Proposed Rule2021-17779
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
Primary source
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Published
August 20, 2021
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
The Department of Justice ("DOJ") and the Department of Homeland Security ("DHS") (collectively, "the Departments") are proposing to amend the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. Under the proposed rule, such individuals could have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act ("INA" or "the Act") ("statutory withholding of removal"), or protection under the regulations issued pursuant to the legislation implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services ("USCIS"). Such individuals who are granted relief by the asylum officer would be entitled to asylum, withholding of removal, or protection under CAT, as appropriate. Such individuals who are denied protection would be able to seek prompt, de novo review with an immigration judge ("IJ") in the DOJ Executive Office for Immigration Review ("EOIR"), with appeal available to the Board of Immigration Appeals ("BIA"). These changes are intended to improve the Departments' ability to consider the asylum claims of individuals encountered at or near the border more promptly while ensuring fundamental fairness. In addition, among other changes to the asylum process, the Departments are proposing to return to the regulatory framework governing the credible fear screening process in place before various regulatory changes made from the end of 2018 through the end of 2020, so as to apply once more the longstanding "significant possibility" screening standard to all protection claims, but not to apply the mandatory bars to asylum and withholding of removal (with limited exception) at this initial screening stage.
Full Text
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<title>Federal Register, Volume 86 Issue 159 (Friday, August 20, 2021)</title>
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[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Proposed Rules]
[Pages 46906-46950]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17779]
[[Page 46905]]
Vol. 86
Friday,
No. 159
August 20, 2021
Part II
Department of Homeland Security
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8 CFR Parts 208 and 235
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1003, 1208, and 1235
Procedures for Credible Fear Screening and Consideration of Asylum,
Withholding of Removal, and CAT Protection Claims by Asylum Officers;
Proposed Rule
Federal Register / Vol. 86 , No. 159 / Friday, August 20, 2021 /
Proposed Rules
[[Page 46906]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
[CIS No. 2692-21; DHS Docket No. USCIS-2021-0012]
RIN 1615-AC67
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208, and 1235
[A.G. Order No. 5116-2021]
RIN 1125-AB20
Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
Officers
AGENCY: Executive Office for Immigration Review, Department of Justice;
U.S. Citizenship and Immigration Services, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (``DOJ'') and the Department of
Homeland Security (``DHS'') (collectively, ``the Departments'') are
proposing to amend the regulations governing the determination of
certain protection claims raised by individuals subject to expedited
removal and found to have a credible fear of persecution or torture.
Under the proposed rule, such individuals could have their claims for
asylum, withholding of removal under section 241(b)(3) of the
Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory
withholding of removal''), or protection under the regulations issued
pursuant to the legislation implementing U.S. obligations under Article
3 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (``CAT'') initially adjudicated by an
asylum officer within U.S. Citizenship and Immigration Services
(``USCIS''). Such individuals who are granted relief by the asylum
officer would be entitled to asylum, withholding of removal, or
protection under CAT, as appropriate. Such individuals who are denied
protection would be able to seek prompt, de novo review with an
immigration judge (``IJ'') in the DOJ Executive Office for Immigration
Review (``EOIR''), with appeal available to the Board of Immigration
Appeals (``BIA''). These changes are intended to improve the
Departments' ability to consider the asylum claims of individuals
encountered at or near the border more promptly while ensuring
fundamental fairness. In addition, among other changes to the asylum
process, the Departments are proposing to return to the regulatory
framework governing the credible fear screening process in place before
various regulatory changes made from the end of 2018 through the end of
2020, so as to apply once more the longstanding ``significant
possibility'' screening standard to all protection claims, but not to
apply the mandatory bars to asylum and withholding of removal (with
limited exception) at this initial screening stage.
DATES: Submission of public comments: Written comments and related
material must be submitted on or October 19, 2021. The electronic
Federal Docket Management System will accept comments prior to midnight
Eastern standard time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this rulemaking
package, identified by DHS Docket No. USCIS-2021-0012, through the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS, USCIS, DOJ, or EOIR officials,
will not be considered comments on the proposed rule 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 also are not accepting mailed
comments at this time. If you cannot submit your comment by using
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For USCIS: Andria Strano, Acting Chief, Division of Humanitarian
Affairs, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000
(not a toll-free call).
For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
Executive Office for Immigration Review, 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. Background
A. Improving the Expedited Removal Process
B. DOJ and DHS Authority To Propose This Rule
C. The Current Asylum and Expedited Removal Process
III. Discussion of the Proposed Rule
A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)
B. Credible Fear Screening Process--Proposed 8 CFR 208.30
C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)
D. Proceedings for Further Consideration of the Application for
Asylum by USCIS Asylum Officer in Asylum and Withholding Merits
Hearing for Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a)
and (c); 208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f);
235.6(a)(1); 1003.42; and 1208.30(g)
E. Application Review Proceedings Before the IJ--Proposed 8 CFR
1208.2(c), 1003.48
F. Severability
G. Discretion/Phased Implementation
Statutory and Regulatory Requirements
H. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
I. Regulatory Flexibility Act
J. Unfunded Mandates Reform Act of 1995
K. Congressional Review Act
L. Executive Order 13132 (Federalism)
M. Executive Order 12988 (Civil Justice Reform)
N. Family Assessment
O. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
P. National Environmental Policy Act
Q. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, comments, and arguments on all aspects
of this rule by the deadline stated above. The Departments also invite
comments that relate to the economic, environmental, or federalism
effects that might result from this rule. All comments must be
submitted in English or accompanied by an English translation. Comments
that will provide the most assistance to the Departments in developing
these changes will reference a specific portion of the rule; explain
the reason for any
[[Page 46907]]
recommended change; and include data, information, or authority that
support such recommended change. Comments submitted in a manner other
than the one listed above, including emails or letters sent to
departmental officials, will not be considered comments on the proposed
rule and may not receive a response from the Departments.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2021-0012 for this rulemaking. All submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 from public viewing
information provided in comments 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2021-0012. You also may sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Background
There is wide agreement that the system for dealing with asylum and
related protection claims at the southwest border has long been
``overwhelmed'' and in desperate need of repair.\1\ As the number of
such claims has skyrocketed over the years, the system has proven
unable to keep pace, resulting in large backlogs and lengthy
adjudication delays. A system that takes years to reach a result is
simply not a functional one. It delays justice and certainty for those
who need protection, and it encourages abuse by those who will not
qualify for protection and smugglers who exploit the delay for profit.
The aim of this rule is to begin replacing the current system, within
the confines of the law, with a better and more efficient one that will
adjudicate protection claims fairly and expeditiously. The proposed
rule would accomplish this goal by transferring the initial
responsibility for adjudicating asylum and related protection claims
\2\ made by noncitizens encountered at or near the border from IJs in
EOIR to asylum officers in USCIS. The proposed rule would also provide
for the prompt filing of asylum applications by such individuals, while
also providing ample procedural safeguards designed to ensure due
process, respect human dignity, and promote equity.
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\1\ See DHS, Homeland Security Advisory Council, Final Emergency
Interim Report: CBP Families and Children Care Panel, at 1 (Apr. 16,
2019), <a href="https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emergency-interim-report.pdf">https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emergency-interim-report.pdf</a>; Randy Capps et al., From
Control to Crisis: Changing Trends and Policies Reshaping U.S.-
Mexico Border Enforcement 7, Migration Policy Institute (MPI) (Aug.
2019), <a href="https://www.migrationpolicy.org/sites/default/files/publications/BorderSecurity-ControltoCrisis-Report-Final.pdf">https://www.migrationpolicy.org/sites/default/files/publications/BorderSecurity-ControltoCrisis-Report-Final.pdf</a> (``as
arrivals have surged to levels unseen in years, border enforcement
and asylum systems have been overwhelmed''); Lora Ries, Securing the
Border and Fixing Our Broken Immigration System, Heritage Foundation
(Sept. 21, 2020), <a href="https://www.heritage.org/immigration/commentary/securing-the-border-and-fixing-our-broken-immigration-system">https://www.heritage.org/immigration/commentary/securing-the-border-and-fixing-our-broken-immigration-system</a> (``our
immigration court system is so overwhelmed, [asylum] cases of merit
are combined with meritless cases, each of which can take years to
resolve''); Greg Chen & Peter Markowitz, Recommendations for DOJ and
EOIR Leadership To Systematically Remove Non-Priority Cases from the
Immigration Court Backlog 1, Am. Immigr. Law. Ass'n (Feb. 11, 2021),
<a href="https://www.aila.org/infonet/">https://www.aila.org/infonet/</a>remove-non-priority-cases (``The
bottleneck for the entire removal system caused by the court
backlog, if not addressed quickly, presents a serious obstacle to
the Biden administration's goal of ensuring the fair and efficient
processing of all removal cases.'').
\2\ The generic term ``protection claims'' is used here to refer
to all three forms of protection addressed in this proposed rule
(asylum, statutory withholding of removal, and protection from
removal under the regulations implementing U.S. obligations under
Article 3 of the CAT).
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The current U.S. protection system at the border was initially
designed in the mid-1990s.\3\ Congress established an expedited removal
process for noncitizens who present themselves at a port of entry for
inspection or are encountered at or near the border and who are found
to be inadmissible because they lack valid entry documents or because
they sought to enter the United States by fraud or misrepresentation.
INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); INA 212(a)(6)(C), (7),
8 U.S.C. 1182(a)(6)(C), (7). Congress authorized DHS to extend the
expedited removal process to certain noncitizens apprehended shortly
after crossing the border unlawfully, and DHS has exercised that
authority. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).\4\
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\3\ See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546
(1996) (``IIRIRA'').
\4\ The former Immigration and Naturalization Service (``INS'')
initially implemented expedited removal only against noncitizens
arriving at ports of entry. In 2002, DHS expanded the application of
expedited removal to noncitizens who (1) entered the United States
by sea, either by boat or other means, (2) were not admitted or
paroled into the United States, and (3) have not been continuously
present in the United States for at least 2 years. Notice
Designating Aliens Subject to Expedited Removal Under Section
235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR
68924 (Nov. 13, 2002). In 2004, DHS published an immediately
effective notice in the Federal Register to expand the application
of expedited removal to noncitizens encountered within 100 miles of
the border and to noncitizens who entered the United States without
inspection fewer than 14 days before they were encountered.
Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11,
2004). In 2019, DHS expanded the process to the full extent
authorized by statute to reach noncitizens who entered the country
without inspection less than 2 years before being apprehended and
who were encountered anywhere in the United States. Designating
Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). President
Biden has directed DHS to consider whether to modify, revoke, or
rescind that 2019 expansion. E.O. 14010, Ensuring a Timely and Fair
Expedited Removal Process, 86 FR 8267, 8270-71 (Feb. 2, 2021).
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A DHS immigration officer who encounters a noncitizen subject to
expedited removal may order the noncitizen to 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.'' INA 235 (b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If the
noncitizen indicates such an intention or fear, the immigration officer
must refer the noncitizen for an interview by an asylum officer to
determine whether the noncitizen has a ``credible fear of
persecution.'' INA 235(b)(1)(A)(ii), (B)(ii), 8 U.S.C.
1225(b)(1)(A)(ii), (B)(ii). A credible fear is defined by statute as a
``significant possibility'' that the noncitizen could establish
eligibility for asylum. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
Before various regulatory changes published between 2018 and 2020,
explained in greater detail below, the ``significant possibility''
standard also was applied to screening for eligibility for statutory
withholding of removal and CAT protection.\5\ Because those recent
regulatory changes have been vacated or enjoined, the ``significant
possibility'' standard presently applies to all three forms of
protection claims.\6\ If the asylum officer determines that the
noncitizen lacks a credible fear, that determination is subject to
expedited review by an IJ, but not by the BIA or an Article III court.
INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); see INA
[[Page 46908]]
242(a)(2)(A)(iii), (e)(2), 8 U.S.C. 1252(a)(2)(A)(iii), (e)(2).
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\5\ See generally Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S.
Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for
United States Nov. 20, 1994).
\6\ See infra note 24.
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Noncitizens placed into expedited removal and determined to have a
credible fear of persecution or torture by an asylum officer or an IJ
must be referred for ``further consideration of the application for
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The INA is
silent as to the procedures by which this ``further consideration''
should occur. Under regulations in place before December 2020,\7\ such
individuals are currently referred to IJs for removal proceedings under
section 240 of the INA, 8 U.S.C. 1229a, (``section 240 removal
proceedings'') and its implementing regulations, 8 CFR 208.30(f),
235.6(a)(1)(ii)-(iii), 1208.30(g)(2)(iv)(B). In those proceedings, IJs
conduct adversarial hearings to determine removability and adjudicate
applications for asylum, withholding or deferral of removal, and any
other forms of relief or protection.
