[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Rules and Regulations]
[Pages 48710-48772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12435]



[[Page 48709]]

Vol. 89

Friday,

No. 111

June 7, 2024

Part II





Department of Homeland Security

Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 208, 235, and 1208





Securing the Border; Interim Final Rule

  Federal Register / Vol. 89 , No. 111 / Friday, June 7, 2024 / Rules 
and Regulations  

[[Page 48710]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 235

[USCIS Docket No. USCIS-2024-0006]
RIN 1615-AC92

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 5943-2024]
RIN 1125-AB32


Securing the Border

AGENCY: U.S. Citizenship and Immigration Services (``USCIS''), 
Department of Homeland Security (``DHS''); Executive Office for 
Immigration Review (``EOIR''), Department of Justice (``DOJ'').

ACTION: Interim final rule (``IFR'') with request for comments.

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SUMMARY: On June 3, 2024, the President signed a Proclamation under 
sections 212(f) and 215(a) of the Immigration and Nationality Act 
(``INA''), finding that the entry into the United States of certain 
noncitizens during emergency border circumstances would be detrimental 
to the interests of the United States, and suspending and limiting the 
entry of those noncitizens. The Proclamation directed DHS and DOJ to 
promptly consider issuing regulations addressing the circumstances at 
the southern border, including any warranted limitations and conditions 
on asylum eligibility. The Departments are now issuing this IFR.

DATES: 
    Effective date: This IFR is effective at 12:01 a.m. eastern 
daylight time on June 5, 2024.
    Submission of public comments: Comments must be submitted on or 
before July 8, 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 this IFR, identified by USCIS 
Docket No. USCIS-2024-0006, through the Federal eRulemaking Portal: 
https://www.regulations.gov. Follow the website instructions for 
submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to the Departments' officials, will 
not be considered comments on the IFR and may not receive a response 
from the Departments. Please note that the Departments cannot accept 
any comments that are hand-delivered or couriered. In addition, the 
Departments cannot accept comments contained on any form of digital 
media storage devices, such as CDs/DVDs and USB drives. The Departments 
are not accepting mailed comments at this time. If you cannot submit 
your comment by using https://www.regulations.gov, please contact the 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at (240) 721-3000 for alternate instructions.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Executive Summary
    A. Background and Purpose
    B. Legal Authority
    C. Summary of Provisions of the IFR
III. Discussion of the IFR
    A. Current Framework
    1. Asylum, Statutory Withholding of Removal, and CAT Protection
    2. Expedited Removal and Screenings in the Credible Fear Process
    3. Lawful Pathways Condition on Asylum Eligibility
    B. Justification
    1. Global Migration at Record Levels
    2. Need for These Measures
    3. Description of the Rule and Explanation of Regulatory Changes
    C. Section-by-Section Description of Amendments
    1. 8 CFR 208.13 and 1208.13
    2. 8 CFR 208.35
    3. 8 CFR 1208.35
    4. 8 CFR 235.15
IV. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    1. Foreign Affairs
    2. Good Cause
    B. Executive Order 12866 (Regulatory Planning and Review), 
Executive Order 13563 (Improving Regulation and Regulatory Review), 
and Executive Order 14094 (Modernizing Regulatory Review)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Congressional Review Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Family Assessment
    I. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    J. National Environmental Policy Act
    K. Paperwork Reduction Act

List of Abbreviations

AO Asylum Officer
APA Administrative Procedure Act
BIA Board of Immigration Appeals (DOJ, EOIR)
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment
CBP U.S. Customs and Border Protection
CBP One app CBP One mobile application
CDC Centers for Disease Control and Prevention
CHNV Cuba, Haiti, Nicaragua, and Venezuela
DHS Department of Homeland Security
DOD Department of Defense
DOJ Department of Justice
EOIR Executive Office for Immigration Review
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FRP Family Reunification Parole
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration and Customs Enforcement
IFR Interim Final Rule
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IJ Immigration Judge
INA or the Act Immigration and Nationality Act
INS Immigration and Naturalization Service
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act
NTA Notice to Appear
OHSS Office of Homeland Security Statistics
OIS Office of Immigration Statistics
OMB Office of Management and Budget
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
UC Unaccompanied Child, having the same meaning as Unaccompanied 
Alien Child as defined at 6 U.S.C. 279(g)(2)
UIP U.S. Customs and Border Protection Unified Immigration Portal
UMRA Unfunded Mandates Reform Act of 1995
UNHCR United Nations High Commissioner for Refugees
USBP U.S. Border Patrol
USCIS U.S. Citizenship and Immigration Services

I. Public Participation

    The Departments invite all interested parties to participate in 
this rulemaking by submitting written data, views, comments, and 
arguments on all aspects of this IFR by the deadline stated above. The 
Departments also invite comments

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that relate to the economic, environmental, or federalism effects that 
might result from this IFR. Comments that will provide the most 
assistance to the Departments in implementing these changes will 
reference a specific portion of the IFR, explain the reason for any 
recommended change, and include data, information, or authority that 
supports such recommended change. Comments must be submitted in 
English, or an English translation must be provided. Comments submitted 
in a manner other than pursuant to the instructions, including emails 
or letters sent to the Departments' officials, will not be considered 
comments on the IFR and may not receive a response from the 
Departments.
    Instructions: If you submit a comment, you must include the USCIS 
Docket No. USCIS-2024-0006 for this rulemaking. All submissions may be 
posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to the 
Departments. The Departments may withhold information provided in 
comments from public viewing that they determine may impact the privacy 
of an individual or is offensive. For additional information, please 
read the Privacy and Security Notice available at https://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing 
USCIS Docket No. USCIS-2024-0006. You may also sign up for email alerts 
on the online docket to be notified when comments are posted, or a 
final rule is published.

II. Executive Summary

A. Background and Purpose

    On June 3, 2024, the President signed a Proclamation under sections 
212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding 
that because the border security and immigration systems of the United 
States are unduly strained at this time, the entry into the United 
States of certain categories of noncitizens \1\ is detrimental to the 
interests of the United States, and suspending and limiting the entry 
of such noncitizens. The Proclamation explicitly excepts from its terms 
certain persons who are not subject to the suspension and limitation. 
This rule is necessary to respond to the emergency border circumstances 
discussed in the Proclamation.
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    \1\ For purposes of this preamble, the Departments use the term 
``noncitizen'' to be synonymous with the term ``alien'' as it is 
used in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. 
Barr, 590 U.S. 222, 226 n.2 (2020).
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    The Departments use the term ``emergency border circumstances'' in 
this preamble to generally refer to situations in which high levels of 
encounters at the southern border exceed DHS's capacity to deliver 
timely consequences to most individuals who cross irregularly into the 
United States and cannot establish a legal basis to remain in the 
United States. As the preamble elsewhere explains, the periods during 
which the Proclamation is intended to be in effect, when encounters 
exceed certain thresholds, identify such situations. Hence, the 
Departments in this preamble use the term ``emergency border 
circumstances'' to refer more specifically to the period of time after 
the date that the Proclamation's suspension and limitation on entry 
would commence (as described in section 1 of the Proclamation) until 
the discontinuation date referenced in section 2(a) of the Proclamation 
or the date the President revokes the Proclamation (whichever comes 
first), as well as any subsequent period during which the 
Proclamation's suspension and limitation on entry would apply as 
described in section 2(b) of the Proclamation.\2\ As the Proclamation 
and this preamble explain, these circumstances exist despite the 
Departments' efforts to address substantial levels of migration, and 
such circumstances are a direct result of Congress's failure to update 
outdated immigration laws and provide needed funding and resources for 
the efficient operation of the border security and immigration systems.
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    \2\ The Departments have sought to avoid describing ``emergency 
border circumstances'' as the time period during which the 
Proclamation is in effect, because the Departments intend for 
certain provisions of this rule to remain in effect in the event a 
court enjoins or otherwise renders inoperable the Proclamation or 
this rule's limitation on asylum eligibility.
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    The Proclamation explains that since 2021, as a result of political 
and economic conditions globally, there have been substantial levels of 
migration throughout the Western Hemisphere,\3\ including record levels 
at the southwest land border (``SWB'').\4\ In

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response to record levels of encounters at the SWB,\5\ the United 
States Government has taken a series of significant steps to strengthen 
consequences for unlawful or unauthorized entry at the border, while at 
the same time overseeing the largest expansion of lawful, safe, and 
orderly pathways and processes for individuals to come to the United 
States for protection in decades.\6\ These steps include:
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    \3\ According to OHSS analysis of the United Nations High 
Commissioner for Refugees (``UNHCR'') data from 1969 to 2022, there 
were more than 8.5 million displaced persons in the Western 
Hemisphere in 2022, including approximately 6.6 million Venezuelans, 
300,000 Nicaraguans, 260,000 Hondurans, 250,000 Cubans, 250,000 
Colombians, 210,000 Haitians, and 210,000 Salvadorans, among others. 
By comparison, prior to 2018 there were never more than 1 million 
displaced persons in the hemisphere, and prior to 2007 there were 
never more than 300,000. Nearly 1 in every 100 people in the Western 
Hemisphere was displaced in 2022, compared to less than 1 in 1,000 
displaced in the region each year prior to 2018. See UNHCR, Refugee 
Data Finder, unhcr.org/refugee-statistics/download/?url=PhV1Xc (last 
visited May 27, 2024); see also UNHCR, Global Trends: Forced 
Displacement in 2022, at 2, 8, 9, 12 (June 14, 2023), https://www.unhcr.org/global-trends-report-2022 (showing rapid global 
increases in forcibly displaced persons and other persons in need of 
international protection in 2021 and 2022, and projecting 
significant future increases); UNHCR, Venezuela Situation, https://www.unhcr.org/emergencies/venezuela-situation (last updated Aug. 
2023).
    \4\ United States Government sources refer to the U.S. border 
with Mexico by various terms, including ``SWB'' and ``the southern 
border.'' In some instances, these differences can be substantive, 
referring only to portions of the border, while in others they 
simply reflect different word choices. As defined in section 4(d) of 
the Proclamation, the term ``southern border'' includes both the 
southwest land border (``SWB'') and the southern coastal borders. As 
defined in section 4(c) of the Proclamation, the term ``southwest 
land border'' means the entirety of the United States land border 
with Mexico. And as defined in section 4(b) of the Proclamation, the 
term ``southern coastal borders'' means all maritime borders in 
Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime 
borders proximate to the SWB, the Gulf of Mexico, and the southern 
Pacific coast in California; and all maritime borders of the United 
States Virgin Islands and Puerto Rico. The Departments believe that 
the factual circumstances described herein support applying this IFR 
to both the SWB and the southern coastal borders, although they 
recognize that occasionally different variations of this terminology 
may be used. The Departments further note there are sound reasons 
for the Proclamation and rule to include maritime borders of the 
United States Virgin Islands and Puerto Rico; this aspect of the 
Proclamation and rule help avoid any incentive for maritime 
migration to such locations. The dangers of such migration, and the 
operational challenges associated with responding to such maritime 
migration, are well documented. See Securing America's Maritime 
Border: Challenges and Solutions for U.S. National Security: Hearing 
Before the Subcomm. on Transp. & Mar. Sec. of the H. Comm. on 
Homeland Sec., 108th Cong. 10-11 (prepared statement of Rear Admiral 
Jo-Ann F. Burdian, Assistant Commandant for Response Policy, U.S. 
Coast Guard) (describing an increasingly challenging operational 
environment and noting that most ``Cuban and Haitian migrants use 
transit routes into Florida, either directly or via the Bahamas. 
Alternatively, Dominican and some Haitian migrants use shorter 
transit routes across the Mona Passage to Puerto Rico and the U.S. 
Virgin Islands. Common conveyances used in this region range from 
fishing vessels, coastal freighters, sail freighters, go-fast type 
vessels, and `rusticas.' ''); PBS, More Than 100 Migrants Stranded 
Near Puerto Rico Await Help During Human Smuggling Operation (Oct. 
18, 2022), https://www.pbs.org/newshour/world/more-than-100-migrants-stranded-near-puerto-rico-await-help-during-human-smuggling-operation (``Mona Island is located in the treacherous 
waters between Dominican Republic and Puerto Rico and has long been 
a dropping off point for human smugglers promising to ferry Haitian 
and Dominican migrants to the U.S. territory aboard rickety boats. 
Dozens of them have died in recent months in an attempt to flee 
their countries amid a spike in poverty and violence.''); United 
States Coast Guard, Coast Guard Repatriates 38 Migrants to Dominican 
Republic Following 2 Interdictions Near Puerto Rico (Apr. 25, 2024), 
https://www.news.uscg.mil/Press-Releases/Article/3755880/coast-guard-repatriates-38-migrants-to-dominican-republic-following-2-interdict/; United States Coast Guard, Coast Guard Repatriates 101 
Migrants to Dominican Republic Following 3 Interdictions Near Puerto 
Rico (Apr. 9, 2024), https://www.news.uscg.mil/Press-Releases/Article/3734747/coast-guard-repatriates-101-migrants-to-dominican-republic-following-3-interdic/; United States Coast Guard, Coast 
Guard, Federal, Local Interagency Responders Search for Possible 
Survivors of Capsized Migrant Vessel in Camuy, Puerto Rico (Feb. 1, 
2024), https://www.news.uscg.mil/Press-Releases/Article/3663106/coast-guard-federal-local-interagency-responders-search-for-possible-survivors/; United States Coast Guard, Coast Guard 
Repatriates 28 Migrants to Dominican Republic, Following 
Interdiction of Unlawful Migration Voyage in the Mona Passage (Jan. 
31, 2024), https://www.news.uscg.mil/Press-Releases/Article/3661517/coast-guard-repatriates-28-migrants-to-dominican-republic-following-interdictio/. There were 35,100 encounters of Dominicans between 
POEs at the SWB in Fiscal Year (``FY'') 2023 and 14,100 in the first 
six months of FY 2024 (on pace for 28,200), up from an average of 
400 such encounters per year in FY 2014 through FY 2019--roughly a 
90-fold increase. Office of Homeland Security Statistics (``OHSS'') 
analysis of March 2024 OHSS Persist Dataset.
    \5\ At the SWB, U.S. Customs and Border Protection (``CBP'') 
completed approximately 1.7 million encounters at and between POEs 
in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY 2023, with 
each year exceeding the previous record high of 1.68 million in FY 
2000. Compare OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 
33 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total 
apprehensions and Title 42 expulsions from 1925 to 2022), and id. at 
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022), with OHSS, 
2012 Yearbook of Immigration Statistics 96 tbl. 35 (July 2013), 
https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2012.pdf (apprehensions from FY 2003 
to FY 2012), and OHSS, 2002 Yearbook of Immigration Statistics 184 
tbl. 40 (Oct. 2003), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2002.pdf (apprehensions 
from FY 1996 to FY 2002). In December 2023, CBP also completed a 
single-month record of approximately 302,000 encounters at and 
between POEs, almost one and a half times as many as the highest 
monthly number recorded prior to 2021 (approximately 209,000 in 
March 2000) based on records available in the OHSS Persist Dataset 
from FY 2000 to the present. Although some of the increase in 
encounters is explained by higher-than-normal numbers of repeat 
encounters of the same individuals during the period in which 
noncitizens were expelled pursuant to the Centers for Disease 
Control and Prevention's (``CDC's'') Title 42 public health Order, 
OHSS analysis of the March 2024 OHSS Persist Dataset indicates that 
unique encounters were also at record high levels. See OHSS analysis 
of March 2024 OHSS Persist Dataset.
    DHS data in this IFR are current through March 31, 2024, the 
most recent month for which DHS has data that have gone through its 
full validation process. DHS primarily relies on two separate 
datasets for most of the data in this IFR. Most DHS data are pulled 
from OHSS's official statistical system of record data, known as the 
OHSS Persist Dataset, which is typically released by OHSS on a 90-
day delay. Other data in this IFR are pulled from OHSS's Enforcement 
Lifecycle dataset, which combines 23 separate DHS and DOJ datasets 
to report on the end-to-end immigration enforcement process. Due to 
this greater complexity, Lifecycle data generally become available 
for reporting 90 to 120 days after the end of each quarter.
    CBP also publishes preliminary data pulled from its operational 
systems more quickly as part of its regular Monthly Operational 
Updates. The data in these updates reflect operational realities but 
change over time as transactional records in the systems of record 
are cleaned and validated; they are best viewed as initial estimates 
rather than as final historical records. CBP released an operational 
update on May 15, 2024, that includes the Component's official 
reporting for encounters through the end of April. Based on these 
data, SWB encounters between POEs fell slightly by six percent 
between March and April. OHSS analysis of data obtained from CBP, 
Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last accessed May 24, 2024). 
The preliminary April data are best understood to reflect a 
continuation of the general pattern described elsewhere in this IFR. 
Excluding March through April 2020, which was an unusual case 
because of the onset of the COVID-19 pandemic, the average month-
over-month change between March and April for 2013 through 2024 is a 
2.3 percent increase, with 4 out of those 11 years experiencing 
decreases in April and 7 years experiencing increases.
    \6\ See DHS, Fact Sheet: Department of State and Department of 
Homeland Security Announce Additional Sweeping Measures to Humanely 
Manage Border through Deterrence, Enforcement, and Diplomacy (May 
10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.
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     Promulgating and implementing the rule titled 
Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023) 
(``Circumvention of Lawful Pathways rule'');
     Deploying more than 500 additional DHS personnel at a time 
to the SWB to support U.S. Customs and Border Protection (``CBP'') 
operations and refocusing a significant portion of DHS's SWB workforce 
to prioritize migration management above other border security 
missions; \7\
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    \7\ DHS, Fact Sheet: The Biden-Harris Administration Takes New 
Actions to Increase Border Enforcement and Accelerate Processing for 
Work Authorizations, While Continuing to Call on Congress to Act 
(Sept. 20, 2023), https://www.dhs.gov/news/2023/09/20/fact-sheet-biden-harris-administration-takes-new-actions-increase-border.
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     Deploying over 1,000 additional Department of Defense 
(``DOD'') personnel on top of the 2,500 steady state presence to the 
SWB in May 2023 to further enhance border security; \8\
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    \8\ Id.; see also DOD, Austin Approves Homeland Security Request 
for Troops at Border (May 2, 2023), https://www.defense.gov/News/News-Stories/Article/Article/3382272/austin-approves-homeland-security-request-for-troops-at-border/.
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     Processing record numbers of individuals through expedited 
removal; \9\
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    \9\ In the months between May 12, 2023, and March 31, 2024, CBP 
processed roughly 316,000 noncitizens encountered at and between SWB 
POEs for expedited removal, more than in any prior full fiscal year. 
OHSS analysis of data pulled from CBP Unified Immigration Portal 
(``UIP'') on April 2, 2024.
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     Implementing a historic expansion of lawful pathways and 
processes to come to the United States, including: the Cuba, Haiti, 
Nicaragua, and Venezuela (``CHNV'') parole processes, which allow 
individuals with U.S.-based supporters to seek parole on a case-by-case 
basis for urgent humanitarian reasons or significant public benefit; 
the Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and 
Guatemala, which provide access to expedited refugee processing for 
eligible individuals; and the expansion of country-specific family 
reunification parole processes for individuals in the region who have 
U.S. citizen relatives in the United States; \10\
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    \10\ DHS, Fact Sheet: U.S. Government Announces Sweeping New 
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration.
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     Expanding opportunities to enter the United States for 
seasonal employment; \11\
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    \11\ DHS, DHS to Supplement H-2B Cap with Nearly 65,000 
Additional Visas for FY 2024, Department of Homeland Security (Nov. 
3, 2023), https://www.dhs.gov/news/2023/11/03/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2024.
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     Establishing a mechanism for over 1,400 migrants per day 
to schedule a time and place to arrive in a safe, orderly, and lawful 
manner at ports of entry (``POEs'') through the CBP One mobile 
application (``CBP One app''); \12\
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    \12\ DHS, Fact Sheet: U.S. Government Announces Sweeping New 
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration; CBP, CBP 
OneTM Appointments Increased to 1,450 Per Day (June 30, 
2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
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     Increasing proposed refugee admissions from the Western 
Hemisphere from 5,000 in Fiscal Year (``FY'') 2021 to up to 50,000 in 
FY 2024; \13\
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    \13\ U.S. State Dep't, Report to Congress on Proposed Refugee 
Admissions for Fiscal Year 2024 (Nov. 3, 2023) https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2024/.

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     Completing approximately 89 percent more immigration court 
cases in FY 2023 as compared to FY 2019; \14\ and
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    \14\ See EOIR, Adjudication Statistics: New Cases and Total 
Completions--Historical 1-2 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.
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     Increasing the immigration judge (``IJ'') corps by 66 
percent from FY 2019 to FY 2023, including maximizing the 
congressionally authorized number in FY 2023 for a total corps of 
734.\15\
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    \15\ See EOIR, Adjudication Statistics: Immigration Judge (IJ) 
Hiring 1 (Jan. 2024), https://www.justice.gov/eoir/media/1344911/dl?inline (showing 734 total IJs on board in FY 2023); Executive 
Office for Immigration Review (``EOIR'') Strategic Plan 2024, 
Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last 
visited May 27, 2024) (``The agency's streamlining efforts also 
enabled EOIR, by the close of FY 2023, to fill all 734 appropriated 
IJ positions, thus creating the largest judge corps in the agency's 
history.'').
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    The Proclamation further states that although these efforts and 
other complementary measures are having their intended effect--DHS is 
processing noncitizens for removal in record numbers and with record 
efficiency \16\--the border security and immigration systems have not 
been able to keep pace with the number of individuals arriving at the 
southern border.\17\ Simply put, the Departments do not have adequate 
resources and tools to deliver timely decisions and consequences to 
individuals who cross unlawfully and cannot establish a legal basis to 
remain in the United States, or to provide timely protection to those 
ultimately found eligible for protection when individuals are arriving 
at such elevated, historic volumes.\18\
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    \16\ See supra note 9. Since May 12, 2023, the median time to 
refer noncitizens encountered by CBP at the SWB who claim a fear for 
credible fear interviews decreased by 77 percent from its historical 
average, from 13 days in the FY 2014 to FY 2019 pre-pandemic period 
to 3 days in the four weeks ending March 31, 2024; for those who 
receive negative credible fear determinations, the median time from 
encounter to removal, over the same time frames, decreased 85 
percent from 73 days to 11 days. Pre-May 12, 2023, data from OHSS 
Lifecycle Dataset as of December 31, 2023; post-May 11, 2023, data 
from OHSS analysis of data downloaded from UIP on April 2, 2024.
    DHS removed or returned over 662,000 noncitizens between May 12, 
2023, and March 31, 2024, or an average of over 61,300 per month 
(excluding crew members detained on board their vessels and other 
administrative returns); this represents the highest average monthly 
count of removals and returns since FY 2010. Post-May 12, 2023, 
repatriations from OHSS analysis of data downloaded from UIP on 
April 2, 2024; see also OHSS, Immigration Enforcement and Legal 
Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last 
updated May 10, 2024) (providing historic data on repatriations); 
OHSS, 2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 
2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf 
(noncitizen removals, returns, and expulsions for FY 1892 to FY 
2022).
    \17\ See Letter for Kevin McCarthy, Speaker of the House of 
Representatives, from Shalanda D. Young, Director, Office of 
Management and Budget (``OMB'') (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.
    \18\ Id.; see also Ariel G. Ruiz-Soto et al., Migration Pol'y 
Inst., Shifting Realities at the U.S.-Mexico Border: Immigration 
Enforcement and Control in a Fast-Evolving Landscape 20 (Jan. 2024), 
https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf (``Across the border, 
interviewed agents expressed frustration with low staffing levels 
and resource allocations compared to the challenge of managing the 
border.''). DHS acknowledges that the enacted FY 2024 DHS budget 
does appropriate funding sufficient to pay for approximately 2,000 
additional Border Patrol agents, bringing the total level indicated 
by Congress up to 22,000 agents, compared with 19,855 agents for FY 
2023. 170 Cong Rec. H1809-10 (daily ed. Mar. 22, 2024) (Explanatory 
Statement Regarding H.R. 2882, Further Consolidated Appropriations 
Act, 2024) (``The agreement includes . . . [funding] to hire 22,000 
Border Patrol Agents.''); 168 Cong Rec. S8557 (daily ed. Dec. 20, 
2022) (Explanatory Statement Regarding H.R. 2617, Consolidated 
Appropriations Act, 2023) (``The agreement provides funding for 
19,855 Border Patrol agents.''). However, the FY 2024 appropriations 
do not fully fund CBP's existing operational and staffing 
requirements. Additionally, CBP estimates that it will likely be 
unable to implement a hiring surge to meaningfully grow its overall 
staffing levels towards the staffing levels funded by the FY 2024 
budget before the end of the current fiscal year. The hiring process 
requires time and resources to bring additional agents on board. For 
example, it generally takes more than six months for an applicant to 
complete the hiring process and report to the U.S. Border Patrol 
(``USBP'') Academy to receive necessary training. See DHS, Statement 
from Secretary Mayorkas on the President's Fiscal Year 2025 Budget 
for the U.S. Department of Homeland Security (Mar. 11, 2024), 
https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department (``However, DHS's 
border security and immigration enforcement efforts along the 
Southwest border desperately require the additional funds requested 
by the Administration and included in the Senate's bipartisan border 
security legislation, which would provide DHS with approximately $19 
billion to fund additional personnel, facilities, repatriation 
capabilities, and other enforcement resources.'').
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    This became even more clear in the months following the lifting of 
the Title 42 public health Order.\19\ As the Departments resumed 
widespread processing under title 8 authorities, the insufficiency of 
both the available statutorily authorized tools and the resources 
provided to implement them came into stark focus. Despite the expanded 
ability to impose consequences at the SWB through the Circumvention of 
Lawful Pathways rule and complementary measures, which led to the 
highest numbers of returns and removals in more than a decade,\20\ 
encounter levels have remained elevated well above historical levels, 
with December 2023 logging the highest monthly total on record.\21\ 
While encounter levels in calendar year 2024 have decreased from these 
record numbers, there is still a substantial and elevated level of 
migration, and historically high percentages of migrants are claiming 
fear and are challenging to remove, as discussed in more detail in 
Section III.B.1 of this preamble.\22\ This

[[Page 48714]]

substantial migration throughout the hemisphere, combined with 
inadequate resources and tools to keep pace, limits DHS's ability to 
impose timely consequences through expedited removal, the main 
consequence available at the border under title 8 authorities.
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    \19\ See Public Health Determination and Order Regarding 
Suspending the Right To Introduce Certain Persons From Countries 
Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 public 
health Orders, which ``suspend[ed] the right to introduce certain 
persons into the United States from countries or places where the 
quarantinable communicable disease exists in order to protect the 
public health from an increased risk of the introduction of COVID-
19''). Although the CDC indicated its intention to lift the order on 
May 23, 2022, ongoing litigation prevented the order from being 
lifted until it ultimately expired on May 11, 2023. See 88 FR at 
31319.
    \20\ In the ten and a half months between May 12, 2023, and 
March 31, 2024, DHS completed over 662,000 removals and enforcement 
returns, more than in any full fiscal year since FY 2011, and the 
highest monthly average of enforcement repatriations since FY 2010. 
Post-May 12, 2023, repatriations from OHSS analysis of data 
downloaded from UIP on April 2, 2024; see also OHSS, Immigration 
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing historic data on 
repatriations); OHSS, 2022 Yearbook of Immigration Statistics 103-04 
tbl. 39 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf 
(noncitizen removals, returns, and expulsions for FY 1892 to FY 
2022).
    \21\ There were nearly 302,000 CBP encounters at and between 
POEs along the SWB in December 2023, higher than any previous month 
on record. OHSS analysis of March 2024 OHSS Persist Dataset and 
historic CBP data for encounters prior to FY 2000; see also OHSS, 
2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov. 2023) 
(total apprehensions and Title 42 expulsions from 1925 to 2022), 
https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf; id. at 
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (SWB encounters from FY 
2014 through December 2023).
    \22\ After peaking at nearly 302,000 in December 2023, 
encounters at and between POEs along the SWB fell to approximately 
176,000 in January 2024, 190,000 in February 2024, and 189,000 in 
March 2024. At an average of 185,000 for the first three months of 
2024, monthly encounters levels were almost 4 times higher than the 
pre-pandemic (FY 2014 through 2019) average of 48,000 encounters at 
and between POEs per month and--with the exceptions of FY 2022 and 
FY 2023--represented the highest second quarter count of encounters 
in any year since FY 2001. March 2024 OHSS Persist Dataset; see also 
OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov. 
2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total 
apprehensions and title 42 expulsions from 1925 to 2022); id. at 94-
96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (SWB encounters from FY 
2014 through December 2023).
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    The sustained, high encounter rates the Departments have 
experienced over the past year have outstripped the Departments' 
abilities--based on available resources--to process noncitizens through 
expedited removal in significant numbers. Due to its funding shortfall, 
DHS simply lacks sufficient resources, such as sufficient USCIS asylum 
officers (``AOs'') to conduct fear screenings and sufficient temporary 
processing facilities, often called ``soft-sides,'' which limits DHS's 
ability to conduct credible fear interviews for individuals in CBP 
custody and to process and hold individuals in U.S. Immigration and 
Customs Enforcement (``ICE'') custody during the expedited removal 
process.\23\ This mismatch in available resources and encounters 
creates stress on the border and immigration systems and forces DHS to 
rely on processing pathways outside of expedited removal--limiting the 
Departments' ability to deliver timely consequences to individuals who 
do not have a legal basis to remain in the United States.\24\ 
Individuals who are subject to but cannot be processed under expedited 
removal due to resource constraints are instead released pending 
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a 
(``section 240 removal proceedings''), before an IJ, a process that can 
take several years to conclude.\25\ These immigration court proceedings 
can be less resource intensive for processing upon initial encounter, 
because individuals can be released from custody fairly quickly, but 
are also far less likely to result in swift decisions and swift 
consequences, and generally require more IJ and ICE attorney time to 
resolve. Compare INA 235(b)(1), 8 U.S.C. 1225(b)(1), with INA 240, 8 
U.S.C. 1229a. Notably, in FY 2023, when the immigration courts had a 
historic high number of case completions, the number of new cases far 
outnumbered those completions and led to a larger backlog--likely 
extending the length of time it will take individuals encountered and 
referred into section 240 removal proceedings to finish their 
immigration court process.\26\
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    \23\ ``Because ICE has very limited detention capacity and 
appropriated bedspace has remained relatively static, the agency 
must carefully prioritize whom it detains. Similar to FY 2022, 
during FY 2023, Enforcement and Removal Operations' limited 
detention capacity was primarily used to house two populations: 
noncitizens CBP arrested at the Southwest Border and noncitizens 
with criminal histories [Enforcement and Removal Operations] 
arrested in the interior.'' Fiscal Year 2023 ICE Annual Report 18 
(Dec. 29, 2023), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf. In FY 2024, ICE was appropriated 
$5,082,218,000.00 ``for enforcement, detention and removal 
operations.'' Consolidated Appropriations Act, 2024, Public Law 118-
47, 138 Stat. 460, 598 (2024). The joint explanatory statement 
states that the bill provides ``$5,082,218,000 for Enforcement and 
Removal Operations (ERO)'' and ``$355,700,000 for 41,500 beds for 
the full fiscal year and inflationary adjustments to support current 
detention facility operations.'' 170 Cong. Rec. H1807, 1812 (daily 
ed. Mar. 22, 2024).
    \24\ See CBP, Custody and Transfer Statistics, https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics (last 
updated Apr. 12, 2024) (table showing that, under current 
constraints, the number of individuals processed for expedited 
removal makes up only a fraction of total processing dispositions, 
including section 240 proceedings).
    \25\ EOIR decisions completed in December 2023 were, on average, 
initiated in December 2020, during the significant operational 
disruptions caused by the COVID-19 pandemic (with encounters several 
months earlier than that), but 50 percent of EOIR cases initiated 
during that time were still pending as of December 2023, so the 
final mean processing time (once all such cases are complete) will 
be longer. OHSS analysis of EOIR data as of February 12, 2024; EOIR 
Strategic Plan 2024, Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last visited May 26, 2024) (``EOIR [ ] 
suffered operational setbacks during the COVID-19 pandemic years of 
FY 2020 through FY 2022, including declining case completions due to 
health closures and scheduling complications and delays in agency 
efforts to transition to electronic records and the efficiencies 
they represent. While the challenges of the pandemic were overcome 
by adaptive measures taken during those years, the pandemic's impact 
on the pending caseload is still being felt.''). While EOIR does not 
report statistics on pending median completion times for removal 
proceedings in general, it does report median completion times for 
certain types of cases, such as detained cases and cases involving 
UCs. See, e.g., EOIR, Median Unaccompanied Noncitizen Child (UAC) 
Case Completion and Case Pending Time (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344951/dl?inline (median completion time 
of 1,346 days); EOIR, Median Completion Times for Detained Cases 
(Jan. 18, 2024), https://www.justice.gov/eoir/media/1344866/dl?inline (median completion time of 47 days in the first quarter of 
2024 for removal, deportation, exclusion, asylum-only, and 
withholding-only cases); EOIR, Percentage of DHS-Detained Cases 
Completed within Six Months (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344886/dl?inline (reporting seven 
percent of detained cases not completed within six months).
    \26\ EOIR completed more than 520,000 cases in FY 2023 (a record 
number), but also had almost 1.2 million case receipts, resulting in 
a net increase of nearly 700,000 cases in its backlog. See EOIR, 
Adjudication Statistics: Pending Cases, New Cases, and Total 
Completions 1 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2020/01/31/1_pending_new_receipts_and_total_completions.pdf; EOIR, Adjudication 
Statistics: New Cases and Total Completions--Historical (Oct. 12, 
2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf. OHSS estimates 
that 1.1 million of the nearly 1.2 million case receipts (95 
percent) resulted from SWB encounters. OHSS analysis of March 2024 
OHSS Persist Dataset.
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    Said another way, at the current levels of encounters and with 
current resources, the Departments cannot predictably and swiftly 
deliver consequences to most noncitizens who cross the border without a 
lawful basis to remain. This inability to predictably deliver timely 
decisions and consequences further compounds incentives for migrants to 
make the dangerous journey to the SWB, regardless of any individual 
noncitizen's ultimate likelihood of success on an asylum or protection 
application.\27\ Smugglers and transnational criminal organizations 
(``TCOs'') have exploited this mismatch, further fueling migration by 
actively advertising to migrants that they are likely to be able to 
remain in the United States.\28\
---------------------------------------------------------------------------

    \27\ Miriam Jordan, One Big Reason Migrants Are Coming in 
Droves: They Believe They Can Stay, N.Y. Times (Jan. 31, 2024), 
https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html.
    \28\ See Parker Asmann & Steven Dudley, How US Policy Foments 
Organized Crime on US-Mexico Border, Insight Crime (June 28, 2023), 
https://insightcrime.org/investigations/how-us-policy-foments-organized-crime-us-mexico-border/.
---------------------------------------------------------------------------

    The Departments' ability to refer and process noncitizens through 
expedited removal thus continues to be overwhelmed, creating a vicious 
cycle in which the border security and immigration systems cannot 
deliver timely decisions and consequences to all the people who are 
encountered at the SWB and lack a lawful basis to remain in the United 
States. This, in turn, forces DHS to release individuals into the 
backlogged immigration court system; for the many cases in that system 
initiated just prior to or during the COVID-19 pandemic, the process 
can take several years to result in a final decision or 
consequence,\29\ which then incentivizes more people to make the 
dangerous journey north to take their chances at the SWB.\30\ The 
status quo of the broken immigration and asylum system has become a 
driver for unlawful migration throughout the region and an increasingly 
lucrative source of income for dangerous TCOs.\31\ Without 
countermeasures, those TCOs will continue to grow in strength, likely 
resulting in even more smuggling operations and undermining democratic 
governance in the countries where they operate.\32\ All of these 
factors, taken together, pose significant threats to the

[[Page 48715]]

safety and security of migrants exploited into making the dangerous 
journey to the SWB and the U.S. communities through which many such 
migrants transit.
---------------------------------------------------------------------------

    \29\ See supra note 25.
    \30\ See, e.g., Jordan, supra note 27.
    \31\ See Asmann & Dudley, supra note 28.
    \32\ See Jordan, supra note 27.
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    In the absence of congressional action to appropriately resource 
DHS and EOIR and to reform the outdated statutory framework, the 
Proclamation and the changes made by this rule are intended to 
substantially improve the Departments' ability to deliver timely 
decisions and consequences to noncitizens who lack a lawful basis to 
remain. By suspending and limiting entries until 12:01 a.m. eastern 
time on the date that is 14 calendar days after the Secretary makes a 
factual determination that there has been a 7-consecutive-calendar-day 
average of less than 1,500 encounters, as defined by the Proclamation, 
but excluding noncitizens determined to be inadmissible at a SWB POE, 
and by imposing a limitation on asylum eligibility and making other 
policy changes, the Proclamation and IFR will realign incentives at the 
southern border.\33\ The Proclamation and IFR will do this by improving 
DHS's ability to place into expedited removal the majority of 
noncitizens who are amenable to such processing; to avoid large-scale 
releases of such individuals pending section 240 removal proceedings; 
and to allow for swift resolution of their cases and, where 
appropriate, removal.
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    \33\ Under the Proclamation, the term ``encounter'' refers to a 
noncitizen who (i) is physically apprehended by CBP immigration 
officers within 100 miles of the United States SWB during the 14-day 
period immediately after entry between POEs; (ii) is physically 
apprehended by DHS personnel at the southern coastal borders during 
the 14-day period immediately after entry between POEs; or (iii) is 
determined to be inadmissible at a SWB POE. But the 1,500 and 2,500 
encounter thresholds in the Proclamation and this rule exclude the 
third category of encounters--individuals determined to be 
inadmissible at a SWB POE. When describing historical data in this 
preamble, the Departments have generally sought to distinguish 
between encounters between POEs (also referred to as ``USBP 
encounters'') and encounters at and between the POEs (also referred 
to as ``total CBP encounters'' or ``encounters,'' depending on the 
context).
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    The Proclamation imposes a suspension and limitation on entry upon 
certain classes of noncitizens who are encountered while the suspension 
and limitation is in effect. The Proclamation provides that the 
suspension and limitation on entry applies beginning at 12:01 a.m. 
eastern daylight time on June 5, 2024. The suspension and limitation on 
entry will be discontinued 14 calendar days after the Secretary makes a 
factual determination that there has been a 7-consecutive-calendar-day 
average of less than 1,500 encounters, as defined by the Proclamation, 
but excluding noncitizens determined to be inadmissible at a SWB POE. 
Unaccompanied children (``UCs'') \34\ from non-contiguous countries are 
not included in calculating the number of encounters. If at any time 
after such a factual determination the Secretary makes a factual 
determination that there has been a 7-consecutive-calendar-day average 
of 2,500 encounters or more, the suspension and limitation on entry 
will apply at 12:01 a.m. eastern time on the next calendar day (or will 
continue to apply, if the 14-calendar-day period has yet to elapse) 
until 14 days after the Secretary makes another factual determination 
that there has been a 7-consecutive-calendar-day average of less than 
1,500 encounters or the President revokes the Proclamation, at which 
time its application will be discontinued once again.
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    \34\ In this rulemaking, as in the Proclamation, the term 
``unaccompanied children'' or ``UCs'' has the same meaning as the 
term ``unaccompanied alien child[ren]'' under 6 U.S.C. 279(g)(2).
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    The Proclamation does not apply to the following persons:
    (i) any noncitizen national of the United States;
    (ii) any lawful permanent resident of the United States;
    (iii) any unaccompanied child as defined in section 279(g)(2) of 
title 6, United States Code;
    (iv) any noncitizen who is determined to be a victim of a severe 
form of trafficking in persons, as defined in section 7102(16) of title 
22, United States Code;
    (v) any noncitizen who has a valid visa or other lawful permission 
to seek entry or admission into the United States, or presents at a 
port of entry pursuant to a pre-scheduled time and place, including:
    (A) members of the United States Armed Forces and associated 
personnel, United States Government employees or contractors on orders 
abroad, or their accompanying family members who are on their orders or 
are members of their household;
    (B) noncitizens who hold a valid visa or who have all necessary 
documents required for admission consistent with the requirements of 
section 1182(a)(7) of title 8, United States Code, upon arrival at a 
port of entry;
    (C) noncitizens traveling pursuant to the visa waiver program as 
described in section 217 of the INA, 8 U.S.C. 1187; and
    (D) noncitizens who arrive in the United States at a southwest land 
border port of entry pursuant to a process the Secretary of Homeland 
Security determines is appropriate to allow for the safe and orderly 
entry of noncitizens into the United States;
    (vi) any noncitizen who is permitted to enter by the Secretary of 
Homeland Security, acting through a U.S. Customs and Border Protection 
immigration officer, based on the totality of the circumstances, 
including consideration of significant law enforcement, officer and 
public safety, urgent humanitarian, and public health interests at the 
time of the entry or encounter that warranted permitting the noncitizen 
to enter; and
    (vii) any noncitizen who is permitted to enter by the Secretary of 
Homeland Security, acting through a U.S. Customs and Border Protection 
immigration officer, due to operational considerations at the time of 
the entry or encounter that warranted permitting the noncitizen to 
enter.
    The President authorized the Secretary of Homeland Security and the 
Attorney General to issue any instructions, orders, or regulations as 
may be necessary to implement the Proclamation, including the 
determination of the exceptions in section 3(b), and directed them to 
promptly consider issuing any instructions, orders, or regulations as 
may be necessary to address the circumstances at the southern border, 
including any additional limitations and conditions on asylum 
eligibility that they determine are warranted, subject to any 
exceptions that they determine are warranted.
    Consistent with the President's direction, the Departments have 
determined that this IFR is necessary to address the situation at the 
southern border. This IFR aligns the Departments' border operations and 
applicable authorities with the Proclamation's policy and objectives. 
Specifically, this IFR establishes a limitation on asylum eligibility 
that applies to certain individuals who enter during emergency border 
circumstances and revises certain procedures applicable to the 
expedited removal process to more swiftly apply consequences for 
irregular migration \35\ and remove noncitizens who do not have a legal 
basis to remain in the United States. Although the Departments are 
adopting these measures to respond to the emergency situation at the 
southern border, they are not a substitute for congressional action--
which remains the only long-term solution to the challenges the 
Departments have confronted on the border for more than a decade.
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    \35\ In this preamble, ``irregular migration'' refers to the 
movement of people into another country without authorization.

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[[Page 48716]]

B. Legal Authority

    The Secretary and the Attorney General jointly issue this rule 
pursuant to their shared and respective authorities concerning 
consideration of claims for asylum, statutory withholding of removal, 
and protection under regulations implemented pursuant to U.S. 
obligations under Article 3 of the Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'').\36\ The 
Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 
2135, as amended, created DHS and transferred to the Secretary of 
Homeland Security many functions related to the administration and 
enforcement of Federal immigration law while maintaining some functions 
and authorities with the Attorney General, including some shared 
concurrently with the Secretary.
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    \36\ Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty 
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, 114; see also 8 U.S.C. 
1231 note (United States Policy With Respect to Involuntary Return 
of Persons in Danger of Subjection to Torture); 8 CFR 208.16(c)-
208.18, 1208.16(c)-1208.18.
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    The INA, as amended by the HSA, charges the Secretary ``with the 
administration and enforcement of [the INA] and all other laws relating 
to the immigration and naturalization of aliens,'' except insofar as 
those laws assign functions to other agencies. INA 103(a)(1), 8 U.S.C. 
1103(a)(1). The INA also grants the Secretary the authority to 
establish regulations and take other actions ``necessary for carrying 
out'' the Secretary's authority under the immigration laws, INA 
103(a)(3), 8 U.S.C. 1103(a)(3); see also 6 U.S.C. 202.
    The HSA provides the Attorney General with ``such authorities and 
functions under [the INA] and all other laws relating to the 
immigration and naturalization of aliens as were [previously] exercised 
by [EOIR], or by the Attorney General with respect to [EOIR].'' INA 
103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. In addition, 
under the HSA, the Attorney General retains authority to ``establish 
such regulations, . . . issue such instructions, review such 
administrative determinations in immigration proceedings, delegate such 
authority, and perform such other acts as the Attorney General 
determines to be necessary for carrying out'' the Attorney General's 
authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2).
    Under the HSA, the Attorney General retains authority over the 
conduct of removal proceedings under section 240 of the INA, 8 U.S.C. 
1229a (``section 240 removal proceedings''). These adjudications are 
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g)(1), 8 
U.S.C. 1103(g)(1). With limited exceptions, IJs adjudicate asylum, 
statutory withholding of removal, and CAT protection applications filed 
by noncitizens during the pendency of section 240 removal proceedings, 
including asylum applications referred by USCIS to the immigration 
court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 240(a)(1), 8 U.S.C. 
1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.2(b), 
1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532, 536-37 (7th Cir. 
2018) (describing affirmative and defensive asylum processes). The 
Board of Immigration Appeals (``BIA''), also within DOJ's EOIR, in turn 
hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1), (b)(3); see 
also Garland v. Ming Dai, 593 U.S. 357, 366-67 (2021) (describing 
appeals from IJs to the BIA). And the INA provides that the 
``determination and ruling by the Attorney General with respect to all 
questions of law shall be controlling.'' INA 103(a)(1), 8 U.S.C. 
1103(a)(1).
    In addition to the separate authorities discussed above, the 
Attorney General and the Secretary share some authorities.\37\ Section 
208 of the INA, 8 U.S.C. 1158, authorizes the ``Secretary of Homeland 
Security or the Attorney General'' to ``grant asylum'' to a noncitizen 
``who has applied for asylum in accordance with the requirements and 
procedures established by'' the Secretary or the Attorney General under 
section 208 if the Secretary or the Attorney General determines that 
the noncitizen is a ``refugee'' within the meaning of section 
101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42)(A). INA 208(b)(1)(A), 8 
U.S.C. 1158(b)(1)(A). Section 208 thereby authorizes the Secretary and 
the Attorney General to ``establish[ ]'' ``requirements and 
procedures'' to govern asylum applications. Id. The statute further 
authorizes them to ``establish,'' ``by regulation,'' ``additional 
limitations and conditions, consistent with'' section 208, under which 
a noncitizen ``shall be ineligible for asylum.'' INA 208(b)(2)(C), 8 
U.S.C. 1158(b)(2)(C); see also INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) 
(authorizing the Secretary and the Attorney General to ``provide by 
regulation for any other conditions or limitations on the consideration 
of an application for asylum not inconsistent with [the INA]'').\38\ 
The INA also provides the Secretary and Attorney General authority to 
publish regulatory amendments governing their respective roles 
regarding apprehension, inspection and admission, detention and 
removal, withholding of removal, deferral of removal, and release of 
noncitizens encountered in the interior of the United States or at or 
between POEs. See INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
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    \37\ The HSA further provides, ``Nothing in this Act, any 
amendment made by this Act, or in section 103 of the [INA], as 
amended . . . , shall be construed to limit judicial deference to 
regulations, adjudications, interpretations, orders, decisions, 
judgments, or any other actions of the Secretary of Homeland 
Security or the Attorney General.'' Public Law 107-296, 116 Stat. 
2135, 2274 (codified at 6 U.S.C. 522).
    \38\ Under the HSA, the references to the ``Attorney General'' 
in the INA also encompass the Secretary with respect to statutory 
authorities vested in the Secretary by the HSA or subsequent 
legislation, including in relation to immigration proceedings before 
DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.
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    The HSA granted DHS the authority to adjudicate asylum applications 
and to conduct credible fear interviews, make credible fear 
determinations in the context of expedited removal, and establish 
procedures for further consideration of asylum applications after an 
individual is found to have a credible fear. INA 103(a)(3), 8 U.S.C. 
1103(a)(3); INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also 6 U.S.C. 
271(b) (providing for the transfer of adjudication of asylum and 
refugee applications from the Commissioner of Immigration and 
Naturalization to the Director of the Bureau of Citizenship and 
Immigration Services, now USCIS). Within DHS, the Secretary has 
delegated some of those authorities to the Director of USCIS, and AOs 
conduct credible fear interviews, make credible fear determinations, 
and determine whether a noncitizen's asylum application should be 
granted. See DHS, No. 0150.1, Delegation to the Bureau of Citizenship 
and Immigration Services (June 5, 2003); 8 CFR 208.2(a), 208.9, 208.30.
    The United States is a party to the 1967 Protocol Relating to the 
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the 
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of 
the Refugee Convention generally prohibits parties to the Convention 
from expelling or returning (``refouler'') ``a refugee in any manner 
whatsoever to the frontiers of territories where his life or freedom 
would be threatened on account of his race, religion, nationality, 
membership of a particular social group or political opinion.'' Refugee 
Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.

[[Page 48717]]

    Congress implemented these obligations through the Refugee Act of 
1980, Public Law 96-212, 94 Stat. 102 (``Refugee Act''), 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 
non-refoulement obligations under Article 33 of the Refugee Convention 
(via the Refugee Protocol) through the statutory withholding of removal 
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) 
(``statutory withholding of removal''), which provides that a 
noncitizen may not be removed to a country where their life or freedom 
would be threatened on account of one of the protected grounds listed 
in Article 33 of the Refugee Convention.\39\ See INA 241(b)(3), 8 
U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA also 
authorizes the Secretary and the Attorney General to implement 
statutory withholding of removal under section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3). See INA 103(a)(1), (3), (g)(1)-(2), 8 U.S.C. 
1103(a)(1), (3), (g)(1)-(2).
---------------------------------------------------------------------------

    \39\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999); 
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987) 
(distinguishing between Article 33's non-refoulement prohibition, 
which aligns with what was then called withholding of deportation, 
and Article 34's call to ``facilitate the assimilation and 
naturalization of refugees,'' which the Court found aligned with the 
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158). 
The Refugee Convention and Protocol are not self-executing. E.g., 
Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967 
Protocol is not self-executing, nor does it confer any rights beyond 
those granted by implementing domestic legislation.'').
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    The Departments also have authority to implement Article 3 of the 
CAT. The Foreign Affairs Reform and Restructuring Act of 1998 
(``FARRA'') provides the Departments with the authority to ``prescribe 
regulations to implement the obligations of the United States under 
Article 3 of the [CAT], subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention.'' Public Law 105-277, 
div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (codified at 8 U.S.C. 
1231 note). DHS and DOJ have implemented the obligations of the United 
States under Article 3 of the CAT in the Code of Federal Regulations, 
consistent with FARRA. See, e.g., 8 CFR 208.16(c)-208.18, 1208.16(c)-
1208.18; Regulations Concerning the Convention Against Torture, 64 FR 
8478 (Feb. 19, 1999), amended by 64 FR 13881 (Mar. 23, 1999).
    This rule is necessary because, while the Proclamation recognizes 
that the asylum system has contributed to the border emergency, the 
Proclamation itself does not and cannot affect noncitizens' right to 
apply for asylum, eligibility for asylum, or asylum procedures. That 
has been the Executive Branch's consistent position for four 
decades.\40\ That longstanding understanding follows from the text and 
structure of the governing statutes. Section 212(f) provides that under 
certain circumstances, the President may ``suspend the entry of all 
aliens or any class of aliens as immigrants or nonimmigrants, or impose 
on the entry of aliens any restrictions he may deem to be 
appropriate.'' INA 212(f), 8 U.S.C. 1182(f). Although this provision--
first enacted in 1952--``grants the President broad discretion,'' it 
``operate[s]'' only in its ``sphere[ ].'' Trump v. Hawaii, 585 U.S. 
667, 683-84, 695 (2018). Section 212 of the INA, 8 U.S.C. 1182 
(entitled ``Inadmissible aliens''), generally ``defines the universe of 
aliens who are admissible'' and ``sets the boundaries of admissibility 
into the United States.'' Id. at 695. Hence, when section 212(f) 
authorizes the President to suspend ``entry,'' it ``enabl[es] the 
President to supplement the other grounds of inadmissibility in the 
INA,'' id. at 684 (citing Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 
(D.C. Cir. 1986)), and to bar individuals from entry into the United 
States.
---------------------------------------------------------------------------

    \40\ In 1984, then-Assistant Attorney General of the Office of 
Legal Counsel Theodore B. Olson advised that section 212(f) did not 
permit the President to eliminate the asylum rights of noncitizens 
who had hijacked a plane and, as a condition of the plane's release, 
been flown to the United States. And in 2018, the Departments 
reaffirmed that ``[a]n alien whose entry is suspended or restricted 
under . . . a [section 212(f)] proclamation, but who nonetheless 
reaches U.S. soil contrary to the President's determination that the 
alien should not be in the United States, would remain subject to 
various procedures under immigration laws,'' including ``expedited-
removal proceedings'' where they could ``raise any claims for 
protection.'' Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protection Claims, 83 FR 
55934, 55940 (Nov. 9, 2018). Although Presidents have invoked 
section 212(f) at least 90 times since 1981, to the Departments' 
knowledge, none of those proclamations was understood to affect the 
right of noncitizens on U.S. soil to apply for, or noncitizens' 
statutory eligibility to receive, asylum. See Kelsey Y. Santamaria 
et al., Cong. Rsch. Serv., Presidential Authority to Suspend Entry 
of Aliens Under 8 U.S.C. 1182(f) (Feb. 21, 2024). At the same time, 
nothing in the proclamations or the INA have precluded the 
Departments from considering as an adverse discretionary criterion 
that a noncitizen is described in a section 212(f) proclamation.
---------------------------------------------------------------------------

    This authority, though broad, does not authorize the President to 
override the asylum statute.\41\ The asylum statute, first enacted in 
the Refugee Act of 1980, today provides that ``[a]ny alien who is 
physically present in the United States or who arrives in the United 
States . . . irrespective of such alien's status, may apply for 
asylum.'' INA 208(a)(1), 8 U.S.C. 1158(a)(1). The right to apply for 
asylum thus turns on whether a noncitizen is ``physically present'' or 
has ``arrive[d] in the United States,'' id., as those terms are 
properly understood, and exists regardless of whether a noncitizen is 
inadmissible.\42\ As a result, the power under section 212(f) to 
suspend ``entry'' does not authorize the President to override the 
asylum rights of noncitizens who have already physically entered the 
United States and who are entitled to an adjudication of eligibility 
under the applicable statutory and regulatory rules and standards.\43\
---------------------------------------------------------------------------

    \41\ The Supreme Court, though it has never squarely addressed 
this issue, has also never indicated that section 212(f) confers 
power to affect asylum rights of those present in the United States. 
Cf., e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174-77 
(1993) (upholding a Coast Guard program of intercepting migrant 
vessels and returning migrants to their home country, authorized in 
part by section 212(f), on the basis that statutory rights under the 
withholding of removal statute did not have ``extraterritorial 
application'' to migrants who were not physically present); Hawaii, 
585 U.S. at 689, 695 (assuming, without deciding, that section 
212(f) ``does not allow the President to expressly override 
particular provisions of the INA,'' while emphasizing the particular 
``sphere[ ]'' in which it operates).
    \42\ Section 212(f) contrasts with 42 U.S.C. 265, which 
authorizes the CDC to temporarily suspend ``the right to introduce . 
. . persons and property'' into the United States if such suspension 
``is required in the interest of the public health.'' During the 
COVID-19 pandemic and to prevent the ``serious danger of the 
introduction of [the] disease into the United States,'' 42 U.S.C. 
265, the CDC issued an order invoking section 265 to expel certain 
noncitizens without allowing asylum applications. As the final rule 
implementing section 265 explained, the provision is part of a 
``broad public health statute'' that ``operates separately and 
independently of the immigration power'' and authorizes the CDC ``to 
temporarily suspend the effect of any law . . . by which a person 
would otherwise have the right to be introduced . . . into the 
U.S.,'' Control of Communicable Diseases; Foreign Quarantine: 
Suspension of the Right To Introduce and Prohibition of Introduction 
of Persons Into United States From Designated Foreign Countries or 
Places for Public Health Purposes, 85 FR 56424, 56426, 56442 (Sept. 
11, 2020), including the immigration laws, id. at 56426 (noting that 
legislative history indicates that section 265 was intended to 
suspend immigration if public health required it). The drafting 
history of section 265 also confirms that Congress conferred 
authority to prohibit ``the introduction of persons'' in order to 
broaden this provision and that this provision subsumed but was not 
limited to the authority to ``suspend immigration.'' Br. for 
Appellants at 41-43, Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. 
Cir. 2022) (No. 21-5200); see Huisha-Huisha, 27 F.4th at 730-31 
(determining plaintiffs not likely to succeed on their challenge to 
the CDC order on the ground that it improperly suspended migrants' 
right to apply for asylum). Section 265 is a public-health authority 
under the Public Health Service Act. Its grant of authority to allow 
the CDC to temporarily suspend immigration laws in case of a public 
health emergency has no relevance to the interpretation of section 
212(f), which is in title 8.
    \43\ For similar reasons, section 215(a) of the INA, 8 U.S.C. 
1185(a), which the Proclamation also invokes, does not authorize the 
President to impose the condition and limitation on asylum 
eligibility created by this rule. Cf. United States ex rel. Knauff 
v. Shaughnessy, 338 U.S. 537, 540-47 (1950) (holding that under the 
precursor to section 215(a)(1) of the INA and the presidential 
proclamation and regulations issued pursuant to that provision, 
which during times of national emergency made it unlawful for ``any 
alien to . . . enter or attempt to . . . enter the United States 
except under such reasonable rules, regulations, and orders, and 
subject to such limitations and exceptions as the President shall 
prescribe,'' the Attorney General could issue regulations governing 
entry during such an emergency to ``deny [certain noncitizens] a 
hearing . . . in special cases'' notwithstanding the ordinary 
exclusion hearing provisions governing entry). This does not mean, 
however, that the President could not invoke section 215(a) as 
authority to impose reasonable rules, regulations, and orders on 
asylum applicants and asylees, such as travel document requirements 
for re-entry and departure controls.

