Commenters also stated that the proposed rule would cause a significant 
increase in negative credible fear reviews at EOIR, and that such 
reviews would require more adjudication time due to application of the 
rebuttable presumption. Moreover, commenters stated that the proposed 
rule would allow IJs to engage in speculation by looking outside of the 
record of proceedings during the credible fear review.
    Commenters also proposed an additional hearing, prior to or 
concurrent with the IJ review, assessing whether a noncitizen's 
documents were sufficient for lawful admission pursuant to section 
212(a)(7) of the INA, 8 U.S.C. 1182(a)(7). In contrast, other 
commenters proposed generally eliminating IJ review of credible fear 
determinations, asserting this would reduce the backlog of cases within 
the immigration system and would reduce the pull factor created by 
lengthy adjudications. Similarly, other commenters stated that IJ 
review is not necessary if a noncitizen knowingly declines review, so 
long as the Departments provide expanded rights advisals and explain 
the consequences of declining such review.
    Response: As stated in the NPRM, the Departments acknowledge that 
the procedure for IJ review of negative credible fear determinations 
established by this rule differs from the credible fear review 
procedures implemented by the Asylum Processing IFR. See 88 FR at 11744 
(``[U]nlike the process adopted by the Asylum Processing IFR, 
noncitizens must affirmatively elect immigration judge review of a 
negative credible fear determination when that choice is presented to 
them; noncitizens who fail or refuse to indicate a request for 
immigration judge review will not be considered to have requested such 
review.''). While the Departments believe that ``the need for 
expedition under the current and anticipated exigent circumstances'' 
weighs in favor of requiring noncitizens to affirmatively request IJ 
review of a negative credible fear determination, they will also ``seek 
to ensure noncitizens are aware of the right to review and the 
consequences of failure to affirmatively request such review.'' Id. at 
11747.\294\
---------------------------------------------------------------------------

    \294\ Regarding commenters' data requests, the Departments note 
that EOIR does not maintain data regarding how many IJ credible fear 
reviews were initiated after a noncitizen failed to request such 
review.
---------------------------------------------------------------------------

    In particular, if a noncitizen receives a negative credible fear 
determination after failing to rebut the presumption or to establish a 
``reasonable possibility'' of persecution or torture, the rule requires 
AOs to provide noncitizens ``with a written notice of decision and 
inquire whether the alien wishes to have an immigration judge review 
the negative credible fear determinations.'' 8 CFR 208.33(b)(2)(iii). 
The Departments believe that such notice sufficiently ensures that 
noncitizens who desire IJ review have the opportunity to elect it under 
this rule. Currently, USCIS explains to noncitizens that they may 
request review of a negative credible fear determination with an IJ, 
and that failure to do so may result in removal from the United States. 
USCIS also explains to noncitizens their right to consultation during 
the credible fear process, and provides noncitizens with a list of free 
or low-cost legal services providers whom they may wish to 
contact.\295\ To ensure that noncitizens--including, among others, 
noncitizens who are unfamiliar with the immigration system, have 
suffered trauma, are without counsel, or are unable to read or speak 
English--understand what review is available to them, DHS ``intends to 
change the explanations it provides to noncitizens subject to the . . . 
rule to make clear to noncitizens that the failure to affirmatively 
request review will be deemed a waiver of the right to seek such 
review.'' 88 FR at 11747. These explanations will be provided by 
trained asylum office staff through an interpreter in a language 
understood by the noncitizen. See 8 CFR 208.30(d)(5). As a result, the 
Departments believe that it is reasonable to conclude that noncitizens 
who do not request IJ review after receiving sufficient notice, see 8 
CFR 208.30(d)(5), and the enhanced explanations described above do not 
wish for additional review. See 88 FR at 11747. The Departments note 
that, at the time that the Asylum Processing IFR was being considered, 
the Departments were assessing procedures that would require 
affirmative requests for IJ review through the lens of the Global 
Asylum Final Rule, which did not include a planned rollout of enhanced 
explanations for noncitizens. Under this rule, DHS is now planning 
different protocols for implementing the requirement that noncitizens 
affirmatively request review by providing the above-described 
explanations coupled with enhanced notice procedures. The Departments 
also do not believe this change will cause unnecessary confusion for 
DHS officers and staff, as they are well trained in expedited removal 
and credible fear procedures. See, e.g., 8 CFR 208.1(b) (``Training of 
asylum officers'').
---------------------------------------------------------------------------

    \295\ See USCIS Form M-444, Information About Credible Fear 
Interview.
---------------------------------------------------------------------------

    Separately, in response to more general comments about the IJ 
credible fear review process, the Departments clarify that IJs apply a 
de novo standard during credible fear reviews, including on the 
question whether the asylum ineligibility presumption applies. See 8 
CFR 1208.33(b)(1) (stating that ``the immigration judge shall evaluate 
the case de novo''). More generally, the Departments do not believe 
that the application of the rebuttable presumption presents a risk of 
creating significant inefficiencies during the IJ credible fear review 
process that would warrant amending the rule, as IJs have significant 
experience conducting credible fear reviews and applying asylum-related 
standards. Additionally, IJs will be able to review relevant evidence 
provided at the initial credible fear interview before the AO in making 
any determinations regarding the rebuttable presumption. As discussed 
above, the Departments anticipate that any increases in the time that 
it takes to review a negative credible fear decision will be outweighed 
by other efficiencies created by this rule. The Departments disagree 
with commenters that the rule allows IJs to engage in ``speculation'' 
during credible fear reviews, as the relevant evidentiary standards in 
credible fear reviews predate this regulation. See 8 CFR 1003.42(d)(1) 
(explaining that the IJ may take into account ``such other facts as are 
known to the immigration judge'').
    In response to other commenters, the Departments also decline to 
completely eliminate IJ credible fear review, which is provided by 
statute and acts as an important safeguard during the expedited removal 
process. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III) (``The Attorney General shall provide by 
regulation and upon the alien's request for prompt review by an 
immigration judge of a determination . . . that the alien does not have 
a credible fear of persecution.''). Similarly, the Departments decline 
to add additional

[[Page 31424]]

hearings regarding inadmissibility determinations, which are properly 
determined within existing procedures. See INA 235(b)(1)(A)(i), 8 
U.S.C. 1225(b)(1)(A)(i) (requiring DHS officer to determine document-
related inadmissibility during the expedited removal process).
    Comment: Commenters raised a number of concerns about IJ credible 
fear review proceedings generally, including the sufficiency and 
reliability of the evidentiary record before the AO, the abbreviated 
nature of IJ credible fear reviews in light of the complexity of the 
issues presented, the lack of counsel or limited participation of 
counsel in IJ credible fear reviews, the level of deference IJs 
demonstrate towards to the AO's determination, and the lack of appeal 
of an IJ negative credible fear determination, among others.
    Response: As an initial matter, the Departments note that this rule 
does not alter the existing IJ credible fear review process, and 
comments regarding unaltered existing processes are outside the scope 
of this rule. Regardless, with respect to commenters who characterized 
the existing credible fear screening and review process as deficient or 
contrary to due process, the Departments note that Congress has 
established an expedited removal process that includes neither BIA 
review nor judicial review and requires any IJ review of credible fear 
determinations to be prompt. See INA 235(b)(1)(B)(iii)(III), (C), 8 
U.S.C. 1225(b)(1)(B)(iii)(III), (C). Additionally, existing regulations 
outline a robust process for IJ review of credible fear determinations. 
See 8 CFR 1003.42, 1208.30 (describing IJ review of credible fear 
determinations). Please also see discussion in Section IV.B.5 of this 
preamble responding to comments on the effects of the rule on due 
process.
    As to the sufficiency and reliability of the record of 
determination, the Departments disagree with commenter contentions that 
this document does not provide a sufficient record for IJ review. The 
INA sets forth that the record of determination ``shall include a 
summary of the material facts as stated by the applicant, such 
additional facts (if any) relied upon by the officer, and the officer's 
analysis of why, in light of such facts, the [noncitizen] has not 
established a credible fear of persecution.'' INA 
235(b)(1)(B)(iii)(II), 8 U.S.C. 1225(b)(1)(B)(iii)(II). Further, as the 
record of determination is a government-created document, it is 
generally presumed to be reliable in the absence of evidence to the 
contrary. See Matter of J-C-H-F-, 27 I&N Dec. 211, 212 (BIA 2018) 
(citing Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995)). Should the 
reliability of a record of determination be challenged before the IJ, 
the IJ will consider the arguments raised as to its reliability. Cf. 
id. at 215-16 (setting forth the framework for IJ review when the 
reliability of a border interview is challenged); see also Ye v. Lynch, 
845 F.3d 38, 45 (1st Cir. 2017) (requiring a totality-of-the-
circumstances-based inquiry as to reliability of a DHS document); Zhang 
v. Holder, 585 F.3d 715, 725-26 (2d Cir. 2009) (requiring a factor-
based inquiry as to reliability of a DHS document).
    Moreover, during review of a negative credible fear determination, 
IJs are authorized to ``receive into evidence any oral or written 
statement which is material and relevant to any issue in the review.'' 
8 CFR 1003.42(c). Accordingly, noncitizens who believe that their 
credible fear interview is inaccurately described or who wish to 
provide additional testimony, context, or explanation have the 
opportunity to do so before an IJ. Furthermore, as an additional 
procedural precaution for noncitizens, the IJ review of a negative 
credible fear determination itself is subject to preservation-of-
records requirements, as the IJ must create a Record of Proceeding in 
which to memorialize their review. See 8 CFR 1003.42(b).
    As stated in the NPRM and consistent with existing practice, IJs 
will continue to evaluate such credible fear determinations using a de 
novo standard of review. See 8 CFR 1003.42(d)(1), 1208.33(b)(1) 
(``[T]he immigration judge shall evaluate the case de novo, as 
specified in paragraph (b)(2) of this section.''); 88 FR at 11726. This 
includes reviewing an AO's determinations about the applicability of 
the presumption of asylum ineligibility and whether the presumption was 
rebutted. See 8 CFR 1208.33(b). Under 8 CFR 1208.33(b)(1), the IJ shall 
review de novo ``[w]here an asylum officer has issued a negative 
credible fear determination pursuant to 8 CFR 208.33(b), and the alien 
has requested immigration judge review of that credible fear 
determination.'' 8 CFR 208.33(b)(2)(v) (``Immigration judges will 
evaluate the case as provided in 8 CFR 1208.33(b).''). In such an 
instance, de novo review serves to protect noncitizens from incorrect 
or unwarranted negative credible fear determinations that may have in 
part relied upon the rebuttable presumption.
    Further, with respect to commenter concerns about timelines in 
credible fear review proceedings, the expedited removal statute 
requires ``prompt review.'' INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). Additionally, the statute states that 
``[r]eview shall be concluded as expeditiously as possible, to the 
maximum extent practicable within 24 hours, but in no case later than 7 
days after the date of the [negative credible fear] determination.'' 
Id.
    Moreover, the Departments will not depart from existing procedures 
regarding IJ review of credible fear determinations to allow appeals 
from the IJs' review of such determinations. Prior to this rule, IJ 
decisions at the credible fear review stage were not reviewable, and 
this rule maintains that posture. See 8 CFR 1003.42(f) (2020) \296\ 
(``No appeal shall lie from a review of an adverse credible fear 
determination made by an immigration judge.''); 208.33(b)(2)(v)(C) 
(``No appeal shall lie from the immigration judge's decision and no 
request for reconsideration may be submitted to USCIS.''). Such 
processes are in accordance with the INA. See INA 235(b)(1)(C), 8 
U.S.C. 1225(b)(1)(C) (providing that removal orders issued under this 
section are not subject to administrative appeal other than review by 
an IJ). However, the Departments note that per the rule, USCIS retains 
the discretion to reconsider negative determinations. See 8 CFR 
208.33(b)(2)(v)(C) (``Nevertheless, USCIS may, in its sole discretion, 
reconsider a negative determination.''). Because noncitizens can 
request IJ review of a negative credible fear determination, and USCIS 
retains discretion to reconsider negative determinations, the 
Departments continue to believe, as explained in the NPRM, that the 
rule appropriately balances the availability of review and the 
efficient use of limited agency resources. See 88 FR at 11747.
---------------------------------------------------------------------------

    \296\ This provision was amended by the Global Asylum Rule, 
which was preliminarily enjoined and its effectiveness stayed before 
it became effective. See Pangea II, 512 F. Supp. 3d at 969-70. This 
order remains in effect, and thus the 2020 version of this 
provision--the version immediately preceding the enjoined 
amendment--is currently effective.
---------------------------------------------------------------------------

    In sum, the Departments believe that the established process for IJ 
review of credible fear determinations provides sufficient opportunity 
for noncitizens to present the necessary evidence, including testimony, 
relevant for evaluating the applicability of the presumption of asylum 
ineligibility created by this rule.
ii. Section 240 Removal Proceedings
    Comment: Commenters stated that the rule would create confusion in 
section 240 removal proceedings, as the rule states that a noncitizen 
who is subject

[[Page 31425]]

to the presumption but demonstrates a ``reasonable possibility'' of 
persecution or torture may apply for asylum during subsequent removal 
proceedings. Commenters also expressed concern that under the proposed 
rule, an IJ might re-adjudicate the condition on eligibility in section 
240 removal proceedings despite an AO initial determination during the 
credible fear process that the presumption of ineligibility was not 
applicable or was rebutted. Commenters stated that it would be unfair 
to require asylum applicants to repeatedly demonstrate that they are 
able to rebut the presumption before different adjudicators, suggesting 
an AO's determination that the presumption is inapplicable should be 
final for all future proceedings.
    Response: The Departments reiterate that noncitizens who are 
subject to the presumption of asylum ineligibility during a credible 
fear determination, but who demonstrate a ``reasonable possibility'' of 
persecution or torture, can apply for asylum during any subsequent 
removal proceedings. See 8 CFR 1208.33(b)(4). However, the provisions 
of this rule governing the presumption of asylum ineligibility will 
still apply, and an IJ will apply the relevant provisions de novo 
during removal proceedings. See generally 8 CFR 1208.33.
    The Departments do not believe that it is unfair for IJs to 
consider the presumption of asylum ineligibility de novo where the AO 
already determined that the presumption did not apply or was rebutted. 
The IJ's determination would be based on all available evidence after 
the noncitizen is given the opportunity to present and examine such 
evidence. See INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B) (explaining a 
noncitizen's evidentiary rights in section 240 removal proceedings). 
The Departments thus decline to deviate from existing practice in 
section 240 removal proceedings requiring IJs to determine asylum 
eligibility de novo once a matter is referred to EOIR after a positive 
credible fear determination. See, e.g., 8 CFR 1208.13(a) (``The fact 
that the applicant previously established a credible fear of 
persecution for purposes of section 235(b)(1)(B) of the Act does not 
relieve the alien of the additional burden of establishing eligibility 
for asylum.'').
    Comment: Commenters provided generally positive feedback on the 
inclusion of a family unity provision but raised concerns about the 
operation of the provision itself. Commenters were concerned that the 
family unity provision was insufficient because it would not apply to 
asylum applicants traveling without their families, including cases 
where family members are unable to travel together due to immediate 
danger, among other factors. Commenters stated that individual asylum 
applicants would be subject to the asylum ineligibility presumption 
and, as a result, would be unable to petition for eligible derivatives 
outside the United States if they are only able to receive statutory 
withholding of removal or CAT protection, providing anecdotal examples. 
In turn, commenters stated, this would result in family separation with 
spouses and children left in dangerous situations in their home 
country, unable to join their family members in the United States. 
Therefore, commenters suggested that the family unity provision should 
be expanded to individual asylum applicants who meet the provision's 
requirements if they have eligible derivatives abroad. Commenters also 
proposed that the rule include ``families'' as a general exception to 
application of the rebuttable presumption of ineligibility for asylum.
    Commenters explained that, for the provision as currently drafted 
to apply, the noncitizen would have to first qualify for statutory 
withholding of removal or CAT withholding, which have higher standards 
of proof than asylum. Commenters stated that this would result in 
families with legitimate asylum claims being denied relief because they 
may be unable to meet the higher standards required for statutory 
withholding of removal or CAT withholding. Additionally, commenters 
claimed that this provision would create an inefficient and costly 
process, where noncitizens would be required to gather and present a 
significant amount of evidence on statutory withholding of removal and 
CAT withholding to meet their higher standards and IJs would have to 
adjudicate those forms of relief or protection separately before 
applying the exception, rather than potentially granting asylum in the 
first instance. Commenters noted that in removal proceedings, the 
family unity exception requires a determination that the noncitizen is 
eligible for withholding of removal or CAT withholding and that they 
would be granted asylum but for the presumption. Commenters also raised 
concerns that many applicants will face harm while those issues are 
adjudicated. Commenters raised further concerns that the family unity 
provision would only apply where no members of a family qualify for 
withholding of removal or CAT withholding, thus resulting in removal 
orders for entire families who qualified for those forms of protection. 
Lastly, commenters expressed concern that the provision does not 
address family unity concerns where family members traveling together 
may not qualify as derivatives due to their relationship status. 
Commenters explained that this would result in the rebuttable 
presumption of asylum ineligibility applying and, assuming certain non-
derivative family members cannot meet the standards for statutory 
withholding of removal or CAT withholding, de facto separation.
    Commenters also expressed confusion about whether the family unity 
provision could work retroactively to grant asylum to individuals with 
statutory withholding of removal if their spouse or child subsequently 
journeyed to the United States and underwent adjudication. Further, 
commenters stated that the proposed rule leaves outstanding questions 
about what independent relief would disqualify families from availing 
themselves of the family unity provision.
    One commenter claimed that the family unity provision would 
incentivize the smuggling of children and suggested eliminating it 
entirely. Separately, some commenters claimed that the provision would 
increase the incentives for family migration.
    Response: The Departments fully agree with commenters that keeping 
families unified and avoiding family separation is an important goal. 
See, e.g., E.O. 14011, Establishment of Interagency Task Force on the 
Reunification of Families, 86 FR 8273 (Feb. 5, 2021). This rule has 
been designed to eliminate the possibility that the rule's presumption 
will result in the separation of families.
    With respect to family units traveling together, if any noncitizen 
in that family unit traveling together meets an exception to or is able 
to rebut the asylum ineligibility presumption, the presumption will not 
apply to anybody in the family traveling together. 8 CFR 
208.33(a)(2)(ii), 208.33(a)(3)(i); see also 88 FR at 11749. 
Additionally, even where no family members that are traveling together 
meet an exception or are able to rebut the presumption, the rule 
includes a family unity provision that sets forth a unity-based 
``exceptionally compelling circumstance'' to rebut the asylum 
ineligibility presumption for certain noncitizens in order to avoid 
separating asylum applicants from potential derivative beneficiaries. 8 
CFR 1208.33(c). More specifically, under this family unity provision, 
where a principal asylum applicant is subject to the presumption but is 
eligible for

[[Page 31426]]

statutory withholding of removal or CAT withholding,\297\ and would be 
granted asylum but for the presumption, and where an accompanying 
spouse or child does not independently qualify for asylum or other 
protection from removal, the presumption shall be deemed rebutted as an 
exceptionally compelling circumstance. See 8 CFR 1208.33(c). Such 
principal applicants and their accompanying derivatives can then 
proceed with their asylum claims consistent with general asylum 
procedures. See INA 208(b)(3), 8 U.S.C. 1158(b)(3).
---------------------------------------------------------------------------

    \297\ The family unity provision at 8 CFR 1208.33(c) is not 
triggered by eligibility for deferral of removal under the CAT 
because a noncitizen only eligible for that form of CAT must be 
subject to a bar to CAT withholding, which would also bar the 
noncitizen from asylum. See 8 CFR 1208.17(a) (providing that someone 
who is eligible for CAT withholding but who is subject to the 
mandatory bars to statutory withholding of removal at 8 CFR 
1208.16(d)(2) and (3) shall be granted CAT deferral); 8 CFR 
1208.16(d)(2) (providing that an application for CAT withholding 
will be denied if the noncitizen is subject to a bar to statutory 
withholding of removal under section 241(b)(3)(B) of the INA, 8 
U.S.C. 1231(b)(3)(B)). Compare INA 241(b)(3)(B), 8 U.S.C. 
1231(b)(3)(B) (providing mandatory bars to statutory withholding of 
removal), with INA 208(b)(2), 8 U.S.C. 1158(b)(2) (providing 
mandatory bars to asylum). Thus, such a noncitizen would never be 
ineligible for asylum solely due to the rebuttable presumption.
---------------------------------------------------------------------------

    Additionally, in light of commenters' concerns, the Departments 
have expanded this provision to also cover principal applicants who 
have a spouse or children who would be eligible to follow to join that 
applicant as described in section 208(b)(3)(A) of the INA, 8 U.S.C. 
1158(b)(3)(A). 8 CFR 1208.33(c). As commenters noted, excluding asylum 
applicants who travel without their families may inadvertently 
incentivize families to engage in irregular migration together so as 
not to risk that the principal applicant would be prevented from later 
applying for their family members to join them. This may involve making 
a dangerous journey with vulnerable family members, such as children. 
The expansion to the provision would apply only to migrants who are 
subject to the presumption, who are ultimately found eligible for 
statutory withholding of removal or CAT withholding, and who have 
spouses or children who would be eligible to follow to join them in the 
United States.
    However, the Departments decline to modify the rule to 
categorically exempt families from the rebuttable presumption of asylum 
eligibility. Given the existing and expanded protections in the rule, 
such a change is not necessary to ensure family unity. And the 
Departments have determined that making such a change would 
significantly diminish the effectiveness of the rule and incentivize 
families to migrate irregularly. See 88 FR at 11708-09 (describing the 
significant increase in families seeking asylum in the United States). 
Further, the Departments do not want to create an incentive for adults 
to present at the SWB with children fraudulently claiming to be a 
family unit.\298\
---------------------------------------------------------------------------

    \298\ See Tech Transparency Project, Inside the World of 
Misinformation Targeting Migrants on Social Media (July 26, 2022), 
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of social 
media groups and pages identified by migrants showed . . . dubious 
offers of coyote or legal services, false claims about conditions 
along the route, misinformation about points of entry at which 
officials waive the rules, and baseless rumors about changes to 
immigration law.''); ICE, Press Release, ICE HSI El Paso, USBP 
Identify More than 200 `Fraudulent Families' in Last 6 Months (Oct. 
17, 2019), https://www.ice.gov/news/releases/ice-hsi-el-paso-usbp-identify-more-200-fraudulent-families-last-6-months.
---------------------------------------------------------------------------

