[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Proposed Rules]
[Pages 41347-41361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10390]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 93 / Monday, May 13, 2024 / Proposed
Rules
[[Page 41347]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[DHS Docket No. USCIS-2024-0005]
RIN 1615-AC91
Application of Certain Mandatory Bars in Fear Screenings
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS'' or ``the Department'').
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: DHS proposes to allow asylum officers (``AOs'') to consider
the potential applicability of certain bars to asylum and statutory
withholding of removal during certain fear screenings. Specifically,
under this proposed rule, AOs would be authorized to consider certain
bars during credible and reasonable fear screenings, including credible
fear screenings where the Circumvention of Lawful Pathways (``CLP'')
rule applies. The proposed rule is intended to enhance operational
flexibility and help DHS more swiftly remove certain noncitizens who
are barred from asylum and statutory withholding of removal.
DATES: Written comments on the proposed rule must be submitted on or
before June 12, 2024. The electronic Federal Docket Management System
will accept comments prior to midnight eastern time at the end of that
day.
ADDRESSES: You may submit comments on the entirety of this proposed
rule package, identified by DHS Docket No. USCIS-2024-0005, through the
Federal eRulemaking Portal at https://www.regulations.gov. Follow the
website instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to the Department's officials, will
not be considered comments on the proposed rule and may not receive a
response from the Department. Please note that the Department cannot
accept any comments that are hand-delivered or couriered. In addition,
the Department cannot accept comments contained on any form of digital
media storage devices, such as CDs, DVDs, or USB drives. The Department
is not accepting mailed comments at this time. If you cannot submit
your comment by using https://www.regulations.gov, please contact
Samantha Deshommes, Chief, Regulatory Coordination Division, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, by telephone at (240) 721-3000 for
alternate instructions.
FOR FURTHER INFORMATION CONTACT: Daniel Delgado, Director for
Immigration Policy, Office of Strategy, Policy, and Plans, U.S.
Department of Homeland Security; telephone (202) 447-3459 (not a toll-
free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested parties are invited to submit comments on this action by
submitting relevant written data, views, or arguments. To provide the
most assistance to the Department, comments should reference a specific
portion of the proposed rule; explain the reason for any
recommendation; and include data, information, or authority that
supports the recommended course of action. Comments submitted to DHS
must be 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 Department's officials, will not be
considered comments on the proposed rule and may not receive a response
from the Department.
Instructions: If you submit a comment, you must include the agency
name and the DHS Docket No. USCIS-2024-0005 for this rulemaking. All
submissions will 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 public comment submission you make
to the Department. The Department may withhold information provided in
comments from public viewing that they determine may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at https://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to https://www.regulations.gov, referencing
DHS Docket No. USCIS-2024-0005. You may also sign up for email alerts
on the online docket to be notified when comments are posted or when
the final rule is published.
II. Legal Authority and Background
A. Legal Authority
The Immigration and Nationality Act (``INA''), as amended by the
Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat.
2135, as amended, 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 the President or 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 to administer and enforce 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 (authorities of the Secretary), 271(a)(3)
(conferring authority on USCIS Director to establish ``policies for
performing [immigration adjudication] functions'').
Under the INA, DHS and the Department of Justice (``DOJ'') each
have authority over credible fear screenings. USCIS AOs are charged
with conducting initial credible fear screenings, INA 235(b)(1)(B), 8
U.S.C. 1225(b)(1)(B). The INA also provides the Secretary and Attorney
General authority to publish regulatory amendments governing their
respective roles regarding inspection and admission, detention and
removal, withholding of removal, and deferral of removal. See INA 235,
236, 241, 8 U.S.C. 1225, 1226, 1231.
The United States is a party to the 1967 Protocol Relating to the
Status of Refugees, January 31, 1967, 19 552U.S.T. 6223, 606 U.N.T.S.
268 (``Refugee Protocol''), which incorporates Articles 2 through 34 of
the 1951 Convention Relating to the Status
[[Page 41348]]
of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee
Convention''). Article 33 of the Refugee Convention generally prohibits
parties to the Convention from expelling or returning (``refouler'')
``a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or
political opinion.''
Congress implemented U.S. non-refoulement obligations under the
1967 Protocol in the Refugee Act of 1980, creating the precursor to
what is now known as statutory withholding of removal. The Supreme
Court has long recognized that the United States implements its
nonrefoulement obligations under Article 33 of the Refugee Convention
(via the Refugee Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which
provides that a noncitizen may not be removed to a country where their
life or freedom would be threatened because of one of the protected
grounds listed in Article 33 of the Refugee Convention. See INA
241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 1208.16; see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 429-30 (1987) (discussing the statutory
precursor to INA 241(b)(3), INA 243(h)); INS v. Stevic, 467 U.S. 407
(1984) (same). 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).
The Departments also have authority to implement U.S. obligations
under Article 3 of the 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) (``CAT''). The Foreign Affairs Reform and Restructuring
Act of 1998 (``FARRA'') provides the Secretary 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 their respective immigration regulations,
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).
B. The Asylum and Expedited Removal Process
1. Asylum and Related Protection
Asylum is a discretionary benefit that can be granted by the
Attorney General or the Secretary if a noncitizen establishes, among
other things, that they have experienced past persecution or have a
well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the
Attorney General and Secretary ``may'' grant asylum to refugees); INA
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining ``refugee'').
Noncitizens who are ineligible for a grant of asylum, or who are denied
asylum based on the Attorney General's or the Secretary's discretion,
nonetheless may qualify for other forms of protection. Specifically, an
applicant may also be eligible for statutory withholding of removal
under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3); see 8 CFR
1208.3(b), 1208.13(c)(1), or withholding or deferral of removal under
the regulations implementing U.S. obligations under Article 3 of the
CAT, 8 CFR 1208.3(b), 1208.13(c)(1); see also id. Sec. Sec.
1208.16(c), 1208.17.
Withholding and deferral of removal bar a noncitizen's removal to
any country where the noncitizen would be ``more likely than not'' to
face persecution or torture, meaning that the noncitizen would face a
clear probability that their life or freedom would be threatened on
account of a protected ground or a clear probability of torture. 8 CFR
1208.16(b)(2), (c)(2). Thus, if a noncitizen establishes that it is
more likely than not that the noncitizen's life or freedom would be
threatened on account of a protected ground, but is denied asylum for
some other reason--for instance, because of a statutory exception, an
eligibility bar adopted by regulation, or a discretionary denial of
asylum--the noncitizen nonetheless may be entitled to statutory
withholding of removal if not otherwise barred from that form of
protection. INA 241(b)(3)(A), (B), 8 U.S.C. 1231(b)(3)(A), (B); 8 CFR
208.16, 1208.16. Likewise, a noncitizen who establishes that they more
likely than not will face torture in the country of removal will
qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c),
1208.17(a).
The INA provides mandatory bars to applying for asylum at section
208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), to asylum eligibility at
section 208(b)(2)(A) of the INA, 8 U.S.C. 1158(b)(2)(A), and to
eligibility for withholding of removal at section 241(b)(3)(B) of the
INA, 8 U.S.C. 1231(b)(3)(B) (referred to collectively as ``mandatory
bars''). There are no bars to deferral of removal under the regulations
implementing U.S. obligations under Article 3 of the CAT. Several of
these mandatory bars seek to protect the public from individuals who
are terrorists, have persecuted others, been convicted of significant
crimes, or represent a danger to the public.
Specifically, the following statutory bars to asylum eligibility
are codified at section 208(b)(2)(A)(i) through (v) of the INA, 8
U.S.C. 1158(b)(2)(A)(i) through (v), and to eligibility for withholding
of removal at section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B):
(1) those who ``ordered, incited, assisted, or otherwise participated
in the persecution of any person'' ``on account of'' or ``because of''
a protected ground, INA 208(b)(2)(A)(i), 241(b)(3)(B)(i), 8 U.S.C.
1158(b)(2)(A)(i), 1231(b)(2)(B)(i); (2) those convicted of a
``particularly serious crime,'' INA 208(b)(2)(A)(ii), 241(b)(3)(B)(ii),
8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(2)(B)(ii); (3) where ``there are
serious reasons to believe that the alien committed a serious
nonpolitical crime outside the United States,'' INA 208(b)(2)(A)(iii),
241(b)(3)(B)(iii), 8 U.S.C. 1158(b)(2)(A)(iii), 1231(b)(2)(B)(iii); (4)
where ``there are reasonable grounds to believe that the alien is a
danger to the security of the United States,'' INA 208(b)(2)(A)(iv),
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv), 1231(b)(2)(B)(iv); and
(5) those described in certain terrorism-related provisions, INA
208(b)(2)(A)(v), 241(b)(3)(B), 8 U.S.C. 1158(b)(2)(A)(v),
1231(b)(2)(B).
A sixth statutory bar to eligibility for asylum, which does not bar
eligibility for statutory withholding of removal, applies to any
noncitizen who ``was firmly resettled in another country prior to
arriving in the United States.'' INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi). And, additionally, there are statutory bars to
withholding of removal eligibility for admitted noncitizens who are
deportable under INA 237(a)(4)(D), 8 U.S.C. 1227(a)(4)(D), for
involvement in genocide, torture, extrajudicial killing, or Nazi
persecution as defined in INA 212(a)(3)(E)(i)-(iii), 8 U.S.C.
1182(a)(3)(E)(i)-(iii). See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).
[[Page 41349]]
2. Expedited Removal and the Credible Fear Screening Process
In the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546, Congress
established the expedited removal process. The process is applicable to
noncitizens arriving in the United States (and, in the discretion of
the Secretary, certain other designated classes of noncitizens) who are
found to be inadmissible under either section 212(a)(6)(C) of the INA,
8 U.S.C. 1182(a)(6)(C), regarding material misrepresentations, or
section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), regarding
documentation requirements for admission. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Under expedited removal, such noncitizens may be
``removed from the United States without further hearing or review
unless the [noncitizen] indicates either an intention to apply for
asylum under section 1158 of this title or a fear of persecution.'' \1\
Id.
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\1\ Unaccompanied children are not subject to expedited removal.
See 8 U.S.C. 1232(a)(5)(D); see also 6 U.S.C. 279(g)(2) (defining
``unaccompanied [ ] child'').
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The former Immigration and Naturalization Service, and later DHS,
implemented a screening process, known as the ``credible fear''
screening, to identify potentially valid claims for asylum, statutory
withholding of removal, and CAT protection. Any noncitizen who
indicates a fear of persecution or torture, a fear of return, or an
intention to apply for asylum during the course of the expedited
removal process is referred to a USCIS AO for an interview to determine
whether the noncitizen has a credible fear of persecution or torture in
the country of return. INA 235(b)(1)(A)(ii), (B), 8 U.S.C.
1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4), 1235.3(b)(4)(i). If
the AO determines that the noncitizen does not have a credible fear of
persecution or torture, the noncitizen may request that an immigration
judge review that determination. See INA 235(b)(1)(B)(iii)(III), 8
U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g).