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[[Page 48718]]

    This rule, as discussed elsewhere, is authorized because Congress 
has conferred upon the Secretary and the Attorney General express 
rulemaking power to create new conditions and limitations on asylum 
eligibility and create certain procedures for adjudicating asylum 
claims. INA 103(a)(1), (a)(3), (g), 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 
8 U.S.C. 1103(a)(1), (a)(3), (g), 1158(b)(1)(A), (b)(2)(C), (d)(5)(B); 
INA 235(b)(1)(B)(iii)(III), (iv), 8 U.S.C. 1225(b)(1)(B)(iii)(III), 
(iv).

C. Summary of Provisions of the IFR

    This IFR adds provisions at 8 CFR 208.13(g), 208.35, 235.15, 
1208.13(g), and 1208.35 that effectuate three key changes to the 
process for those seeking asylum, statutory withholding of removal, or 
protection under the CAT during emergency border circumstances giving 
rise to the suspension and limitation on entry under the Presidential 
Proclamation of June 3, 2024, Securing the Border (``Presidential 
Proclamation of June 3''):
     During emergency border circumstances, persons who enter 
across the southern border and who are not described in section 3(b) of 
the Proclamation will be ineligible for asylum unless they demonstrate 
by a preponderance of the evidence that exceptionally compelling 
circumstances exist, including if the noncitizen demonstrates that they 
or a member of their family as described in 8 CFR 208.30(c) with whom 
they are traveling: (1) faced an acute medical emergency; (2) faced an 
imminent and extreme threat to life or safety, such as an imminent 
threat of rape, kidnapping, torture, or murder; or (3) satisfied the 
definition of ``victim of a severe form of trafficking in persons'' 
provided in 8 CFR 214.11.
     During emergency border circumstances, rather than asking 
specific questions of every noncitizen encountered and processed for 
expedited removal to elicit whether the noncitizen may have a fear of 
persecution or an intent to apply for asylum, for those who enter 
across the southern border and are not described in section 3(b) of the 
Proclamation, DHS will provide general notice regarding the process for 
seeking asylum, statutory withholding of removal, or protection under 
the CAT and will refer a noncitizen for a credible fear interview only 
if the noncitizen manifests a fear of return, expresses an intention to 
apply for asylum or protection, or expresses a fear of persecution or 
torture or a fear of return to his or her country or the country of 
removal.
     The limitation on asylum eligibility will be applied 
during credible fear interviews and reviews, and those who enter across 
the southern border during emergency border circumstances and are not 
described in section 3(b) of the Proclamation will receive a negative 
credible fear determination with respect to their asylum claim unless 
there is a significant possibility the noncitizen could demonstrate by 
a preponderance of the evidence that exceptionally compelling 
circumstances exist. Such noncitizens will thereafter be screened for a 
reasonable probability of persecution because of a protected ground or 
torture, a higher standard than that applied to noncitizens in a 
similar posture under the Circumvention of Lawful Pathways rule. The 
``reasonable probability'' standard is defined to mean substantially 
more than a ``reasonable possibility'' but somewhat less than more 
likely than not.
    As discussed throughout this IFR, these changes are designed to 
implement the policies and objectives of the Proclamation by enhancing 
the Departments' ability to address historic levels of migration and 
efficiently process migrants arriving at the southern border during 
emergency border circumstances.

III. Discussion of the IFR

A. Current Framework

1. Asylum, Statutory Withholding of Removal, and CAT Protection
    Asylum is a discretionary benefit that can be granted by the 
Secretary or the Attorney General 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)-(2), 8 U.S.C. 1158(b)(1)-(2) (providing that, 
unless subject to a mandatory bar, the Secretary or Attorney General 
``may'' grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 
1101(a)(42)(A) (defining ``refugee''). As long as they retain their 
asylee status, noncitizens who are granted asylum (1) cannot be removed 
or returned to their country of nationality or, if they have no 
nationality, their last habitual residence, (2) receive employment 
authorization incident to their status, (3) may be permitted to travel 
outside of the United States and return with prior consent, and (4) may 
seek derivative benefits for their spouses or children. INA 208(c)(1), 
8 U.S.C. 1158(c)(1); see Johnson v. Guzman Chavez, 594 U.S. 523, 536 
(2021) (``[A] grant of asylum permits an alien to remain in the United 
States and to apply for permanent residency after one year[.]'' 
(emphasis omitted) (internal quotation marks and citation omitted)); 8 
CFR 274a.12(a)(5) (employment authorization incident to asylum status); 
8 CFR 223.1(b) (allowing for return to the United States after travel 
with a requisite travel document for a ``person who holds . . . asylum 
status pursuant to section 208 of the Act''); see also 6 U.S.C. 
271(b)(3) (transferring asylum functions to DHS); 6 U.S.C. 557 
(providing that references to any other officer shall be deemed to 
refer to the ``Secretary'' with respect to any transferred function); 
INA 208(b)(3), 8 U.S.C. 1158(b)(3) (derivative asylum status).
    Asylum applications are generally classified as ``affirmative'' or 
``defensive'' applications, depending on the agency with which they are 
filed. If a noncitizen is physically present in the United States, not 
detained, and not in section 240 removal proceedings, the noncitizen 
may file an asylum application with USCIS. These applications are 
``affirmative'' filings. Generally, if the noncitizen is in section 240 
removal proceedings before an IJ, the noncitizen may apply for asylum 
before the IJ as a defense to removal.\44\ These applications are 
``defensive'' filings.
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    \44\ The only exception is that USCIS has initial jurisdiction 
over asylum applications filed by a UC even where the applicant is 
in section 240 removal proceedings. INA 208(b)(3)(C), 8 U.S.C. 
1158(b)(3)(C).
---------------------------------------------------------------------------

    Noncitizens are eligible for asylum if they have been persecuted or 
have a well-founded fear of future persecution in their country of 
nationality or, if they have no nationality, their last habitual 
residence, on account of one of five protected grounds and are not 
subject to a bar to eligibility. See generally INA 208, 8 U.S.C. 1158; 
INA 101(a)(42), 8 U.S.C. 1101(a)(42). To be granted

[[Page 48719]]

asylum, eligible noncitizens must also establish that they merit asylum 
in the exercise of discretion. Id. 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, may qualify for other forms of 
protection. An application for asylum submitted by a noncitizen in 
section 240 removal proceedings is also considered an application 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). An IJ also may 
consider a noncitizen's eligibility for statutory withholding of 
removal and CAT protection under regulations issued pursuant to the 
implementing legislation regarding the obligations of the United States 
under Article 3 of the CAT. FARRA sec. 2242(b) (codified at 8 U.S.C. 
1231 note); 8 CFR 1208.3(b), 1208.13(c)(1); see also 8 CFR 1208.16(c), 
1208.17.
    Statutory withholding of removal and CAT protection preclude 
removing a noncitizen to any country where the noncitizen would ``more 
likely than not'' face persecution or torture, meaning that the 
noncitizen's life or freedom would be threatened because of a protected 
ground or that the noncitizen would be tortured. 8 CFR 1208.16(b)(2), 
(c)(2). Thus, if a noncitizen establishes that it is more likely than 
not that their life or freedom would be threatened because of a 
protected ground, but is denied asylum for some other reason, 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), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 1208.16. Likewise, 
a noncitizen who establishes that they more likely than not will face 
torture in their country of removal will qualify for CAT protection. 
See 8 CFR 208.16(c), 208.17(a), 1208.16(c), 1208.17(a).
    In contrast to the more generous benefits available by attaining 
asylum, statutory withholding of removal and CAT protection do not: (1) 
prohibit the Government from removing the noncitizen to a third country 
where the noncitizen would not face the requisite likelihood of 
persecution or torture (even in the absence of an agreement with that 
third country); (2) create a path to lawful permanent resident status; 
or (3) afford the same ancillary benefits, such as derivative 
protection for family members. See, e.g., Guzman Chavez, 594 U.S. at 
536 (``distinguish[ing] withholding-only relief from asylum'' on the 
ground that withholding does not preclude the Government from removing 
the noncitizen to a third country and does not provide the noncitizen 
any permanent right to remain in the United States); Matter of A-K-, 24 
I&N Dec. 275, 279 (BIA 2007) (stating that ``the Act does not permit 
derivative withholding of removal under any circumstances''); INA 
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory provision allowing 
asylum status to be granted to accompanying or following-to-join spouse 
or children of a noncitizen granted asylum; no equivalent statutory or 
regulatory provision for individuals granted withholding or deferral of 
removal).
2. Expedited Removal and Screenings in the Credible Fear Process
    In the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. The process is 
applicable to certain noncitizens present or 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), 
which renders inadmissible noncitizens who make certain material 
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 
1182(a)(7), which renders inadmissible noncitizens who lack 
documentation requirements for admission. INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i). Upon being subject to 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 . . . or a fear of persecution.'' Id.
    Congress created a screening process, known as ``credible fear'' 
screening, to identify potentially valid claims for asylum by 
noncitizens in expedited removal proceedings. The Departments have used 
the same screening process to identify potentially valid claims for 
statutory withholding of removal and CAT protection. If a noncitizen 
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, DHS refers the noncitizen to a USCIS AO to determine 
whether the noncitizen has a credible fear of persecution or torture in 
the country of citizenship or removal. 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). A noncitizen 
has 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 could establish eligibility 
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the AO 
determines that the noncitizen does not have a credible fear of 
persecution or torture, the noncitizen may request that an IJ review 
that determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 208.33(b)(2)(v), 1208.30(g).
    If the AO (or an IJ reviewing the AO's decision) determines that a 
noncitizen has a credible fear of persecution or torture, USCIS can 
refer the noncitizen to an immigration court for adjudication of the 
noncitizen's claims in section 240 removal proceedings, 8 CFR 
208.30(f), 8 CFR 1208.30(g)(2)(iv)(B), and the noncitizen may 
subsequently file a defensive asylum application with the court during 
those proceedings, see 8 CFR 1240.1(a)(1)(ii). Alternatively, USCIS can 
retain jurisdiction over the application for asylum for further 
consideration in an asylum merits interview. See 8 CFR 208.30(f). 
During an asylum merits interview, a positive credible fear 
determination is treated as the asylum application, and strict 
timelines thereafter govern the applicant's case before both USCIS and 
EOIR. See 8 CFR 208.2(a)(1)(ii), 208.3(a)(2), 208.4(b)(2), 208.9(a)(1), 
(e)(1)-(2), (g)(2), (i), 1240.17. The AO may grant asylum, subject to 
review within USCIS, where the noncitizen is eligible and warrants a 
grant as a matter of discretion. 8 CFR 208.14(b). If the noncitizen is 
not eligible or does not warrant a grant of asylum as a matter of 
discretion, the AO refers the application to EOIR. 8 CFR 208.14(c)(1). 
Where USCIS does not grant asylum, the AO's decision will also include 
a determination on eligibility for statutory withholding of removal and 
CAT protection based on the record before USCIS. 8 CFR 208.16(a), 
(c)(4).
    For cases referred to EOIR following an asylum merits interview, 
the written record of the positive credible fear determination serves 
as the asylum application, 8 CFR 1240.17(e), and the record the AO 
developed during the asylum merits interview, as supplemented by the 
parties, serves as the record before the IJ, 8 CFR 1240.17(c), 
(f)(2)(i)(A)(1), (f)(2)(ii)(B). The IJ reviews applications for asylum 
de novo and also reviews applications for statutory withholding of 
removal and CAT protection de novo where USCIS found the noncitizen 
ineligible for such protection. 8 CFR 1240.17(i)(1). However, where 
USCIS found the noncitizen eligible for statutory withholding of 
removal or CAT

[[Page 48720]]

protection, IJs must give effect to USCIS's eligibility determination 
unless DHS demonstrates, through evidence or other testimony that 
specifically pertains to the noncitizen and was not in the record of 
proceedings for the asylum merits interview, that the noncitizen is not 
eligible for such protection. 8 CFR 1240.17(i)(2). With a limited 
exception, DHS may not appeal the grant of any protection for which the 
AO determined the noncitizen eligible. Id.
3. Lawful Pathways Condition on Asylum Eligibility
    On March 20, 2020, the Director of the Centers for Disease Control 
and Prevention (``CDC'') issued an order under 42 U.S.C. 265 and 268 
suspending the introduction of certain noncitizens from foreign 
countries or places where the existence of a communicable disease 
creates a serious danger of the introduction of such disease into the 
United States and the danger is so increased by the introduction of 
persons from the foreign country or place that a temporary suspension 
of such introduction is necessary to protect the public health.\45\ The 
CDC's Title 42 public health Order was extended multiple times.\46\ 
While the Title 42 public health Order was in effect, noncitizens who 
did not have proper travel documents were generally not processed into 
the United States; they were instead expelled to Mexico or to their 
home countries under the Order's authority without being processed 
under the authorities set forth in title 8 of the United States Code, 
which includes the INA. Circumvention of Lawful Pathways, 88 FR 11704, 
11705 (Feb. 23, 2023) (``Circumvention of Lawful Pathways NPRM''). In 
early 2023, the President announced that the Administration expected to 
end the public health emergency on May 11, 2023, which would cause the 
then-operative Title 42 public health Order to end. See id. at 11708.
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    \45\ CDC, Order Under Sections 362 & 365 of the Public Health 
Services Act (42 U.S.C. 265, 268): Order Suspending Introduction of 
Certain Persons from Countries Where a Communicable Disease Exists 
(Mar. 20, 2020), https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf.
    \46\ See Public Health Determination and Order Regarding 
Suspending the Right to Introduce Certain Persons From Countries 
Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 public 
health Orders, which ``suspend[ed] the right to introduce certain 
persons into the United States from countries or places where the 
quarantinable communicable disease exists in order to protect the 
public health from an increased risk of the introduction of COVID-
19'').
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    As the Departments stated in the Circumvention of Lawful Pathways 
rule, absent further action, the end of the Title 42 public health 
Order was expected to cause encounters with noncitizens seeking to 
enter the United States at the SWB to rise to or remain at all-time 
highs--as high as 11,000 migrants daily. 88 FR at 31331, 31315. And 
many of these individuals would be entitled to remain in the United 
States pending resolution of their asylum and protection claims. See 
INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii) (not allowing for 
removal of those found to have a credible fear pending further 
consideration of the asylum claim); see also 88 FR at 31363 (noting 
that ``most non-Mexicans processed for expedited removal under Title 8 
would likely establish credible fear and remain in the United States 
for the foreseeable future''). The Departments thus faced a looming 
urgent situation: absent policy change, the end of the Title 42 public 
health Order was expected to result in many more migrants crossing the 
border and asserting claims of fear or seeking protection, which would 
in turn exceed the border security and immigration systems' capacity to 
process migrants in a safe, expeditious, and orderly way. See 88 FR at 
31363. To address this expected increase in the number of migrants at 
the SWB and adjacent coastal borders seeking to enter the United States 
without authorization, the Departments promulgated the Circumvention of 
Lawful Pathways rule. See 88 FR 31314.
    The Circumvention of Lawful Pathways rule, which became effective 
on its public inspection date, May 11, 2023, id., and applies to those 
who enter during a two-year period, imposes a rebuttable presumption of 
asylum ineligibility on certain noncitizens who fail to pursue safe, 
orderly, and lawful processes for entry into the United States or seek 
protection in another qualifying country through which they traveled. 8 
CFR 208.33(a), 1208.33(a). The rebuttable presumption applies to 
noncitizens who enter the United States from Mexico at the SWB or 
adjacent coastal borders without documents sufficient for lawful 
admission where the entry is: (1) between May 11, 2023, and May 11, 
2025; (2) subsequent to the end of implementation of the Title 42 
public health Order issued on August 2, 2021, and related prior orders 
issued pursuant to the authorities in 42 U.S.C. 265 and 268 and the 
implementing regulation at 42 CFR 71.40; and (3) after the noncitizen 
traveled through a country other than their country of citizenship, 
nationality, or, if stateless, last habitual residence, that is a party 
to the Refugee Convention or Refugee Protocol. 8 CFR 208.33(a)(1), 
1208.33(a)(1).
    The presumption does not apply to UCs or to noncitizens who availed 
themselves of or were traveling with a family member who availed 
themselves of certain safe, orderly, and lawful pathways--specifically 
those who (1) received appropriate authorization to travel to the 
United States to seek parole, pursuant to a DHS-approved parole 
process; (2) presented at a POE pursuant to a pre-scheduled time and 
place or presented at a POE without a pre-scheduled time and place but 
who can demonstrate by a preponderance of the evidence that it was not 
possible to access or use the DHS scheduling system due to language 
barrier, illiteracy, significant technical failure, or other ongoing 
and serious obstacle; or (3) sought asylum or other protection in a 
country through which the noncitizen traveled and received a final 
decision denying that application. 8 CFR 208.33(a)(2), 1208.33(a)(2). 
Noncitizens may also overcome the presumption by demonstrating by a 
preponderance of the evidence that ``exceptionally compelling 
circumstances exist.'' 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Such 
circumstances necessarily exist where, at the time of entry, the 
noncitizen or a family member with whom the noncitizen is traveling: 
(1) faced an acute medical emergency; (2) faced an imminent and extreme 
threat to life or safety, such as an imminent threat of rape, 
kidnapping, torture, or murder; or (3) was a victim of a severe form of 
trafficking in persons under 8 CFR 214.11(a). 8 CFR 208.33(a)(3)(i)(A)-
(C), (ii), 1208.33(a)(3)(i)(A)-(C), (ii). A noncitizen presumed 
ineligible for asylum under the rule may still apply for statutory 
withholding of removal or CAT protection and thus may not be removed to 
a country where it is more likely than not that they will be persecuted 
because of a protected ground or tortured.
    The condition on asylum eligibility in the Circumvention of Lawful 
Pathways rule (``Lawful Pathways condition'') applies to asylum 
applications before USCIS and EOIR. 8 CFR 208.13(f), 1208.13(f). It 
also applies during credible fear screenings. 8 CFR 208.33(b), 
1208.33(b). Noncitizens subject to expedited removal who indicate a 
fear of persecution or an intention to apply for asylum are currently 
first screened to assess whether the rebuttable presumption applies 
and, if so, whether the noncitizen is able to rebut the presumption. 8 
CFR 208.33(b). If the AO

[[Page 48721]]

determines that the rebuttable presumption does not apply or the 
noncitizen has rebutted the presumption, the general procedures 
governing the credible fear process then apply. See 8 CFR 
208.33(b)(1)(ii). On the other hand, if the AO determines that the 
noncitizen is covered by the rebuttable presumption and no rebuttal 
ground applies, the AO will consider whether the noncitizen has 
established a reasonable possibility of persecution or torture with 
respect to the identified country or countries of removal. See 8 CFR 
208.33(b)(1)(i), (b)(2). The Circumvention of Lawful Pathways rule 
currently provides that, if a noncitizen has established a reasonable 
possibility of persecution or torture, then DHS will issue a notice to 
appear (``NTA'') to commence section 240 removal proceedings and may 
not refer the case to the asylum merits interview process. 8 CFR 
208.33(b)(2)(ii).
    Where a noncitizen requests review by an IJ, the IJ reviews the 
negative credible fear finding de novo. See 8 CFR 1208.33(b). If the IJ 
determines that the noncitizen has made a sufficient showing that the 
rebuttable presumption does not apply to them or that they can rebut 
the presumption, and that the noncitizen has established a significant 
possibility of eligibility for asylum, statutory withholding of 
removal, or CAT protection, the IJ issues a positive credible fear 
finding and the case proceeds under existing procedures. See 8 CFR 
208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that the 
noncitizen is covered by the rebuttable presumption and it has not been 
rebutted, but the noncitizen has established a reasonable possibility 
of persecution or torture, the IJ issues a positive credible fear 
finding and DHS will issue an NTA to commence section 240 removal 
proceedings. 8 CFR 208.33(b)(2)(v)(B), 1208.33(b)(2)(ii). And finally, 
if the IJ issues a negative credible fear determination, the case is 
returned to DHS for removal of the noncitizen. See 8 CFR 
208.33(b)(2)(v)(C), 1208.33(b)(2)(ii). In such a circumstance, the 
noncitizen may not appeal the IJ's decision or request that USCIS 
reconsider the AO's negative determination, although USCIS may, in its 
sole discretion, reconsider a negative determination. See 8 CFR 
208.33(b)(2)(v)(C).
    A noncitizen who has not established during expedited removal 
proceedings a significant possibility of eligibility for asylum because 
of the Lawful Pathways condition may, if placed in section 240 removal 
proceedings, apply for asylum, statutory withholding of removal, or CAT 
protection, or any other form of relief or protection for which the 
noncitizen is eligible. See 8 CFR 1208.33(b)(4). Where a principal 
asylum applicant in section 240 removal proceedings is eligible for 
statutory withholding of removal or withholding of removal under the 
CAT and would be granted asylum but for the rebuttable presumption, and 
where either an accompanying spouse or child does not independently 
qualify for asylum or other protection from removal or the principal 
asylum applicant has a spouse or child who would be eligible to follow 
to join that applicant, the presumption shall be deemed rebutted as an 
exceptionally compelling circumstance. 8 CFR 1208.33(c).

B. Justification

1. Global Migration at Record Levels
    Border encounters in the 1980s, 1990s, and 2000s consisted 
overwhelmingly of single adults from Mexico, most of whom were 
migrating for economic reasons.\47\ Beginning in the 2010s, a growing 
share of migrants were from northern Central America \48\ and, since 
the late 2010s, from countries throughout the Americas.\49\ Since 2010, 
the makeup of border crossers has significantly changed, expanding from 
Mexican single adults to single adults and families from the northern 
Central American countries, and now to single adults and families from 
throughout the hemisphere (and beyond). Those encountered also have 
been more likely to seek asylum and other forms of relief or 
protection, straining the Departments' capacity to process individuals 
through expedited removal.\50\
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    \47\ See 88 FR at 11708. According to OHSS Persist data and 
historic Office of Immigration Statistics (``OIS'') Yearbooks of 
Immigration Statistics, Mexican nationals accounted for 87 to over 
99 percent of apprehensions between POEs of persons entering without 
inspection between 1981 and 2010. See March 2024 OHSS Persist 
Dataset; see, e.g., INS, 1981 Statistical Yearbook of the 
Immigration and Naturalization Service 119 tbl. 53 (1981); INS, 1999 
Statistical Yearbook of the Immigration and Naturalization Service 
208-11 tbl. 56 (Mar. 2002), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1999.pdf. For more 
information about Mexican migrants' demographics and economic 
motivations during some of that time period, see Jorge Durand et 
al., The New Era of Mexican Migration to the United States, 86 J. 
Am. Hist. 518, 525-27, 530-31, 535-36 (1999).
    \48\ Northern Central America refers to El Salvador, Guatemala, 
and Honduras. 88 FR at 11708 n.35.
    \49\ According to OHSS Persist data, Mexican nationals continued 
to account for 89 percent of total CBP SWB encounters in FY 2010, 
with northern Central Americans accounting for 8 percent and all 
other nationalities accounting for 3 percent. March 2024 OHSS 
Persist Dataset. Northern Central Americans' share of total CBP SWB 
encounters increased to 21 percent by FY 2012 and averaged 48 
percent from FY 2014 to FY 2019, the last full year before the start 
of the COVID-19 pandemic. Id. Nationals from all other countries 
except Mexico and the northern Central American countries accounted 
for an average of 5 percent of total CBP SWB encounters from FY 2010 
to FY 2013, and for 10 percent of total encounters from FY 2014 to 
FY 2019. Id. This transition has accelerated since the start of FY 
2021, as Mexican nationals accounted for approximately 32 percent of 
total CBP SWB encounters in FY 2021 through March 2024, including 
roughly 29 percent in the first six months of FY 2024; northern 
Central Americans accounted for roughly 25 percent from FY 2021 
through March 2024 (20 percent in FY 2024 through March 2024); and 
all other countries accounted for roughly 42 percent from FY 2021 
through March 2024, including roughly 51 percent of FY 2024 
encounters through March 2024. Id.
    \50\ For noncitizens encountered at the SWB from FY 2014 to FY 
2019 who were placed in expedited removal proceedings, roughly 6 
percent of Mexican nationals made fear claims that were referred to 
USCIS for determination compared to roughly 57 percent of people 
from northern Central America and 90 percent of all other 
nationalities. OHSS analysis of Enforcement Lifecycle data as of 
December 31, 2023; see also 88 FR at 11709 n.37.
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    In the early 2010s, U.S. Border Patrol (``USBP'') encounters along 
the SWB reached modern lows, averaging fewer than 400,000 per year from 
2011 to 2018. See 88 FR at 11708. This followed decades during which 
annual USBP encounters routinely numbered in the millions; however, the 
overall share of those who were processed for expedited removal and 
claimed a fear never exceeded 2 percent until 2011. Id. at 11708, 
11716. Despite these historically low encounter numbers, the 
Departments faced significant challenges in 2014 due to an 
unprecedented surge in migration by UCs and in 2016 due to a surge in 
family units at the border--demographics that present unique challenges 
due to their vulnerability.\51\
---------------------------------------------------------------------------

    \51\ Decl. of Blas Nu[ntilde]ez-Neto ] 6, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2).
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    From FY 2017 to FY 2019, however, encounters between the POEs along 
the SWB more than doubled, to more than 850,000, and--following a 
significant drop during the beginning of the COVID-19 pandemic--
continued to increase in FY 2021 and FY 2022.\52\ In FY 2021, USBP 
encounters between POEs along the SWB reached a level not seen since 
the early 2000s--over 1.6 million.\53\ In FY 2022, encounters at the

[[Page 48722]]

SWB reached a new high-water mark, with total USBP encounters exceeding 
2.2 million.\54\ FY 2023 saw a slight drop, but USBP encounters 
remained high--over 2.0 million.\55\ By early 2023, while the Title 42 
public health Order was in place, total encounters at the SWB--
referring to the number of times U.S. officials encountered noncitizens 
attempting to cross the SWB without authorization to do so either 
between or at POEs--had reached all-time highs.\56\ This dramatic 
increase in encounters has coincided with a substantial and--setting 
aside the period of time when the Title 42 public health Order was in 
effect--persistent increase in the number of noncitizens making fear 
claims in recent years. See 88 FR at 11716.\57\ In 2019--prior to the 
implementation of the Title 42 public health Order--44 percent of 
noncitizens encountered at the SWB placed in expedited removal 
proceedings claimed fear, resulting in 98,000 credible fear screenings. 
Id. The number of fear claims returned to these historically high 
levels after the Title 42 public health Order ended. From May 2023 
through March 2024, approximately 54 percent of noncitizens encountered 
at and between SWB POEs who were subject to expedited removal claimed 
fear (approximately 169,000 fear claims out of 315,000 noncitizens 
processed for expedited removal, excluding cases processed for 
expedited removal but reprocessed into other dispositions by ICE).\58\ 
These high numbers of both encounters and fear claims combine to 
further compound the significant stress on the immigration system.
---------------------------------------------------------------------------

    \52\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing 
historic data on SWB encounters).
    \53\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing 
historic data on SWB encounters).
    \54\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing 
historic data on SWB encounters).
    \55\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing 
historic data on SWB encounters).
    \56\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing 
historic data on SWB encounters). During the initial seven months of 
FY 2023, while the Title 42 public health Order was still in effect, 
total CBP encounters surged to an all-time high of 1.4 million--an 
11 percent increase over the same period in FY 2022 and nearly 
double the encounters recorded in FY 2021 for the same time period.
    \57\ The percentage of noncitizens encountered at and between 
SWB POEs processed for expedited removal who made fear claims 
steadily rose from 16 percent in FY 2013 to 44 percent in FY 2019, 
experienced a temporary dip in FY 2020 at the start of the Title 42 
public health Order, and then resumed an upward trajectory, reaching 
a peak of 59 percent in FY 2023, marking the highest level of fear 
claims as a share of the SWB expedited removal population ever 
recorded. See OHSS Enforcement Lifecycle as of December 31, 2023; 
March 2024 OHSS Persist Dataset. Data on the exact number of 
noncitizens encountered at the SWB processed for expedited removal 
who made fear claims is not available for years prior to FY 2013, 
but OHSS estimates that about 84 percent of all fear claims made in 
prior years were made by noncitizens encountered at and between SWB 
POEs. Even if 100 percent of fear claims made before FY 2013 were 
made by noncitizens encountered at the SWB, the level of fear claims 
as a share of SWB encounters at and between POEs processed for 
expedited removal in 2023 would be the highest ever.
    \58\ OHSS analysis of data downloaded from CBP UIP on April 2, 
2024.
---------------------------------------------------------------------------

    Much of this growth in encounters was driven by nationalities that 
DHS had never before encountered in large numbers at the border--
including nationals of countries such as Brazil, Colombia, Cuba, 
Ecuador, Haiti, Nicaragua, Peru, and Venezuela, as well as migrants 
from Eastern Hemisphere countries.\59\ Because of this, DHS has had to 
undertake a focused diplomatic effort, working closely with the 
Department of State, to enter into commitments with countries to 
facilitate the return of their nationals. However, despite this 
concerted effort, it remains difficult for DHS to repatriate nationals 
of some of these countries who do not establish a legal basis to remain 
in the United States, including those from the Eastern Hemisphere--
substantially limiting DHS's ability to impose consequences on those 
nationals.\60\
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    \59\ Nationals from all countries other than Mexico and the 
northern Central American countries accounted for less than 5 
percent of total CBP SWB encounters each year between FY 1981 and FY 
2010, an average of 5 percent of SWB encounters from FY 2010 to FY 
2013, and 10 percent of total SWB encounters from FY 2014 to FY 
2019. The increase in encounters from these new countries of origin 
has accelerated since the start of FY 2021, as non-Mexican, non-
northern Central American countries accounted for 42 percent of 
encounters from the start of FY 2021 through the second quarter of 
FY 2024, including 51 percent of FY 2024 encounters through March 
2024. OHSS analysis of historic OIS Yearbooks of Immigration 
Statistics and March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border Encounters 
by Citizenship'').
    \60\ See 88 FR at 11708-11.
---------------------------------------------------------------------------

    Overall, countries other than Mexico and the northern Central 
American countries of El Salvador, Guatemala, and Honduras accounted 
for 43 percent of total SWB encounters from January 2021 to March 
2024--including 51 percent of total SWB encounters in FY 2023 and in 
the first two quarters of FY 2024--up from 10 percent from FY 2014 to 
December 2020.\61\ Encounters of Mexican nationals have fallen to 29 
percent of total SWB encounters during this time frame--an enormous 
change from historical trends that has sweeping ramifications for the 
border and immigration system, which are detailed below.\62\
---------------------------------------------------------------------------

    \61\ March 2024 OHSS Persist Dataset; see also OHSS, Immigration 
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by 
Agency and Selected Citizenship'').
    The application of title 42 authorities at the SWB also altered 
migratory patterns, in part by incentivizing individuals who were 
expelled--without being issued a removal order, which, unlike a 
title 42 expulsion, carries immigration consequences--to try to re-
enter, often multiple times. See 88 FR at 11709. The majority of 
repeat encounters were of Mexican and northern Central American 
nationals, who were much more likely than others to be expelled to 
the Mexican side of the U.S.-Mexico border--between FY 2020 and FY 
2023, 72 percent of Mexican and 50 percent of northern Central 
American encounters at and between SWB POEs resulted in title 42 
expulsion, contrasting sharply with 8 percent of non-Mexican and 
non-northern Central American encounters experiencing similar 
outcomes. March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border 
Encounters Book-Outs by Selected Citizenship'').
    Even accounting for increased repeat encounters, unique 
encounters at and between SWB POEs also hit all-time highs in each 
year from FY 2021 to FY 2023. Nationals of countries other than 
Mexico and the northern Central America countries account for an 
even larger share of the growth in unique encounters, comprising 51 
percent of unique encounters from January 2021 to March 2024, up 
from 9 percent in FY 2014 to December 2020. March 2024 OHSS Persist 
Dataset.
    \62\ March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------

    The increase in migration at the SWB is consistent with global and 
regional trends. Over the past three years, migration around the world 
has reached levels not seen since World War II.\63\ The Western 
Hemisphere is no exception and has been facing historic levels of 
migration that have severely strained the immigration systems of 
countries throughout the region.\64\ There is a growing consensus 
within the region that this shared challenge cannot be solved without 
collective action--a consensus reflected by the 22 countries that have 
supported the Los Angeles Declaration on Migration and Protection, 
which proposes a comprehensive approach to managing migration 
throughout the region.\65\
---------------------------------------------------------------------------

    \63\ Decl. of Blas Nu[ntilde]ez-Neto ] 2, M.A. v. Mayorkas, No. 
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
    \64\ See 88 FR at 11710-11.
    \65\ See The White House, Los Angeles Declaration on Migration 
and Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.

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[[Page 48723]]

    As it prepared for the return to title 8 processing of all 
noncitizens, DHS led a comprehensive, all-of-government planning and 
preparation effort that lasted more than 18 months.\66\ This included 
record deployments of personnel, infrastructure, and resources to 
support DHS's frontline personnel at a substantial cost to other DHS 
operations.\67\ This effort also included the development and 
implementation of policy measures, including the joint DHS and DOJ 
Circumvention of Lawful Pathways rule and complementary measures, which 
were critically important components of DHS preparations to manage the 
anticipated significant influx of migrants associated with the end of 
the Title 42 public health Order's application at the border.\68\ And 
the United States Government's efforts were complemented by a range of 
measures taken by foreign partners in the region, such as Mexico's 
independent decision to continue to accept the return of certain non-
Mexican migrants after May 11, 2023,\69\ and campaigns by Colombia and 
Panama to attack smuggling networks operating in the Dari[eacute]n 
Gap.\70\
---------------------------------------------------------------------------

    \66\ Decl. of Blas Nu[ntilde]ez-Neto ] 8, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2).
    \67\ Id.
    \68\ Id.
    \69\ The White House, Mexico and United States Strengthen Joint 
Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
    \70\ Decl. of Blas Nu[ntilde]ez-Neto ] 40, M.A. v. Mayorkas, No. 
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
---------------------------------------------------------------------------

    The Circumvention of Lawful Pathways rule has strengthened the 
consequences in place for those who cross the border irregularly and is 
a critical component of the Government's regional strategy. DHS has 
also put in place complementary measures to streamline expedited 
removal processing to more quickly apply consequences to those who fail 
to use lawful pathways. These measures include holding noncitizens 
processed for expedited removal for the pendency of their credible fear 
interviews in CBP facilities to maximize the use of expedited removal 
and limit noncitizens absconding; \71\ changing the consultation period 
such that credible fear interviews take place no earlier than 24 hours 
after the noncitizen's acknowledgement of receipt of information 
explaining the credible fear process; \72\ returning certain third-
country nationals to Mexico, consistent with established processes 
under the INA; \73\ permitting certain non-Mexican citizens to withdraw 
their application for admission and voluntarily return to Mexico; \74\ 
and increasing USCIS's capacity to train and prepare additional staff 
temporarily detailed as AOs to conduct credible fear interviews.\75\ 
These measures, combined with existing processes and resources and work 
with regional and international partners to disrupt irregular migration 
and smuggling networks, seek to form a comprehensive framework for 
managing migratory flows to the border--one that seeks to 
disincentivize noncitizens from putting their lives in the hands of 
callous smugglers by crossing the SWB between POEs and to incentivize 
noncitizens to use lawful, safe, and orderly pathways and processes 
instead.
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    \71\ Id. ] 5.
    \72\ Id.
    \73\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (noting the United States and Mexico's commitment to 
increase joint actions to counter human smugglers and traffickers, 
address root causes of migration, and continue to combine expanded 
lawful pathways with consequences for irregular migration, and 
noting that Mexico will continue to accept back migrants on 
humanitarian grounds).
    \74\ Decl. of Blas Nu[ntilde]ez-Neto ] 5, M.A. v. Mayorkas, No. 
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
    \75\ Id.
---------------------------------------------------------------------------

    Without the Circumvention of Lawful Pathways rule and complementary 
measures, DHS assesses that irregular migration at the border would be 
substantially higher today. DHS saw evidence of very high levels of 
irregular migration in the days leading up to the end of the Title 42 
public health Order on May 11, 2023.\76\ A historic surge in migration 
culminated with what were then the highest recorded encounter levels in 
U.S. history over the days immediately preceding May 11, which placed a 
significant strain on DHS's operational capacity at the border.\77\ 
Encounters between POEs almost doubled from an average of approximately 
4,900 per day the week ending April 11, 2023, to an average of 
approximately 9,500 per day the week ending May 11, 2023, including an 
average of approximately 10,000 encounters immediately preceding the 
termination of the Title 42 public health Order (from May 8 to May 
11).\78\ The sharp increase in encounters between POEs during the 30 
days preceding May 11 represented the largest month-over-month increase 
in almost two decades--since January 2004.\79\
---------------------------------------------------------------------------

    \76\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2); Decl. of Matthew J. Hudak ] 11, Florida v. Mayorkas, No. 22-
cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
    \77\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2).
    \78\ Id.
    \79\ Id.
---------------------------------------------------------------------------

    As a consequence of the elevated flows USBP experienced in the days 
leading up to the end of the Title 42 public health Order, USBP saw a 
steady increase in the numbers of noncitizens in custody, leading to 
significant operational challenges.\80\ From May 8 to 11, 2023, USBP's 
daily in-custody average was approximately 27,000 noncitizens, with a 
single-day peak of approximately 28,500 on May 10--well above its 
holding capacity at that time of approximately 18,500.\81\ During this 
same time frame, eight out of nine SWB sectors were over their holding 
capacity--with four sectors (El Centro, El Paso, Rio Grande Valley, and 
Yuma) at more than 50 percent over their holding capacity and one 
sector (Tucson) at more than two-and-a-half times over its holding 
capacity.\82\
---------------------------------------------------------------------------

    \80\ Id. ] 10.
    \81\ Id.
    \82\ Id.
---------------------------------------------------------------------------

    This record number of encounters between POEs severely strained DHS 
operations and resources, as well as the resources of other Federal 
Government agencies, local communities, and non-governmental 
organizations (``NGOs'').\83\ CBP redirected limited resources from 
other mission needs--in particular, legitimate travel and trade 
operations, the volume of which by that time had surpassed pre-pandemic 
levels--to focus on processing apprehended noncitizens.\84\ 
Overcrowding in CBP facilities increased the potential for health and 
safety risks to noncitizens, Government personnel, and contract support 
staff. Such risks were exacerbated by an increase in the average time 
in custody, which generally occurs when there are large numbers of 
noncitizens in custody who must be processed.\85\ To manage these 
conditions, USBP sectors redirected personnel from the field to perform 
tasks for noncitizens in custody, including processing, transporting, 
and escorting noncitizens.\86\ This, in turn, decreased USBP's ability 
to respond to noncitizens avoiding detection, other agency calls for 
assistance, and noncitizens in distress.\87\
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    \83\ Id. ] 11.
    \84\ Id.
    \85\ Id.
    \86\ Id.
    \87\ Id.
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    The surge in encounters between POEs immediately preceding the end 
of the Title 42 public health Order also led

[[Page 48724]]

to significant challenges for local border communities.\88\ For 
example, in the days leading up to May 11, 2023, local community 
resources in El Paso, Texas, were quickly overwhelmed as the number of 
noncitizens arriving in the United States surpassed the city's 
capacity.\89\ In anticipation of an influx of noncitizens arriving to 
the city--an influx that ultimately materialized--the city declared a 
state of emergency, as more than 1,000 noncitizens were sleeping on the 
sidewalks and left without shelter.\90\ Similarly, the cities of 
Brownsville and Laredo, Texas, declared states of emergency to allow 
them to seek additional resources to bolster their capacities.\91\ The 
surge in encounters also placed strain on interior cities. In May 2023, 
for instance, New York's Governor declared a State Disaster 
Emergency.\92\
---------------------------------------------------------------------------

    \88\ Id. ] 12.
    \89\ Id.
    \90\ Id.
    \91\ Id.
    \92\ See N.Y. Exec. Order No. 28, Declaring a Disaster Emergency 
in the State of New York (May 9, 2023), https://www.governor.ny.gov/executive-order/no-28-declaring-disaster-emergency-state-new-york; 
see also Mayor of Chicago Emergency Exec. Order No. 2023-2 (May 9, 
2023).
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    Since their implementation in May 2023, the Circumvention of Lawful 
Pathways rule and complementary measures have helped DHS to better 
manage migratory flows. Between May 12, 2023, and March 31, 2024, CBP 
placed into expedited removal more than 970 individuals encountered at 
and between POEs each day on average, and USCIS conducted a record 
number of credible fear interviews (more than 152,000) resulting from 
such cases. This is more interviews from SWB encounters at and between 
POEs during the span of ten and a half months than in any full fiscal 
year prior to 2023, and more than twice as many as the annual average 
from FY 2010 to FY 2019.\93\ On average, since May 12, 2023, USCIS has 
completed approximately 3,300 cases each week, more than double its 
average weekly completed cases from FY 2014 to FY 2019.\94\ In 
addition, in FY 2023, IJs conducted over 38,000 credible fear and 
reasonable fear reviews, the highest figure on record since at least 
2000.\95\ These efforts have significantly reduced the median time to 
process credible fear cases. Since May 12, 2023, the median time to 
refer noncitizens claiming a fear for credible fear interviews 
decreased by 77 percent from its historical average, from 13 days in 
the FY 2014 to FY 2019 pre-pandemic period to 3 days in the four weeks 
ending March 31, 2024; for those who receive negative fear 
determinations, the median time from encounter to removal, in the same 
time frames, decreased by 85 percent from 73 days to 11 days.\96\
---------------------------------------------------------------------------

    \93\ Pre-May 12, 2023, data from OHSS Lifecycle Dataset; post-
May 11, 2023, data from OHSS analysis of data downloaded from UIP on 
April 2, 2024.
    \94\ Completed cases are those with credible fear interviews 
that have been adjudicated or that have been closed. Pre-May 12, 
2023, data from OHSS Lifecycle Dataset; post-May 11, 2023, data from 
OHSS analysis of data downloaded from UIP on April 2, 2024.
    \95\ EOIR, Adjudication Statistics: Credible Fear and Reasonable 
Fear Review Decisions (Apr. 27, 2023), https://www.justice.gov/eoir/media/1344816/dl?inline.
    \96\ Historic processing times are based on OHSS Enforcement 
Lifecycle data as of December 31, 2023; post-May 12 estimates are 
based on OHSS analysis of operational CBP, ICE, USCIS, and DOJ/EOIR 
data downloaded from UIP on April 2, 2024. Encounter-to-removal 
cases include noncitizens removed after being placed in expedited 
removal proceedings, claiming fear, and receiving a negative fear 
determination or an administrative closure that is not referred to 
EOIR. Comparisons to the pandemic period are not relevant because 
many noncitizens who normally would have been referred for expedited 
removal processing were instead expelled under title 42 authority.
---------------------------------------------------------------------------

    The increase in referrals into expedited removal proceedings, 
combined with the streamlining of the process, has had tangible 
results. From May 12, 2023, to March 31, 2024, DHS removed more than 
662,000 individuals--more removals than in any full fiscal year since 
2013 and an indication that the increased efficiencies gained through 
these measures have enabled DHS to swiftly impose immigration 
consequences when individuals do not establish a legal basis to remain 
in the United States.\97\ Over the first six months immediately 
following May 12, 2023, DHS saw a significant decrease in border 
encounters between POEs. After peaking at 9,700 per day in the seven 
days just before the end of the Title 42 public health Order, daily SWB 
encounters between POEs decreased by 45 percent to an average of 5,200 
per day for the period from May 12, 2023, to November 30, 2023.\98\ 
While this months-long trend included variability over shorter periods, 
border encounters between POEs remained below the levels projected to 
occur in the absence of the Circumvention of Lawful Pathways rule and 
complementary measures.\99\
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    \97\ OHSS analysis of data downloaded from UIP on April 2, 2024; 
see OHSS, Immigration Enforcement and Legal Processes Monthly 
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024); OHSS, 
2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023), 
https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf 
(noncitizen removals, returns, and expulsions for FY 1892 to FY 
2022).
    \98\ Pre-May 12, 2023, data from March 2024 OHSS Persist 
Dataset; post-May 11, 2023, data from OHSS analysis of data 
downloaded from UIP on December 12, 2023.
    \99\ Decl. of Blas Nu[ntilde]ez-Neto ] 4, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2) (noting that in the absence of the rule, DHS planning models 
suggest that irregular migration could meet or exceed the levels 
that DHS recently experienced in the days leading up to the end of 
the Title 42 public health Order).
---------------------------------------------------------------------------

    While the Circumvention of Lawful Pathways rule and complementary 
measures have yielded demonstrable results, the resources provided to 
the Departments still have not kept pace with irregular migration.
    After months of relatively lower encounter levels between POEs 
following the changes put in place after May 11, 2023, encounter levels 
increased through the fall of 2023,\100\ and December 2023 saw the 
highest levels of encounters between POEs in history, including a surge 
in which border encounters between POEs exceeded 10,000 for three 
consecutive days and averaged more than 8,000 a day for the month.\101\ 
That surge in migration was focused increasingly on western areas of 
the border--California and Arizona--that had not been the focal point 
of migration over the prior two years, and in areas that are 
geographically remote and challenging to respond to. For instance, the 
Tucson sector's average full-year encounter total for the pre-pandemic 
period (FY 2014 to FY 2019) was approximately 62,000; by contrast, in 
November and December of 2023, the sector recorded approximately 64,000 
and 80,000 encounters, respectively.\102\ And while the number of 
encounters between POEs since December 2023 has decreased, consistent 
with seasonal migration flows and as a result of increased enforcement, 
they still remain at historically high levels--USBP encounters from 
January 2024 to March 2024 are just 5 percent below the levels

[[Page 48725]]

reached during the same months in 2023,\103\ while some USBP sectors, 
such as Tucson and San Diego, have seen increases of 83 percent and 62 
percent, respectively, from the second quarter of FY 2023, and Tucson 
is on pace for an all-time high number of annual encounters.\104\
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    \100\ See CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last 
visited May 27, 2024) (providing monthly figures for 2021 to 2024).
    \101\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024); OHSS, 2022 
Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023), 
https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf; -
Priscilla Alvarez, Authorities Encountering Record Number of 
Migrants at the Border Each Day Amid Unprecedented Surge, CNN (Dec. 
22, 2023), https://www.cnn.com/2023/12/22/politics/border-surge-record-amounts/index.html.
    \102\ See March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border Encounters 
by Sector'').
    \103\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border 
Encounters by Sector'').
    \104\ OHSS analysis of March 2024 OHSS Persist Dataset; see also 
OHSS, Immigration Enforcement and Legal Processes Monthly Tables, 
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border 
Encounters by Sector'').
---------------------------------------------------------------------------

    Since the lifting of the Title 42 public health Order, then, it has 
become increasingly clear that DHS's ability to process individuals 
encountered at the SWB under applicable title 8 authorities--including, 
critically, to deliver timely consequences to a meaningful proportion 
of those who do not establish a legal basis to remain in the United 
States--is significantly limited by the lack of resources and tools 
available to the Departments. In response to the record high levels of 
encounters between POEs in December 2023, DHS had to take extraordinary 
steps to shift personnel and resources to the affected sectors: CBP 
curtailed or suspended operations at a number of POEs, and, just before 
December 25, 2023, CBP reassigned 246 officers to support USBP 
operations. As part of these extraordinary measures: vehicular traffic 
through the Eagle Pass, Texas, POE was suspended on November 27, 2023; 
the POE in Lukeville, Arizona, was closed on December 4, 2023; rail 
operations at POEs in El Paso and Eagle Pass, Texas, were suspended on 
December 18, 2023; \105\ the Morley Gate POE in Nogales, Arizona, which 
was closed due to construction and slated to be reopened in November 
2023, delayed its reopening; \106\ and operations at Pedestrian West, 
part of the San Ysidro POE in San Diego, California, were suspended on 
December 9, 2023.\107\ On January 4, 2024, once the volume of migrants 
had diminished and CBP officers were able to return to normal duties, 
port operations in these locations resumed.\108\
---------------------------------------------------------------------------

    \105\ See CBP, Statement from CBP on Operations in Eagle Pass, 
Texas and Lukeville, Arizona (Nov. 27, 2023), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-eagle-pass-texas-and-lukeville-arizona.
    \106\ See CBP, Statement on Operational Changes and Resumption 
of Rail Operations in Eagle Pass and El Paso (Dec. 22, 2023), 
https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operational-changes-and-resumption-rail-operations.
    \107\ See CBP, Statement from CBP on Operations in San Diego, 
California (Dec. 7, 2023), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-san-diego-california.
    \108\ See CBP, Statement from CBP on Resumption of Operations in 
Arizona, California, and Texas (Jan. 2, 2024), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-resumption-field-operations-arizona-california-and/.
---------------------------------------------------------------------------

    The decision to close POEs was not one taken lightly. The United 
States Government fully understands the impacts of such closures on 
local communities on both sides of the border, both socially and 
economically.\109\ Closing international POEs is a measure of last 
resort, and one that DHS was compelled to take in order to reassign its 
resources to support frontline agents in a challenging moment.
---------------------------------------------------------------------------

    \109\ See, e.g., Russel Contreras, U.S.-Mexico Border Closures 
Could Cost Billions, Axios (Dec. 22, 2023), https://www.axios.com/2023/12/22/us-mexico-border-closures-could-cost-billions (discussing 
evidence of the ``devastating consequences'' that follow from 
partial border closings); cf. Bryan Roberts et al., The Impact on 
the U.S. Economy of Changes in Wait Times at Ports of Entry: Report 
to U.S. Customs and Border Protection 5 (Apr. 2013), https://ebtc.info/wp-content/uploads/2014/07/U.S.C.-Create-CBP-Final-Report.pdf (discussing the benefits of adding staffing to land 
border POEs).
---------------------------------------------------------------------------