    Overall, the Departments have designed the family unity provision 
at 8 CFR 1208.33(c) and the other protections against family separation 
to ensure that the rule does not cause the separation of families. With 
regard to the family unity provision, the Departments believe that 
requiring the lead asylum applicant to first establish eligibility for 
protection under the higher standards of proof for statutory 
withholding of removal or CAT withholding before qualifying for the 
family unity provision serves as an incentive to choose a lawful 
pathway. Choosing a lawful pathway would enable applicants to remain 
eligible for asylum, which requires a lower burden of proof and 
includes the ability to include derivatives on their application or 
utilize follow-to-join procedures set forth in section 208(b)(3)(A) of 
the INA, 8 U.S.C. 1158(b)(3)(A).
    To the extent that commenters claim that some family members who 
traveled together may have, but for the presumption, qualified for 
asylum but not statutory withholding of removal, and therefore would 
not qualify for the family unity exception if subject to the rebuttable 
presumption of asylum ineligibility, the Departments reiterate that the 
family unity provision in 8 CFR 1208.33(c) is but one protection for 
family units included in this rule. For example, the rule includes 
options for families to stay together if any member of a family 
traveling together: uses an available lawful pathway (8 CFR 
208.33(a)(2)(ii), 1208.33(a)(2)(ii)); establishes an exception from or 
rebuts the presumption of ineligibility (8 CFR 208.33(a)(2) and (3), 
1208.33(a)(2) and (3)); or, if they do not pursue a lawful pathway and 
are unable to establish an exception from or rebut the presumption, 
meets the higher standard required for statutory withholding of removal 
or CAT withholding. Notably, exceptions from and rebuttals to the 
presumption consider circumstances involving both the noncitizen and 
members of the noncitizen's family with whom they are traveling, for 
example, whether the noncitizen or a member of the noncitizen's family 
faced an acute medical emergency at the time of entry. See 8 CFR 
1208.33(a)(2) and (3), 208.33(a)(2) and (3). To reiterate, the rule 
also includes options for family members who do not pursue a lawful 
pathway and are unable to rebut the presumption to stay together or 
reunite if a principal asylum applicant is eligible for statutory 
withholding of removal or CAT withholding and would be granted asylum 
but for the presumption, if either (1) an accompanying spouse or child 
does not also independently qualify for asylum or other protection from 
removal, or (2) if the principal asylum applicant has a spouse or child 
who would be eligible to follow to join that applicant if granted 
asylum. These protections together ensure that the rule does not lead 
to the separation of families. The Departments strongly encourage 
noncitizens, including asylum-seeking families, to choose lawful 
pathways.
    However, to the extent that some families may not use a lawful 
pathway, and are unable to rebut the presumption, the Departments 
believe that many noncitizens with approvable asylum claims would 
present claims for statutory withholding of removal or CAT protection 
on the same set of underlying facts, although the standards that apply 
to asylum, statutory withholding of removal, and CAT protection each 
differ from one another in some respects. See Regulations Concerning 
the Convention Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999) 
(``Additionally, use of the Form I-589 will obviate the need for two 
separate forms that, in many cases, will elicit similar information. In 
many cases in which the alien applies both for asylum and withholding 
of removal under the Act and for withholding under the Convention 
Against Torture, the underlying facts supporting these claims will be 
the same.''); Yousif v. Lynch, 796 F.3d 622, 629 (6th Cir. 2015) (``An 
asylum claim and a withholding claim require consideration of `the same 
factors' and proof of the same underlying facts about an applicant's 
probable persecution.'').
    Separately, the Departments disagree with commenters that the 
family unity provision would encourage family

[[Page 31427]]

migration or child smuggling. The strong incentives of the lawful 
pathways described in the rule, coupled with the disincentive of the 
rebuttable presumption of asylum ineligibility, are designed to 
encourage noncitizens, including families, to pursue lawful pathways. 
For example, after implementation of the Venezuelan parole process for 
eligible Venezuelan nationals and their families, migratory flows with 
respect to this group fell dramatically. See 88 FR at 11712, 11718. 
Based on this trend and the implementation of other initial parole 
processes implementations discussed in the NPRM, the Departments 
believe that the rule will reduce irregular family migration as well as 
child smuggling as part of an overall reduction in irregular migration.
    To the extent that commenters raised concerns that the family unity 
provision is inefficient in operation, the Departments believe that the 
benefits from inclusion of the provision outweigh any potential 
inefficiencies. The Departments also note that asylum, statutory 
withholding of removal, and CAT withholding are forms of relief and 
protection that generally rely on the same set of underlying facts. See 
Yousif, 796 F.3d at 629. Therefore, IJs who determine that a noncitizen 
is eligible for statutory withholding of removal or CAT withholding 
will be able to apply the family unity provision and efficiently 
consider whether to exercise their discretion to grant asylum on the 
same facts. Additionally, in response to commenter concerns about 
noncitizens facing harm while the family unity exception is being 
adjudicated, the Departments note that this rule does not amend 
existing follow-to-join procedures.
8. Adequacy of Withholding of Removal and CAT
    Comment: Commenters stated that statutory withholding of removal 
and CAT protection are insufficient alternative forms of protection for 
individuals who would be ineligible for asylum pursuant to the proposed 
rule, asserting that these forms of protection are more difficult to 
obtain and provide fewer benefits than asylum.
    For example, commenters stated that such forms of protection are 
not sufficiently available to all those who require protection. 
Specifically, commenters stated that statutory withholding of removal 
and CAT protection require applicants to meet a higher burden of proof 
than asylum, as they would need to demonstrate that it is ``more likely 
than not'' that they would face persecution or torture. Commenters 
stated that, because of this higher burden of proof, an applicant may 
be otherwise eligible for asylum, but be removed because they are 
unable to meet the burden for statutory withholding of removal or CAT 
protection. As a result, commenters alleged that an individual may be 
returned to a country where they would face persecution or death.
    Commenters also stated that, even if an applicant were able to meet 
the higher burden of proof for statutory withholding of removal or CAT 
protection, the individual would not then be accorded the same benefits 
as asylees. For example, commenters expressed concern regarding the 
prohibition on international travel for recipients of statutory 
withholding of removal and CAT protection. Commenters noted that, 
unlike recipients of asylum, these individuals do not have access to 
travel documents and are unable to travel abroad.
    Commenters also noted that recipients of statutory withholding of 
removal and CAT protection remain in a tenuous position because they 
are not granted lawful status, or any path to citizenship, to remain in 
the United States indefinitely. Commenters explained that recipients of 
statutory withholding of removal or CAT protection remain permanently 
subject to a removal order and may have their status terminated at any 
time. Commenters stated that the constant prospect of deportation or 
removal creates uncertainty for recipients of statutory withholding of 
removal or CAT protection, which can lead to community instability in 
the United States. Commenters stated that this uncertainty would 
prevent such noncitizens from processing the trauma that predicated 
their migration to the United States.
    Similarly, commenters stated that recipients of statutory 
withholding of removal or CAT protection may be limited from fully 
participating in U.S. society. Commenters raised specific concerns 
about statutory withholding and CAT protection recipients' lack of 
access to public benefits, services, and healthcare. Commenters were 
also concerned about such individuals' need to apply annually and pay 
for work authorization and the impact that this requirement may have on 
related benefits, such as the ability to obtain a driver's license.
    Commenters also claimed that granting statutory withholding of 
removal or CAT protection instead of asylum under the proposed rule 
would fail to ensure family unity. Commenters alleged that individuals 
who are granted statutory withholding of removal or CAT protection 
would be unable to reunite with family in the United States because 
these forms of relief do not allow the recipient to petition for 
derivative beneficiaries. Due to this, commenters stated that the 
proposed rule would institute another policy of family separation that 
permanently separates noncitizens from their family members. Commenters 
also stated that family members applying for statutory withholding of 
removal are not able to request that their cases be consolidated and 
adjudicated together like asylum applicants can and stated that moving 
separately through the legal system makes them more likely to have 
uneven results for different family members, which may result in some 
members being ordered removed while others remain protected in the 
United States. Some commenters stated that they have experience with 
clients who have been permanently separated from family members, 
including young children, because they were granted statutory 
withholding of removal or CAT protection instead of asylum.
    Commenters further raised concerns about the effect the proposed 
rule would have on availability of bond to those subject to the 
presumption of asylum ineligibility. Commenters asserted that 
adjudicators are less likely to grant bond to those who are eligible 
only for statutory withholding of removal or CAT protection as overly 
high flight risks due to the comparatively higher standards of proof. 
Commenters also expressed confusion over whether, under the proposed 
rule, individuals subject to the presumption of ineligibility will be 
treated as having entered without inspection, leaving them eligible for 
bond, or as arriving aliens, leaving them ineligible for bond.
    Response: As described in the NPRM, the purpose of this rule is to 
discourage irregular migration by encouraging migrants, including those 
who may seek asylum, to use lawful, safe, and orderly pathways to the 
United States. See generally 88 FR at 11706-07. To do so, the rule 
includes a number of exceptions to the rebuttable presumption of 
ineligibility for asylum for prospective asylum applicants outside the 
United States, including whether they or a member of their family with 
whom they traveled (1) sought asylum or other protection in third 
countries through which they first transit, to avoid the need to 
continue an often-perilous journey to the United States in pursuit of 
protection unless absolutely necessary; (2) obtained appropriate 
authorization to travel to the United States to seek parole pursuant to 
a DHS-approved parole

[[Page 31428]]

process; or (3) presented at a POE pursuant to a pre-scheduled date and 
time or presented at the POE without an appointment but established 
that it was not possible to access or use the DHS scheduling system for 
a specified reason. See 8 CFR 208.33(a)(2), 1208.33(a)(2). In other 
words, this rule provides numerous ways in which noncitizens covered by 
this rule may pursue asylum. And to the extent that a noncitizen may 
not be able to pursue a lawful pathway due to exceptionally compelling 
circumstances, they may be able to rebut the presumption. See 8 CFR 
208.33(a)(3), 1208.33(a)(3).
    With respect to noncitizens, or family members with whom they 
traveled, who do not avail themselves of a lawful pathway or otherwise 
rebut the presumption, the Departments recognize that the standards for 
eligibility for statutory withholding of removal and CAT protection are 
each higher than that for asylum, as they require demonstrating it is 
more likely than not that noncitizens will be persecuted or tortured in 
another country, whereas asylum requires a lesser well-founded 
fear.\299\ See 64 FR at 8485. Indeed, that difference in standards 
aligns with several objectives of this rule: to encourage noncitizens 
to avail themselves of the lawful pathways described above, where 
possible, as well as to discourage irregular migration, promote orderly 
processing at POEs, and ensure that protection from removal is still 
available for those who satisfy the applicable standards for mandatory 
protection under statutory withholding of removal or the regulations 
implementing CAT. See, e.g., 88 FR at 11729 (``The Departments assess 
that the Government can reduce and redirect such migratory flows by 
coupling an incentive for migrants to pursue lawful pathways with a 
substantial disincentive for migrants to cross the land border 
unlawfully.''). The higher ultimate standards of proof for statutory 
withholding of removal and CAT protection therefore serve as a 
disincentive for noncitizens to forgo the lawful pathways detailed in 
this rule, as noncitizens would risk having to satisfy those 
comparatively higher standards in the first instance if the presumption 
applied to their case and were unrebutted.\300\
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    \299\ As a general matter, the Departments note that this rule 
does not change any of the long-time standards relating to statutory 
withholding of removal and CAT protection outside of the initial 
credible fear screening stage.
    \300\ In response to commenters, the Departments note that they 
cannot quantify how many noncitizens subject to the asylum 
ineligibility presumption can qualify for statutory withholding of 
removal or CAT protection, as those are case-by-case, fact-specific 
determinations.
---------------------------------------------------------------------------

    Similarly, the Departments recognize the comparatively fewer 
benefits of statutory withholding of removal and CAT protection as 
compared to asylum, including the following: (1) no permanent right to 
remain in the United States; (2) the inability to adjust status to 
become a lawful permanent resident and, relatedly, later naturalize as 
a U.S. citizen; (3) the inability to travel abroad; and (4) the need to 
affirmatively apply for, and annually renew, work authorization 
documents.\301\ However, as explained above, the Departments 
promulgated this rule with the intention to encourage noncitizens to 
utilize a lawful pathway rather than a pathway that may limit them to 
statutory withholding of removal or CAT protection and their more 
limited benefits. The Departments also note the lack of derivative 
protection for statutory withholding of removal and CAT protection 
recipients.\302\ Compare INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) 
(providing for derivative asylum status for spouses and children), with 
INA 241(b)(3), 8 U.S.C. 1231(b)(3) (no derivative status for spouses 
and children under statutory withholding of removal), and 8 CFR 
1208.16(c)(2) (no derivative status for spouses and children under the 
CAT).\303\ The Departments are cognizant of these limitations and 
acknowledge the importance of family unity. See, e.g., E.O. 14011, 
Establishment of Interagency Task Force on the Reunification of 
Families, 86 FR 8273 (Feb. 5, 2021) (``It is the policy of my 
Administration to respect and value the integrity of families seeking 
to enter the United States.''). To that end, as discussed in further 
detail at Section IV.E.7.ii in this preamble, this rule contains 
numerous measures to avoid the separation of family members, including 
applying any exceptions or rebuttals to the presumption to the entire 
family unit traveling together, as well as a ``family unity'' provision 
applicable in removal proceedings to ensure that the rule does not 
result in family separations when granting relief in the United States. 
See 8 CFR 1208.33(c) (``Family unity and removal proceedings.'').
---------------------------------------------------------------------------

    \301\ See, e.g., American Immigration Council, The Difference 
Between Asylum and Withholding of Removal at 2 (Oct. 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf; 8 CFR 
274a.12(a) (explaining need for withholding recipients to 
affirmatively apply for work authorization).
    \302\ The Departments note that, although there is no derivative 
protection under statutory withholding of removal or CAT, certain 
U.S.-based qualifying parents or legal guardians, including those 
granted withholding of removal, may petition for qualifying children 
and eligible family members to be considered for refugee status and 
possible resettlement in the United States. See USCIS, Central 
American Minors (CAM) Refugee and Parole Program, https://www.uscis.gov/CAM (last visited Apr. 5, 2023).
    \303\ The Departments note that applicants will not be prevented 
from petitioning for family members because of this rule. Under the 
expanded family unity provision at 8 CFR 1208.33(c), any applicant 
who is found eligible for statutory withholding of removal or CAT 
withholding and who would be granted asylum but for the presumption 
will be deemed to have rebutted the presumption if they have a 
spouse or child who would be eligible to follow to join them, as 
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 
1158(b)(3)(A), and may pursue follow-to-join procedures if granted 
asylum.
---------------------------------------------------------------------------

    Separately, because this rule does not impact procedures for bond 
eligibility or consideration, commenter concerns with respect to these 
issues are outside of the scope of this rulemaking. Nevertheless, the 
Departments note that bond determinations will continue to be made on a 
case-by-case basis in accordance with the governing statutes and 
regulations. Similarly, this rulemaking does not impact determinations 
of whether to consolidate cases, although the Departments note that 
consolidation of cases is not limited to those who are pursuing or are 
eligible for asylum, and that such determinations are made at the IJ's 
discretion. See ICPM, Chapter 4.21(a) and (b) (Nov. 14, 2022) (``The 
immigration court may consolidate cases at its discretion or upon 
motion of one or both of the parties, where appropriate. For example, 
the immigration court may grant consolidation when spouses or siblings 
have separate but overlapping circumstances or claims for relief.'').
9. Removal of Provisions Implementing the TCT Bar Final Rule
i. Support for Removal of Provisions Implementing the TCT Bar Final 
Rule
    Comment: The Departments received several comments expressing 
opposition to the TCT Bar Final Rule and supporting removal of 
regulatory provisions implementing that rule. Some commenters expressed 
opposition to the TCT Bar Final Rule without explanation, while others 
asserted that the TCT Bar Final Rule conflicts with the INA and that 
the Departments lacked authority to promulgate the TCT Bar Final Rule. 
Commenters also objected to the TCT Bar as inconsistent with 
fundamental protections of refugee law, including the right to seek 
asylum, the principle of non-refoulement, and the prohibition against 
penalties for irregular entry. Commenters supporting the removal of 
provisions implementing

[[Page 31429]]

that rule also faulted the Departments for not including proposed 
regulatory text removing the TCT Bar from the CFR. Many commenters who 
urged the Departments to withdraw the proposed rule did so while 
requesting that the Departments rescind the TCT Bar Final Rule.
    Commenters suggested that the TCT Bar Final Rule is inconsistent 
with the INA because it conflicts with the safe-third-country exception 
to applying for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C. 
1158(a)(2)(A), and noted that courts have enjoined the rule, finding it 
inconsistent with the INA. Commenters further noted that the court in 
East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 945 (N.D. 
Cal. 2019), concluded that ``Congress requires reasonable assurances 
that any so-called `safe' third country is actually safe, in line with 
the long-held understanding that categorical bars on asylum must be 
limited to people who have somewhere else to turn.''
    Commenters also objected to the TCT Bar as inconsistent with 
fundamental protections of refugee law, including the right to seek 
asylum, the principle of non-refoulement, and the prohibition against 
penalties for irregular entry. Commenters agreed with removal of 
provisions implementing that rule and expressed concern that the TCT 
Bar Final Rule imposes a sweeping, categorical ban on asylum. 
Commenters further raised concerns that, while in effect, the TCT Bar 
disproportionately impacted people of color and Black and brown 
migrants. At least one commenter claimed that the TCT Bar Final Rule 
discourages noncitizens from reporting crimes. Many commenters 
expressed concern over the TCT Bar Final Rule's effect on children, 
both accompanied and unaccompanied, and some commenters stated that the 
TCT Bar Final Rule does not adequately explain why the Departments 
omitted an exemption for UCs.
    Response: The Departments acknowledge these commenters' support. 
Although the Departments did not include proposed regulatory text in 
the NPRM, the Departments have included amendatory text in this final 
rule, which will result in the TCT Bar's removal from 8 CFR 208 and 
1208.
    Since the TCT Bar Final Rule was promulgated and then enjoined, the 
Departments have reconsidered its approach and have determined that 
they prefer the tailored approach of the rebuttable presumption enacted 
by this rule to the categorical bar that the TCT Bar IFR and Final Rule 
adopted. Even if the rebuttable presumption had not been adopted, the 
Departments would seek to remove provisions implementing the TCT Bar 
Final Rule as the Departments no longer agree with the approach taken 
in that rule. Additionally, in order to use the TCT Bar Final Rule, the 
Departments would have to continue litigating various appeals defending 
the policy, which the Departments now disagree with. Thus, the 
Departments consider the removal of provisions implementing that rule 
to be severable from the provisions of 8 CFR 208.13(f), 208.33, 
1208.13(f), and 1208.33.
    As discussed in Section IV.D.2 of this preamble, the TCT Bar IFR 
and Final Rule were enacted to address circumstances along the SWB. In 
the TCT Bar IFR, the Departments stated that increases in the number of 
noncitizens encountered along or near the SWB corresponds with an 
increase in the number of noncitizens claiming fear of persecution or 
torture, and that the processing of credible fear and asylum 
applications in turn ``consumes an inordinate amount of the limited 
resources of the Departments.'' 84 FR at 33831. The Departments also 
stated that the increase in credible fear claims has been complicated 
by a demographic shift in the noncitizen population crossing the 
southwest border from Mexican single adult males to predominantly 
Central American family units and UCs. See id. at 33838. The 
Departments explained that while Mexican single adults who are not 
eligible to remain in the United States can be immediately repatriated 
to Mexico, often without requiring detention or lengthy court 
proceedings, it is more difficult to expeditiously repatriate family 
units and UCs who are not from Mexico or Canada. See id. The 
Departments also explained that, over the past decade, the overall 
percentage of noncitizens subject to expedited removal who, as part of 
the initial screening process, were referred for a credible fear 
interview on claims of a fear of return has jumped from approximately 5 
percent to more than 40 percent, and that the number of cases referred 
to DOJ for proceedings before an IJ also rose sharply, more than 
tripling between 2013 and 2018. See id. at 33831. In the TCT Bar IFR, 
the Departments further stated that the growing number of noncitizens 
seeking protection in the United States and changing demographics 
created an untenable strain on agency resources. See id. at 33838-39. 
The TCT Bar IFR stated that in FY 2018, USCIS received 99,035 credible 
fear claims, a 175 percent increase from five years earlier and an 
1,883 percent increase from ten years earlier. See id. at 33838. In an 
attempt to address these increases in fear claims, the TCT Bar IFR 
reduced the availability of asylum to non-Mexicans entering or 
attempting to enter at the SWB by requiring most asylum seekers who 
transited through a third country to first seek protection in that 
transit country, subject to limited exceptions, and without recognizing 
other avenues for allowing migrants to access the U.S. asylum system.
    In response to the TCT Bar IFR, the Departments received 1,847 
comments. The commenters who expressed support for that rule indicated 
that it was an appropriate tool for processing noncitizens arriving at 
the SWB and would help close ``loopholes'' they asserted exist in the 
asylum process. See TCT Bar Final Rule, 85 FR at 82262. Those who 
expressed opposition to that rule raised concerns that the rule (1) was 
in conflict with the INA and U.S. obligations under international law; 
(2) imposed a sweeping and categorical ban on asylum; and (3) 
effectively denied asylum seekers the right to be meaningfully heard 
with respect to their asylum claims. See id. at 82263, 82270, 82275.
    The Departments subsequently issued the TCT Bar Final Rule to 
address the comments received on the TCT Bar IFR. See id. at 82260. In 
the TCT Bar Final Rule, the Departments affirmed that they promulgated 
the IFR based on several policy objectives, including the following: 
(1) directing prompt relief to noncitizens who are unable to obtain 
protection from persecution elsewhere and noncitizens who are victims 
of a severe form of trafficking in persons; (2) the need to reduce the 
incentive for noncitizens with ``meritless or non-urgent asylum 
claims'' to seek entry to the United States; (3) relieving stress on 
immigration enforcement and adjudicatory authorities; (4) curtailing 
human smuggling; (5) strengthening the negotiating power of the United 
States regarding migration issues, including the flow of noncitizens 
into the United States; and (6) addressing humanitarian and security 
concerns along the SWB. See id. at 82285.
    As also discussed in Section IV.D.2 of this preamble, a Federal 
district court vacated the TCT Bar IFR on June 30, 2020, in Capital 
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 
2020). Additionally, in parallel litigation, on July 6, 2020, the Ninth 
Circuit Court of Appeals upheld an order enjoining the IFR. See E. Bay 
Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020). After the TCT 
Bar Final Rule was issued, in February 2021, the U.S. District Court 
for the

[[Page 31430]]

Northern District of California also enjoined the Departments from 
implementing the TCT Bar Final Rule in its entirety. See East Bay II, 
519 F. Supp. 3d at 668 (``Defendants are hereby ordered and enjoined . 
. . from taking any action continuing to implement the Final Rule and 
ordered to return to the pre-Final Rule practices for processing asylum 
applications.''). Thus, the TCT Bar Final Rule is not in effect. As 
discussed in Section IV.D.2 of this preamble, the injunction rested on 
a finding that the final rule is inconsistent with both the safe-third-
country and firm-resettlement provisions of section 208 of the INA. See 
id. at 667-68; INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A); INA 
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The court also stated 
that the TCT Bar Final Rule exacerbated the risk that asylum seekers 
and migrants would suffer violence and deprived asylum seekers of 
procedural safeguards meant to protect them from arbitrary denials of 
their asylum claims. See East Bay II, 519 F. Supp. 3d at 664.
    The Departments have removed regulatory text implementing the TCT 
Bar Final Rule from the CFR because the Departments no longer support 
the TCT Bar Final Rule as a means of addressing capacity and other 
issues at the SWB. Throughout the NPRM and this rule, the Departments 
have explained that, absent this rule, the lifting of the Title 42 
public health Order is expected to lead to a surge of migration at the 
SWB. At the same time, the Departments recognize the opportunity 
afforded to migrants via the provided lawful pathways, as well as the 
unique vulnerabilities of asylum applicants, the high stakes involved 
in the adjudication of applications for asylum, and the fundamental 
importance of ensuring that noncitizens with a fear of return have 
access to the U.S. asylum system, subject to certain exceptions. See, 
e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (explaining that 
removing a noncitizen to their home country ``is all the more replete 
with danger when the [noncitizen] makes a claim that [the noncitizen] 
will be subject to death or persecution if forced to return. . . .''); 
Quintero, 998 F.3d at 632 (``[N]eedless to say, these cases per se 
implicate extremely weighty interests in life and liberty, as they 
involve [noncitizens] seeking protection from persecution, torture, or 
even death.''); Matter of O-M-O-, 28 I&N Dec. 191, 197 (BIA 2021) 
(``The immigration court system has no more solemn duty than to provide 
refuge to those facing persecution or torture in their home countries, 
consistent with the immigration laws.''). These concerns are echoed in 
E.O. 14010, Creating a Comprehensive Regional Framework To Address the 
Causes of Migration, To Manage Migration Throughout North and Central 
America, and To Provide Safe and Orderly Processing of Asylum Seekers 
at the United States Border. See, e.g., E.O. 14010, 86 FR at 8267 (Feb. 
5, 2021) (``Securing our borders does not require us to ignore the 
humanity of those who seek to cross them.''). Accordingly, the 
Departments believe that when evaluating changes to the asylum system, 
as well as processing at the POEs, the potential adverse impacts to 
legitimate asylum seekers should be carefully considered, as they have 
been in this rule. The Departments believe that this rule is better 
suited to address current circumstances than the TCT Bar Final Rule's 
categorical ban on asylum for nearly anyone who traveled through a 
third country without applying for asylum in that third country.
    The Departments recognize that the TCT Bar was in effect for nine 
months, and although multiple factors influence migration trends over 
time, the Departments' review does not indicate that the bar had a 
dramatic effect on the number of noncitizens seeking to cross the SWB 
between POEs.\304\ Given the success of the CHNV parole processes, 
which paired lawful pathways with consequences for not pursuing such 
pathways, in decreasing encounters, the Departments believe that the 
TCT Bar's lack of such alternative pathways may have contributed to its 
failure to dramatically decrease encounters between POEs. This informs 
the Departments' reasoning for adopting the more tailored approach in 
this rule--that is, pairing safe, orderly, and lawful pathways for 
entering the United States with negative consequences for forgoing 
those pathways, along with exceptions and means of rebutting the 
presumption against asylum eligibility where certain circumstances are 
present. Additionally, the fact that the TCT Bar has not been in effect 
for approximately three years undermines any assertion of reliance 
interests on the bar.
---------------------------------------------------------------------------