Generally, if the AO determines that a noncitizen subject to
expedited removal has a credible fear of persecution or torture, DHS
may either retain jurisdiction over the noncitizen's application for
asylum pursuant to 8 CFR 208.2(a)(1)(ii) for further consideration in
an asylum merits interview (``AMI'') under 8 CFR 208.9, or refer the
noncitizen to an immigration court for adjudication of the noncitizen's
claims by initiating removal proceedings under section 240 of the INA,
8 U.S.C. 1229a (``section 240 removal proceedings''), through service
of a notice to appear on the noncitizen and filed with EOIR. 8 CFR
208.30(f). On the other hand, if an asylum officer finds that a
noncitizen does not have a credible fear, the asylum officer's
determination is subject to further review by an immigration judge, as
set forth in the governing regulations. See 8 CFR 208.30(g),
208.33(b)(2)(v); 1208.30(g)(2), 1208.33(b). Generally, if an
immigration judge, upon review of the AO's negative credible fear
determination, finds that the noncitizen possesses a credible fear of
persecution or torture, the immigration judge vacates the expedited
removal order and refers the case back to DHS for either an AMI or the
initiation of section 240 removal proceedings. See id.
1208.30(g)(2)(iv)(B).
``The term `credible fear of persecution' means that there is a
significant possibility, taking 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 officer, that the alien could establish
eligibility for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). Pursuant to the regulations at 208.30(e)(2), credible
fear of persecution in this process also encompasses whether there is a
significant possibility, taking into account the credibility of the
statements made by the noncitizen in support of the noncitizen's claim
and such other facts as are known to the officer, that the noncitizen
can establish eligibility for withholding of removal under section
241(b)(3) of the Act. 8 CFR 208.30(e)(2).\2\ In addition, under 8 CFR
208.30(e)(3), a credible fear of torture in this process means a
significant possibility that the noncitizen is eligible for withholding
of removal or deferral of removal under CAT. 8 CFR 208.30(e)(3). As
noted below, other regulations provide a different screening standard
to be used in certain contexts with respect to statutory withholding of
removal and CAT protection. See, e.g., 8 CFR 208.31, 208.33.
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\2\ The statute requires the ``significant possibility''
standard to be used to screen for asylum eligibility, INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), and the statute does not
refer to statutory withholding and CAT protection. Instead, a
screening standard for statutory withholding and CAT protection is
set forth in regulation.
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C. Reasonable Fear Screening Process
The INA also provides for additional streamlined removal
proceedings beyond expedited removal proceedings. First, DHS may
reinstate a prior removal order for any noncitizen who ``has reentered
the United States illegally after having been removed or having
departed voluntarily, under an order of removal.'' INA 241(a)(5), 8
U.S.C. 1231(a)(5); see 8 CFR 241.8. Second, DHS may issue an
administrative removal order for certain noncitizens who are not lawful
permanent residents and are deportable under INA 237(a)(2)(A)(iii), 8
U.S.C. 1227(a)(2)(A)(iii), for having been convicted of an aggravated
felony. INA 238(b), 8 U.S.C. 1228(b); see 8 CFR 238.1.
Although both streamlined proceedings preclude noncitizens from
seeking discretionary relief from removal, including asylum, see INA
238(b)(5), 241(a)(5), 8 U.S.C. 1228(b)(5), 1231(a)(5), DHS may not
remove a noncitizen to a country where they are more likely than not to
be persecuted or tortured. See INA 241(b)(3)(A), 8 U.S.C.
1231(b)(3)(A); 8 CFR 208.16(b)-(c), 208.31. Accordingly, if a
noncitizen ordered removed under either section 241(a)(5) or 238(b) of
the Act, 8 U.S.C. 1231(a)(5) or 1228(b), indicates a fear of return to
the country to which he or she has been ordered removed, DHS refers the
case to an AO for a determination of whether the individual has a
reasonable fear of persecution or torture. 8 CFR 208.31.
The AO will find that a noncitizen who ``establishes a reasonable
possibility that he or she would be persecuted on account of his or her
race, religion, nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she would be
tortured in the country of removal'' has a reasonable fear of
persecution or torture. 8 CFR 208.31(c). As with credible fear
interviews, the regulations currently direct that the AO does not
consider the statutory bars to withholding of removal as part of the
reasonable fear determination. Id. If the AO determines that the
noncitizen does not have a reasonable fear of persecution or torture,
the noncitizen may request that an immigration judge review that
determination. 8 CFR 208.31(g); 8 CFR 1208.31(e). If the AO finds a
reasonable fear, the AO refers the noncitizen to proceedings before an
immigration judge where the noncitizen may only seek withholding of
removal under the Act or withholding of removal and deferral of removal
under the Convention Against Torture. 8 CFR 208.31(e); see Johnson v.
Guzman Chavez, 141 S. Ct. 2271, 2282-83 (2021) (describing
``withholding only'' proceedings).
[[Page 41350]]
D. Past Regulatory Actions on This Topic
Historically, AOs have not considered the applicability of
mandatory bars to asylum or statutory withholding of removal when
determining whether a noncitizen could establish eligibility for asylum
or other forms of protection during the initial screening interview.
The former INS issued a rule in 2000 precluding--without explanation--
consideration of the asylum bars at the credible fear stage. See, e.g.,
Asylum Procedures, 65 FR 76121, 76129 (Dec. 6, 2000) (codifying the
statement in 8 CFR 208.30 that a noncitizen who appears to be subject
to one or more of the mandatory bars would nevertheless be referred to
section 240 removal proceedings for full consideration of their claim
and explaining that this change was done in response to comments
suggesting such a referral ``regardless of any apparent statutory
ineligibility under section 208(a)(2) or 208(b)(2)(A) of the Act'').
In 2020, DHS, jointly with the Department of Justice (``DOJ'')
(collectively, ``DHS and DOJ'' or ``the Departments''), amended the
regulations to instruct adjudicators to apply the mandatory bars during
credible fear interviews for the first time. Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR
80274, 80391, 80393, 80399 (Dec. 11, 2020) (``Global Asylum Rule'');
see also Procedures for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, 85 FR. 36264, 36272 (June 15, 2020)
(``Global Asylum NPRM''). The Departments explained that applying the
mandatory bars at the credible fear screening stage would eliminate
removal delays inherent in section 240 proceedings that serve no
purpose and eliminate wasted adjudicatory resources. 85 FR at 80295-96.
On January 8, 2021, before the rule became effective, the U.S. District
Court for the Northern District of California preliminarily enjoined
the Departments from implementing the Global Asylum Rule. Pangea Legal
Servs. v. DHS, 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021).\3\
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\3\ In Pangea Legal Servs., the U.S. District Court for the
Northern District of California preliminarily enjoined the
Departments from implementing the Global Asylum Rule in its entirety
nationwide before it became effective. 512 F. Supp. 3d at 977. The
court concluded that the plaintiffs were likely to succeed on the
merits of their claim that the Global Asylum Rule ``was done without
authority of law'' because the DHS official who approved it, then-
Acting Secretary Chad Wolf, was not properly designated as Acting
Secretary. Id. at 975. The court did not address any challenges to
the rule's substance.
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On December 23, 2020, DHS and DOJ jointly published a final rule
(``Security Bars'' or ``Asylum Eligibility and Public Health'' rule) to
clarify that the Departments may consider emergency public health
concerns based on communicable disease (not limited to COVID-19) when
determining whether an alien is subject to the existing statutory bars
to asylum and withholding of removal at INA 208(b)(2)(A)(iv) and
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv), for
noncitizens for whom ``there are reasonable grounds to believe'' that
they are ``a danger to the security of the United States'' (commonly
known as the ``security bar'').\4\ The rule was scheduled to take
effect on January 22, 2021, but its effective date has been delayed
multiple times, now until December 31, 2024.\5\
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\4\ Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020).
\5\ Id.; Security Bars and Processing; Delay of Effective Date,
87 FR 79989 (Dec. 28, 2022); see also Security Bars and Processing;
Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021); Security Bars
and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22,
2021); Security Bars and Processing; Delay of Effective Date, 86 FR
6847 (Jan. 25, 2021).
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The Security Bars rule would have made a noncitizen ineligible for
asylum if, among other things, the noncitizen was physically present in
a country in which a communicable disease was prevalent or epidemic,
and the Secretary of Homeland Security and the Attorney General
determined that the physical presence in the United States of
noncitizens coming from that country would cause a danger to the public
health.\6\ In the credible fear context, the rule would have applied
the security bar to asylum and withholding of removal to credible fear
screenings such that if the bar applied, the noncitizen would receive a
negative credible fear determination with respect to asylum and
withholding of removal and then be screened only for deferral of
removal according to whether there is a clear probability (more likely
than not standard) the noncitizen would experience torture in the
country of removal. The portion of the final Security Bars rule that
would have applied the security bar to credible fear screenings,
however, was rooted in the provision of the Global Asylum Rule that
never went into effect due to being enjoined prior to its effective
date as noted above.
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\6\ See Security Bars and Processing, 85 FR 84160, 84190 (Dec.
23, 2020).
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In 2022, DHS and DOJ again amended the credible fear regulations to
instruct AOs to not consider the applicability of mandatory bars during
credible fear screenings, see 8 CFR 208.30(e)(5), and to remove from 8
CFR 1003.42 and 1208.30 the language implemented by the Global Asylum
Rule instructing immigration judges to consider the mandatory bars
during credible fear reviews. See Procedures for Credible Fear
Screening and Consideration of Asylum, Withholding of Removal, and CAT
Protection Claims by Asylum Officers, 87 FR 18078, 18219, 18221-22
(Mar. 29, 2022) (``Asylum Processing IFR''). The Departments explained
that ``[r]equiring asylum officers to broadly apply the mandatory bars
at credible fear screening would increase credible fear interview and
decision times because asylum officers would be expected to devote time
to eliciting testimony, conducting analysis, and making decisions about
all applicable bars,'' and it would require a ``fact-intensive inquiry
requiring complex legal analysis that would be more appropriate in a
full adjudication before an asylum officer or in section 240
proceedings with the availability of judicial review than in credible
fear screenings.'' Asylum Processing IFR, 87 FR at 18093. The
Departments further stated that ``due process and fairness
considerations counsel against applying mandatory bars during the
credible fear screening process.'' Id. at 18134. In sum, the
Departments explained that not applying mandatory bars at the credible
fear screening stage both preserves the efficiency Congress intended in
making credible fear screening part of the expedited removal process
and helps ensure a fair process for those individuals found to have a
significant possibility of establishing eligibility for asylum or
statutory withholding of removal but for the potential applicability of
a mandatory bar. Id.\7\
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\7\ A full discussion of the Departments' reasoning to return to
the regulatory framework in place prior to the Global Asylum Rule
and no longer apply the mandatory bars in credible fear interview is
found in the Asylum Processing IFR. See 87 FR at 18092-94, 18134-36.
---------------------------------------------------------------------------
In May 2023, the Departments published a rule, which implemented a
new condition on eligibility for asylum to be applied at the credible
fear stage, but did not alter the general rule regarding the
application of mandatory statutory bars at the credible fear stage.
Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023)
(``Circumvention of Lawful Pathways rule'' or ``CLP rule''); see 8 CFR
208.33, 1208.33; see also Circumvention of Lawful Pathways, 88 FR 11704
(Feb. 23, 2023) (``Lawful Pathways NPRM'').
[[Page 41351]]
III. Need for This Proposed Rule
This proposed rule is intended to provide DHS additional
operational flexibility in screening determinations by giving AOs
discretion, at the earliest stage possible, to consider whether a given
noncitizen is unlikely to be able to establish eligibility for asylum
or statutory withholding of removal because of a mandatory bar that
relates to participation in persecution, or national security,
criminal, or other public safety concern,\8\ and, in relevant cases, to
issue a negative fear of persecution determination based on the
application of such a bar. As the purpose of the screening process is
to identify individuals who are ineligible for relief at the earliest
stage possible in order to create systematic efficiencies while
simultaneously protecting legal rights, ignoring statutory bars to such
relief with serious implications, including terrorism and significant
criminality, during this process runs counter to the policy goals. This
discretionary flexibility would be available in credible fear
determinations, including both determinations of noncitizens subject to
the circumvention of lawful pathways rebuttable presumption of asylum
ineligibility and noncitizens not so subject, or during reasonable fear
determinations where the noncitizen is subject to reinstatement of a
prior order of removal or a final administrative removal order. The
rule is consistent with the Administration's demonstrated record of
providing operators maximum flexibility and tools to apply
consequences, including by more expeditiously removing those without a
lawful basis to remain in the United States, while providing
immigration relief or protection to those who merit it at the earliest
point possible. This rule will allow DHS to quickly screen out certain
non-meritorious protection claims and to swiftly remove those
noncitizens who present a national security or public safety
concern.\9\
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\8\ This rule will not change current treatment of the ``firm
resettlement'' bar at INA 208(b)(2)(A)(iv), 8 U.S.C.
1158(b)(2)(A)(iv). For further explanation of the Department's
reasoning, see Section IV.A. below.
\9\ The expedited removal statute requires AOs to determine
whether the noncitizen ``could establish eligibility for asylum
under [INA 208].'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)
(defining ``credible fear of persecution''). Accordingly, the
statute permits consideration of the mandatory asylum bars, which
constitute an element of asylum eligibility under section 208 of the
Act. The statute is silent with respect to the nature of screening
for potential statutory and CAT-based withholding of removal
eligibility and thus affords DHS discretion in how best to implement
withholding of removal obligations in the expedited removal,
administrative removal, and reinstatement contexts. See Am.
Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 56 (D.D.C.
1998) (observing that because the INA is ``silent'' with respect to
certain expedited removal procedures, ``the Court must defer to the
[agency]'s determination as to what procedures are appropriate, so
long as that determination is reasonable'' and that the court
``cannot impose upon the [agency] any obligation to afford more
procedures than the governing statute explicitly requires or that
[it] has chosen to afford in [its] discretion'' (citing Vt. Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524-25 (1978)), aff'd,
199 F.3d 1352 (D.C. Cir. 2000); cf. Las Americas Immigrant Advocacy
Ctr. v. Wolf, 507 F. Supp. 3d 1, 32 (D.D.C. 2020) (Jackson, J.)
(underscoring ``Congress's clear intent to afford noncitizens who
are subject to expedited removal fewer procedural rights in order to
facilitate the expeditious processing of their asylum claims'').
---------------------------------------------------------------------------
By allowing AOs to promptly issue negative fear determinations in
cases in which there is easily verifiable evidence the noncitizen could
be subject to a bar and where the noncitizen is unable to establish, at
the relevant standard, that the bar would not apply, and the noncitizen
is not otherwise able to establish a credible or reasonable fear of
torture, the Department will shorten the overall time between encounter
and finality of a removal order and removal from the United States. For
those noncitizens in whose cases a negative determination is made due
to applicability of a bar, the regulation would prevent them from
entering a potentially years-long immigration court process and would
conserve those DHS and EOIR resources that would have been required to
complete such process to focus on meritorious cases.\10\
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\10\ As described above in section II.B.2 of this preamble, if
the AO determines that the noncitizen does not have a credible fear
of persecution or torture, the noncitizen may request that an
immigration judge review that determination. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
208.30(g), 1208.30(g). This rulemaking does not affect a
noncitizen's ability to request immigration judge review of an
adverse credible fear determination.
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The population to which this rule will apply is likely to be
relatively small, as informed by the number of cases with bars that are
flagged by USCIS during screenings. Given the gravity of the offenses
that trigger these bars, however, it is nevertheless important that
individuals who meet the criteria be identified and removed as quickly
as possible. The type of credible or reasonable fear determination
where this rule could be outcome determinative is limited to cases that
would have otherwise been found to have a positive credible or
reasonable fear of persecution, since those are cases that could be
given a negative determination due to a mandatory bar under this
proposed rule. For FY 2024 through April 23, 2024, USCIS records
indicated that out of a total 29,751 positive credible fear of
persecution determinations, AOs flagged a potential bar (without
counting firm resettlement) in 733 cases (or 2.5% of total cases with a
positive credible fear of persecution determination).\11\ For FY 2023,
USCIS records indicated that out of a total 50,117 positive credible
fear of persecution determinations, AOs flagged a potential bar
(without counting firm resettlement) in 1,497 cases (or 3% of total
cases with a positive credible fear of persecution determination).\12\
In FY 2022, AOs flagged a potential bar (without counting firm
resettlement) in 626 out of 24,282 positive credible fear of
persecution determinations (or 2.6% of total cases with a positive
credible fear of persecution determination).\13\ In FY 2021, 479 cases
were flagged as having a potential mandatory bar (without counting firm
resettlement) out of 24,512 positive credible fear determinations (2%),
and in FY 2020, 346 cases out of a total 8,887 positive credible fear
determinations (4%) had a mandatory bar (without counting firm
resettlement) flagged.\14\
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\11\ Asylum Global Case Management System (data as of Apr. 25,
2024). USCIS does not currently apply bars in credible or reasonable
fear screenings but notes the possible applicability of the bar, and
thereby notifies OPLA, if the case is referred to EOIR for
adjudication.
\12\ Asylum Global Case Management System (data as of Feb. 10,
2024).
\13\ Id.
\14\ Id.
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For reasonable fear cases, the percentage of positive reasonable
fear of persecution determinations where AOs flagged a potential bar to
statutory withholding of removal is significantly higher than the
percentage of positive credible fear of persecution determinations
where a bar was flagged. For FY 2024 through April 23, 2024, AOs
flagged a potential bar to withholding of removal in 143 cases out of
1,430 positive reasonable fear of persecution determinations (or 10% of
cases where a positive reasonable fear of persecution was found).\15\
For FY 2023, AOs flagged a potential bar to withholding of removal in
309 cases out of 1,534 positive reasonable fear of persecution
determinations (or 20% of cases where a positive reasonable fear of
persecution was found).\16\ In FY 2022, AOs flagged a potential bar in
236 out of 1,127 positive reasonable fear of persecution determinations
(or 21% of total cases with a positive reasonable fear of persecution
determination).\17\ In
[[Page 41352]]
FY 2021, 80 cases were flagged as having a potential mandatory bar out
of 541 positive reasonable fear determinations (15%), and in FY 2020,
56 cases out of a total 394 positive reasonable fear determinations
(14%) had a mandatory bar flagged.\18\
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\15\ Asylum Global Case Management System (data as of Apr. 25,
2024).
\16\ Asylum Global Case Management System (data as of Feb. 10,
2024).
\17\ Id.
\18\ Id.
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Credible or reasonable fear cases that received a positive fear of
torture determination would not be impacted by this proposed
regulation, since the screening for torture encompasses screening for
deferral of removal under CAT, for which there are no bars; likewise,
negative credible or reasonable fear determinations based solely on a
noncitizen failing to show a likelihood of persecution and torture
would not be affected by this rule, since the assessment of a mandatory
bar in those cases would not be outcome determinative. For the latter
two categories, AOs will continue to flag bars where they may be
evident in the record, even if they are not outcome determinative in a
given case.
This rule has three anticipated impacts. First, this rule expands
the Department's ability to more quickly remove noncitizens who fall
within the Administration's highest enforcement priorities: those who
present national security or public safety threats.\19\ As explained
further below in Section IV of this preamble, the rule would allow AOs
discretion to issue negative fear findings in cases in which there are
indicia of a mandatory bar, and the noncitizen is unable to establish
at the relevant standard that the bar would not apply. The specific
mandatory bars this rule would allow AOs to consider are those relating
to public safety and/or national security threats, with the intent of
allowing the Department flexibility in some cases to more quickly
remove individuals who present such concerns.\20\
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\19\ Memorandum from Alejandro N. Mayorkas, Sec'y of Homeland
Security, Guidelines for the Enforcement of Civil Immigration Law
(Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf (last visited Feb. 9, 2024).
\20\ This rule will not change current treatment of the ``firm
resettlement'' bar at INA 208(b)(2)(A)(iv), 8 U.S.C.
1158(b)(2)(A)(iv). For further explanation of the Department's
reasoning, see Section IV.A. below.
---------------------------------------------------------------------------
Second, the rule would increase operational flexibility. For
example, AOs could use their judgment to apply these bars in cases in
which there is evidence available to the AO that triggers an inquiry
into a bar, and the AO is confident that they can address that bar
efficiently at the credible fear or reasonable fear interview.
Currently, when an AO elicits information during an interview
indicating that a bar may apply--even when that information makes it
clear a bar will apply during a full adjudication of the asylum or
withholding claim--the AO is foreclosed from considering the
application of a bar as part of the fear determination. Instead, the AO
flags the potential bar, which may include preparing a memorandum to
file related to the potential bar and the reasons for which it may
apply.\21\ Although not determinative, ICE may consider and further
develop this information when litigating before EOIR, and EOIR may
consider this information along with other relevant factors in the case
in the adjudication of immigration court proceedings.\22\ ICE ERO and
EOIR may rely upon the potential bar in making custodial
determinations.\23\
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\21\ USCIS, RAIO Directorate--Officer Training: Credible Fear of
Persecution and Torture Determinations (Feb. 20, 2023).
\22\ See Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011) (in
immigration proceedings, the ``sole test for admission of evidence
is whether the evidence is probative and its admission fundamentally
fair.''); Matter of Velasquez, 19 I. & N. Dec. 377, 380 (BIA 1986)
(same).
\23\ Matter of R-A-V-P-, 27 I. & N. Dec. 803 (BIA 2020) (``The
Immigration Judge may also consider the likelihood that relief from
removal will be granted in determining whether [a noncitizen]
warrants bond.'')