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\7\ See infra note 24 discussing recent regulations and their
current status. The final rule entitled Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85
FR 80274, 80276 (Dec. 11, 2020) (``Global Asylum'' rule), revised
the process used to hear the asylum claim, placing noncitizens into
asylum/withholding-only proceedings instead of removal proceedings
under section 240 of the INA.
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The process put into place in 1997, under which noncitizens who
establish credible fear generally must have their asylum claims decided
through an adversarial removal proceeding before an IJ, is no longer
fit for its intended purpose. It does not adequately address the need
to adjudicate in a timely manner the rapidly increasing number of
asylum claims raised by individuals arriving in the United States.
This system was designed at a time when the vast majority of
southwest border encounters involved single adults from Mexico and
relatively few asylum claims were filed. This system has proven unable
to manage the increasing numbers and changing demographics of
noncitizens \8\ with asylum claims arriving in recent years at the
southwest border. Since the mid-2010s, the demographic characteristics
of noncitizens encountered at the border with Mexico have been utterly
transformed from being dominated by Mexican nationals to consisting
mainly of nationals from the Northern Triangle countries of Central
America (El Salvador, Guatemala, and Honduras) along with other Western
Hemisphere states; from consisting almost entirely of adults traveling
without children to including large numbers of families and
unaccompanied children; and from including very few asylum seekers to
asylum seekers making up a large share of southwest border
encounters.\9\ As a result, even as overall encounters at the southwest
border have been lower in recent years than in the 1990s and 2000s, the
demands on the U.S. asylum system have increased sharply.
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\8\ For purposes of this discussion, the Departments use the
term ``noncitizen'' synonymously with the term ``alien'' in the INA.
See INA 101(a)(3), 8 U.S.C. 1101(a)(3).
\9\ Office of Immigration Statistics, Fiscal Year 2020
Enforcement Lifecycle Report 1, Dep't of Homeland Security (Dec.
2020) (``OIS FY 2020 Lifecycle Report''), <a href="https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Special_Reports/Enforcement_Lifecycle/2020_enforcement_lifecycle_report.pdf">https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Special_Reports/Enforcement_Lifecycle/2020_enforcement_lifecycle_report.pdf</a>.
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Recent demographic changes in southwest border encounters have been
dramatic. As recently as 2009, Mexican nationals accounted for 92
percent of southwest border apprehensions.\10\ Their share fell below
50 percent for the first time ever in 2014, remained below 50 percent
between 2016 and 2019, and fell to an all-time low of 20 percent in
2019, the last full year before the COVID-19 pandemic disrupted ongoing
migration trends.\11\ Single adults accounted for about 89 percent of
southwest border encounters in 2013--a number that was likely near an
all-time low at the time--and fell to just 38 percent in 2019.\12\ Over
much of this period, U.S. Border Patrol (``USBP'') agents have
apprehended an increasing number of families and children from Northern
Triangle countries. Individuals from Northern Triangle countries
accounted for 71 percent of USBP apprehensions in 2019, a record high,
and families from all countries accounted for 56 percent of the total,
also an all-time high.\13\
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\10\ Dep't of Homeland Security, Fiscal Year 2019 Border
Security Metrics Report 52 (Aug. 5, 2020), <a href="https://www.dhs.gov/sites/default/files/publications/immigration-statistics/BSMR/ndaa_border_security_metrics_report_fy_2019_0.pdf">https://www.dhs.gov/sites/default/files/publications/immigration-statistics/BSMR/ndaa_border_security_metrics_report_fy_2019_0.pdf</a>.pdf.
\11\ U.S. Customs and Border Protection, Southwest Land Border
Encounters, <a href="https://www.cbp.gov/newsroom/stats/">https://www.cbp.gov/newsroom/stats/</a>southwest-land-
border-encounters (last visited Aug. 4, 2021); see also OIS FY 2020
Lifecycle Report, supra note 9, at 7. Mexico's share of southwest
border encounters returned to 65 percent during the first year of
the COVID-19 pandemic, but preliminary data indicate that Mexican
nationals accounted for fewer than half of southwest border
encounters during the first eight months of Fiscal Year 2021 and
only about one-third of unique individuals when controlling for
higher than usual repeat encounters due to border COVID-19
protocols.
\12\ Id. The phenomenon of families being encountered at the
border was sufficiently rare that U.S. Border Patrol only began
recording data on family unit apprehensions in 2013, and the Office
of Field Operations did so beginning in 2016.
\13\ Mike Guo, Immigration Enforcement Actions: 2019 at 4, Dep't
of Homeland Security (Sept. 2020), <a href="https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf">https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf</a>.
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These demographic changes have coincided with--and contributed to
the reversal of--what had been a long-term trend in declining border
encounters. Moreover, as the population of individuals encountered at
or near the southwest border has changed, the number of people making
fear claims after being placed in expedited removal has increased
sharply. Southwest border apprehensions by the U.S. Border Patrol fell
from over 1.6 million in 2000 to under 330,000 in 2011 before rising
back to over 850,000 in 2019.\14\ During the same period, however,
credible fear referrals to USCIS initially decreased from just over
10,000 in 2000, to just under 5000 in 2008, before increasing back over
11,000 in 2011, to over 105,000 in 2019.\15\ Thus, even as overall
border encounters fell 48 percent between 2000 and 2019, the number of
individuals making fear claims increased over 900 percent. These
changing demographics have had an equally dramatic impact on the
immigration courts responsible for determining removability. EOIR now
faces a pending caseload of approximately 1.3 million cases,\16\ with
approximately 610,000 pending asylum applications.\17\ While the corps
of IJs has more than doubled since 2014, going from 249 at the end of
FY 2014 to 539 as of April 2021,\18\ the number of pending cases has
more than tripled in that same period, growing by nearly 500,000 cases
since the end of Fiscal Year (``FY'') 2018.\19\ This surge in
[[Page 46909]]
pending and new cases, along with the temporary, partial closure of the
immigration courts to in-person hearings in 2020 and 2021 because of
the COVID-19 pandemic, has resulted in significantly increased
adjudication times. While the median completion time for cases
involving individuals who are detained through the 2nd quarter of FY
2021 was 43 days, for non-detained individuals in removal proceedings,
including arriving asylum seekers initially screened into expedited
removal who establish a credible fear of persecution, the recent
average case completion time in immigration court has been 3.75
years.\20\ Most asylum seekers arriving at the southwest border in
recent years must therefore often wait several years to have their
claims adjudicated in removal proceedings under section 240 of the Act,
8 U.S.C. 1229a. Absent changes to the current system, the continuing
arrival of large numbers of noncitizens at the southwest border with
protection claims is likely to lengthen adjudication times further.
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\14\ United States Border Patrol, Southwest Border Sectors,
Total Illegal Alien Apprehensions by Fiscal Year, <a href="https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Fiscal%20Year%20Southwest%20Border%20Sector%20Apprehensions%20%28FY%201960%20-%20FY%202019%29_0.pdf">https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Fiscal%20Year%20Southwest%20Border%20Sector%20Apprehensions%20%28FY%201960%20-%20FY%202019%29_0.pdf</a> (last
visited Aug. 4, 2021).
\15\ Bruno, Andorra, Immigration: U.S. Asylum Policy (CRS Report
No. R45539), at 37 (Feb. 19, 2019) (data through 2018), <a href="https://crsreports.congress.gov/product/pdf/R/R45539">https://crsreports.congress.gov/product/pdf/R/R45539</a>; see also U.S.
Citizenship and Immigration Services, Credible Fear Workload Report
Summary--FY2019 Total Caseload (2019 data), <a href="https://www.uscis.gov/sites/default/files/document/data/Credible_Fear_Stats_FY19.pdf">https://www.uscis.gov/sites/default/files/document/data/Credible_Fear_Stats_FY19.pdf</a> (last
visited Aug. 4, 2021).
\16\ EOIR, Executive Office for Immigration Review Adjudication
Statistics: Pending Cases, New Cases, and Total Completions (Apr.
19, 2021), <a href="https://www.justice.gov/eoir/page/file/1242166/download">https://www.justice.gov/eoir/page/file/1242166/download</a>.
\17\ EOIR, Executive Office for Immigration Review Adjudication
Statistics: Total Asylum Applications (Apr. 19, 2021), <a href="https://www.justice.gov/eoir/page/file/1106366/download">https://www.justice.gov/eoir/page/file/1106366/download</a>.
\18\ EOIR, Executive Office for Immigration Review Adjudication
Statistics: Immigration Judge (IJ) Hiring (Apr. 2021), <a href="https://www.justice.gov/eoir/page/file/1242156/download">https://www.justice.gov/eoir/page/file/1242156/download</a>.
\19\ EOIR, Executive Office for Immigration Review Adjudication
Statistics: Pending Cases, New Cases, and Total Completions (Apr.
19, 2021), <a href="https://www.justice.gov/eoir/page/file/1242166/download">https://www.justice.gov/eoir/page/file/1242166/download</a>.
\20\ According to a review of data collected as part of the FY
2020 Lifecycle Report by DHS OIS, 39% of cases of noncitizens
encountered at the southwest border in 2013 through 2019 who made
fear claims remain in EOIR proceedings as of this date. As those
cases are eventually completed, the median and average completion
time for cases could be further impacted.
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In 2020 and 2021, the situation at the southwest border was
complicated further by the COVID-19 pandemic. Pursuant to sections 362
and 365 of the Public Health Service Act, Public Law 78-410, 58 Stat.
682 (1944), 42 U.S.C. 265 and 268 (``Title 42''), the Centers for
Disease Control and Prevention (``CDC'') determined in March 2020 that
it was necessary to prohibit the introduction of certain persons from
Mexico and Canada to protect the public health by preventing the
further introduction of the virus that causes COVID-19 into the United
States.\21\ To mitigate the risks presented by COVID-19, the CDC Order
requires returning all covered noncitizens as rapidly as possible--and
with the least amount of time spent in congregate settings as is
feasible--to the country from which they entered the United States, to
their country of origin, or to another location as practicable and
appropriate.\22\ Covered noncitizens are those persons traveling from
Canada or Mexico (regardless of their country of origin) who otherwise
would be introduced into a congregate setting in a land (and, as
amended, coastal) port of entry or USBP station at or near the U.S.
borders with Canada and Mexico. The CDC Order does not apply to, among
others, U.S. citizens, lawful permanent residents, and those who arrive
at a port of entry with valid travel documents.\23\
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\21\ See Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists, 85
FR 65806, 65807 (Oct. 16, 2020) (``CDC Order'' or ``Title 42
order'') (extending March 20, 2020 order, 85 FR 16559).
\22\ Id. at 65812.
\23\ Id. at 65808.
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Border encounters in FY 2021 remain high. To date, the data does
suggest that single adults make up a greater percentage of
apprehensions than in FY 2019 and, controlling for repeat encounters,
the actual number of unique encounters (the number of unique
individuals encountered irrespective of potential repeated attempts to
enter) has been lower to date in FY 2021 than in FY 2019 (given the
continuing use of Title 42 authority to expel many adults and families
soon after they are apprehended). But total encounters at or near the
southwest border through April for FY 2021 has surpassed the FY 2019
highs over the same period. The high number of southwest border
apprehensions is presenting serious challenges for an already
overwhelmed U.S. asylum system at the border.
A. Improving the Expedited Removal Process
The principal purpose of this proposed rule is to simultaneously
increase both the efficiency and the procedural fairness of the
expedited removal process for individuals who have been found to have a
credible fear of persecution or torture. When individuals who have been
placed into the expedited removal process make a fear claim, they are
referred to a USCIS asylum officer, who interviews them to determine
whether they have a credible fear of persecution or torture. See INA
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). Under current procedures,
individuals who receive a positive credible fear determination are
referred to an immigration court for removal proceedings, in the course
of which they have the opportunity to apply for asylum and other forms
of relief or protection from removal. See 8 CFR 208.30(f) (2018)
(providing that if a noncitizen, other than a stowaway, ``is found to
have a credible fear of persecution or torture, the asylum officer will
so inform the [noncitizen] and issue a Form I-862, Notice to Appear,
for full consideration of the asylum and withholding of removal claim
in proceedings under section 240 of the Act''). As explained above, it
may take years before the individual's protection claim is first
adjudicated by an IJ. The ability to stay in the United States for
years waiting for an initial decision may motivate unauthorized border
crossings by individuals who otherwise would not have sought to enter
the United States and who lack a meritorious protection claim. This
delay creates additional stress for those ultimately determined to
merit asylum and other forms of humanitarian protection, as they are
left in limbo as to whether they might still be removed and unable to
petition for qualified family members, some of whom may still be at
risk of harm.