    In addition to concerted efforts to strengthen and maximize 
consequences, including through new regulations, the United States 
Government has engaged intensively with the Government of Mexico to 
identify coordinated measures both countries could take, as partners, 
to address irregular migration. During the period before and after the 
December surge, the United States Government and the Government of 
Mexico held numerous talks at the highest levels of government to 
address migration. For example, President Biden and President of Mexico 
Andr[eacute]s Manuel L[oacute]pez Obrador spoke on December 21, 2023, 
and February 3, 2024.\110\ During their conversation on December 21, 
the presidents agreed that additional enforcement actions were urgently 
needed so that the POEs that were temporarily closed could reopen.\111\ 
In subsequent high-level meetings, both countries committed to 
expanding efforts to increase enforcement measures to deter irregular 
migration, expanding safe and lawful pathways, and strengthening 
cooperation.\112\ The Government of Mexico expressed its concern about 
the economic impact of the POE closures and committed to increasing 
enforcement on key transit routes north.\113\ On January 22, 2024, 
after a series of follow-on meetings between United States and Mexican 
Cabinet members in Washington, DC, Mexico's Foreign Secretary 
enumerated a series of steps that the United States and Mexico 
committed to taking to continue to address migration, including 
combating human smuggling and trafficking organizations.\114\
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    \110\ See The White House, Readout of President Joe Biden's Call 
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico 
(Dec. 21, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/; The White 
House, Readout of President Joe Biden's Call with President 
Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico (Feb. 3, 2024), 
https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/03/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-3/.
    \111\ The White House, Readout of President Joe Biden's Call 
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico 
(Dec. 21, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/.
    \112\ The White House, Readout of Homeland Security Advisor Dr. 
Liz Sherwood-Randall's Trip to Mexico (Feb. 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/.
    \113\ Id.; see also, e.g., Amna Nawaz, Mexico's Foreign 
Secretary Discusses What Her Country Is Doing to Ease Border Crisis, 
PBS News Hour (Jan. 25, 2024), https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis; US, Mexico Agree to Strengthen Efforts to Curb 
Record Migration, Reuters (Dec. 28, 2023), https://www.reuters.com/world/us-mexico-keep-border-crossings-open-lopez-obrador-says-2023-12-28/.
    \114\ See, e.g., Valentine Hilaire & Cassandra Garrison, Mexico, 
US Pitch Measures to Ease Pressure on Border, Plan Guatemala Talks, 
Reuters (Jan. 22, 2024), https://www.reuters.com/world/americas/mexico-us-guatemala-officials-meet-migration-talks-2024-01-22/; Amna 
Nawaz, Mexico's Foreign Secretary Discusses What Her Country Is 
Doing to Ease Border Crisis, PBS News Hour (Jan. 25, 2024), https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis (quoting Mexico's Foreign 
Affairs Secretary as saying that ``we have done much more law 
enforcement to bring down the pressure in the border in the 
north'').
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    DHS assesses that the surge in late 2023 was likely the result of a 
number of factors, including the growing understanding by smugglers and 
migrants that DHS's capacity to impose consequences at the border is 
limited by the lack of resources and tools that Congress has made 
available and the Government of Mexico's operational constraints at the 
end of its fiscal year, which limited its ability to enforce its own 
immigration laws.\115\ The

[[Page 48726]]

Departments cannot address all of these factors in one rule, but assess 
that this rule will significantly increase the ability to deliver 
timely decisions and timely consequences at the border within current 
resources, combating perceptions and messaging to the contrary.
---------------------------------------------------------------------------

    \115\ See Mar[iacute]a Verza, Mexico Halts Deportations and 
Migrant Transfers Citing Lack of Funds, AP News (Dec. 4, 2023), 
https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc; Smugglers Are Bringing Migrants To 
a Remote Arizona Crossing, Overwhelming Agents, NPR (Dec. 10, 2023), 
https://www.npr.org/2023/12/10/1218428530/smugglers-are-bringing-migrants-to-a-remote-arizona-crossing-overwhelming-agents; Adam 
Isaacson, Weekly U.S.-Mexico Border Update: Senate Negotiations, 
Migration Trends, Washington Office of Latin America (Dec. 15, 
2023), https://www.wola.org/2023/12/weekly-u-s-mexico-border-update-senate-negotiations-migration-trends/; Jordan, supra note 27.
---------------------------------------------------------------------------

    Encounters between POEs in January 2024 were substantially lower 
than December 2023 encounters, consistent with historic seasonal 
trends, and encounters in January 2022 and January 2023.\116\ In 
February and March 2024, encounter levels increased from the levels in 
January but remained significantly lower than in December 2023.\117\ 
Overall, from January 1 to March 31, 2024, encounters between POEs were 
5 percent lower than during the same months in 2023 and 22 percent 
lower than those in 2022.\118\ However, despite the overall decrease in 
encounters since December 2023, specific areas of the border--in 
particular USBP's San Diego and Tucson Sectors--have experienced 
localized increases in encounters that have, at times, strained DHS's 
holding capacity, adversely impacted local operations, and limited 
DHS's ability to swiftly impose consequences on individuals who do not 
establish a legal basis to remain in the United States. During the last 
week of April 2024, USBP's San Diego Sector encountered an average of 
more than 1,400 migrants each day, including many migrants from 
countries outside the Western Hemisphere who are more difficult to 
process.\119\ The USBP Tucson Sector is experiencing similar, 
unprecedented migratory flows and consequent challenges. This high 
concentration of encounters, including comparatively large numbers of 
migrants who are hard to remove, in a focused geographic area places 
particular strain on the immigration enforcement system. This is 
particularly true in areas of the border--such as San Diego--where 
infrastructure-related capacity constraints limit DHS's ability to 
swiftly impose consequences at the border. These factors resulted in 
USBP's main processing facility in San Diego reaching over 200 percent 
capacity in April 2024, despite a recent expansion of this facility.
---------------------------------------------------------------------------

    \116\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \117\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \118\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \119\ See Elliot Spagat, The Latest Hot Spot for Illegal Border 
Crossings is San Diego. But Routes Change Quickly, AP News (May 17, 
2024), https://apnews.com/article/san-diego-border-asylum-biden-mexico-da1e7b7c81e4e58912deff6d36dbdb9e.
---------------------------------------------------------------------------

    Since January 2024, the United States and Mexico have continued to 
hold regular, high-level conversations, as partners, to continue to 
deepen their collaboration, identify emerging trends, and coordinate 
additional steps by both countries to address changing flows. These 
meetings have informed operational deployments by both governments, 
including the coordinated response to the shift in migratory flows to 
the San Diego and Tucson sectors. This extensive ongoing collaboration 
was reflected by another bilateral engagement between President Biden 
and President L[oacute]pez-Obrador on April 28, 2024, after which the 
presidents released a joint statement in which they ``ordered their 
national security teams to work together to immediately implement 
concrete measures to significantly reduce irregular border crossings 
while protecting human rights.'' \120\
---------------------------------------------------------------------------

    \120\ See The White House, Joint Statement by the President of 
the United States Joe Biden and the President of Mexico 
Andr[eacute]s Manuel L[oacute]pez Obrador (Apr. 29, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador.
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    Since then, the United States and the Government of Mexico have 
worked together, cooperatively, to increase enforcement.\121\ But these 
efforts--while significant--are likely to be less effective over time. 
Smuggling networks are adaptable, responding to changes put in place. 
Despite their immediate effectiveness, such changes are not enough--and 
will almost certainly have diminished effect over time. The reality is 
that the scale of irregular migration over the past two years has 
strained the funding, personnel, and infrastructure of both countries' 
immigration enforcement systems in ways that have, at times, 
contributed to high encounters between POEs.
---------------------------------------------------------------------------

    \121\ See Valerie Gonzalez & Elliot Spagat, The US Sees a Drop 
in Illegal Border Crossings After Mexico Increases Enforcement, AP 
News (Jan. 7, 2024), https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a; Luke 
Barr, US Customs And Border Protection Reopening 4 Ports of Entry 
After Migrant Surge Subsides, ABC News (Jan. 2, 2024), https://abcnews.go.com/US/us-customs-border-protection-reopening-4-ports-entry/story?id=106062555; Seung Min Kim, US and Mexico Will Boost 
Deportation Flights and Enforcement to Crack Down on Illegal 
Immigration, AP News (Apr. 30, 2024), https://apnews.com/article/joe-biden-andres-manuel-lopez-obrador-mexico-immigration-border-c7e694f7f104ee0b87b80ee859fa2b9b; Julia Ainsley & Chloe Atkins, 
Mexico Is Stopping Nearly Three Times as Many Migrants Now, Helping 
Keep U.S. Border Crossings Down, NBC News (May 15, 2024), https://www.nbcnews.com/politics/immigration/mexico-stopping-three-times-as-many-migrants-as-last-year-rcna146821.
---------------------------------------------------------------------------

2. Need for These Measures
    DHS projects that, absent the policy changes being promulgated 
here, irregular migration will once again increase, and that any 
disruption in Mexican enforcement will only exacerbate that trend. 
Without the Proclamation and this rule, the anticipated increase in 
migration will, in turn, worsen significant strains on resources 
already experienced by the Departments and communities across the 
United States.
    Current trends and historical data indicate that migration and 
displacement in the Western Hemisphere will continue to increase as a 
result of violence, persecution, poverty, human rights abuses, the 
impacts of climate change, and other factors. The case of migration 
through the Dari[eacute]n jungle between Colombia and Panama is 
illustrative. For example, between January and April, 2024, the United 
Nations High Commissioner for Refugees (``UNHCR'') tracked 139,000 
irregular entries, up from 128,000 for the same months in 2023 and a 
seven-fold increase over migration levels during that period in 
2022.\122\ The number of migrants crossing the Dari[eacute]n will only 
further increase the pressure on Mexico at its southern border and on 
the United States at the SWB.
---------------------------------------------------------------------------

    \122\ The UNHCR tracked 20,000 irregular entries in the 
Dari[eacute]n gap in 2022. OHSS analysis of downloaded from UNHCR 
Operational Data Portal, Darien Panama: Mixed Movements Protection 
Monitoring--January-December 2023, https://data.unhcr.org/en/documents/details/105569 (last visited May 31, 2024); Darien Panama: 
Mixed Movements Protection Monitoring--April 2024, https://data.unhcr.org/en/documents/details/108399 (last visited May 31, 
2024).
---------------------------------------------------------------------------

    Past unprecedented migration surges bolster the Departments' views 
and the need for this rulemaking. As described in detail in Section 
III.B.1 of this preamble, migration trends have been steadily 
increasing in scope and complexity, featuring increasingly varied 
nationalities and demographic groups. This has been true even as DHS 
has experienced sustained levels of historically high encounter levels. 
Over the past two years, an increasing proportion of total CBP 
encounters at the SWB has been composed of families and UCs, and DHS 
has seen record flows of migrants from countries outside of northern 
Central America.\123\ These

[[Page 48727]]

international migration trends are the result of exceedingly complex 
factors and are shaped by, among other things, family and community 
networks, labor markets, environmental and security-related push 
factors, and rapidly evolving criminal smuggling networks.\124\ The 
United States Government is working to address these root causes of 
migration and to abate adverse effects from unprecedented levels of 
irregular migration,\125\ including through working closely with 
partner countries across the Western Hemisphere.\126\ But these efforts 
will take time to have significant impacts and will not alleviate the 
stress that the border security and immigration systems are currently 
experiencing, as described in the Proclamation.
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    \123\ March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SWB Encounters by 
Agency and Family Status'' and ``SWB Encounters by Citizenship and 
Family Status'').
    \124\ See 88 FR at 31327-28 & n.59.
    \125\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (committing to addressing root causes of migration).
    \126\ See The White House, Fact Sheet: Third Ministerial Meeting 
on the Los Angeles Declaration On Migration and Protection in 
Guatemala (May 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala.
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    The Departments' views and the need for this rulemaking are further 
supported by projections developed from ongoing work by DHS's Office of 
Homeland Security Statistics (``OHSS''), which leads an interagency 
working group that produces encounter projections used for operational 
planning, policy development, and short-term budget planning. OHSS uses 
a mixed-method approach that combines a statistical predictive model 
with subject matter expertise intended to provide informed estimates of 
future migration flow and trends. The mixed-methods approach blends 
multiple types of models through an ensemble approach of model 
averaging.\127\ The model includes encounter data disaggregated by 
country and demographic characteristics, data on apprehensions of 
third-country nationals by Mexican enforcement agencies, and economic 
data. DHS uses the encounter projection to generate a range of planning 
models, which can include ``low'' planning models that are based on the 
lower bound of the 95 percent forecast interval, ``moderate'' planning 
models that are based on the upper bound of the 68 percent forecast 
interval, and ``high'' planning models based on the upper bound of the 
95 percent forecast interval. These planning models account for changes 
in effectiveness of current enforcement and lawful migration 
processes.\128\
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    \127\ Blending multiple models and basing predictions on prior 
data has been understood to improve modeling accuracy. See, e.g., 
Spyros Makridakis et al., Forecasting in Social Settings: The State 
of the Art, 36 Int'l J. Forecasting 15, 16 (2020) (noting that it 
has ``stood the test of time . . . that combining forecasts improves 
the [forecast] accuracy''); The Forecasting Collaborative, Insights 
into the Accuracy of Social Scientists' Forecasts of Societal 
Change, 7 Nat. Hum. Behaviour 484 (2023), https://doi.org/10.1038/s41562-022-01517-1 (comparing forecasting methods and suggesting 
that forecasting teams may materially improve accuracy by, for 
instance, basing predictions on prior data and including scientific 
experts and multidisciplinary team members). DHS notes that the 
complexity of international migration limits DHS's ability to 
precisely project border encounters under the best of circumstances. 
The current period is characterized by greater than usual 
uncertainty due to ongoing changes in the major migration source 
countries (i.e., the shift in demographics of those noncitizens 
encountered by DHS), the growing impact of climate change on 
migration, political instability in several source countries, the 
evolving recovery from the COVID-19 pandemic, and uncertainty 
generated by border-related litigation, among other factors. See 88 
FR at 31316 n.14.
    \128\ OHSS Southwest Border Encounter Projection, April 2024.
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    Because of the significant time and operational cost it takes to 
redeploy resources, DHS is generally conservative in its enforcement 
planning. 88 FR at 31328. As a result, it focuses on its higher 
planning models as it projects future resource deployments to avoid 
using more optimistic scenarios that could leave enforcement efforts 
badly under-resourced. Id. The current internal projections, based on 
this robust modeling methodology, suggest that encounters may once 
again reach extremely elevated levels in the weeks to come, averaging 
in the three months from July to September, 2024, in the range of 
approximately 3,900 to approximately 6,700 encounters at and between 
POEs per day, not including an additional 1,450 noncitizens per day who 
are expected to be encountered at POEs after making appointments though 
the CBP One app.\129\ The Departments believe the policies in this rule 
are justified in light of high levels of migration that have ultimately 
proved persistent even in the face of new policies that have resulted 
in processing migrants with record efficiency, as evidenced by the 
migration patterns witnessed in December 2023. Current sustained, high 
encounter rates exceed the border security and immigration systems' 
capacity to effectively and safely process, detain, and remove, as 
appropriate, all migrants who are encountered.\130\ This is generally 
true when considering total encounters across the entire SWB, and even 
more the case when specific sectors along the border are targeted by 
smuggling organizations with focused localized surges in encounters--as 
has been happening since the late fall in Tucson, Arizona, which 
accounted for 35 percent of SWB encounters between POEs in the second 
quarter of FY 2024, up from 18 percent in FY 2023 and 13 percent in FY 
2022.\131\
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    \129\ OHSS Encounter Projections, April 2024. Note that the OHSS 
encounter projection excludes encounters of people who have 
registered with the CBP One app along with administrative encounters 
at POEs (i.e., encounters in which removal proceedings are not 
considered), but includes non-CBP One enforcement encounters at 
POEs, which have averaged about 190 per day since May 2023, based on 
OHSS analysis of March 2024 OHSS Persist Dataset. See also CBP, CBP 
OneTM Appointments Increased to 1,450 Per Day (June 30, 
2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
    \130\ See, e.g., Decl. of Blas Nu[ntilde]ez-Neto ] 8, M.A. v. 
Mayorkas, No. 23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
    \131\ March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables--October 
2023, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW 
Border Encounters by Sector'').
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    Despite the fact that the average of 4,400 daily encounters between 
POEs in the second quarter of FY 2024 is below the highs experienced in 
the days immediately preceding the end of the Title 42 public health 
Order and in December 2023,\132\ daily encounter numbers remain 
sufficiently high--especially in the locations where encounters have 
been extremely elevated, such as California and Arizona--that the 
numbers significantly impact the operational flexibility required to 
process individuals in a timely and consequential manner.\133\

[[Page 48728]]

When capacity is strained like this in specific locations along the 
border, it becomes even more difficult for the Departments to deliver 
timely decisions and timely consequences. At increased levels of 
encounters and without a change in policy, most non-Mexicans processed 
for expedited removal under title 8 would likely establish a credible 
fear and remain in the United States for the foreseeable future despite 
the fact that most of them will not ultimately be granted asylum, 
assuming results are similar to historic rates,\134\ a scenario that 
would likely continue to incentivize an increasing number of migrants 
to journey to the United States and further increase the likelihood of 
sustained high encounter rates.
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    \132\ March 2024 OHSS Persist Dataset. As noted supra note 5, 
preliminary April data show SWB encounters between POEs fell 
slightly, by 6 percent, between March and April. OHSS analysis of 
data obtained from CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last 
accessed May 24, 2024). The preliminary April data are best 
understood to reflect a continuation of the general pattern 
described elsewhere in this rule.
    \133\ The Tucson Sector accounted for 35 percent of USBP 
encounters in the second quarter of FY 2024, up from 18 percent in 
FY 2023 and 13 percent in FY 2022. OHSS analysis of March 2024 OHSS 
Persist Dataset; see also CBP, Southwest Land Border Encounters (By 
Component), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters-by-component (last modified May 15, 2024). Border 
encounters typically fall around the New Year and often remain lower 
than other months in January. See OHSS, Immigration Enforcement and 
Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last 
updated May 10, 2024) (``Nationwide CBP Encounters by Encounter Type 
and Region''). Thus, while CBP's apprehension of 402,000 noncitizens 
between POEs in the second quarter of FY 2024 is slightly lower than 
the 424,000 observed in FY 2023 and 518,000 in FY 2022, it is almost 
four times as high as the pre-pandemic second-quarter average for FY 
2014 through FY 2019, and with the exceptions of FY 2022 and FY 2023 
the highest second-quarter count recorded since FY 2001. Even with 
the downturn between January and March, 2024, the high volume of 
encounters and challenging demographic mix still meant that most 
noncitizens processed by USBP were released from custody into the 
United States (including noncitizens enrolled in an ICE Alternatives 
to Detention program and those paroled by the Office of Field 
Operations). OHSS analysis of March 2024 OHSS Persist Dataset; see 
also OHSS, Immigration Enforcement and Legal Processes Monthly 
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW 
Border Encounters Book-Outs by Agency'').
    \134\ Since May 12, 2023, 60 percent of non-Mexican noncitizen 
SWB encounters (at and between POEs) processed for expedited removal 
who have made fear claims have been referred to EOIR for immigration 
proceedings. OHSS analysis of data downloaded from UIP on April 2, 
2024. But based on historic (pre-pandemic) data, only 18 percent of 
non-Mexican noncitizens processed for expedited removal that are 
referred to EOIR result in an individual being granted relief or 
protection from removal once the case is completed. OHSS Enforcement 
Lifecycle December 31, 2023.
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    Even in times with sustained lower encounter volumes, such as 
between 2011 and 2017, the Departments experienced challenging 
situations, including the first surge in UCs in 2014, that severely 
strained the United States Government's capacity.\135\ Surges in 
encounters at the southern border--both at and between POEs--are now 
occurring more frequently and at higher magnitudes, and featuring more 
diverse demographics and nationalities than ever before.\136\ These 
surges affect more CBP sectors along the border, disrupt operations 
more quickly, and affect readiness in other critical areas as DHS 
diverts resources, including front-line agents, from other urgent tasks 
and geographic areas.\137\ These actions, in turn, impact other 
critical mission sets, including processing lawful trade and travel at 
POEs.\138\
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    \135\ OHSS, Immigration Enforcement and Legal Processes Monthly 
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW 
Border Encounters by Agency and Family Status'').
    \136\ OHSS, Immigration Enforcement and Legal Processes Monthly 
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW 
Border Encounters by Agency and Family Status'' and ``CBP SW Border 
Encounters by Agency and Selected Citizenship''); The Unaccompanied 
Children Crisis: Does the Administration Have a Plan to Stop the 
Border Surge and Adequately Monitor the Children?: Hearing Before 
the S. Comm. On the Judiciary, 114th Cong. (2016) (statement of 
Ronald Vitiello, Acting Chief of USBP), https://www.judiciary.senate.gov/imo/media/doc/02-23-16%20Vitiello%20Testimony.pdf; Memorandum on the Response to the 
Influx of Unaccompanied Alien Children Across the Southwest Border, 
1 Pub. Papers of Pres. Barack Obama 635, 635 (June 2, 2014).
    \137\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v. 
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2).
    \138\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v. 
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2); Decl. of 
Blas Nu[ntilde]ez-Neto ] 32, E. Bay Sanctuary Covenant v. Biden, No. 
18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 176-2).
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    DHS continues to lack the necessary funding and resources to 
deliver timely consequences to the majority of noncitizens encountered 
given the increased level of encounters it is experiencing at the 
SWB.\139\ On August 10, 2023, the Administration submitted to Congress 
a request for $2.2 billion in supplemental funding for border 
operations, including $1.4 billion for CBP and $714 million for ICE for 
border management and enforcement and an additional $416 million for 
counter-fentanyl efforts.\140\
---------------------------------------------------------------------------

    \139\ Letter for Kevin McCarthy, Speaker of the House of 
Representatives, from Shalanda D. Young, Director, OMB, at 2-3 (Aug. 
10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf; The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
    \140\ See Letter for Kevin McCarthy, Speaker of the House of 
Representatives, from Shalanda D. Young, Director, OMB, at 2-3, 
attach. at 45-50 (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.
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    On October 20, 2023, the Administration submitted to Congress a 
second request for supplemental funding for DHS, which would provide 
funding to enhance enforcement and processing, procure and 
operationalize needed technologies, and hire additional personnel.\141\ 
This funding would further support critical border enforcement efforts, 
including:
---------------------------------------------------------------------------

    \141\ See The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
---------------------------------------------------------------------------

     An additional 1,300 Border Patrol Agents to work alongside 
the 20,200 agents proposed in the President's FY 2024 budget request, 
as well as 300 Border Patrol Processing Coordinators and support staff; 
\142\
---------------------------------------------------------------------------

    \142\ See DHS, Fact Sheet: Biden-Harris Administration 
Supplemental Funding Request (Oct. 20, 2023), https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request; The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
---------------------------------------------------------------------------

     An additional 1,600 AOs and associated support staff to 
process migrant claims, which would provide USCIS with the critical 
resources needed to expand its current credible fear interview capacity 
to support timely processing of those placed in expedited removal; 
\143\ and
---------------------------------------------------------------------------

    \143\ See The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
---------------------------------------------------------------------------

     An expansion of detention beds and ICE removal flight 
funding to sustain the current significantly increased use of expedited 
removal, provide necessary surge capacity, and allow DHS to process 
more expeditiously noncitizens who cross the SWB unlawfully and swiftly 
remove those without a legal basis to remain in the United States.\144\
---------------------------------------------------------------------------

    \144\ See The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/; DHS, Fact Sheet: Biden-
Harris Administration Supplemental Funding Request (Oct. 20, 2023), 
https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request.
---------------------------------------------------------------------------

    On January 31, 2024, DHS published a new USCIS fee schedule, 
effective April 1, 2024, that adjusted the fees to fully recover costs 
and maintain adequate service. See U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, 89 FR 6194, 6194 (Jan. 31, 2024); U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements; Correction, 89 
FR 20101 (Mar. 21, 2024) (making corrections). Because there is

[[Page 48729]]

no fee required to file an asylum application or for protection 
screenings, 8 CFR 106.2(a)(28), and because Congress has not provided 
other funds to pay for the operating expenses of the Asylum 
Division,\145\ fees generated from other immigration applications and 
petitions must be used to pay for these expenses. See INA 286(m), 8 
U.S.C. 1356(m). While the new fee rule does provide for increased 
funding for the Refugee, Asylum, and International Operations 
Directorate,\146\ keeping pace with USCIS's protection screening and 
affirmative asylum workloads requires additional funding, as reflected 
in the President's FY 2025 Budget.\147\ Raising fees on other 
applications and petitions to cover the $755 million that would be 
required to hire and support the additional 1,600 AOs called for in the 
President's 2025 FY Budget \148\ would impose a burden on other filers.
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    \145\ See DHS, U.S. Citizenship and Immigration Services, Budget 
Overview, Fiscal Year 2025 Congressional Justification CIS--IEFA--22 
(Mar. 8, 2024), https://www.dhs.gov/sites/default/files/2024-03/2024_0308_us_citizenship_and_immigration_services.pdf (showing AOs 
are funded by Immigration Examinations Fee Account); id. at CIS--
O&S--30 (showing that appropriated funds from the Refugee, Asylum, 
and International Operations Directorate of USCIS support Refugee 
Officers).
    \146\ DHS, Immigration Examinations Fee Account: Fee Review 
Supporting Documentation with Addendum 53 (Nov. 2023), https://www.regulations.gov/document/USCIS-2021-0010-8176.
    \147\ See The White House, Fact Sheet: The President's Budget 
Secures Our Border, Combats Fentanyl Trafficking, and Calls on 
Congress to Enact Critical Immigration Reform (Mar. 11, 2024), 
https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/.
    \148\ Id.
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    In early February 2024, a bipartisan group of Senators proposed 
reforms of the country's asylum laws that would have provided new 
authorities to significantly streamline and speed up immigration 
enforcement proceedings and immigration adjudications for individuals 
encountered at the border, including those who are seeking protection, 
while preserving principles of fairness and humane treatment.\149\ 
Critically, the proposal included nearly $20 billion in additional 
resources for DHS, DOJ, and other departments to implement those new 
authorities,\150\ including resources for:
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    \149\ The White House, Fact Sheet: Biden-Harris Administration 
Calls on Congress to Immediately Pass the Bipartisan National 
Security Agreement (Feb. 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/.
    \150\ Deirdre Walsh & Claudia Grisales, Negotiators release $118 
billion border bill as GOP leaders call it dead in the House, NPR 
(Feb. 4, 2024), https://www.npr.org/2024/02/04/1226427234/senate-border-deal-reached.
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     Over 1,500 new CBP personnel, including Border Patrol 
Agents and CBP Officers;
     Over 4,300 new AOs, as well as USCIS staff to facilitate 
timely and fair decisions;
     100 additional IJ teams to help reduce the asylum caseload 
backlog and adjudicate cases more quickly;
     Shelter and critical services for newcomers in U.S. cities 
and States; and
     1,200 new ICE personnel for functions including 
enforcement and removals.\151\
---------------------------------------------------------------------------

    \151\ The White House, Fact Sheet: Biden-Harris Administration 
Calls on Congress to Immediately Pass the Bipartisan National 
Security Agreement (Feb. 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/.
---------------------------------------------------------------------------

    However, Congress failed to move forward with this bipartisan 
legislative proposal.\152\ It also failed to pass the emergency 
supplemental funding requests that the Administration submitted. 
Although Congress did ultimately enact an FY 2024 appropriations bill 
for DHS, the funding falls significantly short of what DHS requires to 
deliver timely consequences and avoid large-scale releases pending 
section 240 removal proceedings. For example, the bill does not provide 
the resources necessary for DHS to refer the majority of noncitizens 
encountered by USBP who are amenable to expedited removal into such 
processing, resulting in large-scale releases pending section 240 
removal proceedings based on current encounter numbers. Such releases, 
in turn, have significant impacts on communities and contribute to 
further migration by incentivizing potential migrants to travel to the 
United States with the belief that, even if initially detained, they 
will ultimately be released to live and work in the United States for 
long periods of time. Absent the Proclamation and this rule, these 
harmful results are especially likely given the circumstances described 
in the Proclamation.
---------------------------------------------------------------------------

    \152\ Associated Press, Border Bill Fails Senate Test Vote as 
Democrats Seek to Underscore Republican Resistance (May 23, 2024), 
https://apnews.com/article/border-immigration-senate-vote-924f48912eecf1dc544dc648d757c3fe.
---------------------------------------------------------------------------

    The FY 2024 appropriations provided some additional funding for DHS 
above its request, including for additional Border Patrol Agents and a 
higher level of ICE detention beds than was previously 
appropriated.\153\ Although this increase is helpful, there are a 
number of ways in which the FY 2024 budget falls well short of what DHS 
needs to respond to the current elevated levels of migration. For 
example, the FY 2024 appropriations failed to fund the salary increase 
set across the Federal Government by the Office of Management and 
Budget (``OMB''), effectively reducing salary funding for the entirety 
of the appropriations-funded DHS workforce.\154\ This reduction will 
limit the availability of overtime to respond to surges in irregular 
migration and may require difficult operational decisions during the 
closing months of the fiscal year, which is historically a busier 
period for such migration. The appropriations also did not provide 
sufficient funding to maintain the temporary processing facilities 
needed to hold migrants in custody. Further, the funds for hiring 
additional personnel were restricted to the current fiscal year rather 
than being provided as multi-year funds as requested; given the length 
of the hiring process, DHS will not be able to realize the increases in 
personnel envisioned by the legislation before the funding expires.
---------------------------------------------------------------------------

    \153\ See House of Representatives, Explanatory Statement: 
Division C, Department of Homeland Security Appropriations Act, 
2024, at 14, 25 (Mar. 18, 2024), https://docs.house.gov/billsthisweek/20240318/Division%20C%20Homeland.pdf.
    \154\ See id. at 14, 22 (explaining that for CBP, ``[t]he 
agreement includes $346,498,000 below the request, including the 
following: $182,772,000 for the 2024 pay raise,'' and for ICE, 
``[t]he agreement provides $9,501,542,000 for Operations and 
Support, including a decrease below the request of $74,153,000 for 
the 2024 pay raise'').
---------------------------------------------------------------------------

    All of these factors, taken together, mean that under the current 
appropriations law, DHS will, at best, be able only to sustain most of 
its current operations, resulting in an operating capacity that already 
experiences strain during times of high migration levels; this will, in 
turn, reduce DHS's ability to maximize the delivery of timely 
consequences for those without a lawful basis to remain. Additionally, 
DHS will not be able to expand capacity along the border or increase 
its ability to deliver consequences through referrals into expedited 
removal. Instead, DHS may actually need to reduce capacity in some key 
areas, including by closing critical temporary processing facilities 
and pulling USBP agents away from the frontline to undertake processing 
and tasks related to custody. Thus, while DHS has made significant 
progress toward a migration strategy focused on enforcement, 
deterrence, encouragement of the use of lawful pathways, and diplomacy, 
a lack of needed resources and tools hampers DHS's current ability to 
manage the unprecedented flow of hemispheric migration, and the

[[Page 48730]]

situation will only worsen with expected seasonal and other increases.
    Immigration-related resource challenges are not unique to front-
line border officials. The immigration removal continuum--from 
apprehension, processing, and inspection to protection interviews and 
removal--is hampered by a lack of sufficient funding, resources, and 
tools at every stage.\155\ EOIR is underfunded, without sufficient 
resources to address the backlog of over 2.78 million cases that were 
pending in the immigration courts at the end of the first quarter of FY 
2024.\156\ This under-resourcing has contributed to the growth of this 
backlog; in FY 2023, IJs completed more cases than they ever had before 
in a single year, but more than twice as many cases were received by 
the immigration courts as were completed.\157\ The FY 2024 budget 
creates even greater strains on EOIR. EOIR received $844 million this 
fiscal year,\158\ a cut of $16 million from FY 2023.\159\ EOIR's budget 
was also cut $94.3 million from its inflation-adjusted funding 
requirements (referred to as ``Current Services'').\160\ As a result of 
the significant budgetary gap, EOIR will necessarily be required to 
reduce the Federal and contract labor force that has been supporting 
its immigration courts nationwide and cut spending to technological 
initiatives. Specifically, EOIR has identified a need to cut 200 of its 
authorized Federal positions and is identifying areas in which it can 
make cuts to contracts, including those supporting the Office of 
Information Technology, with the least amount of impact on operations.
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    \155\ See DHS, Statement from Secretary Mayorkas on the 
President's Fiscal Year 2025 Budget for the U.S. Department of 
Homeland Security (Mar. 11, 2024), https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department (``DHS reiterates previously submitted funding 
requests that are critical to secure the border, build immigration 
enforcement capacity, combat fentanyl and address domestic needs 
like natural disaster response, which Congress has failed to act on. 
Among them, the October funding request, which includes $8.7 billion 
for border, immigration, and counter fentanyl requirements and $9.2 
billion for FEMA's Disaster Relief Fund and Nonprofit Security Grant 
Program. Notably, the Administration's border supplemental request 
includes funding to build capacity in the areas of border security, 
immigration enforcement, and countering fentanyl. DHS strongly 
supports the additional $19 billion in funding proposals included in 
the Senate's bipartisan border legislation that would, among other 
things, enable DHS to hire more CBP agents and officers, ICE 
enforcement and investigative personnel, and USCIS asylum officers 
and provide new tools to bolster the Department's efforts to secure 
and manage the border.''); see also Letter for Kevin McCarthy, 
Speaker of the House of Representatives, from Shalanda D. Young, 
Director, OMB, at 2-3 (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf; The White House, Fact Sheet: 
White House Calls on Congress to Advance Critical National Security 
Priorities (Oct. 20, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/; DHS, 
Fact Sheet: Biden-Harris Administration Supplemental Funding Request 
(Oct. 20, 2023), https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request.
    \156\ See EOIR, Adjudication Statistics: Pending Cases, New 
Cases, and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/workload-and-adjudication-statistics.
    \157\ See EOIR, Adjudication Statistics: New Cases and Total 
Completions (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2018/05/08/2_new_cases_and_total_completions.pdf; EOIR, 
Adjudication Statistics: New Cases and Total Completions--Historical 
1 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.
    \158\ Consolidated Appropriations Act, 2024, Public Law 118-42, 
138 Stat. 25, 133 (``[f]or expenses necessary for the administration 
of immigration-related activities of the Executive Office for 
Immigration Review, $844,000,000'').
    \159\ Consolidated Appropriations Act, 2023, Public Law 117-328, 
136 Stat. 4459, 4522 (2022) (``[f]or expenses necessary for the 
administration of immigration-related activities of the Executive 
Office for Immigration Review, $860,000,000''); EOIR, FY 2024 Budget 
Request at a Glance, https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf (showing FY 2023 
enacted budget providing EOIR $860 million).
    \160\ EOIR, FY 2024 Budget Request at a Glance, https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf (providing the Current 
Services Adjustment as an increase of $78.3 million, bringing the 
inflation-adjusted amount to $938.3 million).
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    Similarly, the USCIS backlog of affirmative asylum cases stands at 
over 1.16 million and is growing.\161\ USCIS does not have enough AOs 
to keep pace with the number of individuals who could be referred for 
credible fear interviews at the border, much less keep pace with new 
affirmative asylum receipts or even marginally reduce the affirmative 
asylum backlog. In sum, the border security and immigration systems are 
badly strained and not functioning to provide timely relief or 
protection for those who warrant it or timely consequences for those 
without a legal basis to remain, including those without viable asylum 
or protection claims.
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    \161\ OHSS analysis of USCIS Global Affirmative Data as of April 
25, 2024 (noting that ``[d]ata is limited to filings between FY2000 
and March 31, 2024'').
---------------------------------------------------------------------------

    The TCOs operating in the region, and the migrants they prey upon 
who intend to make the dangerous journey north, have taken notice of 
this situation. They understand that when the capacity of DHS to 
quickly process individuals at the border is strained, DHS is limited 
in its ability to deliver timely consequences. Because of these 
resource limitations, individuals are more likely than not to be 
released to pursue a years-long immigration court process during which, 
beginning 180 days after applying for asylum, they may be authorized to 
work.\162\ These smuggling organizations have built a multi-billion-
dollar industry, featuring online marketing campaigns to spread 
misinformation and sophisticated logistics networks designed to quickly 
funnel migrants to the parts of the border where DHS capacity is 
lower.\163\
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    \162\ See 8 CFR 208.7, 274a.12(c)(8). Sixty-seven percent of 
individuals encountered by CBP at and between POEs at the SWB 
between May 2023 and March 2024 were released, including 66 percent 
of such individuals in the second quarter of FY 2024. These 
individuals include noncitizens enrolled in an ICE Alternatives to 
Detention program. March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border 
Encounters Book-Out Outcomes by Agency'').
    \163\ See, e.g., Priscilla Alvarez, Human smugglers peddle 
misinformation to US-bound migrants on Facebook, watchdog says, CNN 
(July 27, 2022), https://www.cnn.com/2022/07/27/politics/human-smuggling-misinformation/index.html; Bernd Debusmann Jr, TikTok and 
Title 42 rumours fuel human smuggling at the US border, BBC (July 8, 
2023), https://www.bbc.com/news/world-us-canada-65848683.
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    While the emergency measures instituted by the Proclamation are in 
effect, the Departments will put in place extraordinary procedures to 
more quickly process individuals encountered at the southern border, 
reducing the time noncitizens spend in DHS facilities. The specific 
measures introduced by this rule are designed to further streamline DHS 
processes at the border so that DHS can more quickly deliver meaningful 
consequences to more individuals who cross unlawfully or without 
authorization within the resource and operational constraints that have 
limited DHS capacity to date.
    Under this rule, while emergency border circumstances persist, the 
way noncitizens are processed, their eligibility for asylum, and the 
way in which their eligibility for protection is assessed, will change 
in three ways. First, during emergency border circumstances, those who 
enter the United States across the southern border and who are not 
described in section 3(b) of the Proclamation will be ineligible for 
asylum unless they demonstrate by a preponderance of the evidence that 
exceptionally compelling circumstances exist. As discussed in Section 
III.B.3.a of this preamble, the Departments expect that applying the 
limitation on asylum eligibility will encourage noncitizens to make an 
appointment to present at the SWB, take advantage of other lawful 
migration

[[Page 48731]]

pathways, or not undertake the dangerous journey north to begin with.
    Second, this rule will reduce the time it takes to process 
individuals placed in expedited removal at the border by changing the 
way CBP immigration officers identify and refer noncitizens for 
credible fear interviews. Under current title 8 procedures, noncitizens 
encountered at the border and processed for expedited removal are 
provided lengthy advisals regarding the credible fear and asylum 
process and are asked questions to ascertain whether they may 
potentially have a fear of persecution or torture.\164\ During 
emergency border circumstances, DHS will move to a ``manifestation of 
fear'' process at the border, detailed below in Section III.B.3.b of 
this preamble, that will involve general (rather than individual) 
advisals and require individuals who have a fear of persecution or 
torture to manifest that fear, verbally, non-verbally, or physically, 
in order for DHS personnel to refer them for a credible fear interview.
---------------------------------------------------------------------------

    \164\ 8 CFR 235.3(b)(2).
---------------------------------------------------------------------------

    Third, the limitation on asylum eligibility will be considered 
during credible fear interviews and reviews, and those who are subject 
to the limitation and are unable to establish a significant possibility 
of showing exceptionally compelling circumstances will be screened for 
eligibility for statutory withholding of removal and CAT protection 
under a heightened ``reasonable probability of persecution or torture'' 
standard--a higher standard than the ``reasonable possibility'' 
standard under the Circumvention of Lawful Pathways rule.
    As the Departments described more fully in the Circumvention of 
Lawful Pathways rule, the current asylum system--in which a high number 
of migrants are initially determined to be eligible to pursue their 
claims, even though most ultimately are not granted asylum or 
protection at the merits stage--has contributed to the growing backlog 
of cases awaiting review by IJs.\165\ The practical result is that 
those with meritorious claims may have to wait years for their claims 
to be granted, while individuals who are ultimately denied protection 
may spend years in the United States before being issued a final order 
of removal.\166\ As the demographics of border encounters have shifted 
in recent years to include Mexicans claiming fear at a higher rate, and 
large numbers of non-Mexicans--who have historically been far more 
likely to assert fear claims--and as the time required to process and 
remove noncitizens ineligible for protection has grown (during which 
individuals may become eligible to apply for employment authorization), 
the deterrent effect of apprehending noncitizens at the SWB has become 
more limited.\167\
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    \165\ 88 FR at 31315.
    \166\ See supra note 25.
    \167\ According to OHSS Persist data, Mexican nationals 
continued to account for 89 percent of total CBP SWB encounters in 
FY 2010, with northern Central Americans accounting for 8 percent 
and all other nationalities accounting for 3 percent. March 2024 
OHSS Persist Dataset. Northern Central Americans' share of total CBP 
SWB encounters increased to 21 percent by FY 2012 and averaged 48 
percent from FY 2014 to FY 2019, the last full year before the start 
of the COVID-19 pandemic. Id. Nationals from all other countries 
except Mexico and the northern Central American countries accounted 
for an average of 5 percent of total CBP SWB encounters from FY 2010 
to FY 2013, and for 10 percent of total encounters from FY 2014 to 
FY 2019. Id. This transition has accelerated since the start of FY 
2021, as Mexican nationals accounted for approximately 32 percent of 
total CBP SWB encounters in FY 2021 through March 2024, including 
roughly 29 percent in the first six months of FY 2024; northern 
Central Americans accounted for roughly 25 percent from FY 2021 
through March 2024 (20 percent in FY 2024 through March 2024); and 
all other countries accounted for roughly 42 percent from FY 2021 
through March 2024, including roughly 51 percent of FY 2024 
encounters through March 2024. Id.
    For noncitizens encountered at and between SWB POEs from FY 2014 
through FY 2019 who were placed in expedited removal, nearly 6 
percent of Mexican nationals made fear claims that were referred to 
USCIS for determination. OHSS analysis of Enforcement Lifecycle data 
as of December 31, 2023. In contrast, as discussed in Section 
III.B.3.a.iv of this preamble, from May 12, 2023 to March 31, 2024, 
29 percent of all Mexican nationals processed for expedited removal 
at the SWB made fear claims, including 39 percent in February 2024. 
OHSS analysis of UIP ER Daily Report Data Dashboard as of April 2, 
2024.
    For noncitizens encountered at and between SWB POEs from FY 2014 
through FY 2019, nearly 57 percent of people from northern Central 
America (i.e., El Salvador, Guatemala, and Honduras), and close to 
90 percent of all other nationalities made fear claims that were 
referred to USCIS for determination. OHSS analysis of Enforcement 
Lifecycle data as of December 31, 2023. Of note, according to OHSS 
analysis of historic EOIR and CBP data, there is a clear correlation 
since FY 2000 between the increasing time it takes to complete 
immigration proceedings, which results in a lower share of 
noncitizens being removed, and the growth in non-Mexican encounters 
at and between SWB POEs. Both trends accelerated in the 2010s, as 
non-Mexicans became the majority of such encounters, and they have 
accelerated further since FY 2020, as people from countries other 
than Mexico and northern Central America now account for the largest 
numbers of such encounters. OHSS analysis of March 2024 OHSS Persist 
Dataset.
---------------------------------------------------------------------------

    The provisions in this rule are intended to be emergency measures 
that impact the expedited removal process and eligibility for relief or 
protection only for those who enter the United States across the 
southern border during emergency border circumstances. Unfortunately, 
the significant efforts the Departments have made to address such 
circumstances to date have not been as effective as they could have 
been had Congress provided the personnel, infrastructure, technology, 
and broader reforms that the Departments have requested. Communities 
all over the United States are being adversely impacted as a result. 
The goal of these measures is to quickly reduce unlawful and 
unauthorized entries at the border and to quickly impose decisions and 
consequences on those who cross our border unlawfully and lack a legal 
basis to remain.
3. Description of the Rule and Explanation of Regulatory Changes
    This rule amends the Departments' regulations to further the 
purpose of the Presidential Proclamation of June 3, 2024, which 
suspends and limits entry along the southern border to address the 
emergency border circumstances outlined in that Proclamation. The rule 
does so by amending 8 CFR 208.13 and 1208.13 and adding regulatory 
provisions at 8 CFR 208.35, 235.15, and 1208.35 that (1) limit asylum 
eligibility for those who enter the United States across the southern 
border during emergency border circumstances described in the 
Proclamation and this rule, are not described in section 3(b) of the 
Proclamation, and do not establish the existence of exceptionally 
compelling circumstances; (2) alter the process for advising 
noncitizens of their rights to seek asylum and for identifying which 
noncitizens to refer to an AO for credible fear screening during 
emergency border circumstances; and (3) alter the standard for 
screening for statutory withholding of removal and CAT protection while 
such circumstances exist.\168\ Below is an explanation of the 
limitation and each change to the expedited removal and fear screening 
process. The specific content of each provision and amendment is set 
forth in detail in Section III.C of this preamble.
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    \168\ The Departments understand that the President has directed 
the agencies to promptly consider issuing ``any instructions, 
orders, or regulations as may be necessary to address the 
circumstances at the southern border.'' Such actions may include 
other measures that are not addressed in this rule, and the 
Departments have considered and are continuing to consider such 
other actions. The Departments believe that the changes made in this 
rule are the most appropriate means to begin addressing the concerns 
identified in the Proclamation, and the Departments will assess the 
effectiveness of this rule as they continue to consider other 
actions to respond to the President's direction.
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a. Limitation on Asylum Eligibility
    As discussed above in Sections III.B.1 and 2 of this preamble, 
irregular migration is continuing to strain the Departments' ability to 
timely process, detain, and remove, as appropriate, and

[[Page 48732]]

thus to swiftly deliver timely decisions and timely consequences to 
noncitizens at the southern border. This challenge is exacerbated by 
the sheer number of migrants who invoke credible fear procedures at a 
POE or when they are encountered between POEs without following the 
lawful, safe, and orderly processes that DHS has made available. The 
Departments have implemented the Circumvention of Lawful Pathways rule 
and complementary measures, but Congress has not provided the resources 
necessary to timely and effectively process and interview all those who 
invoke credible fear procedures through the expedited removal process 
at the southern border, particularly during times in which the 
country's border faces an emergency of the magnitude described in the 
Proclamation. The record numbers of migrants invoking the credible fear 
procedures at the southern border exacerbate the risk of severe 
overcrowding in USBP facilities and POEs, and it creates a situation in 
which large numbers of migrants--only a small proportion of whom are 
likely to be granted asylum--are not able to be expeditiously removed 
but are instead referred to backlogged immigration courts. This 
situation is self-reinforcing: the expectation of a lengthy stay in the 
United States and the lack of timely consequences for irregular 
migration encourage more migrants without potentially meritorious 
claims for asylum to make the dangerous journey to the southern border 
to invoke credible fear procedures at the southern border and take 
their chances on being allowed to remain in the country for a lengthy 
period.
    For these reasons, pursuant to section 208(b)(1)(A), (b)(2)(C), 
(d)(5)(B) of the INA, 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B), the 
Departments are adopting a limitation on asylum eligibility for 
noncitizens who (1) enter the United States across the southern border 
during emergency border circumstances; (2) are not described in section 
3(b) of the Proclamation; and (3) do not establish exceptionally 
compelling circumstances. See 8 CFR 208.13(g), 208.35(a), 1208.13(g), 
1208.35(a). Section 3(b) of the Proclamation lists classes of 
individuals to whom the Proclamation's suspension and limitation on 
entry and this limitation on asylum eligibility does not apply; those 
classes are discussed in Section II.A of this preamble. The 
exceptionally compelling circumstances exception to this rule's 
limitation on asylum eligibility is discussed below in Sections 
III.B.3.a and III.C.2 of this preamble.
    The limitation on asylum eligibility is needed to address the 
emergency border circumstances outlined in the Proclamation and this 
rule and responds to the President's direction to the Secretary of 
Homeland Security and the Attorney General to promptly consider issuing 
such instructions, orders, or regulations as may be necessary to 
address the circumstances at the southern border, including any 
additional limitations and conditions on asylum eligibility that they 
determine are warranted, subject to any exceptions that they determine 
are warranted. Under the circumstances described in the Proclamation, 
the Departments assess that the limitation on asylum is necessary to 
help streamline the Departments' processing of noncitizens, thereby 
conserving limited resources during the emergency border circumstances 
described in the Proclamation and this rule and allowing for enough 
resources to continue to process lawful cross-border trade and travel 
and noncitizens who present in a safe and orderly manner at a POE.\169\
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    \169\ When it comes to determining the applicability of the 
Proclamation, CBP immigration officers, who first encounter 
noncitizens when they enter or attempt to enter, must determine 
whether a noncitizen is subject to the Proclamation under section 
3(a), including whether the noncitizen is excluded from the 
suspension and limitation on entry under section 3(b). See 8 CFR 
208.35(a), 1208.35(a). The Departments anticipate that, when 
determining whether the limitation on asylum eligibility applies, 
AOs and IJs will rarely have grounds to reach a different result 
from the CBP immigration officers. See 8 CFR 208.35(b), 1208.35(b). 
In part, the Proclamation's application turns on straightforward 
questions of status--e.g., whether someone was a noncitizen, 
Proclamation sec. 3(a)(i); was a noncitizen national, id. sec. 
3(b)(i); was a lawful permanent resident, id. sec. 3(b)(ii); was a 
UC, id. sec. 3(b)(iii); or had a valid visa or other lawful 
permission to seek entry or admission into the United States or 
presented at a POE pursuant to a pre-scheduled time and place, id. 
sec. 3(b)(v). The Proclamation's application also turns on questions 
of historical fact, including whether the suspension and limitation 
on entry was in place at the relevant time, id. sec. 3(a), and 
whether someone was ``permitted to enter by . . . a CBP immigration 
officer'' based on two sets of specified considerations ``at the 
time of the entry or encounter that warranted permitting the 
noncitizen to enter,'' id. Sec. 3(b)(vi)-(vii). These two exceptions 
allow CBP immigration officers to permit the entry of noncitizens 
who present at the encounter with--for example--medical issues 
requiring immediate attention. See id. sec. 3(b)(vi).
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    The Departments have further made the determination to apply the 
limitation on asylum eligibility to those who enter the United States 
across the southern border during emergency border circumstances 
irrespective of whether the noncitizen is encountered during such 
emergency border circumstances. This will permit a consistent 
application of the rule to all those who enter across the southern 
border during such circumstances and are subject to this limitation on 
asylum eligibility, including those who evade detection at the southern 
border and are later placed in section 240 removal proceedings, as well 
as those who affirmatively apply for asylum. The Departments have 
considered applying the rule's asylum limitation only to those who 
enter and are encountered at the southern border during emergency 
border circumstances. The Departments believe, however, that the rule's 
asylum limitation should avoid creating an incentive for noncitizens to 
take risky measures to evade detection, which would further strain 
resources dedicated to apprehension at the border.\170\
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    \170\ The Departments note that adjudicators already make 
determinations regarding the noncitizen's date of arrival when 
determining whether the noncitizen is barred from filing an asylum 
application (unless meeting an exception) within one year of 
arrival. See INA 208(a)(2)(B) and (D), 8 U.S.C. 1158(a)(2)(B) and 
(D).
---------------------------------------------------------------------------

    Additionally, the approach adopted in this rule is consistent with 
the Circumvention of Lawful Pathways rule, which, with narrow 
exceptions, applies to all those who enter during the two-year period 
currently specified in that rule, regardless of whether they are 
apprehended at or near the border during the 14-day period immediately 
after entry or within 100 miles of the border. See 8 CFR 208.33(c), 
1208.33(d). Moreover, the Departments note that the provisions of 
Sec. Sec.  208.35(b) and 235.15 would be applicable only to those who 
have entered the United States during the emergency border 
circumstances described in the Proclamation and this rule and are 
processed for expedited removal. Thus, those provisions would not apply 
to those who have long since entered the United States. Accordingly, 
the Departments have determined that it is reasonable to apply this 
rule's limitation on asylum eligibility consistent with the 
Circumvention of Lawful Pathways rule, without regard to the date of 
encounter or commencement of proceedings.
    Even if a noncitizen entered the United States across the southern 
border during emergency border circumstances and is not described in 
section 3(b) of the Proclamation, they may avoid application of the 
limitation on asylum eligibility if they establish by a preponderance 
of the evidence that exceptionally compelling circumstances exist.\171\ 
Such circumstances necessarily

[[Page 48733]]

exist where the noncitizen demonstrates that, at the time of entry, the 
noncitizen or a member of the noncitizen's family as described in 8 CFR 
208.30(c) with whom the noncitizen was traveling faced an acute medical 
emergency; faced an imminent and extreme threat to their life or 
safety; or was a ``victim of a severe form of trafficking in persons'' 
as defined in 8 CFR 214.11.\172\ 8 CFR 208.35(a)(2)(i), 
1208.35(a)(2)(i). Acute medical emergencies would include, but would 
not be limited to, situations in which someone faces a life-threatening 
medical emergency or faces acute and grave medical needs that cannot be 
adequately addressed outside of the United States. Examples of imminent 
and extreme threats would include imminent threats of rape, kidnapping, 
torture, or murder that the noncitizen faced at the time the noncitizen 
crossed the southern border, such that they cannot wait for an 
appointment at a pre-scheduled time and place or until this IFR's 
limitation on asylum eligibility is not in effect for an opportunity to 
present at a POE without putting their life or well-being at extreme 
risk; it would not include generalized threats of violence.
---------------------------------------------------------------------------