    \304\ The Departments note that apprehensions along the SWB did 
not dramatically decrease while the TCT Bar IFR was in effect 
between September 11, 2019, and June 30, 2020. See CBP, Southwest 
Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019 (last visited Mar. 22, 2023); CBP, 
Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited Mar. 22, 2023). 
Encounters along the SWB increased dramatically starting in January 
2019 until early May 2019, when they began to fall significantly. 
CBP, Southwest Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019 (last visited Mar. 22, 
2023). The TCT Bar IFR, although issued on July 16, 2019, did not go 
into full effect until September 11, 2019, after encounters had 
already dropped from a high of 144,116 in May to 52,546 in 
September. Id. Encounters continued to trend downward more slowly 
from October 2019 to March 2020 when concerns over COVID-19 led to 
the suspension of MPP and the Title 42 public health Order and a 
steep decline of encounters to a low in April 2020. CBP, Southwest 
Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited Mar. 22, 2023). 
Thereafter, encounters increased steadily for the rest of the FY 
with no noticeable change after the TCT Bar IFR was enjoined and 
stopped being applied on June 30, 2020. Given this data, the 
Departments have no reason to believe that the TCT Bar IFR had any 
noticeable impact on encounters along the SWB while it was in 
effect.
---------------------------------------------------------------------------

ii. Opposition To Removal of Provisions Implementing the TCT Bar Final 
Rule
    Comment: Some commenters expressed general opposition to the 
removal of provisions implementing the TCT Bar Final Rule. Commenters 
stated that ``the concepts of limiting eligibility for asylum based on 
means of entry and criteria surrounding that entry are appropriate 
methods of controlling migrant flows at the southwest border'' and that 
the TCT Bar achieved this without including ``myriad of exceptions to 
effectively render it meaningless.'' Some commenters maintained the TCT 
Bar Final Rule was legally permissible and politically warranted based 
on factual conditions at the SWB. Commenters similarly urged the 
Departments to adopt on a permanent basis an amended version of the 
rule that would mirror the TCT Bar Final Rule's provisions, stating 
that this would better serve the NPRM's stated goal of ``distribut[ing] 
the asylum burden to countries that are able to provide protection 
against persecution within the Western Hemisphere.'' Commenters averred 
that this would limit asylum eligibility to those with the greatest 
need for protection and that the ``maintenance of effective deterrence 
policies is essential to stemming the flow of illegal immigration into 
the United States.''
    Response: The Departments note these commenters' general opposition 
to rescinding the TCT Bar and their support for enforcing the Nation's 
immigration laws. The Departments believe that this rule results in the 
right incentives to avoid a significant further surge in irregular 
migration after the Title 42 public health Order is lifted, and that 
the approach taken in this rule is substantially more likely to succeed 
than the approach taken in the TCT Bar Final Rule. Specifically, the 
successful implementation of the CHNV parole processes has demonstrated 
that an increase in lawful pathways, when paired with consequences for 
migrants who do not avail themselves of such

[[Page 31431]]

pathways, can positively affect migrant behavior and undermine 
transnational criminal organizations, such as smuggling operations. 
This rule, which is fully consistent with domestic and international 
legal obligations, provides the necessary consequences to maintain this 
incentive under Title 8 authorities. In short, the rule aims to 
disincentivize irregular migration and instead incentivize migrants to 
take safe, orderly, and lawful pathways to the United States or to seek 
protection in a third country.
    As compared to the TCT Bar Final Rule, this rule has been more 
carefully tailored to mitigate the potential for negative impact of the 
rule on migrants to the extent feasible while also recognizing the 
reality of unprecedented migratory flows, the systemic costs that those 
flows impose on the immigration system, and the ways in which 
increasingly sophisticated smuggling networks cruelly exploit the 
system for financial gain. The Departments remain committed to ensuring 
that those who apply for asylum or seek protection who most urgently 
need protection from persecution are able to have their claims 
adjudicated in a fair, impartial, and timely manner and believe that 
this rule, including the removal of provisions implementing the TCT Bar 
Final Rule, will be a more effective and efficient means of doing so.
    Comment: Commenters averred that the rule would be too lenient in 
comparison to the TCT Bar Final Rule and would lead to ``open 
borders.'' They claimed that the presumption of asylum ineligibility is 
not sufficiently stringent and therefore would be far less effective at 
disincentivizing unlawful migration.
    Response: The Departments believe that the rule strikes the right 
balance in terms of incentivizing the use of lawful, safe, and orderly 
pathways to enter the United States while imposing negative 
consequences on a failure to do so. As has been shown with the CHNV 
parole processes, pairing such policies together can lead to meaningful 
decreases in the flow of irregular migration to the SWB.
10. Declining to Permanently Adopt the Proclamation Bar IFR
    In addition to the 51,952 comments on this NPRM, the Departments 
received a total of 3,032 comments on the Proclamation Bar IFR and 
posted 3,000 of those comments. Of the 32 comments not posted, 30 were 
commenters' duplicates, one was untimely and did not address 
substantive or novel issues not already covered by other timely 
comments, and one was an internal test comment. Most of the comments 
came from one of three mass-mail campaigns, containing the same or 
closely related variations of the same standard language. While 18 
comments supported the IFR specifically or the prior Administration's 
efforts generally, the vast majority of the comments opposed the IFR. 
Below, the Departments address these comments in addition to the 
comments relating to removal of provisions implementing the 
Proclamation Bar IFR received in response to the NPRM.
i. Support for Not Permanently Adopting the Proclamation Bar
    Comment: Many commenters expressed general opposition to the 
Proclamation Bar IFR or support for removing provisions implementing 
that rule without providing any reasoning. Some commenters simply 
stated that their comments ``express [their] strong opposition to the 
new Interim Final Rule.'' Some commenters, in stating their general 
opposition to the Proclamation Bar IFR, also made unrelated, general 
criticisms regarding the prior administration's immigration policies. 
Commenters supporting the removal of provisions implementing the 
Proclamation Bar IFR also faulted the Departments for not including 
proposed regulatory text removing that rule from the CFR. Many 
commenters who urged the Departments to withdraw the proposed rule did 
so while requesting that the Departments rescind the Proclamation Bar 
IFR.
    Commenters expressed concern that the Proclamation Bar IFR violates 
multiple laws. Specifically, commenters stated that the Proclamation 
Bar IFR violates multiple sections of the Act: INA 208(a), 8 U.S.C. 
1158(a) (eligibility to apply for asylum); INA 235(b)(1), 8 U.S.C. 
1225(b)(1) (inspection of noncitizens arriving in the United States and 
certain other noncitizens who have not been admitted or paroled); INA 
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C) (additional limitations on 
granting asylum); INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C) (previous 
asylum exception to authority to apply for asylum); INA 208(b)(3)(C), 8 
U.S.C. 1158(b)(3)(C) (codifying the TVPRA). Some commenters asserted 
that only Congress may act to amend the law and that the prior 
administration circumvented the legislative process by issuing the 
Proclamation Bar IFR. Commenters also argued that the Proclamation Bar 
IFR violates 5 U.S.C. 706(2)(A) in that it was promulgated in a manner 
inconsistent with the APA, and that it violates multiple provisions of 
the U.S. Constitution. In particular, commenters argued that the 
Proclamation Bar IFR violates due process rights, equal protection, and 
separation of powers; exceeds Executive authority; was promulgated with 
discriminatory intent; is similar to deterrence-focused policies that 
have been held unconstitutional; and is unlawful on the basis that the 
appointment of the then-Acting Attorney General violated the 
Appointments Clause. Commenters contended that the Proclamation Bar IFR 
also violates the APA by being arbitrary and capricious, in that it 
conditions asylum on a factor unrelated to persecution. Numerous 
commenters claimed that the Proclamation Bar IFR violates the APA's 
notice-and-comment requirements and that the good cause and foreign 
affairs exceptions do not apply. One commenter claimed that the 
Proclamation Bar IFR would, in fact, have federalism impacts, contrary 
to the Departments' federalism impact assessment, and some commenters 
disagreed with the Departments' position that it is not subject to the 
Congressional Review Act because its effect is less than $100 million. 
Commenters also expressed concern that the Proclamation Bar IFR 
violates international law, customary international law, and the 
Refugee Act.
    Commenters noted that the court in East Bay III held that the 
Proclamation Bar directly conflicts with section 208(a) of the INA, 8 
U.S.C. 1158(a), because ``[i]t is effectively a categorical ban on 
migrants who use a method of entry explicitly authorized by Congress.'' 
Commenters further noted the Ninth Circuit's holding in East Bay III 
that the fact ``[t]hat a refugee crosses a land border instead of a 
port-of-entry says little about the ultimate merits of her asylum 
application.'' They further cited East Bay I as holding that there is 
``no basis to support `categorically disbelieving' non-citizens, or 
declaring them `not credible,' simply because of their manner of 
entry'' when applying the ``reasonable possibility'' standard to those 
who are determined ineligible for asylum.
    Commenters voiced numerous policy concerns about the Proclamation 
Bar IFR. Specifically, commenters criticized the Proclamation Bar IFR 
as they believe that it relies on insufficient data or improperly 
interpreted data; exacerbates trauma by forcing migrants to remain 
indefinitely outside of the U.S. border in inhumane conditions; 
punishes those who lack the means to access designated POEs and the 
luxury to choose how and when they enter the United States; potentially 
increases risk of harm to children by narrowing safe options; 
forecloses legitimate asylum claims by

[[Page 31432]]

imposing an initial higher standard of proof on individuals who enter 
between POEs; fails to address the root causes of migration, for which 
some commenters believe the United States is at least in part 
responsible; violates religious and moral obligations; and is a 
``shameful abdication of the United States' obligation to serve as a 
haven for those individuals who meet the internationally agreed upon 
definition of a refugee.'' Further, commenters stated that, contrary to 
its purpose, the Proclamation Bar IFR would not encourage admission at 
POEs due to safety and procedural concerns at the SWB and would impede 
state and local services and non-governmental organizations by 
undermining policies and programs, imposing substantial additional 
costs, and discouraging engagement. Commenters also voiced concern that 
the Proclamation Bar IFR would harm U.S. diplomatic efforts and 
undermine the United States' international credibility by inflaming 
tensions and hindering diplomatic relations with Mexico and other 
nations, as well as encouraging other nations to abandon their 
humanitarian protection practices. Commenters expressed their belief 
that the Proclamation Bar IFR is cruel, unnecessary, and overly harsh 
and was issued ``under the guise of streamlining the asylum process'' 
but was actually intended to intimidate asylum seekers from entering 
the United States ``out of fear that their presence in the United 
States guarantees inadmissibility.'' Additionally, commenters indicated 
that statutory withholding of removal and CAT protection are 
insufficient forms of relief.
    Response: The Departments appreciate the commenters' submissions 
and agree that removal of provisions implementing the Proclamation Bar 
IFR is sound policy and accords with this Administration's priorities. 
Although the Departments did not include proposed regulatory text in 
the NPRM, the Departments have included amendatory text in this final 
rule, which will result in the Proclamation Bar's removal from 8 CFR 
208 and 1208.
    Since the Proclamation Bar IFR was promulgated, the Departments 
have reconsidered their approach and have determined that they prefer 
the tailored approach of the rebuttable presumption enacted by this 
rule to the categorical bar that the Proclamation Bar IFR adopted. Even 
if the rebuttable presumption were not paired with the decision not to 
adopt the Proclamation Bar permanently, the Departments would decline 
to permanently adopt the Proclamation Bar IFR and would remove the 
bar's language from the regulatory text as the Departments no longer 
view it as their preferred policy choice and are not inclined to 
continue defending the Proclamation Bar IFR in court in order to be 
able to implement it at some indeterminate point in the future. Thus, 
the Departments consider the decision not to adopt the Proclamation Bar 
on a permanent basis and to remove the bar's language from the CFR to 
be severable from the provisions of 8 CFR 208.13(f), 208.33, 
1208.13(f), and 1208.33.
    The Proclamation Bar IFR was promulgated to address circumstances 
along the SWB. In the Proclamation Bar IFR, the Departments stated that 
``[i]n recent weeks, United States officials have each day encountered 
an average of approximately 2,000 inadmissible aliens at the southern 
border.'' 83 FR at 55935. They further noted ``large caravans'' of 
noncitizens, primarily from Central America, attempting to make their 
way to the United States, ``with the apparent intent of seeking asylum 
after entering the United States unlawfully or without proper 
documentation.'' Id. The Departments noted that nationals of Central 
American countries were more likely to enter between POEs rather than 
present at a POE. Id. The Departments enacted the Proclamation Bar IFR 
to ``channel inadmissible aliens to ports of entry, where such aliens 
could seek to enter and would be processed in an orderly and controlled 
manner.'' Id. The Departments also stated that the Proclamation Bar IFR 
would ``facilitate the likelihood of success in future negotiations'' 
with Mexico. Id. at 55951.
    Rather than barring entry on its own, the Proclamation Bar IFR only 
barred entry between POEs when a presidential proclamation or other 
presidential order under section 212(f) or 215(a)(1) of the INA, 8 
U.S.C. 1182(f) or 1185(a)(1), suspended entry along the SWB. 83 FR at 
55952-53. Any exceptions to the operation of the bar would be set out 
in the presidential proclamation or order and were not within the 
Departments' control. Id. at 5934 (``It would not apply to a 
proclamation that specifically includes an exception for aliens 
applying for asylum, nor would it apply to aliens subject to a waiver 
or exception provided by the proclamation.'').
    The Proclamation Bar IFR was preliminarily enjoined soon after it 
became effective and was eventually vacated. See generally O.A. v. 
Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting the history of the 
litigation over the Proclamation Bar IFR and vacating it). The 
Departments appealed the vacatur, and that case has been stayed since 
February 24, 2021, to allow for rulemaking by the agencies. O.A. v. 
Biden, No. 19-5272 (DC Cir. filed Oct. 11, 2019).
    As stated in the NPRM, the Departments have reconsidered the 
Proclamation Bar IFR and decline to adopt it permanently. See 88 FR at 
11728. As an initial matter, the Proclamation Bar IFR conflicts with 
the tailored approach taken in this rule because, in combination with 
the proclamation the President issued, the Proclamation Bar IFR barred 
from asylum all individuals who entered the United States along the SWB 
unless they presented themselves at a POE. See 83 FR at 55935 (``The 
interim rule, if applied to a proclamation suspending the entry of 
aliens who cross the southern border unlawfully, would bar such aliens 
from eligibility for asylum and thereby channel inadmissible aliens to 
ports of entry, where such aliens could seek to enter and would be 
processed in an orderly and controlled manner.''). The Departments do 
not believe barring all noncitizens who enter between POEs along the 
SWB is the proper approach in the current circumstances and have 
instead decided to pair safe, orderly, and lawful pathways for entry 
into the United States with negative consequences for not taking those 
pathways, with exceptions and means of rebutting the presumption 
against asylum eligibility.
    Even if the rule's rebuttable presumption were not finalized and 
given effect, the Departments would nevertheless remove provisions 
implementing the Proclamation Bar IFR. The bar's categorical nature did 
not allow for case-by-case judgments to determine whether it should 
apply, which the Departments consider important to ensure that such 
bars are applied fairly. The Departments believe that this 
consideration further supports removing the regulatory language 
implementing the Proclamation Bar IFR. Finally, U.S. negotiations with 
Mexico have changed, and the Departments no longer believe that the 
Proclamation Bar IFR is necessary for those negotiations.
ii. Opposition to Not Adopting the Proclamation Bar IFR Permanently
    Comment: Some commenters expressed general support for the 
Proclamation Bar IFR. Commenters stated that the prior Administration 
had not done enough to deter irregular migration, resulting in the 
undermining of compliance with U.S. laws, the rule of law, and national 
security and safety.
    Response: The Departments acknowledge commenters' concerns 
regarding national security and safety

[[Page 31433]]

and note the commenters' support for the Proclamation bar IFR. 
Nevertheless, the Departments, after due consideration, believe this 
rule to be more appropriate as a matter of policy and law. This rule 
serves to encourage the safe and orderly processing of migrants at the 
SWB and is consistent with the United States' legal obligations under 
the INA, international treaties, and all relevant legal sources. 
Because these particular comments failed to articulate specific 
reasoning underlying expressions of general support for the 
Proclamation Bar IFR, the Departments are unable to provide a more 
detailed response.

F. Statutory and Regulatory Requirements

1. Administrative Procedure Act
i. Length of Comment Period
    Comment: Commenters raised concerns that this rule violated the 
APA's requirements, as set forth in 5 U.S.C. 553(b) through (d). 
Commentors stated that the 30-day comment period was not sufficient, 
arguing that the Departments should extend the comment period to at 
least 60 days or should reissue the rule with a new 60-day comment 
period. Numerous commenters requested additional time to comment, 
citing the complex nature of the NPRM, its length, and the impact of 
the rule on asylum-seekers and commenters. Other commenters, such as 
legal services organizations, noted that they have a busy workload and 
that 30 days was not a sufficient period to prepare the fulsome comment 
they would have prepared had the comment period provided more time. For 
example, a legal services organization indicated that it would have 
provided additional information about asylum seekers the organization 
has assisted in the past and data about the population the organization 
serves but that it did not have time to do so. Other organizations 
stated they also would have included information on issues such as 
their clients' experiences with the CBP One app and experiences in 
third countries en route to the United States and would have consulted 
with experts. Another organization stated that it had to choose between 
providing comments on the rule and helping migrants prepare for the 
rule's implementation, and another organization stated that it was 
unable to provide fulsome comments because the comment period coincided 
with the implementation of the CBP One app as a means by which its 
clients could seek exceptions to the Title 42 public health Order. 
Commenters argued that the Departments selected a 30-day comment period 
to reduce the volume of negative comments that will be filed in order 
to justify disregarding national sentiment against the rule.
    Commenters asserted that the 30-day comment period is ``risking 
that public comments will not be seriously considered before the rule 
is implemented,'' and additional time is needed to meet APA 
requirements that agencies provide the public with a ``meaningful 
opportunity'' to comment. These comments referenced Executive Orders 
12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993) and 
13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 18, 
2011), which recommend a comment period of not less than 60 days ``in 
most cases,'' and case law, such as Prometheus Radio Project v. FCC, 
652 F.3d 431 (3d. Cir. 2011), and Centro Legal de la Raza v. EOIR, 524 
F. Supp. 3d 919 (N.D. Cal. 2021).
    Commenters disagreed with the Departments' reliance on the 
impending termination of the Title 42 public health Order in May 2023 
and the expected potential surge in migration that would result as 
justification for the 30-day comment period. These commenters 
emphasized that the Administration itself sought to formally end the 
Title 42 public health Order nearly a year ago and stated that the 
Departments have had sufficient time to prepare for the policy's end. 
For example, commenters cited to the December 13, 2022, statement 
issued by Secretary Mayorkas regarding the planning for the end of the 
Title 42 public health Order.\305\
---------------------------------------------------------------------------

    \305\ DHS, Statement by Secretary Mayorkas on Planning for End 
of Title 42 (Dec. 13, 2022), https://www.dhs.gov/news/2022/12/13/
statement-secretary-mayorkas-planning-end-title-
42#:~:text=%E2%80%9CNonetheless%2C%20we%20know%20that%20smugglers,Uni
ted%20States%20will%20be%20removed.
---------------------------------------------------------------------------

    Some commenters requested extension of the comment period due to 
reported technical difficulties with submitting comments and stated 
that technical problems had effectively shortened the comment period to 
less than 30 days or reduced the public's ability to fully participate 
in the rulemaking process. For example, one commenter stated that they 
had learned that there was a technical outage or other error in the 
application programming interface (``API'') technology used to allow 
third-party organizations to submit comments through regulations.gov. 
This commenter expressed a belief that an unknown number of comments 
had been ``discarded'' without the commenters' knowledge. Another 
commenter referenced an individual who had technical errors when trying 
to submit a comment online.\306\ This commenter also noted that there 
was an alert banner on regulations.gov at 9:30 a.m. eastern time on 
March 27, 2023, that stated ``Regulations.gov is experiencing delays in 
website loading. We apologize for the inconvenience. While we are 
working on a fix, please try to refresh when you encounter slow 
responses or error messages.'' Overall, these commenters referenced 
possible technical errors with the submission of comments from as early 
as March 20, 2023, through the close of the comment period on March 27, 
2023.
---------------------------------------------------------------------------

    \306\ This commenter also referenced a second individual who was 
able to eventually submit a timely comment but who posted a photo on 
twitter that the commenter described as a screenshot of an error 
screen from regulations.gov. https://twitter.com/argrenier/status/1639989637413490689/photo/1. The Departments note that this photo is 
actually a screenshot from a different website (federalregister.gov) 
and not regulations.gov, which is the website the instructions in 
the NPRM told the public to use to submit a comment. Id.
---------------------------------------------------------------------------

    Finally, commenters further stated that the comment period for the 
USCIS fee schedule NPRM \307\ (from January 4, 2023, through March 13, 
2023) overlapped with the comment period for the NPRM in this 
rulemaking, which caused challenges for commenting on this rule in the 
30-day comment period. In addition, commenters stated that the 30-day 
comment period did not provide commenters who do not regularly work in 
immigration law with sufficient time to fully analyze the effects of 
the rule, and that the Departments should extend the 30-day comment 
period to provide sufficient time for respectful observance of Ramadan, 
which began during the comment period.\308\
---------------------------------------------------------------------------

    \307\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, 88 FR 402 (Jan. 4, 2023); U.S. Citizenship and 
Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements; Extension of Comment 
Period, 88 FR 11825 (Feb. 24, 2023) (extending the comment period 
until March 13, 2023).
    \308\ This commenter also stated the Departments should extend 
the comment period due to the holidays of Passover and Easter, but 
both Passover (April 5 through April 13, 2023) and Easter (April 9, 
2023 or later) do not occur in whole or in part during the rule's 
comment period.
---------------------------------------------------------------------------

    Response: The Departments believe the comment period was sufficient 
to allow for meaningful public input, as evidenced by the almost 52,000 
public comments received, including numerous detailed comments from 
interested organizations.
    The comment period spanned 33 days, from February 23, 2023, through 
March 27, 2023. The January 5, 2023, announcement of the impending

[[Page 31434]]

issuance of the proposed rule \309\ also provided an opportunity for 
public discussion of the general contours of the policy.\310\ In 
addition, commenters could begin to familiarize themselves with the 
rule before the rule was published during the period before the comment 
period opened when the rule was on public inspection.
---------------------------------------------------------------------------