---------------------------------------------------------------------------
Third, this rule may provide efficiencies for ICE Office of the
Principal Legal Advisor (``OPLA'') and ICE Enforcement and Removal
Operations (``ERO'') and may reduce referrals to EOIR in cases in which
a negative fear determination can be made at the screening stage for an
individual who would otherwise need to traverse the entire immigration
court process.\24\ As part of OPLA's extensive responsibilities, in
preparation for a removal hearing, OPLA reviews whether the noncitizen
is statutorily eligible for relief or protection and if there are any
statutory bars to relief or protection. Thus, for each case in which a
noncitizen appears before the immigration courts, OPLA is reviewing for
statutory bars. Cases involving potential bars to relief or protection
such as terrorism-related inadmissibility grounds or assistance in the
persecution of others, are assigned to certain designated attorneys
specializing in such cases, entail special reporting requirements, and
coordination with OPLA headquarters divisions. Requiring AOs to
continue proceedings for a noncitizen with an otherwise positive
credible or reasonable fear where the evidence would be sufficient to
apply a mandatory bar at the credible or reasonable fear stage
therefore introduces the possibility that OPLA resources will be
unnecessarily expended in further developing the record for immigration
court hearings.
---------------------------------------------------------------------------
\24\ OPLA serves as the DHS's representative in removal
proceedings before EOIR, including cases involving national security
threats, human rights violators, and criminal noncitizens. See 6
U.S.C. 252(c). Accordingly, OPLA is responsible for ensuring that
the Department's interests are fully represented in cases filed by
not only ICE but also USCIS and CBP. During removal proceedings,
OPLA attorneys receive and review evidence, which may include
examining databases of multiple agencies for criminal and
immigration history and preparing evidence for review. OPLA
attorneys present the Department's position, both by appearing in
immigration court to make oral arguments and to examine witnesses
and by submitting written briefs and are also responsible for
representing the government in administrative appeals, including
reviewing whether to appeal a case in the first instance, reviewing
a noncitizen's arguments on appeal, preparing written appellate
briefs and motions, and appearing for oral arguments. OPLA personnel
dedicate dozens of hours in cases pending before the immigration
courts, to ensure the Government's interests are dutifully
represented. See generally U.S. Immigration and Customs Enforcement,
Office of the Principal Legal Advisor, https://www.ice.gov/about-ice/opla (last visited Feb. 9, 2024).
---------------------------------------------------------------------------
Additionally, the Department is currently maximizing referrals to
expedited removal, consistent with the Secretary's enforcement
priorities, which include threats to border security. For instance, DHS
established the Family Expedited Removal Management (FERM), which
leverages alternatives to detention to process families through
expedited removal, including credible fear screenings, in a non-
detained setting. These efforts enhance DHS's ability, within the
current statutory framework governing expedited removal, to more
quickly apply consequences to those without a legal basis to remain.
However, resources to administer expedited removal generally and FERM
specifically are limited, and no process specifically establishes the
discretionary flexibility to more quickly reach a final order of
removal for the population to whom this rule would apply.
Consequently, individuals to whom mandatory bars may apply and who
receive a positive credible fear determination continue to be referred
to EOIR for immigration court proceedings, joining the backlog which
exceeded 2,400,000 cases pending cases at the end of FY 2023, a backlog
that can result, in some instances, in a lengthy process.\25\ The
current framework therefore unnecessarily extends adjudication of cases
that correspond to the Secretary's enforcement priorities, while using
needed EOIR and OPLA resources to adjudicate cases which could be more
[[Page 41353]]
efficiently deployed in other cases. DHS believes it is appropriate to
establish additional avenues through which to deliver swift decisions
and consequences for irregular migration, rather than allowing clearly
ineligible individuals to further tax limited resources.
---------------------------------------------------------------------------
\25\ See EOIR, Exec. Off. For Immigration Rev.: Pending Cases,
New Cases, and Total Completions (Oct. 12, 2023), available at
https://www.justice.gov/eoir/media/1344791/dl?inline (last visited
Apr. 28, 2024).
---------------------------------------------------------------------------
Finally, the rule may reduce or eliminate the need for detention or
alternatives to detention and monitoring in some cases, freeing up ICE
ERO resources for high-priority cases, including those in which
detention is required. Though detention is not mandated in all such
cases, ICE ERO may detain some noncitizens to whom this rule might
apply during the immigration court process, following a credible or
reasonable fear determination. Detention comes at cost to the taxpayer
and reduces availability of beds for other high-priority populations
and noncitizens subject to mandatory detention, including recent border
crossers placed in expedited removal proceedings and individuals who
have been administratively arrested and have criminal convictions or
pose a national security or public safety threat; from February 2023
through February 2024, the median monthly EOIR processing time for a
detained case ranged from 44 to 69 days.\26\ And in cases in which ICE
ERO determines detention is not necessary, ICE ERO may still expend
resources to monitor the individual via the use of alternatives to
detention, check-ins, and so on. This rule would potentially conserve
ICE ERO resources to the extent it precludes additional or more
extended detention or monitoring of individuals in cases in which an AO
has determined at the fear determination stage that a mandatory bar
applies.
---------------------------------------------------------------------------
\26\ Includes completed cases with a removal order, voluntary
departure, relief, a termination, or a dismissal outcome. Results
based on OHSS analysis of EOIR data as of April 1st, 2024. EOIR data
up-to-date as of February 29, 2024.
---------------------------------------------------------------------------
In practice, DHS believes the rule would likely result in AOs using
discretion to issue negative fear determinations in certain cases where
there is evidence that a bar applies to a noncitizen, there is a lack
of evidence that the noncitizen could overcome the bar (e.g., by
establishing an exception or exemption), and the noncitizen is not
otherwise able to establish a positive fear of torture at the
applicable standard.\27\ AOs will continue to retain discretion to
issue positive fear determinations where a noncitizen demonstrates a
credible or reasonable fear at the applicable screening standard, even
where there may be indicia of a mandatory bar but the available
evidence at the screening stage as to the applicability of the bar is
limited, or where there is additional evidence that the noncitizen
would not be subject to the bar because of exception or exemption. This
rule also preserves the option for noncitizens to be placed in an AMI
or in proceedings before an immigration judge when a possible bar needs
to be further developed for assessment, as is currently the practice;
likewise, ICE will retain the ability to detain or otherwise monitor
the noncitizen in those cases. See 8 CFR 208.9; INA 235(b)(1)(B)(ii), 8
U.S.C. 1225(b)(1)(B)(1)(ii). See also INA 212(d)(5), 8 U.S.C.
1182(d)(5).
---------------------------------------------------------------------------
\27\ As described above in section II.B.2 of this preamble, if
the AO determines that the noncitizen does not have a credible fear
of persecution or torture, the noncitizen may request that an
immigration judge review that determination. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
208.30(g), 1208.30(g). This rulemaking does not affect a
noncitizen's ability to request immigration judge review of an
adverse credible fear determination.
---------------------------------------------------------------------------
Notably, this rule would not require AOs to consider applicability
of bars as part of a fear determination.\28\ Such a requirement would
reduce operational flexibility by potentially adding hours to
interviews in which there are indicia that a bar might apply, but for
which a strong case cannot be immediately established.\29\ Rather this
rule would create the flexibility for the AO to exercise discretion--
with supervisory review of any decision--on the applicability of bars
during the screening stage. Moreover, this proposed rule would not
disturb the long-standing regulation establishing that in making
credible fear determinations, asylum officers ``shall consider whether
the [ ] case presents novel or unique issues that merit consideration
in a full hearing before an immigration judge.'' 8 CFR 208.30(e)(4).
---------------------------------------------------------------------------
\28\ The Global Asylum Rule took a different approach than this
proposal, requiring that AOs consider multiple mandatory bars. See
85 FR at 80278 (``DHS requires asylum officers to determine . . .
whether an alien is subject to one or more of the mandatory bars'').
This proposed rule would not require such consideration.
\29\ Because credible fear screenings are conducted at the
significant possibility standard, in cases where the application of
a bar is not obvious, requiring the AO to consider application of a
bar would likely result in significantly extended interviews with no
meaningful outcome because relevant information might not be
available to the officer at screening even with a significantly
extended interview.
---------------------------------------------------------------------------
The Department recognizes that the inclusion of mandatory bars in
credible fear screenings has been a focus of many rules since 2020 that
have made numerous changes in this area. As discussed above in section
II.C of this preamble, the Global Asylum Rule set out to instruct
adjudicators for the first time to apply the statutory mandatory bars
in INA 208(b)(2)(A) and INA 241(b)(3), 8 U.S.C. 1158(b)(2)(A),
1231(b)(3), during credible fear interviews.\30\ Subsequently, in 2022,
the Departments rejected the consideration of all statutory mandatory
bars during credible fear screenings and re-codified the prior practice
of not doing so. Asylum Processing IFR, 87 FR at 18092-94, 18134-36;
see also Asylum Processing NPRM, 86 FR at 46914-15. The Departments
reasoned that applying the mandatory bars during all credible fear
screening interviews would make those credible fear screenings less
efficient,\31\ which could jeopardize the ability to use expedited
removal,\32\ undermine Congress's intent that the expedited removal
process be swift,\33\ and undermine procedural fairness.\34\ The
Departments did not, however, conclude that applying the mandatory bars
would lead to these potentially negative repercussions in all or even
most cases. See 87 FR at 18093 (stating that the factual and legal
inquiries required to consider the mandatory bars were ``in general and
depending on the facts, most appropriately made in the context of a
full merits interview or hearing'') (emphasis added).
---------------------------------------------------------------------------
\30\ DHS has long applied in the expedited removal process the
``safe-third-country'' bar to eligibility to apply for asylum at INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). See 8 CFR 208.30(e)(6). The
Department is not proposing to apply other INA 208(a)(2)(A) bars,
see, e.g., INA 208(a)(2)(C) (successive asylum application), in
credible fear screenings at this time.
\31\ See Asylum Processing IFR, 87 FR at 18093, 18134; Lawful
Pathways NPRM, 88 FR at 11744.
\32\ See Asylum Processing IFR, 87 FR at 18093.
\33\ See Asylum Processing NPRM, 86 FR at 46914; Asylum
Processing IFR, 87 FR at 18094, 18134-35.
\34\ Asylum Processing IFR, 87 FR at 18093-94, 18097.
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Subsequently, the Departments issued the Circumvention of Lawful
Pathways rule, which established a rebuttable presumption of asylum
ineligibility that asylum officers apply during credible fear
screenings. See 8 CFR 208.33(b). In the proposed rule's preamble, the
Departments distinguished the lawful pathways rebuttable presumption
from the statutory mandatory bars and indicated a belief that the
presumption would be easier to apply because the asylum officer would
have relevant information related to the applicability of the
presumption of asylum ineligibility at the outset of the credible fear
interview. 88 FR at 11744-45. Despite the belief that applying the
presumption would generally be easier than applying other bars, the
Departments stated that any costs resulting from increasing the length
of
[[Page 41354]]
some credible fear interviews were outweighed by the broader interests
in ensuring orderly processing and expedited rejection of unmeritorious
claims at the outset in the emergent circumstance expected following
the end of the Title 42 public health Order. Id.
Following implementation of the Circumvention of Lawful Pathways
rule, the Department has refined its prior position on application of
the mandatory bars in credible fear screenings for multiple reasons.
First, the Department has determined that the permissive consideration
of the mandatory bars in the manner proposed by this rule does not
conflict with these prior rulemakings and is clearly distinguishable.