    \171\ The Departments decline to adopt an exception mirroring 
the exception from the Circumvention of Lawful Pathways rule for 
those who present at a POE without a pre-scheduled time and place 
but show that it was not possible to access or use the DHS 
scheduling system due to language barrier, illiteracy, significant 
technical failure, or other ongoing and serious obstacle. See 8 CFR 
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). This rule, unlike the 
Circumvention of Lawful Pathways rule, applies only in the emergency 
circumstances described in the Proclamation and the rule, where 
encounters strain the border security and immigration systems' 
capacity. And although the Circumvention of Lawful Pathways rule was 
also aimed at reducing irregular migration, it was focused on 
encouraging the use of lawful pathways, rather than the number of 
daily entrants. In these emergency border circumstances, this rule's 
exception for ``exceptionally compelling circumstances'' captures 
individuals with a time-sensitive imperative; such individuals may 
also be permitted to enter under one of the exceptions in section 
3(b) of the Proclamation. And in these emergency border 
circumstances, the Departments have determined that individuals who 
do not qualify for this exception should wait for a CBP One 
appointment. Moreover, under the Circumvention of Lawful Pathways 
rule, this exception requires additional questioning of any 
noncitizen who entered at a POE and is subject to the rule--time 
that, in the aggregate, could diminish the Departments' ability to 
deploy resources to address the emergency circumstances that support 
application of this rule.
    In addition, the Departments did not include an exception for a 
noncitizen who sought asylum or other protection in a country 
through which the noncitizen traveled and received a final decision 
denying that application. See 8 CFR 208.33(a)(2)(ii)(C), 
1208.33(a)(2)(ii)(C). This rule serves a different purpose than 8 
CFR 208.33(a)(2)(ii)(C) and 1208.33(a)(2)(ii)(C); specifically, this 
rule is aimed at deterring irregular migration and speeding up the 
border process during a period of high encounters, rather than 
encouraging noncitizens to seek protection in other countries. 
During the emergency border circumstances described in the 
Proclamation and this rule, narrowing the exceptions to those who 
are unable to wait for an appointment is key. Those who sought and 
were denied protection in another country will still be eligible for 
asylum if they enter pursuant to an appointment, meet another 
exception to the Proclamation, or establish exceptionally compelling 
circumstances, such as that at the time of entry they faced an acute 
medical emergency or an imminent and extreme threat to life or 
safety.
    \172\ The Departments note that noncitizens who are a ``victim 
of a severe form of trafficking in persons'' are already excepted 
from the Proclamation's suspension and limitation on entry as 
provided in section 3(b) of the Proclamation and are therefore also 
not subject to the rule's limitation on asylum eligibility. 
Nonetheless, the Departments have opted to retain ``victims of 
severe form of trafficking in persons'' as an exceptional 
circumstance to avoid any confusion and to ensure that the 
exceptions in this rule mirror the rebuttal circumstances the 
Departments adopted in the Circumvention of Lawful Pathways rule.
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    The ``exceptionally compelling circumstances'' exception mirrors 
the rebuttal circumstance the Departments adopted in the Circumvention 
of Lawful Pathways rule. See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). 
That exception is adopted here for the reasons articulated for adopting 
it in the Circumvention of Lawful Pathways NPRM and rule and the 
exception is intended to apply to the same circumstances identified in 
that NPRM and rule. See, e.g., 88 FR at 11723; 88 FR at 31318, 31338, 
31348, 31351, 31380, 31390, 31391-93.
    Like the Circumvention of Lawful Pathways rule, this rule 
recognizes an additional exception that avoids the separation of 
families. See 8 CFR 208.35(c), 1208.35(c). Those noncitizens who are 
subject to the limitation on asylum eligibility and who do not 
establish exceptionally compelling circumstances under 8 CFR 
208.35(a)(2)(i) or 1208.35(a)(2)(i) would be able to continue to apply 
for statutory withholding of removal and protection under the CAT, 
forms of protection to which the limitation does not apply if placed in 
section 240 removal proceedings. Unlike asylum, spouses and minor 
children are not eligible for derivative grants of statutory 
withholding of removal or CAT protection. Compare INA 208(b)(3)(A), 8 
U.S.C. 1158(b)(3)(A) (``[a] spouse or child . . . of an alien who is 
granted asylum under this subsection may, if not otherwise eligible for 
asylum under this section, be granted the same status as the alien if 
accompanying, or following to join, such alien''), with INA 241(b)(3), 
8 U.S.C. 1231(b)(3) (not providing for derivative statutory withholding 
of removal), and 8 CFR 1208.16(c) (not providing for derivative CAT 
protection); see also Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 
2013) (recognizing that the asylum statute allows for derivative 
beneficiaries of the principal applicant for asylum, but that the 
withholding of removal statute makes no such allowance). Again, 
mirroring EOIR's family unity provision in the Circumvention of Lawful 
Pathways rule, see 8 CFR 1208.33(c), where a principal asylum applicant 
is eligible for statutory withholding of removal or CAT protection and 
would be granted asylum but for the limitation on eligibility 
established in this rule, and where an accompanying spouse or child as 
defined in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), 
does not independently qualify for asylum or other protection from 
removal or the principal asylum applicant has a spouse or child who 
would be eligible to follow to join that applicant as described in 
section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), the noncitizen 
shall be excepted from the limitation on eligibility by the IJ if 
placed in section 240 removal proceedings. 8 CFR 1208.35(c). The 
Departments have determined that the possibility of separating the 
family should be avoided. See E.O. 14011, Establishment of Interagency 
Task Force on the Reunification of Families, 86 FR 8273, 8273 (Feb. 2, 
2021) (``It is the policy of my Administration to respect and value the 
integrity of families seeking to enter the United States.'').
    In the Circumvention of Lawful Pathways rule, the Departments 
included a family unity provision in EOIR's regulations but not DHS's. 
The Departments did so because they decided at that time that those who 
an AO concludes are subject to the Lawful Pathways presumption and who 
are not able to establish an exception or rebut the presumption during 
a credible fear screening may not be placed into the asylum merits 
interview process and may instead only be issued an NTA and placed into 
section 240 removal proceedings. See 88 FR at 11725-26; 88 FR at 31336-
37. For purposes of this rule, the Departments have allowed for an 
asylum merits interview process at the discretion of USCIS that 
includes USCIS discretion to apply a parallel family unity provision. 
See 8 CFR 208.35(c). This provision is discretionary to allow USCIS 
flexibility as it implements the new process. The Departments request 
comment on whether to adopt a non-discretionary family unity provision 
for the asylum merits interview process in a final rule.
i. Authority To Impose Additional Limitations on Asylum Eligibility
    The Secretary and the Attorney General have authority to adopt this 
additional limitation on asylum eligibility. Both have long exercised 
discretion, now expressly authorized by Congress, to create new rules 
governing the granting of asylum. When section

[[Page 48734]]

208 of the INA was first enacted as part of the Refugee Act of 1980, it 
simply provided that the Attorney General ``shall establish a 
procedure'' for a noncitizen ``to apply for asylum,'' and that the 
noncitizen ``may be granted asylum in the discretion of the Attorney 
General if the Attorney General determines that such [noncitizen] is a 
refugee within the meaning of section 1101(a)(42)(A).'' 8 U.S.C. 
1158(a) (1982). In 1980, the Attorney General, in the exercise of that 
broad statutory discretion, established several mandatory bars to the 
granting of asylum. See 8 CFR 208.8(f)(1) (1980); Aliens and 
Nationality; Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2, 
1980). In 1990, the Attorney General substantially amended the asylum 
regulations, but exercised his discretion to retain the mandatory bars 
to asylum eligibility related to persecution of others on account of a 
protected ground, conviction of a particularly serious crime in the 
United States, firm resettlement in another country, and the existence 
of reasonable grounds to regard the noncitizen as a danger to the 
security of the United States. See Aliens and Nationality; Asylum and 
Withholding of Deportation Procedures, 55 FR 30674, 30678, 30683 (July 
27, 1990); see also Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996) 
(upholding firm-resettlement bar); Komarenko v. INS, 35 F.3d 432, 436 
(9th Cir. 1994) (upholding particularly-serious-crime bar), abrogated 
on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en 
banc).
    In that 1990 rule, the Attorney General also codified another 
limitation that was first discussed in Matter of Chen, 20 I&N Dec. 16 
(BIA 1989). 55 FR at 30678. Specifically, although the statute defines 
a ``refugee'' and thus allows asylum for a noncitizen based on a 
showing of past ``persecution or a well-founded fear of persecution,'' 
INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A), by regulation, a showing of 
past persecution only gives rise to a presumption of a well-founded 
fear of future persecution, which can be rebutted by showing that 
circumstances have changed such that the noncitizen no longer has a 
well-founded fear of future persecution or that the noncitizen can 
relocate to avoid persecution and under all the circumstances it is 
reasonable to expect the noncitizen to do so.\173\ 8 CFR 208.13(b)(1), 
1208.13(b)(1). Where the presumption is rebutted, the adjudicator, ``in 
the exercise of his or her discretion, shall deny the asylum 
application.'' \174\ 8 CFR 208.13(b)(1)(i), 1208.13(b)(1)(i). In 1990, 
Congress added a mandatory statutory bar for those with aggravated 
felony convictions. Immigration Act of 1990, Public Law 101-649, sec. 
515, 104 Stat. 4978, 5053.
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    \173\ As noted below, the internal relocation provision was 
added in 2000 by Asylum Procedures, 65 FR 76121, 76126 (Dec. 6, 
2000).
    \174\ There is a narrow exception to this mandatory 
discretionary ground for denial, called ``humanitarian asylum,'' 
where the noncitizen establishes ``compelling reasons for being 
unwilling or unable to return to the [noncitizen's] country arising 
out of the severity of . . . past persecution'' or ``that there is a 
reasonable possibility that [the non-citizen] may suffer other 
serious harm upon removal to [the noncitizen's] country.'' 8 CFR 
208.13(b)(1)(iii), 1208.13(b)(1)(iii).
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    With the passage of IIRIRA, Congress added three categorical 
statutory bars to the ability to apply for asylum for (1) noncitizens 
who can be removed, pursuant to a bilateral or multilateral agreement, 
to a third country where they would not be persecuted on account of a 
specified ground; (2) noncitizens who failed to apply for asylum within 
one year of arriving in the United States; and (3) noncitizens who have 
previously applied for asylum and had the application denied. Public 
Law 104-208, div. C, sec. 604, 110 Stat. 3009, 3009-690 to -691. 
Congress also adopted six mandatory bars to asylum eligibility that 
largely reflected the pre-existing, discretionary bars that had been 
set forth in the Attorney General's asylum regulations. These bars 
cover (1) noncitizens who ``ordered, incited, assisted, or otherwise 
participated'' in the persecution of others; (2) noncitizens who, 
having been convicted of a ``particularly serious crime,'' constitute a 
danger to the United States; (3) noncitizens for whom there are serious 
reasons to believe committed a ``serious nonpolitical crime outside the 
United States'' before arriving in the United States; (4) noncitizens 
for whom there are reasonable grounds to regard as a ``danger to the 
security of the United States''; (5) noncitizens who are removable 
under a set of specified grounds relating to terrorist activity; and 
(6) noncitizens who were ``firmly resettled'' in another country prior 
to arriving in the United States. Id. at 3009-691 (codified at INA 
208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A)). Congress further added that 
aggravated felonies, defined in section 101(a)(43) of the INA, 8 U.S.C. 
1101(a)(43), would be considered ``particularly serious crime[s].'' Id. 
at 3009-692 (codified at INA 208(b)(2)(B)(i), 8 U.S.C. 
1158(b)(2)(B)(i)).
    In IIRIRA, Congress also made clear that the Executive Branch may 
continue to exercise its broad discretion in determining whether to 
grant asylum by creating additional limitations and conditions on the 
granting of asylum. The INA provides that the Attorney General and 
Secretary ``may by regulation establish additional limitations and 
conditions, consistent with [section 208], under which an alien shall 
be ineligible for asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); 
see 6 U.S.C. 552(d); INA 103(a)(1), 8 U.S.C. 1103(a)(1). In addition, 
while section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), establishes 
certain procedures for consideration of asylum applications, Congress 
specified that the Attorney General and Secretary ``may provide by 
regulation for any other conditions or limitations on the consideration 
of an application for asylum'' so long as those conditions or 
limitations are ``not inconsistent with this chapter,'' INA 
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). In sum, the current statutory 
framework retains the broad discretion of the Attorney General (and, 
after the HSA, also the Secretary) to adopt additional limitations on 
the granting of asylum and procedures for implementing those 
limitations.
    Previous Attorneys General and Secretaries have since invoked their 
authorities under section 208 of the INA, 8 U.S.C. 1158, to establish 
eligibility bars beyond those required by the statute itself. See, 
e.g., Asylum Procedures, 65 FR 76121, 76126 (Dec. 6, 2000) (requiring 
consideration of the applicant's ability to relocate safely in his or 
her home country in assessing asylum eligibility); Aliens Subject to a 
Bar on Entry Under Certain Presidential Proclamations; Procedures for 
Protection Claims, 83 FR 55934 (Nov. 9, 2018) (``Proclamation Bar 
IFR'') (limit on eligibility for applicants subject to certain 
presidential proclamations); \175\ Asylum Eligibility and Procedural 
Modifications, 85 FR 82260 (Dec. 17, 2020) (``TCT Bar final rule'') 
(limit on eligibility for certain noncitizens who failed to apply for 
protection while in a third country through which they transited en 
route to the United States); \176\ Procedures for Asylum and Bars to 
Asylum Eligibility, 85 FR 67202 (Oct. 21, 2020) (limits on eligibility 
for noncitizens convicted of certain criminal offenses); \177\ 
Inspection and Expedited Removal of Aliens; Detention and Removal of 
Aliens; Conduct of

[[Page 48735]]

Removal Proceedings; Asylum Procedures, 62 FR 10312, 10342 (Mar. 6, 
1997) (IFR codifying mandatory bars and adding provision allowing for 
discretionary denials of asylum where ``the alien can be removed to a 
third country which has offered resettlement and in which the alien 
would not face harm or persecution''); see also Yang, 79 F.3d at 936-39 
(upholding firm-resettlement bar); Komarenko, 35 F.3d at 436 (upholding 
particularly-serious-crime bar). Consistent with this historical 
practice, the Secretary and Attorney General exercised this authority 
when adopting the Lawful Pathways presumption of asylum ineligibility. 
See Circumvention of Lawful Pathways rule, 88 FR 31314.\178\
---------------------------------------------------------------------------

    \175\ See O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) 
(vacating Proclamation Bar IFR).
    \176\ See E. Bay Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663 
(N.D. Cal. 2021) (preliminarily enjoining the TCT Bar final rule).
    \177\ See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 
501 F. Supp. 3d 792, 827 (N.D. Cal. 2020) (granting temporary 
restraining order against operation of the rule and ordering 
defendants to show cause why the rule should not be preliminarily 
enjoined).
    \178\ The Circumvention of Lawful Pathways rule was vacated by 
East Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025 (N.D. 
Cal. 2023). But the Ninth Circuit has stayed that vacatur pending 
appeal, see E. Bay Sanctuary Covenant v. Biden, No. 23-16032 (9th 
Cir. Aug. 3, 2023), and thus the rule and its presumption remain in 
effect. On February 21, 2024, the Ninth Circuit placed the case in 
abeyance pending settlement discussions. E. Bay Sanctuary Covenant 
v. Biden, 93 F.4th 1130 (9th Cir. 2024).
---------------------------------------------------------------------------

ii. Litigation Over the Proclamation Bar IFR
    This rule places a limitation on asylum eligibility for those 
noncitizens who are described in the Proclamation subject to certain 
exceptions. The Departments acknowledge prior judicial decisions 
addressing a different limit on asylum eligibility adopted pursuant to 
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), relating to 
suspensions and limitations on entry by presidential proclamation under 
section 212(f) of the INA, 8 U.S.C. 1182(f). In East Bay Sanctuary 
Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021) (``East Bay III''), the 
Ninth Circuit affirmed a preliminary injunction against the 
Proclamation Bar IFR, which categorically rendered certain noncitizens 
ineligible for asylum if they entered the United States in violation of 
a presidential proclamation or other presidential order suspending or 
limiting the entry of noncitizens along the southern border. The 
relevant presidential proclamation in that case suspended entry of all 
migrants along the southern border except those who entered at a POE. 
See id. at 659. The court held that the Proclamation Bar IFR was 
inconsistent with section 208(a) of the INA, 8 U.S.C. 1158(a), which 
provides that any migrant ``who is physically present in the United 
States or who arrives in the United States (whether or not at a 
designated port of arrival and including an alien who is brought to the 
United States after having been interdicted in international or United 
States waters), irrespective of such alien's status, may apply for 
asylum.'' Id. at 670.\179\
---------------------------------------------------------------------------

    \179\ The court also held that the Proclamation Bar IFR likely 
did not properly fall under the good cause or foreign affairs 
exceptions to notice-and-comment rulemaking under 5 U.S.C. 553(a)(1) 
and (b)(B). See East Bay III, 993 F.3d at 676-77.
---------------------------------------------------------------------------

    The Departments regard this rule as substantially different than 
the rule the Ninth Circuit deemed invalid in East Bay III. The 
Proclamation and limitation on asylum eligibility at issue here differ 
significantly from the prior categorical bar on ``manner of entry'' 
because they do not treat the manner of entry as dispositive in 
determining eligibility. Rather, the limitation at issue here turns on 
whether--during emergency border circumstances described in the 
Proclamation and this rule--an individual has followed the lawful, 
safe, and orderly pathways that the United States Government has 
established during these emergency situations when it is essential that 
noncitizens use such pathways to ensure the United States Government's 
ability to manage the border. And even during these situations, AOs and 
IJs have the ability to except noncitizens from the rule's asylum 
limitation where the noncitizens establish that an exceptionally 
compelling circumstance exists. See 8 CFR 208.35(a)(2)(i), 
1208.35(a)(2)(i). For example, a noncitizen may be excepted from the 
limitation on asylum eligibility if they experienced an acute medical 
emergency at the time of entry regardless of where that entry occurred. 
Other exceptionally compelling circumstances include, but are not 
limited to, if the noncitizen demonstrates that, at the time of entry, 
the noncitizen or a member of their family as described in 8 CFR 
208.30(c) with whom the noncitizen was traveling faced an imminent and 
extreme threat to their life or safety or was a ``victim of a severe 
form of trafficking in persons'' as defined in 8 CFR 214.11. 8 CFR 
208.35(a)(2)(i)(B)-(C), 1208.33(a)(2)(i)(B)-(C). Indeed, the rule's 
exceptionally compelling circumstances exception is identical to the 
grounds that would rebut the presumption of asylum ineligibility under 
the Circumvention of Lawful Pathways rule, which has been allowed to 
continue in effect despite litigation challenging its validity. See E. 
Bay Sanctuary Covenant v. Biden, No. 23-16032, 2023 WL 11662094, at *1 
(9th Cir. Aug. 3, 2023) (staying order vacating Circumvention of Lawful 
Pathways rule pending appeal). Furthermore, this rule does not 
implicate the same concerns as the prior categorical bar based on 
``manner of entry'' because it applies only to individuals who enter 
during emergency border circumstances and would not treat solely the 
manner of entry as dispositive in determining eligibility even during 
such circumstances, given that the rule applies both at and between 
POEs and in light of the exceptions available under section 3(b) of the 
Proclamation and for exceptionally compelling circumstances under 8 CFR 
208.35(a)(2) and 1208.35(a)(2).
    Moreover, the Departments disagree with important aspects of the 
reasoning that the district court and Ninth Circuit relied upon in East 
Bay III. The Departments argued in East Bay III that section 208(a)(1) 
of the INA, 8 U.S.C. 1158(a)(1), by its plain terms requires only that 
a noncitizen be permitted to ``apply'' for asylum, regardless of their 
manner of entry. It does not require that a noncitizen be eligible to 
be granted asylum, regardless of their manner of entry. Indeed, the BIA 
has long taken account of a noncitizen's manner of entry in determining 
whether to grant asylum. See Matter of Pula, 19 I&N Dec. 467, 473 (BIA 
1987) (holding that ``manner of entry . . . is a proper and relevant 
discretionary factor to consider in adjudicating asylum 
applications''). The court in East Bay III rejected this argument, 
stating that ``[e]xplicitly authorizing a refugee to file an asylum 
application because he arrived between ports of entry and then 
summarily denying the application for the same reason borders on 
absurdity,'' 993 F.3d at 670 (emphasis omitted), but the statute draws 
a clear distinction between the two. Section 208(a) of the INA, 8 
U.S.C. 1158(a), governs who may ``apply for asylum'' and includes 
several categorical bars, such as the bar for applications for 
noncitizens present in the country for more than one year. INA 
208(a)(1), (2)(B), 8 U.S.C. 1158(a)(1), (2)(B); see INA 241(a)(5), 8 
U.S.C. 1231(a)(5). Section 208(b) of the INA, 8 U.S.C. 1158(b), in 
turn, governs who is eligible to be granted asylum. Specifically, 
section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), provides that 
the Attorney General or the Secretary ``may grant asylum to an alien 
who has applied,'' INA 208(b)(2), 8 U.S.C. 1158(b)(2), then specifies 
six categories of noncitizens to whom ``[p]aragraph (1)'' (i.e., the 
discretionary authority to grant asylum to an applicant) ``shall not 
apply.'' Any noncitizen falling within one of those categories may 
apply for asylum under section 208(a)(1) of the INA, 8 U.S.C. 
1158(a)(1), but is categorically ineligible

[[Page 48736]]

to receive it under section 208(b) of the INA, 8 U.S.C. 1158(b).
    The broad preemptive sweep that the Ninth Circuit attributed to 
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), also fails to 
account for the discretionary nature of asylum. No noncitizen ever has 
a right to be granted asylum. The ultimate ``decision whether asylum 
should be granted to an eligible alien is committed to the Attorney 
General's [and the Secretary's] discretion.'' INS v. Aguirre-Aguirre, 
526 U.S. 415, 420 (1999). The East Bay III court did not dispute that 
manner of entry is a permissible consideration in determining whether 
to exercise that discretion to grant asylum in individual cases. 99 
F.3d at 671; see also Matter of Pula, 19 I&N Dec. at 473; Fook Hong Mak 
v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (Friendly, J.) (upholding the 
INS's authority to ``determine[ ] certain conduct to be so inimical to 
the statutory scheme that all persons who have engaged in it shall be 
ineligible for favorable consideration'').
    The East Bay III court also suggested that a regulation 
categorically barring asylum based on manner of entry is inconsistent 
with the United States' commitments under the Refugee Protocol, in 
which the United States adhered to specified provisions of the Refugee 
Convention. See 993 F.3d at 972-75. Even accepting East Bay III's 
reasoning on this point, that reasoning is limited to a categorical 
eligibility bar premised on manner of entry; this IFR does not 
implicate the same concerns as the prior categorical bar on ``manner of 
entry'' for the reasons identified above. In any event, the East Bay 
III court's conclusion was incorrect. The United States' non-
refoulement obligation under Article 33 of the Refugee Convention is 
implemented by statute through the provision in section 241(b)(3) of 
the INA, 8 U.S.C. 1231(b)(3)(A), for mandatory withholding of removal. 
This rule specifically preserves the availability of that protection 
from removal. The INA's provision in section 208 of the INA, 8 U.S.C. 
1158, for the discretionary granting of asylum instead aligns with 
Article 34 of the Refugee Convention, which is precatory and does not 
require any signatory to actually grant asylum to all those who are 
eligible. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 
(1987). The East Bay III court also misread Article 31(1) of the 
Refugee Convention, which pertains only to ``penalties'' imposed ``on 
account of . . . illegal entry or presence'' on refugees who, among 
other criteria, are ``coming directly from a territory where'' they 
face persecution. See, e.g., Singh v. Nelson, 623 F. Supp. 545, 560-61 
& n.14 (S.D.N.Y. 1985) (quoting the Refugee Convention). And a bar to 
the granting of the discretionary relief of asylum is not a penalty 
under Article 31(1), especially given that the noncitizen remains 
eligible to apply for statutory withholding of removal, which 
implements U.S. non-refoulement obligations under the Refugee Protocol. 
See Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun v. U.S. 
Att'y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017).
iii. Litigation Over Other Limitations
    The Departments also acknowledge other prior precedent concerning 
the scope of the Departments' statutory rulemaking authority under 
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Specifically, 
when reviewing the TCT Bar final rule, the Ninth Circuit in East Bay 
Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East Bay 
I''), held that a new condition on asylum eligibility under section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), must ``further[ ] the 
purpose'' of another provision in section 208 to be ``consistent with'' 
it. 994 F.3d at 977, 977-80. The Departments disagree. A requirement 
that additional asylum limitations can only ``further[ ] the purpose'' 
of the existing exceptions by either targeting threats to the nation or 
promoting the purposes the Ninth Circuit identified in the safe-third-
country or firm-resettlement bars, id. at 977, is irreconcilable with 
the statute's meaning and conflicts with its history. Not only has 
Congress adopted asylum bars that do not further the purpose the Ninth 
Circuit identified--e.g., the one-year filing deadline and the bar on 
successive applications--it has granted to the Departments the broad 
discretion to add more such bars. The Ninth Circuit's approach is also 
inconsistent with Trump v. Hawaii, 585 U.S. 667, 690-91 (2018) (INA's 
express provisions governing entry ``did not implicitly foreclose the 
Executive from imposing tighter restrictions,'' even if restrictions 
addressed a subject that is ``similar'' to one that Congress ``already 
touch[ed] on''). The statutory asylum bars likewise do not foreclose 
imposing further conditions, even if those conditions address subjects 
similar to those already in the asylum statute. See, e.g., INA 
241(a)(5), 8 U.S.C. 1231(a)(5) (barring from asylum those whose orders 
of removal have been reinstated regardless whether they have asylum 
claims stemming from events that occurred after the original order of 
removal); see R-S-C v. Sessions, 869 F.3d 1176, 1184 (10th Cir. 2017) 
(reconciling the reinstatement provision's bar on asylum with section 
208's allowing noncitizens to apply for asylum regardless of manner of 
entry).
    Regardless, this rule is consistent with section 208 of the INA, 8 
U.S.C. 1158, as a limitation on asylum eligibility.\180\ The President 
has determined that, under certain emergency border circumstances, 
entries must be suspended and limited because in such circumstances the 
border security and immigration systems lack capacity to deliver timely 
decisions and timely consequences, which threatens to incentivize 
further migration. And in light of such circumstances and their 
pernicious effects, the Departments have determined that special 
procedures must be used to quickly process the influx of noncitizens, 
including those seeking asylum. Those determinations do not conflict 
with the text or structure of section 208 of the INA, 8 U.S.C. 1158, 
and are consistent with (and an appropriate exercise of the 
Departments' authority under) that provision. Nothing more is required 
for the rule to constitute a valid exercise of authority under section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C).
---------------------------------------------------------------------------

    \180\ The Departments' interpretation of the phrase ``consistent 
with'' is supported by judicial interpretation of the term in other 
contexts. The D.C. Circuit, for example, has cautioned against 
construing ``consistent with'' too narrowly in a Clean Air Act case. 
Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 457 (D.C. Cir. 1996) 
(per curiam), amended by 92 F.3d 1209 (D.C. Cir. 1996). The court 
emphasized that this ``flexible statutory language'' does not 
require ``exact correspondence . . . but only congruity or 
compatibility'' and underscored that the phrase's ambiguity 
warranted deference to the agency's policy. Id. Other courts have 
adopted the same understanding of ``consistent with.'' See, e.g., 
Jimenez-Rodriguez v. Garland, 996 F.3d 190, 198 (4th Cir. 2021) 
(``The phrase `consistent with' does not require `exact 
correspondence . . . but only congruity or compatibility.' '' 
(quoting Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1269 
(D.C. Cir. 2004))); Nat'l Wildlife Fed'n v. Sec'y of U.S. Dep't of 
Transp., 960 F.3d 872, 878 (6th Cir. 2020) (``[T]he phrase 
`consistent with' cannot bear the weight that the Federation places 
on it. Response plans are `consistent' with the contingency plans if 
they `show no noteworthy opposing, conflicting, inharmonious, or 
contradictory qualities'--in other words, if the documents put 
together are `not self-contradictory. Consistency does not mean 
exact, point-by-point correspondence.'' (cleaned up)).
---------------------------------------------------------------------------

    Moreover, this rule's propriety is reinforced by the statutory bars 
on asylum Congress has enacted. Just as Congress has chosen to promote 
systemic efficiency by prohibiting asylum applications filed more than 
one year after entry and by generally prohibiting noncitizens from 
pursuing successive asylum applications, INA 208(a)(2)(B)-(C), 8 U.S.C. 
1158(a)(2)(B)-(C), this rule furthers systemic efficiency by limiting 
asylum in certain situations where the strains on the immigration 
system are at their peak. Congress did

[[Page 48737]]

not foreclose the Departments from likewise taking systemic 
considerations into account when exercising their discretion to add 
conditions or limitations on eligibility. Indeed, the ultimate 
consideration when determining whether someone warrants a grant of 
relief as a matter of discretion is whether granting relief ``appears 
in the best interests of th[e] country,'' Matter of Marin, 16 I&N Dec. 
581, 584 (BIA 1978), a point Congress was aware of when it amended the 
INA in 1996, see id. (best interests standard preceded 1996 amendments 
by nearly two decades). The Departments find that the rule's limitation 
on asylum eligibility furthers the efficiency aims of the asylum 
statute and is in the best interests of the United States because it 
allows the Departments to deliver timely decisions and timely 
consequences in order to address the emergency border circumstances 
discussed in the Proclamation and this rule.
    Consistent with the best-interest standard, the BIA has long held a 
noncitizen's ``circumvention of orderly refugee procedures'' to be 
relevant to whether a favorable exercise of discretion is warranted. 
Matter of Pula, 19 I&N Dec. at 473. And the BIA has specifically 
considered as relevant factors the noncitizen's ``manner of entry or 
attempted entry.'' Id. Although the rule places greater weight on these 
factors under certain emergency circumstances, this decades-old 
precedent establishes that the Departments can permissibly take into 
account manner of entry. And exactly how much weight to place on those 
factors, and whether to do so in weighing asylum eligibility, falls 
well within the broad discretion conferred on the Departments by 
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Cf. Lopez v. 
Davis, 531 U.S. 230, 244 (2001); Reno v. Flores, 507 U.S. 292, 313 
(1993); Yang, 79 F.3d at 936-37.
    The Departments acknowledge that Matter of Pula did not consider a 
noncitizen's arrival at a POE to weigh against a discretionary grant of 
asylum. See 19 I&N Dec. at 473. But Matter of Pula also did not involve 
circumstances in which the country's border faced an emergency of a 
magnitude comparable to the emergency border circumstances described by 
the Proclamation and this rule, where even arrivals at POEs 
significantly contribute to the Departments' inability to process 
migrants and deliver timely decisions and timely consequences to those 
without a lawful basis to remain. Given the emergency border 
circumstances described by the Proclamation and the President's 
direction in section 3(d) of the Proclamation to promptly consider 
issuing any instructions, orders, or regulations as may be necessary to 
address the situation at the southern border; and given the strain on 
operations and resources that high volumes of new arrivals create, such 
that consequences cannot be appropriately delivered; the Departments 
believe that the rule's limitation on asylum eligibility should apply 
to noncitizens who enter the United States across the southern border, 
including at a POE during the emergency border circumstances described 
in the Proclamation and this rule, unless an exception applies.
    In Matter of Pula, the BIA explained that a noncitizen's 
``circumvention of orderly refugee procedures,'' including their 
``manner of entry or attempted entry,'' is a relevant factor for 
asylum, 19 I&N Dec. at 473-74, and this rule merely takes such 
circumvention into account. Because the Proclamation contains an 
exception for arrivals at a pre-scheduled time and place under a 
process approved by the Secretary, this rule's limitation on asylum 
will also not apply to such arrivals. One of the mechanisms by which a 
noncitizen may arrive at a POE with a pre-scheduled time to appear is 
through the CBP One app. Use of the CBP One app creates efficiencies 
that enable CBP to safely and humanely expand its ability to process 
noncitizens at POEs, including those who may be seeking asylum. See 88 
FR at 11719. Indeed, without CBP One, noncitizens could have longer 
wait times for processing at the POE depending on daily operational 
constraints and circumstances. See 88 FR at 31342. During emergency 
border circumstances, use of the CBP One app is especially critical 
because it allows DHS to maximize the use of its limited resources. 
See, e.g., id. at 31317-18 (explaining the benefits of having 
noncitizens pre-schedule appointments using the CBP One app). The CBP 
One app and other lawful pathways that the United States Government has 
made available to those seeking to enter the United States, including 
to seek asylum or protection, are intended to allow for orderly 
processing. Therefore, those who ``circumvent orderly refugee 
procedures,'' consistent with Matter of Pula, 19 I&N Dec. at 474, 
during emergency border circumstances without meeting one of the 
recognized exceptions will be ineligible for asylum.\181\
---------------------------------------------------------------------------

    \181\ As the BIA further explained with respect to the asylum 
statute as it existed at the time, ``[a] careful reading of the 
language of [section 208(a)(1)] reveals that the phrase 
`irrespective of such alien's status' modifies only the word 
`alien.' '' Matter of Pula, 19 I&N Dec. at 473. ``The function of 
that phrase is to ensure that the procedure established by the 
Attorney General for asylum applications includes provisions for 
adjudicating applications from any alien present in the United 
States or at a land or port of entry, `irrespective of such alien's 
status.' '' Id. (collecting cases). Congress accordingly made clear 
that noncitizens like stowaways, who, at the time the Refugee Act 
was passed, could not avail themselves of our immigration laws, 
would be eligible at least to apply for asylum ``irrespective of 
[their] status.'' Id. ``Thus, while section 208(a) provides that an 
asylum application be accepted from an alien `irrespective of such 
alien's status,' no language in that section precludes the 
consideration of the alien's status in granting or denying the 
application in the exercise of discretion.'' Id.
---------------------------------------------------------------------------

iv. This Limitation on Asylum Eligibility
    For the reasons discussed above, the East Bay cases dealt with 
different limitations on asylum and involved different factual 
circumstances, and hence are distinguishable from this rule.\182\ 
Moreover, the Departments respectfully disagree with some of the 
substantive holdings of the Ninth Circuit and the district court as 
described above. The Secretary and the Attorney General permissibly may 
determine that, during emergency border circumstances, it is in the 
``best interests of th[e] country,'' Matter of Marin, 16 I&N Dec. at 
584, to limit asylum eligibility for those who enter in violation of 
the Proclamation, which, in turn, will allow the Departments to 
allocate their limited resources to prioritize processing noncitizens 
who do not enter in violation of it. Nothing in section 208 of the INA, 
8 U.S.C. 1158, forecloses that view, and securing the best interests of 
the country is a reasonable policy goal under section 208 and thus 
``consistent with'' it. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see 
Yang, 79 F.3d at 939 (observing that ``it is precisely to cope with the 
unexpected that Congress deferred to the experience and expertise of 
the Attorney General in fashioning section 208''); see also id. at 935 
(``We must reject the argument that [the] regulation [establishing a 
categorical discretionary bar to asylum eligibility] exceeds the 
authority of the Attorney General if we find that the regulation has a 
`reasonable foundation . . . that is, if it rationally pursues a 
purpose that it is lawful for the

[[Page 48738]]

[immigration agencies] to seek.' '' (quoting Reno, 507 U.S. at 309)).
---------------------------------------------------------------------------

    \182\ The Departments have considered the July 25, 2023 district 
court decision vacating the Circumvention of Lawful Pathways rule. 
See E. Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025 (N.D. 
Cal. 2023). That decision applied the holdings of the other East Bay 
decisions generally, and the Departments do not see a need to 
address it separately except to note that as of publication the 
court's vacatur remains stayed pending appeal in the Ninth Circuit, 
and thus the rule is in effect. See E. Bay Sanctuary Covenant v. 
Biden, No. 23-16032, 2023 WL 11662094, at *1 (9th Cir. Aug. 3, 
2023).
---------------------------------------------------------------------------

    Beyond the clear statutory text, settled principles of 
administrative law dictate that the Departments may adopt generally 
applicable eligibility requirements. Those principles establish that it 
is permissible for agencies to establish general rules or guidelines in 
lieu of case-by-case assessments, so long as those rules or guidelines 
are not inconsistent with the statute, and that principle is especially 
salient here as asylum is inherently discretionary in nature. See 
Lopez, 531 U.S. at 243-44 (rejecting the argument that the Bureau of 
Prisons was required to make ``case-by-case assessments'' of 
eligibility for sentence reductions and explaining that an agency ``is 
not required continually to revisit `issues that may be established 
fairly and efficiently in a single rulemaking' '' (quoting Heckler v. 
Campbell, 461 U.S.458, 467 (1983))); Reno, 507 U.S. at 313-14 (holding 
that a statute requiring ``individualized determination[s]'' does not 
prevent immigration authorities from using ``reasonable presumptions 
and generic rules'' (quotation marks omitted)); Fook Hong Mak, 435 F.2d 
at 730 (upholding INS's authority to ``determine[ ] certain conduct to 
be so inimical to the statutory scheme that all persons who have 
engaged in it shall be ineligible for favorable consideration'' and 
observing that there is no legal principle forbidding an agency that is 
``vested with discretionary power'' from determining that it will not 
use that power ``in favor of a particular class on a case-by-case 
basis''); see also Singh, 623 F. Supp. at 556 (``attempting to 
discourage people from entering the United States without permission . 
. . provides a rational basis for distinguishing among categories of 
illegal aliens''); Matter of Salim, 18 I&N Dec. 311, 315-16 (BIA 1982) 
(before Pula, explaining that a certain form of entry can be considered 
an ``extremely adverse factor which can only be overcome with the most 
unusual showing of countervailing equities''); cf. Peulic v. Garland, 
22 F.4th 340, 346-48 (1st Cir. 2022) (rejecting challenge to Matter of 
Jean, 23 I&N Dec. 373 (A.G. 2002), which established strong presumption 
against a favorable exercise of discretion for certain categories of 
applicants for asylee and refugee adjustment of status under section 
209(c) of the INA, 8 U.S.C. 1159(c) (citing cases)); Cisneros v. Lynch, 
834 F.3d 857, 863-64 (7th Cir. 2016) (rejecting challenge to 8 CFR 
1212.7(d), which established strong presumption against a favorable 
exercise of discretion for waivers under section 212(h) of the INA, 8 
U.S.C. 1182(h), for certain classes of noncitizens, even if a few could 
meet the heightened discretionary standard (citing cases)).
    The Departments recognize that in the Circumvention of Lawful 
Pathways rule they declined to adopt on a permanent basis the 
Proclamation Bar IFR because it conflicted with the tailored approach 
in that rule and because barring all noncitizens who enter between POEs 
along the SWB was not the proper approach under the circumstances the 
Departments then faced. See 88 FR at 31432. The Departments continue to 
believe that the approach taken in the Proclamation Bar IFR conflicts 
with the tailored approach of the Circumvention of Lawful Pathways rule 
as well as the tailored approach in this rule, which borrows heavily 
from the Circumvention of Lawful Pathways rule. The Proclamation Bar 
IFR contained no exceptions and was open-ended, allowing for 
implementation of any future proclamations or orders regardless of 
their terms. See 83 FR at 55952. In contrast, like the Circumvention of 
Lawful Pathways rule, this rule is narrowly tailored to address the 
emergency border circumstances described in the Proclamation and the 
rule and includes exceptions to account for circumstances in which 
waiting for an end to the suspension and limitation on entry and the 
limitation on asylum eligibility is not possible. And by relating the 
rule to a specific proclamation and the circumstances described 
therein, the Departments have been able to tailor its provisions to the 
terms of the Proclamation and the circumstances under which it is 
applied.
    Finally, the Departments acknowledge that, unlike the Circumvention 
of Lawful Pathways rule, neither the Proclamation nor this rule excepts 
Mexican nationals. See 8 CFR 208.33(a)(1)(iii), 1208.33(a)(1)(iii) 
(providing that the Lawful Pathways rebuttable presumption of asylum 
ineligibility applies only to those who enter the United States along 
the SWB after transiting through a third country). Traveling through a 
third country is a key part of the Circumvention of Lawful Pathways 
rule because one lawful pathway for obtaining protection is applying 
for protection in a third country. See 8 CFR 208.33(a)(2)(ii)(C), 
1208.33(a)(2)(ii)(C). The Departments recognize that some Mexican 
nationals seek asylum and protection in the United States. Indeed, 
since 2021, DHS has seen a sharp increase in total SWB encounters of 
Mexican nationals, from a pre-pandemic (FY 2014 through FY 2019) 
average of approximately 239,000 to more than 717,000 in FY 2023.\183\ 
Of note, this increase in encounters has been accompanied by a sharp 
increase in referrals for credible fear interviews of Mexican nationals 
in expedited removal. The percentage of Mexican nationals processed for 
expedited removal who claimed a fear of return averaged 6 percent in 
the pre-pandemic period (FY 2014 through FY 2019), and never exceeded 7 
percent for any fiscal year.\184\ But 29 percent of all Mexican 
nationals processed for expedited removal at the SWB from May 12, 2023, 
to March 31, 2024, made fear claims, including 39 percent in February 
2024.\185\ Because of this sharp increase from the historical average, 
the Departments believe that applying this rule to Mexican nationals 
will result in faster processing of a significant number of Mexican 
noncitizens and thereby significantly advance this rule's overarching 
goal of alleviating the strain on the border security and immigration 
systems while entry is suspended and limited under the Proclamation. At 
the same time, the Departments continue to believe that, if encounters 
decrease to levels under which the systems do not experience the 
substantial strains they currently experience while the Circumvention 
of Lawful Pathways rule remains in effect, the application of that rule 
only to those noncitizens who travel through a third country en route 
to the United States appropriately accounts for the goals of 
encouraging migrants to seek protection in other countries or to use 
safe, orderly, and lawful pathways to enter the United States, ensuring 
the border security and immigration systems can efficiently process 
noncitizens, and affording asylum and other protection to those seeking 
it who establish their eligibility.
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    \183\ March 2024 OHSS Persist Dataset; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border 
Encounters by Agency and Selected Citizenship'').
    \184\ OHSS Enforcement Lifecycle December 31, 2023.
    \185\ OHSS analysis of UIP ER Daily Report Data Dashboard as of 
April 2, 2024.
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    Under this rule, Mexican nationals will still be eligible for 
asylum in some circumstances--they may present at a POE pursuant to a 
pre-scheduled appointment, or, if they are unable to wait in Mexico 
while scheduling an appointment, they may be able to establish an 
exception to the Proclamation or exceptionally compelling circumstances 
under the rule. Even if they are not able to do so, the rule does not 
preclude eligibility for

[[Page 48739]]

statutory withholding of removal and CAT protection, and they will be 
able to seek such protection. In the absence of an exception, however, 
Mexican nationals should be ineligible for asylum under the rule 
because, during the emergency border circumstances described in the 
Proclamation and this rule, it is important to deter irregular entry by 
all noncitizens regardless of country of origin. And the above data 
make clear that additional incentives are necessary to encourage 
Mexican nationals to pursue the available lawful, safe, and orderly 
pathways, rather than entering the country unlawfully.
v. Application During Credible Fear Screenings and Reviews
    The limitation on asylum eligibility adopted here applies during 
merits adjudications, see 8 CFR 208.13(g), 1208.13(g), but will most 
frequently be relevant for noncitizens who are subject to expedited 
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). 
Noncitizens in expedited removal 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 
statutory withholding of removal or for CAT protection. See 8 CFR 
208.30(e)(2), (3).
    This rule instructs AOs and IJs to apply the limitation it adopts 
during credible fear screenings and reviews. 8 CFR 208.35(b), 
1208.35(b). Under the rule, when screening for asylum eligibility, the 
AO and IJ must determine whether there is a significant possibility 
that the noncitizen would be able to establish by a preponderance of 
the evidence that they were not subject to the rule's limitation on 
asylum eligibility or that they will be able to establish by a 
preponderance of the evidence exceptionally compelling circumstances. 
For the reasons noted in the Circumvention of Lawful Pathways rule, the 
Departments expect that noncitizens rarely would be found excepted from 
the limitation on asylum for credible fear purposes and subsequently be 
found not to be excepted at the merits stage. See 88 FR at 31380-81.
    The Departments recognize that in the recent past they changed 
course regarding whether to apply bars and conditions and limitations 
on asylum eligibility during credible fear screenings by rescinding 
provisions that would have applied the mandatory asylum bars during 
credible fear screenings. See 87 FR at 18135. In the Circumvention of 
Lawful Pathways NPRM, the Departments explained their reasoning for 
nevertheless applying that condition on asylum eligibility during 
credible fear screenings, stating that the rebuttable presumption would 
be less difficult to apply than other bars, limitations, or conditions 
because the facts regarding the presumption's applicability, 
exceptions, and rebuttal circumstances would generally be 
straightforward to apply. 88 FR at 11744-45. Indeed, the Departments 
have applied the presumption effectively in credible fear screenings 
for the time in which the Circumvention of Lawful Pathways rule has 
been in effect.\186\
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    \186\ In the post-May 12, 2023, period, the median time to refer 
noncitizens encountered by CBP at the SWB who claim a fear for 
credible fear interviews has decreased by 77 percent from its 
historical average, from 13 days in the FY 2014 to FY 2019 pre-
pandemic period to 3 days in the four weeks ending March 31, 2024; 
for those who receive negative fear determinations or administrative 
closures that are not referred to EOIR, the median time from 
encounter to removal, in the same time frames, decreased 85 percent 
from 73 days to 11 days. Pre-pandemic medians based on OHSS analysis 
of OHSS Enforcement Lifecycle December 31, 2023; post-May 12 
estimates based on OHSS analysis of operational CBP, ICE, USCIS, and 
DOJ/EOIR data downloaded from UIP on April 2, 2024. The Departments 
note that DHS recently published a notice of proposed rulemaking 
proposing that certain mandatory bars be considered at the screening 
stage under a reasonable possibility standard. Application of 
Certain Mandatory Bars in Fear Screenings, 89 FR 41347 (May 13, 
2024). If DHS were to finalize that rule as drafted, this rule's 
``reasonable probability'' standard would still apply when the 
noncitizen is subject to this rule's limitation on asylum 
eligibility.
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    The limitation adopted here is in many ways parallel to the Lawful 
Pathways rebuttable presumption--specifically, it borrows from the 
Circumvention of Lawful Pathways rule's rebuttal circumstances--
although it is more straightforward because it does not include the 
Lawful Pathways rebuttable presumption's exceptions for those who 
applied and were denied asylum or other protection in a third country 
and those who were unable to schedule an appointment through the CBP 
One app for certain reasons. See 8 CFR 208.33(a)(2)(ii)(B)-(C), 
1208.33(a)(2)(ii)(B)-(C). Given the Departments' experience with 
implementing the Circumvention of Lawful Pathways rule, the Departments 
are confident that the limitation and exceptions established here will 
be just as straightforward to apply as the similar provisions are for 
the Circumvention of Lawful Pathways rule.
b. Manifestation of Fear
    This rule also alters certain aspects of the expedited removal 
process for individuals who enter across the southern border during 
emergency border circumstances and are not described in section 3(b) of 
the Proclamation. When an immigration officer inspects a noncitizen at 
a POE or between POEs and determines that the noncitizen is 
inadmissible and will be subject to expedited removal, current 
regulations require the immigration officer to take certain steps 
before ordering the noncitizen removed from the United States. See 8 
CFR 235.3(b). This process takes approximately two hours per individual 
in USBP custody. In particular, the immigration officer conducts an 
inspection, including taking biometrics; running background checks; 
collecting biographic information, citizenship, and place and manner of 
entry; and advising the noncitizen of the charges against them. 8 CFR 
235.3(b)(2)(i). The noncitizen has an opportunity to provide a 
response. Id. The officer must also read (or have read through an 
interpreter, if appropriate) the information contained in the Form I-
867A, Record of Sworn Statement in Proceedings under Section 235(b)(1) 
of the Act, which advises the noncitizen of their ability to seek 
protection in the United States. Id. The examining immigration officer 
must also read the noncitizen the questions on the Form I-867B, Jurat 
for Record of Sworn Statement in Proceedings under Section 235(b)(1) of 
the Act, which asks, among other things, whether the noncitizen has any 
fear of return or would be harmed if returned. Id. After the noncitizen 
has provided answers to the questions on Form I-867B, the immigration 
officer records the answers, and the noncitizen then reads the 
statement (or has the statement read to them) and signs the statement. 
Id. On average, USBP agents spend about 20 to 30 minutes of the 
inspection period completing both the Form I-867A and the Form I-867B. 
Finally, a noncitizen who indicates a fear of return or an intention to 
seek asylum is served with and acknowledges receipt of a Form M-444, 
which includes more detailed information about the credible fear 
process. 8 CFR 235.3(b)(4)(i).
    Instead of this current process, DHS is adding a new provision at 8 
CFR 235.15(b)(4) to modify the process for determining whether a 
noncitizen who enters across the southern border and is

[[Page 48740]]

not described in section 3(b) of the Proclamation during the emergency 
circumstances giving rise to the Proclamation's suspension and 
limitation on entry should be referred to an AO for a credible fear 
interview. These procedures apply during emergency border 
circumstances. See 8 CFR 235.15(a). Under the new rule, immigration 
officers will conduct an immigration inspection and, where the 
noncitizen will be subject to expedited removal, will advise the 
noncitizen of the removal charges against them and provide an 
opportunity to respond, consistent with existing practice and 
regulations outlined above. 8 CFR 235.3(b)(2)(i). However, the 
immigration officer will not complete either the Form I-867A or Form I-
867B or a sworn statement. Moreover, the officer will not be required 
to provide individualized advisals on asylum or ask the noncitizen 
questions related to whether they have a fear. See 8 CFR 235.15(b)(4). 
Under the rule, the immigration officer will instead refer the 
noncitizen to an AO for a credible fear interview only if the 
noncitizen manifests a fear of return, expresses an intention to apply 
for asylum, expresses a fear of persecution or torture, or expresses a 
fear of return to the noncitizen's country or country of removal. See 
id. This manifestation can occur at any time in the process and can be 
expressed verbally, non-verbally, or physically.\187\ In such 
situations, the immigration officer will not proceed further with the 
removal and will comply with the existing regulations, policies, and 
procedures, including as outlined in 8 CFR 235.3(b)(4), regarding 
processing and referring noncitizens for credible fear interviews. At 
the time that a noncitizen is referred for a credible fear interview, 
they will receive additional information about the credible fear 
process that has the same substantive information as in the current 
process, but without the requirement that such information be provided 
on a particular form.
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    \187\ By these terms, DHS intends to include a wide range of 
human communication and behavior, such that ``non-verbally'' could 
include things like noises or sounds without any words, while 
physical manifestations could include behaviors, with or without 
sound, such as shaking, crying, or signs of abuse. See U.S. State 
Dep't, Bureau of Population, Refugees, and Migration, Fact Sheet: 
U.S. Commemorations Pledges, Fact Sheet, Bureau of Population, 
Refugees, and Migration (June 24, 2013), https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm. A 
noncitizen could thus manifest a fear of returning to a previous 
location without using actual words to state that they are 
specifically afraid of return to their home country or country of 
removal.
---------------------------------------------------------------------------

    DHS is making these changes to address the emergency circumstances 
at the southern border discussed in the Proclamation and the rule in a 
manner consistent with its legal obligations. DHS has broad authority 
to change the procedures that immigration officers apply to determine 
whether a noncitizen subject to expedited removal will be referred for 
a credible fear interview by an AO so long as those procedures are 
consistent with the INA. See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), 
(3) (granting the Secretary the authority to establish regulations and 
take other actions ``necessary for carrying out'' the Secretary's 
authority under the immigration laws); see also 6 U.S.C. 202; Motor 
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29, 42 (1983) (emphasizing that agencies ``must be given ample 
latitude to adapt their rules and policies to the demands of changing 
circumstances'' (quotation marks omitted)).
    DHS believes that the above-described changes are fully consistent 
with the statutory procedures governing expedited removal under section 
235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A). Section 235(b)(1)(A) 
of the INA, 8 U.S.C. 1225(b)(1)(A), does not specify the relevant 
aspects of the procedures that immigration officers must follow to 
determine whether a noncitizen who is subject to expedited removal can 
be ordered removed or whether the noncitizen must be referred to an AO 
for a credible fear interview. Instead, the statute provides that the 
immigration officer may order removed any noncitizen who, subject to 
certain exceptions, is arriving in the United States, or who is within 
a class of noncitizens subject to expedited removal as designated by 
the Secretary, and who is inadmissible under sections 212(a)(6)(C) or 
212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7). The statute 
further provides that only those noncitizens who ``indicate[] either an 
intention to apply for asylum . . . or a fear of persecution,'' INA 
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), must be referred to an AO 
for a credible fear interview, INA 235(b)(1)(A)(ii), 8 U.S.C. 
1225(b)(1)(A)(ii). But the statute does not require immigration 
officers to affirmatively ask every noncitizen subject to expedited 
removal if they have a fear of persecution or torture. Moreover, 
Congress has not provided a particular definition of the phrase 
``indicates . . . an intention.'' The statute's text thus gives DHS 
discretion to employ the procedures it reasonably concludes are 
appropriate to implement section 235(b)(1)(A)(ii) of the INA, 8 U.S.C. 
1225(b)(1)(A)(ii).\188\
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    \188\ See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. 
Council, Inc., 435 U.S. 519, 543 (1978) (``Absent constitutional 
constraints or extremely compelling circumstances the administrative 
agencies should be free to fashion their own rules of procedure and 
to pursue methods of inquiry capable of permitting them to discharge 
their multitudinous duties.'' (quotation marks omitted)); United 
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) 
(``[T]he decision to admit or to exclude an alien may be lawfully 
placed with the President, who may in turn delegate the carrying out 
of this function to a responsible executive officer of the 
sovereign, such as the Attorney General.''); Las Americas Immigrant 
Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 18 (D.D.C. 2020).
---------------------------------------------------------------------------

    Interpreting the statute in this manner is also consistent with the 
United States' international law obligations. As described in Section 
II.B of this preamble, the United States is a party to the Refugee 
Protocol, which incorporates Articles 2 through 34 of the Refugee 
Convention. Article 33 of the Refugee Convention generally prohibits 
parties to the Convention from expelling or returning ``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.'' Refugee Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S. 
at 176.\189\ Neither the Refugee Convention nor the Protocol prescribes 
minimum screening procedures that must be implemented.\190\ Rather, 
each state party has the authority ``to establish the procedure that it 
considers most appropriate, having regard to its particular 
constitutional and administrative structure,'' as long as such 
procedures are consistent with the purposes of the Convention.\191\ The 
United States has also ratified the CAT, which includes a non-
refoulement provision at Article 3 that prohibits the return of a 
person from the United States to a country where there are 
``substantial grounds for believing'' the person would be tortured. See 
Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007); see id. at 115 
(`` `[T]he United States understands the phrase, `where there are 
substantial grounds for believing that he would be in danger of being 
subjected to torture,' as used in

[[Page 48741]]

Article 3 of the Convention, to mean `if it is more likely than not 
that he would be tortured.'' '' (quoting the Senate resolution of 
ratification)). The CAT similarly does not prescribe screening 
requirements. As such, the United States has broad discretion in what 
procedures are appropriate to implement, through domestic law, to 
satisfy its non-refoulement obligations.\192\
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    \189\ See INS v. Stevic, 467 U.S. 407, 428 & n.22 (1984); Al-
Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967 
Protocol is not self-executing, nor does it confer any rights beyond 
those granted by implementing domestic legislation.'').
    \190\ UNHCR, Handbook on Procedures and Criteria for Determining 
Refugee Status ] 189 (Jan. 1992 ed., reissued Feb. 2019), https://www.unhcr.org/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967.
    \191\ Id.
    \192\ Although neither the Refugee Convention nor the Refugee 
Protocol nor the CAT includes specific screening requirements, the 
United States is bound not to return noncitizens from the United 
States to countries where they would be tortured, or, with limited 
exceptions, to countries where they would be persecuted on account 
of a protected ground. As discussed in detail above in Section 
III.A.1 of this preamble, the United States implements its non-
refoulement obligations under Article 33 of the Refugee Convention 
(via the Refugee Protocol) through the statutory withholding of 
removal provision in section 241(b)(3) of the INA, 8 U.S.C. 
1231(b)(3), not through the asylum provisions at section 208 of the 
INA, 8 U.S.C. 1158. And the United States implements its obligations 
under the CAT through regulations. See FARRA, Pub. L. 105-277, sec. 
2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note); 8 CFR 
208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, 1208.18.
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    The United States implements its obligations under the Refugee 
Protocol and the CAT through the INA and related rulemaking, and it 
provides specified procedures--including in the expedited removal 
process, as described above--for seeking asylum or other protection in 
the United States. The process outlined in this rule temporarily 
affords immigration officers the ability to refer noncitizens to an AO 
for a credible fear interview if the noncitizen manifests a fear of 
return, expresses an intention to apply for asylum, expresses a fear of 
persecution or torture, or expresses a fear of return to the 
noncitizen's country or country of removal. The Departments have 
concluded that the manifestation standard is consistent with their 
obligations (1) not to return noncitizens to countries where they would 
be persecuted; and (2) not to return noncitizens to countries where it 
is more likely than not that they would be tortured.\193\
---------------------------------------------------------------------------

    \193\ 136 Cong. Rec. 36198 (1990) (recording the Senate's advice 
and consent to the ratification of the CAT, subject to certain 
reservations, understandings, and declarations, including that the 
phrase in Article 3 of the CAT, `` `where there are substantial 
grounds for believing that he would be in danger of being subjected 
to torture,' '' is understood to mean `` `if it is more likely than 
not that he would be tortured' ''); see also Pierre, 502 F.3d at 
115.
---------------------------------------------------------------------------

    In addition to changing to a ``manifestation'' standard, CBP is 
implementing operational changes to generally inform noncitizens 
subject to expedited removal that, if they have a fear of return, they 
should inform an immigration officer, and they will be referred to an 
AO for consideration of their fear claim. DHS believes that these 
operational changes and notice provisions, as implemented, are 
consistent with the notice provision in section 235(b)(1)(B)(iv) of the 
INA, 8 U.S.C. 1225(b)(1)(B)(iv).\194\ Moreover, CBP will provide 
immigration officers with information on how to apply the manifestation 
standard, including that manifestation may occur verbally, non-
verbally, or physically.
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    \194\ DHS acknowledges that an argument could be made that the 
requirement in section 235(b)(1)(B)(iv) of the INA, 8 U.S.C. 
1225(b)(1)(B)(iv), which states that DHS ``shall provide information 
concerning the asylum interview . . . to aliens who may be 
eligible,'' is not limited only to noncitizens who are eligible for 
a credible fear interview, but instead applies to noncitizens who 
are suspected of qualifying for expedited removal and ``may'' be 
eligible for an interview. In all events, DHS is providing 
information to noncitizens who are being processed for expedited 
removal about their right to seek asylum and protection in the 
United States. As explained below, DHS is posting signs on display 
for all noncitizens in CBP custody and including information in a 
video that will be on display for the vast majority of noncitizens 
in CBP custody, informing them that if they have a fear of return, 
they should inform an immigration officer and, if they do, an AO 
will conduct an interview and ask the noncitizens questions about 
any fear they may have. Noncitizens who indicate a fear of return 
will be given a more detailed written explanation of the credible 
fear interview process prior to being referred for the interview. 
That explanation will be translated into certain common languages or 
will be read to the noncitizen if required.
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    Upon implementation of this rule, signs will be posted in areas of 
CBP facilities where individuals are most likely to see those signs. 
The signs will provide clear direction to individuals that, in addition 
to being able to inform the inspecting immigration officers of urgent 
medical or other concerns, they should inform the inspecting 
immigration officer if they have a fear of return, and that, if they 
do, they will be referred for a screening. These signs will be in the 
languages spoken by the most common nationalities encountered by CBP 
and thus will likely be understood by those described in the 
Proclamation and likely subject to the provisions of this rule.\195\
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    \195\ Currently, these languages are English, Spanish, Mandarin, 
and Hindi.
---------------------------------------------------------------------------

    Moreover, in CBP's large capacity facilities--where the vast 
majority of individuals subject to expedited removal undergo 
processing--a short video explaining the importance of raising urgent 
medical concerns, a need for food or water, or fear of return will be 
shown on a loop in the processing areas and will also be available in 
those languages most commonly spoken by those noncitizens encountered 
by CBP who may be described in the Proclamation and likely subject to 
the provisions of this rule.\196\
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    \196\ These large capacity facilities currently hold the vast 
majority of individuals in CBP custody. Although the videos will not 
be shown at smaller facilities, including small POEs and Border 
Patrol stations, these facilities house very few noncitizens who are 
subject to the asylum limitation. These small facilities will still 
post the relevant signs in the processing areas. And at these small 
facilities, resources are such that immigration officers will be 
able to devote a great deal of attention to observing individuals, 
including for any manifestations of fear or any indication that an 
individual requires assistance from a translator or reading 
assistance to understand the information provided at the facility, 
including the information provided on the signs. Immigration 
officers at these facilities are trained to provide such assistance 
as needed and will continue to do so under this rule.
---------------------------------------------------------------------------

    The video will also explain to noncitizens that, if they inform an 
immigration officer that they have a fear, an AO will conduct an 
interview to ask questions about their fear. Consistent with CBP's 
Language Access Plan, CBP provides language assistance services for 
those who may not speak one of those languages.\197\ CBP immigration 
officers have extensive experience and training in identifying whether 
an individual requires a translator or interpreter or is unable to 
understand a particular language. In addition, CBP facilities have ``I 
Speak'' signs, which are signs that assist literate individuals to 
identify a preferred language from one of over 60 possible 
languages.\198\ Furthermore, individuals who are unable to read the 
signs or communicate effectively in one of the languages in which the 
sign and video will be presented will be read the contents of the sign 
and video in a language they understand.\199\
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    \197\ See CBP, Language Access Plan (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; CBP, Supplementary Language Access Plan (Oct. 30, 
2023), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
    \198\ See CBP, Language Access Plan 7 (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; see also DHS, DHS Language Access Resources, 
https://www.dhs.gov/publication/dhs-language-access-materials (last 
updated July 17, 2023); DHS, I Speak . . . Language Identification 
Guide, https://www.dhs.gov/sites/default/files/publications/crcl-i-speak-poster-2021.pdf (last updated Mar. 10, 2021).
    \199\ These videos and signs will be presented in a manner that 
is consistent with how CBP provides other important notifications to 
individuals in its facilities. CBP utilizes posters for other 
critical information, such as ensuring that individuals are on the 
lookout for those who may commit suicide, advising all children in 
custody of the amenities available to them (e.g., food, water, 
medical care, blankets, and hygiene products), communicating its 
zero tolerance regarding sexual assault, and conveying critical 
information about oversight entities such as the Office of the 
Inspector General. CBP also has a video targeted towards UCs 
explaining the process that they will go through. These signs and 
videos are similarly posted in the areas of CBP facilities where DHS 
is confident they are likely to be seen by noncitizens being 
processed.