    \309\ DHS, DHS Continues to Prepare for End of Title 42; 
Announces New Border Enforcement Measures and Additional Safe and 
Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
    \310\ See, e.g., Al Jazeera, US Rights Groups Slam Bidens 
`Unacceptable' Asylum Restrictions, Jan. 6, 2023, https://www.aljazeera.com/news/2023/1/6/us-rights-groups-slam-bidens-unacceptable-asylum-restrictions; UN, New US Border Measures `Not in 
Line with International Standards', Warns UNHCR, Jan. 6, 2023, 
https://news.un.org/en/story/2023/01/1132247.
---------------------------------------------------------------------------

    The APA does not require a specific comment period length, see 5 
U.S.C. 553(b), (c), and although Executive Orders 12866 and 13563 
recommend a comment period of at least 60 days, a 60-day period is not 
required. Much of the litigation on this issue has focused on the 
reasonableness of comment periods shorter than 30 days, often in the 
face of exigent circumstances. See, e.g., N. Carolina Growers' Ass'n, 
Inc. v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) 
(analyzing the sufficiency of a 10-day comment period); Omnipoint Corp. 
v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996) (concluding 15 days for 
comments was sufficient); NW. Airlines, Inc. v. Goldschmidt, 645 F.2d 
1309, 1321 (8th Cir. 1981) (finding 7-day comment period sufficient).
    The Departments are not aware of any case law holding that a 30-day 
comment period is categorically insufficient. Indeed, some courts have 
found 30 days to be a reasonable comment period length. For example, 
the D.C. Circuit has stated that, although a 30-day period is often the 
``shortest'' period that will satisfy the APA, such a period is 
generally ``sufficient for interested persons to meaningfully review a 
proposed rule and provide informed comment,'' even when ``substantial 
rule changes are proposed.'' Nat'l Lifeline Ass'n v. FCC, 921 F.3d 
1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 
(D.C. Cir. 1984)). The Departments recognize, however, that some courts 
have held that a 30-day comment period was likely insufficient in 
certain circumstances. See, e.g., Centro Legal de la Raza v. EOIR, 524 
F. Supp. 3d 919, 955 (N.D. Cal. 2021) (holding that DOJ's 30-day 
notice-and-comment period was likely insufficient for a rule that 
implemented extensive changes to the immigration court system and 
noting, inter alia, the arguments by commenters that they could not 
fully respond during the comment period, the effect of the COVID-19 
pandemic, and allegations of ``staggered rulemaking''); Pangea Legal 
Servs. v. DHS, 501 F. Supp. 3d 792, 818-22 (N.D. Cal. 2020) (holding 
that the plaintiffs had at a minimum shown ``serious questions going to 
the merits'' of whether the 30-day comment period for a different 
asylum-related rulemaking was insufficient and noting, inter alia, the 
``magnitude'' of the rule, that the comment period ``spanned the year-
end holidays,'' the comment periods of other rules by DHS, the number 
of comments received, and allegations of ``staggered rulemaking'').
    Here, even assuming these cases were correctly decided, the 
Departments have concluded that the concerns raised in those 
circumstances are not borne out. First, the significant number of 
detailed and thorough public comments is evidence that the comment 
period here was sufficient for the public to meaningfully review and 
provide informed comment. See, e.g., Little Sisters of the Poor Saints 
Peter & Paul Home v. Penn., 140 S. Ct. 2367, 2385 (2020) (``The object 
[of notice and comment], in short, is one of fair notice.'' (citation 
and quotation marks omitted)). Second, the 30-day comment period did 
not span any Federal holidays, and while commenters noted that the 
Muslim month of Ramadan began during the comment period, the 
Departments find that there is no evidence that the occurrence of the 
month of Ramadan during the comment period would substantively impact 
the ability of Ramadan observants to submit a timely comment. Third, 
because the Departments had not recently published other related rules 
on this topic or that affect the same portions of the CFR that would 
affect commenters' ability to comment, this rule does not present 
staggered rulemaking concerns. The last asylum-related rulemaking, the 
Asylum Processing IFR, was published on March 27, 2022, and was 
effective on May 31, 2022. 87 FR 18078.\311\ Accordingly, commenters 
did not have to contend with the interplay of intersecting rules and 
related policy changes when drafting their comments. And though the 
Departments recognize that the USCIS fee rule's comment period 
partially overlapped with this rule's comment period, this overlap does 
not render this rule's comment period unreasonable. The comment period 
for that rule--which addresses different subjects and portions of the 
CFR than this rule--opened on January 4, 2023, 50 days before opening 
of this rule's comment period, and ended on March 13, 2023, 14 days 
prior to the close of this comment period.
---------------------------------------------------------------------------

    \311\ In addition, the Departments published a final rule 
extending the U.S.-Canada STCA on March 28, 2023, but that rule did 
not have any impact on the subject of this rule as it applies to the 
U.S.-Canada land border. 88 FR 18227.
---------------------------------------------------------------------------

    Finally, the Departments also believe that the 30-day comment 
period was preferable to a longer comment period since this rule 
involves concerns about the Departments' ability to safely, 
effectively, and humanely enforce and administer the asylum system and 
immigration laws given the surge of migrants that is expected to occur 
upon the lifting of the Title 42 public health Order if this rule were 
not in place. Cf., e.g., Haw. Helicopter Operators Ass'n v. FAA, 51 
F.3d 212, 214 (9th Cir. 1995) (noting that the agency had good cause to 
not engage in notice and comment rulemaking at all because the rule was 
needed to protect public safety as demonstrated by numerous then-recent 
helicopter crashes). By proceeding with a comment period shorter than 
60 days, the Departments were able to receive comments, review 
comments, and prepare a final rule to be promulgated in time for the 
May 11, 2023, expiration of the public health emergency and the 
corresponding expiration of the Title 42 public health Order. A 60-day 
comment period, on the other hand, would have run until April 24, 2023, 
and a final rule would have been impossible to prepare in the 17 days 
from April 24 to May 11, 2023. Having this rule in place for the 
expiration of the Title 42 public health Order will disincentivize the 
expected surge of irregular migration and instead incentivize migrants 
to take safe, orderly, and lawful pathways to the United States or to 
seek protection in third countries in the region. The rule will thus 
prevent a severe strain on the immigration system, as well as protect 
migrants from the dangerous journey to the SWB and the human smugglers 
that profit on their vulnerability. Contrary to some commenters' 
allegations, the Departments did not select a 30-day comment period to 
limit public involvement on the rule.
    The Departments disagree with commenters' statements that the 
Departments' reliance on the end of the Title 42 public health Order is 
inapt because ending Title 42 was a government choice, and the 
Departments should have had time to prepare without a 30-day comment 
period. First, the Departments note that the Title 42 public health 
Order is ending based on factual developments,

[[Page 31435]]

and the Departments do not control either those factual developments or 
the decision to recognize those factual developments by terminating the 
public health Order. Second, litigation and the resulting injunctions 
over ending the Title 42 public health Order have made it difficult for 
the Departments to predict an exact end date. See, e.g., Arizona v. 
Mayorkas, 143 S. Ct. 478 (2022) (granting States' application for stay 
pending certiorari and preventing the District Court for the District 
of Columbia from giving effect to its order setting aside and vacating 
the Title 42 public health Order); Louisiana v. CDC, 603 F. Supp. 3d 
406 (W.D. La. 2022) (granting States' motion for a preliminary 
injunction prohibiting enforcement of the CDC's order terminating Title 
42). Accordingly, it was not until the Administration announced \312\ 
its plan to have the public health emergency that underpins the Title 
42 public health Order extend until May 11, 2023, and then expire that 
the end of the Title 42 public health Order changed from speculative to 
more concrete. The Departments then published the NPRM in short order, 
24 days after the Administration's statement of intent. Finally, as 
discussed in the NPRM and elsewhere in this preamble, the CHNV parole 
processes that the Departments developed in October 2022 (Venezuela) 
and January 2023 (Cuba, Haiti, and Nicaragua) have shown significant 
success in reducing encounters and encouraging noncitizens to seek 
lawful pathways to enter the United States. This rule adopts a similar 
design as these programs--coupling the incentives of lawful pathways 
with disincentives for failing to pursue those pathways--based, in 
part, on the successes of those programs in decreasing irregular 
migration. Because those successes were not seen until as late as 
January 2023, commenters are incorrect that the Departments could have 
published it long before February 2023. Once the NPRM was published, it 
was reasonable to include a 30-day comment period in light of the 
impending end of Title 42 public health Order.
---------------------------------------------------------------------------

    \312\ Office of Mgmt. & Budget, Exec. Office of the President, 
Statement of Administration Policy (Jan. 30, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf.
---------------------------------------------------------------------------

    Finally, the Departments have investigated commenters' allegations 
of technical errors that led to comments being ``discarded'' or not 
submitted with the eRulemaking Program at the GSA. A GSA representative 
explained the following:
     The API, which allows the electronic submission of 
comments to regulations.gov by third-party software, was operating 
normally from March 20, 2023, to March 28, 2023.
     Commenters are incorrect that any submitted comments were 
``discarded'' as comments that are received are not discarded.
     While some users reported errors on the submission of API 
comments, all unsuccessful transactions were successfully resubmitted 
within a maximum of 30 minutes.
     In addition, the eRulemaking Program accommodated one 
commenting organization with a temporary increase to the API posting 
rate limit so that the organization could submit approximately 26,000 
comments by the close of the comment period.
     None of the help desk call logs reflect a call related to 
this rule nor a discussion indicating an unresolved error when posting 
comments.
    Accordingly, the Departments do not believe that any technical 
errors prevented commenters from submitting comments within the 30-day 
comment period.
    Overall, the Departments find that the time afforded by a 30-day 
comment period to prepare a final rule prior to the expiration of the 
Title 42 public health Order, which would not have been possible with a 
longer comment period, outweighs the arguments raised in support of a 
longer comment period by commenters. Commenters have provided numerous 
and detailed comments regarding the NPRM, and the Departments 
appreciate their effort to provide thorough commentary for the 
Departments' consideration during the preparation of this final rule.
ii. Insufficient Consideration of Public Comments
    Comments: Commenters stated that the timeline for the rule risks 
that the Departments will not seriously consider public comments before 
implementing a final rule and gives the appearance that the Departments 
have predetermined the outcome of the NPRM. Many commenters stated that 
the short time span between the scheduled close of the comment period 
(at the end of March 27, 2023) and the anticipated issuance of the 
final rule (no later than May 12, 2023) suggested that the Departments 
would not meaningfully consider public comments. Commenters stated that 
the Departments should have issued a proposed rule earlier than 
February 2023 to give the Departments more time to carefully consider 
comments received and revise policy plans prior to the issuance of a 
final rule.
    Response: The Departments have included an extensive discussion of 
comments received as part of this preamble. The Departments strongly 
disagree with the commenters' assertions that the Departments failed to 
meaningfully consider public comments in issuing this final rule. The 
Departments' receptivity to public comments is demonstrated by, for 
instance:
     The extensive and substantive discussion of public 
comments in this preamble;
     Multiple revisions made by the Departments to the policy 
contained in the NPRM, including clarifications of policy requested by 
commenters, a reorganization of the regulatory text for clarity, and 
other policy changes that are responsive to public comments; and
     The Departments' choice to seek public comment in the 
first instance, notwithstanding that this rulemaking involves a foreign 
affairs function of the United States and addresses an emergency 
situation for which the Departments would have good cause to bypass 
notice and comment.\313\
---------------------------------------------------------------------------

    \313\ See 5 U.S.C. 553(a)(1), (b)(B); see also Section VI.A. of 
this preamble.
---------------------------------------------------------------------------

iii. Delayed Effective Date
    Comments: Commenters stated that they anticipated that the 
Departments would issue the final rule in violation of the APA's 
requirement of a 30-day delayed effective date for substantive 
rules.\314\ Commenters stated that by delaying so long in issuing the 
NPRM, the Departments had forfeited any argument for ``good cause'' to 
make the final rule effective immediately. Commenters noted that there 
has been litigation for years over the ongoing viability of Title 42 
public health Order--itself an inherently temporary measure--and the 
April 2022 Title 42 termination Order. Commenters stated that the 
Departments could have conducted a notice-and-comment rulemaking with a 
30-day delayed effective date had they begun this rulemaking sooner.
---------------------------------------------------------------------------

    \314\ See 5 U.S.C. 553(d).
---------------------------------------------------------------------------

    Response: As discussed in Section V.A. of this preamble, the 
Departments are invoking the foreign affairs and good cause exceptions 
for bypassing a 30-day delayed effective date. See 5 U.S.C. 553(a)(1) 
and (d). The Departments have determined that immediate implementation 
of this rule is necessary to fortify bilateral relationships and avoid 
exacerbating a projected surge in migration across the region following 
the lifting of the Title 42 public health Order.

[[Page 31436]]

    Case law suggesting that an agency's delay can effectively forfeit 
the agency's ``good cause'' relates primarily to the separate good 
cause exception applicable to notice-and-comment rulemaking 
requirements under 5 U.S.C. 553(b)(B).\315\ Such case law has no 
bearing on the foreign affairs exemption under 5 U.S.C. 553(a)(1). In 
addition, it is not dispositive as to the good cause exception at 5 
U.S.C. 553(d), which serves ``different policies'' and ``can be invoked 
for different reasons.'' \316\ Specifically, the 30-day delayed-
effective-date requirement ``is intended to give affected parties time 
to adjust their behavior before the final rule takes effect,'' \317\ 
but in this context, affected parties have been subject to the Title 42 
public health Order for years, and cannot reasonably argue that they 
require an additional 30 days to adjust their behavior to the new 
approach taken in this rule.
---------------------------------------------------------------------------

    \315\ See, e.g., Envt'l. Def. Fund v. EPA, 716 F.2d 915, 921-22 
(D.C. Cir. 1983) (holding that because the agency ``failed to 
demonstrate that outside time pressures forced the agency to 
dispense with APA notice and comment procedures . . . the agency's 
action . . . [fell] outside the scope of the good cause 
exception''); Nat'l Ass'n of Farmworkers Org. v. Marshall, 628 F.2d 
604, 622 (D.C. Cir. 1980) (rejecting a good cause argument for 
bypassing notice and comment because the time pressure cited by the 
agency ``was due in large part to the [agency's] own delays'').
    \316\ Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th 
Cir. 1992) (The ``30-day waiting period in no way relates to the 
notice and comment requirement, but the federal courts have not 
always been careful to maintain the distinction'' (internal citation 
and quotation omitted)).
    \317\ Id.
---------------------------------------------------------------------------

    Even if the forfeiture doctrine is applied in this context, 
however, the Departments have pursued this rulemaking without delay, 
and in fact have proceeded as rapidly as possible under the 
circumstances. As discussed at length in the NPRM, this rulemaking 
addresses a range of dynamic circumstances, including major recent 
shifts in migration patterns across the hemisphere, altered incentives 
at the SWB created by the application of the Title 42 public health 
Order (which has carried no immigration consequences and resulted in 
many migrants trying repeatedly to enter the United States), and 
ongoing litigation regarding the Title 42 public health Order.\318\ The 
Departments have sought to address these circumstances in a variety of 
ways, including the six-pillar strategy outlined in the April 2022 DHS 
Plan for Southwest Border Security and Preparedness; the issuance of 
the Asylum Processing IFR, 87 FR 18078; the expansion of lawful 
pathways throughout the region and via the CHNV processes; and the 
introduction of the CBP One app, among other measures. The Departments' 
issuance of the proposed rule while the litigation over the Title 42 
public health Order was ongoing, and within weeks of the 
Administration's announcement regarding the impending termination of 
that Order, reflects the high priority that the Departments have placed 
on issuing this rulemaking promptly via a notice and comment process.
---------------------------------------------------------------------------

    \318\ See 88 FR at 11708-14.
---------------------------------------------------------------------------

2. Paperwork Reduction Act (``PRA'')
    Comment: A commenter stated that the Departments had not posted to 
the public docket any proposed revisions to the collection of 
information under Office of Management and Budget (``OMB'') Control 
Number 1651-0140, Collection of Advance Information from Certain 
Undocumented Individuals on the Land Border. The commenter stated that 
such revision appeared particularly important given the NPRM's proposed 
codification of the required use of the CBP One app to access regular 
Title 8 asylum processing. The commenter stated that, as a consequence 
of the failure to post the proposed revisions, they were unable to 
comment on the proposed changes to the collection of information. A 
commenter expressed concern that CBP sought emergency approval to 
collect advance information on undocumented noncitizens and bypassed 
the standard notice and comment process.
    Response: With respect to commenters' stated concerns about the 
public docket, the Departments note that like all proposed revisions to 
collections of information, the proposed revisions described in the 
NPRM were available for review throughout the comment period on OMB's 
website at https://www.reginfo.gov, under the Information Collection 
Review tab.\319\ The Departments did not also post these comments to 
the public docket, but are unaware of any attempt by the commenter to 
request a copy of the proposed changes by using the contact information 
listed in the NPRM.
---------------------------------------------------------------------------

    \319\ See OMB, ICR Documents: CLEAN Supporting Statement 1651-
0140 Advance Information Collection NPRM Changes, https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202302-1651-001 
(last visited Mar. 29, 2023).
---------------------------------------------------------------------------

    The Departments maintain that the nature of the proposed change to 
the collection of information was clear to commenters, as the proposed 
change was described at length in the NPRM and was the subject of many 
comments. The Supporting Statement that was available on OMB's website 
(and was the only document related to the information collection for 
which the Departments had proposed revisions) described an NPRM that, 
if finalized, ``would change the consequences, for some noncitizens and 
for a temporary period of time, of not using CBP One to schedule an 
appointment to present themselves at a POE.'' \320\ The Supporting 
Statement explained that such noncitizens would ``be subject to a 
rebuttable presumption of asylum ineligibility, unless the noncitizen 
demonstrates by a preponderance of the evidence that it was not 
possible to access or use CBP One due to a language barrier, 
illiteracy, significant technical failure, or other ongoing and serious 
obstacle; or that the noncitizen is otherwise not subject to the 
rebuttable presumption.'' \321\ The Supporting Statement further 
clarified that ``[t]here is no change to the information being 
collected under this collection or the use of the information by CBP, 
but this change would alter the consequences of not using the 
collection, and thus increases the estimated annual number of responses 
in the collection.'' \322\
---------------------------------------------------------------------------

    \320\ Id.
    \321\ Id.
    \322\ Id.
---------------------------------------------------------------------------

    Regarding the concern with using the emergency PRA approval process 
for the collection of information via the CBP One app, CBP notes that, 
although the initial collection was approved on an emergency 
basis,\323\ the relevant PRA approval for the collection that is being 
used for this rule (OMB Control Number 1651-0140) was subsequently done 
using the normal PRA process, which included two Federal Register 
notices and an opportunity for public comment.\324\ Further, this 
collection is being revised again through this rule, and the public was 
given additional opportunity to comment on the information collection 
in this rulemaking. See 88 FR at 11749-50.
---------------------------------------------------------------------------

    \323\ See OIRA, OIRA Conclusion, OMB Control No. 1651-0140, 
Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border (May 3, 2021), https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202104-1651-001.
    \324\ See 86 FR 73304 (Dec. 27, 2021); 87 FR 53667 (Sept. 28, 
2021). See also OIRA, OIRA Conclusion, OMB Control No. 1651-0140, 
Collection of Advance Information from Certain Undocumented 
Individuals on the Land Border (Dec. 18, 2022), https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202112-1651-001. The 
OIRA Conclusion includes citations and links to the notices 
published in the Federal Register, as well as the comments received 
in response.
---------------------------------------------------------------------------

    Members of the public are welcome to submit comments to OMB on the 
collection of information via https://www.reginfo.gov for a period of 
30 days following issuance of this final rule.
    Comment: A commenter expressed that the NPRM is not in compliance 
with the APA because the CBP One app

[[Page 31437]]

has not gone through the normal notice-and-comment period required by 
the APA. The commenter stated that the Departments had not clearly 
described the app in a way that would provide the public with the 
necessary information to understand how the app works and that a 
noncitizen's failure to use the app when presenting themselves at a 
port of entry has serious implications on immigration relief.
    Response: The Departments disagree with the contention that the use 
of the CBP One app, whether separate from or as described in this rule, 
fails to comply with the APA. The CBP One app serves as a single portal 
to a variety of CBP services.\325\ Because there is not an overarching 
CBP One information collection, CBP has sought OMB approval under the 
PRA of each information collection contained in the CBP One app, 
pursuant to standard procedures. Regarding the particular use of the 
CBP One app that is described in this rulemaking--i.e., the use of the 
app as the current ``DHS scheduling system'' described in 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B), to collect information from 
certain undocumented individuals on the land border--the PRA 
information referenced above, and available to the public, provided 
information sufficient to understand how the app works, and how it 
would work in connection with this rulemaking. Similarly, the 
Departments provided a description of the presumption and its 
application, including to those who do not utilize CBP One, in the NPRM 
and invited comment thereon.
---------------------------------------------------------------------------

    \325\ See CBP, CBP OneTM Mobile Application, https://www.cbp.gov/about/mobile-apps-directory/cbpone (last visited Apr. 
26, 2023).
---------------------------------------------------------------------------

3. Impacts, Costs, and Benefits (Executive Orders 12866 and 13563)
    Comment: A few commenters expressed that the Departments have not 
met their obligations under Executive Order 12866 and Executive Order 
13563. A commenter requested that the Departments investigate and 
develop quantitative estimates regarding a range of potential 
regulatory effects, such as estimates of the rule's potential impact on 
family unity, the lifetime cost of work permit renewals for those who 
are granted withholding of removal instead of asylum under the rule; 
the impact of life-long inability to travel internationally for those 
granted withholding of removal rather than asylum; and the potential 
costs on States and localities of vastly increasing the class of 
individuals ineligible for public benefits, services, and healthcare. 
Another commenter requested that the Departments consider the 
downstream impacts of the rule on other noncitizens and their U.S. 
citizen family members who might be affected by additional backlogs in 
immigration court. A legal services provider expressed concern with the 
Departments' ``evident implication'' that the rebuttable presumption 
will not impact asylum seekers beyond their loss of a path to 
citizenship and inability to petition for family members to join them 
in the United States; the commenter cited challenges with retaining 
counsel and lost opportunities to collect evidence or consult family 
before an asylum decision is made. Some commenters stated that the 
rule's analysis of its costs and benefits is deficient because the rule 
lacked detailed estimates or further specifics with respect to costs 
for the Departments, the States, and other parties. Commenters stated 
that for this reason, the regulatory analysis in Section VI.A. of the 
NPRM's preamble failed to satisfy the requirements of Executive Order 
12866.
    Response: The Departments respectfully maintain that the regulatory 
analysis accompanying the NPRM adequately described the costs and 
benefits associated with this rulemaking. The concerns raised by the 
commenters have been addressed qualitatively in the preambles to the 
NPRM and this final rule. The Departments recognize that the rule will 
result in costs and benefits for the individual noncitizens who are 
subject to it, as well as a range of potential indirect effects on 
other persons and entities.\326\ The Departments have further described 
these costs and benefits throughout this preamble. The Departments have 
also further revised the Executive Order 12866 discussion in Section 
VI.B. of this preamble to address some of the concerns described by the 
commenters, including concerns related to work permit renewal.\327\
---------------------------------------------------------------------------

    \326\ See Section VI.B of this preamble for a further discussion 
of the rule's costs and benefits.
    \327\ The Departments note that some, but not all, of the 
commenters that pressed for additional quantitative analysis 
expressed strong support for the TCT Bar IFR and Final Rule, which 
did not contain an Executive Order 12866 analysis due to their nexus 
to a foreign affairs function of the United States. See 84 FR at 
33843 (IFR); 85 FR at 82289 (final rule).
---------------------------------------------------------------------------

    Although the Departments have discussed the relevant policy 
considerations associated with this rulemaking at length, the 
Departments note that neither Executive Order 12866, nor any other 
executive order or law, requires more detailed quantitative analysis in 
these circumstances. The fact that preparation of a regulatory impact 
analysis under Executive Order 12866 is a matter of Executive Branch 
discretion is underscored by the terms of Executive Order 12866, 
section 10:

    Nothing in this Executive order shall affect any otherwise 
available judicial review of agency action. This Executive order is 
intended only to improve the internal management of the Federal 
Government and does not create any right or benefit, substantive or 
procedural, enforceable at law or equity by a party against the 
United States, its agencies or instrumentalities, its officers or 
employees, or any other person.