To respond to this problem, this rule proposes at 8 CFR
208.2(a)(1)(ii) and 208.9 to provide USCIS asylum officers the
authority to adjudicate in the first instance the protection claims of
individuals who receive a positive credible fear determination, and
that they do so in a nonadversarial hearing. The rule also proposes at
8 CFR 208.3(a)(2) that the record of a credible fear interview may
serve as an asylum application for those noncitizens whose cases are
retained by or referred to USCIS for adjudication after a positive
credible fear determination, thereby helping to ensure that asylum
seekers meet the statutory requirement to apply for asylum within one
year of arrival. These steps are meant to ensure greater efficiency in
the system, which was initially designed for protection claims to be
the exception, not the rule, among those encountered at or near the
border. The proposed rule will also stem the rapid growth of the EOIR
caseload, described in greater detail above.
As noted earlier, the current system for processing protection
claims made by individuals encountered at or near the border and who
establish credible fear was originally adopted in 1997. Within the last
3 years, however, several attempts have been made to issue new rules to
change the credible fear screening process. Many of these attempts have
been vacated or enjoined, and the implementation of others has been
delayed pending consideration of whether they should be revised or
rescinded.\24\
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\24\ On November 9, 2018, the Departments issued an interim
final rule (``IFR'') that barred noncitizens who entered the United
States in contravention of a covered Presidential proclamation or
order from eligibility for asylum, required that they receive a
negative credible fear finding on their asylum claims, and required
that their statutory withholding and CAT claims be considered under
the higher reasonable fear screening standard. See Aliens Subject to
a Bar on Entry Under Certain Presidential Proclamations; Procedures
for Protection Claims, 83 FR 55934, 55939, 55943 (Nov. 9, 2018). A
month later, the U.S. District Court for the Northern District of
California preliminarily enjoined the Departments from implementing
the rule, E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094,
1121 (N.D. Cal. 2018), and the Ninth Circuit affirmed, E. Bay
Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021).
On July 16, 2019, the Departments published another IFR,
entitled Asylum Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019), which generally barred noncitizens from
asylum eligibility if they entered or attempted to enter the United
States across the southwest border after failing to apply for
protection from persecution or torture while in any one of the third
countries through which they transited, required a negative credible
fear finding for such noncitizens' asylum claims, and required their
withholding and CAT claims be considered under the higher reasonable
fear screening standard. Id. at 33837-38. The U.S. District Court
for the District of Columbia vacated that IFR after concluding that
the Departments violated the Administrative Procedure Act by
forgoing notice-and-comment rulemaking. Capital Area Immigrants'
Rights Coal. v. Trump, 471 F. Supp. 3d 25, 45-57 (D.D.C. 2020). The
Departments issued a final rule on December 17, 2020, entitled
Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec.
17, 2020), which again attempted to bar from asylum eligibility
those noncitizens who transited a third country before arriving at
the border. The U.S. District Court for the Northern District of
California subsequently issued a preliminary injunction against
implementation of that rule, which remains in place as of this
writing. E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST,
2021 WL 607869, at *5 (N.D. Cal. Feb. 16, 2021).
Around the same time, the Departments also issued the final rule
entitled Procedures for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, 85 FR 80274 (Dec. 11, 2020)
(``Global Asylum'' rule). That rule revised the credible fear
screening process to require that all the mandatory bars to asylum
and withholding be considered during the credible fear screening
process and established a new screening standard for withholding of
removal and CAT protection. On January 8, 2021, the U.S. District
Court for the Northern District of California preliminarily enjoined
the Departments from implementing the rule. Pangea Legal Servs. v.
DHS, No. 20-cv-09253 JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8,
2021). That preliminary injunction remains in place.
Finally, the Departments also published a final rule entitled
Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020)
(``Security Bars'' rule), which added an additional bar to asylum
and withholding that would be applied to the credible fear screening
process. The Departments have delayed the rule's effective date to
December 31, 2021, see Security Bars and Processing; Delay of
Effective Date, 86 FR 15069 (Mar. 22, 2021), as the Departments
consider possible action to rescind or revise the rule.
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[[Page 46910]]
This proposed rule offers another approach. It would establish a
streamlined and simplified adjudication process for individuals
encountered at or near the border, placed into expedited removal, and
determined to have a credible fear of persecution or torture, with the
aim of deciding protection claims in a more timely fashion while
ensuring procedural protections against erroneous denials of
relief.\25\ The proposed rule would authorize USCIS asylum officers to
adjudicate in the first instance the protection claims of individuals
who receive positive credible fear determinations under the expedited
removal framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).
The procedures that USCIS asylum officers would use to adjudicate these
claims would be nonadversarial, and the decisions would be made within
timeframes more in line with those established by Congress in section
208(d)(5) of the INA.\26\
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\25\ Section 4(b)(i) of E.O. 14010 instructed the Secretary of
Homeland Security to review the procedures for individuals placed
into expedited removal at or near the border and issue a report with
recommendations ``for creating a more efficient and orderly process
that facilitates timely adjudications [of asylum/protection claims]
and adherence to standards of fairness and due process.'' 86 FR at
8270.
\26\ See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (specifying that an
initial hearing on an asylum application should generally occur
within 45 days after the filing of the application and that an
initial administrative decision should generally be made within 180
days).
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To ensure effective implementation of the expedited removal system,
this rule also proposes to revise the parole considerations prior to a
positive credible fear determination in 8 CFR 235.3. The current rule
limits parole consideration before the credible fear determination to
situations in which parole ``is required to meet a medical emergency or
is necessary for a legitimate law enforcement objective.'' 8 CFR
235.3(b)(2)(iii), (b)(4)(ii). Under this proposed rule, DHS also would
be able to consider whether parole is required ``because detention is
unavailable or impracticable.'' The current narrower parole standards
effectively prevent DHS from placing into expedited removal many
noncitizens who would otherwise be eligible for this process,
especially families, given the requirements of the Flores Settlement
Agreement (``FSA'').\27\ These restrictions on DHS's ability to detain
families, coupled with capacity constraints imposed by the COVID-19
pandemic, have effectively prevented the Government from using the
third option to detain families subject to expedited removal for more
than a very limited number of families and for more than a very limited
period of time. This proposed rule would, when finalized, eliminate
that barrier to placing families into expedited removal. The proposed
parole provision would allow more noncitizens arriving at the U.S.
border without proper documents for entry into the country to be placed
into expedited removal and allow for them to have their fear claims
heard and considered outside the detention setting when space is
unavailable or impracticable to use.
---------------------------------------------------------------------------
\27\ In 1985, a class-action suit challenged the policies of the
former INS relating to the detention, processing, and release of
alien children; the case eventually reached the U.S. Supreme Court.
The Court upheld the constitutionality of the challenged INS
regulations on their face and remanded the case for further
proceedings consistent with its opinion. See Reno v. Flores, 507
U.S. 292, 315 (1993). In January 1997, the parties reached a
comprehensive settlement agreement, referred to as the Flores
Settlement Agreement. See Flores v. Rosen, 984 F.3d 720, 727 (9th
Cir. 2020) (describing litigation history). The FSA was to terminate
5 years after the date of final court approval; however, the
termination provisions were modified in 2001, such that the FSA does
not terminate until 45 days after publication of regulations
implementing the agreement. Id. In August 2019, DHS and HHS jointly
issued a final rule entitled Apprehension, Processing, Care, and
Custody of Alien Minors and Unaccompanied Alien Children, 84 FR
44392 (Aug. 23, 2019). In September 2019, about a month before the
Final Rule was to take effect, a Federal district court granted the
plaintiff class's motion to enforce the FSA and denied the
government's motion to terminate it, because the final rule was
inconsistent with the FSA and thus did not ``implement[ ]'' it as
required by the FSA's termination provisions. See Flores v. Barr,
407 F. Supp. 3d 909, 914 (C.D. Cal. 2019). The Ninth Circuit
affirmed in part, and the provisions of the FSA that are relevant
here thus generally remain in effect. See Flores v. Rosen, 984 F.3d
at 737, 744. Under the requirements of the FSA, when DHS apprehends
an alien parent or legal guardian with their child(ren) either
illegally entering the United States between the ports of entry or
found inadmissible at a port of entry, it has, following initiation
of removal proceedings, three primary options for purposes of
immigration custody: (1) Parole all family members into the United
States; (2) detain the parent(s) or legal guardian(s) and either
release the juvenile to another parent or legal guardian or transfer
them to HHS to be treated as an unaccompanied child; or (3) detain
family members together by placing them at an appropriate DHS Family
Residential Center (``FRC'') during their immigration proceedings.
See, e.g., id. at 737-38 (discussing ``transfer of unaccompanied
minors from DHS to HHS,'' ``DHS custodial care immediately following
apprehension,'' and parole).
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This proposed rule would apply prospectively and only to adults and
families who are placed into expedited removal.\28\ The proposed rule
would not apply to unaccompanied children, see 6 U.S.C. 279(g)(2)
(defining ``unaccompanied alien child''), as they are statutorily
exempt from expedited removal proceedings. 8 U.S.C. 1232(a)(5)(D)(i)
(providing that ``any unaccompanied alien child'' ``shall be--(i)
placed in removal proceedings under section 240'' of the INA).\29\ The
[[Page 46911]]
proposed rule also would not apply to individuals already residing in
the United States who are not designated by the Secretary as subject to
expedited removal.\30\ Such individuals would continue to have their
asylum claims heard in removal proceedings under section 240 of the
INA, or through an affirmative asylum application under section 208 of
the INA if they have not yet been placed into removal proceedings. The
proposed rule also would not apply to (1) stowaways or (2) noncitizens
who are present in or arriving in the Commonwealth of the Northern
Mariana Islands who are determined to have a credible fear. Such
individuals would continue to be referred to asylum/withholding-only
proceedings before an IJ under 8 CFR 208.2(c).
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\28\ According to EOIR data, as of April 2021, over 220,000 of
EOIR's pending removal cases originated with a credible fear claim.
EOIR, Executive Office for Immigration Review Adjudication
Statistics: Pending I-862 Proceedings Originating With a Credible
Fear Claim and All Pending I-862s (Apr. 19, 2021), <a href="https://www.justice.gov/eoir/page/file/1112996/download">https://www.justice.gov/eoir/page/file/1112996/download</a>. These cases are in
various stages of the removal process, and hearings may have already
been scheduled or held. Moving these cases to a new process at this
stage would risk further delaying adjudication of their protection
claims and create an immediate backlog of tens of thousands of cases
for USCIS as it prepares to implement this proposed process for
future border arrivals.
\29\ The statute provides that any unaccompanied child whom DHS
seeks to remove shall be placed in removal proceedings under section
240 of the INA. In lieu of being placed in removal proceedings,
unaccompanied children from contiguous countries who meet special
criteria may be permitted to withdraw their applications for
admission and be voluntarily returned to their country of
nationality or country of last habitual residence. Actual removal
proceedings for unaccompanied children, whether from contiguous
countries or not, however, must be under section 240 of the INA.
\30\ See supra note 4.
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Finally, the Departments clarify that nothing in this proposed
rule, if finalized, is intended to displace DHS's (and, in particular,
USCIS's) prosecutorial discretion to place a covered noncitizen in, or
to withdraw a covered noncitizen from, expedited removal proceedings
and issue a Notice to Appear (``NTA'') to place the noncitizen in
section 240 removal proceedings at any time after they are referred to
USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-,
25 I&N Dec. 520, 523 (BIA 2011).
The credible fear screening regulations proposed under this rule
generally would recodify the current screening process, returning the
regulatory language, in large part, to what was in place prior to the
various regulatory changes made from the end of 2018 through the end of
2020. Noncitizens encountered at or near the border or ports of entry
can be placed into expedited removal and provided a credible fear
screening if they indicate an intention to apply for asylum, a fear of
persecution or torture, or a fear of return to their home countries.
See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR
235.3(b)(4), 1235.3(b)(4)(i). Individuals claiming a fear or an
intention to apply for protection are referred to USCIS asylum officers
for an interview and consideration of their fear claims under the
credible fear screening standard, which applies to all relevant
protection claims. If an asylum officer determines that an individual
does not have a credible fear of persecution or torture, the individual
can request that an IJ review the asylum officer's negative credible
fear determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). If the IJ concurs
with the asylum officer's negative credible fear determination, no
administrative appeal is available, 8 CFR 1208.30(g)(2)(iv)(A), and DHS
can execute the individual's expedited removal order, promptly removing
the individual from the United States.