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[[Page 48742]]

    DHS's experience, based on the nature of CBP facilities and the 
utility of the existing signs, is that short, concise, and simple 
notifications are effective. This is because CBP holds individuals only 
for as long as it takes to complete inspection and processing, 
including conducting any basic medical screenings and making 
arrangements for transfer out of CBP custody. Particularly for those 
who are apprehended by USBP between POEs, noncitizens will go through a 
number of steps during their time in a CBP facility, including 
completion of processing paperwork, fingerprinting, and being 
interviewed by an inspecting immigration officer. In many USBP 
facilities, these steps occur at the same time as the facility provides 
showers and hygiene products, medical evaluations, and food and water. 
Given that noncitizens may move through other areas of the facility and 
do not remain in custody for a long period of time, DHS regularly 
places important signs in both the processing areas and the detention 
areas of its facilities, which are the locations where noncitizens 
spend time while being inspected or while in CBP custody; DHS is 
confident that noncitizens see these existing signs and that the new 
signs added as part of this rule are also likely to be seen. DHS has 
determined that more complicated videos and signs are less effective 
for conveying important information.
    DHS acknowledges that these procedures represent a departure from 
the justification that the former Immigration and Naturalization 
Service (``INS'') provided, in 1997, when it adopted the current 
procedures in 8 CFR 235.3(b)(2)(i). At the time, INS explained that 
adopting these procedures would ``ensure that bona fide asylum 
claimants are given every opportunity to assert their claim[s],'' and 
that it was including the requirement that immigration officers must 
provide advisals about the credible fear process and ask questions 
about fear as ``safeguards'' to ``protect potential asylum claimants.'' 
See 62 FR at 10318-19. INS further explained that these procedures 
would ``not unnecessarily burden[] the inspections process or 
encourag[e] spurious asylum claims.'' Id. at 10318. While such 
procedures have remained in place since 1997, this fact alone is not an 
indication that they are required by the statute, and DHS maintains 
discretion to update the procedures in a manner consistent with the 
statute. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 
(2009) (holding that an agency changing an established rule need not 
justify the change with a more detailed justification than that 
supporting the original so long as it can show ``good reasons'' for the 
new policy). Given the extraordinary circumstances currently facing the 
Departments, DHS has determined it is reasonable to change the 
procedures here.
    When the existing regulations were adopted in 1997, the situation 
at the border was different. In 1998 (the first full year that 
statistics concerning the expedited removal process were available), 
approximately 80,000 noncitizens were processed for expedited 
removal.\200\ In that same year, AOs conducted fewer than 3,000 
credible fear interviews \201\ and IJ reviews numbered around 100.\202\ 
Additionally, at that time, expedited removal was applied only to 
``arriving aliens,'' noncitizens processed at a POE, not noncitizens 
encountered between POEs.\203\ Expedited removal was not extended to 
certain noncitizens encountered after entering between POEs until 2004. 
See Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 
2004) (extending expedited removal to noncitizens encountered within 
100 air miles of the border and within 14 days of entry). At that time, 
USBP apprehended approximately 1.1 million noncitizens between POEs 
annually.\204\ The numbers have changed significantly since that time. 
In FY 2023, USBP apprehended more than 2 million noncitizens between 
POEs along the SWB.\205\ In February 2024, USBP processed more than 
33,000 individuals for expedited removal,\206\ and USBP processed more 
than 28,000 in March 2024.\207\ Since May 2023, USCIS has completed 
about 3,300 credible fear interviews per week of individuals 
encountered at and between SWB POEs,\208\ and in FY 2023, IJs reviewed 
over 34,000 credible fear decisions.\209\ These high levels of 
encounters and credible fear referrals impose a significant burden on 
the expedited removal process and have strained DHS and EOIR resources, 
substantially impairing the Departments' ability to deliver timely 
decisions and timely consequences. At a processing time of 
approximately 2 hours per person, USBP agents spent approximately 
56,000 hours--the equivalent of approximately 2,333 calendar days--
processing the approximately 28,000 expedited removal cases in March 
2024 under the current process. High numbers, such as those giving rise 
to the Proclamation and this rule, increase the likelihood that USBP 
facilities will become quickly overcrowded.\210\ This type of crowding 
in USBP facilities creates health and safety concerns for noncitizens 
and Government personnel.\211\
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    \200\ See INS, 1998 Statistical Yearbook of the Immigration and 
Naturalization Service 203 (Nov. 1998), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1998.pdf.
    \201\ See id. at 91.
    \202\ EOIR, Statistical Yearbook 2000, at D1 (Jan. 2001), 
https://www.justice.gov/sites/default/files/eoir/legacy/2001/05/09/SYB2000Final.pdf (reporting that EOIR received 90 credible fear 
reviews in FY 1998).
    \203\ See 62 FR at 10318-19; compare INA 235(b)(1)(A)(i), 8 
U.S.C. 1225(b)(1)(A)(i) (applying expedited removal to noncitizens 
arriving at ports of entry), with INA 235(b)(1)(A)(iii), 8 U.S.C. 
1225(b)(1)(A)(iii) (permitting the application to designated 
noncitizens).
    \204\ CBP, United States Border Patrol Nationwide Encounters 
Fiscal Year 1925-2020, https://www.cbp.gov/sites/default/files/assets/documents/2021-Aug/U.S.%20Border%20Patrol%20Total%20Apprehensions%20%28FY%201925%20-%20FY%202020%29%20%28508%29.pdf (last accessed May 27, 2024).
    \205\ CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last 
modified May 15, 2024).
    \206\ OHSS analysis of data downloaded from UIP on April 2, 
2024.
    \207\ OHSS analysis of data downloaded from UIP on April 2, 
2024.
    \208\ OHSS analysis of data downloaded from UIP on April 2, 
2024.
    \209\ See EOIR, Adjudication Statistics: Credible Fear and 
Reasonable Fear Review Decisions (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2018/10/26/7_credible_fear_review_and_reasonable_fear_review_decisions.pdf.
    \210\ See Decl. of Matthew J. Hudak ]] 11, 17, Florida v. 
Mayorkas, Case No. 3:22 cv 9962 (N.D. Fla. May 12, 2023) (Dkt. 13-
1).
    \211\ Id.
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    Additionally, compared to 1997, today's high levels of migration 
impose a severe strain on the credible fear process. AOs and IJs must 
devote substantial resources to credible fear interviews and 
reviews.\212\ Despite the strengthened consequences in place at the SWB 
through the Circumvention of Lawful Pathways rule and the complementary 
measures that have led to record returns and removals, encounter levels 
and credible fear referrals are exceeding the capacity of

[[Page 48743]]

the expedited removal process.\213\ Therefore, DHS has determined that 
a different approach is needed here. The manifestation standard in the 
new rule is designed to reasonably help meet these challenges during 
emergency border circumstances. It is intended to help immigration 
officers process noncitizens more expeditiously, while still affording 
opportunities for those seeking protection to do so.
---------------------------------------------------------------------------

    \212\ USCIS closed or adjudicated an estimated 135,000 credible 
fear interviews resulting from SWB encounters in FY 2023, up from an 
average of 52,000 from 2010 to 2019 and an average of 5,400 from 
2005 to 2009. OHSS analysis of March 2024 OHSS Persist Dataset and 
Enforcement Lifecycle December 31, 2023. See OHSS, Immigration 
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (reflecting ever increasing 
numbers of credible fear interview screenings at the ``SW Border 
Credible Fear Screenings Referred to USCIS by citizenship'' tab); 
see also 88 FR at 31314, 31326, 31381.
    \213\ See Decl. of Blas Nu[ntilde]ez-Neto ]] 9-10, E. Bay 
Sanctuary Covenant v. Biden, No. 18 cv 6810 (N.D. Cal. June 16, 
2023) (Dkt. 176-2); Decl. of Matthew J. Hudak ]] 10-12, Florida v. 
Mayorkas, No. 3:22 cv 9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1); 
Decl. of Enrique M. Lucero ] 7, Innovation Law Lab v. Wolf, No. 19-
15716 (9th Cir. Mar. 3, 2020) (Dkt. 95-3).
---------------------------------------------------------------------------

    DHS acknowledges that, by implementing a manifestation standard in 
the circumstances outlined in this rule, it is temporarily eliminating 
the requirement to provide individualized advisals and ask affirmative 
questions via Forms I-867A and B. DHS has determined that, in light of 
the circumstances giving rise to the Proclamation and this rule, it is 
critical to have a system in place that more effectively and 
efficiently identifies those who may have a fear of return or indicate 
an intention to seek asylum. DHS is making the decision to use the 
manifestation standard consistent with the statute, as described above, 
and for the reasons outlined below. At bottom, based on DHS's long 
experience inspecting and interviewing individuals, DHS has determined 
that a manifestation approach is the most appropriate way to address 
emergency border circumstances while still sufficiently affording the 
ability to seek protection. Specifically, DHS makes this determination 
based on its significant experience relating to the inspection of 
individuals seeking entry and admission into the United States. DHS 
immigration officers have expertise observing and inspecting 
individuals, as they consistently encounter and inspect large numbers 
of people every day. In FY 2019, prior to COVID-19, for example, the 
approximately 28,000 officers of CBP's Office of Field Operations \214\ 
processed more than 1.1 million people at POEs every day.\215\ USBP's 
20,000 agents \216\ encountered more than 2 million people on the SWB 
in FY 2023.\217\
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    \214\ See CBP, About CBP: Leadership & Organization, Executive 
Assistant Commissioners' Offices, https://www.cbp.gov/about/leadership-organization/executive-assistant-commissioners-offices 
(last updated Jan. 30, 2024).
    \215\ See CBP, On a Typical Day in 2019, CBP . . . , https://www.cbp.gov/newsroom/stats/typical-day-fy2019 (last modified May 11, 
2022).
    \216\ See CBP, About CBP: Leadership & Organization, Executive 
Assistant Commissioners' Offices, https://www.cbp.gov/about/leadership-organization/executive-assistant-commissioners-offices 
(last updated Apr. 19, 2024).
    \217\ See CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last 
modified May 15, 2024).
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    In addition, DHS, including through its predecessor agencies, has 
been implementing the expedited removal provisions since 1997. It 
therefore has nearly 30 years of experience completing the Form I-867A 
advisals and asking the questions on Form I-867B.\218\ Based on this 
experience, it is DHS's determination that, when individuals are asked 
affirmative questions, such as those on Form I-867B, individuals are 
more likely to respond in the affirmative, even if they do not in fact 
have a fear of return or intention of seeking asylum. Moreover, based 
on this experience, DHS concludes that providing noncitizens with 
specific advisals on fear claims--particularly given the emergency 
context of this rule and because few if any other advisals are 
provided--would be suggestive and prompt many individuals to respond in 
the affirmative even if they do not have any actual fear or intention 
to seek asylum. For this reason, as well, DHS has made the 
determination, based on its experience and expertise inspecting 
noncitizens, to temporarily adjust its approach to individualized 
advisals and questions about fear.
---------------------------------------------------------------------------

    \218\ See 62 FR at 10312, 10318-19.
---------------------------------------------------------------------------

    As part of this approach, DHS is temporarily forgoing asking the 
fear questions on Form I-867B with respect to noncitizens who (1) are 
described in Sec.  208.13(g), (2) are not described in section 3(b) of 
the Proclamation, and (3) are processed for expedited removal. DHS 
anticipates that this approach will likely lead to a higher proportion 
of those referred having colorable claims for protection. Based on the 
expertise of DHS in administering Form I-867B, it has determined that 
affirmative questions are suggestive and account for part of the high 
rates of referrals and screen-ins that do not ultimately result in a 
grant of asylum or protection.\219\ DHS believes that those noncitizens 
who indicate a fear of return on their own, in the absence of 
suggestive questions, are more likely to be urgently seeking 
protection. Indeed, it is DHS's experience and assessment that asking 
questions is likely to lead individuals to answer yes, even if they do 
not actually have a fear of persecution or torture.\220\ DHS 
acknowledges that there are mixed opinions on this point and that this 
may not be the case for all individuals, such that questioning may be 
helpful in order for some individuals to feel comfortable articulating 
a fear.\221\ DHS recognizes

[[Page 48744]]

that the manifestation standard, as with any other screening standard, 
could result in some noncitizens with meritorious claims not being 
referred to a credible fear interview. However, in light of the 
emergency border circumstances facing the Departments and addressed by 
the Proclamation and this rule, DHS believes the standard is 
appropriate and necessary. During emergency border circumstances, it is 
critical for the Departments to devote their processing and screening 
resources to those urgently seeking protection while quickly removing 
those who are not. DHS believes that the manifestation standard, rather 
than affirmative questioning, better achieves this balance in emergency 
border circumstances.
---------------------------------------------------------------------------

    \219\ From 2014 through 2019, of total SWB encounters with 
positive fear determinations, only 18 percent of EOIR case 
completions ultimately resulted in a grant of protection or relief. 
OHSS Enforcement Lifecycle December 31, 2023.
    \220\ This is also reflected in the behavioral science concept 
of ``acquiescence,'' in which individuals tend to ``consistently 
agree to questionnaire items, irrespective of item directionality.'' 
Shane Costello & John Roodenburg, Acquiescence Response Bias--
Yeasaying and Higher Education, 32 Australian Ed. & Dev. Pysch. 105, 
105 (2015). Studies have shown that this bias is higher amongst 
those with lower education levels and from countries that score 
higher on scales of corruption or collectivism. See, e.g., Beatrice 
Rammstedt, Daniel Danner & Michael Bosnjak, Acquiescence Response 
Styles: A Multilevel Model Explaining Individual-Level and Country-
Level Differences, 107 Personality & Individual Differences 190 
(2017); Seth J. Hill & Margaret E. Roberts, Acquiescence Bias 
Inflates Estimates of Conspiratorial Beliefs and Political 
Misperceptions, 31 Pol. Analysis 575 (2023).
    \221\ DHS acknowledges that some studies of the expedited 
removal process concluded that the Form I-867A information and the 
Form I-867B questions are important protections, and that failure to 
read the advisals led to lower referrals for credible fear 
interviews. See, e.g., Allen Keller et al., Study on Asylum Seekers 
in Expedited Removal as Authorized by Section 605 of the 
International Religious Freedom Act of 1998: Evaluation of Credible 
Fear Referral in Expedited Removal at Ports of Entry in the United 
States 16-18 (2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/evalCredibleFear.pdf (``USCIRF 
Report'') (finding that noncitizens who are read the information in 
Form I-867A are seven times more likely to be referred for a 
credible fear interview and ``the likelihood of referral for a 
Credible Fear interview was roughly doubled for each fear question 
asked''); see also U.S. Gov't Accountability Off., Opportunities 
Exist to Improve the Expedited Removal Process, No. GAO/GGD-00-176 
(Sept. 2000). DHS acknowledges that one study concluded that there 
was ``little evidence'' that the advisals and fear questions 
prompted noncitizens to make fear claims, but rather most of the 
noncitizens whose cases were studied ``spontaneously expressed fear 
of returning to their home country.'' See USCIRF Report at 21. The 
same study noted that three quarters of those had been read the 
advisals on Form I-867A. See id. Given the small sample size (n=73) 
and the report's uncertain conclusion, this report does not 
alleviate CBP's long held ``concerns that [noncitizens] may be 
`prompted' to express fears to officers by the I-867B fear 
questions.'' Id. As in 2005, at the time of the report, DHS 
continues to have such concerns, and DHS further believes that the 
individualized advisals on Form I-867A raise similar ``prompting'' 
concerns. And, even to the extent that the study concluded 
otherwise, DHS notes that, under the manifestation standard outlined 
in the rule, noncitizens continue to have the ability to 
affirmatively manifest a fear. Thus, considering the current 
situation at the border that gives rise to the Proclamation and this 
rule and the need to allocate limited resources to those urgently 
seeking protection, DHS believes that, notwithstanding the study's 
finding, the approach taken in this rule provides an appropriate 
standard for the emergency border circumstances at issue. As noted, 
CBP will be providing signs and videos advising, in a general 
matter, that individuals may express a fear of return. Accordingly, 
DHS has fully considered and weighed the contrary evidence and has 
concluded that the rule adopts the appropriate approach to help meet 
the challenge when emergency border circumstances are present.
---------------------------------------------------------------------------

    Additionally, DHS is eliminating the requirement that officers and 
agents read the individualized advisals on Form I-867A. DHS plans to 
replace these advisals with a generalized notice--for all individuals 
in CBP facilities--of the ability to raise a claim of fear of 
persecution or torture. DHS is making this change based on its 
experience suggesting that, like with the Form I-867B questions, 
individualized Form I-867A advisals would be suggestive and would 
likely lead many individuals to claim a fear of return when they 
otherwise would not, particularly given the emergency context of this 
rule and because there are few if any other advisals provided. Based on 
its experience, DHS determines that receiving these advisals on their 
own is also suggestive.\222\ Thus, in the context of inspecting 
individuals who (1) are described in Sec.  208.13(g), (2) are not 
described in section 3(b) of the Proclamation, and (3) are processed 
for expedited removal, DHS has determined not to require the provision 
of such suggestive advisals. DHS acknowledges that, like with the Form 
I-867B questions, there are studies that show that such advisals make 
it more likely that a noncitizen will indicate a fear of return.\223\ 
However, based on DHS's experience, the nature of the emergency border 
circumstances facing the Departments, and the statutory requirements, 
DHS has determined that the approach taken here--eliminating the 
requirement to provide individualized advisals but providing signage 
and videos--is appropriate.\224\
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    \222\ This determination is based, in part, on CBP's experience 
that the language in specific, individualized advisals often serves 
as a prompt for noncitizens to express a fear while in CBP custody. 
This is, in part, because CBP understands that TCOs coach 
noncitizens and advise them to listen for certain words in the 
language of particular advisals as a prompt to express a fear. While 
it is possible that TCOs will provide noncitizens information about 
how to manifest fear, even in the absence of affirmative advisals, 
CBP believes that, at least at the outset of the process, 
individuals without such a fear or intent to seek asylum are less 
likely to remember the information a TCO provided in the absence of 
individualized advisals. Additionally, CBP believes that individuals 
who do have a fear of return or intend to seek asylum will generally 
make such a claim even in the absence of such advisals.
    \223\ See, e.g., USCIRF Report at 16-18.
    \224\ DHS considered whether to provide a short, individualized 
advisal to inform noncitizens of their ability to seek asylum, in 
addition to these signs and videos. But DHS determined that such a 
short, individualized advisal would be unlikely to convey 
information more effectively than the signs and videos that CBP 
already intends to use as a general notification, and that even a 
short advisal would take undue time to administer. Moreover, CBP 
assesses that the signs and videos providing general notification of 
the ability to seek asylum are less suggestive than short, 
individualized advisals would be.
---------------------------------------------------------------------------

    Indeed, DHS notes that the manifestation standard has been used in 
other urgent and challenging situations to identify noncitizens with 
fear claims. This standard has long been used by the United States 
Coast Guard, a DHS component, to determine whether an at-sea protection 
screening interview is required for migrants interdicted at sea.\225\ 
This standard was also adopted by the United States Government to 
screen family units during the pendency of the Title 42 public health 
Order, when the Government was similarly dealing with urgent, exigent 
circumstances--the global pandemic--while still allowing noncitizens an 
opportunity to seek protection.\226\
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    \225\ U.S. State Dep't, Bureau of Population, Refugees, and 
Migration, Fact Sheet: U.S. Commemorations Pledges (June 24, 2013), 
https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm (notifying the public that U.S. Coast Guard personnel 
were provided updated training ``on identifying manifestations of 
fear by interdicted migrants'').
    \226\ See Huisha-Huisha v. Mayorkas, 27 F.4th 718, 732-33 (D.C. 
Cir. 2022); CBP, Office of Field Operations, Processing of 
Noncitizens Manifesting Fear of Expulsion Under Title 42 (May 21, 
2022); USBP, Guidance Regarding Family Units Moving Forward Under 
Title 42 (May 21, 2022).
---------------------------------------------------------------------------

    DHS believes that the manifestation standard is reasonably designed 
to identify meritorious claims even if a noncitizen does not expressly 
articulate a fear of return. Manifestations may be verbal, non-verbal, 
or physical.\227\ A manifestation of fear may present with non-verbal 
or physical cues, through behaviors such as shaking, crying, fleeing, 
or changes in tone of voice, or through physical injuries consistent 
with abuse.\228\ An individual who may not be comfortable answering a 
question about whether they have a fear of return may nevertheless 
manifest that fear through an unconscious behavior, which can be 
observed by the inspecting immigration officer, and the individual may 
then be referred for a fear screening. DHS acknowledges that, in some 
cases, these behaviors may reflect circumstances other than a fear of 
return--for instance, a noncitizen who has just arrived at the border 
may be physically tired, cold, hungry, and disoriented, which may 
present similarly to manifestation of fear. In such cases, DHS 
immigration officers will use their expertise and training to determine 
whether the noncitizen is manifesting a fear. If there is any doubt, 
however, immigration officers will be instructed to err on the side of 
caution and refer the noncitizen to an AO for a credible fear 
interview.
---------------------------------------------------------------------------

    \227\ See U.S. State Dep't, Bureau of Population, Refugees, and 
Migration, Fact Sheet: U.S. Commemorations Pledges (June 24, 2013), 
https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm (noting implementation of training that ``demonstrates 
different ways a migrant might express a verbal or non-verbal 
manifestation of fear'').
    \228\ Id.
---------------------------------------------------------------------------

    Moreover, DHS will provide immigration officers with information on 
how to apply the standard, which will build on their existing training 
and experience. Indeed, as noted above, CBP immigration officers (both 
USBP agents and CBP officers) have extensive experience interviewing 
and observing individuals. As a result of their experience and 
training, they have skills and expertise in interacting with 
individuals and observing human behavior and in determining appropriate 
follow up steps with regards to any behaviors or indicators of concern. 
For instance, upon encountering a group of individuals who purport to 
be a family, USBP agents will observe the individuals to determine 
whether they evidence typical familial behavior or whether there are 
any concerns about the validity of the asserted familial relationship 
or the safety of any children in the group. Agents and officers are 
also trained on identifying potential trafficking victims or victims of 
crimes and are trained on appropriate follow up action. Additionally, 
agents and officers frequently encounter individuals who may be 
vulnerable, including those in physical or medical distress or in need 
of humanitarian care, as well as those who may be seeking protection in 
the United States. Agents and officers can similarly use such skills 
and experiences to identify any manifestations of fear. Agents and 
officers will also receive information on how to apply the 
manifestation standard, including that manifestation may occur 
verbally, non-verbally, or physically. DHS believes that this 
experience, coupled with guidance, will help agents and officers 
effectively

[[Page 48745]]

identify noncitizens with potential fear or asylum claims under a 
manifestation approach. Therefore, DHS believes that this rule remains 
consistent with the need to ``safeguard[]'' the rights of asylum 
seekers. See 62 FR at 10319. Because an immigration officer's 
observation of whether a noncitizen manifests a fear--rather than a 
noncitizen's answers to affirmative questions regarding asylum--will 
lead to a referral to an AO for a fear screening, this standard may 
result in a greater proportion of those referred to an AO being 
individuals with meritorious claims.
    Additionally, the manifestation standard in the rule will enable 
DHS to streamline the process, allowing it to process noncitizens in a 
more expeditious manner during the emergency border circumstances 
identified in the Proclamation and this rule. In particular, DHS 
anticipates that omitting the requirement to complete Form I-867A and 
I-867B will save about 20 to 30 minutes per noncitizen, providing DHS 
with--based on the number of cases in March 2024--approximately 14,000 
extra personnel hours per month.\229\ This increased efficiency is 
critical for processing noncitizens in an expeditious way, and thus 
will better ensure that, given the immense challenges of irregular 
migration at the southern border, DHS's limited resources are used most 
effectively while still affording opportunities for noncitizens to seek 
asylum or protection. Indeed, this is particularly critical in the 
emergency border circumstances described in the Proclamation and the 
rule. As discussed above, given the number of noncitizens and the time 
it takes to process them during periods of heightened encounters, 
expediting the process is critical for avoiding overcrowding and 
ensuring safe conditions for those in custody.\230\
---------------------------------------------------------------------------

    \229\ At a time savings of 30 minutes per noncitizen, multiplied 
by 28,466 noncitizens processed for expedited removal in March 2024, 
see OHSS analysis of data downloaded from UIP on April 2, 2024, DHS 
would save approximately 14,000 hours per month.
    \230\ See Decl. of Matthew J. Hudak ]] 7, 17-22, Florida v. 
Mayorkas, No. 3:22-cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
---------------------------------------------------------------------------

    For all of these reasons, DHS believes that the ``manifestation of 
fear'' standard, as explained in the rule, will enable immigration 
officers to effectively identify noncitizens who require credible fear 
interviews while streamlining the process. During the emergency 
circumstances described in the Proclamation and the rule, it is 
important for immigration officers to expeditiously process and swiftly 
apply consequences to noncitizens while still affording access to 
protection. Here, the Departments are currently facing such emergency 
circumstances, as explained above in Sections III.B.1 and 2 of this 
preamble. DHS believes that the approach taken in the rule is the most 
appropriate one in light of the situation at the southern border, as 
explained in this rule and as discussed in the Proclamation, balancing 
the need to protect those who may wish to seek protection in the United 
States against an urgent need to use DHS resources effectively.
c. Raising the Standard for Protection Screening
    Under this rule, if the AO determines that, in light of the 
limitation on asylum eligibility under 8 CFR 208.35(a), there is not a 
significant possibility that the noncitizen could establish eligibility 
for asylum, see INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the AO 
will enter a negative credible fear determination with respect to the 
noncitizen's asylum claim. See 8 CFR 208.35(b)(1)(i). The AO will then 
assess whether the noncitizen has established a reasonable probability 
of persecution (meaning a reasonable probability of being persecuted 
because of their race, religion, nationality, membership in a 
particular social group, or political opinion) or torture, with respect 
to the designated country or countries of removal identified pursuant 
to section 241(b)(2) of the INA, 8 U.S.C. 1231(b)(2).\231\ See 8 CFR 
208.35(b)(2)(i). Likewise, when reviewing a negative credible fear 
determination, where the IJ concludes that there is not a significant 
possibility that the noncitizen could establish eligibility for asylum 
in light of the limitation on asylum eligibility, the IJ will assess 
whether the noncitizen has established a reasonable probability of 
persecution because of a protected ground or torture. See 8 CFR 
1208.35(b)(2)(ii).
---------------------------------------------------------------------------

    \231\ As noted above, DHS is also concurrently soliciting 
comment on the Application of Certain Mandatory Bars Notice of 
Proposed Rulemaking, which proposes that certain mandatory bars be 
considered at the screening stage under a reasonable possibility 
standard.
---------------------------------------------------------------------------

    The Departments have some discretion to articulate the screening 
standard for claims for statutory withholding of removal and protection 
under the CAT. As the Departments observed previously, ``Congress 
clearly expressed its intent that the `significant possibility' 
standard be used to screen for asylum eligibility but did not express 
any clear intent as to which standard should apply to other 
applications.'' 88 FR at 11742. In addition, ``the legislative history 
regarding the credible fear screening process references only asylum.'' 
Id. at 11743. By contrast, section 241(b)(3) of the INA, 8 U.S.C. 
1231(b)(3), and FARRA section 2242 are silent as to what screening 
procedures are to be employed, while the INA elsewhere confers broad 
discretionary authority to establish rules and procedures for 
implementing those provisions, see, e.g., INA 103(a)(3), (g)(2), 8 
U.S.C. 1103(a)(3), (g)(2).
    Moreover, in past rules applying a ``reasonable possibility'' 
screening standard to claims for statutory withholding of removal or 
CAT protection, the Departments have noted that such a screening 
standard is used ``in other contexts where noncitizens would also be 
ineligible for asylum.'' 88 FR at 11743 (citing 8 CFR 208.31(c), (e)); 
see also, e.g., Procedures for Asylum and Withholding of Removal; 
Credible Fear and Reasonable Fear Review, 85 FR 36264, 36270 (June 15, 
2020) (referencing ``the established framework for considering whether 
to grant statutory withholding of removal or CAT protection in the 
reasonable fear context''). Under the Circumvention of Lawful Pathways 
rule, ``[i]f a noncitizen is subject to the lawful pathways condition 
on eligibility for asylum and not excepted and cannot rebut the 
presumption of the condition's applicability, there would not be a 
significant possibility that the noncitizen could establish eligibility 
for asylum.'' 88 FR at 11742. For those noncitizens, the Departments 
implemented a ``reasonable possibility of persecution or torture'' 
screening standard for statutory withholding of removal and protection 
under the CAT. See 8 CFR 208.33(b)(2)(ii), 1208.33(b)(2)(ii). The 
Departments similarly believe that those who enter across the southern 
border during the emergency border circumstances identified in the 
Proclamation and this rule and who are not described in section 3(b) of 
the Proclamation, do not establish an enumerated exception, and are 
unable to establish a significant possibility of eligibility for asylum 
should be screened for protection under a higher screening standard.
    The Departments' experience with the Circumvention of Lawful 
Pathways rule has validated the Departments' choice to use an elevated 
screening standard to narrowly focus limited resources on those who are 
likely to be persecuted or tortured and to remove those who are 
unlikely to establish eligibility for statutory withholding of removal 
or CAT protection. Under that rule, which

[[Page 48746]]

uses a ``reasonable possibility of persecution or torture'' screening 
standard for statutory withholding of removal and CAT protection 
claims, the Departments have processed record numbers of noncitizens 
through expedited removal and have seen a significant decrease in the 
rate at which noncitizens receive positive credible fear 
determinations, showing greater operational efficiencies.\232\ Between 
May 12, 2023, and March 31, 2024, USCIS completed more than 152,000 
credible fear interviews resulting from SWB expedited removal cases--
this is more than twice as many interviews during the span of ten and a 
half months than the 75,000 interviews resulting from SWB encounters 
that USCIS averaged each year from FY 2014 to FY 2019.\233\ Between May 
12, 2023, and March 31, 2024, 52 percent (approximately 57,000) of 
those who were subject to the rule's presumption were able to establish 
a credible fear of persecution or torture under the ``reasonable 
possibility'' standard,\234\ compared to an 83 percent credible fear 
screen-in rate in the pre-pandemic period of 2014 to 2019.\235\ From 
2014 through 2019, of SWB expedited removal cases with positive fear 
determinations, less than 25 percent of EOIR case completions 
ultimately resulted in a grant of protection or relief.\236\
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    \232\ Decl. of Blas Nu[ntilde]ez-Neto ] 7, M.A. v. Mayorkas, No. 
1:23-cv-01843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1). The screen-in rate 
refers to the percentage of cases with a positive fear determination 
calculated by dividing the number of cases that receive a positive 
fear determination by the total number of determinations made (i.e., 
positive and negative fear determinations). See id. ] 7 n.2.
    \233\ Pre-May 12, 2023, data from OHSS Enforcement Lifecycle 
Dataset December 31, 2023; post-May 11, 2023, data from OHSS 
analysis of data downloaded from UIP on April 2, 2024.
    \234\ OHSS analysis of data downloaded from UIP on April 2, 
2024. At this time, data on EOIR's grant rate under the 
Circumvention of Lawful Pathways rule is not available because only 
a small number of cases processed under that rule have been 
completed. From May 12 through November 30, 2023 (the most recent 
data for which fully linked records are available), a total of 
61,000 SWB expedited removal cases have been referred to EOIR for 
section 240 removal proceedings, including 1,400 with case 
completions (2.2 percent). In addition, cases that are already 
completed are a biased sample of all future completions because in 
years since FY 2014, the median processing time for cases resulting 
in relief or other protection from removal has been, on average, 
about six times longer than the median processing time for cases 
resulting in removal orders, so reporting on the small data set of 
already completed cases would yield a relief rate that is 
artificially low. OHSS analysis of OHSS Enforcement Lifecycle 
Dataset December 31, 2023 and OHSS analysis of EOIR data as of 
January 31, 2024.
    \235\ OHSS Enforcement Lifecycle Dataset as of December 31, 
2023.
    \236\ OHSS Enforcement Lifecycle Dataset as of December 31, 
2023.
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    Screening under the ``reasonable possibility'' standard has allowed 
the Departments to screen out and swiftly remove additional noncitizens 
whose claims are unlikely to succeed at the merits stage. Although 
fewer noncitizens are screened in under the ``reasonable possibility'' 
standard applied in the context of the Circumvention of Lawful Pathways 
rule, that screen-in rate remains significantly higher than the grant 
rate for ultimate merits adjudication for SWB expedited removal cases 
that existed prior to the rule.\237\ Under the emergency border 
circumstances described in the Proclamation and this rule, the 
Departments' limited resources must be focused on processing those who 
are most likely to be persecuted or tortured if removed, and overall 
border security and immigration systems efficiencies outweigh any 
challenges related to training on a new screening standard and a 
possible marginal increase in interview length resulting from the 
application of a new standard in screening interviews. Likewise, the 
benefits of this rule, which is consistent with all statutory and 
regulatory requirements and the United States' international law 
obligations, outweigh any potential marginal increase in the likelihood 
that a meritorious case would fail under the raised screening standard. 
Swiftly removing noncitizens without meritorious claims is critical to 
deterring noncitizens from seeking entry under the belief that they 
will be released and able to remain in the United States for a 
significant period. See, e.g., 88 FR at 31324 (discussing the success 
of the CHNV parole processes as being in part due to imposing 
consequences for failing to use a lawful pathway, namely swift 
removal); 88 FR at 11713 (noting that in the 60 days immediately 
following DHS's resumption of routine repatriation flights to Guatemala 
and Honduras, average daily encounters fell by 38 percent for Guatemala 
and 42 percent for Honduras).\238\
---------------------------------------------------------------------------

    \237\ DHS OHSS Enforcement Lifecycle Dataset as of December 31, 
2023.
    \238\ See also, e.g., Muzaffar Chishti et al., At the Breaking 
Point: Rethinking the U.S. Immigration Court System, Migration Pol'y 
Inst., at 11 (2023), https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf (``In the case 
of noncitizens crossing or arriving at the U.S.-Mexico border 
without authorization to enter, years-long delays create incentives 
to file frivolous asylum claims that further perpetuate delays for 
those eligible for protection, undermining the integrity of the 
asylum system and border enforcement.''); Doris Meissner, Faye 
Hipsman, & T. Alexander Aleinikoff, The U.S. Asylum System in 
Crisis: Charting a Way Forward, Migration Pol'y Inst., at 9 (2018), 
https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf (``Incentives to misuse the 
asylum system may also be reemerging. For example, over the past 
five years, the number of employment authorization documents (EADs) 
approved for individuals with pending asylum cases that have passed 
the 180-day mark increased from 55,000 in FY 2012 to 270,000 in FY 
2016, and further to 278,000 in just the first six months of FY 
2017. This high and growing level of EAD grants may suggest that, as 
processing times have grown, so too have incentives to file claims 
as a means of obtaining work authorization and protection from 
deportation, without a sound underlying claim to humanitarian 
protection.'').
---------------------------------------------------------------------------

    To allow for swift removals in the case of those noncitizens who 
the Departments are confident are unlikely to meet their ultimate 
burden to establish eligibility for statutory withholding of removal or 
protection under the CAT, the Departments have decided to raise the 
screening standard to ``reasonable probability of persecution or 
torture'' during the emergency border circumstances described in the 
Proclamation and this rule. The Departments define this ``reasonable 
probability'' standard as ``substantially more than a reasonable 
possibility, but somewhat less than more likely than not.'' 8 CFR 
208.35(b)(2)(i), 1208.35(b)(2)(ii). Under this standard, a noncitizen 
would be screened in if they provide credible testimony \239\ and set 
forth a credible claim with sufficient specificity for an AO or IJ to 
be persuaded that there is a reasonable probability that the noncitizen 
would be persecuted or tortured so as to qualify for statutory 
withholding of removal or CAT protection in an ultimate merits 
adjudication.
---------------------------------------------------------------------------

    \239\ Credible testimony alone is sufficient in a credible fear 
screening, and AOs are trained to ask questions to elicit testimony 
to assist the noncitizen in meeting their burden with testimony 
alone. Although testimony alone could certainly meet the burden, it 
is not required that the burden be met solely through testimony. And 
even though corroborating evidence is not required, AOs will 
consider any additional evidence the noncitizen presents. 
Additionally, AOs are trained to conduct interviews of individuals 
with persecution or non-persecution-related injuries, traumas, or 
conditions that may impact their ability to provide testimony for 
themselves.
---------------------------------------------------------------------------

    The Departments view the difference between the ``reasonable 
possibility'' standard and the new ``reasonable probability'' standard 
as being that the new standard requires a greater specificity of the 
claim in the noncitizen's testimony before the AO or the IJ. In 
particular, although claims based on general fears of return may at 
times be found to meet the ``reasonable possibility'' standard where 
evidence in the record of country conditions

[[Page 48747]]

indicates instances of persecution or torture within the country, such 
claims are less likely to be sufficient under the ``reasonable 
probability'' standard when the noncitizen cannot provide greater 
detail in their statements and information as to the basis for their 
individual claim.
    The Departments frequently see such general claims of fear that 
lack specificity at both the screening and merits stage. However, 
generalized fear of persecution is ultimately not sufficient to 
establish a claim. See Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 
2023) (``[A]dverse country conditions are not sufficient evidence of 
past persecution, for the obvious reason that `[t]o establish past 
persecution, an applicant must show that he as individually targeted on 
account of a protected ground rather than simply the victim of 
generalized violence.' '' (quoting Hussain v. Rosen, 985 F.3d 634, 646 
(9th Cir. 2012))); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) 
(stating that to establish past persecution, ``[i]t is not sufficient 
to show [the applicant] was merely subject to the general dangers 
attending a civil war or domestic unrest''); Al Fara v. Gonzales, 404 
F.3d 733, 740 (3d Cir. 2005) (``[G]enerally harsh conditions shared by 
many other persons do not amount to persecution. . . . [H]arm resulting 
from country-wide civil strife is not persecution on account of an 
enumerated statutory factor.'' (quotation marks omitted)); see also 
Debab v. INS, 163 F.3d 21, 27 (1st Cir. 1998) (citing cases).
    Moreover, to establish ultimate eligibility for CAT protection, the 
noncitizen must demonstrate an individualized risk of torture--not a 
general possibility of it. See Escobar-Hernandez v. Barr, 940 F.3d 
1358, 1362 (10th Cir. 2019) (``[P]ervasive violence in an applicant's 
country generally is insufficient to demonstrate the applicant is more 
likely than not to be tortured upon returning there.''); Bernard v. 
Sessions, 881 F.3d 1042, 1047 (7th Cir. 2018) (``Evidence of 
generalized violence is not enough; the IJ must conclude that there is 
a substantial risk that the petitioner will be targeted 
specifically.''); Lorzano-Zuniga v. Lynch, 832 F.3d 822, 830-31 (7th 
Cir. 2016) (``[G]eneralized violence or danger within a country is not 
sufficient to make a claim that it is more likely than not that a 
petitioner would be tortured upon return to his home country.''); 
Alvizures-Gomes v. Lynch, 830 F.3d 49, 55 (1st Cir. 2016) (country 
reports demonstrating overall corruption and ineffectiveness of 
Guatemalan authorities ``do not relieve [the applicant] of the 
obligation to point to specific evidence indicating that he, 
personally, faces a risk of torture because of these alleged 
shortcomings''); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 
2010) (``Petitioners' generalized evidence of violence and crime in 
Mexico is not particular to Petitioners and is insufficient to meet 
th[e] standard [for eligibility for CAT protection].'').
    Under the ``reasonable possibility'' standard, a noncitizen 
presenting a claim based on general civil strife is sometimes found to 
pass the screening stage even where they provide only general testimony 
about their fear of harm. For example, a noncitizen may meet the 
``reasonable possibility'' standard where he expresses a fear of being 
killed by the government upon his return to his native country, United 
States Government reports indicate the country may engage in human 
rights abuses, and the noncitizen has been involved in anti-government 
political activism for years, even absent specific information as to an 
individualized threat against the noncitizen or any other individuals 
who have been threatened or harmed. But to meet the ``reasonable 
probability'' standard, the noncitizen would either need to explain 
with some specificity why he thinks he, in particular, is likely to be 
harmed, or the record would have to reflect some specific information 
regarding the treatment of anti-government political activists 
similarly situated to the applicant. Such claims are assessed on a 
case-by-case basis. As an example, however, were the noncitizen to 
credibly state that he knew, and to provide details about, people who 
are similarly situated to him who have been killed, harmed, or credibly 
threatened, that testimony may be sufficient to meet the ``reasonable 
probability'' standard because it provides more specificity as to why 
the noncitizen believes he would be harmed. The Departments believe 
that the ``reasonable probability'' standard, by requiring additional 
specificity, will better identify claims that are likely to be 
meritorious in a full adjudication while screening out those whose 
claims are not likely to prevail.\240\
---------------------------------------------------------------------------

    \240\ Although the Departments believe the standard will better 
identify claims that are likely to be meritorious, for now the 
Departments do not seek to apply the ``reasonable probability'' 
standard outside the context of this rule--that is, to those who do 
not establish a significant possibility of eligibility for asylum 
because of the limitation on asylum eligibility or, if the 
limitation is rendered inoperative by court order, to those who are 
ineligible for asylum under the Circumvention of Lawful Pathways 
rule, see 8 CFR 208.35(b)(2)(i) and (3), 1208.35(b)(2)(iii) and 
(4)--because in this rule the Departments are addressing emergency 
border circumstances rather than regulating to change the status 
quo. The Departments may consider such changes in future rulemaking.
---------------------------------------------------------------------------

    The Departments are confident that AOs and IJs can apply this 
heightened standard effectively to identify those who are likely to 
have viable claims on the merits while mitigating the possibility that 
those with a viable claim would be screened out. The level of 
specificity and certainty that the ``reasonable probability'' standard 
requires remains lower than the ultimate merits standard, and AOs and 
IJs have the training and experience necessary to elicit the 
information required to determine whether a case is sufficiently 
specific to meet the ``reasonable probability'' standard.\241\ This is 
particularly the case because, in implementing such training, USCIS 
expects to adapt existing training, including on the ultimate merits 
standard, to prepare AOs on the ``reasonable probability'' screening 
standard, since the way evidence is evaluated remains the same, save 
for the degree of specificity required. AOs especially have significant 
training in non-adversarial interview techniques and are required to 
elicit testimony from the noncitizen--in effect, to help the noncitizen 
meet their burden through testimony alone.\242\ If upon such 
questioning a noncitizen is unable to provide specific facts that lead 
the AO or IJ to believe that the noncitizen would be able to meet their 
burden with more opportunity to prepare, such claims are unlikely to 
prevail at the merits stage.
---------------------------------------------------------------------------

    \241\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Dec. 20, 2019); EOIR, Fact Sheet: Immigration 
Judge Training (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline.
    \242\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Introduction to the Non-Adversarial Interview (Dec. 20, 2019). As 
described in a previous rule, AOs have experience in ``country 
conditions and legal issues, as well as nonadversarial interviewing 
techniques,'' and they have ``ready access to country conditions 
experts.'' Procedures for Credible Fear Screening and Consideration 
of Asylum, Withholding of Removal, and CAT Protection Claims by 
Asylum Officers, 86 FR 46906, 46918 (Aug. 20, 2021).
---------------------------------------------------------------------------

    Moreover, this heightened screening standard targets information--
specificity based on the noncitizen's own knowledge--that should 
generally be available at the screening stage. A noncitizen at the 
screening stage generally would have information regarding their fear 
of harm, such as whom they are afraid of and why, and an AO will elicit 
information regarding the claim that either is sufficiently specific to 
satisfy the heightened screening standard or is not. Credible

[[Page 48748]]

testimony alone can satisfy the noncitizen's burden and is sometimes 
the only available evidence of persecution or torture. See, e.g., 
Matter of Mogharrabi, 19 I&N Dec. 439, 443 (BIA 1987). In most cases, 
noncitizens would have such information at the screening stage, and the 
Departments expect--and logic suggests--that such information could be 
shared through testimony. Instances of past harm or those that inform a 
future fear of return that caused a noncitizen to seek protection 
generally occur before entry and would not be expected to develop after 
the fact of entry or after the screening stage. Hence, the Departments 
believe that this standard will screen out claims that are likely to 
fail at the merits stage and poses only a minimal risk of screening out 
claims that could ultimately succeed. For example, if a noncitizen does 
not know who harmed or would harm them or why, in the Departments' 
experience, AOs and IJs will often be able to determine--depending on 
the facts of the case--that it is unlikely that the noncitizen will be 
able to provide answers to those critical questions at the merits 
stage.
    In addition, AOs and IJs also receive training in, and have 
substantial experience weighing, country conditions, which will further 
help them assess whether and under what circumstances the lack of 
specificity in a noncitizen's testimony indicates that they have little 
prospect of meeting their ultimate burden.\243\ For example, it may be 
the case that where a noncitizen expresses only generalized fear of 
harm based on their ethnicity, but country conditions confirm serious, 
ongoing harm in the form of widespread, systematic persecutory acts by 
government institutions targeting individuals who are similarly 
situated to the noncitizen, adjudicators will rely on that information 
to deem the ``reasonable probability'' standard satisfied.
---------------------------------------------------------------------------

    \243\ USCIS, RAIO Directorate--Officer Training: Decision Making 
(Dec. 20, 2019); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony (Dec. 20, 2019); USCIS, RAIO 
Directorate--Officer Training: Interviewing--Introduction to the 
Non-Adversarial Interview (Dec. 20, 2019); 86 FR at 46918. IJs 
``receive extensive training upon entry on duty, annual training, 
and periodic training on specialized topics as necessary.'' 
Procedures for Credible Fear Screening and Consideration of Asylum, 
Withholding of Removal, and CAT Protection Claims by Asylum 
Officers, 87 FR 18078, 18170 (Mar. 29, 2022); see also EOIR, Fact 
Sheet: Immigration Judge Training (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline. Moreover, IJs are 
required to maintain professional competence in the law, U.S. Dep't 
of Justice, Ethics and Professionalism Guide for Immigration Judges 
Sec.  IV (Jan. 26, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf, which necessarily includes 
the elements required to establish eligibility for relief or 
entitlement to protection from removal, id. Consistent with their 
role in adjudicating asylum and related protection applications, IJs 
have long been able to take administrative notice of commonly known 
facts, including country conditions evidence. See 8 CFR 208.12 
(1997) (stating that the adjudicator may rely on information from a 
variety of sources ranging from the Department of State to credible 
international organizations or academic institutions); 8 CFR 
208.1(a) (1997) (stating this part shall apply to all applicants for 
asylum whether before an AO or an IJ). Federal Government country 
conditions reports, such as the U.S. Department of State country 
conditions reports, are longstanding, credible sources of 
information to which IJs often look. See, e.g., Sowe v. Mukasey, 538 
F.3d 1281, 1285 (9th Cir. 2008) (``U.S. Department of State country 
reports are the most appropriate and perhaps the best resource for 
information on political situations in foreign nations.'' (quotation 
marks omitted)); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 
315, 341 (2d Cir. 2006) (Department of State country reports are 
``usually the best available source of information on country 
conditions'' (quotation marks omitted)).
---------------------------------------------------------------------------

    AOs, supervisory AOs, and IJs receive training and have experience 
applying asylum, statutory withholding of removal, and CAT protection 
screening standards and in applying and reviewing decisions related to 
the ultimate asylum (for USCIS and EOIR) and statutory withholding of 
removal and CAT protection (for EOIR) merits standards, so they are 
well-suited to be able to identify in a screening whether the 
information the noncitizen has provided is sufficiently specific to 
lead them to believe that the noncitizen may be able to establish 
eligibility at the merits stage.\244\ Moreover, all credible fear 
determinations must be concurred upon by a supervisory AO before they 
become final to ensure quality and consistency and will be subject to 
de novo IJ review if requested by the noncitizen. See 8 CFR 
235.3(b)(7), 235.15(b)(2)(i)(B), 1208.35(b).
---------------------------------------------------------------------------