    Courts have recognized the internal, managerial nature of this and 
other similarly worded executive orders, and have concluded that 
actions taken by an agency to comply with such executive orders are not 
subject to judicial review. See Cal-Almond, Inc. v. USDA, 14 F.3d 429, 
445 (9th Cir. 1993) (citing State of Mich. v. Thomas, 805 F.2d 176, 187 
(6th Cir. 1986)).
i. Quantitative Impacts on Federal and State Governments
    Comment: A group of State Attorneys General stated that the 
proposed rule ``completely ignores the increased costs to the States of 
higher levels of unlawful aliens precipitated by'' the NPRM. Quoting 
the proposed rule, the commenters stated that the Departments ``falsely 
claim[ed] that `[t]he costs of the proposed rule primarily are borne by 
migrants and the Departments.' '' See 88 FR at 11748. Commenters 
further stated that States have significant reliance interests in the 
Federal Government's enforcement of the immigration laws and that the 
Departments should withdraw the rule because the Departments did not 
consider this reliance in the proposed rule. Commenters stated that the 
rule would cause additional noncitizens to enter the United States 
where they would cause the States to expend additional funds on law 
enforcement, education, and healthcare than the States otherwise would 
have spent.
    In support of this assertion, commenters stated that irregular 
migration imposes significant costs on States. Commenters cited a study 
that stated ``the net cost of illegal immigration to U.S. taxpayers is 
now $150.7 billion.'' Commenters provided specific examples of costs 
that the State of Indiana has incurred or could incur to provide 
services to noncitizens, including costs to provide English Language 
Learner Services and other education services. Commenters stated that 
as many as 5,000 family units that had been encountered and granted 
parole pursuant to the parole + ATD

[[Page 31438]]

policy settled in Indiana between July 2021 and February 2022. On the 
other hand, a state administrative agency wrote that immigrants and 
refugees are integral to that State's economy and generate $2.8 billion 
of business income and contribute over $21.4 billion in Federal, State, 
and local taxes, annually. The commenter wrote that immigrants and 
refugees have successfully rebuilt their lives and made positive social 
and economic contributions to the State by revitalizing neighborhoods 
and adding to the cultural vitality of the State and its communities.
    Response: The Departments respectfully disagree with the 
characterization of the rule as precipitating higher levels of 
irregular migration. As discussed in the preamble to the proposed rule, 
see, e.g., 88 FR at 11705-06, and in Section I of this preamble, in the 
absence of this rule, the Departments would anticipate a significant 
further surge in irregular migration after the Title 42 public health 
Order is lifted. This rule is expected to reduce irregular migration, 
not increase it.
    This rule imposes a rebuttable presumption of asylum ineligibility 
for certain migrants who enter the United States at the southwest land 
border or adjacent coastal borders after traveling through a third 
country during a designated period. This rule excepts from its 
rebuttable presumption noncitizens who enter the United States pursuant 
to a lawful pathway, but the rule does not newly introduce or authorize 
any lawful pathways to enter the United States. While it is true that 
the rule excepts from the rebuttable presumption those who use some 
lawful pathways, such pathways would exist irrespective of this rule. 
Indeed, as stated in the NPRM, the term ``lawful pathways'' refers to 
the ``range of pathways and processes by which migrants are able to 
enter the United States or other countries in a lawful, safe, and 
orderly manner and seek asylum and other forms of protection.'' 88 FR 
at 11706 n.15. One such lawful pathway is entry pursuant to the CHNV 
parole processes; such processes were established prior to and separate 
from the publication of the NPRM. In other words, the commenters have 
conflated the lawful pathways accounted for in this rule with the rule 
itself.
    The Departments further note the evidence that the introduction of 
lawful pathways, particularly when coupled with a consequence for 
failing to use such processes, has significantly reduced levels of 
irregular migration. For instance, as noted in the proposed rule, in 
the week prior to the announcement of the Venezuela parole process on 
October 12, 2022, encounters of Venezuelan nationals between POEs at 
the SWB averaged over 1,100 a day from October 5-11. About two weeks 
after the announcement, encounters of Venezuelan nationals averaged 
under 200 per day between October 18 and 24.\328\ The low trend 
continued with a daily average of 106 in March 2023.\329\ Similarly, 
the number of CHN nationals encountered dropped significantly in the 
wake of the January 2023 announcement of new processes for those 
countries. Between the announcement of the new processes on January 5, 
2023, and January 21, the number of daily encounters between POEs of 
CHN nationals dropped from 928 to 73, a 92 percent decline.\330\ 
Encounters between POEs of CHN nationals continued to decline to a 
daily average of fewer than 17 per day in March 2023.\331\ These 
reductions in encounters have been sustained for months while the Title 
42 public health Order has remained in effect.
---------------------------------------------------------------------------

    \328\ USBP encountered an average of 225 Venezuelans per day in 
November 2022 and 199 per day in December 2022. OIS analysis of OIS 
Persist Dataset based on data through March 31, 2023. Data are 
limited to USBP encounters to exclude those being paroled in through 
POEs.
    \329\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
    \330\ Id.
    \331\ Id.
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    With respect to commenters' statement that States have significant 
reliance interests in the Federal Government's enforcement of the 
immigration laws, this rule does not set any policy against enforcement 
of the immigrations laws. Commenters' objections to other enforcement 
policies, or any lack thereof, have little relationship to this rule, 
which, as previously stated, creates a rebuttable presumption of asylum 
ineligibility for certain migrants who enter the United States at the 
southwest land border or adjacent coastal borders after traveling 
through a third country during a designated period. The Departments are 
unaware of any existing policies altered by this rule in which States 
have a substantial reliance interest. For example, States cannot have 
substantial reliance interests in the Proclamation Bar IFR or TCT Bar 
Final Rule because neither rule is being enforced.
    Ultimately, the commenters' objections are not to the proposed 
rule, but to the lawful pathways themselves, as well as to other 
aspects of the immigration system. The Departments believe that 
withdrawing the proposed rule would not achieve the Departments' or the 
commenters' goals.
    Comment: Another group of State Attorneys General stated that if, 
as a consequence of the rule, noncitizens endure additional trauma 
seeking asylum in a third country or waiting at the SWB in potentially 
dangerous conditions for a CBP One appointment, such noncitizens will 
require more State-funded services, such as services related to 
healthcare, education, and legal assistance.
    Response: The Departments acknowledge that various levels of 
government provide services to noncitizens for a range of purposes. The 
Departments have further revised the Executive Order 12866 discussion 
in Section VI.B of this preamble to note the potential effects on such 
entities.
    Comment: Commenters stated that while the Departments acknowledge 
the cost and other impact that irregular migration has had on DHS 
operations, States and border communities, and NGOs, the Departments 
did not adequately consider the costs borne by other Federal agencies 
not directly associated with immigration enforcement. For example, 
commenters stated that some health programs (Medicaid; the Children's 
Health Insurance Program; the Supplemental Nutrition Assistance 
Program; and the Women, Infants, and Children program) and tax credits 
are available to noncitizens without employment authorization. 
Commenters also stated that UCs are eligible for a large number of 
Federal benefits immediately upon their entry. Commenters also stated 
that the expanded usage of humanitarian parole results in costs 
associated with providing parolees Federal benefits.
    Response: The Departments agree that a high volume of irregular 
migration can have significant implications for other Federal agencies 
that provide services or assistance to migrants. For the reasons stated 
in the first comment response in Section IV.F.3.i of this preamble, 
however, the Departments do not believe it is reasonable to expect that 
the rule would result in an increase in irregular migration. This rule 
is designed to reduce levels of irregular migration, and to channel 
migrants into lawful, safe, and orderly pathways. In the absence of 
this rule, the Departments would anticipate a significant further surge 
in irregular migration after the Title 42 public health Order is 
lifted. This rule will reduce irregular migration and any costs 
associated with such migration, rather than increasing such migration 
and costs.
    Comment: Some commenters also stated that the rule fails to 
adequately consider and address the administrative

[[Page 31439]]

costs that the Departments would incur in order to implement the rule. 
Regarding USCIS, these commenters stated that the Departments failed to 
consider, for instance, the following costs: new trainings, possible 
future hiring needs that could result from the rule, and possible 
collateral costs to petitioners before USCIS who could have 
adjudications delayed due to downstream delays. Some commenters 
expressed concern that USCIS, as a fee-funded agency, might have 
insufficient resources to implement the rule, and hypothesized that 
USCIS might seek to ask Congress for an appropriation to cover 
implementation costs, which would shift the burden of the cost to U.S. 
taxpayers. These commenters cited the requirements of the Anti-
Deficiency Act and past reductions in USCIS fee revenues in support of 
the commenters' prediction of an appropriations request.
    Regarding CBP, commenters stated that the Departments failed to 
consider, for instance, costs for training staff on the CBP One app and 
for app maintenance and updates.
    Regarding ICE, commenters stated that if, as a result of the rule, 
more noncitizens receive negative credible fear determinations and 
request IJ review, there is a risk of overcrowding and other 
operational complications as bed space runs out for new arrivals. The 
commenters stated that this could increase the money paid by the U.S. 
taxpayer unnecessarily.
    Regarding EOIR, these commenters stated that the Departments failed 
to consider, for instance, the following costs: training of IJs and 
staff; form updates; and an increase to the court backlog if 
adjudications take longer.
    Response: The Departments agree that various agencies will expend 
resources to implement this rule. The discussion in Section VI.B of 
this preamble explains that the rule will require additional time for 
AOs and IJs, during fear screenings and reviews, respectively, to 
inquire into the applicability of the presumption and whether the 
presumption has been rebutted. Similarly, the rule will require 
additional time for IJs during section 240 removal proceedings. 
However, as discussed in the proposed rule and elsewhere in this 
preamble, in the absence of this rule, the Departments would anticipate 
a significant further surge in irregular migration after the Title 42 
public health Order is lifted, which would require the expenditure of 
significant resources. This rule is therefore anticipated to 
substantially reduce net burdens on the Departments, including at the 
agencies referenced by the commenters.
4. Regulatory Flexibility Act (``RFA'')
    Comment: At least one commenter disagreed with the certification in 
the NPRM that the proposed rule would not have a significant economic 
impact on a substantial number of small entities. See 88 FR at 11748. 
Some legal services providers gave examples of how the rule would 
impact their organization and workloads, without objecting to the RFA 
certification. But at least one commenter disputed the certification 
and wrote that as a nonprofit organization that helps asylum seekers 
prepare for credible fear interviews, IJ reviews, and merits hearings, 
the commenter would experience a significant time and cost burden 
associated with the new rule, such as the additional time spent 
gathering evidence from foreign countries, appearing at interviews and 
hearings, and explaining the law and outcome to clients and pro se 
respondents. The commenter stated that, as a consequence of the rule, 
the commenter would therefore be forced to serve fewer individuals, 
significantly reducing the number of people who would have access to 
legal services. The commenter further stated that due to the increased 
time burden, individuals would have to pay the commenter increased fees 
or donors would have to chip in more for each person.
    Response: Consistent with longstanding case law, a regulatory 
flexibility analysis is not required when a rule has only indirect 
effects on small entities, rather than directly regulating those 
entities. See, e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327, 
342-43 (D.C. Cir. 1985) (``[A]n agency may properly certify that no 
regulatory flexibility analysis is necessary when it determines that 
the rule will not have a significant economic impact on a substantial 
number of small entities that are subject to the requirements of the 
rule . . . . Congress did not intend to require that every agency 
consider every indirect effect that any regulation might have on small 
businesses in any stratum of the national economy.'').\332\ This rule 
does not directly regulate any organizations; the rule imposes a 
rebuttable presumption of asylum ineligibility for certain migrants who 
enter the United States at the southwest land border or adjacent 
coastal borders after traveling through a third country during a 
designated period. The RFA does not require the Departments to estimate 
the rule's potential indirect effects on legal service organizations, 
law firms, and other service providers whose clients may be subject to 
the rule. Because this rule does not regulate small entities 
themselves, the Departments reaffirm their conclusion that no 
regulatory flexibility analysis is necessary.
---------------------------------------------------------------------------

    \332\ See also Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 
869 (D.C. Cir. 2001) (``The statute requires that the agency conduct 
the relevant analysis or certify `no impact' for those small 
businesses that are `subject to' the regulation, that is, those to 
which the regulation `will apply'. . . . The rule will doubtless 
have economic impacts in many sectors of the economy. But to require 
an agency to assess the impact on all of the nation's small 
businesses possibly affected by a rule would be to convert every 
rulemaking process into a massive exercise in economic modeling, an 
approach we have already rejected.'' (citing Mid-Tex, 773 F.2d at 
343)); White Eagle Co-op. Ass'n v. Conner, 553 F.3d 467, 480 (7th 
Cir. 2009) (``[S]mall entities directly regulated by the proposed 
[rulemaking]--whose conduct is circumscribed or mandated--may bring 
a challenge to the RFA analysis or certification of an agency. . . . 
However, when the regulation reaches small entities only indirectly, 
they do not have standing to bring an RFA challenge.'').
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5. Other Regulatory Requirements
    Comment: A group of State Attorneys General disputed the statement 
in the proposed rule, made pursuant to Executive Order 13132, 
Federalism, 64 FR 43255 (Aug. 4, 1999), that the proposed rule would 
not have a substantial direct effect on the States, the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
See 88 FR at 11749.
    Response: The Departments maintain that this rule will not have a 
substantial direct effect on the States, the relationship between the 
National Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. This rule's 
only direct effects relate to asylum applicants and those being 
processed at the SWB. For the same reason, this final rule will not 
impose substantial direct compliance costs (indeed, any direct 
compliance costs) on State and local governments, or preempt State law. 
Accordingly, in accordance with section 6 of Executive Order 13132, 
this rule requires no further agency action or analysis.
    Comment: A group of State Attorneys General stated that the 
Departments should withdraw the rule because it would impose 
significant unfunded mandates on the States but the Departments did not 
assess the impact on the States or their constituent local governments 
under the Unfunded Mandates Reform Act of 1995 (``UMRA''). Commenters 
disagreed with the Department's statement in the proposed rule that the 
rule would not

[[Page 31440]]

impose an unfunded mandate because ``[a]ny downstream effects on such 
entities would arise solely due to their voluntary choices, and the 
voluntary choices of others, and would not be a consequence of an 
enforceable duty imposed'' by the rule. 88 FR 11748. Commenters cited 
cases regarding standing to sue in Federal court, such as Department of 
Commerce v. New York, 139 S. Ct. 2551 (2019) and City & County of San 
Francisco v. USCIS, 944 F.3d 773, 787 (9th Cir. 2019), arguing that if 
the fact patterns in those cases were sufficient to establish standing, 
they are sufficient to trigger the UMRA's requirements. Quoting 2 
U.S.C. 1534(a), commenters stated that UMRA also requires that ``[e]ach 
agency . . . develop an effective process to permit elected officers of 
State, local, and tribal governments . . . to provide meaningful and 
timely input in the development of regulatory proposals containing 
significant Federal intergovernmental mandates.'' The comments stated 
that the Departments never allowed elected leaders in their States to 
provide any such input.
    Response: Case law on standing does not dictate UMRA's scope. The 
Departments maintain that the NPRM preamble's discussion of UMRA was 
correct. This rule does not contain a Federal mandate, or a significant 
Federal intergovernmental mandate, because it does not impose any 
enforceable duty upon any other level of government or private sector 
entity. Any downstream effects on such entities would arise solely due 
to their voluntary choices, and the voluntary choices of others, and 
would not be a consequence of an enforceable duty imposed by the rule. 
Similarly, any costs or transfer effects on State and local governments 
would not result from a Federal mandate contained in this rule, as that 
term is defined under UMRA.

G. Out of Scope

    Comment: Commenters submitted a number of comments that were 
outside the scope of the rulemaking. For instance, some commenters 
stated that the United States should create a path to citizenship for 
undocumented immigrants; that the Government should otherwise engage in 
legislative immigration reform; that all noncitizens with disabilities 
should be eligible for asylum; that minors should not be released to 
individuals without lawful status; that the Government should focus on 
disparities among IJs in asylum grant rates; that the United States 
should expand resources focused on the development of civil society and 
governments in the Northern Triangle; that countries from which asylum 
applicants flee should help fund humanitarian aid for their citizens 
who resettle in the United States; that POEs are already overwhelmed so 
asylum-seekers should be allowed to enter in other places; that the 
Government needs to focus on granting ``Dreamers'' citizenship; that 
the Government should call on the military to forcibly repel migrants 
from the border; that the United States should end birthright 
citizenship; that the American workforce is becoming automated, putting 
American citizens out of work; that the United States should subsidize 
the implementation of machinery that would fill the jobs that normally 
``attract'' migrants (e.g., agricultural work); that migrant children 
are being forced into child labor; that the U.S. birthrate is low and 
we need more workers to maintain Social Security and Medicare; that the 
United States is selling land to China, and India is buying oil from 
Russia; that the United States should systematically fund research that 
evaluates the racial disparities that exist in the efficiency with 
which Ukrainian humanitarian parole applications have been reviewed and 
evaluated versus those of Afghan applicants; that American taxpayers 
are suffering the effects of the border crisis, particularly in 
schools; that the United States should expand legal immigration; that 
asylum seekers will receive in absentia removal orders due to 
difficulties in contacting asylum seekers for court hearings; that they 
objected to the number of noncitizens present in the United States 
without lawful status.
    Response: Such comments address matters well beyond the scope of 
the proposed rule and do not require further response.
    Comment: Several commenters made statements related to CBP custody 
conditions, noting for instance that they are overcrowded, lack 
adequate access to hygiene, lack adequate space so that families are 
separated by gender, are cold, lack adequate bedding, have lights on at 
night, and do not have adequate showers. At least one commentor noted 
that CBP facilities should have more child friendly reception areas.
    Response: The Department acknowledges the commenters' concerns. 
However, this rule does not have any impact on whether or how 
individuals are in custody or detained, and these comments are outside 
the scope of the rulemaking.

V. Request for Comments on Proposed Extension of Applicability to All 
Maritime Arrivals

    In addition to the changes made in this final rule described in 
Section IV.B.8.i of this preamble, the Departments are considering and 
request comment on whether to apply the rebuttable presumption to 
noncitizens who enter the United States without documents sufficient 
for lawful admission during the same temporary time period at a 
maritime border,\333\ whether or not they traveled through a third 
country. Such a modification would expand the scope of the rule's 
rebuttable presumption in two ways: both geographically (covering all 
entries by sea, not just those entering the United States from Mexico 
at coastal borders adjacent to the SWB) and with regard to the class of 
persons potentially subject to the rebuttable presumption (by covering 
persons who enter the United States by sea even if they did not travel 
through a country other than their country of citizenship, nationality, 
or, if stateless, last habitual residence, that is a party to the 1951 
United Nations Convention relating to the Status of Refugees or the 
1967 Protocol relating to the Status of Refugees). In addition, the 
Departments are also considering and request comment on whether to 
expand the scope of the rule's rebuttable presumption geographically to 
noncitizens who enter the United States without documents sufficient 
for lawful admission during the same temporary time period at any 
maritime border, while continuing to limit the presumption's 
applicability to those who traveled through another country before 
reaching the United States. Finally, the Departments are considering 
and request comment on whether to expand the scope of the presumption 
to noncitizens who enter the United States by sea, but to limit the 
scope of that expansion to noncitizens who departed from the Caribbean 
or other regions that present a heightened risk of maritime crossings.
---------------------------------------------------------------------------

    \333\ The STCA and Additional Protocol controls and applies as 
to individuals who cross the U.S.-Canada land border between POEs, 
including certain bodies of water along or across the U.S.-Canada 
land border, as described in 88 FR 18227, 18234. The Departments' 
use of ``at a maritime border'' includes individuals who enter the 
United States by sea, as in the Atlantic and Pacific coasts of the 
United States.
---------------------------------------------------------------------------

    The Departments are considering extending the rule's rebuttable 
presumption to maritime arrivals to encourage any migrants intending to 
reach the United States by sea to instead avail themselves of lawful, 
safe, and orderly pathways into the United States,

[[Page 31441]]

or otherwise to seek asylum or other protection in another country. As 
discussed in more detail below, DHS has recently experienced high 
levels of maritime interdictions, primarily of Cuban and Haitian 
nationals in the Caribbean, and is concerned that rates of attempted 
entries to the United States by sea may soon increase to levels that 
would greatly stress DHS's available resources and may lead to 
devastating loss of life and other consequences. The Departments expect 
that extending the strategy of coupling an expansion of lawful, safe, 
and orderly pathways into the United States with this rule's 
consequence for noncitizens who do not avail themselves of one of those 
options would lead to a reduction in the numbers of migrants who would 
otherwise undertake a dangerous sea journey to the United States.