Most notably, this rule does not propose to require the consideration
of the mandatory bars in all interviews--as had been contemplated by
the Global Asylum Rule. Instead, this rule would allow the AO
flexibility to choose to consider a bar based on the individual facts
and circumstances of an applicant's case and based on information
available to the asylum officer. As noted previously, the Departments
did not determine in the Asylum Processing IFR that applying all of the
mandatory bars would always be more appropriate at the merits stage,
but rather stated that the factual and legal inquiries were ``in
general and depending on the facts, most appropriately made in the
context of a full merits interview or hearing.'' 87 FR at 18093.
Moreover, the Asylum Processing IFR did not consider one alternative to
decrease the costs of applying the mandatory bars while maintaining
many of the benefits--namely, conducting a factual and legal inquiry
into the bars only in those cases for which doing so is likely to be an
efficient and appropriate use of resources. The Department now assesses
that, based on that approach, applying certain bars at the credible
fear stage can be an efficient and appropriate use of resources in a
larger class of cases than the Asylum Processing IFR appreciated.
Second, in contrast to the rule considered when deciding not to
apply mandatory bars during credible fear screenings--the Asylum
Eligibility and Procedural Modifications, 84 FR 33829 (July 16, 2019)
(``Third-Country-Transit Bar IFR'')--the Department has had many
uninterrupted months of experience applying the rebuttable presumption,
providing a more consistent baseline of determinations for evaluation
about adding consideration of other mandatory bars during screening
interviews. In the Asylum Processing IFR, the Departments relied
extensively on their experience applying the Third-Country-Transit Bar
IFR to explain why applying the mandatory bars during credible fear
screenings was not the preferred approach. See, e.g., 84 FR at 18092,
18135-36. But as recognized in the Lawful Pathways NPRM, ``[b]ecause of
the short and tumultuous life of the . . . [Third-Country-Transit Bar]
IFR, it was difficult for the Departments to gather reliable data on
the efficacy of the particular process adopted under that rule.''
Lawful Pathways NPRM, 88 FR at 11746.\35\ Due to litigation, the Third-
Country-Transit Bar IFR was applied during credible fear screenings
consistently only between approximately September 9, 2019, and March
26, 2020--just over six months--after an initial two months of abrupt
starts and stops and patchwork orders. As noted in the Asylum
Processing IFR, the Departments found applying the Third-Country-
Transit Bar IFR not to be a prudent way to allocate resources and from
that, reasoned that applying the mandatory bars would likely be
imprudent as well. Now, however, the Circumvention of Lawful Pathways
rule and complementary measures have been in constant effect since May
11, 2023, and the Departments have been able to implement it without
interruption. This experience has helped the Department increase
significantly their capacity to screen noncitizens encountered at the
border under expedited removal and move them through the process
quicker than ever before. Now that it is clear a rebuttable presumption
of asylum ineligibility can be applied effectively during the credible
fear process, the Department wishes to provide the AOs additional
discretion to apply certain mandatory statutory bars that may be easily
verifiable in screening interviews.
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\35\ The IFR was preliminarily enjoined nationwide on July 24,
2019, six days after it went into effect. East Bay Sanctuary
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). The
court denied a stay of that decision, thus halting the IFR. East Bay
Sanctuary Covenant v. Barr, No. 19-CV-04073-JST, 2019 WL 11691196,
at *1 (N.D. Cal. Aug. 1, 2019). After implementation of the IFR was
halted nationwide for twenty-three days, on August 16, the Ninth
Circuit then granted a stay of the preliminary injunction insofar as
it applied outside the circuit, which meant that the IFR could be
applied only outside the Ninth Circuit. East Bay Sanctuary Covenant
v. Barr, 934 F.3d 1026, 1028 (9th Cir. 2019). Twenty-six days later,
on September 9, the district court restored the nationwide scope of
the injunction, again halting its application. East Bay Sanctuary
Covenant v. Barr, 391 F. Supp. 3d 974, 976 (N.D. Cal. 2019). Two
days later the Supreme Court stayed the preliminary injunction,
which allowed the Departments to implement the IFR until it was
vacated on June 30, 2020. Barr v. East Bay Sanctuary Covenant, 140
S. Ct. 3 (2019); Cap. Area Immigrants' Rts. Coal. v. Trump, 471 F.
Supp. 3d 25, 60 (D.D.C. 2020). But even before the vacatur, the
first Title 42 public health Order issued on March 26, 2020, which
limited the processing of certain noncitizens under Title 8.
---------------------------------------------------------------------------
Third, the Department believes that the proposal would not be
inconsistent with prior statements regarding congressional intent. In
the Asylum Processing NPRM, the Departments stated that it may be
inconsistent with Congress's intent for the Departments to ``creat[e] a
complicated screening process that requires full evidence gathering and
determinations to be made on possible bars to eligibility.'' 86 FR at
46914; see also Asylum Processing IFR, 87 FR at 18135 (``The
Departments agree with these commenters that a complicated process
requiring full evidence gathering and determinations to be made on
possible bars to eligibility is incompatible with the function of the
credible fear interview''). The proposal here would not create any such
process as AOs would only consider a bar in those cases where there is
easily verifiable evidence available to the AO that in their discretion
warrants an inquiry into a bar, and the AO is confident that they can
consider that bar efficiently at the credible fear stage. The
Department does not believe Congress's intent that expedited removal
proceedings be swift requires reading the statute to not allow
application of mandatory bars during fear screenings at all,
particularly where, as here, the Department proposes to apply those
bars in a manner that would not increase the length of expedited
removal proceedings except in those cases in which there is evidence
indicating that they may apply.
Fourth, the Department believes AOs can apply mandatory bars during
fear screenings while ensuring a fair process. As noted previously,
there are cases where the applicability of a bar is clear and there is
not a significant possibility that the applicant could show the bar
does not apply by a preponderance of the evidence (in credible fear),
or a reasonable possibility that the bar does not apply (in reasonable
fear). The screening standards themselves ensure a fair process in that
the noncitizen need only meet the significant possibility or reasonable
possibility standard in order to pass through the screening process. In
such cases, the Department believes it is reasonable to apply the
mandatory bars during the screening and issue a negative determination.
For example, if a noncitizen was convicted of murder and sentenced to
ten or more years in prison in a country with a fair and independent
judicial system--it may be clear that the noncitizen is barred from
asylum and withholding of removal for a conviction for a particularly
serious crime, INA 208(b)(2)(A)(ii),
[[Page 41355]]
241(b)(3)(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(2)(B)(ii), or
because there are serious reasons to believe that the noncitizen
committed a serious nonpolitical crime outside the United States, INA
208(b)(2)(A)(iii), 241(b)(3)(B)(iii), 8 U.S.C. 1158(b)(2)(A)(iii), 8
U.S.C. 1158(b)(2)(A)(iii), 1231(b)(2)(B)(iii).
IV. Discussion of the Proposed Rule
As discussed below, this proposed rule would amend 8 CFR 208.30,
208.31, and 208.33 to allow AOs to consider the mandatory bars to
asylum under section 208(b)(2)(A)(i)-(v) of the Act, 8 U.S.C.
1158(b)(2)(A)(i)-(v), and to withholding of removal under section
241(b)(3)(B) of the Act, 8 U.S.C. 1231(b)(3)(B), during credible fear
interviews and reasonable fear interviews.\36\ This would include both
credible fear interviews where the asylum officer has found that the
noncitizen is subject to the lawful pathways rebuttable presumption of
ineligibility for asylum (Sec. 208.33) and those where the lawful
pathways rebuttable presumption either does not apply or the noncitizen
successfully overcame the presumption at the credible fear interview by
showing a significant possibility of being eligible for an exception or
rebutting the presumption (Sec. 208.30).\37\
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\36\ In addition to these changes, the rule would make an
unrelated non-substantive change to 8 CFR 208.31(g) and replace the
last sentence of 8 CFR 208.31(g) and paragraphs (g)(1)-(2). Because
those provisions describe the procedures for immigration judge
review of an AO's reasonable fear finding and are duplicative with
the corresponding provision governing immigration court procedures
at 8 CFR 1208.31(g), they are not needed in the DHS regulations in
chapter I of title 8 of the CFR. Accordingly, this rule would
replace those provisions in 8 CFR 208.31(g) with a short statement
that informs the reader that the immigration judge review procedures
are set forth at 8 CFR 1208.31(g).
\37\ The Department notes that if DHS finalizes this NPRM, DOJ
may wish to clarify the procedures immigration judges will follow in
reviewing DHS screenings.
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A. Consideration of Mandatory Bars During Credible Fear and Reasonable
Fear Screenings
Consistent with section 235(b)(1)(B) of the INA, 8 U.S.C.
1225(b)(1)(B), DHS is proposing to allow for the consideration of
certain mandatory bars to asylum in the determination as to whether a
noncitizen has a credible fear of persecution with respect to asylum.
Additionally, DHS is proposing to allow for the consideration of the
mandatory bars to withholding of removal under section 241(b)(3) of the
Act in the determination as to whether a noncitizen has a credible or
reasonable fear of persecution with respect to statutory withholding of
removal.
Specifically, this NPRM would allow AOs to consider the mandatory
bars to asylum found at section 208(b)(2)(A)(i) through (v) of the Act
but would not change current treatment of the mandatory bar to asylum
found at section 208(b)(2)(A)(vi) of the Act (i.e., the ``firm
resettlement bar'') or the bars to applying for asylum found at section
208(a)(2) of the Act.\38\ Recent changes made to the firm resettlement
provisions in 8 CFR 208.15 and 1208.15 by the Global Asylum Rule are
preliminary enjoined. See Pangea Legal Servs. v. DHS, 512 F. Supp. 3d
966, 977 (N.D. Cal. 2021). The pre-Global Asylum rule firm resettlement
regulations currently in effect, 8 CFR 208.15, 1208.15 (2020), include
a burden-shifting framework that requires the Department to bear the
initial ``burden of presenting prima facie evidence of an offer of firm
resettlement'' that can be rebutted by the noncitizen. Matter of A-G-G-
, 25 I&N Dec 486, 501 (BIA 2011). This framework differs from the
analytical framework for the security-related bars that are the subject
of this rulemaking, and the Matter of A-G-G- framework and firm
resettlement definition could make it difficult for AOs to easily
verify whether a noncitizen is subject to the bar. In other words, AOs
would not consider the applicability of these bars when making the
credible fear determination, and noncitizens would be referred to the
appropriate immigration court proceeding if they establish the
requisite fear, though the AO may note the possible applicability of a
bar under INA 208(a)(2) or (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2) or
(b)(2)(A)(vi), for further review during those proceedings. DHS may
address such bars through other rulemaking but is not including them in
this rule's proposed changes as they do not relate to the same serious
security and other concerns as the bars to asylum eligibility at INA
208(b)(2)(A)(i)-(v).
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\38\ See supra, n.31.
---------------------------------------------------------------------------
Further, this NPRM does not propose to change how DHS considers
bars to protection under the CAT, see generally 8 CFR 208.16(d)(2),
because such bars do not apply to deferral of removal under the CAT,
see generally 8 CFR 208.17. Moreover, while this NPRM authorizes AOs to
consider certain mandatory bars to relief in credible fear
determinations, including the credible fear determinations of
stowaways, it is not intended to nor does it otherwise alter the
special rules applicable to stowaways, such as the prohibition of
issuing a notice to appear for stowaways.\39\
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\39\ See INA 235(a)(2), 8 U.S.C. 1225(a)(2); see also 8 CFR
208.30(e)(5).