If the noncitizen is found to have a credible fear, however, the
proposed rule would change the procedures in place prior to this
rulemaking that are described above. Under this proposed rule, rather
than referring the individual to an IJ for an adversarial removal
proceeding under section 240 of the INA, or, as provided for in a
presently-enjoined regulation, an asylum/withholding-only hearing, the
individual's asylum application instead could be retained by USCIS for
a nonadversarial hearing before an asylum officer. See 8 CFR 208.30(f)
(proposed). Similarly, if, upon review of an asylum officer's negative
credible fear determination, an IJ finds that an individual does have a
credible fear of persecution or torture, the individual also could be
referred back to an asylum officer for proceedings on the individual's
protection claims. Id. Sec. Sec. 1003.42, 1208.30(g). The Departments
plan to implement these procedures by having asylum hearings conducted
for those individuals who are referred to or retained by USCIS after
the positive credible fear determination would be adjudicated in a
separate queue, apart from adjudications made with respect to
affirmative asylum applications filed directly with USCIS. The
individual would have the right to representation during this
proceeding. Id. Sec. 208.9(b). If, at the conclusion of an asylum
hearing described in this proposed rule, the asylum officer grants
asylum, the individual would be allowed to remain in the United States
indefinitely with the status of ``asylee'' and eventually may apply for
lawful permanent residence. Id.; see also INA 208(c)(1), 209(b), 8
U.S.C. 1158(c)(1), 1159(b). If the asylum officer denies asylum and
orders the individual removed based on the immigration officer's
initial inadmissibility determination under section 235(b)(1)(A)(i) of
the INA, 8 U.S.C. 1225(b)(1)(A)(i), the asylum officer will also issue
a decision regarding withholding or deferral of removal. 8 CFR
208.14(c)(5) (proposed). An individual who is denied asylum may request
review by an IJ of the asylum decision, as well as any denial of
withholding or deferral of removal. Id. Sec. Sec. 208.14(c)(5)(i),
1003.48(a).
In cases in which a noncitizen seeks review of an asylum officer's
adverse decision, the Departments propose that the IJ would make an
independent de novo determination based on the record of the hearing
before the Asylum Office plus any additional, non-duplicative evidence
presented to the court that is necessary to reach a reasoned decision.
Id. Sec. 1003.48(e) (proposed). The individual would also have the
right, consistent with the INA, to representation during this review.
See 8 CFR 1003.12 (proposed) (providing that the rules in this subpart
apply to the proposed proceedings under 8 CFR 1003.48); 8 CFR
1003.16(b) (providing that a noncitizen ``may be represented in
proceedings before an Immigration Judge by an attorney or other
representative''). The IJ also would be authorized to vacate
proceedings when the judge finds the individual is prima facie eligible
for other forms of relief from removal, so that DHS, in the exercise of
DHS's discretion, could place the noncitizen into removal proceedings
under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR 1003.48(d)
(proposed).
Finally, the rule proposes that both parties would be able to
appeal the IJ's decision to the BIA under procedures similar to those
used in section 240 removal proceedings and asylum/withholding-only
proceedings under 8 CFR 208.2(c), 1208.2(c). See 8 CFR 1003.1(b)(15)
(proposed). In addition, the individual would be able to petition for
review of the BIA decision with the Federal courts. See infra note 59.
B. DOJ and DHS Authority To Propose This Rule
The Attorney General and the Secretary jointly propose this rule
pursuant to their respective authorities concerning asylum
determinations. The Homeland Security Act of 2002 (``HSA''), Public Law
107-296, 116 Stat. 2135, as amended, created DHS and transferred to it
many functions related to the execution of Federal immigration law. The
HSA charged the Secretary ``with the administration and enforcement of
this chapter and all other laws relating to the immigration and
naturalization of aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and
granted the power to take all actions ``necessary for carrying out''
the Secretary's authority under the immigration laws, INA 103(a)(3), 8
U.S.C. 1103(a)(3). The Secretary's authority also includes the
authority to
[[Page 46912]]
publish regulatory amendments governing the apprehension, inspection
and admission, detention and removal, withholding of removal, and
release of noncitizens encountered in the interior of the United States
or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C.
1225, 1226, 1231.
The HSA thus transferred to DHS authority to adjudicate asylum
applications, as well as the authority to conduct credible fear
interviews and make credible fear determinations in the context of
expedited removal. INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also
HSA 451(b), 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). By operation of the HSA, the
reference to ``Attorney General'' in the INA is understood also to
encompass the Secretary in matters with respect to immigration
proceedings before DHS. That authority has been delegated within DHS to
the Director of USCIS. See 8 CFR 208.2(a), 208.30.
In addition, under the HSA, the Attorney General retained authority
over individual immigration adjudications (including section 240
removal proceedings and certain adjudications related to asylum
applications) conducted within EOIR. See HSA 1101(a), 6 U.S.C. 521(a);
INA 103(g), 8 U.S.C. 1103(g). IJs within DOJ continue to adjudicate all
asylum applications filed by noncitizens during the pendency of removal
proceedings, and they also review asylum applications referred by USCIS
to the immigration court. See INA 101(b)(4), 240(a)(1), 8 U.S.C.
1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b), 1240.1(a).
Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii),
provides that if a noncitizen in expedited removal proceedings is
determined to have a credible fear of persecution by an asylum officer,
the noncitizen is entitled to ``further consideration of the
application for asylum.'' This proposed rule addresses how that further
consideration will occur. Section 208(d)(1) of the INA, 8 U.S.C.
1158(d)(1), provides the Attorney General with the authority to
establish procedures for the consideration of asylum applications,
including those filed in accordance with section 235(b) of the INA, 8
U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a).
Section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3),
authorizes the Secretary to establish rules and regulations governing
parole. Section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), vests in the
Secretary the discretionary authority to grant parole to applicants for
admission on a case-by-case basis.
C. The Current Asylum and Expedited Removal Process
1. Asylum
The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the
first comprehensive legislation to establish the modern refugee and
asylum system in the United States. Asylum is a discretionary benefit
that can be granted by the Attorney General or the Secretary if a
noncitizen establishes, among other things, that they have experienced
past persecution or have a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1)
(providing that the Attorney General ``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 last habitual residence, (2) receive employment
authorization incident to their status, and (3) may be permitted to
apply for readmission after travel outside of the United States with
prior consent from the Secretary. INA 208(c)(1), 8 U.S.C. 1158(c)(1);
see Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2286 (2021) (``[A] grant
of asylum permits an alien to remain in the United States and to apply
for permanent residency after one year[.]'' (internal quotation marks
and citation omitted) (emphases omitted)); 8 CFR 274a.12(a)(5)
(employment authorization incident to asylum status); id. Sec.
223.1(b) (readmission after travel for a ``person who holds . . .
asylum status pursuant to section 208 of the Act'').
Asylum applications are presently classified based on the agency
with jurisdiction over the noncitizen's case. If a noncitizen is
physically present in the United States, not detained, and not in
removal proceedings, the noncitizen may file an asylum application with
USCIS. These applications are known as ``affirmative'' filings. If the
noncitizen is in removal proceedings before an IJ, the noncitizen
instead may file an application for asylum with the IJ as a defense to
removal. Such ``defensive'' filings are currently the only route by
which noncitizens referred to an IJ by a USCIS asylum officer after
receiving a positive credible fear determination can obtain an
adjudication of the merits of their asylum claims.
Noncitizens who are ineligible for a grant of asylum, or who are
denied asylum based on the Attorney General's or the Secretary's
discretion, nonetheless may qualify for other forms of protection. An
application for asylum submitted by a noncitizen in 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 withholding and deferral of removal under regulations
issued pursuant to the implementing legislation regarding U.S.
obligations under Article 3 of the CAT. Foreign Affairs Reform and
Restructuring Act of 1998, Public Law 105-277, div. G, sec. 2242(b),
112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. 1231 note (1999)); 8
CFR 1208.3(b), 1208.13(c)(1); see also id. Sec. Sec. 1208.16(c),
1208.17.
Withholding and deferral of removal bar a noncitizen's removal to
any country where the noncitizen would ``more likely than not'' face
persecution or torture, meaning that the noncitizen would face a clear
probability that their life or freedom would be threatened because of a
protected ground or a clear probability of torture. 8 CFR
1208.16(b)(2), (c)(2). Thus, if a noncitizen proves that it is more
likely than not that the noncitizen's life or freedom would be
threatened on account of a protected ground, but is denied asylum for
some other reason--for instance, because of a statutory exception, an
eligibility bar adopted by regulation, or a discretionary denial of
asylum--the noncitizen nonetheless may be entitled to statutory
withholding of removal if not otherwise barred from that form of
protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16,
1208.16. Likewise, a noncitizen who establishes that he or she more
likely than not will face torture in the country of removal will
qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c),
1208.17(a). In contrast to the more generous benefits available through
asylum, statutory withholding 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
[[Page 46913]]
Chavez, 141 S. Ct. at 2286 (``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 noncitizens arriving in the United States (and, in the
discretion of the Secretary, certain other designated classes of
noncitizens) who are found to be inadmissible under either section
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), regarding documentation requirements for admission. Under
expedited removal, such noncitizens may be ``removed from the United
States without further hearing or review unless the [noncitizen]
indicates either an intention to apply for asylum under section 1158 of
this title or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i).
The former INS and, later, DHS implemented a screening process,
known as the ``credible fear'' screening, to identify potentially valid
claims for asylum, statutory withholding of removal, and CAT
protection, or, more specifically, to prevent noncitizens placed in
expedited removal from being removed to a country in which they would
face persecution or torture. Currently, with regulatory changes made
from 2018 through 2020 either vacated, enjoined, or delayed, any
noncitizen who expresses a fear of persecution or torture, a fear of
return, or an intention to apply for asylum during the course of the
expedited removal process is referred to a USCIS asylum officer for an
interview to determine whether the noncitizen has a credible fear of
persecution or torture in the country of return. INA 235(b)(1)(A)(ii),
(B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4),
1235.3(b)(4)(i). If the asylum officer 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), 1208.30(g).
Under the regulatory framework prior to November 2018 and currently
in effect,\31\ if the asylum officer determines that a noncitizen
subject to expedited removal has a credible fear of persecution or
torture, DHS refers the noncitizen to an immigration court for
adjudication of the noncitizen's claims by initiating section 240
removal proceedings through service of an NTA on the noncitizen and
with the court. See 8 CFR 208.30(f), 235.6(a)(1)(ii), 1235.6(a)(1)(ii)
(2018). Similarly, if an IJ, upon review of the asylum officer's
negative credible fear determination, finds that the noncitizen
possesses a credible fear of persecution or torture, the IJ vacates the
expedited removal order and DHS initiates section 240 removal
proceedings. See id. 1208.30(g)(2)(iv)(B). If the noncitizen
subsequently decides to file for asylum, the asylum application is
filed with the court during the section 240 removal proceedings, is
considered a ``defensively filed'' application, and is subject to the
one-year filing deadline. See INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B).
There is no requirement that the noncitizen file an asylum application,
however, once placed into section 240 removal proceedings.
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\31\ See supra note 24 (discussing the status of more recent
regulatory changes).
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III. Discussion of the Proposed Rule
As noted in the summary above, this proposed rule would make
several changes to the adjudication process of protection claims
presented by noncitizens in expedited removal who both make fear claims
and are determined to have a credible fear of persecution or torture. A
more detailed explanation of the proposed changes, the reasons for
these changes, and their alignment with the relevant statutes, as well
as a brief outline of certain other changes proposed by this rule,
follows.
A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)
The expedited removal statute provides for detention throughout the
expedited removal process, including during the credible fear screening
process and during the process for further consideration of the
protection claims on their merits. The statute does not, however, limit
DHS's general parole authority under section 212(d)(5) of the INA, 8
U.S.C. 1182(d)(5), and 8 CFR 212.5(b), and the Departments have not
understood the language providing for detention in expedited removal to
limit this parole authority. Instead, parole authority in the context
of expedited removal has been specifically provided for in the relevant
regulations covering expedited removal and the credible fear screening
process since they were first implemented in 1997. See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10356 (Mar. 6,
1997) (interim final rule). And the U.S. Supreme Court recently
acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that
DHS may exercise its authority to temporarily parole persons subject to
expedited removal, while also acknowledging that the relevant statutory
language in section 235(b)(1) and (b)(2) of the INA, 8 U.S.C.