A. Maritime Migration Continues To Increase, With Devastating 
Consequences for Migrants

    Total migrants interdicted at sea by the U.S. Coast Guard 
(``USCG'') increased by 502 percent between FY 2020 (2,079) and FY 2022 
(12,521).\334\ Interdictions continued to rise in FY 2023 with 8,822 
migrants interdicted at sea through March, almost 70 percent of the 
total in FY 2022 within six months.\335\ Interdictions occurred 
primarily in the South Florida Straits and the Caribbean Sea.\336\
---------------------------------------------------------------------------

    \334\ OIS analysis of USCG data through March 31, 2023.
    \335\ Id.
    \336\ Testimony of Jonathan Miller, ``Securing America's 
Maritime Border: Challenges and Solutions for U.S. National 
Security'' at 4 (Mar. 23, 2023), https://homeland.house.gov/media/2023/03/3.23.23-TMS-Testimony.pdf.
---------------------------------------------------------------------------

    Individuals departing from Cuba and Haiti make up the vast majority 
of maritime interdictions. Maritime migration from Cuba increased by 
nearly 600 percent in FY 2022, with 5,740 Cuban nationals interdicted 
at sea, compared to 827 in FY 2021.\337\ Similarly, maritime migration 
from Haiti more than tripled in FY 2022, with 4,025 Haitian nationals 
interdicted at sea, compared to 1,205 in FY 2021 and 398 in FY 
2020.\338\ In the first six months of FY 2023, Cuban interdictions were 
nearly equal to the Cuban FY 2022 total, comprising 62 percent of all 
FY 2023 interdictions at sea; Haitian interdictions were over 60 
percent of the Haitian FY 2022 total, comprising around 30 percent of 
all FY 2023 interdictions at sea.\339\
---------------------------------------------------------------------------

    \337\ OIS analysis of USCG data through March 31, 2023.
    \338\ Id.
    \339\ Id.
---------------------------------------------------------------------------

    Meanwhile, USBP apprehensions of noncitizens who made landfall in 
southeast coastal sectors have also been increasing rapidly.\340\ There 
were 5,978 such apprehensions in FY 2022, nearly triple the number of 
apprehensions in FY 2021 (2,045). And in FY 2023 to date, there have 
already been 6,364 USBP apprehensions of noncitizens who made landfall 
in southeast coastal sectors, more than the total for all of FY 
2022.\341\ Cuban and Haitian nationals made up 76 percent of these 
apprehensions in FY 2022 and 84 percent of apprehensions so far in FY 
2023.
---------------------------------------------------------------------------

    \340\ Includes Miami, Florida; New Orleans, Louisiana; and 
Ramey, Puerto Rico sectors.
    \341\ OIS analysis of OIS Persist Dataset based on data through 
March 31, 2023.
---------------------------------------------------------------------------

    Several large group interdictions of Cubans and Haitians have 
caused challenges for the USCG in recent months. On January 22, 2023, 
the USCG interdicted a sail freighter suspected of illegally 
transporting migrants with nearly 400 Haitians aboard, necessitating 
repatriations of eligible individuals back to the Bahamas.\342\ Days 
later, on January 25, the USCG interdicted and repatriated another 309 
Haitians to Haiti.\343\ USCG interdicted yet another large group of 
Haitians on February 15, resulting in the repatriation of all 311 
Haitian migrants in that group,\344\ and another group of 206 Haitians 
were repatriated on March 2 following two successive, separate 
interdictions on February 22 and 28.\345\ On January 12, 2023, USCG 
repatriated 177 Cubans from 7 separate interdictions.\346\ USCG 
repatriated an additional 67 Cubans between February 23-24 following 
prior interdictions.\347\
---------------------------------------------------------------------------

    \342\ David Goodhue and Jacqueline Charles, Coast Guard stops 
boat with 400 Haitians off the Bahamas and likely headed to Florida, 
Miami Herald, Jan. 23, 2023, https://www.miamiherald.com/news/nation-world/world/americas/haiti/article271514157.html.
    \343\ USCG, Coast Guard Repatriates 309 People to Haiti (Jan. 
31, 2023), https://www.news.uscg.mil/Press-Releases/Article/3281802/coast-guard-repatriates-309-people-to-haiti.
    \344\ USCG, Coast Guard Repatriates 311 People to Haiti 
(February 20, 2023), https://www.news.uscg.mil/Press-Releases/Article/3302743/coast-guard-repatriates-311-people-to-haiti/.
    \345\ USCG, Coast Guard Repatriates 206 People to Haiti (March 
2, 2023), https://www.news.uscg.mil/Press-Releases/Article/3314530/coast-guard-repatriates-206-people-to-haiti/.
    \346\ USCG, Coast Guard Repatriates 177 People to Cuba (Jan. 12, 
2023), https://www.news.uscg.mil/Press-Releases/Article/3265898/coast-guard-repatriates-177-people-to-cuba/.
    \347\ USCG, Coast Guard Repatriates 29 People to Cuba (Feb. 23, 
2023), https://www.news.uscg.mil/Press-Releases/Article/3306722/coast-guard-repatriates-29-people-to-cuba/; USCG, Coast Guard 
Repatriates 38 People to Cuba (Feb. 24, 2023), https://www.news.uscg.mil/Press-Releases/Article/3306850/coast-guard-repatriates-38-people-to-cuba/.
---------------------------------------------------------------------------

    Interdictions in the maritime environment can pose unique hazards 
to life and safety. On March 23, 2023, Rear Admiral Jo-Ann Burdian, 
Assistant Commandant for Response Policy, testified before a 
Congressional panel, stating: ``Over the last year and a half, the 
Coast Guard observed an increase in irregular maritime migration, above 
historical norms, across our southern maritime border. This is a 
difficult mission for our crews. . . . For example, patrolling the 
waters of the South Florida Straits can be compared to patrolling a 
land area the size of Maryland with seven police cars limited to 
traveling at 15 miles per hour. It requires exceptional tactical 
coordination between aircraft, ships, boats, and supporting partners 
ashore.'' \348\ Rear Admiral Burdian further stated that it is not 
uncommon for migrants encountered at sea to be non-compliant, 
threatening their own lives and those of other migrants on board to 
deter a Coast Guard rescue.\349\ Additional challenges of maritime 
migration operations include ensuring adequate sanitation, security, 
and providing for food, medical, and shelter needs of migrants.\350\
---------------------------------------------------------------------------

    \348\ Testimony of Rear Admiral Jo-Ann F. Burdian, Assistant 
Commandant for Response Policy, ``Securing America's Maritime 
Border: Challenges and Solutions for U.S. National Security'' (Mar. 
23, 2023), https://homeland.house.gov/media/2023/03/2023-03-23-TMS-Testimony.pdf.
    \349\ Id.
    \350\ Id.
---------------------------------------------------------------------------

    Interdicting Haitian sail freighters poses unique challenges to DHS 
crews and migrants. See 88 FR at 26328. These types of vessels are 
often overloaded with more than 150 migrants onboard, including small 
children. Id. Because these vessels do not have sufficient safety 
equipment, including life jackets, emergency locator beacons, or life 
rafts in the event of an emergency, there is a great risk to human life 
if these vessels overturn or sink because such an overturning or 
sinking would create a situation where there could be hundreds of 
noncitizens in the water, many of whom may not know how to swim. Id. 
Often, noncitizens interdicted on these vessels have been at sea for 
several days, are dehydrated, need medical attention, or are otherwise 
experiencing elevated levels of stress. Id. These factors increase the 
risk to DHS personnel who rescue these migrants from these vessels 
because the number of migrants outnumber DHS crews. Id. DHS encounters 
with sail freighters are not uncommon, and because of sail freighter 
capacity to carry several hundred migrants, they can exceed the holding 
capacity of USCG cutters patrolling

[[Page 31442]]

southeastern maritime smuggling vectors, increasing the risk not only 
to the migrants, but to cutter crews as well. Id. While maritime 
interdictions declined somewhat in February 2023, DHS assesses that the 
weather played a significant role in this reduced maritime movement in 
the Caribbean. Id. Through much of February, weather conditions were 
unfavorable for maritime ventures, particularly on smaller vessels. Id. 
However, DHS assesses that this was only temporary. Increasing levels 
of maritime interdictions put lives at risk and stress DHS's resources, 
and the increase in migrants taking to sea, under dangerous conditions, 
has led to devastating consequences.
    Human smugglers and irregular migrant populations continue to use 
unseaworthy, overly crowded vessels, piloted by inexperienced mariners, 
without any safety equipment--including, but not limited to, personal 
flotation devices, radios, maritime global positioning systems, or 
vessel locator beacons. In FY 2022, the USCG recorded 107 noncitizen 
deaths, including those presumed dead, as a result of irregular 
maritime migration. In January 2022, the USCG located a capsized vessel 
with a survivor clinging to the hull.\351\ USCG crews interviewed the 
survivor, who indicated there were 34 others on the vessel who were not 
in the vicinity of the capsized vessel and the survivor.\352\ The USCG 
conducted a multi-day air and surface search for the missing migrants, 
eventually recovering five deceased migrants, while the others were 
presumed lost at sea.\353\ In November 2022, USCG and CBP rescued over 
180 people from an overloaded boat that became disabled off of the 
Florida Keys.\354\ They pulled 18 Haitian migrants out of the sea after 
they became trapped in ocean currents while trying to swim to 
shore.\355\
---------------------------------------------------------------------------

    \351\ Adriana Gomez Licon, Situation `dire' as Coast Guard seeks 
38 missing off Florida, Associated Press, Jan. 26, 2022, https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019.
    \352\ Id.
    \353\ Adriana Gomez Licon, Coast Guard suspends search for 
migrants off Florida, Associated Press, Jan. 27, 2022, https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239.
    \354\ Ashley Cox, More than 180 people rescued from overloaded 
vessel in Florida Keys, CBS News CW44 Tampa, Nov. 22, 2022, https://www.cbsnews.com/tampa/news/more-than-180-people-rescued-from-overloaded-vessel-in-florida-keys/.
    \355\ Id.
---------------------------------------------------------------------------

    IOM's Missing Migrants Project reported at least 321 documented 
deaths and disappearances of migrants throughout the Caribbean in 2022, 
signaling the highest recorded number since they began tracking such 
events in 2014.\356\ Most of those who perished or went missing in the 
Caribbean were from Haiti and Cuba.\357\ This data represents a tragic 
78 percent overall increase over the 180 deaths in the Caribbean 
documented in 2021, underscoring the perils of the journey.\358\
---------------------------------------------------------------------------

    \356\ IOM, Missing Migrants in the Caribbean Reached a Record 
High in 2022 (Jan. 24, 2023), https://www.iom.int/news/missing-migrants-caribbean-reached-record-high-2022.
    \357\ Id.
    \358\ Id.
---------------------------------------------------------------------------

B. A Further Increase in Maritime Migration is Reasonably Foreseeable

    The Departments assess that maritime migration is likely to 
increase absent policy changes such as those being considered. For 
instance, Haiti continues to experience security and humanitarian 
crises caused by rampant gang violence, food and fuel shortages, a 
resurgence of cholera, and an August 2021 earthquake that killed 2,000 
people.\359\ And Cuba is undergoing its worst economic crisis since the 
1990s \360\ due to the lingering impact of the COVID-19 pandemic, 
reduced foreign aid from Venezuela because of that country's own 
economic crisis, high food prices, and U.S. economic sanctions.\361\ 
These crises will likely continue to fuel irregular maritime migration.
---------------------------------------------------------------------------

    \359\ See, e.g., CRS, Haiti: Recent Developments and U.S. 
Policy, R47394 (Jan. 23, 2023), https://crsreports.congress.gov/product/pdf/R/R47394.
    \360\ The Economist, Cuba is Facing Its Worst Shortage of Food 
Since 1990s (July 1, 2021), https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s.
    \361\ CRS, Cuba: U.S. Policy in the 117th Congress (Sept. 22, 
2022), https://crsreports.congress.gov/product/pdf/R/R47246.
---------------------------------------------------------------------------

    Although the establishment of the CHNV parole processes has 
significantly reduced SWB encounters with Cuban and Haitian nationals 
as described above in Section II.A, maritime interdictions of Cuban and 
Haitian nationals in the Caribbean have increased in recent years and 
persist at high levels, as just described. Unlike noncitizens 
encountered at the SWB, noncitizens who reach the United States 
directly by sea without traveling from Mexico or Canada have not been 
subject to the CDC's Title 42 public health Order.\362\ Instead, they 
are (and will continue to be) processed under Title 8, which as 
described above may entail years spent in the United States before a 
final order of removal is issued. DHS recently announced that in 
response to the increase in maritime migration and interdictions, and 
to disincentivize migrants from attempting the dangerous journey to the 
United States by sea, individuals who have been interdicted at sea 
after April 27, 2023, are ineligible for the parole processes for 
Cubans and Haitians. 88 FR 26327; 88 FR 26329. The Departments expect 
that this step will help but that, in light of the complicated mix of 
factors driving maritime migration, more is needed to discourage 
maritime migration and encourage the use of safe, lawful, orderly 
processes.
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    \362\ See 86 FR at 42841 (Order applies only to certain persons 
``traveling from Canada or Mexico'').
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C. Effects on Resources and Operations

    USCG and its partners have surged assets to address the recent 
increase in maritime migration, but the increased flow of migrants 
overall led to a lower interdiction effectiveness rate (that is, the 
percentage of detected undocumented migrants of all nationalities who 
were interdicted by USCG and partners via maritime routes).\363\ 
Between FY 2018 and FY 2020, USCG approached or exceeded its 75 percent 
effectiveness target.\364\ In FY 2021 and FY 2022, effectiveness 
dropped to 47.2 percent and 56.6 percent, respectively, despite a surge 
response that resulted in 17 percent more interdictions in FY 2022 than 
in FY 2021.\365\ That is, even though the USCG interdicted more 
migrants overall, those interdictions were a smaller percentage of 
total detected migrants on maritime routes than the USCG had 
interdicted between FY 2018 and 2019. A further surge in maritime 
migration risks further decreasing effectiveness (and thereby reducing 
deterrence of dangerous journeys by sea) and, as described below, would 
exacerbate USCG's overall capacity challenges and increase the risk to 
other key mission areas, such as counter-drug operations.
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    \363\ DHS, U.S. Coast Guard Budge Overview, Fiscal Year 2024 
Congressional Justification, at USCG-3.
    \364\ Id.
    \365\ Id.
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    The United States Government's response to maritime migration in 
the Caribbean region is governed by executive orders, presidential 
directives, and resulting framework and plans that outline interagency 
roles and responsibilities. Homeland Security Task Force-Southeast 
(``HSTF-SE'') is primarily responsible for DHS's response to maritime 
migration in the Caribbean Sea and the Straits of Florida. Operation 
Vigilant Sentry is the DHS interagency operational plan for responding 
to maritime migration in the Caribbean Sea and the Straits of

[[Page 31443]]

Florida.\366\ The primary objectives of HSTF-SE are to protect the 
safety and security of the United States, deter and dissuade 
noncitizens from attempting the dangerous journey to the United States 
by sea, achieve U.S. humanitarian objectives, maintain the integrity of 
the U.S. immigration system, and prevent loss of life at sea through 
mobilizing DHS resources, reinforced by other Federal, State, and local 
assets and capabilities.
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    \366\ Homeland Security Task Force-Southeast, published through 
the U.S. Embassy in Cuba, Homeland Security Task Force Southeast 
partners increase illegal migration enforcement patrols in Florida 
Straits, Caribbean (Sept. 6, 2022), https://cu.usembassy.gov/homeland-security-task-force-southeast-partners-increase-illegal-migration-enforcement-patrols-in-florida-straits-caribbean/.
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    The USCG supports HSTF-SE and views its migrant interdiction 
mission as a humanitarian effort to rescue those taking to the sea and 
to encourage noncitizens to pursue lawful pathways to enter the United 
States. By allocating additional assets to migrant interdiction 
operations and to prevent conditions that could lead to maritime mass 
migration, the USCG assumes certain operational risk to other statutory 
missions. Some USCG assets were diverted from other key mission areas, 
including counter-drug operations, protection of living marine 
resources, and support for shipping navigation. See 88 FR at 26329. A 
reduction in maritime migration would reduce the operational risk to 
USCG's other statutory missions.
    Maritime encounters also strain other DHS resources. For instance, 
during times of increased encounters in the maritime environment, the 
U.S. Border Patrol executes lateral decompression flights for 
processing. Once the Title 42 public health Order is lifted, based on 
DHS encounter projections and throughput models, southwest border 
sectors will likely lose the ability to accept decompression flights 
from coastal border sectors. This in turn would result in overcrowding 
in coastal border sectors' short-term holding facilities and impact 
local communities not prepared to receive migrants.

D. Lawful, Safe, and Orderly Pathways

    As discussed in detail earlier in this preamble, the United States 
has taken significant steps to expand safe and orderly options for 
migrants, including migrants from the Caribbean region, to lawfully 
enter the United States. The United States has, for example, increased 
and will continue to increase refugee processing in the Western 
Hemisphere; country-specific and other available processes for 
individuals seeking parole for urgent humanitarian reasons or 
significant public benefit, including the Cuba, Haiti, Nicaragua, and 
Venezuela parole processes; and opportunities to lawfully enter the 
United States for the purpose of seasonal employment. In addition, the 
United States has resumed the Cuban Family Reunification Program and 
resumed and increased participation in the Haitian Family Reunification 
Program.
    The Departments are also aware that many individuals migrating out 
of island nations, such as Cuba and Haiti, do so via air travel.\367\ 
For many individuals, travel by air to a third country may be an 
additional option for obtaining asylum or other protection. The 
Departments acknowledge, however, that there may be individuals for 
whom air travel is not an option. The Departments welcome data, other 
information, or comments on access to air travel and whether any aspect 
of this rule's presumption should be adjusted to account for 
differences among individuals in access to air travel.
---------------------------------------------------------------------------

    \367\ See, e.g., Reuters, Nicaragua eliminates visa requirement 
for Cubans, Nov. 23, 2021, https://www.reuters.com/world/americas/nicaragua-eliminates-visa-requirement-cubans-2021-11-23/; Ed 
Augustin, Stars align for Cuban migrants as record numbers seek 
better life in US, Guardian, June 12, 2022, https://www.theguardian.com/world/2022/jun/12/cuban-migrants-us-record-numbers-migration (``The U.S. Coast Guard has intercepted nearly 
2,000 Cubans since October [2021]. But far more are flying to the 
Latin American mainland before journeying up to the U.S.-Mexico 
border: 114,000 have crossed into the U.S. since October [2021], 
according to U.S. Customs and Border Protection--1% of the island's 
entire population.''); Julie Watson et al., Charter business thrives 
as US-expelled Haitians flee Haiti, AP, June 14, 2022, https://apnews.com/article/covid-health-travel-caribbean-2e5f32f8781a06e74ef7ea7ec639785f; Julie Watson et al., Haitian trip 
to Texas border often starts in South America, AP, Sept. 21, 2021, 
https://apnews.com/article/technology-mexico-texas-caribbean-united-states-ac7f598bafd44b3f95b786d2d800f3ce (``Nearly all Haitians reach 
the U.S. on a well-worn route: Fly to Brazil, Chile or elsewhere in 
South America [then] move through Central America and Mexico.'').
---------------------------------------------------------------------------

E. Alternatives Under Consideration

    The Departments are considering whether the rebuttable presumption 
should apply to noncitizens who enter the United States without 
documents sufficient for lawful admission during the same temporary 
time period at any maritime border, whether or not they traveled 
through a third country. Under this approach, the presumption would 
apply to any covered noncitizen who reached the United States by sea, 
including Cuban or Haitian nationals traveling directly to the United 
States from Cuba or Haiti. The Departments acknowledge, however, that 
eliminating the third-country travel component for those arriving by 
sea would be a departure from the rest of the rule. The Departments are 
therefore considering whether this departure may be independently 
justified. The Departments believe that this additional measure could 
be warranted in light of the extreme hazard to both migrants and DHS 
personnel associated with maritime migration; the deterrence it would 
afford migrants who might undertake this dangerous journey to enter the 
United States irregularly and thus supplement interdiction efforts; the 
availability of lawful, safe, and orderly pathways for the primary 
populations at issue; and the safeguards incorporated into the rule. 
Applying the rule's rebuttable presumption of asylum ineligibility to 
persons who reach the United States by sea would not impose a 
categorical bar to asylum. To the contrary, the rule would still exempt 
noncitizens from the presumption if, instead of making a dangerous 
journey by sea, they arrived at the United States through a lawful 
pathway. It would also exempt certain noncitizens who arrive by sea, 
including unaccompanied children, and provide multiple ways for 
noncitizens to rebut the presumption, including in circumstances 
where--at the time the noncitizen entered the United States--the 
noncitizen or a member of their family with whom they were traveling 
faced an imminent and extreme threat to life or safety. The Departments 
request comment on how the various means of rebutting the presumption--
including facing an ``acute medical emergency,'' ``imminent and extreme 
threat to life and safety,'' and ``especially compelling 
circumstances''--should apply to noncitizens who reach the United 
States by sea. See 8 CFR 208.33(a)(3)(i); 8 CFR 1208.33(a)(3)(i).
    The Departments are also considering whether to extend the 
geographic scope of the rule to certain noncitizens who enter the 
United States by sea, without regard to whether they departed from 
Mexico, while retaining the requirement that a noncitizen have traveled 
through another country on their way to the United States. This 
narrower application of the rule would limit covered noncitizens to 
those who, by and large, could have sought asylum or other protection 
in that other country. However, this alternative would mean that Cuban 
and Haitian nationals who reach the United States by sea directly from 
their country of origin would not fall within the rule's compass.
    As another alternative, the Departments are considering whether to 
extend the scope of the presumption to certain noncitizens who enter 
the

[[Page 31444]]

United States by sea, but only if they departed from the Caribbean or 
another region that presents a heightened risk of maritime crossings. 
This alternative may be more tailored to the specific geographic 
regions that have caused the increase in maritime interdictions in 
recent months, but it would not expand the rule to other regions that 
could be a source of maritime crossings in the future.
    Finally, if rates of maritime migration rise substantially prior to 
the end of this comment period or prior to the issuance of a final rule 
that responds to these comments, the Departments intend to take 
appropriate action, consistent with the APA, which may include issuance 
of a temporary or interim final rule that implements one of the 
proposed modifications.

VI. Regulatory Requirements

A. Administrative Procedure Act

    This final rule is consistent with the notice-and-comment 
rulemaking requirements described at 5 U.S.C. 553(b) and (c). For the 
reasons explained below, the Departments have determined that this rule 
is exempt from the 30-day delayed-effective-date requirement at 5 
U.S.C. 553(d).
1. Foreign Affairs Exemption
    This rule is exempt from the APA's delayed-effective-date 
requirement because it involves a ``foreign affairs function of the 
United States.'' \368\ 5 U.S.C. 553(a)(1). Courts have held that this 
exemption applies when the rule in question ``is clearly and directly 
involved in a foreign affairs function.'' \369\ In addition, although 
the text of the APA does not 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.\370\ This rule satisfies both standards.
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    \368\ Although the Departments have voluntarily complied with 
the APA's notice and comment requirements, this rule is exempt from 
such requirements pursuant to the foreign affairs exception as well, 
for the same reasons that are described in this section.
    \369\ See, e.g., Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 
(C.I.T. 1984) (cleaned up).
    \370\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 
2008).
---------------------------------------------------------------------------

    The United States must work with foreign partners to address 
migration in the Western Hemisphere region, and this rule is clearly 
and directly related to, and responsive to, ongoing discussions with 
and requests by key foreign partners in the Western Hemisphere region 
in two ways. First, such partners have encouraged the United States to 
take action to address unlawful migration to the SWB, which is 
particularly necessary now in light of the anticipated lifting of the 
Title 42 public health Order.\371\ And by responding to these requests, 
the rule facilitates a key foreign policy goal--fostering a hemisphere-
wide approach of addressing migration on a regionwide basis. Though the 
specific details of these discussions are not appropriate for extensive 
elaboration here due to the sensitive nature of government-to-
government discussions, such partners have expressed concern that the 
lifting of the Title 42 public health Order--which provided an 
immediate consequence for many of those attempting to cross the SWB 
irregularly--may be misperceived by migrants as an indication that the 
U.S. border is open, which, in turn, could spur a surge of irregular 
migrant flows through their countries as migrants seek to enter the 
United States. One foreign partner opined that the formation of 
caravans in the spring of 2022 were spurred by rumors of the United 
States Government terminating the Title 42 public health Order and then 
the officially announced plans to do so. Such increases in irregular 
migration would further strain limited governmental and nongovernmental 
resources in partner nations. Already, partner nations have expressed 
significant concerns about the ways in which recent flows are 
challenging their own local communities and immigration infrastructure; 
they have expressed serious concerns that a dramatic increase in 
migrant flows could be overwhelming.
---------------------------------------------------------------------------

    \371\ See, e.g., Am. Ass'n of Exps. & Imps. v. United States, 
751 F.2d 1239, 1249 (Fed. Cir. 1985) (exemption applies where a rule 
is ``linked intimately with the Government's overall political 
agenda concerning relations with another country'').
---------------------------------------------------------------------------

    Some partner countries also have emphasized the possibility that 
criminal human smuggling organizations may seek to intentionally 
misrepresent the end of the Title 42 public health Order as leading to 
the opening of the U.S.-Mexico border in order to persuade would-be 
migrants to participate in expensive and dangerous human smuggling 
schemes. Such activity would put migrants' lives in danger and also 
contribute to the above-referenced adverse consequences associated with 
increased irregular migratory flows.
    In connection with such discussions, a number of countries have 
lauded the sharp reductions in irregular migration associated with the 
aforementioned CHNV processes--which, like this rule, imposed 
consequences for irregular migration alongside the availability of a 
lawful, safe, and orderly process for migrants to travel directly to 
the United States. Following the implementation of the Venezuela 
process in October 2022, some countries requested that the United 
States implement similar policies for other nationalities, which DHS 
did in January 2023. At the same time, however, partner nations have 
raised concerns that any changes to these processes or the 
circumstances in which they operate--including the perception that 
there will be no consequences for irregular entry once the Title 42 
public health Order is no longer in place--will undermine their 
success.\372\
---------------------------------------------------------------------------

    \372\ See, e.g., Alfredo Corchado, Ahead of Title 42's end, 
U.S.-Mexico Negotiations called `intense,' `round-the-clock,' Dallas 
Morning News, Dec. 13, 2022, https://www.dallasnews.com/news/2022/12/13/ahead-of-title-42s-end-us-mexico-negotations-called-intense-round-the-clock/.
---------------------------------------------------------------------------