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This NPRM contains permissive language that would allow, but not
require, a USCIS AO to consider the mandatory bars to asylum (other
than firm resettlement) and statutory withholding of removal in
credible fear and reasonable fear interviews where there is evidence
that such a mandatory bar could apply to the noncitizen. This
permissive language provides operational flexibility to not consider a
mandatory bar as part of the screening process if, for instance, an AO
believes that inquiry into the bar's applicability could unduly delay
case completion without concomitant mission benefits.
This NPRM proposes changes to screenings conducted under 8 CFR
208.30 (the general rule on credible fear determinations), Sec. 208.31
(the rule governing certain reasonable fear determinations), and Sec.
208.33 (special procedures under the CLP rule).
With respect to credible fear screenings conducted under Sec.
208.30, this NPRM would allow the AO to consider the applicability of
the mandatory bars to asylum (other than firm resettlement) and
statutory withholding of removal. In such cases, the AO would enter a
negative credible fear of persecution determination if the noncitizen
fails to demonstrate a significant possibility that the noncitizen
would be able to prove by a preponderance of the evidence that the
given bar would not apply and if the noncitizen was otherwise unable to
demonstrate a credible fear of torture pursuant to 8 CFR 208.30(e)(3).
This standard--whether there is a significant possibility that the
noncitizen could establish eligibility--is consistent with existing
standards in Sec. 208.30 and the statutory eligibility standard. INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
With respect to screenings conducted under Sec. 208.33 (i.e., the
CLP rule), in cases where the AO has entered a negative credible fear
of persecution determination with respect to the noncitizen's asylum
claim pursuant to the CLP rule's rebuttable presumption of asylum
ineligibility, the NPRM would allow AOs to consider the applicability
of the mandatory bars to statutory withholding of removal in making a
follow-on reasonable possibility of persecution determination. In other
words, under the proposed rule, if a noncitizen in the credible fear
process is subject to the CLP presumption of asylum ineligibility and
cannot
[[Page 41356]]
demonstrate a significant possibility of being able to establish
eligibility for an exception or rebutting the presumption by a
preponderance of the evidence, and there is evidence that a mandatory
bar to statutory withholding of removal could apply, the AO may enter a
negative reasonable possibility of persecution determination if the
noncitizen fails to show a reasonable possibility the bar does not
apply and if the noncitizen is otherwise unable to demonstrate a
reasonable possibility of torture. The standard proposed here--a
reasonable possibility that the bar does not apply--is consistent with
the general approach under the CLP rule, which calls for AOs to assess
whether the noncitizen has established a reasonable possibility of
persecution or torture with respect to the identified country or
countries of removal. See 8 CFR 208.33(b)(2)(i).
Finally, DHS also proposes changes with respect to reasonable fear
screenings conducted under 8 CFR 208.31(c). Such screenings apply to
noncitizens subject to removal pursuant to the issuance of a Final
Administrative Removal Order or reinstatement of a prior removal order
over whom USCIS has jurisdiction pursuant to 8 CFR 208.31(b). Under
this NPRM, if there is evidence that such noncitizen could be subject
to a mandatory bar to statutory withholding of removal, the AO may
consider the applicability of the bar in the reasonable fear of
persecution determination and if doing so, the AO would find there is
no reasonable fear of persecution if the noncitizen is unable to show
that there is a reasonable possibility that no mandatory bar applies.
This NPRM does not propose to allow for the application of the
mandatory bars to withholding of removal to reasonable fear of torture
determinations under 8 CFR 208.31(c). As with the option to apply the
mandatory bars to asylum (other than firm resettlement) and statutory
withholding of removal in a credible fear determination, the option to
apply the mandatory bars to statutory withholding of removal in a
reasonable fear determination may be exercised at the discretion of
USCIS, and this NPRM does not propose to mandate application of the
mandatory bars across the board in either credible fear or reasonable
fear screenings.
B. Screening Procedures
1. Credible Fear Interviews
This NPRM would apply to noncitizens who are subject to expedited
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1) and
have been referred to USCIS for a credible fear screening pursuant to
section 235(b)(1)(A)(ii) of the Act.
As described above, in the credible fear process, such noncitizens
are subject to removal ``without further hearing or review'' unless
they indicate an intention to apply for asylum or fear of persecution.
INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). Noncitizens in
expedited removal who indicate an intention to apply for asylum or fear
of persecution are referred to an AO for an interview to determine if
they have a credible fear of persecution and should accordingly remain
in proceedings for further consideration of the application. INA
235(b)(1)(A)(ii), (b)(1)(B)(i)-(ii), 8 U.S.C. 1225(b)(1)(A)(ii),
(b)(1)(B)(i)-(ii). In addition, AOs consider whether a noncitizen in
expedited removal may be eligible for withholding of removal under
section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or for protection
under the regulations implementing U.S. non-refoulement obligations
under the CAT. 8 CFR 208.30(e)(2)-(3).
Under the existing regulations governing credible fear
determinations, when an AO makes a determination as to whether a
noncitizen has a credible fear of persecution, there is first a
consideration of whether the noncitizen is subject to the CLP
presumption of asylum ineligibility pursuant to 8 CFR 208.33(b)(1). If
subject to the CLP presumption, the AO considers whether there is a
significant possibility the noncitizen would be able to show an
exception to or rebut the presumption by a preponderance of the
evidence. If the CLP presumption of asylum ineligibility does not apply
or the noncitizen establishes an exception or rebuts, then the AO will
consider whether there is a significant possibility the noncitizen
could show eligibility for asylum or statutory withholding of removal
if given the opportunity to do so in a full hearing, without taking any
mandatory bars to asylum or withholding of removal into consideration
when making that determination. Nevertheless, AOs ask noncitizens
questions about the mandatory bars to asylum and withholding of removal
during credible fear interviews for the benefit of the record and, as
appropriate, may record information related to a bar potentially
applying in an adverse memorandum to the file for immigration
enforcement personnel to reference where it may be relevant for their
use.
Under this NPRM, the current credible fear process would remain the
same. The only aspect of the determination that would change is that
the USCIS AO would have the discretion to consider the potential
application of mandatory bars to asylum (other than firm resettlement)
and statutory withholding of removal when screening the noncitizen for
a credible fear of persecution (in cases where the CLP does not apply
or was rebutted) or to consider the potential application of the
mandatory bars to statutory withholding of removal (in cases where the
CLP does apply and is not rebutted). The AO would consider whether
there is a significant possibility that the noncitizen would be able to
show the relevant bar does not apply by a preponderance of the
evidence. Accordingly, the use of the significant possibility screening
standard for credible fear of persecution would remain the same as that
in place without this NPRM. See 8 CFR 208.30(e)(2). Further, the
preponderance standard is the standard that would ultimately apply in a
merits determination in any case where evidence of a mandatory bar is
present and the applicant bears the burden of showing by a
preponderance of the evidence that the bar does not apply. See 8 CFR
208.13(c)(2)(ii), 208.16(d)(2), 1208.14(c)(ii), 1208.16(d)(2).
For a noncitizen in the credible fear process where the CLP applies
and has not established an exception or rebutted the presumption of
asylum ineligibility, the only change this NPRM would make is that it
would allow the AO, when screening the noncitizen for statutory
withholding of removal, to consider if there was any evidence a
mandatory bar to withholding of removal could apply and, if so,
exercise the discretion to screen that noncitizen for withholding of
removal by taking into account the applicability of that bar(s).
Consistent with existing standards, the screening standard to screen
for statutory withholding of removal in such an instance where a
mandatory bar could be considered as part of the screening would be if
the noncitizen showed a reasonable possibility that they are not
subject to a mandatory bar(s).
As noted above, the Department does not propose to allow for the
consideration of the mandatory bars to withholding of removal in the
screening for withholding of removal under CAT for any credible fear
screening, whether the determination is occurring pursuant to 8 CFR
208.30(e)(3) or 8 CFR 208.33(b)(2)(i). Any determination that screens
for protection under CAT, whether it is under 8 CFR 208.30(e)(3) or 8
CFR 208.33(b)(2)(i), involves screening for both withholding of removal
under CAT pursuant to 8 CFR 208.16 and deferral of removal under CAT
pursuant to 8 CFR 208.17. Because
[[Page 41357]]
there are no mandatory bars to deferral of removal under CAT,
considering the mandatory bars to withholding of removal in any
determination that screens for eligibility for protection under CAT
would be a futile exercise.
2. Reasonable Fear Interviews
This NPRM would also apply to noncitizens who have been ordered
removed under section 238(b) of the Act or whose deportation,
exclusion, or removal order has been reinstated under section 241(a)(5)
of the Act, and who are referred to USCIS for a reasonable fear
screening pursuant to 8 CFR 208.31. The purpose of the reasonable fear
determination is to screen the noncitizen for any potential statutory
withholding of removal, or any withholding or deferral of removal under
CAT claim. The standard to screen for withholding or deferral of
removal under CAT is a reasonable possibility of persecution or
torture, which will remain untouched in this NPRM since, as mentioned
above, there are no mandatory bars to deferral of removal under CAT.
In this NPRM, the proposed screening standard under which the AO
may consider a mandatory bar to statutory withholding of removal during
a reasonable fear interview in a case where the noncitizen appears
subject to one or more mandatory bars is whether the noncitizen fails
to show that there is a reasonable possibility that no bar applies.\40\
For example, a noncitizen who is subject to administrative removal
under INA 238(b), 8 U.S.C. 1228(b), because they are deportable under
INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), for having been
convicted of an ``aggravated felony'' as defined in INA 101(a)(43), 8
U.S.C. 1101(a)(43), may be determined not to have a reasonable fear of
persecution if they were sentenced to a term of imprisonment of more
than five years. See INA 241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv).
That noncitizen, however, may nonetheless be referred to an immigration
judge for ``withholding only'' proceedings if they establish a
reasonable fear of torture.
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\40\ The original rule establishing the ``reasonable fear''
screening process at 8 CFR 208.31 and excluding consideration of the
mandatory withholding bars was promulgated in 1999. See Regulations
Concerning the Convention Against Torture, 64 FR 8478 (1999)
(interim rule). The rule did not explain why the bars should not be
considered. See 64 FR at 8485. Prior to 1999, if a noncitizen
subject to reinstatement of removal under INA 241(a)(5), 8 U.S.C.
1231(a)(5), expressed a fear of returning to their country, the
noncitizen would be referred to an AO for a determination ``whether
the [noncitizen]'s removal to that country must be withheld under
section 241(b)(3) of the Act,'' 8 U.S.C. 1231(b)(3), including
whether any of the mandatory withholding bars applied. 8 CFR 241.8
(1998).