1225(b)(1), (b)(2), ``unequivocally mandate that aliens falling within
their scope `shall' be detained,'' id. at 844.
Since expedited removal's implementation regulations were first
promulgated, parole consideration has been limited to a narrow category
of circumstances for individuals awaiting a credible fear
determination--when necessary ``to meet a medical emergency or . . .
for a legitimate law enforcement objective.'' See 8 CFR
235.3(b)(2)(iii), (b)(4)(ii) (current). This proposed rule change would
add to those grounds, allowing parole when ``detention is unavailable
or impracticable (including situations in which continued detention
would unduly impact the health or safety of individuals with special
vulnerabilities).'' 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (proposed). This
change would allow DHS to prioritize use of its limited detention bed
space to detain those noncitizens who pose the greatest threats to
national security and public safety, while avoiding unnecessary
operational limitations on DHS's authority to place noncitizens into
expedited removal. Under the proposed rule, when detention space is
unavailable or its use is otherwise impracticable, DHS would have the
option of using parole rather than placing nearly all families arriving
at the border directly into section 240 removal proceedings. The
proposed rule also makes clear that a grant of parole only
[[Page 46914]]
authorizes release from custody and cannot serve as an independent
basis for employment authorization under 8 CFR 274a.12(c)(11).\32\ See
8 CFR 235.3(b)(4)(ii) (proposed). The Departments are seeking public
comment on this change in the circumstances under which parole may be
considered in the expedited removal context, as well as the use of
(c)(11) employment authorization documents (``EADs'') for those in
expedited removal who have been paroled from custody.
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\32\ As noted elsewhere in this preamble, this proposed rule is
not intended to rescind previously enjoined or vacated rules.
Accordingly, the Departments are proposing that those in the
credible fear process who have been paroled from custody would be
ineligible for a (c)(11) employment authorization document
(``EAD''), similar to what was implemented with the final rule
entitled Asylum Application, Interview, and Employment Authorization
for Applicants, 85 FR 38532, 38582 (June 26, 2020). A Federal
district court preliminarily enjoined certain provisions of the rule
but only as applied to the plaintiffs in that case, and the EAD-
parole provision similar to the one proposed here was not challenged
in that litigation. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp.
3d 928, 935 (D. Md. 2020) (``preliminarily enjoin[ing] Defendants
from enforcing a subset of the rule changes as applied to the
individual members of Plaintiffs Casa de Maryland, Inc. (`CASA') and
Asylum Seeker Advocacy Project (`ASAP')''). The Departments are
seeking public comment on the use of (c)(11) EADs for those in
expedited removal who have been paroled from custody.
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B. Credible Fear Screening Process--Proposed 8 CFR 208.30
As noted earlier, there were several rules published by the
Departments from the end of 2018 through the end of 2020 that attempted
to change the credible fear screening process that had been in place
for approximately 20 years, but these rules are not in effect.\33\ The
Global Asylum rule, which, as explained above, has been enjoined,
attempted to change the pre-2018 practice of not applying the mandatory
bars to asylum and statutory withholding in the credible fear screening
process, instead requiring a final determination on the applicability
of a significantly expanded list of mandatory bars during credible fear
screenings and mandating a negative credible fear finding should any of
the bars be determined to apply to the noncitizen at that initial
stage. 85 FR at 80278. In addition, the Global Asylum rule attempted to
alter the longstanding practice for screening claims for statutory
withholding of removal and CAT protection. Prior to the rule, the
statutory standard for screening asylum claims (i.e., a ``significant
possibility'' of establishing eligibility for asylum) was also used to
screen withholding of removal and CAT claims. The Global Asylum rule
attempted to create a more complicated two-step, two-standard screening
by requiring a higher screening standard for such claims (i.e., a
``reasonable possibility'' of persecution or torture). Id. The Security
Bars rule, issued less than 2 weeks after the Global Asylum rule,
further expanded the list of mandatory bars to asylum that would apply
in the credible fear screening process, 85 FR at 84160, but its
implementation has been delayed until the end of 2021, 86 FR at 15069.
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\33\ See supra note 24.
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With this proposed rule, the Departments generally seek to return
the credible fear screening process regulations to the simpler
screening process that was in place for expedited removal's first two
decades of implementation. Given the injunctions, delays, and vacaturs
referenced above, this rule proposes to recodify in the Code of Federal
Regulations the standard of ``significant possibility'' that has
remained in effect since the rule changing that standard has been
enjoined. Pangea Legal Servs. v. DHS, No. 20-cv-09253, 2021 WL 75756,
at *7 (N.D. Cal. Jan. 8, 2021) (preliminarily enjoining the Global
Asylum rule). The Departments believe that this change will make for a
more efficient and effective credible fear screening process and is
also necessary to make that screening process consistent with
congressional intent.
The 104th Congress chose a screening standard ``intended to be a
low screening standard for admission into the usual full asylum
process.'' \34\ Originally, the Senate bill had proposed a
``determination of whether the asylum claim was `manifestly unfounded,'
while the House bill applied a `significant possibility' standard
coupled with an inquiry into whether there was a substantial likelihood
that the alien's statements were true.'' \35\ In IIRIRA, Congress then
``struck a compromise by rejecting the higher standard of credibility
included in the House bill.'' \36\ This proposed regulation would now
return the screening standard to the ``low screening standard''
intended by the compromise reflected in the text that Congress
ultimately passed. Rather than creating a complicated screening process
that requires full evidence gathering and determinations to be made on
possible bars to eligibility, this proposed rule aims to return to
allowing protection claims with a ``significant possibility'' of
success to be fully heard and adjudicated, but in a process that more
quickly reaches a final decision on the merits than the current
process.
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\34\ 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement
of Senate Judiciary Committee Chairman Orrin Hatch).
\35\ Id. The chairman of the conference committee assigned to
reconcile the two bills, Rep. Henry Hyde, stated that ``[t]he
credible fear standard is redrafted in the conference document to
address fully concerns that the `more probable than not' language in
the original House version was too restrictive.'' 142 Cong. Rec.
H11081 (daily ed. Sept. 25, 1996) (statement of House Judiciary
Committee Chairman Henry Hyde). The exact language in section 302 of
the House bill, H.R. 2202, 104th Cong. (1995), was as follows: ``the
term `credible fear of persecution' means (I) that it is more
probable than not that the statements made by the alien in support
of the alien's claim are true, and (II) that there is a significant
possibility, in light of such statements and of such other facts as
are known to the officer, that the alien could establish eligibility
for asylum under section 208.'' The conference committee compromise
stuck subsection (I) from the definition of credible fear.
\36\ 142 Cong. Rec. S11491 (statement of Sen. Hatch).
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To accomplish this, the proposed rule would replace all the
references throughout 8 CFR 208.30 to a ``credible fear of persecution,
reasonable possibility of persecution, or a reasonable possibility of
torture'' with ``credible fear,'' acknowledging that the statutory
``significant possibility'' standard, INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), would be applied in considering all three types of
protection claims--asylum, statutory withholding, and protection under
the CAT.\37\ Consistent with that change, the proposed rule would
revise 8 CFR 208.30 to return the definition of the ``credible fear''
standard to the ``significant possibility'' definition provided in the
statute (paragraph (e)(2)), replace the ``reasonable possibility''
standard with the same ``significant possibility'' screening standard
for statutory withholding of removal and CAT withholding or deferral of
removal (paragraphs (e)(2) and (3)), return the language in the
regulation to reflect the existing and two-decade long practice of not
applying the mandatory bars to the credible fear screening
determination (paragraph (e)(5)),\38\ maintain the
[[Page 46915]]
threshold screening under the safe third country agreement with Canada
(paragraph (e)(6)), and continue to require supervisory review of all
credible fear determinations before they can become final (paragraph
(e)(8)). The Departments seek comment on these changes and also request
comment on whether any additional changes to the provisions of the
Global Asylum and Security Bar rules are necessary or appropriate to
accomplish the objectives outlined in this section.
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\37\ These proposed changes would not alter reasonable fear of
persecution or torture determinations involving noncitizens ordered
removed under section 238(b) of the INA, 8 U.S.C. 1228(b), and
noncitizens whose removal is reinstated under section 241(a)(5) of
the INA, 8 U.S.C. 1251(a)(5), pursuant to 8 CFR 208.31.
\38\ This proposed rule does not, and is not intended to,
rescind prior rulemakings, including Implementing Bilateral and
Multilateral Asylum Cooperative Agreements Under the Immigration and
Nationality Act, 84 FR 63994 (Nov. 19, 2019); Aliens Subject to a
Bar on Entry Under Certain Presidential Proclamations; Procedures
for Protection Claims, 83 FR 55934 (Nov. 9, 2018); and Asylum
Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17,
2020). To that end, the Departments have proposed to change 8 CFR
208.30 only to the extent necessary to implement the changes
proposed in this rule and left the remaining provisions of the
aforementioned rules to be modified or rescinded by the Departments
at a later date. See, e.g., OMB, Agenda Rule List--Spring 2021:
Department of Homeland Security, <a href="https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600">https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600</a>. The Departments,
however, do seek comment on whether the changes proposed in this
rule would require any other rescissions or modifications of the
provisions adopted in recent prior rulemakings.
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As part of the proposed restructuring of the credible fear
determination framework, the proposed rule would also remove the
current language at 8 CFR 208.30(g)(2)(i) providing that DHS may
reconsider a negative credible fear finding that has been reviewed and
upheld by an IJ.\39\ Section 208.30(g)(1)(i) would be revised to
provide that once the asylum officer has made a negative credible fear
determination, the individual either requests IJ review or declines to
request review and that declination is treated as a request for review
and the individual is served with a Form I-863. At that point, under
the proposed rule, the IJ has sole jurisdiction to review whether the
individual has established a credible fear of persecution or torture,
and an asylum officer may not reconsider or reopen the determination.
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\39\ The proposed versions of the Global Asylum rule and the
Security Bars rule both dropped the regulatory provision previously
in 8 CFR 1208.30(g)(2) that acknowledged USCIS's ability to
reconsider a negative credible fear finding that had already
received IJ concurrence, but the Departments responded to comments
received about this change by reinserting the provision into 8 CFR
208.30(g) in the final rules, stating that the provision had been
omitted from the proposed rule inadvertently. 85 FR at 80275, 84181.
This proposed rule again proposes this change but does so for the
reasons provided herein.
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These proposed changes reflect an intention to return to the
statutory scheme of INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), under
which it is the IJ review of the credible fear determination that
serves as the check to ensure that individuals who have a credible fear
are not returned based on an erroneous screening determination by
USCIS. Section 208.30(g)(1)(i) is amended to provide that, when DHS
inquires whether an individual wishes to have an IJ review a negative
credible fear determination, DHS will inform the individual that the IJ
review will include an opportunity for the individual to be heard and
questioned by the IJ. See 8 CFR 208.30(g)(1) (proposed). This
opportunity will allow such individuals to present any additional
evidence or arguments they may wish to make to the IJ, who will
consider them in making a de novo determination about whether the
individual has a credible fear of persecution or torture.
The clarification that the IJ has sole jurisdiction to review the
individual's negative credible fear determination and that asylum
officers may not reconsider or reopen a determination that already has
passed to the jurisdiction of the IJ is necessary to ensure that
requests for reconsideration to USCIS do not obstruct the streamlined
process that Congress intended in creating expedited removal. Further,
this clarification ensures that the necessary efficiencies implemented
in this proposed rule are not undermined.
The expedited removal statute and its implementing regulations
generally prohibit any further administrative review or appeal of an
IJ's decision made after review of a negative credible fear
determination. See INA 235(b)(1)(B)(iii)(III), (C), 8 U.S.C.
1225(b)(1)(B)(iii)(III), (C); 8 CFR 1003.42(f)(2),
1208.30(g)(2)(iv)(A). Congress similarly has made clear its intent that
expedited removal should remain a streamlined, efficient process by
limiting judicial review of many determinations in expedited removal.
See INA 242(a)(2)(A), (e), 8 U.S.C. 1252(a)(2)(A), (e). These
provisions limiting administrative and judicial review and directing
expeditious determinations reflect clear congressional intent that
expedited removal be a truly expedited process. Removal of the current
language at 8 CFR 208.30(g)(2)(i) allowing DHS to reconsider negative
credible fear determinations after the IJ concurs is consistent with
that congressional intent and with the purpose of the current
regulation.