    \244\ See USCIS, RAIO Directorate--Officer Training: Note Taking 
(Feb. 12, 2024); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Survivors of Torture and Other Severe Trauma (Nov. 2, 
2023); USCIS, RAIO Directorate--Officer Training: Children's Claims 
(Dec. 20, 2020); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Dec. 
20, 2019); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Dec. 20, 2019); USCIS, RAIO Directorate--
Officer Training: Cross-Cultural Communication and Other Factors 
That May Impede Communication at an Interview (Dec. 20, 2019); 
USCIS, RAIO Directorate--Officer Training: Detecting Possible 
Victims of Trafficking (Dec. 20, 2019); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working With an Interpreter (Dec. 
20, 2019); EOIR, Fact Sheet: Immigration Judge Training (June 2022), 
https://www.justice.gov/eoir/page/file/1513996/dl?inline.
---------------------------------------------------------------------------

    Although AOs, supervisory AOs, and IJs will have to be trained on 
applying the new ``reasonable probability of persecution or torture'' 
standard, the standard as explained above is not a significant 
departure from the types of analyses AOs, supervisory AOs, and IJs 
conduct on a daily basis. Rather, it is a matter of degree--to meet the 
``reasonable probability of persecution or torture'' standard, the 
noncitizen must present more specificity than is required to meet the 
``reasonable possibility of persecution or torture'' standard, but not 
so much as to establish ultimate eligibility for protection. Indeed, to 
meet the ultimate standard, noncitizens may still be required to 
provide more evidence--whether testimonial or documentary.
    The Departments do not believe that applying the ``reasonable 
probability of persecution or torture'' standard will increase the time 
required for credible fear interviews by any great margin. AOs 
generally ask similar questions to elicit information from noncitizens 
during screening interviews regardless of the standard they will apply 
to the information elicited. The difference will be whether the 
information provided as a result of those questions reaches the 
required level of specificity. That said, there may be cases where an 
AO believes that the noncitizen may be able to meet the ``reasonable 
probability of persecution or torture'' standard after answering a few 
additional questions. But even if there is a marginal increase in the 
length of some interviews, the Departments believe that the interest in 
swift removal of those unlikely to establish eligibility for protection 
during emergency border circumstances outweighs the risk of some 
interviews taking longer.\245\ This is because a higher standard will 
be more likely to create a deterrent: Those less likely to establish 
eligibility for statutory withholding of removal or CAT protection will 
be swiftly removed rather than being released and waiting years for a 
hearing, or in some cases, absconding and remaining in the United 
States unlawfully. And this deterrent effect could lead to lower 
encounter levels as noncitizens and smugglers realize that the process 
is functioning

[[Page 48749]]

more effectively.\246\ Screening out those unlikely to establish 
eligibility for protection has the added benefit of saving United 
States Government resources overall because fewer noncitizens who are 
unlikely to establish eligibility for protection will be placed into 
section 240 removal proceedings before EOIR, which as of the end of 
December 2023 had a backlog of more than 2.7 million cases.\247\
---------------------------------------------------------------------------

    \245\ In Section III.B.3.b of this preamble, the Departments 
conclude that there is a need to streamline immigration officers' 
processing of noncitizens through expedited removal while the 
Proclamation's suspension and limitation on entry is in effect. That 
reasoning is not inconsistent with the reasoning here. Because AOs 
interview only a subset of noncitizens processed through expedited 
removal, the Departments believe at most a portion of those 
noncitizens' credible fear interviews may be longer, and, as noted, 
any marginal increase in the time it takes to conduct some 
interviews is outweighed by improving deterrence and avoiding 
erroneous screen-ins, which result in noncitizens being added to the 
backlog of immigration cases and being released into and remaining 
in the United States for a significant period of time.
    \246\ See Muzaffar Chishti et al., At the Breaking Point: 
Rethinking the U.S. Immigration Court System, Migration Pol'y Inst., 
at 11 (2023), https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf (``In the case of 
noncitizens crossing or arriving at the U.S.-Mexico border without 
authorization to enter, years-long delays create incentives to file 
frivolous asylum claims that further perpetuate delays for those 
eligible for protection, undermining the integrity of the asylum 
system and border enforcement.''); Doris Meissner, Faye Hipsman, & 
T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting 
a Way Forward, Migration Pol'y Inst., at 9 (2018), https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf (``Incentives to misuse the asylum 
system may also be reemerging. For example, over the past five 
years, the number of employment authorization documents (EADs) 
approved for individuals with pending asylum cases that have passed 
the 180-day mark increased from 55,000 in FY 2012 to 270,000 in FY 
2016, and further to 278,000 in just the first six months of FY 
2017. This high and growing level of EAD grants may suggest that, as 
processing times have grown, so too have incentives to file claims 
as a means of obtaining work authorization and protection from 
deportation, without a sound underlying claim to humanitarian 
protection.'').
    \247\ See EOIR, Adjudication Statistics: Pending Cases, New 
Cases, and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline.
---------------------------------------------------------------------------

    In developing this rule, the Departments considered the possibility 
that the application of different screening standards to ``the same or 
a closely related set of facts'' might result in inefficiencies. See 87 
FR at 18091; see also 88 FR at 11746. The Departments note, however, 
that under this rule, that is unlikely to be the case. The facts 
relevant to whether a noncitizen is subject to the rule's limitation on 
asylum eligibility will only rarely be relevant to the inquiry into 
whether the noncitizen has a fear of persecution or torture. For 
example, whether the noncitizen faced an acute medical emergency that 
excepts them from the rule under 8 CFR 208.35(a)(2)(i)(A) or 
1208.35(a)(2)(i)(A) will not likely be relevant to whether the 
noncitizen has a fear of persecution or torture in their designated 
country of removal and so only the ``reasonable probability'' standard 
will be applied to the facts relevant to their persecution or torture 
claim. And where a noncitizen meets such an exception, they will 
continue to be eligible to pursue asylum in addition to any claim of 
persecution or torture, and those claims will all be considered only 
under the ``significant possibility'' standard. Similarly, whether a 
noncitizen faced an imminent and extreme threat to life and safety that 
excepts them from the rule under 8 CFR 208.35(a)(2)(i)(B) or 
1208.35(a)(2)(i)(B) will involve an evaluation of the discrete set of 
circumstances at the time of the noncitizen's arrival at the border, 
and will not likely be relevant to whether the noncitizen has a fear of 
persecution or torture in their designated country of removal. The 
question of an imminent threat relates to the situation immediately 
prior to the noncitizen's entry into the United States, rather than 
necessarily any fear of persecution or torture. Thus, the Departments 
do not believe there will generally be a need to apply multiple 
standards to the same set of facts.
d. The Scope of This Rule
    The Departments have decided to tie the application of this IFR, 
including the limitation on asylum eligibility, to emergency border 
circumstances. The suspension and limitation on entry applies beginning 
at 12:01 a.m. eastern time on June 5, 2024. The suspension and 
limitation on entry will be discontinued 14 calendar days after the 
Secretary makes a factual determination that there has been a 7-
consecutive-calendar-day average of less than 1,500 encounters, as 
defined by the Proclamation, but excluding noncitizens determined to be 
inadmissible at a SWB POE. If encounters increase again (including 
during the 14-calendar-day period), the suspension and limitation will 
apply again (or continue to apply, as applicable) after the Secretary 
makes a factual determination that there has been a 7-consecutive-
calendar-day average of more than 2,500 encounters, as defined by the 
Proclamation, but excluding noncitizens determined to be inadmissible 
at a SWB POE. These thresholds are consistent with those set forth in 
sections 2(a) and (b) of the Proclamation.\248\ In order to maximize 
the consequences for those who cross unlawfully or without 
authorization, DHS endeavors to deliver consequences swiftly to the 
highest proportion of individuals who fail to establish a legal basis 
to remain the United States. This includes, subject to available 
resources, referring the maximum number of eligible individuals 
possible into expedited removal to quickly adjudicate their claims. 
However, as described below, DHS has been limited in its ability to do 
so as a result of capacity and resource constraints. The number of 
people who can be processed for expedited removal is dependent on the 
Departments' resources and can be impacted by several factors, 
including limited detention beds and holding capacity; \249\ the 
presence or absence of sufficient AOs to conduct credible fear 
interviews for all those who claim a fear or indicate an intent to 
apply for asylum; the availability of IJs to review negative fear 
findings; and the ability to repatriate individuals ordered removed in 
a timely manner--an option that is not always available because, among 
other things, it relies on independent decisions made by foreign 
governments.
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    \248\ The 14-day waiting period prior to a discontinuation 
provides time for the Departments to complete processing of 
noncitizens encountered during emergency border circumstances and to 
confirm that a downward trend in encounters is sustained. The 
absence of a similar waiting period prior to a reactivation reflects 
the operational exigencies in a circumstance in which there has been 
a 7-consecutive-calendar-day average of more than 2,500 encounters 
and is necessary to avoid a surge to the border in advance of a 
reactivation. As the Departments have explained, the preliminary 
data pulled from DHS's operational systems have not undergone a full 
validation process. See supra note 5. But a rapid policy and 
operational response to emergency border circumstances requires 
relying on this more recent data when making factual determinations 
consistent with sections 2(a) and 2(b) of the Proclamation. Hence, 
the data used to make these factual determinations may differ 
somewhat from the more definitive numbers that ultimately emerge 
from DHS's full validation process.
    \249\ See, e.g., Consolidated Appropriations Act, 2024, Public 
Law 118-47, 138 Stat. 460, 598 (2024). The joint explanatory 
statement states that the bill provides ``$5,082,218,000 for 
Enforcement and Removal Operations (ERO)'' and ``$355,700,000 for 
41,500 beds for the full fiscal year and inflationary adjustments to 
support current detention facility operations.'' 170 Cong. Rec. 
H1807, H1812 (daily ed. Mar. 22, 2024).
---------------------------------------------------------------------------

    Sustained high encounter rates threaten to overwhelm the 
Departments' ability to effectively process, detain, and remove the 
migrants encountered, as appropriate, in a timely manner. See 88 FR at 
31316. The President has determined that the suspension and limitation 
on entry is necessary to manage encounter levels. The Departments have 
determined that emergency border circumstances described in the 
Proclamation and this rule necessitate this rule's limitation on asylum 
eligibility and changes to the referral process and screening standard 
because, in such circumstances, DHS lacks the capacity to deliver 
timely consequences, and absent this rule, must resort to large-scale 
releases of noncitizens pending section 240 removal proceedings, which 
leads to significant harms and threatens to incentivize further 
migration by individuals who recognize the

[[Page 48750]]

limitations on the ability to deliver timely consequences.\250\
---------------------------------------------------------------------------

    \250\ See Section III.B.2 of this preamble. The Departments 
acknowledge that, despite the protections preserved by the rule and 
the available exceptions, the provisions adopted by this rule will 
result in the denial of some asylum claims that otherwise may have 
been granted and, as with all screening mechanisms, there is some 
risk that a case that might otherwise warrant protection might not 
proceed to a merits adjudication. However, in light of the emergency 
circumstances facing the Departments and addressed in the 
Proclamation and this rule, the Departments believe these measures 
are appropriate and necessary. And given the Departments' experience 
with asylum and protection screenings and adjudications, the 
Departments believe the rule's provisions will produce accurate 
outcomes, although the Departments believe the rule continues to be 
justified even if that expectation turns out to be misplaced in 
close cases.
---------------------------------------------------------------------------

    DHS simply lacks sufficient resources to detain and conduct 
credible fear interviews for the number of noncitizens arriving each 
day who claim a fear of return when processed through expedited 
removal. This mismatch in available resources and encounters creates 
stress on the border and immigration systems and forces DHS to rely on 
processing pathways outside of expedited removal--limiting DHS's 
ability to swiftly deliver consequences on individuals who do not have 
a legal basis to remain in the United States.\251\ The Departments have 
determined that the 1,500-encounter threshold is a reasonable proxy for 
when the border security and immigration system is no longer over 
capacity and the measures adopted in this rule are not necessary to 
deal with such circumstances.
---------------------------------------------------------------------------

    \251\ See CBP, Custody and Transfer Statistics (May 15, 2024), 
https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics 
(detailing the number of individuals processed for expedited removal 
compared to another processing disposition, including section 240 
proceedings).
---------------------------------------------------------------------------

    At the outset, it is important to put the threshold in context. 
From FY 2000 through FY 2008, USBP encounters between POEs averaged 
approximately 3,000 per day, routinely including monthly averages over 
3,500 for a few months most springs.\252\ The vast majority (94 
percent) of individuals encountered by USBP during this period were 
Mexican nationals, and very few of those who were processed for 
expedited removal claimed a fear of return or an intent to seek asylum 
during that process--fewer than one percent of all CBP SWB 
encounters.\253\ As a result, DHS and its predecessor agency were able 
to swiftly remove or voluntarily return the vast majority of those 
encountered at the SWB using comparatively few resources. See 88 FR at 
11708, 11716.
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    \252\ OHSS analysis of March 2024 OHSS Persist Dataset. Total 
CBP encounters (at and between POEs) also averaged approximately 
3,000 per day from FY 2004 to FY 2008; data on encounters at POEs 
are not available prior to FY 2004.
    \253\ OHSS analysis of March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------

    From FY 2009 through FY 2020, USBP encounters between POEs declined 
substantially from these historical highs, averaging approximately 
1,200 per day, and daily USBP encounters between the POEs averaged less 
than 3,500 per day in all but one month of that 12-year period--May 
2019 when USBP encounters peaked at 4,300 during that year's 
surge.\254\ Within that 12-year stretch, there were only four months 
(from March through June 2019) with average encounters between the POEs 
even above 2,500 per day.\255\ In fact, for the 15 years prior to March 
2021, DHS did not experience a single month with more than 5,000 total 
average daily encounters.\256\ However, during that time, the 
demographics of these encounters changed significantly, with nationals 
from the northern Central American countries steadily increasing as a 
proportion of encounters, becoming a majority of individuals 
encountered between POEs for the first time in history in 2017--a trend 
that continued until 2020. Starting in 2014, families and UCs increased 
as a proportion of USBP encounters as well, reaching a high of 65 
percent of encounters in 2019.\257\ Finally, and as described in 
greater detail in Section III.B.1 of this preamble, from 2021 to 2023, 
there was a historic surge in migration from other countries in the 
Western Hemisphere and from Eastern Hemisphere countries, which, for 
the first time ever, accounted for more than half of the encounters at 
the border in 2023--with Mexican nationals accounting for just 29 
percent of encounters, an all-time low.\258\
---------------------------------------------------------------------------

    \254\ OHSS analysis of March 2024 OHSS Persist Dataset. Total 
CBP encounters (at and between POEs) averaged approximately 1,500 
per day during this period. For most of this period (from FY 2009 
through FY 2018), the share of encounters processed for expedited 
removal and the share of those processed through expedited removal 
making fear claims generally increased, so that during FY 2018, 41 
percent of SWB encounters were processed for expedited removal and 
45 percent of those processed for expedited removal made fear 
claims, yielding an all-time high of 18 percent of all encounters 
making fear claims. OHSS analysis of March 2024 OHSS Persist 
Dataset. Data on the exact number of SWB encounters processed for 
expedited removal who made fear claims is not available for years 
prior to FY 2013, but OHSS estimates that the vast majority (84 
percent) of all fear claims made in prior years were made by SWB 
encounters. Even if 100 percent of fear claims made before FY 2013 
were made by SWB encounters, FY 2018 would represent the all-time 
highest percentage of all encounters making fear claims.
    \255\ OHSS analysis of March 2024 OHSS Persist Dataset. Total 
CBP encounters (at and between POEs) also averaged approximately 
2,700 per day and 2,600 per day in February and July 2019, 
respectively.
    \256\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \257\ OHSS analysis of March 2024 OHSS Persist Dataset. Northern 
Central Americans accounted for 54 percent of encounters between 
POEs in 2017. Northern Central Americans' proportion of encounters 
between POEs continued to increase until it reached 71 percent of 
USBP encounters in 2019 but dropped at the onset of the pandemic, in 
2020, to less than 26 percent. See also OHSS, Immigration 
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by 
Citizenship'').
    \258\ OHSS analysis of OIS Yearbook of Immigration Statistics 
1980-1999 and OHSS analysis of March 2024 OHSS Persist Dataset. See 
also OHSS, Immigration Enforcement and Legal Processes Monthly 
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW 
Border Encounters by Citizenship''). Nationality breakouts of border 
encounters are not available prior to 1980, but Mexicans accounted 
for 97 percent of encounters for all of 1980 through 1999 and never 
accounted for less than 96 percent in any fiscal year during that 
period.
---------------------------------------------------------------------------

    The change in the nationalities and demographics being encountered 
at the border has coincided with a dramatic increase in the number of 
individuals who claim fear when they are processed at the border. 
Between 2005 and 2015, the proportion of noncitizens encountered by CBP 
and processed for expedited removal who claimed fear ranged from 5 
percent at the low end to 26 percent at the high end.\259\ Driven by 
the changing demographics at the border, both the percentage of those 
processed for expedited removal as well as the percentage of those 
processed for expedited removal who claimed a fear of return or an 
intent to seek asylum generally increased during this time frame.\260\ 
This, in turn, has resulted in a steep increase in the number of 
credible fear interviews that USCIS is required to conduct.\261\
---------------------------------------------------------------------------

    \259\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \260\ The percentage of those processed via expedited removal 
fell again in 2019 due to resource constraints. OHSS analysis of 
March 2024 OHSS Persist Dataset.
    \261\ The share of noncitizens encountered by CBP at and between 
POEs who were processed through expedited removal increased from 6 
percent in FY 2005 to between 39 and 47 percent each year from FY 
2012 to FY 2018, but then dropped in FY 2019 because DHS was unable 
to scale up expedited removal processing in proportion to the 
substantial increase in USBP encounters. OHSS analysis of March 2024 
OHSS Persist Dataset.
---------------------------------------------------------------------------

    In 2023, a record 59 percent of encounters at and between POEs on 
the SWB that were processed for expedited removal resulted in fear 
claims. From 2016 to 2023, the percentage of SWB encounters processed 
for expedited removal who claimed a fear dipped below 41 percent just 
once, in FY 2020, the first year of the COVID-19

[[Page 48751]]

pandemic.\262\ The global COVID-19 pandemic briefly interrupted this 
trend, which has continued after the lifting of the Title 42 public 
health Order in May 2023. Between May 12, 2023, and the end of March 
2024, DHS processed a record number of individuals through expedited 
removal as it sought to maximize the consequences at the border, and 54 
percent of noncitizens processed for expedited removal indicated a fear 
of persecution or intent to seek asylum.\263\ As part of DHS's 
comprehensive effort to impose strengthened consequences at the border 
after the lifting of the Title 42 public health Order, USCIS reassigned 
a significant number of AOs to conduct credible fear interviews, which 
resulted in USCIS completing a record number of such interviews. In 
fact, USCIS conducted more interviews from SWB encounters during the 
span of ten and a half months after the lifting of the Title 42 public 
health Order than in any full fiscal year prior to 2023, and twice as 
many as the annual average from FY 2010 to FY 2019.\264\
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    \262\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \263\ OHSS analysis of data downloaded from CBP UIP on April 2, 
2024.
    \264\ OHSS analysis of data downloaded from CBP UIP on April 2, 
2024. Data on the exact number of SWB encounters processed for 
expedited removal who made fear claims is only available since FY 
2013; for the years prior to FY 2013 there was no full fiscal year 
in which the total number of USCIS fear claims was equal to the 
number of fear claims completed for SWB encounters processed for 
expedited removal between May 12, 2023, and March 31, 2024.
---------------------------------------------------------------------------

    As DHS transitioned from the enforcement of the Title 42 public 
health Order at the border to full use of its title 8 authorities after 
May 11, 2023, DHS's capacity constraints--and the impact of those 
constraints on DHS's ability to impose consequences on noncitizens who 
cross unlawfully or without authorization--have come increasingly into 
focus. Given these real resource constraints, DHS has had to make hard 
choices about whom it can prioritize for detention or refer into 
expedited removal.\265\ As a result of a lack of sufficient holding 
spaces, detention beds, and AOs, DHS has only been able to refer 
certain noncitizens into expedited removal--which, as detailed above, 
is the most efficient tool available under title 8 authorities to 
impose swift consequences for irregular migration. This means that DHS 
cannot impose consequences swiftly or predictably on most people 
encountered at the border, feeding the narrative pushed by smugglers 
that irregular migrants will be able to stay in the United States.\266\
---------------------------------------------------------------------------

    \265\ ICE, Fiscal Year 2023 ICE Annual Report 17-18 (Dec. 29, 
2023), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf.
    \266\ March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------

    The expedited removal process requires the outlay of significant 
Government resources. When a noncitizen in expedited removal indicates 
an intention to seek asylum or a fear of persecution, rather than being 
swiftly removed, they are referred to an AO for a credible fear 
interview and may seek review of any negative screening by an IJ--all 
of which takes time and Government resources. As described in further 
detail above, DHS has made significant process enhancements to reduce 
the overall time it takes for individuals to proceed through this 
process. However, the availability of sufficient numbers of AOs to 
conduct credible fear interviews is critical to DHS's ability to 
quickly adjudicate fear claims and deliver consequences to those who do 
not have a credible fear of persecution or torture.
    As described above, Congress has failed to provide the additional 
resources requested for USCIS that would have increased the number of 
AOs that are available to conduct credible fear interviews for SWB 
cases. This reality, combined with increases in encounters at the 
border, and increases in the proportion of noncitizens processed for 
expedited removal who claim fear of return, means that DHS cannot 
impose consequences swiftly or predictably on most people whom DHS 
encounters. Due to its resource constraints, the majority of 
individuals USBP encountered since May 11, 2023, were ultimately placed 
in section 240 removal proceedings,\267\ undercutting the effectiveness 
of the previous measures that have been implemented. This reality 
contributes to the vicious cycle described above in which increasing 
numbers of releases lead to increased migration, fueled by the 
narrative, pushed by smugglers, that migrants who are encountered at 
the border will be allowed to remain and work in the United States for 
long periods of time.
---------------------------------------------------------------------------

    \267\ OHSS analysis of March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------

    As a result of the changes to the nationalities and demographics 
being encountered at the border, and the associated increase in the 
rate of claiming fear by individuals encountered, the amount of 
resources required to deliver consequences quickly through referrals 
into expedited removal for the vast majority of individuals who claimed 
a fear in 2000 (when DHS's predecessor agency averaged 3,000 to 7,000 
daily encounters between POEs) or in 2010 (when DHS averaged 1,000 to 
2,000 daily encounters between POEs) was far lower than the amount of 
resources required to manage the same number of encounters today.\268\
---------------------------------------------------------------------------

    \268\ March 2024 OHSS Persist Dataset. The most notable change 
has been the rising share of non-Mexican nationals as a share of 
encounters, with Mexican nationals accounting for 98 percent of USBP 
encounters in FY 2000 and 89 percent in 2010. OHSS Persist Database 
March 31, 2024; see also OHSS, Immigration Enforcement and Legal 
Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last 
updated May 10, 2024) (``CBP SW Border Encounters by Citizenship'' 
and ``CBP SW Border Encounters by Family Status'').
---------------------------------------------------------------------------

    Of course, as noted above, DHS has been experiencing much higher 
encounter levels,\269\ and simply does not have the resources it would 
need to place into expedited removal the majority of those encountered 
by USBP who are amenable to such processing. Similarly, DHS has never 
had the resources to detain every individual encountered at the border 
through the pendency of their immigration removal proceedings--even 
during FY 2009 through FY 2020, when average encounters between POEs on 
the SWB were 1,200 a day. Encounters between POEs on the SWB are now 
more than triple that level, resulting in overcrowded USBP facilities, 
an immigration detention system that has regularly been at capacity, 
and an asylum system that has been crippled by enormous backlogs and 
cannot deliver timely decisions.\270\ When DHS does not

[[Page 48752]]

have the capacity to process individuals through expedited removal or 
detain noncitizens to await their proceedings, releasing individuals 
into the interior of the United States is generally the only option 
that is left.\271\ The need to release individuals at the border has 
increased over time and peaked during surges.
---------------------------------------------------------------------------

    \269\ Even as compared to the 2,000 to 7,000 daily encounters 
between POEs in 2000, the corresponding numbers in the recent past 
have been higher. In FY 2023, there were 3,300 to 7,300 such daily 
encounters, and from October 2023 through March 2024, the 
corresponding numbers are 4,000 to 8,300. March 2024 OHSS Persist 
Dataset.
    \270\ See OHSS analysis of data downloaded from UIP on April 2, 
2024. CBP completed approximately 1.7 million total encounters at 
the SWB in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY 
2023, with each year exceeding the previous record high of 1.6 
million in FY 2000. See OHSS analysis of March 2024 OHSS Persist 
Dataset. In December 2023, CBP also completed a single-month record 
of 302,000 encounters, almost one and a half times as many as the 
highest monthly number recorded prior to 2021 (209,000 in March 
2000) based on records available in the OHSS Persist Dataset for FY 
2000 to the present. Although some of the increase in encounters is 
explained by higher-than-normal numbers of repeat encounters of the 
same individual during the period in which noncitizens were expelled 
pursuant to the CDC's Title 42 public health Order, OHSS analysis of 
the March 2024 OHSS Persist Dataset indicates that unique encounters 
were also at record high levels. See also OHSS, Immigration 
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by 
Citizenship'' and ``CBP SW Border Encounters by Family Status'').
    CBP held an average of 21,863 noncitizens in custody each day 
during December 2023, averaging 104 percent of CBP's daily custody 
capacity (21,042) roughly each day for the entire month. OHSS 
analysis of data downloaded from UIP on February 14, 2024.
    EOIR had a backlog of over 2.7 million cases that were pending 
in the immigration courts at the end of the first quarter of FY 
2024. See EOIR, Adjudication Statistics: Pending Cases, New Cases, 
and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline; see also Ariel G. Ruiz-Soto et al., 
Shifting Realities at the U.S.-Mexico Border: Immigration 
Enforcement and Control in a Fast-Evolving Landscape, Migration 
Pol'y Inst., at 1 (Jan. 2024), https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf (``Insufficiently equipped to respond effectively to 
these and likely future changes, U.S. immigration agencies must 
perpetually react and shift operations according to their strained 
capacity and daily changes in migrant arrivals.''); UNHCR, Global 
Trends: Forced Displacement in 2022, at 2, 8-9, 12 (June 14, 2023), 
https://www.unhcr.org/global-trends-report-2022 (showing rapid 
global increases in forcibly displaced persons and other persons in 
need of international protection in 2021 and 2022, and projecting 
significant future increases).
    \271\ Consistent with the Departments' conclusion in the 
Circumvention of Lawful Pathways rule, the Departments believe the 
emergency border circumstances described in the Proclamation and 
this rule cannot be addressed by relying on the programmatic use of 
its contiguous territory return authority at section 235(b)(2)(C) of 
the INA, 8 U.S.C. 1225(b)(2)(C), due to resource constraints and 
foreign affairs considerations. See 88 FR at 31370; 88 FR at 11731.
---------------------------------------------------------------------------

    By contrast, when encounters (excluding UCs from non-contiguous 
countries and noncitizens determined to be inadmissible at a SWB POE) 
are below 1,500 per day, DHS will be able to refer most individuals it 
encounters into expedited removal and deliver a swift consequence to 
the majority of individuals it encounters who do not establish a legal 
basis to remain in the United States--in the form of a return or 
removal. Given limited congressional appropriations and agency funding 
levels, DHS has a finite capacity to deliver such consequences at the 
border, which is reflected in the number of individuals that can be 
processed through expedited removal on any given day. As detailed 
above, DHS over the past year has significantly streamlined the 
expedited removal process and has set records in terms of individuals 
placed in expedited removal by CBP at the SWB and credible fear 
interviews conducted by AOs. Given current resources, however, and in 
the absence of congressional action, there is a limit on how many 
people can be put through the process--and that limit directly informs 
the 1,500 threshold.
    From May 12, 2023, through March 2024, USBP has referred a daily 
average of over 900 individuals encountered at the SWB into the 
expedited removal process.\272\ During the same period, about 17 
percent of individuals encountered between POEs voluntarily returned to 
Mexico, had their removal orders reinstated at the border, or were 
subject to administrative removal pursuant to INA 238(b), 8 U.S.C. 
1228(b).\273\ This means that, at the 1,500-encounter level and 
assuming a similar level of voluntary repatriations and reinstatements, 
DHS would be able to refer for expedited removal more than 70 percent 
of the individuals who are not quickly repatriated.\274\ As discussed 
previously, of those individuals encountered by USBP and placed into 
expedited removal from May 12, 2023 to March 31, 2024, 65 percent have 
been quickly removable--either because they do not claim a fear, or 
because they are found not to have a credible fear and are ordered 
removed.\275\ This means that, at 1,500 daily encounters between POEs, 
and assuming similar fear claim rates, DHS would be able to quickly 
remove the majority of the people it processes at the border on any 
given day who have no legal basis to remain in the United States.\276\
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    \272\ OHSS analysis of data downloaded from UIP on April 2, 
2024.
    \273\ Based on comprehensive CBP processing dispositions for 
single adults, family units, and UCs from contiguous countries 
encountered May 12, 2023 to March 31, 2024; data downloaded from UIP 
on April 2, 2024.
    \274\ At 1,500 single adult, family unit, and UC from contiguous 
countries encounters between POEs per day and with 17 percent of 
such encounters voluntarily returning to Mexico or subject to 
reinstatement of a removal order or administrative removal, 1,250 
encounters would not be subject to rapid repatriation, including 
1,240 who would potentially be amenable to expedited removal. 
Further, assuming that CBP could process 900 people for expedited 
removal, the agency would have the ability to place 72 percent of 
people not subject to rapid repatriation and 73 percent of 
potentially amenable single adults and family units into expedited 
removal. OHSS analysis of data downloaded from UIP on April 2, 2024. 
Applying the rule even more broadly based on a lower threshold would 
also raise countervailing considerations, see supra note 250, and so 
the Departments have struck the balance reflected in the rule.
    \275\ OHSS analysis of data downloaded from UIP on April 2, 
2024.
    \276\ At 1,500 encounters of single adults, family units, and 
UCs from contiguous countries per day and assuming similar shares of 
encounters accept voluntary return or are subject to reinstatement 
of removal or administrative removal, about 250 people would be 
repatriated with one of these dispositions. Further, assuming 900 
encounters would be processed for expedited removal, and that 65 
percent of expedited removal encounters would be quickly removable, 
about 590 would be repatriated pursuant to an expedited removal 
order or withdrawal, yielding a total of about 830 repatriations 
(sums do not add due to rounding), or 56 percent of encounters.
---------------------------------------------------------------------------

    Simply put, at 1,500 daily encounters, DHS would be able to swiftly 
deliver a consequence to enough individuals to meaningfully impact 
migratory decisions and deter unlawful entries. DHS would also be able 
to minimize releases of those who are amenable to expedited removal or 
transfer them to ICE custody pending immigration proceedings. By 
contrast, above 2,500 encounters--the level at which the Proclamation 
and the rule would again apply--DHS's ability to impose such 
consequences is significantly lower and decreases rapidly as encounters 
increase beyond that level. At the 2,500-encounter level and assuming a 
similar level of voluntary repatriations and reinstatements described 
above, DHS would be able to place just 43 percent of the individuals 
who are not quickly repatriated into expedited removal--significantly 
less than the 70 percent under the 1,500-encounter threshold.\277\ This 
would, in turn, lead to a significant degradation of DHS's ability to 
impose consequences at the border for individuals who do not establish 
a legal basis to remain in the United States, with DHS only able to 
quickly remove or return substantially less than half of the 
individuals it encounters.\278\ Moreover, the percentage of people who 
can be referred to expedited removal and ultimately be quickly removed 
if they do not establish a legal basis to remain decreases rapidly as 
encounters increase beyond 2,500 given the baseline constraints 
outlined above.
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    \277\ At 2,500 single adult, family unit, and UC from contiguous 
countries encounters between POEs per day and with 17 percent of 
such encounters voluntarily returning to Mexico or subject to 
reinstatement of a removal order or administrative removal, 2,080 
encounters would not be subject to rapid repatriation. Further, 
assuming that CBP could process 900 people for expedited removal, 
the agency would have the ability to place 43 percent of people not 
subject to rapid repatriation into expedited removal. OHSS analysis 
of data downloaded from UIP on April 2, 2024.
    \278\ At 2,500 encounters of single adults, family units, and 
UCs from contiguous countries per day and assuming similar shares of 
encounters accept voluntary return or are subject to reinstatement 
of removal or administrative removal, about 420 people would be 
repatriated with one of these dispositions. Further, assuming 900 
encounters would be processed for expedited removal, and that 65 
percent of expedited removal encounters would be quickly removable, 
about 590 would be repatriated pursuant to an expedited removal 
order or withdrawal, yielding a total of about 1,010 repatriations 
(sums do not add due to rounding), or 40 percent of encounters.
---------------------------------------------------------------------------

    This difficulty in imposing swift consequences on individuals 
without a legal basis to remain in the United States during periods of 
elevated

[[Page 48753]]

encounters is borne out by both recent experience, which is detailed in 
Sections III.B.1 and 2 of this preamble, and by historical data. DHS 
historical data also clearly show the dichotomy between the outcomes 
for individuals processed at the border at the 1,500- and 2,500-
encounter levels. DHS data show that releases from CBP custody as a 
share of encounters have generally been highest during periods of 
sustained high-encounter levels, and lowest when encounters have been 
at 1,500 or below. For example, from FY 2013 through FY 2019, months 
with average daily USBP encounters of fewer than 1,500 per day resulted 
in a minimal level of releases due to capacity constraints at the 
border.\279\ During the 2013 to 2019 pre-pandemic period, USBP 
encounters only exceeded 1,500 per day for a sustained period from 
October 2018 to August 2019. During that 7-year stretch, months in 
which daily encounters were between 1,500 and 2,500 resulted in an 
average of 210 individuals released each day, while months in which 
daily encounters exceeded 2,500 resulted in approximately 1,300 
releases each day with CBP releasing as many as 46 percent of the 
individuals it processed pending section 240 removal proceedings.\280\
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    \279\ For FY 2013 to FY 2019, in months with fewer than 1,500 
encounters between POEs, USBP released an average of 11 encounters 
per day. OHSS analysis of March 2024 OHSS Persist Dataset.
    \280\ OHSS analysis of March 2024 OHSS Persist Dataset.
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    It is important to note, however, the demographics and 
nationalities encountered at the border significantly impact DHS's 
ability to impose timely consequences and the number of people who are 
ultimately released by CBP pending section 240 removal proceedings. 
This is especially true for periods when CBP has encountered more UCs, 
family units, or individuals from countries to which it is difficult to 
effectuate removals. During the 2013 to 2019 time frame--which forms 
the basis for the analysis in the preceding paragraph--the vast 
majority of encounters at the border were from Mexico, El Salvador, 
Guatemala, and Honduras--countries that are comparatively easy to 
return people to.\281\ Today, a much higher proportion of SWB 
encounters are from other countries that are comparatively much more 
difficult to return people to, including record numbers from the 
Eastern Hemisphere.\282\ At the same time, the proportion of encounters 
involving family units and UCs, although still high, is lower today 
than it was during periods of high numbers of encounters and releases 
in FY 2019.\283\ Although shifting demographics affect the Departments' 
capacity to deliver timely decisions and timely consequences at varying 
levels of encounters, it remains clear that with the challenging 
demographics being encountered today, DHS would have the ability to 
deliver a timely consequence to the majority of people it processes at 
the border when encounters are below 1,500--supporting the decision to 
suspend the application of the rule when DHS reaches that level of 
encounters over a 7-day average. Likewise, as discussed above, the 
Departments have concluded that it is reasonable to apply the rule when 
encounter levels rise above a 7-day average of 2,500 due to the sharp 
decrease in their ability to swiftly impose meaningful consequences at 
the border once encounters exceed that level.
---------------------------------------------------------------------------

    \281\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \282\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \283\ UCs and family units accounted for 65 percent of USBP 
encounters in FY 2019, compared to 45 percent in FY 2024 through 
March. OHSS analysis of March 2024 OHSS Persist Dataset.
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    Lastly, it is important to note that using a single threshold--for 
example, 1,500 encounters--to activate or deactivate the measures in 
this rule would pose significant challenges and not be operationally 
viable. Having a single threshold would likely lead to scenarios where 
the rule would be regularly activated and deactivated as the 7-day 
average rose above and below 1,500, which would have significant 
operational impacts for CBP, ICE, and USCIS, and be confusing for 
government personnel, migrants, and other key stakeholders. For 
example, the Departments will need to notify and provide guidance to 
their personnel to apply the provisions of this rule in connection with 
each activation and deactivation. These actions represent a burden on 
staff time and resources that would have negative operational impacts 
if activation or deactivation happened regularly. CBP and ICE will also 
face scenarios in which they would have many people in their custody 
some of whom would be subject to and others of whom would not be 
subject to the provisions of this rule, and CBP and ICE will need to 
keep track of which individuals needed to be processed under which 
procedures--something that could become extraordinarily complex and 
unwieldy if the rule were to be activated and deactivated regularly. 
Legal service providers and migrants would similarly face a great deal 
of confusion about when the provisions of this rule were in effect 
based upon a single threshold of 1,500 encounters to activate or 
deactivate the measures in this rule. The burden of tracking, 
identifying, and applying different standards that change back and 
forth over a matter of days is significantly more complex for USCIS 
personnel as they consider protection claims.
    For all of these reasons, it is important to ensure that there is a 
clear division between the levels at which the rule is deactivated and 
when it is activated. And to ensure that stakeholders are aware of when 
the rule is deactivated and activated, DHS will notify the public about 
Secretarial determinations of the encounter levels described in 
sections 2(a) and 2(b) of the Proclamation. As noted above, the 2,500-
encounter level is a good proxy for when DHS's ability to quickly 
impose consequences at the border for individuals who do not establish 
a legal basis to remain is becoming so degraded that it is likely to 
further incentivize additional unlawful crossings. It also has the 
benefit of increasing the time that would elapse between deactivations 
and activations, allowing DHS to ensure that its personnel are not 
having to constantly switch back and forth between different 
procedures.\284\
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    \284\ The Departments recognize that, due to the rule's 
approach, at a given encounter level between 1,500 and 2,500 
encounters per day--such as 2,000 encounters a day--whether the rule 
applies will be path dependent. If encounters have been above 2,500, 
the rule will apply. If encounters have been below 1,500, the rule 
will not apply. This is a necessary consequence of providing the 
clear division that the Departments have deemed necessary, and the 
Departments assess that adopting this approach best balances the 
relevant considerations.
---------------------------------------------------------------------------

    The exclusion of those determined to be inadmissible at a SWB POE 
from the 1,500- and 2,500-encounter thresholds is also reasonable in 
light of recent policy decisions, processing experience, and 
operational needs. Since May 12, 2023, SWB daily POE encounters have 
averaged 1,650--largely because DHS has been incentivizing individuals 
to present at POEs in a safe, orderly manner.\285\ This number has 
stayed relatively constant compared to the number of encounters between 
POEs, which have varied widely, from a low of 2,554 on May 21, 2023, to 
a high of 10,822 on December 18, 2023.\286\ The predictability in the 
number of POE encounters, paired with the processing efficiencies 
gained by the widespread use of the CBP One app, improves CBP's

[[Page 48754]]

ability to manage encounters at POEs. The vast majority of noncitizens 
who present at a SWB POE have done so after having registered with the 
CBP One app.\287\ Because such individuals have registered with the CBP 
One app, CBP can process these individuals more efficiently and in a 
more orderly way than individuals encountered between POEs.\288\ This 
is a critical element of our strategy to encourage the use of safe, 
orderly, and lawful pathways, as described above, to incentivize 
noncitizens to seek out lawful pathways instead of attempting to cross 
into the United States irregularly. CBP officers will determine the 
most appropriate processing disposition on a case-by-case basis, 
although DHS expects to generally issue such individuals an NTA for 
removal proceedings under section 240 of the INA.
---------------------------------------------------------------------------

    \285\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \286\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \287\ OHSS analysis of March 2024 OHSS Persist Dataset.
    \288\ See, e.g., 88 FR at 11719.
---------------------------------------------------------------------------

    In short, DHS has assessed that the emergency border circumstances 
that are described by the Proclamation and this rule--and that the 
President has concluded warrant the step of suspending and limiting 
entry--reasonably capture the capacity of the border security and 
immigration systems to deliver consequences in a timely manner to 
individuals who cross unlawfully or without authorization. Thus, the 
Departments have determined to tie the application of the rule's 
provisions to the date that the Proclamation takes effect, and to 
include a mechanism to temporarily halt the application of the rule's 
provisions when encounters between POEs reach 1,500 and to restart the 
application of its provisions if they once again rise above 2,500. 
Because the Departments intend for certain provisions of this rule to 
remain in effect in the event a court enjoins or otherwise renders 
inoperable the Proclamation, the Departments intend for the Secretary 
of Homeland Security to continue to make the factual determinations 
regarding the 1,500 and 2,500 thresholds described in this rule and in 
sections 2(a) and 2(b) of the Proclamation, even if the Proclamation is 
enjoined, in order to provide continuity during emergency border 
circumstances. Lastly, the Proclamation may be revoked by the President 
upon a determination that it is no longer needed.\289\
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    \289\ The Departments have not sought to apply the rule even 
after any revocation of the Proclamation by the President, because 
the Departments expect that any such revocation would only follow 
consultation with the Departments regarding the policy and 
operational implications of such an action. Moreover, a decision by 
the President would reflect important changed circumstances, and the 
Departments would want to take into account those changed 
circumstances in assessing the appropriate policy as to the issues 
covered by this rule.
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C. Section-by-Section Description of Amendments

1. 8 CFR 208.13 and 1208.13
    DHS and DOJ are adding a paragraph (g) to the end of 8 CFR 208.13 
and 1208.13, respectively, Establishing asylum eligibility, to explain 
when a noncitizen is potentially subject to this IFR's limitation on 
asylum eligibility and credible fear screening procedures and how this 
limitation and its associated procedures interact with the Lawful 
Pathways condition referenced in paragraph (f) of 8 CFR 208.13 and 
1208.13. Paragraph (g) refers the reader to the new regulatory 
provisions at 8 CFR 208.35 and 1208.35 that establish the limitation on 
eligibility for asylum where a noncitizen entered the United States 
across the southern border during emergency border circumstances.
2. 8 CFR 208.35
    DHS is adding to 8 CFR part 208, Procedures for Asylum and 
Withholding of Removal, a new subpart D, Eligibility for Aliens Who 
Enter the United States During Emergency Border Circumstances. Within 
subpart D, DHS is adding a new Sec.  208.35, Limitation on asylum 
eligibility and credible fear procedures for those who enter the United 
States during emergency border circumstances. This section sets forth a 
new limitation on asylum eligibility and screening procedures related 
to the application of such limitation in expedited removal proceedings 
and the conduct of credible fear screenings during the emergency border 
circumstances. This provision applies notwithstanding any contrary 
provision of part 208.
    Section 208.35 consists of the following provisions:
    Paragraph (a) sets forth the limitation on asylum eligibility. 
Under the rule, a noncitizen is ineligible for asylum if the noncitizen 
is described in Sec.  208.13(g) and not described in section 3(b) of 
the Proclamation. This approach is consistent with the general policy 
of the Proclamation and rule and provides important exceptions that 
continue to incentivize the use of safe, orderly, and lawful pathways, 
such as for those who arrive in the United States at a southwest land 
border POE pursuant to a process approved by the Secretary of Homeland 
Security.\290\
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    \290\ See DHS, Fact Sheet: Department of State and Department of 
Homeland Security Announce Additional Sweeping Measures To Humanely 
Manage Border through Deterrence, Enforcement, and Diplomacy (May 
10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.
---------------------------------------------------------------------------

    Paragraph (a)(2) contains provisions regarding an exception to the 
limitation on asylum eligibility that aligns with the means for 
rebutting the presumption of asylum ineligibility in the Circumvention 
of Lawful Pathways rule. See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). 
The exception applies if the noncitizen, or the noncitizen's family 
member as described in Sec.  208.30(c) with whom the noncitizen is 
traveling, demonstrates by a preponderance of the evidence 
exceptionally compelling circumstances, including that, at the time of 
entry, the noncitizen or a member of the noncitizen's family as 
described in Sec.  208.30(c) with whom the noncitizen is traveling:
     Faced an acute medical emergency;
     Faced an imminent and extreme threat to life or safety, 
such as an imminent threat of rape, kidnapping, torture, or murder; or
     Satisfied the definition of ``victim of a severe form of 
trafficking in persons'' provided in 8 CFR 214.11.
    Paragraph (a)(2)(ii) makes clear that where a noncitizen 
establishes one of the above, they shall necessarily have established 
exceptionally compelling circumstances. This exception for 
exceptionally compelling circumstances limits the potential adverse 
effects of the limitation on asylum eligibility on certain particularly 
vulnerable populations, and family members with whom they are 
traveling, without undermining the key policy imperative to 
disincentivize irregular migration during a time when encounters are 
above certain benchmarks.\291\ Paragraph (a)(2)(iii) deems those who 
have established exceptionally compelling circumstances for purposes of 
this asylum limitation or who are described in the provisions of the 
Proclamation as being excepted from its suspension and limitation on 
entry as having established exceptionally compelling circumstances for 
purposes of the Lawful Pathways condition. This provision is intended 
to simplify administration of this asylum limitation while it and the 
Circumvention of

[[Page 48755]]

Lawful Pathways rule are both operative.
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    \291\ See, e.g., 88 FR at 31325 (``These exceptions and 
opportunities for rebuttal are meant to ensure that migrants who are 
particularly vulnerable, who are in imminent danger, or who could 
not access the lawful pathways provided are not made ineligible for 
asylum by operation of the rebuttable presumption. Those who are not 
excepted from and are unable to rebut the presumption of 
ineligibility may still pursue statutory withholding of removal and 
protection under the CAT.'').
---------------------------------------------------------------------------

    Paragraph (b) prescribes procedures for considering the limitation 
on asylum eligibility during the credible fear screening process and 
for applying the ``reasonable probability'' standard in the event the 
Proclamation or the limitation on asylum eligibility are rendered 
inoperable by court order. Under paragraph (b)(1), the AO will first 
determine whether there is a significant possibility that the 
noncitizen is eligible for asylum in light of the limitation on asylum 
eligibility in paragraph (a). The paragraph sets forth three possible 
procedural scenarios depending on the AO's findings. First, where the 
AO determines that the noncitizen is subject to the limitation on 
asylum eligibility under paragraph (a)--including that there is not a 
significant possibility, see INA 235(b)(1)(B)(iii), 8 U.S.C. 
1225(b)(1)(B)(iii),\292\ that the noncitizen could establish an 
exception under section 3(b) of the Proclamation--and that there is not 
a significant possibility that the noncitizen could establish an 
exception to the limitation under paragraph (a)(2), the AO will enter a 
negative credible fear determination with respect to the noncitizen's 
asylum claim and continue to consider the noncitizen for potential 
eligibility for statutory withholding of removal and CAT protection 
under the procedures in paragraph (b)(2), as described below. See 8 CFR 
208.35(b)(1)(i). Second, where the AO determines that the noncitizen is 
not subject to this IFR's limitation on asylum eligibility because 
there is a significant possibility that the noncitizen could establish 
that they are not described in Sec.  208.13(g), the AO will follow the 
procedures for credible fear interviews relating to the Lawful Pathways 
condition in Sec.  208.33(b). See id. 208.35(b)(1)(ii). This provides 
that those noncitizens who are not subject to the Proclamation because 
they did not enter during emergency border circumstances are processed 
under the provisions governing the Lawful Pathways condition--and under 
Sec.  208.33(b)(1)(ii), if the noncitizen is not subject to that 
condition, they will be screened for a significant possibility of 
eligibility for statutory withholding of removal or CAT protection 
consistent with Sec.  208.30.\293\ Third, where the AO determines that 
the noncitizen is not subject to this IFR's limitation on asylum 
eligibility because there is a significant possibility that the 
noncitizen could establish either that they are described in section 
3(b) of the Proclamation or exceptionally compelling circumstances 
exist under paragraph (a)(2), the AO will conduct the screening 
consistent with 8 CFR 208.30. See id. 208.35(b)(1)(iii).
---------------------------------------------------------------------------

    \292\ In the Circumvention of Lawful Pathways rule, the 
Departments described how AOs would apply the limitation on asylum 
eligibility at issue there consistent with the statutory 
``significant possibility'' standard. See 88 FR at 31380. That 
discussion in the Circumvention of Lawful Pathways rule also applies 
to AOs' application of the limitation on asylum eligibility created 
by this IFR. As explained above in Section III.B.3.a of this 
preamble, AOs will rarely have grounds to reach a different result 
from the CBP immigration officers as to the application of the 
Proclamation or its exceptions.
    \293\ In such cases, consistent with the Circumvention of Lawful 
Pathways rule, DHS would also have discretion to refer the 
noncitizen to EOIR for section 240 removal proceedings. See Matter 
of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011); see also 88 FR at 
31348.
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    If the AO determines that the noncitizen is subject to paragraph 
(a) and cannot establish a significant possibility that they will be 
able to establish exceptionally compelling circumstances by a 
preponderance of the evidence per paragraph (a)(2), the AO will then 
assess whether the noncitizen has established a reasonable probability 
of persecution (meaning a reasonable probability of being persecuted 
because of their race, religion, nationality, membership in a 
particular social group, or political opinion) or torture, with respect 
to the designated country or countries of removal identified pursuant 
to section 241(b) of the INA, 8 U.S.C. 1231(b). See 8 CFR 
208.35(b)(2)(i). As noted above, for purposes of this section, 
reasonable probability means substantially more than a reasonable 
possibility, but somewhat less than more likely than not, that the 
noncitizen would be persecuted because of his or her race, religion, 
nationality, membership in a particular social group, or political 
opinion, or tortured, with respect to the designated country or 
countries of removal. See id.
    If the noncitizen establishes a reasonable probability of 
persecution or torture with respect to the designated country or 
countries of removal, DHS will issue a positive credible fear 
determination and follow the procedures in Sec.  208.30(f). See id. 
208.35(b)(2)(ii). Under Sec.  208.30(f), USCIS may issue an NTA for 
removal proceedings under section 240 of the INA, or, in its 
discretion, retain the application for an asylum merits interview 
pursuant to Sec.  208.2(a)(1)(ii). Under the regulations governing the 
asylum merits interview process, where USCIS exercises its discretion 
to retain jurisdiction over an application for asylum of a noncitizen 
found to have a credible fear of persecution or torture pursuant to 
Sec.  208.30(f), the written record of the positive credible fear 
determination is treated as the asylum application. 8 CFR 208.3(a)(2). 
Under this IFR, however, noncitizens who are subject to the limitation 
on asylum eligibility under 8 CFR 208.35(a), and fail to show a 
significant possibility of being able to establish an exception by a 
preponderance of the evidence at the credible fear interview, will 
receive a negative credible fear determination with respect to their 
application for asylum, pursuant to Sec.  208.35(b)(1)(i), but could go 
on to receive a positive credible fear determination with respect to a 
potential claim for statutory withholding of removal or protection 
under the CAT at the reasonable probability of persecution or torture 
standard. See id. 208.35(b)(2).
    In the event that USCIS were to exercise its discretion to place 
such a case into the asylum merits interview process, the credible fear 
record in that case would have found the applicant unable to establish 
eligibility for asylum under Sec.  208.35(a) and the positive 
determination would be based only on a potential statutory withholding 
of removal or protection under the CAT claim. USCIS may thus need 
supplementary information to constitute an application for asylum, as 
the asylum claim may not have been fully explored in the credible fear 
record given that the AO determined the applicant would have been 
ineligible for asylum based on the rule's limitation on asylum 
eligibility. Therefore, Sec.  208.35(b)(2)(ii) allows USCIS to require 
a noncitizen who received a negative credible fear determination with 
respect to their application for asylum pursuant to Sec.  
208.35(b)(1)(i), but whose application is nonetheless retained by USCIS 
for asylum merits interview proceedings, to submit an asylum 
application to USCIS within 30 days of service of the positive credible 
fear determination, to ensure that there is a record of their potential 
asylum claim to serve as a substantive asylum application. For purposes 
of the filing and receipt date, the date of service of the positive 
credible fear determination will continue to serve as the date of 
filing pursuant to Sec.  208.3(a)(2); however, if USCIS requires the 
submission of an asylum application, the timelines laid out in Sec.  
208.9(a)(1) and Sec.  208.9(e)(2) may be delayed up to 15 days, 
considering the need to allow extra time for the submission of an 
asylum application to USCIS following service of the positive credible 
fear determination. See id. 208.35(b)(2)(ii). Under this IFR, if the 
applicant does not submit the