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C. Application in Relation to the Circumvention of Lawful Pathways Rule
The proposed rule may, in some instances, apply in a credible fear
determination where the CLP presumption of asylum ineligibility has
also been found to apply in a credible fear determination under 8 CFR
208.33(b)(2)(i). In such a credible fear determination, an AO will
first determine whether the noncitizen can demonstrate a significant
possibility of showing by a preponderance of the evidence that the
noncitizen would not be subject to the presumption of asylum
ineligibility, that an exception to the presumption would apply, or
that the presumption could be rebutted under 8 CFR 208.33(b)(1). If
there is no such significant possibility, the AO will enter a negative
credible fear determination with respect to the noncitizen's asylum
claim pursuant to 8 CFR 208.33(b)(1)(i). The AO then screens the
noncitizen for statutory withholding of removal and protection under
CAT by determining whether there is a reasonable possibility the
noncitizen would suffer persecution or torture in the designated
country of removal, pursuant to 8 CFR 208.33(b)(2). If there is no
reasonable possibility of persecution or torture, the AO will enter a
negative credible fear determination under 8 CFR 208.33(b)(2)(iii).
In some cases, the evidence in the credible fear record, including
the noncitizen's testimony, may fail to show a reasonable possibility
of persecution or torture in the country of removal and there will be
no need to consider the mandatory bars to statutory withholding of
removal for the AO to issue a legally sufficient negative credible fear
determination. In other instances, however, the evidence in the record
may be such that it would be more efficient to base a negative credible
fear of persecution determination on a mandatory bar to statutory
withholding of removal pursuant to 8 CFR 208.33 where there is evidence
of a mandatory bar to withholding of removal and the noncitizen is
unable to demonstrate there is a reasonable possibility that the
mandatory bar does not apply.
Under the CLP rule, AOs apply the presumption of asylum
ineligibility to be applied in any credible fear case where it applies.
However, applying the mandatory bars to withholding of removal in a
credible fear determination (regardless of whether the CLP applies)
under this proposed rule would be at USCIS's discretion. If the
evidence in the credible fear record before USCIS is such that a USCIS
AO would be unable to apply the mandatory bars in the credible fear
determination efficiently or effectively obtain sufficient information
related to a bar in the time allotted for a credible fear interview,
then USCIS may exercise its discretion not to apply the bars in a given
case. In contrast, under the CLP rule, a USCIS AO is required to apply
the CLP presumption of asylum ineligibility in a credible fear
determination in any case where the noncitizen is subject to the
presumption and required to explore in the credible fear record the
applicability of the presumption, potential exceptions, and potential
circumstances that could rebut the presumption. The CLP rule requires
the AO to make a determination as to whether the noncitizen has
demonstrated a significant possibility of being able to show by a
preponderance of the evidence that the presumption of ineligibility
does not apply, that there is an exception, or that it could be
rebutted and, if so, continue with a credible fear determination under
8 CFR 208.30, but if not, screen the applicant for statutory
withholding of removal and protection under CAT under 8 CFR
208.33(b)(2). The CLP rule requires the application of its presumption
of asylum ineligibility in any credible fear screening where it applies
(with exceptions and the possibility of being rebutted in certain
circumstances) to achieve its stated goal of encouraging 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 current proposed rule may, in some instances, apply in a
credible fear screening on top of the CLP rule if the evidence in the
credible fear record is such that a USCIS AO could effectively and
efficiently apply a mandatory bar to withholding of removal in the
credible fear determination in the context of such a screening. Where
it is evident that a noncitizen in the credible fear process who is
subject to the CLP rule and cannot show a reasonable possibility of
persecution is subject to a mandatory bar to withholding of removal
that would prevent that individual from ultimately being able to
receive that form of relief from an immigration judge, but the
noncitizen can nonetheless potentially establish a reasonable fear of
persecution, it would be ineffective, inefficient, and thwart the
underlying goals of the CLP rule to still allow that individual to be
placed in regular INA 240 removal proceedings.
[[Page 41358]]
This proposed rule would allow USCIS to prevent that scenario from
happening in cases where USCIS determines that to do so would be an
effective and efficient use of USCIS resources.
D. Security Bar to Asylum and Withholding of Removal
Under the present proposed rule, USCIS may, in its discretion,
consider the security bars to asylum and withholding of removal when
making a credible fear or reasonable fear determination. INA
208(b)(2)(A)(iv), 241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv),
1231(b)(3)(B)(iv). As discussed above in Section II.D of this preamble,
DHS and DOJ jointly published the Asylum Eligibility and Public Health
rule in 2020 providing that the Departments may consider emergency
public health concerns based on communicable disease (not limited to
COVID-19) when determining whether a noncitizen is subject to the
existing statutory security bars to asylum and withholding of removal
at INA 208(b)(2)(A)(iv) and 241(b)(3)(B)(iv), 8 U.S.C.
1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv).\41\ Should the provisions of
the Asylum Eligibility and Public Health rule go into effect as
currently scheduled on December 31, 2024, it would have implications as
to who could constitute a security risk--as in, what is ``a danger to
the security of the United States.'' Under the instant rule, AOs would
be allowed to consider those provisions as part of applying the
security bar in credible fear and reasonable fear screenings.
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\41\ Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020).
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E. Severability
DHS intends for the provisions of this proposed rule to be
severable from each other. In short, if a court holds that any
provision in a final 8 CFR 208.30, 208.31, or 208.33 is invalid or
unenforceable, DHS intends that the remaining provisions of a final 8
CFR 208.30, 208.31, or 208.33, as relevant, would continue in effect to
the greatest extent possible. In addition, if a court holds that any
such provision is invalid or unenforceable as to a particular person or
circumstance, DHS intends that the provision would remain in effect as
to any other person or circumstance.
Remaining provisions of a final rule could continue to function
sensibly independent of any provision held invalid or unenforceable.
For example, USCIS AOs may apply the mandatory bars to asylum or
statutory withholding of removal in credible fear determinations
pursuant to 8 CFR 208.30(e)(5)(ii)(A) at the standard of whether the
noncitizen demonstrated a significant possibility of establishing by a
preponderance of the evidence that a mandatory bar would not apply,
even if a court finds that the amended regulations applying mandatory
bars to statutory withholding of removal in reasonable fear
determinations are facially invalid. Similarly, the proposed rule could
be applied in 8 CFR 208.30 credible fear determinations even if a court
finds applying the rule on top of the CLP in credible fear
determinations at the ``reasonable possibility'' standard invalid.
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The Department is issuing this proposed rule with a 30-day comment
period because it seeks to finalize the proposed rule, as appropriate,
as quickly as possible to provide an additional tool to more promptly
remove noncitizens who pose public safety and national security risks.
DHS believes that the comment period is reasonable and appropriate
because this proposed rule relates to a discrete topic that has been
addressed in multiple recent notice-and-comment rulemakings, as
described in section II.D of this preamble. This proposed rule is
relatively short and would not dictate a widescale change in practice;
instead, the rule would preserve appropriate flexibility for AOs to
apply the mandatory bars as part of fear screenings when it makes sense
to do so.
DHS also has an interest in swiftly finalizing this change, thereby
expanding operational flexibility. DHS has taken historic measures to
channel migrants into lawful pathways and processes, while imposing
swift consequences, including removals, on those without a legal basis
to remain in the U.S. From May 12, 2023 to March 31, 2024, DHS has
removed or returned over 660,000 individuals, the vast majority of whom
crossed the southwest border.\42\ Total removals and returns since mid-
May 2023 exceed removals and returns in every full fiscal year since
2011.\43\ Overall, the number of people removed, returned, or expelled
over the last three years accounts for a majority of southwest border
encounters during the same time period.\44\ These measures are having
an impact, but DHS remains challenged by global trends of historic
migration, which have led to unprecedented shifts in southwest border
encounter demographics and volume. Given current encounter trends, DHS
would benefit from additional tools and increased flexibility, to
swiftly and predictably impose consequences on those without a legal
basis to remain.
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\42\ OHSS analysis of UIP data as of April 2, 2024.
\43\ Compare OHSS, 2022 Yearbook of Immigration Statistics 89
tbl. 39 (Nov. 2023) (Noncitizen Removals, Returns, and Expulsions,
Fiscal Year 1892 to 2022).
\44\ See OHSS, Immigration Enforcement and Legal Processes
Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated Apr. 5,
2024) (``CBP SW Border Encounters by Agency and Selected
Citizenship'' and ``DHS Repatriations by Type'').
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In light of the discrete nature of the change proposed, multiple
recent rounds of notice-and-comment on this topic, and the need for
additional operational flexibility, DHS believes that a 30-day comment
period is reasonable and appropriate.
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 (``Regulatory Planning and Review''), as
amended by Executive Order 14094 (``Modernizing Regulatory Review''),
and Executive Order 13563 (``Improving Regulation and Regulatory
Review'') direct agencies to assess the costs and benefits of available
regulatory 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. Although this rule has
not been designated significant under section 3(f)(1) of Executive
Order 12866 by the Office of Management and Budget (``OMB'') because it
does not meet the specified criteria with respect to economic impacts,
the OMB has designated this rule as a significant regulatory action
under Executive Order 12866, as amended by Executive Order 14094.
Accordingly, OMB has reviewed this rule.
The expected effects of this proposed rule are discussed above. The
revised procedures described above would reduce the amount of time that
some noncitizens who are subject to mandatory bars contained in section
208(b)(2)(A)(i)-(v) of the Act that prevent them from being granted
[[Page 41359]]
asylum, or the mandatory bars contained in section 241(b)(3)(B) of the
Act that prevent them from being granted withholding of removal, remain
in the United States.
The population to which this rule will apply is likely to be
relatively small, as informed by the number of cases with bars that are
flagged by USCIS during screenings. For example, in FY 2023, only 1,497
(or about 3%) of all positive credible fear decisions were flagged by
the AO for a potential bar. The Department expects that AOs would
choose to apply a mandatory bar to an even smaller subset of these
flagged cases, because not all flagged cases have sufficient supporting
evidence easily available to the AO. The benefits of the proposed rule
are expected to include a modest, unquantified reduction in strains on
limited national resources, specifically a reduction of the resources
expended to detain noncitizens subject to the above cited mandatory
bars for potentially lengthy periods of time while their cases are
considered by immigration courts. Additionally, since such cases would
no longer need to be heard before an immigration court, additional
capacity would be available for immigration judges to decide other
cases. Under the rule, noncitizens subject to the above cited bars will
be quickly removed from the United States, freeing up the Departments'
resources to safely, humanely, and effectively enforce and administer
the immigration laws. The public safety of the United States may be
enhanced as some noncitizens who have engaged in certain criminal
activity, persecuted others, or have been involved in terrorist
activities are quickly removed from the country. The speedy removal of
these noncitizens may create disincentives for other noncitizens who
would be subject to these mandatory bars when considering attempting to
enter the United States.