In recent years, USCIS has received growing numbers of meritless
reconsideration requests, which have strained agency resources and
resulted in significant delays to the expedited removal process. The
total time to review a reconsideration request varies widely, but if an
office recommends a follow-up interview, then the complete review
process could take more than 5 hours per request. The Departments
believe that these resources could be far better spent, including in
training and supervisory efforts, to ensure the high quality of USCIS
initial screening determinations. In many cases, reconsideration
requests that previously were considered are resubmitted numerous times
without additional information, resulting in additional delays in
removal processes that Congress explicitly intended to be conducted
through streamlined, efficient procedures.
These developments have highlighted the need to ensure that the IJ
review process, rather than reconsideration by USCIS, serves as the
safeguard against erroneous negative screening determinations by an
asylum officer. These changes will ensure that DOJ and DHS
implementation of the expedited removal provisions is consistent with
statutory intent. The Departments believe these changes will help
accomplish the purpose of the present rule to make the framework of the
screening process, including the process following USCIS's fear
determination, more efficient and streamlined, while ensuring due
process is accorded to all individuals in expedited removal. The
Departments seek comments on these proposed changes, including on other
options short of eliminating reconsideration entirely--such as imposing
restrictions on, or modifications to, reconsideration requests made to
USCIS--to address the problems outlined above, while also ensuring
efficiency and the opportunity to have one's protection claim properly
screened.
C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)
The expedited removal statute specifically provides for an
exception to the mandate that a noncitizen be ``removed from the United
States without further hearing or review'' when the noncitizen
expresses an intention to apply for asylum, a fear of persecution or
torture, or a fear of return to the country of removal. Such a person
instead is referred to USCIS for a credible fear screening. INA
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If the noncitizen is
found to have a credible fear of removal, the noncitizen's claim is
referred for ``further consideration of the application for asylum.''
INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This statutory
language, however, does not specify the nature of such ``further
consideration.''
Under current regulations, an individual who establishes a credible
fear is placed into removal proceedings under section 240 of the INA, 8
U.S.C. 1229a. Under this process, the individual is not required to
officially request asylum or file the Form I-589,
[[Page 46916]]
Application for Asylum and for Withholding of Removal (``Form I-589''),
until after being placed into removal proceedings. In many cases, the
application may be filed many months after removal proceedings are
initiated, thus potentially delaying adjudication. In many other cases,
an application is never filed. EOIR has reported that, for individuals
who were referred to USCIS for the credible fear screening process and
then placed into proceedings before EOIR between FY 2008 and the third
quarter of FY 2020, only 62 percent have filed an asylum application
with EOIR as of July 2020.\40\
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\40\ EOIR, Executive Office for Immigration Review Adjudication
Statistics: Rates of Asylum Filings in Cases Originating with a
Credible Fear Claim (July 2020), <a href="https://www.justice.gov/eoir/page/file/1062971/download">https://www.justice.gov/eoir/page/file/1062971/download</a>.
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Under this proposed rule, an individual who passes the initial
credible fear screening would have his claim reviewed by an asylum
officer in USCIS in the first instance, rather than by an IJ in a
removal hearing under section 240 of the INA. As part of this new
procedure for ``further consideration,'' and to eliminate delays
between a positive credible fear determination and the filing of an
application for asylum, the Departments propose that the written record
of the credible fear determination created by USCIS during the credible
fear process, and subsequently served on the individual together with
the service of the credible fear decision itself, would be treated as
an ``application for asylum,'' with the date of service on the
individual considered the date of filing. 8 CFR 208.3(a)(2) (proposed).
Every individual who receives a positive credible fear determination
would be considered to have filed an application for asylum at the time
the determination is served on him or her. The application would be
considered filed or received as of the service date for purposes of the
1-year filing deadline for asylum, see INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B), and for starting the clock for eligibility to file for
work authorization on the basis of a pending asylum application, 8 CFR
208.3(c)(3) (current). The Departments propose that this application
for asylum would not be subject to the completeness requirement of 8
CFR 208.3(c) and 208.9(a) in order to qualify for hearing and
adjudication, but it would be subject to the other conditions and
consequences provided for in 8 CFR 208.3(c) once the noncitizen signs
the documentation under penalty of perjury and with notice of the
consequences of the filing of a frivolous asylum application at the
time of the asylum officer hearing.\41\
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\41\ In addition, the Departments are proposing to amend 8 CFR
1208.3 and 1208.4 to account for changes made by this proposed rule,
including the proposed provisions that would treat the credible fear
interviews as an application for asylum in the circumstances
addressed by the proposed rule. The amendment at 8 CFR 1208.3(c)(3)
affects language that was enacted by DOJ in 2020. See Procedures for
Asylum and Withholding of Removal, 85 FR 81698 (Dec. 16, 2020). The
December 16, 2020 rulemaking made various changes to DOJ
regulations, including 8 CFR 1208.3(c)(3). Id. Those changes remain
enjoined. See National Immigrant Justice Center, et. al., v. Exec.
Office for Immigration Review, et. al., No. 21-CV-00056 (D.D.C.). As
noted above, the proposed rule would make changes to the regulations
only as necessary to effectuate its goals. The Departments
anticipate that additional changes to the relevant regulations,
including rescission of or revision to the language added by the
enjoined regulation, will be made through later rulemakings.
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The Departments plan to implement these changes to the credible
fear process by having the trained USCIS asylum officer conducting the
credible fear interview advise the noncitizen of the consequences of
filing a frivolous asylum application and capture the noncitizen's
relevant information through testimony provided under oath. During this
process, the asylum officer would ``elicit all relevant and useful
information'' for the credible fear determination, id. Sec. 208.30(d),
create a summary of the material facts presented by the noncitizen
during the interview, read the summary back to the noncitizen, and
allow the noncitizen to correct any errors, id. Sec. 208.30(d)(6). The
record created would contain the necessary biographical information and
sufficient information related to the noncitizen's fear claim to be
considered an application. The information captured by the asylum
officer during the credible fear interview will contain information
about the noncitizen's spouse and children, including those who were
not part of the credible fear determination--but under this proposed
rule only a spouse or children who were included in the credible fear
determination issued pursuant to proposed 8 CFR 208.30(c) or have a
pending asylum application with USCIS pursuant to Sec. 208.2(a)(1)(ii)
can be included on the request for asylum.\42\ See id. Sec.
208.3(a)(2). A copy of this application for asylum, including the
officer's notes from the interview and basis for the determination,
would be provided to the noncitizen at the time that the credible fear
determination is served. See id. Sec. 208.30(f), (g)(1). As proposed
in this rule, the noncitizen would be allowed to supplement or request
modifications or corrections to this application up until 7 days prior
to the scheduled asylum hearing before a USCIS asylum officer, or for
documents submitted by mail, postmarked no later than 10 days before
the scheduled asylum hearing. Id. Sec. 208.3(a)(2).
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\42\ While only a spouse or dependent included on the credible
fear determination or who presently has an asylum application
pending with USCIS after a positive credible fear determination can
be included on the subsequent asylum application under this proposed
process, the noncitizen granted asylum remains eligible to apply for
accompanying or follow-to-join benefits for any qualified spouse or
child not included on the asylum application, as provided for in 8
CFR 208.21. The Departments believe that it is procedurally
impractical to attempt to include a spouse or child on the
application when the spouse or child has not previously been placed
into expedited removal and subsequently referred to USCIS after a
positive credible fear determination. This is similar to the
inability to include a spouse or child not in removal proceedings
under section 240 of the INA on the asylum application of a
principal asylum application who is in such removal proceedings.
Under such circumstances, there is no clear basis for issuing a
final order of removal against such an individual spouse or child
should the asylum application be denied. The Departments seek
comments on this proposed approach.
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The information required to be gathered during the credible fear
screening process is based on the noncitizen's own testimony under oath
in response to questions from a trained USCIS asylum officer. Thus, the
Departments believe that the screening would provide sufficient
information upon which to conduct a full asylum interview. Under this
proposed rule, all noncitizens who receive a positive credible fear
determination would have an asylum application on file with the
Government within days of their credible fear screenings, thereby
meeting the one-year asylum filing deadline, avoiding the risk of
filing delays, and immediately beginning the waiting period for work
authorization eligibility. Understanding that noncitizens may want to
modify, correct, or supplement the initial presentation of their
protection claims, this proposed rule would allow the noncitizen to do
so in advance of the hearing before the asylum officer. The Departments
seek comments on all aspects of this proposed change.
D. Proceedings for Further Consideration of the Application for Asylum
by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for
Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a) and (c);
208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 235.6(a)(1);
1003.42; and 1208.30(g)
As noted earlier in the preamble, under the current regulatory
framework, if an asylum officer determines that a noncitizen subject to
expedited removal has a credible fear of persecution or
[[Page 46917]]
torture, DHS places the noncitizen before an immigration court for
adjudication of the noncitizen's claims by initiating section 240
removal proceedings.\43\ Similarly, if an IJ, upon review of the asylum
officer's negative credible fear determination, finds that the
noncitizen possesses a credible fear of persecution or torture, the IJ
vacates the expedited removal order, and DHS initiates section 240
removal proceedings. 8 CFR 1208.30(g)(2)(iv)(B). Section 240 removal
proceedings, which are used to determine removability as well as
eligibility for any relief or protection from removal, currently
provide additional procedural protections, including greater
administrative and judicial review, than expedited removal proceedings
under section 235 of the Act. Compare INA 235(b)(1), 8 U.S.C.
1225(b)(1), with INA 240, 8 U.S.C. 1229a.
---------------------------------------------------------------------------
\43\ See 8 CFR 208.30(f) (2018); supra note 24 (explaining that
various changes to these procedures have been enjoined).
---------------------------------------------------------------------------
As noted previously, however, the expedited removal statute
provides only that a noncitizen who is found to have a credible fear
``shall be detained for further consideration of the application for
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The statute
mandates neither that the noncitizen be placed in removal proceedings
generally nor placed in section 240 removal proceedings specifically.
Id.
The regulations regarding the credible fear process, and the
interplay between expedited removal and section 240 removal
proceedings, were first adopted in 1997.\44\ At the time, the former
INS explicitly recognized that ``the statute is silent as to the
procedures for those who do demonstrate a credible fear of
persecution.'' \45\ Faced with this ambiguity, the INS opted at the
time to have the further consideration take place in pre-existing
section 240 removal proceedings rather than create new proceedings for
this purpose.\46\ But the INS's contemporaneous analysis was very
limited.
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\44\ Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 FR 10312 (Mar. 6, 1997) (interim final rule).
\45\ Id. at 10320; see Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997)
(proposed rule) (noting that although the statute calls for further
consideration of the noncitizen's asylum application, it ``does not
specify how or by whom this further consideration should be
conducted'').
\46\ 62 FR at 10320.
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The Departments believe that section 235(b)(1) of the INA, 8 U.S.C.
1225(b)(1), authorizes a procedure for ``further consideration of [an]
application for asylum'' that is separate from section 240 removal
proceedings. By its terms, the phrase ``further consideration'' is
open-ended and does not mandate any particular procedure. It is thus
naturally read as giving DHS flexibility to determine the appropriate
procedure for consideration of noncitizens' asylum claims after
establishing a credible fear in the expedited removal process.
Moreover, while section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
mandates that a noncitizen with a positive credible fear determination
receive ``further consideration of [the noncitizen's] application for
asylum,'' section 235(b)(2) of the INA, 8 U.S.C. 1225(b)(2), mandates
that other classes of noncitizens receive ``a proceeding under section
1229a of this title,'' i.e., section 240 of the INA. Compare INA
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 8
U.S.C. 1225(b)(2)(A). The difference in language suggests that section
235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), does not require use of
section 240 removal proceedings, in contrast to section 235(b)(2), 8
U.S.C. 1225(b)(2), which does. The Supreme Court has observed that
``[w]here Congress includes particular language in one section of a
statute but omits it in another section of the same act, it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.'' Russello v. United States, 464
U.S. 16, 23 (1983) (internal quotation marks and citation omitted).
More recently, the D.C. Circuit stated that it has ``consistently
recognized that a congressional mandate in one section and silence in
another often suggests not a prohibition but simply a decision not to
mandate any solution in the second context, i.e., to leave the question
to agency discretion.'' Catawba Cty., N.C. v. EPA, 571 F.3d 20, 36
(D.C. Cir. 2009) (emphasis in original) (internal quotation marks and
citation omitted).\47\ The inference that Congress's silence
intentionally permits agency discretion is reinforced by the fact that
the noncitizens whom DHS has elected to process into the United States
using the expedited removal procedure are expressly excluded from the
class of noncitizens who are statutorily guaranteed section 240 removal
proceedings under section 235(b)(2)(A) of the INA, 8 U.S.C.
