Federal Register, Volume 89 Issue 111 (Friday, June 7, 2024)

[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

[[Page 48711]]

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
One^TM 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.
---------------------------------------------------------------------------

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.
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\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.

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------

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

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/.

---------------------------------------------------------------------------

[[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\
---------------------------------------------------------------------------

\83\ Id. ] 11.
\84\ Id.
\85\ Id.
\86\ Id.
\87\ Id.
---------------------------------------------------------------------------

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

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

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

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

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
One^TM 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'').
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

\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 One^TM 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.
---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

[[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 One^TM 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\
---------------------------------------------------------------------------

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

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

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

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

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