The costs of the proposed rule would be primarily borne by
noncitizens and the Department. Noncitizens to whom the above cited
bars would be applied in fear screenings would lose the opportunity to
contest the application of the mandatory bars in a full INA 240 merits
hearing before an immigration judge, or to seek appellate review of the
immigration judge's decision should the immigration judge decide to
apply a mandatory bar and deny the case in such INA 240 removal
proceedings. Such noncitizens would also lose the opportunity to gather
additional evidence during the period of time between the fear
screening and the merits immigration judge hearing to show that the
mandatory bar in question should not be applied in their case given
that they will be more quickly removed under the proposed rule than
they would be currently. In addition, the proposed rule would, in some
cases, result in AOs spending additional time, during fear screenings,
to inquire into the applicability of the above cited mandatory bars,
additional time writing up the required mandatory bar analysis for the
credible or reasonable fear determination, and additional time spent by
SAOs to review any mandatory bar analysis conducted in such
determinations, although AOs would have discretion whether to consider
such bars at the screening stage and could therefore minimize the
government costs associated with the proposed rule in cases where the
additional development of the record and analysis would not be outcome
determinative or otherwise an effective use of resources.
C. Regulatory Flexibility Act
DHS has reviewed this proposed rule in accordance with the
Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as
amended (codified at 5 U.S.C. 601 et seq.) and has determined that this
rule would not have a significant economic impact on a substantial
number of small entities. The rule would not regulate ``small
entities'' as that term is defined in 5 U.S.C. 601(6). Only
individuals, rather than entities, are eligible to apply for asylum or
are otherwise placed in immigration proceedings.
D. Unfunded Mandates Reform Act of 1995
This proposed rule would not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, adjusted for
inflation, and it would not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-
4, 109 Stat. 48; see also 2 U.S.C. 1532(a).
E. 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, it is determined that this rule would not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. DHS nonetheless welcomes public
comment on possible federalism implications of this proposed rule.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
G. Family Assessment
DHS has reviewed this proposed rule in line with the requirements
of section 654 of the Treasury and General Government Appropriations
Act, 1999,\45\ enacted as part of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999.\46\ DHS has reviewed
the criteria specified in section 654(c)(1), by evaluating whether this
regulatory action (1) impacts the stability or safety of the family,
particularly in terms of marital commitment; (2) impacts the authority
of parents in the education, nurture, and supervision of their
children; (3) helps the family perform its functions; (4) affects
disposable income or poverty of families and children; (5) only
financially impacts families, if at all, to the extent such impacts are
justified; (6) may be carried out by State or local government or by
the family; or (7) establishes a policy concerning the relationship
between the behavior and personal responsibility of youth and the norms
of society. If the agency determines a regulation may negatively affect
family well-being, then the agency must provide an adequate rationale
for its implementation. DHS has determined that this proposed rule will
not negatively affect family well-being.
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\45\ See 5 U.S.C. 601 note.
\46\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule does not have tribal implications under
Executive Order 13175 because it would not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
I. Executive Order 13045 (Protection of Children From Environmental
Health Risks and Safety Risks)
Executive Order 13045 requires agencies to consider the impacts of
environmental health risks or safety
[[Page 41360]]
risks that may disproportionately affect children. DHS has reviewed
this proposed rule and have determined that this rule is not a covered
regulatory action under Executive Order 13045. The rule is not
considered significant under Section 3(f)(1) of Executive Order 12866
and would not create an environmental risk to health or risk to safety
that might disproportionately affect children.
J. National Environmental Policy Act
DHS and its components analyze proposed actions to determine
whether the National Environmental Policy Act of 1969, (42 U.S.C. 4321
et seq.) (``NEPA''), applies to these actions and, if so, what level of
NEPA review is required. 42 U.S.C. 4336. DHS's Directive 023-01,
Revision 01,\47\ and Instruction Manual 023-01-001-01, Revision 01
(``Instruction Manual'') \48\ establish the procedures that DHS uses to
comply with NEPA and the Council on Environmental Quality (``CEQ'')
regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
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\47\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01, Revision 01 (Oct. 31, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf.
\48\ DHS, Implementation of the National Environmental Policy
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6,
2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
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Federal agencies may establish categorical exclusions for
categories of actions they determine normally do not significantly
affect the quality of the human environment and, therefore, do not
require the preparation of an Environmental Assessment or Environmental
Impact Statement. 42 U.S.C. 4336e(1), 40 CFR 1501.4, 1507.3(e)(2)(ii),
1508.1(d). DHS has established its categorical exclusions through its
Instruction Manual in Appendix A. Under DHS's NEPA implementing
procedures, for an action to be categorically excluded, it must satisfy
each of the following three conditions: (1) the entire action clearly
fits within one or more of the categorical exclusions; (2) the action
is not a piece of a larger action; and (3) no extraordinary
circumstances exist that create the potential for a significant
environmental effect.\49\
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\49\ Instruction Manual at V.B(2)(a) through (c).
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The proposed rule, if finalized, would allow AOs to apply certain
bars to asylum and statutory withholding of removal at the fear
screening stage. DHS has determined that the promulgation of this
proposed rule satisfies all three requirements for a categorical
exclusion. First, the proposed rule fits clearly within categorical
exclusion A3(d) of the Instruction Manual, Appendix A, for the
promulgation of rules that ``interpret or amend an existing regulation
without changing its environmental effect.'' The proposed rule would
change the point in time at which certain statutory bars are considered
but would not change any environmental effect of the bars. Second, this
proposed rule is a standalone rule and is not part of any larger
action. Third, DHS is not aware of any extraordinary circumstances that
would cause a significant environmental impact. Therefore, this
proposed rule is categorically excluded from further NEPA review.
K. Paperwork Reduction Act
This NPRM does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security proposes to amend chapter I of title 8
of the Code of Federal Regulations as set forth below.
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. 208.30 by revising the first sentence of paragraph
(e)(2) and paragraph (e)(5) to read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
* * * * *
(e) * * *
(2) An alien will be found to have a credible fear of persecution
if there is a significant possibility, taking 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 officer, that
the alien can establish eligibility for asylum under section 208 of the
Act or for withholding of removal under section 241(b)(3) of the Act,
including that the alien is not subject to a mandatory bar, if
considered under paragraph (e)(5)(ii) of this section. * * *
* * * * *
(5) Except as provided in paragraph (e)(6) or (7) of this section:
(i) If an alien is able to establish a credible fear of persecution
or torture but appears to be subject to one or more of the mandatory
bars to applying for, or being granted, asylum contained in section
208(a)(2) and (b)(2)(A)(vi) of the Act, the Department of Homeland
Security shall nonetheless issue a Notice to Appear or retain
jurisdiction over the alien's case for further consideration of the
alien's claim pursuant to paragraph (f) of this section, if the alien
is not a stowaway.
(ii) If an alien, who is unable to establish a credible fear of
torture, is able to establish a credible fear of persecution but
appears to be subject to one or more of the mandatory bars to being
granted either asylum or withholding of removal, as set forth in
section 208(b)(2)(A)(i)-(v) of the Act or section 241(b)(3)(B) of the
Act, respectively, the asylum officer may consider the applicability of
such bar(s) as part of the asylum officer's credible fear
determination.
(A) The asylum officer shall issue a negative credible fear finding
with regard to the alien's eligibility for asylum or withholding of
removal under the Act if the asylum officer determines there is not a
significant possibility that the alien would be able to establish by a
preponderance of the evidence that such bar(s) do not apply.
(B) The asylum officer shall issue a Notice to Appear or retain
jurisdiction over the alien's case for further consideration of the
alien's claim pursuant to paragraph (f) of this section, if the asylum
officer finds that there is a significant possibility that the alien
would be able to establish by a preponderance of the evidence that such
bar(s) do not apply.
(iii) In all cases, if the alien is a stowaway and the Department
would otherwise initiate proceedings under paragraphs (e)(5)(i) and
(ii) of this section, the Department shall place the alien in
proceedings for consideration of the alien's claim pursuant to Sec.
208.2(c)(3) and shall not retain jurisdiction over the case for further
consideration nor issue a Notice to Appear.
* * * * *
0
3. Amend Sec. 208.31 by revising paragraphs (c) and (g) to read as
follows:
[[Page 41361]]
Sec. 208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
* * * * *
(c) Interview and procedure. The asylum officer shall conduct the
interview in a non-adversarial manner, separate and apart from the
general public. At the time of the interview, the asylum officer shall
determine that the alien has an understanding of the reasonable fear
determination process. The alien may be represented by counsel or an
accredited representative at the interview, at no expense to the
Government, and may present evidence, if available, relevant to the
possibility of persecution or torture. The alien's representative may
present a statement at the end of the interview. The asylum officer, in
his or her discretion, may place reasonable limits on the number of
persons who may be present at the interview and the length of the
statement. If the alien is unable to proceed effectively in English,
and if the asylum officer is unable to proceed competently in a
language chosen by the alien, the asylum officer shall arrange for the
assistance of an interpreter in conducting the interview. The
interpreter may not be a representative or employee of the applicant's
country or nationality, or if the applicant is stateless, the
applicant's country of last habitual residence. The asylum officer
shall create a summary of the material facts as stated by the
applicant. At the conclusion of the interview, the officer shall review
the summary with the alien and provide the alien with an opportunity to
correct errors therein. The asylum officer shall create a written
record of his or her determination, including a summary of the material
facts as stated by the applicant, any additional facts relied on by the
officers, and the officer's determination of whether, in light of such
facts, the alien has established a reasonable fear of persecution or
torture. The alien shall be determined to have a reasonable fear of
persecution if the alien establishes a reasonable possibility that he
or she would be persecuted on account of his or her race, religion,
nationality, membership in a particular social group or political
opinion, unless the alien appears to be subject to one or more of the
mandatory bars to being granted withholding of removal under the Act
contained in section 241(b)(3)(B) of the Act and the alien fails to
show that there is a reasonable possibility that no mandatory bar
applies, if the asylum officer considers such bars. The alien shall be
determined to have a reasonable fear of persecution or torture if the
alien establishes a reasonable possibility that he or she would be
tortured in the country of removal.
* * * * *
(g) Review by immigration judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to review by an
immigration judge upon the alien's request. If the alien requests such
review, the asylum officer shall serve him or her 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. The immigration
judge's review shall proceed under the procedures set forth in 8 CFR
1208.31(g).
0
4. Amend Sec. 208.33 by revising paragraphs (b)(2)(i) through (iii) to
read as follows:
Sec. 208.33 Lawful pathways condition on asylum eligibility.
* * * * *
(b) * * *
(2) * * *
(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. As part of this
reasonable possibility determination, if there is evidence that the
alien is subject to one or more of the mandatory bars to being granted
withholding of removal under the Act contained in section 241(b)(3)(B)
of the Act, the asylum officer may consider the applicability of such
bar(s).
(ii) In cases described in paragraph (b)(2)(i) of this section, if
the alien establishes a reasonable possibility of persecution with
respect to the identified country or countries of removal and, to the
extent bars are considered, that there is a reasonable possibility that
no mandatory bar applies, the Department will issue a Form I-862,
Notice to Appear. If the alien establishes a reasonable possibility of
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
with respect to the identified country or countries of removal or, to
the extent bars are considered, fails to establish that there is a
reasonable possibility that no mandatory bar applies, and fails to
establish a reasonable possibility of 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.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-10390 Filed 5-9-24; 4:15 pm]
BILLING CODE 9111-97-P