1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
---------------------------------------------------------------------------
\47\ See also Henson v. Santander Consumer USA, Inc., 137 S. Ct.
1718, 1723 (2017) (``[U]sually at least, . . . we presume
differences in language . . . convey differences in meaning.'').
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Second, a noncitizen with a positive credible fear determination is
entitled only to a further proceeding related to their ``application
for asylum,'' or for withholding of removal under section 241(b)(3) of
the INA, 8 U.S.C. 1251(b)(3), or withholding or deferral of removal
under the regulations implementing U.S. obligations under Article 3 of
the CAT. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii); 8 CFR
208.30(e). An asylum application's purpose is to determine whether the
noncitizen is entitled to relief or protection from removal, not
whether the noncitizen should be admitted or granted other immigration
benefits. See Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021) (``[A]
foreign national can be in lawful status but not admitted--think of
someone who entered the country unlawfully, but then received
asylum.''); Matter of V-X-, 26 I&N Dec. 147, 150 (BIA 2013) (holding
that, ``although [a noncitizen's] grant of asylum confer[s] a lawful
status upon him, it [does] not entail an `admission' ''). By contrast,
the purpose of a section 240 removal proceeding is to ``determin[e]
whether [a noncitizen] may be admitted to the United States.'' INA
240(a)(3), 8 U.S.C. 1229a(a)(3). In section 240 removal proceedings,
both removability and entitlement to various forms of relief or
protection are determined. Compare INA 235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), with INA 240(c)(2)-(4), 8 U.S.C. 1229a(c)(2)-
(4).\48\ Moreover, the Departments believe that it is better policy to
place noncitizens with a positive credible fear determination initially
in nonadversarial proceedings in which their asylum claims can be
adjudicated by asylum officers.
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\48\ The Departments acknowledge that there is some legislative
history suggesting that some Members of Congress believed that
individuals found to have a credible fear would be referred to
section 240 removal proceedings. See, e.g., H.R. Rep. No. 104-828,
at 209 (1996) (suggesting that noncitizens who received positive
credible fear determinations would be placed in ``normal non-
expedited removal proceedings''). But the Departments are not
convinced that the legislative history is sufficiently clear to
foreclose an option the text itself does not ``unambiguously
forbid.'' Barnhart v. Walton, 535 U.S. 212, 218 (2002). Indeed,
other Members of Congress took a different view. See Letter for
Richard A. Sloan, Director, Policy Directives and Instructions
Branch, Immigration and Naturalization Service, from Lamar Smith,
Chairman, Subcommittee on Immigration and Claims, Re: INS 1788-96,
RIN 1115-AE47 (Feb. 3, 1997), in Implementation to Title III of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996:
Hearing Before the Subcomm. on Immigration and Claims of the H.
Comm. on the Judiciary, 105th Cong. 21-22 (1997) (``Section
235(b)(1)(B)(ii) [was] drafted deliberately to leave flexibility
regarding how the asylum adjudication would take place.'').
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The idea of allowing USCIS asylum officers to fully adjudicate the
[[Page 46918]]
protection claims made by noncitizens who receive a positive credible
fear determination is not new. In its congressionally mandated 2005
report on the expedited removal process, the U.S. Commission on
International Religious Freedom (``USCIRF'') recommended that asylum
officers be allowed to grant asylum to ease ``the burden on the
detention system, the immigration courts, and bona fide asylum seekers
in Expedited Removal.'' \49\ The USCIRF repeated this recommendation
when it conducted a follow-up study and issued an updated report in
2016, stating as follows:
---------------------------------------------------------------------------
\49\ USCIRF, Report on Asylum Seekers in Expedited Removal,
Volume I: Findings & Recommendations 66 (Feb. 2005), <a href="https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/Volume_I.pdf">https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/Volume_I.pdf</a>.
One solution to reduce the immigration courts' caseload and
backlog is to allow asylum officers to adjudicate defensive asylum
claims, as USCIRF recommended in the 2005 Study. Asylum officers
have the legal background and training to adjudicate asylum claims,
and do so for affirmative asylum cases. Further, having an asylum
officer review a credible fear claim and then having an immigration
judge review an asylum claim creates significant redundancy without
necessarily adding value.\50\
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\50\ USCIRF, Barriers to Protection: The Treatment of Asylum
Seekers in Expedited Removal 54 (Aug. 2016), <a href="https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf">https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf</a>.
In 2012, the Administrative Conference of the United States studied
the removal process and also issued recommendations that regulations be
changed to allow for asylum officers to adjudicate protection claims
for noncitizens determined to have a credible fear as part of a package
of proposals to improve the operations of the immigration courts.\51\
More recently, experts from the Migration Policy Institute (``MPI'')
reached a similar conclusion in a 2018 report on the state of the U.S.
asylum system. MPI concluded as follows:
---------------------------------------------------------------------------
\51\ Administrative Conference of the United States,
Administrative Conference Recommendation 2012-3: Immigration Removal
Adjudication 15 (June 15, 2012), <a href="https://www.acus.gov/sites/default/files/documents/2012-3.pdf">https://www.acus.gov/sites/default/files/documents/2012-3.pdf</a>.
Allowing cases with positive credible-fear findings to instead
remain with the Asylum Division for the full asylum merits
adjudication would capitalize on the investment of time and
expertise the division has already made. It would also enable
meritorious cases to be resolved more quickly, reducing the overall
asylum system backlogs and using limited asylum officer and IJ
resources more efficiently.\52\
---------------------------------------------------------------------------
\52\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
The U.S. Asylum System in Crisis: Charting a Way Forward 3,
Migration Policy Institute (Sept. 2018), <a href="https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf">https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf</a>.
In reaching this conclusion, these experts noted that moving the cases
to the USCIS Asylum Division for adjudication plays to its strengths,
including its experience in handling asylum and asylum-related
adjudications; its regular trainings on asylum-related country
conditions and legal issues, as well as nonadversarial interviewing
techniques; and its ready access to country conditions experts.
Additionally, the MPI experts concluded that nonadversarial proceedings
are well suited for this process because they are ``considerably less
resource-intensive than immigration court proceedings'' and ``lend
themselves to a fuller understanding of the strengths and weaknesses of
an applicant's case.'' \53\ The DHS Homeland Security Advisory
Council's (``HSAC'') bipartisan CBP Families and Children Care Panel
also included this recommendation in its final report to the
Secretary.\54\ This panel of the HSAC was created at the request of the
Secretary in October 2018 to study ``the burgeoning humanitarian crisis
resulting from a surge in migration of families, primarily from
Guatemala and Honduras, overwhelming the DHS resources at the border to
address the crisis.'' \55\
---------------------------------------------------------------------------
\53\ Id. at 26.
\54\ HSAC, CBP Families and Children Care Panel Final Report 24
(Nov. 14, 2019), <a href="https://www.dhs.gov/sites/default/files/publications/fccp_final_report_1.pdf">https://www.dhs.gov/sites/default/files/publications/fccp_final_report_1.pdf</a>.
\55\ Id. at 4.
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The Departments acknowledge that the above recommendations assumed
that individuals denied asylum by a USCIS asylum officer would be
issued an NTA and placed into section 240 removal proceedings before an
IJ, where the noncitizen would have a second, full evidentiary hearing
on the asylum application with a different decision-maker. This
proposed rule would not adopt that approach, as the Departments
determined it was unnecessary, duplicative, and inefficient. Instead,
as noted in the previous section, this proposed rule would establish a
new process that would require the IJ to conduct a de novo review of a
denied application for protection when such review is requested, but it
would not provide the noncitizen with a second full evidentiary hearing
to present the claim. The Departments believe that an approach
requiring a full evidentiary hearing before an IJ after an asylum
officer's denial would lead to inefficiencies without adding additional
value or procedural protections. Under this proposal, the asylum
officer will have developed and considered the noncitizen's claim
fully, including by taking testimony and accepting evidence, during the
nonadversarial proceeding. If a noncitizen seeks review of an asylum
officer's denial, the IJ would have a complete record for review
developed by the asylum officer (including a transcript of the hearing
and any evidence offered by the applicant or otherwise considered by
the officer) and the written decision of the asylum officer. The
noncitizen would have a full opportunity to challenge the asylum
officer's denial during this review process and would not need to
present their claim at a second full hearing. Instead, to the extent
that a noncitizen seeks to introduce additional non-duplicative
testimony or evidence, a provision of the proposed rule would allow
them to do so if certain requirements are met. See 8 CFR 1003.48(e)
(proposed). Accordingly, the Departments believe that a second full
evidentiary hearing before an IJ is unnecessary and inefficient. A
further description of the proposed review process follows in the next
section.
This proposed rule would change current procedures to allow a
noncitizen who is found to have a credible fear to have a full
adjudication of the noncitizen's protection claims by an asylum
officer. 8 CFR 208.2(a) (proposed) (revising jurisdiction over asylum
applications in order to provide USCIS jurisdiction to hear asylum
claims after a positive credible fear determination), id. Sec.
208.30(f) (retention of a positive credible fear determination with
USCIS for an asylum hearing); id. Sec. Sec. 1003.42, 1208.30(g)
(referral of negative credible fear determinations vacated by an IJ to
USCIS for an asylum hearing). This would supplant the process in place
prior to this proposed rule whereby DHS referred such an individual
directly to an IJ for an adversarial hearing in a section 240 removal
proceeding. Proposed 8 CFR 1003.42 and 1208.30(g) of the EOIR
regulations reflect similar changes, enabling an IJ who vacates an
asylum officer's negative credible fear determination to refer the case
back to USCIS for an asylum hearing.
The Departments propose to make corresponding amendments to 8 CFR
208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR 235.6(a)(1) to provide
that the cases of individuals who receive a positive credible fear
determination may be retained by USCIS for a nonadversarial hearing
before a USCIS asylum officer under the jurisdiction of 8 CFR
208.2(a)(1)(ii) to determine eligibility for asylum, statutory
withholding of removal, and
[[Page 46919]]
withholding of deferral or removal under CAT. The Departments also
propose to amend 8 CFR 1003.1, 8 CFR 1003.12, 8 CFR 1208.2, and 8 CFR
1208.30 of the EOIR regulations, and to add a new section 8 CFR
1003.48, to make corresponding changes regarding how and when cases
involving individuals found to have a credible fear would be referred
by DHS to EOIR.
The proposed nonadversarial proceedings for further consideration
of asylum applications by asylum officers would provide protections
similar to those provided in section 240 removal proceedings. The
asylum officer's consideration under this proposal, however, would be
limited solely to claims for asylum, statutory withholding of removal,
and withholding or deferral of removal under the CAT regulations. 8 CFR
208.2(a)(2) (proposed). Under this proposed rule, if the asylum officer
denies the noncitizen asylum, statutory withholding of removal, and
protection under the CAT regulations, the noncitizen would be ordered
removed based upon the immigration officer's earlier inadmissibility
determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C.
1225(b)(1)(A)(i). The noncitizen, may, however appeal an adverse
decision to an IJ, and if necessary, to the BIA. 8 CFR 208.14(c)(5),
1003.1(b)(15), 1208.2(b).
To allow asylum officers to carry out this new responsibility
fully, additional changes to the regulations have been proposed. First,
the Departments propose that under 8 CFR 208.9(f), asylum officers
would be required to record the asylum hearing and that a transcript of
that recording would be made part of the record whenever a noncitizen
denied protection seeks review of a denial. USCIS would transcribe the
asylum hearing recording and a copy of the transcript and the record
developed at the hearing would be served on the applicant and filed
with the immigration court. The hearing would be transcribed prior to
the record being referred for review. Second, the Departments propose
that USCIS be required to provide an interpreter for any hearing, just
as EOIR is required to do for a removal hearing. 8 CFR 208.9(g)
(proposed). Third, as in section 240 removal proceedings, the
Departments propose that the noncitizen would be entitled to be
represented, at no expense to the Government, by counsel of the
noncitizen's choosing who is authorized to practice in such
proceedings. See id. Sec. 1003.12 (proposed), 1003.16 (current); cf. 8
U.S.C. 1229a(b)(4).