[[Page 48756]]

application within the time period required, USCIS will refer the 
noncitizen to section 240 removal proceedings before an IJ. USCIS does 
not foresee that it would be a prudent use of resources to place such 
cases into the asylum merits interview process, considering that USCIS 
has a finite number of AOs, and it is more efficient at present to 
assign work in a manner that maximizes the number of credible fear 
interviews USCIS can conduct at the border. Nevertheless, the IFR 
preserves the flexibility for USCIS to exercise its discretion to 
potentially place such cases into the asylum merits interview process 
(albeit with the potential addition of a supplementary application for 
asylum) should available resources and circumstances ever be such that 
it would be prudent to place such cases into the asylum merits 
interview process.
    If the noncitizen fails to establish a reasonable probability of 
persecution or torture with respect to all designated countries of 
removal, the AO will provide the noncitizen with a written notice of 
decision and inquire whether the noncitizen wishes to have an IJ review 
the negative credible fear determination. See id. 208.35(b)(2)(iii). If 
the noncitizen indicates on the Record of Negative Fear that they 
request IJ review of the adverse finding, see id. 208.35(b)(2)(iv), the 
AO will serve the noncitizen with a Notice of Referral to Immigration 
Judge, see id. 208.35(b)(2)(v). See 88 FR at 11747; 88 FR at 31423. The 
record of determination, including copies of the Notice of Referral to 
Immigration Judge, the AO's notes, the summary of the material facts, 
and other materials upon which the AO based their determination 
regarding the applicability of the condition on asylum eligibility 
(which, in cases where the limitation on asylum eligibility created by 
this IFR applies, includes materials showing the relevant known entry 
date), will be provided to the IJ with the negative determination. See 
8 CFR 208.35(b)(2)(v). The IJ would then review the case consistent 
with Sec.  1208.35, described below.
    If, following IJ review, the IJ makes a positive credible fear 
determination under Sec.  1208.35(b)(2)(iii) or Sec.  1208.35(b)(4), 
the case will proceed under Sec.  1208.30(g)(2)(iv)(B). See id. 
208.35(b)(2)(v)(A). The IJ may vacate the Notice and Order of Expedited 
Removal and refer the case back to DHS for further proceedings 
consistent with 8 CFR 1208.2(a)(1)(ii). See id. 1208.30(g)(2)(iv)(B). 
Alternatively, DHS may commence section 240 removal proceedings, during 
which time the noncitizen may file an application for asylum, statutory 
withholding of removal, and CAT protection in accordance with Sec.  
1208.4(b)(3)(i). See id. 1208.30(g)(2)(iv)(B).
    If the IJ makes a negative credible fear determination, however, 
the case will be returned to DHS for removal of the noncitizen. See id. 
208.35(b)(2)(v)(B). Consistent with the purpose of the expedited 
removal process and this IFR, there would be no appeal from the IJ's 
decision and DHS would not accept requests for reconsideration. See id. 
USCIS may, however, in its sole discretion, reconsider a negative 
determination. See id.; 88 FR at 11747; 88 FR at 31418-19.
    Paragraph (b)(3) applies in the event that the limitation on asylum 
eligibility in paragraph (a) is rendered inoperative by court order. In 
such circumstance, those who enter during emergency border 
circumstances and who are found not to have a significant possibility 
of eligibility for asylum because of the Lawful Pathways condition will 
be screened for eligibility for statutory withholding of removal and 
CAT protection under the ``reasonable probability'' screening standard. 
This will ensure continued applicability of that standard during 
emergency border circumstances, even absent the rule's limitation on 
asylum eligibility. The Departments acknowledge that under this 
approach, not all who would have been subject to the higher screening 
standard if the limitation remained in force would be subject to it in 
the event of an injunction--i.e., those who do not travel through a 
country other than their country of citizenship, nationality, or, if 
stateless, last habitual residence; those excepted from the Lawful 
Pathways condition under the exceptions at 8 CFR 208.33(a)(2)(ii)(A) 
and (C); those excepted from the Lawful Pathways condition because they 
present at a POE without a pre-scheduled time and place and demonstrate 
that it was not possible to access or use the DHS scheduling system due 
to language barrier, illiteracy, significant technical failure, or 
other ongoing and serious obstacle; and those who enter across the 
maritime borders covered by the Proclamation that are not covered by 
the Lawful Pathways condition. The Departments have adopted a somewhat 
narrower scope for the standard to avoid a circumstance where AOs and 
IJs would be required to analyze both the applicability of the Lawful 
Pathways condition and then also whether the noncitizen would otherwise 
be subject to the rule's limitation--which could complicate and 
increase the time required to conduct credible fear screenings. The 
Departments believe the approach adopted strikes the right balance 
between the interest in applying the screening standard to those to 
whom it would otherwise apply and administrability in the event the 
limitation on asylum eligibility is rendered inoperative by court 
order. The Departments request comment on whether to expressly expand 
this provision to also apply to those who are found not to have a 
significant possibility of eligibility for asylum because they are 
barred from asylum due to a mandatory bar to asylum eligibility if the 
rule Application of Certain Mandatory Bars in Fear Screenings, 89 FR 
41347 (May 13, 2024), is finalized.
    Paragraph (c) contains a family unity provision that parallels and 
serves the same purposes as the DOJ family unity provision in the 
Circumvention of Lawful Pathways rule. See 8 CFR 1208.33(c). The 
paragraph specifies that a noncitizen who would be eligible for asylum 
but for the limitation on eligibility set forth in the IFR, the 
condition set forth in the Circumvention of Lawful Pathways rule, or 
both, may meet the family unity exception where the other requirements 
are met. The expressly permissive, discretionary nature of this 
provision, which owes in part to the considerations described earlier 
in this section with respect to asylum merits interviews, distinguishes 
it from the parallel DOJ provision in the Circumvention of Lawful 
Pathways rule and the parallel DOJ provision described in the next 
section of this preamble.
    Paragraph (d) mirrors 8 CFR 208.33(c) and 1208.33(d) and specifies 
the ongoing applicability of the limitation on asylum eligibility by 
providing that it shall apply to ``any asylum application'' that is 
filed by a covered noncitizen ``regardless of when the application is 
filed and adjudicated.'' Id. 208.35(d)(1). The Departments have 
excepted from this ongoing application of the limitation on asylum 
eligibility certain noncitizens who enter the United States during 
emergency border circumstances while under the age of 18 and who later 
seek asylum as principal applicants so long as the asylum application 
is filed after the period of time described in Sec.  208.13(g) during 
which the noncitizen entered. See id. 208.35(d)(2). Commenters on the 
Circumvention of Lawful Pathways rule raised concerns about the impact 
of that rule on children who arrive as part of a family unit and who 
are thus subject to the decision-making of their parents. 88 FR at 
31320. The Departments decided to adopt a provision excepting

[[Page 48757]]

such children from that rule in certain circumstances after the two-
year period ends. See 8 CFR 208.33(c)(2), 1208.33(d)(2). The 
Departments recognized that children who enter with their families are 
generally traveling due to their parents' decision-making. 88 FR at 
31320. The Departments believe that these considerations are also 
relevant to this rule and have decided to adopt a similar approach as 
that adopted in the Circumvention of Lawful Pathways rule.
    The Departments considered whether to except family units, or 
children who are part of family units, from the limitation on asylum 
eligibility entirely. The Departments decline to adopt such an 
approach. Excepting all family units that include minor children could 
incentivize families who otherwise would not make the dangerous journey 
and cross unlawfully to do so. And excepting only the child could 
inadvertently lead to the separation of a family in many cases because 
every child would have to be treated separately from their family 
during the credible fear screening, as they would not be subject to the 
limitation but their parents could be. Although accompanied children 
remain subject to the limitation on asylum eligibility generally, the 
Departments have determined that the limitation should not apply to 
them in any application for asylum they file after the relevant period, 
but only if they apply as a principal (as opposed to a derivative) 
applicant.
    The Departments also considered applying a specific calendar date 
to this provision, similar to the approach taken by the Departments in 
the Circumvention of Lawful Pathways rule.\294\ The Departments 
determined that such a provision would be challenging to implement 
because the Departments have not identified a date certain upon which 
emergency border circumstances are expected to discontinue. The 
Departments believe that the key purpose of an asylum application 
waiting period--protecting against any perceived incentive for family 
units to migrate irregularly--is adequately served by a requirement 
that the applicable period of emergency border circumstances is no 
longer in place at the time of application. For that same reason, the 
Departments do not believe it is necessary to make this exception 
unavailable during any period of emergency border circumstances; 
instead, this exception will be available after the end of the 
emergency border circumstance during which the applicant entered. 
Because noncitizens will not know in advance when the emergency border 
circumstance will end, and when another emergency border circumstance 
might occur, the approach adopted in the rule addresses noncitizens' 
incentives without restricting this exception more than is necessary.
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    \294\ Under that rule, the Lawful Pathways condition does not 
apply to certain asylum applications filed after May 11, 2025--two 
years after that rule's initial issuance. 8 CFR 208.33(c)(2), 
1208.33(d)(2); 88 FR at 31449.
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    The Departments believe this approach balances the interest in 
ensuring the limitation has an impact on behavior, while at the same 
time recognizing the special circumstance of children who enter in a 
manner that triggers the limitation, likely without intending to do so 
or being able to form an understanding of the consequences. 
Specifically, if the Departments were to extend this exception to 
children who filed as a derivative, the Departments would risk 
incentivizing families to seek to prolong their proceedings to file 
their asylum applications after the end of the circumstances leading to 
the suspension and limitation on entry, undermining the Departments' 
interest in efficient adjudications. In addition, any family that did 
so would be able to avoid the applicability of the limitation entirely, 
by virtue of the rule's family unity provision. The Departments have 
decided not to include such a broad exception, in light of the urgent 
need to gain efficiencies in the expedited removal process and dissuade 
entry during the circumstances described in the Proclamation and this 
rule.
    Finally, DHS is including a severability clause in this provision. 
See 8 CFR 208.35(e). If any provision of this section, Sec.  235.15, or 
the Proclamation is held to be invalid or unenforceable by its terms, 
or as applied to any person or circumstance, DHS intends that the 
provision be construed so as to continue to give the maximum effect to 
the provision permitted by law, unless such holding is that the 
provision is wholly invalid and unenforceable, in which event the 
provision should be severed from the remainder of this section and the 
holding should not affect the remainder of this section or the 
application of the provision to persons not similarly situated or to 
dissimilar circumstances. Indeed, in this rule, the Departments have 
sought to avoid describing ``emergency border circumstances'' as the 
time period during which the Proclamation is in effect, because the 
Departments intend for certain provisions of this rule to remain in 
effect in the event a court enjoins or otherwise renders inoperable the 
Proclamation or this rule's limitation on asylum eligibility. This 
approach is consistent with the nature of the rule as an emergency 
measure and reflects DHS's determination that the limitation on asylum 
eligibility will improve the border security and immigration systems' 
capacity to safely process migrants during the circumstances described 
in the Proclamation and this rule. For example, even in the absence of 
the limitation on asylum eligibility, as expressly set forth in 
paragraph (b)(3), the Department intends that the ``reasonable 
probability'' standard be used for screening for eligibility for 
statutory withholding of removal and CAT protection for those who would 
have been subject to the limitation on asylum if they are otherwise 
unable to establish a credible fear of persecution for asylum purposes, 
including but not limited to because they are subject to the Lawful 
Pathways rebuttable presumption. Similarly, even in the absence of the 
new provision at 8 CFR 235.15 discussed below, the changes made in 
Sec.  208.35 are expected to prove helpful in the emergency 
circumstances described by the Proclamation and the rule. See id. 
208.35(e).
3. 8 CFR 1208.35
    Like DHS's addition to 8 CFR part 208, DOJ is adding to 8 CFR part 
1208, Procedures for Asylum and Withholding of Removal, a new subpart 
D, Eligibility for Aliens Who Enter the United States During Emergency 
Border Circumstances. Within subpart D, DOJ is adding a new Sec.  
1208.35, Limitation on asylum eligibility and credible fear procedures 
for those who enter the United States during emergency border 
circumstances. This section sets forth a new limitation on asylum 
eligibility and procedures related to IJ review of credible fear 
determinations in expedited removal proceedings during emergency border 
circumstances. This provision applies notwithstanding any contrary 
provision in EOIR's regulations. Section 1208.35 consists of the 
following provisions:
    Paragraph (a) mirrors new Sec.  208.35(a), discussed above.
    Paragraph (b) provides procedures for credible fear determinations. 
Under these procedures, when a noncitizen has requested IJ review of an 
AO's negative credible fear determination, the IJ will evaluate the 
case de novo, 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 IJ. See 8 CFR 1208.35(b)(1). The 
paragraph sets forth three possible procedural scenarios depending on 
the IJ's determinations. First, where the IJ determines that the

[[Page 48758]]

noncitizen is not subject to this IFR's limitation on asylum 
eligibility because there is a significant possibility that the 
noncitizen could establish that they are not described in Sec.  
1208.13(g), the IJ will follow the procedures for credible fear 
interviews relating to the Lawful Pathways condition in Sec.  
1208.33(b). See id. 1208.35(b)(2)(i).\295\ This provides that those 
noncitizens who did not enter during emergency border circumstances are 
processed under the provisions governing the Lawful Pathways 
condition--and under Sec.  1208.33(b)(2)(i), if the noncitizen is not 
subject to that condition they will be screened for a significant 
possibility of eligibility for statutory withholding of removal or CAT 
protection consistent with Sec.  208.30. Second, where the IJ 
determines that the noncitizen is not subject to this IFR's limitation 
on asylum eligibility because there is a significant possibility that 
the noncitizen could establish either that they are described in 
section 3(b) of the Proclamation or exceptionally compelling 
circumstances exist under paragraph (a)(2), the IJ will follow the 
procedures in 8 CFR 1208.30. See id. 1208.35(b)(2)(ii). Third, where 
the IJ determines that the IFR's limitation on asylum eligibility 
applies--including that there is not a significant possibility that the 
noncitizen could establish an exception under section 3(b) of the 
Proclamation--and that there is not a significant possibility that the 
noncitizen could establish an exception under paragraph (a)(2) of the 
limitation, the IJ will apply the Circumvention of Lawful Pathways 
rule's procedures set forth in Sec.  1208.33(b)(2)(ii), except that the 
IJ will apply a ``reasonable probability'' standard to parallel the 
standard adopted by DHS. See id. 1208.35(b)(2)(iii).
---------------------------------------------------------------------------

    \295\ As explained above regarding AOs, the discussion in the 
Circumvention of Lawful Pathways rule regarding how AOs would apply 
the limitation on asylum eligibility at issue there consistent with 
the statutory ``significant possibility'' standard, see 88 FR at 
31380, is equally applicable to IJs' application of the limitation 
on asylum eligibility created by this IFR. As explained above in 
Section III.B.3.a of this preamble, IJs will rarely have grounds to 
reach a different result from the CBP immigration officers as to the 
application of the Proclamation or its exceptions.
---------------------------------------------------------------------------

    Paragraph (b)(4), mirrors new Sec.  208.35(b)(3), discussed above.
    Paragraph (c) contains a family unity provision that parallels and 
serves the same purposes as the family unity provision in the 
Circumvention of Lawful Pathways rule. See id. 1208.33(c), 1208.35(c). 
The paragraph specifies that a noncitizen who would be eligible for 
asylum but for the limitation on eligibility set forth in the IFR, the 
condition set forth in the Circumvention of Lawful Pathways rule, or 
both, may meet the family unity exception where the other requirements 
are met.
    Paragraph (d) mirrors new Sec.  208.35(d), discussed above.
    Paragraph (e) contains a severability provision that serves a 
similar purpose to the provision in Sec.  208.35(e) described above. If 
any provision of this section or the Proclamation is held to be invalid 
or unenforceable by its terms, or as applied to any person or 
circumstance, DOJ intends that the provision be construed so as to 
continue to give the maximum effect to the provision permitted by law, 
unless such holding is that the provision is wholly invalid and 
unenforceable, in which event the provision should be severed from the 
remainder of this section and the holding should not affect the 
remainder of this section or the application of the provision to 
persons not similarly situated or to dissimilar circumstances. This 
approach is consistent with the nature of the rule as an emergency 
measure and reflects DOJ's determination that the limitation on asylum 
eligibility will improve the border security and immigration systems' 
capacity to safely process migrants during the circumstances described 
in the Proclamation and this rule. For example, as set forth explicitly 
in paragraph (b)(4), even in the absence of the limitation on asylum 
eligibility, the Department intends that the ``reasonable probability'' 
standard be used for screening for eligibility for statutory 
withholding of removal and CAT protection for those who would have been 
subject to the limitation on asylum if they are otherwise unable to 
establish a credible fear of persecution for asylum purposes, including 
but not limited to because they are subject to the Lawful Pathways 
rebuttable presumption. See id. 1208.35(e).
4. 8 CFR 235.15
    DHS is adding to 8 CFR part 235, Inspection of Persons Applying for 
Admission, a new Sec.  235.15, Inadmissible aliens and expedited 
removal during emergency border circumstances. New 8 CFR 235.15 will 
further streamline aspects of the expedited removal process by 
effectively replacing paragraphs (b)(2)(i) and (b)(4)(i) of 8 CFR 235.3 
for those individuals described in Sec.  235.3(b)(1)(i) or (ii) and who 
are described in Sec.  208.13(g) but not described in section 3(b) of 
the Proclamation. See 8 CFR 235.15. The changes would not affect 
implementation of 8 CFR 235.3(b)(4)(ii) or any other portion of 8 CFR 
235.3. See id. The changes are as follows.
    First, under 8 CFR 235.3(b)(2)(i), the record of proceeding 
includes a sworn statement using Form I-867AB, Record of Sworn 
Statement in Proceedings under Section 235(b)(1) of the Act. Under the 
existing regulations, the examining immigration officer reads (or has 
read) to the noncitizen all information contained on Form I-867A. 
Following questioning and recording of the noncitizen's statement 
regarding identity, alienage, and inadmissibility, the examining 
immigration officer records the noncitizen's response to the questions 
contained on Form I-867B, and has the noncitizen read (or has read to 
the noncitizen) the statement, and the noncitizen signs and initials 
each page of the statement and each correction, if any.
    DHS is adding a new 8 CFR 235.15(b)(2)(i) to apply to certain 
noncitizens instead of this current process during emergency border 
circumstances. Under this procedure, Forms I-867A and I-867B will no 
longer be mandated in such circumstances. Instead, the immigration 
officer shall advise the individual of the charges against them on the 
Form I-860 and give him or her an opportunity to respond to those 
charges. See 8 CFR 235.15(b)(2)(i)(B). This provision does not require 
that the response be done through a sworn statement. See id. Consistent 
with current regulations, however, the inspecting officer must obtain 
supervisory concurrence of an expedited removal order in accordance 
with Sec.  235.3(b)(7). Id. Moreover, consistent with current 
regulations, the examining immigration official shall serve the 
noncitizen with Form I-860, and the noncitizen shall be required to 
sign the form acknowledging receipt. Id. The new 8 CFR 235.15(b)(2)(i) 
no longer mandates that the signature occur on the reverse, but 
preserves the requirement that the noncitizen be required to sign, 
allowing greater flexibility for location of signature blocks on the 
document. See id. 235.3(b)(2)(i). The new provision maintains the 
requirement that interpretative assistance shall be used if necessary 
to communicate with the noncitizen. Id. 235.3(b)(2)(i)(B). The new 8 
CFR 235.15(b)(2)(i) also allows for greater flexibility regarding how 
DHS records the information that supports the finding that the 
noncitizen is inadmissible and subject to expedited removal. This 
operational flexibility is consistent with the President's 
determination that emergency border circumstances are present such that 
the suspension and limitation on entry is warranted.

[[Page 48759]]

    Second, under 8 CFR 235.3(b)(4), if a noncitizen subject to the 
expedited removal provisions indicates an intention to apply for 
asylum, or expresses a fear of persecution or torture, or a fear of 
return to his or her country, the inspecting officer does not proceed 
further with removal of the noncitizen until the noncitizen has been 
referred for an interview by an AO in accordance with 8 CFR 208.30.
    Instead of this current process, DHS is adding a new 8 CFR 
235.15(b)(4), applicable to those who (1) are described in Sec.  
208.13(g), (2) are not described in section 3(b) of the Proclamation, 
and (3) are processed for expedited removal. Under this provision the 
immigration officer would refer the noncitizen to an AO if the 
noncitizen manifests a fear of return or affirmatively expresses an 
intention to apply for asylum, or affirmatively expresses a fear of 
persecution or torture, or a fear of return to his or her country or 
the country of removal.
    Third, under 8 CFR 235.3(b)(4)(i), the referring officer provides 
the noncitizen with a written disclosure on Form M-444, Information 
About Credible Fear Interview, describing (1) the purpose of the 
referral and description of the credible fear interview process; (2) 
the right to consult with other persons prior to the interview and any 
review thereof at no expense to the United States Government; (3) the 
right to request a review by an IJ of the AO's credible fear 
determination; and (4) the consequences of failure to establish a 
credible fear of persecution or torture. New 8 CFR 235.15(b)(4) will 
simply require that an immigration officer provide ``a written 
disclosure describing the purpose of the referral and the credible fear 
interview process; the right to consult with other persons prior to the 
interview and any review thereof at no expense to the United States 
Government; the right to request a review by an IJ of the AO's credible 
fear determination; and the consequences of failure to establish a 
credible fear of persecution or torture.'' 8 CFR 235.15(b)(4)(i)(B). 
Thus, while maintaining the substance of the information that must be 
provided to the noncitizen, the regulation removes the requirement that 
it be on a particular form, allowing for greater flexibility in how the 
information is distributed.
    Finally, DHS is including a severability clause in this provision. 
See id. 235.15(g). DHS believes that each of these changes can function 
sensibly without the others, given that each change is independently 
seeking to provide greater flexibility during a time when the 
suspension and limitation on entry is in effect, while still protecting 
the important ability of individuals to seek protection from removal. 
DHS further believes that even if a court order enjoins or vacates the 
Proclamation or provisions other than Sec.  235.15 of this rule, the 
provisions in Sec.  235.15 can continue to apply to those described in 
Sec.  208.13(g) and not described in section 3(b) of the Proclamation, 
even if they cannot be subject to those provisions by operation of such 
court order.

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    Under the Administrative Procedure Act (``APA''), agencies must 
generally provide ``notice of proposed rule making'' in the Federal 
Register and, after such notice, ``give interested persons an 
opportunity to participate in the rule making through submission of 
written data, views, or arguments.'' 5 U.S.C. 553(b) and (c). The APA 
further provides that the required publication or service of a 
substantive rule shall be made not less than 30 days before its 
effective date, except in certain circumstances. Id. 553(d). Consistent 
with the APA, the Departments have not invoked these procedures because 
(1) this rule involves a foreign affairs function of the United States 
and thus is excepted from such requirements, id. 553(a)(1), and (2) the 
Departments have found good cause to proceed with an immediately 
effective interim final rule, id. 553(b)(B), 553(d)(3), for the reasons 
explained below. At the same time, the Departments seek and welcome 
post-promulgation comments on this IFR.
1. Foreign Affairs
    This rule is excepted from the APA's notice-and-comment and 
delayed-effective-date requirements because it involves a ``foreign 
affairs function of the United States.'' 5 U.S.C. 553(a)(1). Courts 
have held that this exception applies when the rule in question ``is 
clearly and directly involved in a foreign affairs function.'' \296\ In 
addition, although the text of the APA does not require an agency 
invoking this exception to show that such procedures may result in 
``definitely undesirable international consequences,'' some courts have 
required such a showing. Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 
2008) (quotation marks omitted).\297\ This rule satisfies both 
standards.
---------------------------------------------------------------------------

    \296\ E.B. v. U.S. Dep`t of State, 583 F. Supp. 3d 58, 63 
(D.D.C. 2022) (cleaned up); see Mast Indus., Inc. v. Regan, 596 F. 
Supp. 1567, 1582 (Ct. Int'l. Trade 1984); see also Am. Ass'n of 
Exps. & Imps. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) 
(holding that the exception applies where a rule is ``linked 
intimately with the Government's overall political agenda concerning 
relations with another country'').
    \297\ See, e.g., Rajah, 544 F.3d at 437 (``There are at least 
three definitely undesirable international consequences that would 
follow from notice and comment rulemaking. First, sensitive foreign 
intelligence might be revealed in the course of explaining why some 
of a particular nation's citizens are regarded as a threat. Second, 
relations with other countries might be impaired if the government 
were to conduct and resolve a public debate over why some citizens 
of particular countries were a potential danger to our security. 
Third, the process would be slow and cumbersome, diminishing our 
ability to collect intelligence regarding, and enhance defenses in 
anticipation of, a potential attack by foreign terrorists.''); see 
also Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) 
(``For the [foreign affairs] exception to apply, the public 
rulemaking provisions should provoke definitely undesirable 
international consequences.''). But see E.B., 583 F. Supp. 3d at 64-
66 (rejecting the ``provoke definitely undesirable international 
consequences'' standard).
---------------------------------------------------------------------------

    The United States' border management strategy is predicated on the 
belief that migration is a shared responsibility among all countries in 
the region--a fact reflected in the intensive and concerted diplomatic 
outreach on migration issues that DHS and the Department of State have 
made with partners throughout the Western Hemisphere. This strategy 
includes the Los Angeles Declaration on Migration and Protection, which 
was joined by leaders during the Summit of the Americas on June 10, 
2022, and has been endorsed by 22 countries.\298\ Under the umbrella of 
this framework, the United States has been working closely with its 
foreign partners to manage the unprecedented levels of migration that 
countries throughout the region have recently been experiencing, 
including on efforts to: expand access to, and increase, lawful 
pathways, such as the Safe Mobility Office initiative; \299\ conduct 
joint enforcement efforts, such as the Dari[eacute]n Campaign with 
Colombia and Panama and the mirrored patrols \300\ with the Government 
of Mexico along

[[Page 48760]]

our shared border; \301\ and share information, technical assistance, 
and best practices.\302\ The United States and endorsing countries 
continue to progress and expand upon our shared commitments made under 
this framework.\303\
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    \298\ See Los Angeles Declaration on Migration and Protection, 
Endorsing Countries, https://losangelesdeclaration.com/endorsing-countries (last visited May 27, 2024).
    \299\ See U.S. Dep't of State, Safe Mobility Initiative, https://www.state.gov/refugee-admissions/safe-mobility-initiative (last 
visited May 27, 2024).
    \300\ See CBP, Readout: U.S.-Mexico meeting on joint actions to 
further enhance border security (Sept. 24, 2023), https://www.cbp.gov/newsroom/national-media-release/readout-us-mexico-meeting-joint-actions-further-enhance-border (noting that CBP 
encouraged mirrored patrols); U.S. Dep't of State, Third Meeting of 
the U.S.-Mexico High-Level Security Dialogue--Fact Sheet (Oct. 13, 
2023), https://www.state.gov/third-meeting-of-the-u-s-mexico-high-level-security-dialogue/ (noting that ``CBP and INM regularly 
coordinate enforcement efforts at the border through mirrored 
patrols,'' which suggests that those patrols were occurring).
    \301\ See DHS, Trilateral Statement (Apr. 11, 2023), https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
    \302\ See, e.g., Creating a Comprehensive Regional Framework To 
Address the Causes of Migration, To Manage Migration Throughout 
North and Central America, and To Provide Safe and Orderly 
Processing of Asylum Seekers at the United States Border, Exec. 
Order 14010, 86 FR 8267, 8270 (Feb. 2, 2021); The White House, Los 
Angeles Declaration on Migration and Protection (June 10, 2022), 
https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/; The 
White House, Fact Sheet: U.S.-Mexico High-Level Security Dialogue 
(Oct. 8, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/08/fact-sheet-u-s-mexico-high-level-security-dialogue/; U.S. Dep't of State, Fact Sheet: Third Meeting of the 
U.S.-Mexico High-Level Security Dialogue (Oct. 13, 2023), https://www.state.gov/third-meeting-of-the-u-s-mexico-high-level-security-dialogue/.
    \303\ See The White House, Fact Sheet: Third Ministerial Meeting 
on the Los Angeles Declaration On Migration and Protection in 
Guatemala (May 7, 2024),
---------------------------------------------------------------------------

    This international coordination has yielded important results. A 
number of foreign partners, including Mexico, Panama, and Colombia, 
announced significantly enhanced efforts to enforce their borders in 
the days leading up to the end of the Title 42 public health 
Order.\304\ These governments recognized that the United States was 
taking measures to strengthen border enforcement, specifically through 
application of the Circumvention of Lawful Pathways rule along with 
other complementary measures, and committed to taking their own actions 
to address irregular migratory flows in the region.\305\ Additionally, 
immediately prior to the transition from DHS processing under the Title 
42 public health Order to processing under title 8 authorities, the 
Government of Mexico announced that it had independently decided to 
accept the return into Mexico of nationals from CHNV countries under 
title 8 processes.\306\ However, in the intervening months, Mexico and 
other partners' resources have been significantly strained by sustained 
high encounter levels, and at different times enforcement by our 
partners has been disrupted, leading to surges at our own border.\307\
---------------------------------------------------------------------------

    \304\ Kathia Mart[iacute]nez, US, Panama and Colombia Aim to 
Stop Darien Gap Migration, AP News (Apr. 11, 2023), https://apnews.com/article/darien-gap-panama-colombia-us-migrants-cf0cd1e9de2119208c9af186e53e09b7; Camilo Montoya-Galvez, Mexico Will 
Increase Efforts To Stop U.S.-Bound Migrants as Title 42 Ends, U.S. 
Officials Say, CBS News (May 10, 2023), https://www.cbsnews.com/news/title-42-end-border-mexico-efforts-us-bound-migrants/.
    \305\ 88 FR at 31444.
    \306\ See The White House, Mexico and United States Strengthen 
Joint Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/; DHS, Fact Sheet: Data From First Six Months of Parole 
Processes for Cubans, Haitians, Nicaraguans, and Venezuelans Shows 
that Lawful Pathways Work (July 25, 2023), https://www.dhs.gov/news/2023/07/25/fact-sheet-data-first-six-months-parole-processes-cubans-haitians-nicaraguans-and.
    \307\ See Charles G. Ripley III, Crisis Prompts Record 
Emigration from Nicaragua, Surpassing Cold War Era, Migration Pol'y 
Inst. (Mar. 7, 2023), https://www.migrationpolicy.org/article/record-emigration-nicaragua-crisis; James Fredrick, Mexico Feels 
Pressure of Relentless Migration from South America, N.Y. Times 
(Sept. 21, 2023) (``Similar scenes are playing out across the 
country as Mexico's immigration system strains under a tide of 
people desperately trying to go north. The relentless surge has led 
to a hodgepodge response in Mexico ranging from shutting down 
railways heading north to the busing of people to areas with fewer 
migrants.''); Megan Janetsky & Javier C[oacute]rdoba, Central 
America scrambles as the international community fails to find 
solution to record migration, AP News (Oct. 20, 2023), https://apnews.com/article/costa-rica-migration-darien-gap-biden-420e2d1219d403d7feec6463a6e9cdae (noting the resources pull 
migration flows place on certain Central American countries); 
Mar[iacute]a Verza, Mexico halts deportations and migrant transfers 
citing lack of funds, AP News (Dec. 4, 2023), https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc (observing that the ``head of 
Mexico's immigration agency . . . ordered the suspension of migrant 
deportations and transfers due to a lack of funds''); Valerie 
Gonzalez & Elliot Spagat, The US sees a drop in illegal border 
crossings after Mexico increases enforcement, AP News (Jan. 7, 
2024), https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a (noting the 
disruption in enforcement that resulted from Mexico's lack of 
funding and quoting Andrew Selee, President of the Migration Policy 
Institute, as saying that ``[t]he U.S. is able to lean on Mexico for 
a short-term enforcement effect at the border, but the long-term 
effects are not always clear'').
---------------------------------------------------------------------------

    In public messaging, the Government of Mexico linked its decision 
to accept return into Mexico of CHNV nationals to the success of the 
CHNV parole processes framework under the Title 42 public health 
Order,\308\ which combined expansion of lawful pathways and processes 
for nationals of these countries with a meaningful consequence 
framework, and which reduced irregular border crossings.\309\ 
Sustaining and, as appropriate, ramping up efforts to improve border 
security and stem arrivals to the southern border is a critical element 
of the United States' ongoing diplomatic approach to migration 
management with partners in the region. This has been a key component 
of our diplomacy, as regional partner countries have regularly 
encouraged DHS to take steps to address migratory flows, including by 
channeling intending migrants into expanded lawful pathways and 
processes. For example, following the development of the parole process 
for Venezuelans announced in October 2022--an approach that was 
subsequently expanded to include processes for Cuban, Haitian, and 
Nicaraguan nationals in January 2023--regional partners urged the 
United States to continue building on this approach, which imposed 
consequences for irregular migration alongside the availability of a 
lawful, safe, and orderly process for migrants to travel directly to 
the United States.\310\ Following the announcement of the Venezuela 
parole process in October 2022 and the subsequent announcement of the 
Cuba, Haiti, and Nicaragua parole processes in January 2023, migration 
flows through the region and at the U.S.-Mexico border slowed. See 88 
FR at 31317 (``DHS estimates that the drop in CHNV encounters in 
January through March was almost four times as large as the number of 
people permitted entry under the parole processes.'').
---------------------------------------------------------------------------

    \308\ See Gobierno de M[eacute]xico, M[eacute]xico y Estados 
Unidos fortalecen Plan Humanitario Conjunto sobre Migraci[oacute]n 
(May 2, 2023), https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published (characterizing the effort of the 
Government of Mexico as a successful joint initiative and expressing 
the Government's commitment to continue to accept migrants back into 
Mexico on humanitarian grounds).
    \309\ See id. (describing a significant reduction in irregular 
migration following the implementation of CHNV parole processes, 
which pair an expansion of lawful pathways with consequences for 
irregular migration).
    \310\ See 88 FR at 31444; The White House, Mexico and United 
States Strengthen Joint Humanitarian Plan on Migration (May 2, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
---------------------------------------------------------------------------

    The United States has continued to build on this historic expansion 
of lawful pathways and processes, which include the humanitarian parole 
processes for CHNV nationals; \311\ efforts to expand labor pathways 
and dedicate a set number of visas to nationals of countries in the 
hemisphere; \312\ the implementation of new Family Reunification Parole 
(``FRP'') processes for certain nationals of Colombia, Ecuador, El 
Salvador, Guatemala, and Honduras; and the modernization of FRP 
processes for certain nationals of Cuba and Haiti.\313\
---------------------------------------------------------------------------

    \311\ See USCIS, Processes for Cubans, Haitians, Nicaraguans, 
and Venezuelans (Sept. 20, 2023), https://www.uscis.gov/CHNV.
    \312\ See DHS & U.S. Dep't of Labor, Temporary Rule--Exercise of 
Time-Limited Authority To Increase the Numerical Limitation for FY 
2024 for the H-2B Temporary Nonagricultural Worker Program and 
Portability Flexibility for H-2B Workers Seeking To Change 
Employers, 88 FR 80394 (Nov. 17, 2023).
    \313\ DHS, DHS Modernizes Cuban and Haitian Family Reunification 
Parole Processes (Aug. 10, 2023), https://www.dhs.gov/news/2023/08/10/dhs-modernizes-cuban-and-haitian-family-reunification-parole-processes.

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[[Page 48761]]

    Concurrently, the Governments of Colombia and Panama have made 
significant efforts to combat smuggling networks operating on both 
sides of the Dari[eacute]n Gap.\314\ The Government of Mexico has 
likewise increased enforcement along its southern border and the 
transit routes north.\315\ These enforcement campaigns have been 
implemented at substantial cost for those governments and, as with 
United States Government actions, reflect our shared regional 
responsibility to manage migration.\316\
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    \314\ See Kathia Mart[iacute]nez, US, Panama, and Colombia aim 
to stop Darien Gap migration, AP News (Apr. 11, 2023), https://apnews.com/article/darien-gap-panama-colombia-us-migrants-cf0cd1e9de2119208c9af186e53e09b7; Juan Zamorano & Christopher 
Sherman, Explainer: Panama launches operation against smugglers in 
Darien Gap, AP News (June 3, 2023), https://apnews.com/article/panama-colombia-darien-gap-migrants-d0ec93c4d4ddc91f34e31c704b4cf8ae.
    \315\ See, e.g., Associated Press, U.S. Border Arrests Decline 
Amid Increased Enforcement in Mexico, NPR (Apr. 13, 2024), https://www.npr.org/2024/04/13/1244590706/mexico-border-arrests-fall-march 
(``Mexico detained migrants 240,000 times in the first two months of 
the year, more than triple from the same period of 2023, sending 
many deeper south into the country to discourage them from coming to 
the United States. While Mexico hasn't released figures for March, 
U.S. officials have said Mexican enforcement is largely responsible 
for recent declines.'').
    \316\ See, e.g., The White House, Press Release, Mexico and 
United States Strengthen Joint Humanitarian Plan on Migration (May 
2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
---------------------------------------------------------------------------

    Given the particular challenges facing the United States and its 
regional partners at this moment, the Departments assess that it is 
critical that the United States continue to lead the way in responding 
to ever-changing and increasing migratory flows, and that this 
regulatory effort and the Presidential Proclamation--and the strong 
consequences they will impose at the border--will send an important 
message to the region that the United States is prepared to put in 
place appropriate measures to prepare for and, if necessary, respond to 
ongoing migratory challenges.
    In addition to this IFR's clear and direct involvement in foreign 
affairs, the Departments believe that conducting a notice-and-comment 
process and providing a delayed effective date on this rule likely 
would lead to a surge to the border before the Departments could 
finalize the rule, which would adversely impact the United States' 
foreign policy priorities. Prior to the end of the Title 42 public 
health Order, regional partners expressed great concern about the 
misperception that the end of the Order would mean an open U.S. border 
and result in a surge of irregular migration flowing through their 
countries as migrants sought to enter the United States. See 88 FR at 
31444. One foreign partner, for example, expressed the strong concern 
that the formation of caravans during the spring of 2022 was spurred by 
rumors--and the subsequent official announcement--of the anticipated 
end of the Title 42 public health Order. See id. This view is 
consistent with the views of other regional partner countries that have 
repeatedly emphasized the ways in which U.S. policy announcements have 
a direct and immediate impact on migratory flows through their 
countries. See id. Such effects are precisely the kind of ``definitely 
undesirable international consequences'' that the Departments seek to 
avoid.
    The surge about which many foreign leaders were concerned happened 
sooner than expected. In the weeks leading up to the lifting of the 
Title 42 public health Order, hemispheric migration spiked. Entries 
into the Dari[eacute]n jungle by migrants staged in Colombia began 
increasing in the months leading up to May 12, 2023, from a little more 
than 24,600 in January 2023, to more than 40,000 in April 2023 
immediately before the Order lifted.\317\ And as described more fully 
above, total CBP encounters at the SWB increased to then-record levels 
in the days immediately preceding May 12, 2023, a situation that was 
fueled by noncitizens seeking to enter the United States before new 
policies were put into effect, as well as by smuggling organizations 
that disseminated misinformation.\318\ The scale of regional migration 
in those weeks strained the immigration processes of all the affected 
countries, including those of the United States.
---------------------------------------------------------------------------

    \317\ See Servicio Nacional de Migraci[oacute]n Panam[aacute], 
Estadisicas, Tr[aacute]nsito Irregular por Dari[eacute]n 2023, 
https://www.migracion.gob.pa/inicio/estadisticas.
    \318\ See Valerie Gonzalez, Migrants rush across US border in 
final hours before Title 42 expires, AP News (May 11, 2023), https://apnews.com/article/immigration-border-title-42-mexico-asylum-8c239766c2cb6e257c0220413b8e9cf9 (noting that ``[m]any migrants were 
acutely aware of looming policy changes as they searched Thursday 
for an opportunity to turn themselves over to U.S. immigration 
authorities before the 11:59 EDT deadline . . . [and] [e]ven as 
migrants were racing to reach U.S. soil before the rules expire, 
Mexican President Andr[eacute]s Manuel L[oacute]pez Obrador said 
smugglers were sending a different message . . . [and] offering to 
take migrants to the United States and telling them the border was 
open starting Thursday'').
---------------------------------------------------------------------------

    As noted above, the United States saw a similar scale of migration 
at the end of 2023. The surge in December 2023 led the United States 
Government and the Government of Mexico to hold a series of engagements 
at the highest levels--including between the countries' Presidents and 
Cabinet Members--to address the shared challenge of migration 
confronting both countries.\319\ These conversations included 
commitments by both governments to continue to expand efforts to 
coordinate enforcement actions on both sides of the border.\320\ 
January, February, and March are typically slower months, but since 
these engagements, and the joint operational actions that resulted, 
there has been a decrease in USBP encounters at the border, as 
discussed in Section III.B.1 of this preamble.
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    \319\ See supra Section III.B.1 of this preamble.
    \320\ See, e.g., White House, Readout of Homeland Security 
Advisor Dr. Liz Sherwood-Randall's Trip to Mexico (Feb. 7, 2024), 
https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/; Amna Nawaz, Mexico's foreign secretary discusses 
what her country is doing to ease border crisis, PBS News Hour (Jan. 
25, 2024), https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis 
(quoting Foreign Secretary B[aacute]rcena as describing ``much more 
law enforcement to bring down the pressure in the border'' by Mexico 
in the preceding weeks).
---------------------------------------------------------------------------

    The record-breaking hemispheric migration throughout the region has 
deeply affected governments from South America all the way to the U.S.-
Mexico border. Panama has been encountering record numbers of migrants 
transiting one of the most dangerous smuggling corridors on the planet, 
the Dari[eacute]n Jungle.\321\ Colombia, Peru, and Ecuador have hosted 
around 3 million,\322\ over 1.5 million,\323\ and more than 475,000 
Venezuelans,\324\ respectively, while Costa Rica has recently hosted 
hundreds of thousands of Nicaraguans.\325\ Mexico has received record-
breaking numbers of

[[Page 48762]]

asylum applications in addition to the enforcement efforts it is 
undertaking.\326\
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    \321\ See Nick Paton Walsh et al., On one of the world's most 
dangerous migrant routes, a cartel makes millions off the American 
dream, CNN (Apr. 17, 2023), https://www.cnn.com/2023/04/15/americas/darien-gap-migrants-colombia-panama-whole-story-cmd-intl/index.html; 
Diana Roy, Crossing the Dari[eacute]n Gap: Migrants Risk Death on 
the Journey to the U.S., Council on Foreign Rels. (Feb. 1, 2024), 
https://www.cfr.org/article/crossing-darien-gap-migrants-risk-death-journey-us; Mallory Moench, Volume of Migrants Crossing the 
Dangerous Dari[eacute]n Gap Hit Record High in 2023, Time (Dec. 22, 
2023), https://time.com/6547992/migrants-crossing-darien-gap-2023.
    \322\ See UNHCR, Colombia Country Operations (2024), https://reporting.unhcr.org/operational/operations/colombia.
    \323\ See UNHCR, Peru Country Operations (2024), https://reporting.unhcr.org/operational/operations/peru.
    \324\ See UNHCR, Ecuador Country Operations (2024), https://reporting.unhcr.org/operational/operations/ecuador.
    \325\ See UNHCR, Costa Rica Country Operations (2024), https://reporting.unhcr.org/operational/operations/costa-rica.
    \326\ See UNHCR, Operational Update: Mexico (Dec. 2023), https://reporting.unhcr.org/mexico-operational-update-6421; UNHCR, Fact 
Sheet, Mexico (Nov. 2023), https://data.unhcr.org/en/documents/download/105202 (``From January to October 2023, Mexico received 
over 127,796 asylum applications, the highest ever number of asylum 
claims received in this time frame.''); Daina Beth Solomon & Lizbeth 
Diaz, Mexico seeks to curb `abuse' of asylum system by migrants who 
do not plan to stay, Reuters (Feb. 13, 2023), https://www.reuters.com/world/americas/mexico-seeks-curb-abuse-asylum-system-by-migrants-who-do-not-plan-stay-2023-02-13/ (``Mexico has 
the world's third highest number of asylum applications after the 
United States and Germany, reflecting growing numbers of refugee 
seekers that have strained resources at the Mexican Commission for 
Refugee Assistance.'').
---------------------------------------------------------------------------

    As described more fully above, DHS's internal projections suggest 
that SWB encounters may once again reach extremely elevated levels in 
the weeks to come, averaging in the range of approximately 3,900 to 
approximately 6,700 encounters at and between POEs per day from July to 
September, not including an additional 1,450 noncitizens per day who 
are expected to be encountered at POEs after making appointments though 
the CBP One app.\327\ Regional migration trends support these 
projections. For example, between January and April 2024, UNHCR tracked 
139,000 irregular entries, up from 128,000 for the same months in 2023 
and a seven-fold increase over that period in 2022.\328\ Moreover, as 
noted above, the Government of Mexico has been receiving record-
breaking numbers of asylum applications--reflecting the large number of 
migrants currently in Mexico.
---------------------------------------------------------------------------

    \327\ OHSS Southwest Border Encounter Projection, April 2024. 
Note that the OHSS encounter projection excludes encounters of 
people who have registered with the CBP One app along with 
administrative encounters at POEs (i.e., encounters in which removal 
proceedings are not considered), but includes non-CBP One 
enforcement encounters at POEs, which have averaged about 190 per 
day since May 2023. See also CBP, CBP OneTM Appointments 
Increased to 1,450 Per Day (June 30, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
    \328\ See supra note 122.
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    The weeks leading up to May 12, 2023, demonstrated that when 
migrants anticipate major changes in border policy, there is the 
potential to ignite a rush to the border to arrive before the changes 
take effect.\329\ Any delay between announcement of this rule and its 
implementation through notice and comment would almost certainly 
trigger a surge in migration that would undermine the principal goal of 
this entire effort: to reduce migratory flows to our border, and 
throughout the region.
---------------------------------------------------------------------------

    \329\ Decl. of Blas Nu[ntilde]ez-Neto ]] 9-10, E. Bay Sanctuary 
Covenant v. Biden, No. 4:18-cv-06810-JST (N.D. Cal. June 16, 2023) 
(Dkt. 176-2); Decl. of Matthew J. Hudak ] 11, Florida v. Mayorkas, 
No. 3:22-cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
---------------------------------------------------------------------------

    The Departments believe that the emergency measures being taken 
here are needed to help address this regional challenge, and that any 
decrease in migration that results will help relieve the strain not 
just on the U.S.-Mexico border but on countries throughout the 
hemisphere. The actions the United States is taking in this regulation 
demonstrate a commitment to addressing irregular migration in the 
region, even as foreign partners have been taking actions themselves 
that are aligned with a shared interest in reducing migration. The IFR 
changes key procedures to significantly streamline and strengthen the 
consequences delivered for unlawful or unauthorized entry at the 
southern border. The actions the Departments are taking are directly 
responsive to the shared challenge the United States and its regional 
partners are confronting and, equally important, it is critical to 
implement these actions without a lengthy period of advance notice 
before the actions go into effect.
2. Good Cause
    The Departments have also found good cause to forego the APA's 
notice-and-comment and delayed-effective-date procedures. See 5 U.S.C. 
553(b)(B), (d)(3). Such procedures are impracticable because the delays 
associated with such procedures would unduly postpone implementation of 
a policy that is urgently needed to avert significant public harm. Such 
procedures are likewise contrary to the public interest because an 
advance announcement of this rule would seriously undermine a key goal 
of the policy: It would incentivize even more irregular migration by 
those seeking to enter the United States before the rule would take 
effect.
    First, the ``impracticable'' prong of the good cause exception 
``excuses notice and comment in emergency situations . . . or where 
delay could result in serious harm.'' \330\ Findings of 
impracticability are ``inevitably fact- or context-dependent,'' \331\ 
and when reviewing such findings, courts generally consider, among 
other factors, the harms that might have resulted while the agency 
completed standard rulemaking procedures \332\ and the agency's 
diligence in addressing the problem it seeks to address.\333\
---------------------------------------------------------------------------

    \330\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see, 
e.g., id. (upholding a claim of good cause to address ``a possible 
imminent hazard to aircraft, persons, and property within the United 
States'' (quotation marks omitted)); Haw. Helicopter Operators Ass'n 
v. FAA, 51 F.3d 212, 214 (9th Cir. 1995) (upholding a claim of good 
cause to address 20 air tour accidents over a four-year period, 
including recent incidents indicating that voluntary measures were 
insufficient to address the threat to public safety).
    \331\ Mid-Tex Elec. Co-op, Inc. v. FERC, 822 F.2d 1123, 1132 
(D.C. Cir. 1987); see Petry v. Block, 737 F.2d 1193, 1203 (D.C. Cir. 
1984) (when evaluating agency ``good cause'' arguments, ``it is 
clear beyond cavil that we are duty bound to analyze the entire set 
of circumstances''). Courts have explained that notice-and-comment 
rulemaking may be impracticable, for instance, where air travel 
security agencies would be unable to address threats, Jifry, 370 
F.3d at 1179, if ``a safety investigation shows that a new safety 
rule must be put in place immediately,'' Util. Solid Waste 
Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) 
(ultimately finding that not to be the case and rejecting the 
agency's argument), or if a rule was of ``life-saving importance'' 
to mine workers in the event of a mine explosion, Council of S. 
Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981).
    \332\ See Util. Solid Waste Activities Grp., 236 F.3d at 754-55 
(explaining that ``a situation is `impracticable' when an agency 
finds that due and timely execution of its functions would be 
impeded by the notice otherwise required in Sec.  553, as when a 
safety investigation shows that a new safety rule must be put in 
place immediately'' (cleaned up)).
    \333\ See, e.g., Tri-Cty. Tel. Ass'n, Inc. v. FCC, 999 F.3d 714, 
720 (D.C. Cir. 2021) (``[T]his is not a case of unjustified agency 
delay. The Commission did act earlier, . . . [and t]he agency needed 
to act again . . . .'').
---------------------------------------------------------------------------

    The critical need to immediately implement more effective border 
management measures is described at length in the Presidential 
Proclamation of June 3, 2024, Securing the Border, and in Section III.B 
of this preamble. Despite the strengthened consequences in place at the 
SWB, including the Circumvention of Lawful Pathways rule and other 
measures, the United States Government continues to contend with 
exceptionally high levels of irregular migration along the southern 
border, including record-high total USBP encounter levels on the SWB as 
recently as December 2023.\334\ DHS's ability to manage this increase 
in encounters has been significantly challenged by the substantial 
number of noncitizens processed for expedited removal and expressing a 
fear of return or an intent to seek asylum; rather than being swiftly 
removed, these noncitizens are referred to an AO for a credible fear 
interview and can seek IJ review of an AO's negative credible fear 
determination, which requires additional time and resources.
---------------------------------------------------------------------------

    \334\ According to March 2024 OHSS Persist Dataset and OHSS 
analysis of historic CBP data for encounters prior to FY 2000, USBP 
completed 250,000 encounters along the SWB in December 2023, higher 
than any previous month on record. See also OHSS, 2022 Yearbook of 
Immigration Statistics, tbls. 33 & 35, https://www.dhs.gov/ohss/topics/immigration/yearbook.