    Implementation of this rule will therefore advance top foreign 
policy priorities of the United States, by responding to the 
aforementioned discussions with and feedback from foreign partners and 
demonstrating U.S. partnership and commitment to the shared goals of 
stabilizing migratory populations and addressing migration collectively 
as a region, both of which are essential to maintaining strong 
bilateral and multilateral relationships.\373\ As noted earlier in this 
preamble and in the proposed rule, recent surges in irregular 
migration, including overland migration through the Dari[eacute]n Gap, 
have affected a range of regional neighbors, including Mexico, 
Colombia, Costa Rica, Peru, Ecuador, and Panama. See, e.g., 88 FR 
11710-11. A further spike in migration following the lifting of the 
Title 42 public health Order risks severely straining relations with 
the countries in the region, as each would be compelled to turn away 
from more sustainable policy goals, and employ its limited resources to 
address the humanitarian needs of a significant influx of irregular 
migrants.
---------------------------------------------------------------------------

    \373\ See L.A. Declaration Fact Sheet.
---------------------------------------------------------------------------

    Further, as described above, the United States faces constraints in 
removing nationals of certain countries--including Venezuela, 
Nicaragua, Cuba, and Haiti--to their home countries. With limited 
exceptions, such nationals can only be removed to a third country as a 
result. International partners have conveyed that their willingness to 
receive increased returns of migrants was contingent on expanding the 
model provided by the Venezuela process, which decreased irregular 
migration throughout the hemisphere by

[[Page 31445]]

increasing options for lawful pathways and adding consequences for 
noncitizens who bypass those opportunities to travel irregularly to the 
United States.\374\
---------------------------------------------------------------------------

    \374\ See The White House, Mexico and United States Strengthen 
Joint Humanitarian Plan on Migration (May 2, 2023) (committing to 
increase joint actions to counter human smugglers and traffickers, 
address root causes of migration, and continue to combine expanded 
lawful pathways with consequences for irregular migration).
---------------------------------------------------------------------------

    In short, delaying issuance and implementation of this rule, 
including for purposes of incorporating a 30-day delayed effective 
date, would be inconsistent with the foreign policy imperative to act 
now. Such delay would not only forfeit an opportunity to fortify 
bilateral relationships, but would fail to address, and potentially 
exacerbate, DHS's projections of a surge in migration across the region 
following the lifting of the Title 42 public health Order. From a U.S. 
foreign policy perspective, such outcomes would have undesirable 
international consequences.
    The Departments' invocation of the foreign affairs exemption here 
is consistent with recent precedent. For example, in 2017, DHS 
published a notice eliminating an exception to expedited removal for 
certain Cuban nationals, which explained that the change in policy was 
consistent with the foreign affairs exemption because the change was 
central to ongoing negotiations between the two countries.\375\ DHS 
similarly invoked the foreign affairs exemption more recently, in 
connection with the CHNV parole processes.\376\
---------------------------------------------------------------------------

    \375\ See DHS, Eliminating Exception To Expedited Removal 
Authority for Cuban Nationals Encountered in the United States or 
Arriving by Sea, 82 FR 4902 (Jan. 17, 2017).
    \376\ See 88 FR 1266 (Jan. 9, 2023); 88 FR 1243 (Jan. 9, 2023); 
88 FR 1255 (Jan. 9, 2023); DHS, Implementation of Changes to the 
Parole Process for Venezuelans, 188 FR 1282 (Jan. 9, 2023); 87 FR 
63507 (Oct. 19, 2022).
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2. Good Cause
    This rule is also exempt from the APA's delayed-effective-date 
requirement because the Departments have for good cause found that a 
delay associated with that requirement would be impracticable and 
contrary to the public interest.\377\ The Title 42 public health Order 
is ending due to developments over which the Departments do not 
exercise any direct control. It would be impossible to incorporate a 
30-day delayed effective date and issue a rule prior to the expiration 
of the Title 42 public health Order in that abbreviated time frame. As 
described above, such a delay would greatly exacerbate an urgent border 
and national security challenge that DHS has already taken multiple 
additional measures to address, and would miss a critical opportunity 
to reduce and divert the additional flow of irregular migration that is 
expected following lifting of the Title 42 public health Order.\378\
---------------------------------------------------------------------------

    \377\ 5 U.S.C. 553(d)(3). Although the Departments have 
voluntarily complied with the APA's notice and comment requirements, 
this rule is exempt from such requirements pursuant to the good 
cause exception at 5 U.S.C. 553(b)(B) as well, for reasons that are 
described in this section.
    \378\ The good cause exception to the 30-day effective date 
requirement is easier to meet than the good cause exception for 
forgoing notice and comment rulemaking. See Riverbend Farms, Inc. v. 
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992) (noting ``good cause 
[is] more easily found as to [the] 30-day waiting period'' than the 
exception to notice and comment procedures)); Am. Fed'n of Gov't 
Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); U.S. 
Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An agency 
can show good cause for eliminating the 30-day delayed effective 
date when it demonstrates either urgent conditions the rule seeks to 
correct or unavoidable time limitations. U.S. Steel Corp., 605 F.2d 
at 290; United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 
1977).
---------------------------------------------------------------------------

    First, a 30-day delay of the effective date would be impracticable 
and contrary to the public interest because it would likely result in a 
significant further increase in irregular migration. As noted above, in 
recent years, the Departments, in coordination with other Executive 
Branch agencies and regional neighbors, have undertaken numerous 
measures to address such increases, which have been implemented via 
rulemakings,\379\ voluntary processes paired with incentives against 
irregular migration,\380\ and a wide range of significant resource 
surges and operational changes. A significant further increase in 
irregular migration, exacerbated by an influx of migrants from 
countries such as Venezuela, Nicaragua, and Cuba, with limited removal 
options, and coupled with DHS's limited options for processing, 
detaining, or quickly removing such migrants, would unduly impede DHS's 
ability to fulfill its critical and varied missions.
---------------------------------------------------------------------------

    \379\ See, e.g., 87 FR 18078 (Mar. 29, 2022) (amending 
regulations to allow U.S. immigration officials to more promptly 
consider the asylum claims of individuals encountered at or near the 
SWB while ensuring the fundamental fairness of the asylum process); 
87 FR 30334 (May 18, 2022) (authorizing an additional 35,000 
supplemental H-2B visas for the second half of FY 2022, of which 
11,500 were reserved for nationals of Central American countries and 
Haiti); 87 FR 4722 (Jan. 28, 2022) (authorizing an additional 20,000 
H-2B visas for FY 2022, of which 6,500 were reserved for nationals 
of Central American countries, with the addition of Haiti); 87 FR 
76818 (Dec. 15, 2022) (authorizing nearly 65,000 additional visas, 
of which 20,000 are reserved for nationals of Central American 
countries and Haiti).
    \380\ See, e.g., DHS, Implementation of a Parole Process for 
Venezuelans, 87 FR 63507 (Oct. 19, 2022) (parole process for certain 
Venezuelan nationals and their immediate family members); DHS, 
Implementation of the Uniting for Ukraine Parole Process, 87 FR 
25040 (Apr. 27, 2022) (parole process for certain Ukrainian 
nationals and their immediate family members).
---------------------------------------------------------------------------

    Such challenges were evident in the days following the November 15, 
2022, court decision vacating the Title 42 public health Order.\381\ 
Within two days of the court's decision, total encounters at the SWB 
reached 9,583 in a single day on November 17, 2022, a 17 percent 
increase from the day before.\382\ The baseline number of encounters 
decreased in March 2023, from April 2022, and also consisted of a much 
lower share of nationals from countries that have stopped or limited 
returns of their own nationals.\383\ A delayed effective date could 
result in a substantial increase in irregular migration across multiple 
national borders, including our own.\384\ As detailed above, these 
levels of irregular migration risk overwhelming DHS's ability to 
effectively process, detain, and remove, as appropriate, the migrants 
encountered. This, in turn, would result in potentially dangerous 
overcrowding at CBP facilities. The attendant risks to public safety, 
health, and welfare provide good cause to issue this rule without 
delay.\385\
---------------------------------------------------------------------------

    \381\ See Huisha-Huisha v. Mayorkas, --- F. Supp. 3d ----, 2022 
WL 16948610 (D.D.C. Nov. 15, 2022).
    \382\ OIS analysis of Persist Dataset based on data through 
March 31, 2023.
    \383\ Id.
    \384\ DHS SWB Encounter Planning Model generated April 18, 2023.
    \385\ See, e.g., Hawaii Helicopter Operators Ass'n v. FAA, 51 
F.3d 212, 214 (9th Cir. 1995) (concluding agency's ``concern about 
the threat to public safety'' justified notice and comment waiver).
---------------------------------------------------------------------------

    The Departments expect that this effect would be particularly 
pronounced if noncitizens know that there is a specific 30-day period 
between the termination of the Title 42 public health Order and the 
effective date of this rule. That gap would incentivize even more 
irregular migration by those seeking to enter the United States before 
the process would take effect. It has long been recognized that 
agencies may use the good cause exception where significant public harm 
would result from using standard APA procedures.\386\

[[Page 31446]]

If, for example, advance notice of a coming price increase would 
immediately produce market dislocations and lead to serious shortages, 
advance notice (and comment) need not be given.\387\ A number of cases 
follow this logic in the context of economic regulation.\388\
---------------------------------------------------------------------------

    \386\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94-95 
(D.C. Cir. 2012) (noting that the ``good cause'' exception ``is 
appropriately invoked when the timing and disclosure requirements of 
the usual procedures would defeat the purpose of the proposal--if, 
for example, announcement of a proposed rule would enable the sort 
of financial manipulation the rule sought to prevent [or] in order 
to prevent the amended rule from being evaded'' (cleaned up)); 
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. 
App. 1975) (``[W]e are satisfied that there was in fact `good cause' 
to find that advance notice of the freeze was `impracticable, 
unnecessary, or contrary to the public interest' within the meaning 
of Sec.  553(b)(B). . . . Had advance notice issued, it is apparent 
that there would have ensued a massive rush to raise prices and 
conduct `actual transactions'--or avoid them--before the freeze 
deadline.'' (cleaned up)).
    \387\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp. 
Emer. Ct. App. 1975) (``[W]e think good cause was present in this 
case based upon [the agency's] concern that the announcement of a 
price increase at a future date could have resulted in producers 
withholding crude oil from the market until such time as they could 
take advantage of the price increase.'').
    \388\ See, e.g., Chamber of Commerce of U.S. v. SEC., 443 F.3d 
890, 908 (D.C. Cir. 2006) (``The [`good cause'] exception excuses 
notice and comment in emergency situations, where delay could result 
in serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)); Mobil 
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. 
App. 1983) (``On a number of occasions . . . this court has held 
that, in special circumstances, good cause can exist when the very 
announcement of a proposed rule itself can be expected to 
precipitate activity by affected parties that would harm the public 
welfare.'').
---------------------------------------------------------------------------

    The same logic applies here, where the Departments are responding 
to exceedingly serious challenges at the border, and a gap between the 
termination of the Title 42 public health Order and the implementation 
of this rule would significantly increase the incentive, on the part of 
migrants and others (such as smugglers), to engage in actions that 
would compound those very challenges. The Departments' experience has 
been that in some circumstances when public announcements have been 
made regarding changes in our immigration laws and procedures that 
would restrict access to immigration benefits to those attempting to 
enter the United States along the U.S.-Mexico land border, there have 
been dramatic increases in the numbers of noncitizens who enter or 
attempt to enter the United States. Smugglers routinely prey on 
migrants using perceived changes in domestic immigration law.\389\ And 
those sudden influxes overload scarce government resources dedicated to 
border security.\390\
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    \389\ See Nick Miroff and Carolyn Van Houten, The Border is 
Tougher to Cross Than Ever. But There's Still One Way into America, 
Wash. Post (Oct. 24, 2018); See Tech Transparency Project, Inside 
the World of Misinformation Targeting Migrants on Social Media (July 
26, 2022), https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of 
social media groups and pages identified by migrants showed . . . 
dubious offers of coyote or legal services, false claims about 
conditions along the route, misinformation about points of entry at 
which officials waive the rules, and baseless rumors about changes 
to immigration law.'').
    \390\ Declaration of Enrique Lucero ]] 6-8, Dkt. 95-3, 
Innovation Law Lab v. Wolf, No. 19-15716 (9th Cir. Mar. 3, 2020); 
Declaration of Robert E. Perez, ] 15, Dkt. 95-2, Innovation Law Lab, 
No. 19-15716.
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    For instance, on February 28, 2020, the Ninth Circuit lifted a stay 
of a nationwide injunction of MPP, a program implementing the 
Secretary's contiguous return authority under 8 U.S.C. 
1225(b)(2)(C).\391\ Almost immediately, hundreds of migrants began 
massing at POEs across the SWB attempting to immediately enter the 
United States, creating a severe safety hazard that forced CBP to 
temporarily close POEs in whole or in part.\392\ Many others requested 
immediate entry into the country through their counsel, while others 
overwhelmed Border Patrol agents by attempting to illegally cross the 
SWB, with only some being apprehended successfully.\393\ Absent the 
immediate and resource-intensive action taken by CBP, the number of 
migrants gathered at the border, whether at or between the POEs, could 
have increased dramatically, especially considering there were 
approximately 25,000 noncitizens who were in removal proceedings 
pursuant to MPP without scheduled court appearances, as well as others 
in Mexico that could have become aware of CBP's operational limitations 
and sought to exploit them.\394\ And while CBP officers took action to 
resolve the sudden influx of migrants at multiple ports and prevent 
further deterioration of the situation at the border, they were 
diverted away from other critical missions, including detecting and 
confiscating illicit materials, and guarding efficient trade and 
travel.\395\
---------------------------------------------------------------------------

    \391\ See Innovation Law Lab v. Wolf, 951 F.3d 1073, 1095 (9th 
Cir. 2020), vacated as moot sub nom. Innovation Law Lab v. Mayorkas, 
5 F.4th 1099 (9th Cir. 2021).
    \392\ See Declaration of Robert E. Perez, ]] 4-15, Dkt. 95-2, 
Innovation Law Lab, No. 19-15716.
    \393\ Id. ]] 4, 8.
    \394\ Id. ] 14.
    \395\ Id. ] 15.
---------------------------------------------------------------------------

    By contrast, as detailed above, immediate implementation of the 
parole process for Venezuelans was associated with a drastic reduction 
in irregular migration by Venezuelans. Had the parole process, and the 
consequence that accompanied it (i.e., the return to Mexico of 
Venezuelan nationals encountered irregularly entering the United States 
without authorization between POEs) been announced weeks prior to its 
implementation, it likely would have had the opposite effect, resulting 
in many hundreds and thousands of Venezuelan nationals attempting to 
cross the border between the POEs before the process went into effect. 
See 87 FR at 63516.
    The Departments' determination here is consistent with past 
practice. For example, in addition to the parole process for 
Venezuelans described above, DHS concluded in January 2017 that it was 
imperative to give immediate effect to a rule designating Cuban 
nationals arriving by air as eligible for expedited removal because 
``[p]re-promulgation notice and comment would . . . endanger[ ] human 
life and hav[e] a potential destabilizing effect in the region.'' \396\ 
DHS cited the prospect that ``publication of the rule as a proposed 
rule, which would signal a significant change in policy while 
permitting continuation of the exception for Cuban nationals, could 
lead to a surge in migration of Cuban nationals seeking to travel to 
and enter the United States during the period between the publication 
of a proposed and a final rule.'' \397\ DHS found that ``[s]uch a surge 
would threaten national security and public safety by diverting 
valuable Government resources from counterterrorism and homeland 
security responsibilities. A surge could also have a destabilizing 
effect on the region, thus weakening the security of the United States 
and threatening its international relations.'' \398\ DHS concluded that 
``a surge could result in significant loss of human life.'' \399\ Here, 
the Departments announced the proposed rule while a prior restrictive 
policy remained in place, but given the impending termination of the 
Title 42 public health Order, there is insufficient time for a delayed 
effective date.
---------------------------------------------------------------------------

    \396\ DHS, Eliminating Exception to Expedited Removal Authority 
for Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 
2017).
    \397\ Id.
    \398\ Id.
    \399\ Id.; accord, e.g., Department of State, Visas: 
Documentation of Nonimmigrants Under the Immigration and Nationality 
Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (finding the good 
cause exception applicable because of similar short-run incentive 
concerns).
---------------------------------------------------------------------------

    Second, a delayed effective date is contrary to the public interest 
given that the anticipated termination of the Title 42 public health 
Order has drastically altered the framework governing processing of 
migrants. Courts find good cause satisfied where the immediate issuance 
of a rule is necessary to prevent public harm where a previously 
existing regulatory structure has been set aside by the courts.\400\ A 
similar

[[Page 31447]]

circumstance exists here: the Title 42 public health Order is ending 
based on factual developments, and the Departments do not control 
either those factual developments or the decision to recognize those 
factual developments by terminating the public health Order. Until May 
11, 2023, the Title 42 public health Order requires DHS to expel 
hundreds of thousands of migrants without processing them under Title 
8. Once the Title 42 public health Order is lifted, however, the 
Government must pivot, quickly, to process all migrants under its Title 
8 authorities, at a time when the number of migrants seeking to cross 
the SWB without lawful authorization to do so is expected to surge 
significantly. The Departments therefore find good cause to forgo a 
delayed effective date in order to prevent the adverse consequences 
resulting from the termination of the Title 42 public health Order.
---------------------------------------------------------------------------

    \400\ See, e.g., United States v. Dean, 604 F.3d 1275, 1277-80 
(11th Cir. 2010); Mid-Tex Elec. Coop., Inc. v. FERC, 822 F.2d 1123, 
1124 (D.C. Cir. 1987), Nat'l Fed'n of Fed. Emps. v. Devine, 671 F.2d 
607, 608 (D.C. Cir. 1982), Block, 655 F.2d at 1154; Bayou Lawn & 
Landscape Servs. v. Johnson, 173 F. Supp. 3d 1271, 1284 (N.D. Fla. 
2016) (collecting cases).
---------------------------------------------------------------------------

    The Departments reiterate that they have only invoked the foreign 
affairs and good cause exceptions for the delayed-effective-date 
requirement. The Departments have solicited public comments and have 
given careful attention to comments that were received during the 
comment period, as reflected in Section III of this preamble.

B. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 14094 (Modernizing Regulatory Review)

    Executive Order 12866, Executive Order 13563, and Executive Order 
14094, Modernizing Regulatory Review, 88 FR 21879 (Apr. 6, 2023) direct 
agencies to assess the costs, benefits, and transfers of available 
alternatives, and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits, including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    The Office of Information and Regulatory Affairs of OMB reviewed 
the rule as a significant regulatory action under section 3(f)(4) of 
Executive Order 12866, as amended.
    The expected effects of this rule are discussed above. The rule is 
expected to result in significantly reduced incentives for irregular 
migration and illegal smuggling activity, and will help avert a 
significant further surge in irregular migration after the Title 42 
public health Order is lifted. The rule will likely decrease the number 
of asylum grants and likely reduce the amount of time that noncitizens 
who are ineligible for asylum and who lack a reasonable fear of 
persecution or torture would be present in the United States. 
Noncitizens who establish a reasonable fear of persecution or torture 
would still be able to seek protection in proceedings before IJs.
    The benefits of the rule are expected to include large-scale 
reductions in strains on limited national resources; preservation of 
the Departments' continued ability to safely, humanely, and effectively 
enforce and administer the immigration laws; a reduction in the role of 
exploitative transnational criminal organizations and smugglers; and 
improved relationships with, and enhanced opportunities to coordinate 
with and benefit from the migration policies of, regional neighbors. 
Some of these benefits accrue to migrants who wish to pursue safe, 
orderly, lawful pathways and processes, such as the ability to schedule 
a time to apply for admission at a POE. These migrants' ability to 
present their claims might otherwise be hampered by the severe strain 
that a further surge in irregular migration would impose on the 
Departments.
    The direct costs of the rule are borne by migrants and the 
Departments. To the extent that any migrants are made ineligible for 
asylum under the presumptive condition established by the rule but 
would have received asylum in the absence of this rule, such an outcome 
would entail the denial of asylum and its attendant benefits, although 
such persons may continue to be eligible for statutory withholding of 
removal and withholding under the CAT. Unlike asylees, noncitizens 
granted these more limited forms of protection do not have a path to 
citizenship and cannot petition for certain family members to join them 
in the United States.\401\ Such migrants may also be required to apply 
for work authorization more frequently than an asylee would. Migrants 
who choose to wait in Mexico for a CBP One appointment, rather than 
migrating irregularly across the southwest land border or adjacent 
coastal borders, also may incur some costs that are discussed earlier 
in this preamble, including potential safety risks for some migrants. 
The Departments note, in this regard, that noncitizens who establish 
``exceptionally compelling circumstances,'' including an imminent and 
extreme threat to life or safety or an acute medical emergency, can 
rebut the presumption against asylum eligibility. 8 CFR 
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Departments further note 
that there are also potential benefits for migrants who choose to wait 
in Mexico for a CBP One appointment (for instance, avoiding a dangerous 
cross-border journey and interactions with smugglers).
---------------------------------------------------------------------------

    \401\ As discussed previously in Section IV.E.7.ii of this 
preamble, the rule includes a specific provision to ensure that 
applicants who in section 240 removal proceedings who have a spouse 
or child who would be eligible to follow to join them under section 
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A), will be able to rebut the 
presumption if the presumption is the only reason for denying their 
asylum application.
---------------------------------------------------------------------------

    The rule will also require additional time for AOs and IJs, during 
fear screenings and reviews, respectively, to inquire into the 
applicability of the presumption and whether the presumption has been 
rebutted. Similarly, the rule will require additional time for IJs 
during section 240 removal proceedings. However, as discussed 
throughout this preamble, the rule is expected to result in 
significantly reduced irregular migration. Accordingly, the Departments 
expect the additional time spent by AOs and IJs on the rebuttable 
presumption to be mitigated by a comparatively smaller number of 
credible fear cases than AOs and IJs would otherwise have been required 
to handle in the absence of the rule.
    Other entities, such as legal service organizations and private 
attorneys, will also incur some indirect costs as a result of the rule, 
such as familiarization costs and costs associated with assisting 
noncitizens who may be subject to the rule. There are other potential 
downstream effects of the rule, including effects on NGOs and state and 
local entities that interact with noncitizens, such as by providing 
services to such persons or receiving tax revenues from them. The 
nature and scale of such effects will vary by entity and should be 
considered relative to the baseline condition that would exist in the 
absence of this rule. As compared to the baseline condition, this rule 
is expected to reduce irregular migration.
    The lawful, safe, and orderly pathways described earlier in this 
preamble are authorized separately from this rule but are expected to 
yield significant benefits for noncitizens who might otherwise seek to 
migrate irregularly to the United States. For instance, the ability to 
schedule a time to arrive to apply for admission at POEs

[[Page 31448]]

is expected to significantly improve CBP's ability to process 
noncitizens at POEs, and available parole processes allow prospective 
irregular migrants to avoid a dangerous and expensive overland journey 
in favor of an arrival by air to the United States. To the extent that 
such pathways and this rule result in a substantial reduction in 
irregular migration, the benefits of such pathways may also accrue to 
the various entities that incur costs as a consequence of irregular 
migration.

