[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
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 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\
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    \39\ See INA 235(a)(2), 8 U.S.C. 1225(a)(2); see also 8 CFR 
208.30(e)(5).
---------------------------------------------------------------------------

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

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

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

    \41\ Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020).
---------------------------------------------------------------------------

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

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

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

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

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

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

    \49\ Instruction Manual at V.B(2)(a) through (c).
---------------------------------------------------------------------------

    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