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[[Page 48763]]

    Without adequate resources and tools to keep pace, the Departments 
cannot deliver timely decisions and timely consequences to all 
noncitizens encountered at the SWB who do not establish a lawful basis 
to remain. Instead, DHS is forced to place many of these individuals 
into the backlogged immigration court system, a process that can take 
several years to result in a decision or consequence.\335\ Even then, 
it can take weeks, months, or years to execute a removal order 
depending upon the facts of the individual case.\336\
---------------------------------------------------------------------------

    \335\ See supra note 25.
    \336\ OHSS analysis of March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------

    Quite simply, these historic levels of encounters and fear claims, 
combined with limited resources and tools to manage them, create a 
vicious cycle: The expectation of a lengthy stay in the United States 
and the inability to impose consequences for irregular migration close 
in time to entry inspires more people to make the dangerous journey 
north to take their chances at the border.\337\ The USCIS affirmative 
asylum backlog has reached almost 1.2 million cases and is 
growing.\338\ At the end of the first quarter of FY 2024, there were 
over 2.7 million cases pending in the immigration courts.\339\ During 
FY 2023, IJs completed more cases than they ever had before in a single 
year, but more than twice as many cases were received by the 
immigration courts as were completed.\340\
---------------------------------------------------------------------------

    \337\ See, e.g., Jordan, supra note 27.
    \338\ OHSS analysis of USCIS Global Affirmative Data as of March 
31, 2024. Almost all of this backlog is the result of cases filed 
since FY 2015. From FY 2015 through FY 2023, an average of 156,000 
affirmative asylum cases were filed per year, versus an average of 
49,000 cases completed. In FY 2024 through March 31, 2024, 191,000 
cases have been filed versus 78,000 cases completed. OHSS analysis 
of USCIS Global Affirmative Data as of March 31, 2024.
    \339\ See EOIR, Caseload: Pending Cases (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline.
    \340\ See id.; EOIR, New Cases and Total Completions-Historical, 
https://www.justice.gov/eoir/media/1344801/dl?inline (Jan. 18, 
2024).
---------------------------------------------------------------------------

    Absent changes promulgated in this rule, recent encounter trends 
both in the region and at our southern border indicate a risk of 
further exceeding the Departments' capacity to effectively process, 
detain, and remove, as appropriate, the noncitizens encountered, and 
exacerbating perceived incentives to migrate now. As noted above, DHS's 
current internal projections suggest that total encounters will average 
in the range of 3,900 to approximately 6,700 encounters at and between 
POEs per day from July to September, not including an additional 1,450 
noncitizens per day who are expected to be encountered at POEs after 
making appointments though the CBP One app.\341\ Even at the low end of 
such projections, such a volume of encounters would likely result in 
thousands of migrants per day being referred to section 240 removal 
proceedings; their cases would further exacerbate the immigration court 
backlog and perceived incentives to migrate irregularly, and would take 
many years to complete. Such harms would be mitigated by the additional 
measures put in place by this rule. If implementation of the rule is 
delayed, by contrast, the harms of such an increase would be immediate 
and substantial, even if such an increase would only last for the 
months needed to complete a very rapid notice-and-comment rulemaking. 
Thus, it is impracticable to delay the measures in this rule for even a 
few months to allow for notice and an opportunity to comment and a 
delayed effective date. In the interim, the heightened levels of 
migration and forced displacement that have resulted in the President's 
determination to apply the suspension and limitation on entry and the 
Departments adopting the provisions in this rule would further strain 
resources, risk overcrowding in USBP stations and border POEs in ways 
that pose significant health and safety concerns, and create a 
situation in which large numbers of migrants \342\--only a small 
proportion of whom are likely to be granted asylum or other 
protection--would be encouraged to put their lives in the hands of 
dangerous organizations to make the hazardous journey north based on a 
perceived lack of immediate consequences. The Departments must 
immediately safeguard their ability to enforce our Nation's immigration 
laws in a timely way and at the scale necessary with respect to those 
who seek to enter without complying with our laws. This rule does just 
that.
---------------------------------------------------------------------------

    \341\ OHSS Encounter Projections, April 2024. Note that the OHSS 
encounter projection excludes encounters of people who have 
registered with the CBP One app along with administrative encounters 
at POEs (i.e., encounters in which removal proceedings are not 
considered), but includes non-CBP One enforcement encounters at 
POEs, which have averaged about 190 per day since May 2023. See also 
CBP, CBP OneTM Appointments Increased to 1,450 Per Day 
(June 30, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day (last modified July 
14, 2023).
    \342\ Decl. of Matthew J. Hudak, Florida v. Mayorkas, No. 3:22-
cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
---------------------------------------------------------------------------

    Furthermore, current trends in migration, including through the 
Dari[eacute]n jungle between Colombia and Panama, indicate that a 
significant increase in encounters may be imminent. Between January and 
April 2024, UNHCR tracked 139,000 irregular entries, up from 128,000 
for the same months in 2023 and a seven-fold increase over that period 
in 2022.\343\ And the Departments believe that most of those migrants 
are on their way to seek entry into the United States.\344\ Based on 
historical trends, the Departments expect that many of these migrants 
may already be proximate to the SWB, giving the Departments 
insufficient time to seek public comment and delay the effective date 
of this rule without immediate and substantial harm to U.S. interests. 
Indeed, as of May 2024, CBP estimates that there are more than 40,000 
non-Mexican migrants in northern Mexico, proximate to the SWB, in 
addition to more than 100,000 such migrants in central and southern 
Mexico. These

[[Page 48764]]

numbers show that a very large number of migrants would likely have the 
ability and the incentive to travel to the U.S. border, and the 
Departments assess that announcing this rule in advance would likely 
yield the type of surges described in connection with prior changes in 
significant border policies affecting the availability of asylum for 
large numbers of migrants. For these reasons, consistent with the 
President's judgment, and given the emergency circumstances facing the 
Departments, the Departments assess that it would be impracticable to 
delay the policies set forth in this rule to allow time to complete 
notice-and-comment rulemaking or delay the rule's effective date.
---------------------------------------------------------------------------

    \343\ See supra note 122.
    \344\ See Sergio Mart[iacute]nez-Beltr[aacute]n, Despite a 
Fortified Border, Migrants Will Keep Coming, Analysts Agree. Here's 
Why., NPR, (Apr. 22, 2024), https://www.npr.org/2024/04/22/1244381584/immigrants-border-mexico-asylum-illegal-immigration 
(``[Analysts] keep a close eye on the Dari[eacute]n Gap in Panama 
and the borders between Central American countries, two key points 
to gauge the number of people venturing up north. `In most countries 
(outward) migration has increased . . . particularly in Venezuela, 
and that's not really reflected yet in the U.S. numbers,' said [one 
analyst]. . . . Despite Mexico's cracking down on migrants, [the 
analyst] said people are still making their way up north, even if 
they need to pause for months at different points during their 
journey. `There must be a huge number of people from Venezuela 
bottled up in Mexico right now,' he said.''); Diana Roy, Crossing 
the Dari[eacute]n Gap: Migrants Risk Death on the Journey to the 
U.S., Council on Foreign Rels. (Feb. 1, 2024), https://www.cfr.org/article/crossing-darien-gap-migrants-risk-death-journey-us (``The 
surge across the Dari[eacute]n Gap is reflected in an influx at the 
southern U.S. border, where U.S. border authorities reported that 
they apprehended close to 2.5 million people during fiscal year 
2023, a record high, while northern cities such as New York are also 
struggling to manage the arrivals.''); Mallory Moench, Volume of 
Migrants Crossing the Dangerous Dari[eacute]n Gap Hit Record High in 
2023, Time (Dec. 22, 2023), https://time.com/6547992/migrants-crossing-darien-gap-2023/ (``Laurent Duvillier, UNICEF's 
spokesperson for Latin America and the Caribbean based in Panama, 
tells TIME that many--driven to leave their homes by poverty, crime, 
or discrimination--aim to seek asylum in the U.S. or Canada, though 
they may never get there. This analysis is supported by refugee 
protection organization HIAS, with a spokesperson telling TIME that, 
by the group's estimations, between 90 to 95% of those crossing the 
Dari[eacute]n Gap aim to reach the U.S.''); Ariel G. Ruiz Soto, 
Record-Breaking Migrant Encounters at the U.S.-Mexico Border 
Overlook the Bigger Story, Migration Pol'y Inst. (Oct. 2022), 
https://www.migrationpolicy.org/news/2022-record-migrant-encounters-us-mexico-border (``Record flows of extracontinental migrants 
through the Darien Gap jungle that connects Colombia to Panama 
foreshadow increases in migration through Central America and 
Mexico. The 28,000 Venezuelan migrants who trekked through the 
deadly jungle in August were mostly en route to the United States; 
with more than 34,000 Venezuelans recorded at the Darien Gap in 
September, it is very likely that many of them will be reaching the 
U.S.-Mexico border soon.'').
---------------------------------------------------------------------------

    Second, under the ``contrary to the public interest'' prong of the 
good cause exception, it has long been recognized that agencies may use 
the good cause exception, and need not take public comment in advance, 
where significant public harm would result from the notice-and-comment 
process.\345\ If, for example, advance notice of a coming price 
increase would immediately produce market dislocations and lead to 
serious shortages, advance notice need not be given.\346\ A number of 
cases follow this logic in the context of economic regulation.\347\ The 
same logic applies here, where the Departments are responding to 
exceedingly serious challenges at the border, and advance announcement 
of this response--which will increase the Departments' ability to 
swiftly process and remove, as appropriate, more noncitizens who enter 
the United States irregularly--would significantly increase the 
incentive, on the part of migrants and others (such as smugglers), to 
engage in actions that would compound those very challenges. For the 
same reasons, ``the [need] for immediate implementation'' outweighs the 
``principles'' underlying the requirement for a 30-day delay in the 
effective date, justifying the Departments' finding of good cause to 
forego it.\348\ The Departments' experience has been that in some 
circumstances when official public announcements have been made 
regarding significant upcoming changes in immigration laws and 
procedures that would impact how individuals are processed at the 
border, such as changes that restrict access to immigration benefits to 
those attempting to enter the United States along the U.S.-Mexico land 
border, there have been dramatic increases in the numbers of 
noncitizens who enter or attempt to enter the United States--including, 
most recently, in the days preceding the lifting of the Title 42 public 
health Order in May 2023.\349\ This is not only because, generally, 
would-be migrants respond to real and perceived incentives created by 
border management and immigration policies, such that many choose to 
seek entry under a border processing regime they think is preferable, 
prior to the implementation of a new system, including increasing the 
speed of their transit north in an effort to arrive before the 
implementation of any such measure. Additionally, smugglers routinely 
prey on migrants by spreading rumors, misrepresenting facts, or 
creating a sense of urgency to induce migrants to make the journey by 
overemphasizing the significance of recent or upcoming policy 
developments, among other tactics, and do so particularly when there is 
a change announced in U.S. policy, as highlighted by the many examples 
described below.\350\
---------------------------------------------------------------------------

    \345\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. 
Cir. 2012) (noting that the ``contrary to the public interest'' 
prong of the ``good cause'' exception ``is appropriately invoked 
when the timing and disclosure requirements of the usual procedures 
would defeat the purpose of the proposal--if, for example, 
announcement of a proposed rule would enable the sort of financial 
manipulation the rule sought to prevent . . . [or] in order to 
prevent the amended rule from being evaded'' (cleaned up)); DeRieux 
v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. App. 
1974) (``[W]e are satisfied that there was in fact `good cause' to 
find that advance notice of the freeze was `impracticable, 
unnecessary, or contrary to the public interest' within the meaning 
of Sec.  553(b)(B). . . . Had advance notice issued, it is apparent 
that there would have ensued a massive rush to raise prices and 
conduct `actual transactions'--or avoid them--before the freeze 
deadline.'').
    \346\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp. 
Emer. Ct. App. 1975) (``[W]e think good cause was present in this 
case based upon [the agency's] concern that the announcement of a 
price increase at a future date could have resulted in producers 
withholding crude oil from the market until such time as they could 
take advantage of the price increase.'' (quotation marks omitted)).
    \347\ See, e.g., Chamber of Com. of U.S. v. S.E.C., 443 F.3d 
890, 908 (D.C. Cir. 2006) (``The [`good cause'] exception excuses 
notice and comment in emergency situations, where delay could result 
in serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)); Mobil 
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. 
App. 1983) (``On a number of occasions . . . , this court has held 
that, in special circumstances, good cause can exist when the very 
announcement of a proposed rule itself can be expected to 
precipitate activity by affected parties that would harm the public 
welfare.'').
    \348\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) 
(cleaned up).
    \349\ See supra Sections III.B.1 and III.B.2 of this preamble.
    \350\ See Nick Miroff & Carolyn Van Houten, The Border is 
Tougher to Cross Than Ever. But There's Still One Way into America, 
Wash. Post (Oct. 24, 2018), https://www.washingtonpost.com/world/national-security/theres-still-one-way-into-america/2018/10/24/d9b68842-aafb-11e8-8f4b-aee063e14538_story.html; Valerie Gonzalez, 
Migrants rush across US border in final hours before Title 42 
expires, AP News (May 11, 2023), https://apnews.com/article/immigration-border-title-42-mexico-asylum-8c239766c2cb6e257c0220413b8e9cf9 (``Even as migrants were racing to 
reach U.S. soil before the rules expire, Mexican President 
Andr[eacute]s Manuel L[oacute]pez Obrador said smugglers were 
sending a different message. He noted an uptick in smugglers at his 
country's southern border offering to take migrants to the United 
States and telling them the border was open starting Thursday.'').
    The Departments recognize that there has been reporting on the 
possibility of the policies set forth in the Proclamation and this 
IFR since February with no apparent month-over-month increase in 
encounters. See, e.g., Myah Ward, Biden considering major new 
executive actions for migrant crisis, Politico (Feb. 21, 2024), 
https://www.politico.com/news/2024/02/21/biden-considering-major-new-executive-actions-for-southern-border-00142524. But such 
reporting about vague, possible plans differs significantly from 
officially proposed policy changes with timelines provided for 
implementation, such as those mentioned below.
---------------------------------------------------------------------------

    The acuteness of such concerns is borne out by the facts. An influx 
of migrants occurred in the days following the November 15, 2022, court 
decision that, had it not been stayed on December 19, 2022, would have 
resulted in the lifting of the Title 42 public health Order effective 
December 21, 2022.\351\ Leading up to the Order's expected termination 
date, migrants gathered in various parts of Mexico, including along the 
SWB, waiting to cross the border once the Title 42 public health Order 
was lifted.\352\ According to internal Government sources, smugglers 
were also expanding their messaging and recruitment efforts, using the 
expected lifting of the Title 42 public health Order to claim that the 
border was open, thereby seeking to persuade would-be migrants to 
participate in expensive and dangerous human smuggling schemes. 88 FR 
at 31315. In that one-month period following the court decision, total 
CBP encounter rates jumped from an average of 7,800 per week (in mid-
November) to over 9,100 per week (in mid-December), a change not 
predicted by normal seasonal effects.\353\
---------------------------------------------------------------------------

    \351\ See Huisha-Huisha v. Mayorkas, 642 F. Supp. 3d 1 (D.D.C. 
2022), stay granted, Arizona v. Mayorkas, __S. Ct. __, 2022 WL 
17750015 (U.S. Dec. 19, 2022); DHS, Statement by Secretary Mayorkas 
on Planning for End of Title 42 (Dec. 13, 2022), https://www.dhs.gov/news/2022/12/13/statement-secretary-mayorkas-planning-end-title-42.
    \352\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at 
the U.S.-Mexico Border. This Is Why, L.A. Times (Dec. 23, 2022), 
https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion.
    \353\ OHSS analysis of March 2024 OHSS Persist Dataset. Month-
over-month change from November to December for all of FY 2013 to FY 
2022 averaged negative two percent.
---------------------------------------------------------------------------

    Similarly, on February 28, 2020, the Ninth Circuit lifted a stay of 
a

[[Page 48765]]

nationwide injunction of the Migrant Protection Protocols (``MPP''), a 
program implementing the Secretary's contiguous return authority under 
section 235(b)(2)(C) of the INA, 8 U.S.C. 1225(b)(2)(C).\354\ Almost 
immediately, hundreds of migrants began massing at POEs across the 
southern border and attempting to immediately enter the United States, 
creating a severe safety hazard that forced CBP to temporarily close 
POEs in whole or in part.\355\ Many others requested immediate entry 
into the country through their counsel, while others attempted to 
illegally cross the southern border between the POEs.\356\ Absent 
immediate and resource-intensive action taken by CBP, the number of 
migrants gathered at the border, whether at or between the POEs, could 
have increased dramatically, especially considering there were 
approximately 25,000 noncitizens who were in removal proceedings 
pursuant to MPP without scheduled court appearances, as well as others 
in Mexico who could have become aware of CBP's operational limitations 
and sought to exploit them.\357\ And while CBP officers took action to 
resolve the sudden influx of migrants at multiple POEs and prevent 
further deterioration of the situation at the border, in doing so they 
were diverted away from other critical responsibilities of protecting 
national security, detecting and confiscating illicit materials, and 
guarding efficient trade and travel.\358\
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    \354\ See Innovation Law Lab v. Wolf, 951 F.3d 1073, 1077, 1095 
(9th Cir. 2020), vacated as moot sub nom. Innovation Law Lab v. 
Mayorkas, 5 F.4th 1099 (9th Cir. 2021).
    \355\ See Decl. of Robert E. Perez ]] 4-15, Innovation Law Lab, 
No. 19-15716 (9th Cir. Mar. 3, 2020) (Dkt. 95-2).
    \356\ Id. ]] 4, 8.
    \357\ Id. ] 14.
    \358\ Id. ] 15.
---------------------------------------------------------------------------

    This same phenomenon occurred in the days leading up to the end of 
the Title 42 public health Order on May 12, 2023, when DHS saw a 
historic surge in migration as smugglers falsely advertised that those 
arriving before the Order ended and the Circumvention of Lawful 
Pathways rule took effect would be allowed to remain in the United 
States.\359\ This surge culminated with what were then the highest 
recorded USBP encounter levels in U.S. history over the days 
immediately preceding May 12, which placed significant strain on DHS's 
operational capacity at the border.\360\ Encounters between POEs (which 
excludes arrival of inadmissible individuals scheduled through the CBP 
One app, who appear at POEs) almost doubled from an average of 
approximately 4,900 per day the week ending April 11, 2023, to an 
average of approximately 9,500 per day the week ending May 11, 2023, 
including an average of approximately 10,000 daily encounters 
immediately preceding the termination of the public health Order (from 
May 8 to May 11).\361\ The sharp increase in USBP encounters during the 
30 days preceding May 12 represented the largest month-over-month 
increase in almost two decades--since January 2004.\362\
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    \359\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary 
Covenant v. Biden, No. 4:18-cv-06810-JST (N.D. Cal. June 16, 2023) 
(Dkt. 176-2). Conversely, as noted above, smugglers also messaged 
that the border would be open starting on May 12. See Valerie 
Gonzalez, Migrants rush across US border in final hours before Title 
42 expires, AP News (May 11, 2023), https://apnews.com/article/immigration-border-title-42-mexico-asylum-8c239766c2cb6e257c0220413b8e9cf9. This conflicting messaging 
underscores smuggling organizations' tendency to deceptively message 
on changes in border policy to lure vulnerable migrants to pay for 
their services.
    \360\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary 
Covenant v. Biden, No. 4:18-cv-6810-JST (N.D. Cal. June 16, 2023) 
(Dkt. 176-2).
    \361\ Id.
    \362\ Id.
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    Meanwhile, the current backlogs and inefficiencies in our border 
security and immigration systems render DHS unable to effect removals 
and apply consequences at a sufficient scale to deter migration by 
those whose claims may not ultimately succeed.\363\ This, too, serves 
as an incentive for migrants to take a chance. And sudden influxes, 
which result in part from smugglers' deliberate actions, overload 
scarce United States Government resources dedicated to border security 
that, as reflected above, are already stretched extremely thin.\364\ 
This rule is specifically designed to allow the United States 
Government to deliver consequences more swiftly, and with a reduced 
resource burden, during such an influx.
---------------------------------------------------------------------------

    \363\ See EOIR, Adjudication Statistics: Pending Cases (Jan. 18, 
2024), https://www.justice.gov/eoir/media/1344791/dl?inline.
    \364\ Decl. of Enrique Lucero ]] 6-8, Innovation Law Lab v. 
Wolf, No. 19-15716 (9th Cir. Mar. 3, 2020) (Dkt. 95-3); Decl. of 
Robert E. Perez ] 15, Innovation Law Lab, No. 19-15716 (9th Cir. 
Mar. 3, 2020) (Dkt. 95-2).
---------------------------------------------------------------------------

    In a more manageable steady-state environment, when encounters 
surge in specific sectors, DHS manages its detention capacity using the 
other tools at its disposal, such as lateral decompression flights and 
similar efforts.\365\ But the increase in SWB encounters preceding the 
end of the Title 42 public health Order and the increase in border 
encounters that occurred in December 2023 were far-reaching across 
multiple sectors of the SWB and significantly greater than what DHS 
resources and operations are designed to handle. They raised detention 
capacity concerns anew. At that point, DHS faced an urgent situation, 
including a significant risk of overcrowding in its facilities. Given 
the nature of its facilities, increased numbers and times in custody 
increase the likelihood that USBP facilities will become quickly 
overcrowded.\366\ Crowding, particularly given the way that USBP 
facilities are necessarily designed, increases the potential risk of 
health and safety concerns for noncitizens and Government 
personnel.\367\
---------------------------------------------------------------------------

    \365\ See 88 FR at 11715.
    \366\ Decl. of Matthew J. Hudak ]] 6, 14, 17, Florida v. 
Mayorkas, No. 3:22-cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
    \367\ Id. ] 17.
---------------------------------------------------------------------------

    The Departments assess that there would be a significant risk of 
such an urgent situation occurring if they undertook notice-and-comment 
procedures for this rule or delayed its effective date. As demonstrated 
by the Departments' experience with the end of the Title 42 public 
health Order and MPP, significant shifts in U.S. border policies lead 
to an increase in migrants coming to the SWB that risks overwhelming 
the Departments' resources and operations. This rule is likewise a 
significant shift in U.S. border policy that affects the vast majority 
of noncitizens arriving at the southern border who do not have 
documents sufficient for lawful admission--a shift that may be viewed 
as similar to the end of the Title 42 public health Order and MPP. In 
addition, unlike the Lawful Pathways rebuttable presumption, the 
limitation on asylum eligibility in this rule would affect Mexican 
migrants, which may provide an additional perceived incentive for such 
migrants--who constitute a large and geographically proximate potential 
population \368\--to rush to the border during a notice-and-comment 
period. Finally, such a surge in migration would come at a time when 
our border security and immigration systems' resources are already 
stretched thin and severely backlogged.\369\

[[Page 48766]]

Therefore, the Departments believe that a gap between when this rule is 
made public and when it becomes effective would create the same 
incentive for migrants to come to the United States before the rule 
takes effect.
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    \368\ U.S. Census Bureau, Mexico, https://www.census.gov/popclock/world/mx (last visited May 27, 2024).
    \369\ See, e.g., Ariel G. Ruiz-Soto et al., Shifting Realities 
at the U.S.-Mexico Border: Immigration Enforcement and Control in a 
Fast-Evolving Landscape, Migration Pol'y Inst., at 1 (rev. Jan. 
2024), https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf 
(``Insufficiently equipped to respond effectively to these and 
likely future changes, U.S. immigration agencies must perpetually 
react and shift operations according to their strained capacity and 
daily changes in migrant arrivals.''); The White House, Fact Sheet: 
White House Calls on Congress To Advance Critical National Security 
Priorities (Oct. 20, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/; Letter 
for Kevin McCarthy, Speaker of the House of Representatives, from 
Shalanda D. Young, Director, Office and Management Budget (Aug. 10, 
2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.
---------------------------------------------------------------------------

    The Departments' determination here is consistent with past 
practice. For example, in the Circumvention of Lawful Pathways rule, 
the Departments undertook a notice-and-comment rulemaking while the 
Title 42 public health Order remained in effect,\370\ but invoked the 
good cause exception (as well as the foreign affairs exception) to 
bypass a delayed effective date that would have resulted in a gap 
between the end of the Title 42 public health Order and the 
implementation of the rule. See 88 FR at 31445-47. The Departments 
noted that such a gap ``would likely result in a significant further 
increase in irregular migration,'' and that such an increase, 
``exacerbated by an influx of migrants from countries such as 
Venezuela, Nicaragua, and Cuba, with limited removal options, and 
coupled with DHS's limited options for processing, detaining, or 
quickly removing such migrants, would unduly impede DHS's ability to 
fulfill its critical and varied missions.'' Id. at 31445.
---------------------------------------------------------------------------

    \370\ The Departments noted, however, that the Circumvention of 
Lawful Pathways rule was exempt from notice-and-comment requirements 
pursuant to the good cause exception at 5 U.S.C. 553(b)(B) for the 
same reasons that the rule was exempt from delayed effective date 
requirements under 5 U.S.C. 553(d). See 88 FR at 31445 n.377.
---------------------------------------------------------------------------

    Similarly, when implementing the parole process for Venezuelans, 
DHS implemented the process without prior public procedures,\371\ and 
witnessed a drastic reduction in irregular migration by 
Venezuelans.\372\ The process by which eligible Venezuelans could 
receive advance travel authorization to present at a POE was 
accompanied by a policy that those who entered the United States 
outside this process or who entered Mexico illegally after the date of 
announcement would be ineligible for parole under this process, and was 
conditioned on Mexico continuing to accept the expulsion or removal of 
Venezuelan nationals seeking to irregularly enter the United States 
between POEs. See 87 FR at 63508. Thus, had the parole process been 
announced prior to a lengthy notice-and-comment period, it likely would 
have resulted in thousands of Venezuelan nationals attempting to cross 
the United States and Mexican borders before the ineligibility criteria 
went into effect, and before the United States was able to return 
Venezuelan nationals to Mexico in large numbers.
---------------------------------------------------------------------------

    \371\ See DHS, Implementation of a Parole Process for 
Venezuelans, 87 FR 63507 (Oct. 19, 2022).
    \372\ See 88 FR at 31317 (``A week before the announcement of 
the Venezuela parole process on October 12, 2022, Venezuelan 
encounters between POEs at the SWB averaged over 1,100 a day from 
October 5-11. About two weeks after the announcement, Venezuelan 
encounters averaged under 200 per day between October 18 and 24.'').
---------------------------------------------------------------------------

    DHS also concluded in January 2017 that it was imperative to give 
immediate effect to a rule designating Cuban nationals arriving by air 
as eligible for expedited removal because ``[p]re-promulgation notice 
and comment would . . . endanger[ ] human life and hav[e] a potential 
destabilizing effect in the region.'' \373\ DHS cited the prospect that 
``publication of the rule as a proposed rule, which would signal a 
significant change in policy while permitting continuation of the 
exception for Cuban nationals, could lead to a surge in migration of 
Cuban nationals seeking to travel to and enter the United States during 
the period between the publication of a proposed and a final rule.'' 
\374\ DHS found that ``[s]uch a surge would threaten national security 
and public safety by diverting valuable Government resources from 
counterterrorism and homeland security responsibilities,'' ``could also 
have a destabilizing effect on the region, thus weakening the security 
of the United States and threatening its international relations,'' and 
``could result in significant loss of human life.'' \375\
---------------------------------------------------------------------------

    \373\ DHS, Eliminating Exception to Expedited Removal Authority 
for Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 
2017).
    \374\ Id.
    \375\ Id.; accord U.S. Dep't of State, Visas: Documentation of 
Nonimmigrants Under the Immigration and Nationality Act, as Amended, 
81 FR 5906, 5907 (Feb. 4, 2016) (finding the good cause exception 
applicable because of short-run incentive concerns).
---------------------------------------------------------------------------

    Given the urgent circumstances facing the Departments, the delays 
associated with requiring a notice-and-comment process for this rule 
would be contrary to the public interest because an advance 
announcement of the rule would incentivize even more irregular 
migration by those seeking to enter the United States before the IFR 
would take effect.

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''), directs agencies to assess the costs, benefits, and 
transfers of available alternatives, and, if regulation is necessary, 
to select regulatory approaches that maximize net benefits, including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity. Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility.
    The Office of Information and Regulatory Affairs (``OIRA'') of OMB 
reviewed this IFR as a significant regulatory action under Executive 
Order 12866, as amended by Executive Order 14094. The estimated effects 
of the rule are described and summarized qualitatively below. 
Consistent with OMB Circular A-4, the Departments assessed the impacts 
of this rule against a baseline. The baseline used for this analysis is 
the ``no action'' baseline, or what the world would be like absent the 
rule. For purposes of this analysis, the Departments assumed that the 
no-action baseline involved continued application of the Circumvention 
of Lawful Pathways rule.
    The expected effect of this rule, as discussed above, is primarily 
to reduce incentives for irregular migration and illegal smuggling 
activity. As a result, the primary effects of this rule will be felt by 
noncitizens outside of the United States. In addition, for those who 
are present in the United States and described in the Proclamation, the 
rule will likely decrease the number of asylum grants and likely reduce 
the amount of time that noncitizens who are ineligible for asylum and 
who lack a reasonable probability of establishing eligibility for 
protection from persecution or torture would remain in the United 
States. Noncitizens, however, can avoid the limitation on asylum under 
this rule if they meet an exception to the rule's limitation or to the 
Proclamation, including by presenting at a POE pursuant to a pre-
scheduled time and place or by showing exceptionally compelling 
circumstances. Moreover, noncitizens who in credible fear screenings 
establish

[[Page 48767]]

a reasonable probability of persecution or torture would still be able 
to seek statutory withholding or CAT protection in proceedings before 
IJs.
    The benefits of the rule are expected to include reductions in 
strains on limited Federal Government immigration processing and 
enforcement resources; preservation of the Departments' continued 
ability to safely, humanely, and effectively enforce and administer the 
immigration laws; and a reduction in the role of exploitative TCOs and 
smugglers. Some of these benefits accrue to noncitizens whose ability 
to receive timely decisions on their claims might otherwise be hampered 
by the severe strain that further surges in irregular migration would 
impose on the Departments.
    The direct costs of the rule are borne by noncitizens and the 
Departments. To the extent that any noncitizens are made ineligible for 
asylum by virtue of the rule but would have received asylum in the 
absence of this rule, such an outcome would entail the denial of asylum 
and its attendant benefits, although such persons may continue to be 
eligible for statutory withholding of removal and withholding under the 
CAT. Unlike asylees, noncitizens granted these more limited forms of 
protection do not have a path to citizenship and cannot petition for 
certain family members to join them in the United States. Such 
noncitizens may also be required to apply for work authorization more 
frequently than an asylee would. As discussed in this preamble, the 
rule's manifestation of fear and reasonable probability standards may 
also engender a risk that some noncitizens with meritorious claims may 
not be referred for credible fear interviews or to removal proceedings 
to seek protection. In these cases, there may be costs to noncitizens 
that result from their removal.
    The rule may also require additional time for AOs and IJs, during 
credible fear screenings and reviews, respectively, to inquire into the 
applicability of the rule and the noncitizen's fear claim. Similarly, 
the rule will require additional time for IJs during section 240 
removal proceedings. However, as discussed throughout this preamble, 
the rule is expected to result in significantly reduced irregular 
migration. Accordingly, the Departments expect the additional time 
spent by AOs and IJs on implementation of the rule to be mitigated by a 
comparatively smaller number of credible fear cases than AOs and IJs 
would otherwise have been required to handle in the absence of the 
rule.
    Other entities may also incur some indirect, downstream costs as a 
result of the rule. The nature and scale of such effects will vary by 
entity and should be considered relative to the baseline condition that 
would exist in the absence of this rule, which as noted above is the 
continued application of the Circumvention of Lawful Pathways rule. As 
compared to the baseline condition, this rule is expected to reduce 
irregular migration. The Departments welcome comments on the effects 
described above to inform analysis in a final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), as amended by the Small 
Business Regulatory Enforcement and Fairness Act of 1996, requires an 
agency to prepare and make available to the public a final regulatory 
flexibility analysis that describes the effect of a rule on small 
entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions) when the agency was required ``to publish a 
general notice of proposed rulemaking'' prior to issuing the final 
rule. See 5 U.S.C. 604(a). Because this IFR is being issued without a 
prior proposal, on the grounds set forth above, a regulatory 
flexibility analysis is not required under the RFA.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of the UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule, that includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
Tribal governments, in the aggregate, or by the private sector. The 
term ``Federal mandate'' means a Federal intergovernmental mandate or a 
Federal private sector mandate. See 2 U.S.C. 658(6), 1502(1). A 
``Federal intergovernmental mandate,'' in turn, is a provision that 
would impose an enforceable duty upon State, local, or Tribal 
governments (except as a condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program). See id. 
658(5). And the term ``Federal private sector mandate'' refers to a 
provision that would impose an enforceable duty upon the private sector 
(except as a condition of Federal assistance or a duty arising from 
participation in a voluntary Federal program). See id. 658(7).
    This IFR is not subject to the UMRA because the Departments did not 
publish a proposed rule prior to this action. In addition, this rule 
does not contain a Federal mandate, because it does not impose any 
enforceable duty upon any other level of government or private sector 
entity. Any downstream effects on such entities would arise solely due 
to an entity's voluntary choices, and the voluntary choices of others, 
and would not be a consequence of an enforceable duty imposed by this 
rule. Similarly, any costs or transfer effects on State and local 
governments would not result from a Federal mandate as that term is 
defined under UMRA. The requirements of title II of the UMRA, 
therefore, do not apply, and the Departments have not prepared a 
statement under the UMRA.

E. Congressional Review Act

    OMB has determined that this rule does not meet the criteria set 
forth in 5 U.S.C. 804(2). The rule will be submitted to Congress and 
the Government Accountability Office consistent with the Congressional 
Review Act's requirements no later than its effective date.

F. Executive Order 13132 (Federalism)

    This 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 does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This IFR meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Family Assessment

    The Departments have reviewed this rule in line with the 
requirements of section 654 of the Treasury and General Government 
Appropriations Act, 1999, enacted as part of the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999. The Departments 
have reviewed the criteria specified in section 654(c)(1), by 
evaluating whether this regulatory action (1) impacts the

[[Page 48768]]

stability or safety of the family, particularly in terms of marital 
commitment; (2) impacts the authority of parents in the education, 
nurture, and supervision of their children; (3) helps the family 
perform its functions; (4) affects disposable income or poverty of 
families and children; (5) only financially impacts families, if at 
all, to the extent such impacts are justified; (6) may be carried out 
by State or local governments or by the family; or (7) establishes a 
policy concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If the agency 
determines a regulation may negatively affect family well-being, then 
the agency must provide an adequate rationale for its implementation.
    The Departments have determined that the implementation of this 
rule will not impose a negative impact on family well-being or the 
autonomy or integrity of the family as an institution.

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

    This rule would not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

J. National Environmental Policy Act

    DHS and its components analyze actions to determine whether the 
National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C. 4321 et 
seq., 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 \376\ and 
Instruction Manual 023-01-001-01, Revision 01 (``Instruction Manual 
023-01'') \377\ 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.
---------------------------------------------------------------------------

    \376\ 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.
    \377\ DHS, Implementation of the National Environmental Policy 
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6, 
2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
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    Federal agencies may establish categorical exclusions for 
categories of actions they determine normally do not significantly 
affect the quality of the human environment and, therefore, do not 
require the preparation of an Environmental Assessment or Environmental 
Impact Statement. 42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 
1508.1(d). DHS has established categorical exclusions, which are listed 
in Appendix A of its Instruction Manual 023-01. 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.\378\
---------------------------------------------------------------------------

    \378\ Instruction Manual 023-01 at V.B(2)(a) through (c).
---------------------------------------------------------------------------

    The IFR effectuates the following three changes to the process for 
those seeking asylum, withholding of removal, or protection under the 
CAT during emergency border circumstances:
     For those who enter across the southern border during 
emergency border circumstances and are not described in section 3(b) of 
the Proclamation, rather than asking specific questions of every 
noncitizen encountered and processed for expedited removal to elicit 
whether the noncitizen may have a fear of persecution or an intent to 
apply for asylum, DHS will provide general notice regarding the 
processes for seeking asylum, withholding of removal, and protection 
under the CAT, and will only refer a noncitizen for credible fear 
screenings if the noncitizen manifests a fear of return, or expresses 
an intention to apply for asylum or protection, expresses a fear of 
persecution or torture, or expresses a fear of return to his or her 
country or the country of removal.
     During emergency border circumstances, persons who enter 
the United States across the southern border and who are not described 
in paragraph 3(b) of the Proclamation will be ineligible for asylum 
unless they demonstrate by a preponderance of the evidence that 
exceptionally compelling circumstances exist, including if the 
noncitizen demonstrates that they or a member of their family as 
described in 8 CFR 208.30(c) with whom they are traveling: (1) faced an 
acute medical emergency; (2) faced an imminent and extreme threat to 
life or safety, such as an imminent threat of rape, kidnapping, 
torture, or murder; or (3) satisfied the definition of ``victim of a 
severe form of trafficking in persons'' provided in 8 CFR 214.11.
     The limitation on asylum eligibility will be applied 
during credible fear interviews and reviews, and those who enter across 
the southern border during emergency border circumstances and who are 
not described in section 3(b) of the Proclamation and do not establish 
exceptionally compelling circumstances will receive a negative credible 
fear determination with respect to asylum and will thereafter be 
screened for a reasonable probability of persecution because of a 
protected ground or torture, a higher standard than that applied to 
noncitizens in a similar posture under the Circumvention of Lawful 
Pathways rule.
    Given the nature of the IFR, it is categorically excluded from 
DHS's NEPA implementing procedures, as it satisfies all three relevant 
conditions. First, the Departments have determined that the IFR fits 
clearly within categorical exclusions A3(a) and (d) of DHS's 
Instruction Manual 023-01, Appendix A, for the promulgation of rules of 
a ``strictly administrative or procedural nature'' and rules that 
``interpret or amend an existing regulation without changing its 
environmental effect,'' respectively. The IFR changes certain 
administrative procedures relating to the processing of certain 
noncitizens during emergency border circumstances, and does not result 
in a change in environmental effect. Second, this IFR is a standalone 
rule and is not part of any larger action. Third, the Departments are 
not aware of any extraordinary circumstances that would cause a 
significant environmental impact. Therefore, this IFR is categorically 
excluded, and no further NEPA analysis or documentation is required. 
DOJ is adopting the DHS determination that this IFR is categorically 
excluded under A3(a) and A3(d) of DHS's Instruction Manual 023-01, 
Appendix A, because the IFR's asylum limitation and the reasonable 
probability standard will be applied by EOIR in substantially the same 
manner as it will be applied by DHS. See 40 CFR 1506.3(d) (setting 
forth the ability of an agency to adopt another agency's categorical 
exclusion determination).

K. Paperwork Reduction Act

    This IFR does not adopt 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,

[[Page 48769]]

44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 
1320.

List of Subjects

8 CFR Part 208

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

8 CFR Part 235

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

8 CFR Part 1208

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

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR parts 208 and 235 as 
follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

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


0
2. In Sec.  208.13, add paragraph (g) to read as follows:


Sec.  208.13  Establishing asylum eligibility.

* * * * *
    (g) Entry during emergency border circumstances. For an alien who 
entered the United States across the southern border (as that term is 
described in section 4(d) of the Presidential Proclamation of June 3, 
2024, Securing the Border) between the dates described in section 1 of 
such Proclamation and section 2(a) of such Proclamation (or the 
revocation of such Proclamation, whichever is earlier), or between the 
dates described in section 2(b) of such Proclamation and section 2(a) 
of such Proclamation (or the revocation of such Proclamation, whichever 
is earlier), refer to the provisions on asylum eligibility described in 
Sec.  208.35.

0
3. Add subpart D, consisting of Sec.  208.35, to read as follows:

Subpart D--Eligibility for Aliens Who Enter the United States 
During Emergency Border Circumstances


Sec.  208.35  Limitation on asylum eligibility and credible fear 
procedures for those who enter the United States during emergency 
border circumstances.

    Notwithstanding any contrary section of this part, including 
Sec. Sec.  208.2, 208.13, 208.30, and 208.33--
    (a) Limitation on eligibility. (1) Applicability. An alien who is 
described in Sec.  208.13(g) and who is not described in section 3(b) 
of the Presidential Proclamation of June 3, 2024, Securing the Border, 
is ineligible for asylum.
    (2) Exceptions. (i) This limitation on eligibility does not apply 
if the alien demonstrates by a preponderance of the evidence that 
exceptionally compelling circumstances exist, including if the alien, 
or the alien's family member as described in Sec.  208.30(c) with whom 
the alien is traveling, demonstrates by a preponderance of the evidence 
that, at the time of entry, the alien or a member of the alien's family 
as described in Sec.  208.30(c) with whom the alien is traveling:
    (A) Faced an acute medical emergency;
    (B) Faced an imminent and extreme threat to life or safety, such as 
an imminent threat of rape, kidnapping, torture, or murder; or
    (C) Satisfied the definition of ``victim of a severe form of 
trafficking in persons'' provided in Sec.  214.11 of this chapter.
    (ii) An alien who demonstrates by a preponderance of the evidence 
any of the circumstances in paragraph (a)(2)(i) of this section shall 
necessarily establish exceptionally compelling circumstances.
    (iii) An alien described in section 3(b) of the Presidential 
Proclamation of June 3, 2024, Securing the Border, or who establishes 
exceptionally compelling circumstances under paragraph (a)(2)(i) of 
this section has established exceptionally compelling circumstances 
under Sec.  208.33(a)(3).
    (b) Application in credible fear determinations. (1) Initial 
determination. The asylum officer shall first determine whether the 
alien is subject to the limitation on asylum eligibility under 
paragraph (a) of this section.
    (i) Where the asylum officer determines that the alien is subject 
to the limitation on asylum eligibility under paragraph (a) of this 
section, then the asylum officer shall enter a negative credible fear 
determination with respect to the alien's asylum claim and continue to 
consider the alien's claim under paragraph (b)(2) of this section.
    (ii) Where the asylum officer determines that the alien is not 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section because the alien is not described in Sec.  208.13(g), the 
asylum officer shall follow the procedures in Sec.  208.33(b).
    (iii) Where the asylum officer determines that the alien is not 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section because the alien is described in section 3(b) of the 
Proclamation or is excepted from the limitation on asylum eligibility 
under paragraph (a)(2) of this section, the asylum officer shall follow 
the procedures in Sec.  208.30.
    (2) Protection eligibility screening. (i) In cases in which the 
asylum officer enters a negative credible fear determination under 
paragraph (b)(1)(i) or (b)(3) of this section, the asylum officer will 
assess the alien under the procedures set forth in Sec.  
208.33(b)(2)(i) except that the asylum officer will apply a reasonable 
probability standard. For purposes of this section, reasonable 
probability means substantially more than a reasonable possibility, but 
somewhat less than more likely than not, that the alien would be 
persecuted because of his or her race, religion, nationality, 
membership in a particular social group or political opinion, or 
tortured, with respect to the designated country or countries of 
removal.
    (ii) In cases described in paragraph (b)(2)(i) or (b)(3) of this 
section, if the alien establishes a reasonable probability of 
persecution or torture with respect to the designated country or 
countries of removal, the Department will issue a positive credible 
fear determination and follow the procedures in Sec.  208.30(f). For 
any case in which USCIS retains jurisdiction over the application for 
asylum pursuant to Sec.  208.2(a)(1)(ii) for further consideration in 
an interview pursuant to Sec.  208.9, USCIS may require aliens who 
received a negative credible fear determination with respect to their 
asylum claim under paragraph (b)(1)(i) of this section to submit a Form 
I-589, Application for Asylum and for Withholding of Removal, together 
with any additional supporting evidence in accordance with the 
instructions on the form, to USCIS within 30 days from the date of 
service of the positive credible fear determination. The date of 
service of the positive credible fear determination remains the date of 
filing and receipt of the asylum application under Sec.  208.3(a)(2); 
however, for any case in which USCIS requires the alien to submit a 
Form I-589, it may extend the

[[Page 48770]]

timelines in Sec.  208.9(a)(1) and (e)(2) by up to 15 days. If USCIS 
requires the alien to submit a Form I-589 and the alien fails to do so 
within the applicable timeline, USCIS shall issue a Form I-862, Notice 
to Appear.
    (iii) In cases described in paragraph (b)(2)(i) or (b)(3) of this 
section, if the alien fails to establish a reasonable probability of 
persecution or torture with respect to all designated countries of 
removal, the asylum officer will provide the alien with a written 
notice of decision and inquire whether the alien wishes to have an 
immigration judge review the negative credible fear determinations.
    (iv) The alien must indicate whether he or she desires such review 
on a Record of Negative Fear Finding and Request for Review by 
Immigration Judge.
    (v) Only if the alien requests such review by so indicating on the 
Record of Negative Fear shall the asylum officer serve the alien with a 
Notice of Referral to Immigration Judge. The record of determination, 
including copies of the Notice of Referral to Immigration Judge, the 
asylum officer's notes, the summary of the material facts, and other 
materials upon which the determination was based shall be provided to 
the immigration judge with the negative determination. Immigration 
judges will evaluate the case as provided in 8 CFR 1208.35(b). The case 
shall then proceed as set forth in paragraphs (b)(2)(v)(A) and (B) of 
this section.
    (A) Where the immigration judge issues a positive credible fear 
determination under 8 CFR 1208.35(b)(2)(iii) or (b)(4), the case shall 
proceed under 8 CFR 1208.30(g)(2)(iv)(B).
    (B) Where the immigration judge issues a negative credible fear 
determination, the case shall be returned to the Department for removal 
of the alien. No appeal shall lie from the immigration judge's decision 
and no request for reconsideration may be submitted to USCIS. 
Nevertheless, USCIS may, in its sole discretion, reconsider a negative 
determination.
    (3) Procedures in the absence of the limitation on asylum 
eligibility. If the limitation on asylum eligibility in paragraph (a) 
of this section is held to be invalid or unenforceable by its terms, or 
as applied to any person or circumstance, then during the period(s) 
described in Sec.  208.13(g), the asylum officer shall, as applicable, 
apply a reasonable probability screening standard for any protection 
screening under Sec.  208.33(b)(2).
    (c) Family unity in the asylum merits process. In cases where the 
Department retains jurisdiction over the application for asylum 
pursuant to Sec.  208.2(a)(1)(ii), where a principal asylum applicant 
is found eligible for withholding of removal under section 241(b)(3) of 
the Act or withholding of removal under Sec.  208.16(c)(2) and would be 
granted asylum but for the limitation on asylum in paragraph (a)(1) of 
this section or Sec.  208.33(a), or both, and where an accompanying 
spouse or child as defined in section 208(b)(3)(A) of the Act does not 
independently qualify for asylum or other protection from removal or 
the principal asylum applicant has a spouse or child who would be 
eligible to follow to join that applicant as described in section 
208(b)(3)(A) of the Act, the asylum officer may deem the principal 
applicant to have established exceptionally compelling circumstances 
under paragraph (a)(2)(i) of this section and Sec.  208.33(a)(3)(i).
    (d) Continuing applicability of limitation on eligibility. (1) 
Subject to paragraph (d)(2) of this section, the limitation on asylum 
eligibility in paragraph (a) of this section shall apply to any asylum 
application filed by an alien who entered the United States during the 
time and in the manner described in Sec.  208.13(g) and who is not 
covered by an exception in paragraph (d)(2) of this section, regardless 
of when the application is filed and adjudicated.
    (2) The limitation on asylum eligibility in paragraph (a) of this 
section shall not apply to an alien who was under the age of 18 at the 
time of the alien's entry, if--
    (i) The alien is applying for asylum as a principal applicant; and
    (ii) The asylum application is filed after the period of time in 
208.13(g) during which the alien entered.
    (e) Severability. The Department intends that in the event that any 
provision of this section, Sec.  235.15, or the Presidential 
Proclamation of June 3, 2024, Securing the Border, is held to be 
invalid or unenforceable by its terms, or as applied to any person or 
circumstance, the provisions of this section and Sec.  235.15 should be 
construed so as to continue to give the maximum effect to those 
provisions permitted by law, unless such holding is that a provision is 
wholly invalid and unenforceable, in which event the provision should 
be severed from the remainder of this section and the holding should 
not affect the remainder of this section or the application of the 
provision to persons not similarly situated or to dissimilar 
circumstances.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
4. The authority citation for part 235 continues to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225, 
1226, 1228, 1365a note, 1365b, 1379, 1731-32; 48 U.S.C. 1806 and 
notes, 1807, and 1808 (Title VII, Pub. L. 110-229, 122 Stat. 754); 8 
U.S.C. 1185 note (sec. 7209, Pub. L. 108-458, 118 Stat. 3638, and 
Pub. L. 112-54, 125 Stat. 550).


0
5. Add Sec.  235.15 to read as follows:


Sec.  235.15  Inadmissible aliens and expedited removal during 
emergency border circumstances.

    (a) Applicability. Notwithstanding Sec. Sec.  235.3(b)(2)(i) and 
235.3(b)(4)(i) (but not Sec.  235.3(b)(4)(ii)), the provisions of this 
section apply to any alien described in Sec.  235.3(b)(1)(i) through 
(ii) if the alien is described in Sec.  208.13(g) and is not described 
in section 3(b) of the Presidential Proclamation of June 3, 2024, 
Securing the Border.
    (b) Expedited removal. (1) [Reserved]
    (2) Determination of inadmissibility--(i) Record of proceeding. (A) 
A noncitizen who is arriving in the United States, or other alien as 
designated pursuant to Sec.  235.3(b)(1)(ii), who is determined to be 
inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act (except 
an alien for whom documentary requirements are waived under Sec.  
211.1(b)(3) or Sec.  212.1 of this chapter) shall be ordered removed 
from the United States in accordance with section 235(b)(1) of the Act. 
In every case in which the expedited removal provisions will be applied 
and before removing an alien from the United States pursuant to this 
section, the examining immigration officer shall create a record of the 
facts of the case and statements made by the alien.
    (B) The examining immigration officer shall advise the alien of the 
charges against him or her on Form I-860, Notice and Order of Expedited 
Removal, and the alien shall be given an opportunity to respond to 
those charges. After obtaining supervisory concurrence in accordance 
with Sec.  235.3(b)(7), the examining immigration official shall serve 
the alien with Form I-860 and the alien shall sign the form 
acknowledging receipt. Interpretative assistance shall be used if 
necessary to communicate with the alien.
    (ii) [Reserved]
    (iii) [Reserved]
    (3) [Reserved]
    (4) Claim of asylum or fear of persecution or torture. (i) If an 
alien subject to the expedited removal

[[Page 48771]]

provisions manifests a fear of return, or expresses an intention to 
apply for asylum or protection, expresses a fear of persecution or 
torture, or expresses a fear of return to his or her country or the 
country of removal, the inspecting officer shall not proceed further 
with removal of the alien until the alien has been referred for an 
interview by an asylum officer in accordance with part 208 of this 
chapter.
    (A) The inspecting immigration officer shall document whether the 
alien has manifested or affirmatively expressed such intention, fear, 
or concern.
    (B) The referring officer shall provide the alien with a written 
disclosure describing the purpose of the referral and the credible fear 
interview process; the right to consult with other persons prior to the 
interview and any review thereof at no expense to the United States 
Government; the right to request a review by an immigration judge of 
the asylum officer's credible fear determination; and the consequences 
of failure to establish a credible fear of persecution or torture.
    (ii) [Reserved]
    (c)-(f) [Reserved]
    (g) Severability. The Department intends that in the event that any 
provision of paragraphs (a), (b)(2)(i), and (b)(4) of this section, 
Sec.  208.35, or the Presidential Proclamation of June 3, 2024, 
Securing the Border, is held to be invalid or unenforceable by its 
terms, or as applied to any person or circumstance, the provisions of 
this section and Sec.  208.35 should be construed so as to continue to 
give the maximum effect to those provisions permitted by law, unless 
such holding is that a provision is wholly invalid and unenforceable, 
in which event the provision should be severed from the remainder of 
this section and the holding should not affect the remainder of this 
section or the application of the provision to persons not similarly 
situated or to dissimilar circumstances.

DEPARTMENT OF JUSTICE

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

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

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


0
7. In Sec.  1208.13, add paragraph (g) to read as follows:


Sec.  1208.13  Establishing asylum eligibility.

* * * * *
    (g) Entry during emergency border circumstances. For an alien who 
entered the United States across the southern border (as that term is 
described in section 4(d) of the Presidential Proclamation of June 3, 
2024, Securing the Border) between the dates described in section 1 of 
such Proclamation and section 2(a) of such Proclamation (or the 
revocation of such Proclamation, whichever is earlier), or between the 
dates described in section 2(b) of such Proclamation and section 2(a) 
of such Proclamation (or the revocation of such Proclamation, whichever 
is earlier) refer to the provisions on asylum eligibility described in 
Sec.  1208.35.

0
8. Add subpart D, consisting of Sec.  1208.35, to read as follows:

Subpart D--Eligibility for Aliens Who Enter the United States 
During Emergency Border Circumstances


Sec.  1208.35  Limitation on asylum eligibility and credible fear 
procedures for those who enter the United States during emergency 
border circumstances.

    Notwithstanding any contrary section of this chapter, including 
Sec. Sec.  1003.42, 1208.2, 1208.13, 1208.30, and 1208.33--
    (a) Limitation on eligibility. (1) Applicability. An alien who is 
described in Sec.  1208.13(g) and who is not described in section 3(b) 
of the Presidential Proclamation of June 3, 2024, Securing the Border, 
is ineligible for asylum.
    (2) Exceptions. (i) This limitation on eligibility does not apply 
if the alien demonstrates by a preponderance of the evidence that 
exceptionally compelling circumstances exist, including if the alien, 
or the alien's family member as described in 8 CFR 208.30(c) with whom 
the alien is traveling, demonstrates by a preponderance of the evidence 
that, at the time of entry, the alien or a member of the alien's family 
as described in Sec.  208.30(c) with whom the alien is traveling:
    (A) Faced an acute medical emergency;
    (B) Faced an imminent and extreme threat to life or safety, such as 
an imminent threat of rape, kidnapping, torture, or murder; or
    (C) Satisfied the definition of ``victim of a severe form of 
trafficking in persons'' provided in Sec.  214.11 of this title.
    (ii) An alien who demonstrates by a preponderance of the evidence 
any of the circumstances in paragraph (a)(2)(i) of this section shall 
necessarily establish exceptionally compelling circumstances.
    (iii) An alien described in section 3(b) of the Presidential 
Proclamation of June 3, 2024, Securing the Border, or who establishes 
exceptionally compelling circumstances under paragraph (a)(2)(i) of 
this section has established exceptionally compelling circumstances 
under Sec.  1208.33(a)(3).
    (b) Application in credible fear determinations. (1) Where an 
asylum officer has issued a negative credible fear determination 
pursuant to 8 CFR 208.35(b), and the alien has requested immigration 
judge review of that credible fear determination, the immigration judge 
shall evaluate the case de novo, as specified in paragraph (b)(2) of 
this section. In doing so, the immigration judge shall take into 
account the credibility of the statements made by the alien in support 
of the alien's claim and such other facts as are known to the 
immigration judge.
    (2) The immigration judge shall first determine whether the alien 
is subject to the limitation on asylum eligibility under paragraph (a) 
of this section.
    (i) Where the immigration judge determines that the alien is not 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section because the alien is not described in Sec.  1208.13(g), 
the immigration judge shall follow the procedures in Sec.  1208.33(b).
    (ii) Where the immigration judge determines that the alien is not 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section because the alien is described in section 3(b) of the 
Proclamation or is excepted from the limitation on asylum eligibility 
under paragraph (a)(2) of this section, the immigration judge shall 
follow the procedures in Sec.  1208.30.
    (iii) Where the immigration judge determines that the alien is 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section, the immigration judge shall assess the alien under the 
procedures set forth in Sec.  1208.33(b)(2)(ii) except that the 
immigration judge shall apply a reasonable probability standard. For 
purposes of this section, reasonable probability means substantially 
more than a reasonable possibility, but somewhat less than more likely 
than not, that the alien would be persecuted because of his or her 
race, religion, nationality, membership in a particular social group or 
political opinion, or tortured, with respect to the designated country 
or countries of removal.
    (3) Following the immigration judge's determination, the case will 
proceed as indicated in 8 CFR 208.35(b)(2)(v)(A) and (B).
    (4) If the limitation on asylum eligibility in paragraph (a) of 
this section is held to be invalid or

[[Page 48772]]

unenforceable by its terms, or as applied to any person or 
circumstance, then during the period(s) described in Sec.  1208.13(g), 
the immigration judge shall, as applicable, apply a reasonable 
probability screening standard for any protection screening under Sec.  
1208.33(b)(2)(ii).
    (c) Family unity and removal proceedings. In removal proceedings 
under section 240 of the Act, where a principal asylum applicant is 
found eligible for withholding of removal under section 241(b)(3) of 
the Act or withholding of removal under Sec.  1208.16(c)(2) and would 
be granted asylum but for the limitation on asylum eligibility in 
paragraph (a)(1) of this section or Sec.  1208.33(a), or both, and 
where an accompanying spouse or child as defined in section 
208(b)(3)(A) of the Act does not independently qualify for asylum or 
other protection from removal or the principal asylum applicant has a 
spouse or child who would be eligible to follow to join that applicant 
as described in section 208(b)(3)(A) of the Act, the alien shall be 
deemed to have established exceptionally compelling circumstances under 
paragraph (a)(2)(i) of this section and Sec.  1208.33(a)(3)(i).
    (d) Continuing applicability of limitation on eligibility. (1) 
Subject to paragraph (d)(2) of this section, the limitation on asylum 
eligibility in paragraph (a) of this section shall apply to any asylum 
application filed by an alien who entered the United States during the 
time and in the manner described in Sec.  1208.13(g) and who is not 
covered by an exception in paragraph (d)(2) of this section, regardless 
of when the application is filed and adjudicated.
    (2) The limitation on asylum eligibility in paragraph (a) of this 
section shall not apply to an alien who was under the age of 18 at the 
time of the alien's entry, if--
    (i) The alien is applying for asylum as a principal applicant; and
    (ii) The asylum application is filed after the period of time in 
1208.13(g) during which the alien entered.
    (e) Severability. The Department intends that in the event that any 
provision of this section or the Presidential Proclamation of June 3, 
2024, Securing the Border, is held to be invalid or unenforceable by 
its terms, or as applied to any person or circumstance, the provisions 
of this section should be construed so as to continue to give the 
maximum effect to those provisions permitted by law, unless such 
holding is that a provision is wholly invalid and unenforceable, in 
which event the provision should be severed from the remainder of this 
section and the holding should not affect the remainder of this section 
or the application of the provision to persons not similarly situated 
or to dissimilar circumstances.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2024-12435 Filed 6-4-24; 4:15 pm]
BILLING CODE 4410-30-P; 9111-97-P