C. Regulatory Flexibility Act

    The RFA requires Federal agencies to consider the potential impact 
of regulations on small entities during the development of their rules. 
See 5 U.S.C. 601 et seq. ``Small entities'' are small businesses, not-
for-profit organizations that are not dominant in their fields, and 
governmental jurisdictions with populations of less than 50,000. Id. 
601(6). This rule does not directly regulate small entities and is not 
expected to have a direct effect on small entities. Rather, the rule 
regulates individuals, and individuals are not defined as ``small 
entities'' by the RFA. Id. While some employers could experience costs 
or transfer effects, these impacts would be indirect. In the proposed 
rule, the Departments certified that the proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
The Departments nonetheless welcomed comments regarding potential 
impacts on small entities. The Departments discuss comments from small 
entities earlier in the preamble, including in connection with the RFA. 
No such comments identified small entities that are subject to the rule 
within the meaning of the RFA. Accordingly, and for the same reasons 
stated in the proposed rule, the Departments certify that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

D. Unfunded Mandates Reform Act of 1995

    UMRA is intended, among other things, to curb the practice of 
imposing unfunded Federal mandates on State, local, and Tribal 
governments. Title II of UMRA requires each Federal agency to prepare a 
written statement assessing the effects of any Federal mandate in a 
proposed or final agency rule that may directly result in a $100 
million or more expenditure (adjusted annually for inflation) in any 
one year by State, local, and Tribal governments, in the aggregate, or 
by the private sector. 2 U.S.C. 1532(a). The inflation-adjusted value 
of $100 million in 1995 was approximately $177.8 million in 2021 based 
on the Consumer Price Index for All Urban Consumers (CPI-U).\402\
---------------------------------------------------------------------------

    \402\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items by Month (Dec. 
2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf.
---------------------------------------------------------------------------

    The term ``Federal mandate'' means a Federal intergovernmental 
mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1), 
658(6). A ``Federal intergovernmental mandate'' in turn is a provision 
that would impose an enforceable duty upon State, local, or Tribal 
governments (except as a condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program). See id. 
658(5). And the term ``Federal private sector mandate'' refers to a 
provision that would impose an enforceable duty upon the private sector 
(except as a condition of Federal assistance or a duty arising from 
participation in a voluntary Federal program). See id. 658(7).
    This rule does not contain a Federal mandate, because it does not 
impose any enforceable duty upon any other level of government or 
private sector entity. Any downstream effects on such entities would 
arise solely due to the entity's voluntary choices, and the voluntary 
choices of others, and would not be a consequence of an enforceable 
duty imposed by this proposed rule. Similarly, any costs or transfer 
effects on State and local governments would not result from a Federal 
mandate as that term is defined under UMRA. The requirements of title 
II of UMRA, therefore, do not apply, and the Departments have not 
prepared a statement under UMRA.

E. Congressional Review Act

    OMB has determined that this rule is not a major rule as defined by 
section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
The rule will be submitted to Congress and GAO consistent with the 
Congressional Review Act's requirements no later than its effective 
date.

F. Executive Order 13132 (Federalism)

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

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 
(Feb. 5, 1996).

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, enacted as part of the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999. The Departments 
have reviewed the criteria specified in section 654(c)(1), by 
evaluating whether this regulatory action (1) impacts the stability or 
safety of the family, particularly in terms of marital commitment; (2) 
impacts the authority of parents in the education, nurture, and 
supervision of their children; (3) helps the family perform its 
functions; (4) affects disposable income or poverty of families and 
children; (5) only financially impacts families, if at all, to the 
extent such impacts are justified; (6) may be carried out by State or 
local governments or by the family; or (7) establishes a policy 
concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If the agency 
determines a regulation may negatively affect family well-being, then 
the agency must provide an adequate rationale for its implementation.
    The Departments have determined that the implementation of this 
rule will not impose a negative impact on family well-being or the 
autonomy or integrity of the family as an institution. Under the rule, 
adjudicators would consider the circumstances of family members 
traveling together when determining whether noncitizens are not subject 
to the presumption in Sec. Sec.  208.33(a)(1) and 1208.33(a). The 
presumption will not apply to a noncitizen if the noncitizen or a 
member of the noncitizen's family who is traveling with the noncitizen 
establishes one of the conditions in Sec.  208.33(a)(1)(i) through 
(iii). Similarly, the presumption in paragraph (a)(1) of those sections 
would be rebutted if the noncitizen demonstrates that, at the

[[Page 31449]]

time of entry, the noncitizen or a member of the noncitizen's family 
who is traveling with the noncitizen was subject to one of the 
circumstances enumerated in paragraph (a)(3).
    Additionally, to protect against family separation, the Departments 
have determined that a principal applicant establishes an exceptionally 
compelling circumstance that rebuts the presumption of ineligibility 
for asylum where the principal asylum applicant is eligible for 
statutory withholding of removal or CAT withholding and would be 
granted asylum but for the lawful pathways rebuttable presumption, and 
where denial of asylum on that ground alone would lead to the 
applicant's family being or remaining separated because an accompanying 
spouse or child would not qualify for asylum or other protection from 
removal on their own, or the principal asylum applicant has a spouse or 
child who would be eligible to follow to join that applicant if the 
applicant were not subject to the presumption. See E.O. 14011, 
Establishment of Interagency Task Force on the Reunification of 
Families, 86 FR 8273, 8273 (Feb. 5, 2021) (``It is the policy of my 
Administration to respect and value the integrity of families seeking 
to enter the United States.'').

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

    This rule does not have ``tribal implications'' because it does not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. E.O. 13175, Consultation and Coordination 
With Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000). 
Accordingly, Executive Order 13175 requires no further agency action or 
analysis.

J. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
the Departments must submit to OMB, for review and approval, any 
collection of information contained in a rule, unless otherwise exempt. 
See Public Law 104-13, 109 Stat. 163 (May 22, 1995). The proposed rule 
proposed a revision to a collection of information under OMB Control 
Number 1651-0140, Collection of Advance Information from Certain 
Undocumented Individuals on the Land Border. Comments pertinent to the 
collection of information are discussed earlier in this preamble.
    As discussed in Section IV.E.3.ii.b of this preamble, CBP will 
transition CBP One scheduling to a daily appointment allocation process 
to allow noncitizens additional time to complete the process. CBP has 
revised the burden estimate for this collection consistent with this 
change. CBP continues to make improvements to the app based on 
stakeholder feedback.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Collection of Advance Information 
from Certain Undocumented Individuals on the Land Border.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: CBP.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
    Primary: Individual undocumented noncitizens. Under this 
collection, CBP collects certain biographic and biometric information 
from undocumented noncitizens prior to their arrival at a POE, to 
streamline their processing at the POE. The requested information is 
that which CBP would otherwise collect from these individuals during 
primary and/or secondary processing. This information is provided by 
undocumented noncitizens, directly or through NGOs and International 
Organizations. Providing this information reduces the amount of data 
entered by CBP officers and the corresponding time required to process 
an undocumented noncitizen.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: This 
information collection is divided into three parts. The estimated 
annual number of respondents for the registration in the CBP One app is 
500,000 and the estimated time burden per response is 12 minutes. The 
estimated annual number of respondents for the daily opt-in for 
appointments is 500,000 and the estimated time burden per response is 1 
minutes. The estimated annual number of respondents for the 
confirmation of appointment in the app is 456,250 and the estimated 
time burden per response is 3 minutes.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 372,813 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $7,605,385.

List of Subjects

8 CFR Part 208

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

8 CFR Part 1208

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

Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. Amend Sec.  208.13 by removing and reserving paragraphs (c)(3), (4), 
and (5); adding and reserving paragraph (e); and adding paragraph (f), 
to read as follows:


Sec.  208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (3)-(5) [Reserved]
* * * * *
    (e) [Reserved]
    (f) Lawful pathways condition. For applications filed by aliens who 
entered the United States between May 11, 2023, and May 11, 2025, also 
refer to the provisions on asylum eligibility described in Sec.  
208.33.


Sec.  208.30  [Amended]

0
3. Amend Sec.  208.30(e)(5) by:
0
a. Amending paragraph (e)(5)(i) by removing the phrase ``paragraphs 
(e)(5)(ii) through (iv), or'' from the first sentence;
0
b. Removing paragraphs (e)(5)(ii) and (iii); and
0
c. Redesignating paragraph (e)(5)(i) as (e)(5).

0
4. Add subpart C, consisting of Sec.  208.33, to read as follows:

[[Page 31450]]

Subpart C--Lawful Pathways and Asylum Eligibility for Certain 
Aliens Who Entered Between May 11, 2023, and May 11, 2025


Sec.  208.33  Lawful pathways condition on asylum eligibility.

    Notwithstanding any contrary section of this part, including 
Sec. Sec.  208.2, 208.13, and 208.30--
    (a) Condition on eligibility. (1) Applicability. A rebuttable 
presumption of ineligibility for asylum applies to an alien who enters 
the United States from Mexico at the southwest land border or adjacent 
coastal borders without documents sufficient for lawful admission as 
described in section 212(a)(7) of the Act and whose entry was:
    (i) Between May 11, 2023, and May 11, 2025,
    (ii) Subsequent to the end of implementation of the Title 42 public 
health Order issued on August 2, 2021, and related prior orders issued 
pursuant to the authorities in sections 362 and 365 of the Public 
Health Service Act (42 U.S.C. 265, 268) and the implementing regulation 
at 42 CFR 71.40, and
    (iii) After the alien traveled through a country other than the 
alien's country of citizenship, nationality, or, if stateless, last 
habitual residence, that is a party to the 1951 United Nations 
Convention relating to the Status of Refugees or the 1967 Protocol 
relating to the Status of Refugees.
    (2) Exceptions to applicability of the rebuttable presumption. The 
rebuttable presumption described in paragraph (a)(1) of this section 
does not apply if:
    (i) The alien was, at the time of entry, an unaccompanied alien 
child as defined in 6 U.S.C. 279(g)(2); or
    (ii) The alien, or a member of the alien's family as described in 
Sec.  208.30(c) with whom the alien is traveling:
    (A) Was provided appropriate authorization to travel to the United 
States to seek parole, pursuant to a DHS-approved parole process;
    (B) Presented at a port of entry, pursuant to a pre-scheduled time 
and place, or presented at a port of entry without a pre-scheduled time 
and place, if the alien demonstrates by a preponderance of the evidence 
that it was not possible to access or use the DHS scheduling system due 
to language barrier, illiteracy, significant technical failure, or 
other ongoing and serious obstacle; or
    (C) Sought asylum or other protection in a country through which 
the alien traveled and received a final decision denying that 
application. A final decision includes any denial by a foreign 
government of the applicant's claim for asylum or other protection 
through one or more of that government's pathways for that claim. A 
final decision does not include a determination by a foreign government 
that the alien abandoned the claim.
    (3) Rebuttal of the presumption. (i) An alien subject to the 
presumption described in paragraph (a)(1) of this section can rebut the 
presumption by demonstrating by a preponderance of the evidence that 
exceptionally compelling circumstances exist, including if the alien 
demonstrates that, at the time of entry, the alien or a member of the 
alien's family as described in Sec.  208.30(c) with whom the alien is 
traveling:
    (A) Faced an acute medical emergency;
    (B) Faced an imminent and extreme threat to life or safety, such as 
an imminent threat of rape, kidnapping, torture, or murder; or
    (C) Satisfied the definition of ``victim of a severe form of 
trafficking in persons'' provided in Sec.  214.11(a) of this chapter.
    (ii) An alien who demonstrates by a preponderance of the evidence 
any of the circumstances in paragraph (a)(3)(i) of this section shall 
necessarily rebut the presumption in paragraph (a)(1) of this section.
    (b) Application in credible fear determinations--(1) Initial 
determination. The asylum officer shall first determine whether the 
alien is covered by the presumption in paragraph (a)(1) of this section 
and, if so, whether the alien has rebutted the presumption in 
accordance with paragraph (a)(3) of this section.
    (i) If the alien is covered by the presumption in paragraph (a)(1) 
of this section and fails to rebut the presumption in accordance with 
paragraph (a)(3) of this section, then the asylum officer shall enter a 
negative credible fear determination with respect to the alien's asylum 
claim and continue to consider the alien's claim under paragraph (b)(2) 
of this section.
    (ii) If the alien is not covered by the presumption in paragraph 
(a)(1) of this section or has rebutted the presumption in accordance 
with paragraph (a)(3) of this section, the asylum officer shall follow 
the procedures in Sec.  208.30.
    (2) Additional procedures. (i) In cases in which the asylum officer 
enters a negative credible fear determination under paragraph (b)(1)(i) 
of this section, the asylum officer will assess whether the alien has 
established a reasonable possibility of persecution (meaning a 
reasonable possibility of being persecuted because of their race, 
religion, nationality, membership in a particular social group, or 
political opinion) or torture, with respect to the identified country 
or countries of removal identified pursuant to section 241(b) of the 
Act.
    (ii) In cases described in paragraph (b)(2)(i) of this section, if 
the alien establishes a reasonable possibility of persecution or 
torture with respect to the identified country or countries of removal, 
the Department will issue a Form I-862, Notice to Appear.
    (iii) In cases described in paragraph (b)(2)(i) of this section, if 
an alien fails to establish a reasonable possibility of persecution or 
torture with respect to the identified country or countries of removal, 
the asylum officer will provide the alien with a written notice of 
decision and inquire whether the alien wishes to have an immigration 
judge review the negative credible fear determinations.
    (iv) The alien must indicate whether he or she desires such review 
on a Record of Negative Fear Finding and Request for Review by 
Immigration Judge.
    (v) Only if the alien requests such review by so indicating on the 
Record of Negative Fear shall the asylum officer serve the alien with a 
Notice of Referral to Immigration Judge. The record of determination, 
including copies of the Notice of Referral to Immigration Judge, the 
asylum officer's notes, the summary of the material facts, and other 
materials upon which the determination was based shall be provided to 
the immigration judge with the negative determination. Immigration 
judges will evaluate the case as provided in 8 CFR 1208.33(b). The case 
shall then proceed as set forth in paragraphs (b)(2)(v)(A) through (C) 
of this section.
    (A) Where the immigration judge issues a positive credible fear 
determination under 8 CFR 1208.33(b)(2)(i), the case shall proceed 
under 8 CFR 1208.30(g)(2)(iv)(B).
    (B) Where the immigration judge issues a positive credible fear 
determination under 8 CFR 1208.33(b)(2)(ii), DHS shall issue a Form I-
862, Notice to Appear, to commence removal proceedings under section 
240 of the Act.
    (C) Where the immigration judge issues a negative credible fear 
determination, the case shall be returned to DHS for removal of the 
alien. No appeal shall lie from the immigration judge's decision and no 
request for reconsideration may be submitted to USCIS. Nevertheless, 
USCIS may, in its sole discretion, reconsider a negative determination.
    (c) Continuing applicability of condition on eligibility. (1) 
Subject to

[[Page 31451]]

paragraph (c)(2) of this section, the condition on asylum eligibility 
in paragraph (a)(1) of this section shall apply to any asylum 
application filed by an alien who entered the United States during the 
time and in the manner specified in paragraph (a)(1) of this section 
and who is not covered by an exception in paragraph (a)(2) of this 
section, regardless of when the application is filed and adjudicated.
    (2) The conditions on asylum eligibility in paragraph (a)(1) of 
this section shall not apply to an asylum application filed by an alien 
described in paragraph (c)(1) of this section if the asylum application 
is filed after May 11, 2025, the alien was under the age of 18 at the 
time of the entry referenced in paragraph (c)(1) of this section, and 
the alien is applying for asylum as a principal applicant.
    (d) Severability. The Department intends that any provision of this 
section held to be invalid or unenforceable by its terms, or as applied 
to any person or circumstance, should be construed so as to continue to 
give the maximum effect to the provision permitted by law, unless such 
holding is that the provision is wholly invalid and unenforceable, in 
which event the provision should be severed from the remainder of this 
section and the holding should not affect the remainder of this section 
or the application of the provision to persons not similarly situated 
or to dissimilar circumstances.

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in the preamble, the 
Attorney General amends 8 CFR parts 1003 and 1208 as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
5. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
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 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.


Sec.  1003.42  [Amended]

0
6. Amend Sec.  1003.42 by removing paragraphs (d)(2) and (3) and 
redesignating paragraph (d)(1) as paragraph (d).

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
7. The authority citation for part 1208 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; Pub. L. 115-218.


0
8. Amend Sec.  1208.13 by removing and reserving paragraphs (c)(3), 
(4), and (5), and by adding paragraph (f), to read as follows:


Sec.  1208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (3)-(5) [Reserved]
* * * * *
    (f) Lawful pathways condition. For applications filed by aliens who 
entered the United States between May 11, 2023, and May 11, 2025, also 
refer to the provisions on asylum eligibility described in Sec.  
1208.33.


Sec.  1208.30  [Amended]

0
9. Amend Sec.  1208.30 by removing and reserving paragraph (g)(1).

0
10. Add subpart C, consisting of Sec.  1208.33, to read as follows:

Subpart C--Lawful Pathways and Asylum Eligibility for Certain 
Aliens Who Entered Between May 11, 2023, and May 11, 2025


Sec.  1208.33  Lawful pathways condition on asylum eligibility.

    Notwithstanding any contrary section of this part, including 
Sec. Sec.  1208.2, 1208.13, and 1208.30--
    (a) Condition on eligibility. (1) Applicability. A rebuttable 
presumption of ineligibility for asylum applies to an alien who enters 
the United States from Mexico at the southwest land border or adjacent 
coastal borders without documents sufficient for lawful admission as 
described in section 212(a)(7) of the Act and whose entry was:
    (i) Between May 11, 2023, and May 11, 2025,
    (ii) Subsequent to the end of implementation of the Title 42 public 
health Order issued on August 2, 2021, and related prior orders issued 
pursuant to the authorities in sections 362 and 365 of the Public 
Health Service Act (42 U.S.C. 265, 268) and the implementing regulation 
at 42 CFR 71.40, and
    (iii) After the alien traveled through a country other than the 
alien's country of citizenship, nationality, or, if stateless, last 
habitual residence, that is a party to the 1951 United Nations 
Convention relating to the Status of Refugees or the 1967 Protocol 
relating to the Status of Refugees.
    (2) Exceptions to applicability of the rebuttable presumption. The 
rebuttable presumption described in paragraph (a)(1) of this section 
does not apply if:
    (i) The alien was, at the time of entry, an unaccompanied alien 
child as defined in 6 U.S.C. 279(g)(2); or
    (ii) The alien, or a member of the alien's family as described in 
Sec.  208.30(c) with whom the alien is traveling:
    (A) Was provided appropriate authorization to travel to the United 
States to seek parole, pursuant to a DHS-approved parole process;
    (B) Presented at a port of entry, pursuant to a pre-scheduled time 
and place, or presented at a port of entry without a pre-scheduled time 
and place, if the alien demonstrates by a preponderance of the evidence 
that it was not possible to access or use the DHS scheduling system due 
to language barrier, illiteracy, significant technical failure, or 
other ongoing and serious obstacle; or
    (C) Sought asylum or other protection in a country through which 
the alien traveled and received a final decision denying that 
application. A final decision includes any denial by a foreign 
government of the applicant's claim for asylum or other protection 
through one or more of that government's pathways for that claim. A 
final decision does not include a determination by a foreign government 
that the alien abandoned the claim.
    (3) Rebuttal of the presumption. (i) The presumption in paragraph 
(a)(1) of this section can be rebutted if an alien demonstrates by a 
preponderance of the evidence that exceptionally compelling 
circumstances exist, including if the alien demonstrates that, at the 
time of entry, the alien or a member of the alien's family as described 
in Sec.  208.30(c) with whom the alien is traveling:
    (A) Faced an acute medical emergency;
    (B) Faced an imminent and extreme threat to life or safety, such as 
an imminent threat of rape, kidnapping, torture, or murder; or
    (C) Satisfied the definition of ``victim of a severe form of 
trafficking in persons'' provided in 8 CFR 214.11(a).
    (ii) An alien who demonstrates by a preponderance of the evidence 
any of the circumstances in paragraph (a)(3)(i) of this section shall 
necessarily rebut the presumption in paragraph (a)(1) of this section.
    (b) Application in credible fear determinations. (1) Where an 
asylum officer has issued a negative credible fear determination 
pursuant to 8 CFR 208.33(b), and the alien has requested

[[Page 31452]]

immigration judge review of that credible fear determination, the 
immigration judge shall evaluate the case de novo, as specified in 
paragraph (b)(2) of this section. In doing so, the immigration judge 
shall take into account the credibility of the statements made by the 
alien in support of the alien's claim and such other facts as are known 
to the immigration judge.
    (2) The immigration judge shall first determine whether the alien 
is covered by the presumption at 8 CFR 208.33(a)(1) and 1208.33(a)(1) 
and, if so, whether the alien has rebutted the presumption in 
accordance with 8 CFR 208.33(a)(3) and 1208.33(a)(3).
    (i) Where the immigration judge determines that the alien is not 
covered by the presumption, or that the presumption has been rebutted, 
the immigration judge shall further determine, consistent with Sec.  
1208.30, whether the alien has established a significant possibility of 
eligibility for asylum under section 208 of the Act, withholding of 
removal under section 241(b)(3) of the Act, or withholding of removal 
under the Convention Against Torture. Where the immigration judge 
determines that the alien has established a significant possibility of 
eligibility for one of those forms of relief or protection, the 
immigration judge shall issue a positive credible fear finding. Where 
the immigration judge determines that the alien has not established a 
significant possibility of eligibility for any of those forms of relief 
or protection, the immigration judge shall issue a negative credible 
fear finding.
    (ii) Where the immigration judge determines that the alien is 
covered by the presumption and that the presumption has not been 
rebutted, the immigration judge shall further determine whether the 
alien has established a reasonable possibility of persecution (meaning 
a reasonable possibility of being persecuted because of their race, 
religion, nationality, political opinion, or membership in a particular 
social group) or torture. Where the immigration judge determines that 
the alien has established a reasonable possibility of persecution or 
torture, the immigration judge shall issue a positive credible fear 
finding. Where the immigration judge determines that the alien has not 
established a reasonable possibility of persecution or torture, the 
immigration judge shall issue a negative credible fear finding.
    (3) Following the immigration judge's determination, the case will 
proceed as indicated in 8 CFR 208.33(b)(2)(v)(A) through (C).
    (4) If, under 8 CFR 208.33(b)(2), DHS issues a Form I-862, Notice 
to Appear, to commence removal proceedings under section 240 of the 
Act, the alien may apply for asylum, withholding of removal under 
section 241(b)(3) of the Act, withholding of removal under the 
Convention Against Torture, or any other form of relief or protection 
for which the alien is eligible during those removal proceedings.
    (c) Family unity and removal proceedings. In removal proceedings 
under section 240 of the Act, where a principal asylum applicant is 
eligible for withholding of removal under section 241(b)(3) of the Act 
or withholding of removal under Sec.  1208.16(c)(2) and would be 
granted asylum but for the presumption in paragraph (a)(1) of this 
section, and where an accompanying spouse or child as defined in 
section 208(b)(3)(A) of the Act does not independently qualify for 
asylum or other protection from removal or the principal asylum 
applicant has a spouse or child who would be eligible to follow to join 
that applicant as described in section 208(b)(3)(A) of the Act, the 
presumption shall be deemed rebutted as an exceptionally compelling 
circumstance in accordance with paragraph (a)(3) of this section.
    (d) Continuing applicability of condition on eligibility. (1) 
Subject to paragraph (d)(2) of this section, the condition on asylum 
eligibility in paragraph (a)(1) of this section shall apply to any 
asylum application filed by an alien who entered the United States 
during the time and in the manner specified in paragraph (a)(1) of this 
section and who is not covered by an exception in paragraph (a)(2) of 
this section, regardless of when the application is filed and 
adjudicated.
    (2) The conditions on asylum eligibility in paragraph (a)(1) of 
this section shall not apply to an asylum application filed by an alien 
described in paragraph (d)(1) of this section if the asylum application 
is filed after May 11, 2025, the alien was under the age of 18 at the 
time of the entry referenced in paragraph (d)(1) of this section, and 
the alien is applying for asylum as a principal applicant.
    (e) Severability. The Department intends that any provision of this 
section held to be invalid or unenforceable by its terms, or as applied 
to any person or circumstance, should be construed so as to continue to 
give the maximum effect to the provision permitted by law, unless such 
holding is that the provision is wholly invalid and unenforceable, in 
which event the provision should be severed from the remainder of this 
section and the holding should not affect the remainder of this section 
or the application of the provision to persons not similarly situated 
or to dissimilar circumstances.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
    Dated: May 8, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023-10146 Filed 5-10-23; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P