The Departments propose that the ``failure to appear'' rule at 8
CFR 208.10 be revised to allow for an order of removal to be issued
when the noncitizen fails to appear for the scheduled hearing with the
asylum officer. Changes to 8 CFR 208.16 through 208.19 also are
proposed in order to provide asylum officers authority to adjudicate
claims for withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), and withholding and deferral of removal under the
regulations implementing the CAT. Existing 8 CFR 208.14(b) already
provides USCIS the authority to grant an asylum application properly
within USCIS's jurisdiction, including the jurisdiction given USCIS by
this proposed rule over asylum applications from noncitizens determined
to have a credible fear. Similar authority is provided for immigration
judges in existing 8 CFR 1208.14. Finally, the Departments propose that
8 CFR 208.14(c)(5) be added to provide the process for USCIS to deny an
application for asylum, including the issuance of a decision on
withholding and deferral of removal if asylum is denied; the issuance
of an order of removal by the asylum officer after the merits hearing;
and the process for the applicant to seek review of an asylum denial
before an IJ. Review of these decisions would be governed by proposed 8
CFR 1003.48. The Departments also propose technical edits to 8 CFR
208.22 to include references to corresponding sections of both 8 CFR
part 208 and 8 CFR part 1208. The Departments seek comments on all
aspects of these proposed changes, including whether different or
additional decision and review procedures should apply to applications
considered under this proposed process.
The authority of asylum officers to enter an order of removal after
denying a noncitizen's asylum claim follows from the relevant
provisions of the INA. By definition, noncitizens who are placed into
expedited removal already have been determined to be inadmissible and
are protected from immediate removal only because their credible fear
of persecution entitled them to further consideration of their asylum
claim. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). If, after that further
consideration, an asylum officer concludes that a noncitizen is not
entitled to asylum, that determination removes the only remaining legal
barrier to removal. That determination qualifies as an order of removal
under the relevant statutory definition, which provides that an ``order
of deportation'' includes not only an order ``ordering deportation,''
but also an order ``concluding that [a noncitizen] is deportable.'' INA
101(a)(47)(A), 8 U.S.C. 1101(47)(A). The Seventh Circuit reached the
same conclusion in addressing another class of noncitizens whose only
defense to removal is a potential asylum claim: Those who entered under
the visa-waiver program, INA 217(b)(2), 8 U.S.C. 1187(b)(2). The court
explained that an order denying such a noncitizen's asylum claim is an
order of removal because ``an order that is proper only if the
[noncitizen] is removable implies an order of removal.'' Mitondo v.
Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). This proposed rule
therefore would provide that if the noncitizen is not granted asylum at
the conclusion of the asylum hearing, the asylum officer is authorized
to issue an order of removal.
E. Application Review Proceedings Before the Immigration Judge--
Proposed 8 CFR 1208.2(c), 1003.48
The Departments propose to amend 8 CFR 1208.2(c) and add 8 CFR
1003.48 to establish new IJ review proceedings for those noncitizens
who establish a credible fear of persecution or torture but (1) were
found by USCIS not to merit asylum, statutory withholding of removal,
or protection under the CAT and its implementing regulations; and (2)
affirmatively request further review of their applications by an IJ.
The Departments propose that upon a referral of the case from USCIS,
the IJ would conduct a de novo review of USCIS's denial of the claims.
Under these proposed limited review proceedings, unlike under
section 240 of the INA, 8 U.S.C. 1229a, the IJ would not have authority
to consider issues related to a noncitizen's removability or a
noncitizen's eligibility for any other relief from removal. Moreover,
an IJ ordinarily would not conduct an evidentiary hearing on the
noncitizen's asylum application. Rather, the IJ would determine, after
de novo review of the full record of proceedings created during asylum
officer hearings and consideration of any additional testimony or
evidence permitted under the proposed process described below, whether
a noncitizen is eligible for asylum or withholding of removal under the
Act or withholding or deferral of removal under the CAT. Although the
Departments intend these proceedings to be more streamlined than
section 240 removal proceedings, asylum officer and IJ review,
together, would provide significant protections to ensure that these
noncitizens continue to receive full and fair adjudication of their
applications.
[[Page 46920]]
For noncitizens who affirmatively request further review by an IJ,
the Departments propose that DHS would initiate the review proceedings
through the service of a Form I-863, Notice of Referral to Immigration
Judge, on the noncitizen. As proposed in 8 CFR 1003.48(b), DHS would
file the following items with the immigration court: (1) A copy of the
Notice of Referral; (2) a copy of the record of proceedings before the
asylum officer, as outlined in 8 CFR 208.9(f); (3) the asylum officer's
written decision, including the removal order issued under 8 CFR
208.14(c)(5) by the asylum officer; and (4) proof that DHS served the
Notice of Referral, the record of proceedings, and the asylum officer's
written decision, including the removal order, on the noncitizen.
Unlike in credible fear determination reviews, where the IJ is provided
only asylum officers' notes from the interview, the summary of the
material facts, and other limited records, see, e.g., 8 CFR
208.30(e)(4), the proposed requirements in 8 CFR 1003.48(b) would
ensure that cases would only be referred to the immigration courts
following asylum officers' full nonadversarial adjudication of the
noncitizens' applications, and that IJs and noncitizens would have
asylum officers' decisions and complete records of the hearings in
advance of the IJ review. This would allow the noncitizen to have
notice of the reasons for the asylum officer's denial in advance of the
immigration court review process, and it would allow the IJ to conduct
a thorough review of the asylum officer's decision based on the
application and complete record developed before the asylum officer.
Accordingly, because the IJ would be provided the complete record of
proceedings from the asylum officer hearing, the Departments expect
that the IJ generally would be able to complete the de novo review
solely on the basis of the record before the asylum officer, taking
into consideration any arguments raised by the noncitizen, or the
noncitizen's counsel, and DHS.
That said, the proposed rule recognizes that the factual record as
elicited by the asylum officer sometimes will need to be further
developed before the IJ. The rule proposes at 8 CFR 1003.48(e) that an
IJ does not have the authority to remand a case to an asylum officer
because the Departments believe that this would be unnecessary and
inefficient. Instead, the rule proposes that a party may seek to
introduce additional testimony or documentation so long as the party
demonstrates to the IJ that the testimony or documentation is not
duplicative of the testimony or documentation considered by the asylum
officer and that it is necessary to develop the factual record to allow
the IJ to issue a reasoned decision in the case. The Departments expect
that an IJ may, in appropriate cases, require parties to submit
prehearing statements or briefs concerning whether they will seek to
introduce additional testimony or documentation and, if so, explaining
why this testimony or documentation meets the standard at 8 CFR
1003.48(e). The Departments further expect that, where necessary, for
example in cases involving pro se applicants, IJs will, before
proceeding with the case, explain in court the standards for submitting
additional testimony and documentation. This proposed provision would
ensure a full and fair evaluation of the applicant's application for
asylum, withholding of removal under the Act, or withholding or
deferral of removal under the CAT.
The Departments believe that this proposed regulatory scheme--under
which IJs typically would rely on the record created at the asylum
officer hearing but could allow additional testimony and evidence if a
party establishes that doing so is necessary--is the best way to
balance efficiency and fairness considerations appropriately.\56\ The
Departments believe that these proceedings, as proposed, will be more
streamlined than removal proceedings but will still provide the parties
with a fair opportunity to present their cases. Nevertheless, the
Departments understand that there are alternative threshold standards
for the introduction of evidence or the reopening of proceedings.\57\
Accordingly, the Departments request the public's comments on the
proposed evidentiary threshold requirements, including any suggestions
for alternatives that balance efficiency and fairness considerations,
particularly taking into account challenges pro se applicants for
asylum and related protection sometimes face in developing their
claims.
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\56\ See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) (``There
is a strong public interest in bringing litigation to a close as
promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their
respective cases.'').
\57\ See, e.g., Matter of Coelho, 20 I&N Dec. 464, 473 (BIA
1992) (providing that the moving party generally must demonstrate
that ``new evidence offered would likely change the result in the
case'' in order for the BIA to consider granting a discretionary
motion to remand).
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To ensure that noncitizens have a full and fair opportunity to
prepare for and receive review of their claims, the Departments propose
that many of the procedural safeguards that apply in section 240
removal proceedings would apply to the IJ review proceedings as well.
Unless specifically indicated in 8 CFR 1003.48 of the EOIR proposed
rules, the general rules of procedure that apply in removal proceedings
before the immigration courts also would apply to these proceedings.
This would include a noncitizen's rights (1) to obtain representation
by an attorney or other representative authorized to appear before the
immigration court, at no cost to the Government, see 8 CFR 1003.16(b);
(2) to seek a change of venue, see id. Sec. 1003.20(b); and (3) to
seek a continuance for good cause shown, see id. Sec. 1003.29.
Moreover, the provisions of 8 CFR 1003.2 and 1003.23 governing motions
to reopen and reconsider generally would be applicable to decisions
rendered by IJs or the BIA in these proceedings. The Departments also
propose to add a cross-reference in 8 CFR 1003.12 to the new
proceedings under 8 CFR 1003.48 to codify these procedural protections.
The rule further proposes at 8 CFR 1003.48(d) that the IJ would
have the discretion, pursuant to a motion filed by an applicant, to
vacate the asylum officer's order of removal. For the motion to be
granted, the applicant would have to show that he or she is prima facie
eligible for a form of relief that cannot be granted in proceedings
under 8 CFR 1003.48. With the motion granted, DHS would have the
discretion to place the applicant in removal proceedings. An applicant
would be permitted to file only one such motion, the motion would have
to be filed before the IJ issues a decision on the applications for
asylum and related protection, and motions to apply for voluntary
departure would not be granted. The Departments believe these
limitations are appropriate given the goal of meaningfully streamlining
these proceedings as compared with removal proceedings. That said, the
Departments seek the public's comments on whether the provisions
relating to motions to vacate removal orders appropriately balance
fairness and efficiency considerations.
In these proposed proceedings, the IJ would have the authority to
review all decisions issued by the asylum officer, upon request by the
applicant. See 8 CFR 1003.48(a) (proposed). For example, if the asylum
officer denies an applicant's application for asylum but grants the
applicant's application for withholding of removal under the Act, and
the applicant requests review by an IJ, the IJ would have the authority
to review not only the denial of asylum but also the grant of
withholding of removal as well. In these mixed cases, the
[[Page 46921]]
Departments believe it is appropriate, where the applicant has
requested review of an asylum officer's decision, to permit IJs to
review not only the denial but also the grant, because DHS could
present documentation or testimony before the IJ that is admissible
under 8 CFR 1003.48(e) and that indicates that the applicant does not
qualify for any of the relief or protection at issue. The Departments
seek comment on whether the IJ should have the authority to review all
decisions of the asylum officer in this manner.
As proposed at 8 CFR 1003.48(e), if the IJ determines that the
noncitizen is eligible for and merits asylum as a matter of discretion,
the IJ would issue a decision vacating the order of removal issued by
the asylum officer based upon the immigration officer's initial
inadmissibility determination under section 235(b)(1)(A)(i) of the Act,
8 U.S.C. 1225(b)(1)(A)(i), and granting the noncitizen asylum. If the
IJ determines that the noncitizen is eligible for withholding of
removal under the Act or withholding or deferral of removal under the
CAT, the IJ would issue a decision granting the appropriate protection,
but the IJ would not vacate the removal order issued by the asylum
officer.\58\
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\58\ A grant of withholding of removal ``does not afford [a
noncitizen] any permanent right to remain in the United States'' and
``does not prevent the DHS from removing [a noncitizen] to a country
other than the one to which removal has been withheld.'' Guzman
Chavez, 141 S. Ct. at 2286 (quoting Matter of I-S- & C-S-, 24 I&N
Dec. 432, 434 (BIA 2008)). That presupposes the issuance of a
removal order to preserve DHS's discretion to remove the noncitizen
to a third country. See id. at 2287-88 (noting that ``it is
axiomatic that in order to withhold removal there must first be an
order of removal that can be withheld'' (internal quotation marks
and citation omitted)).
---------------------------------------------------------------------------
The Departments propose that either party may appeal the IJ's
decision rendered in the new proceedings under 8 CFR 1003.48 to the BIA
in accordance with the standard EOIR appeal procedures that currently
apply to removal proceedings, including the submission of a Form EOIR-
26, Notice of Appeal from a Decision of an Immigration Judge. See
generally 8 CFR 1003.3, 1003.38. The Departments also propose to amend
8 CFR 1003.1(b) to make clear that a noncitizen may appeal the IJ's
decision to the BIA and that the review of these decisions is within
the BIA's jurisdiction. And, as with BIA decisions in removal
proceedings, the noncitizen may seek judicial review before the
appropriate circuit court of appeals. See INA 242, 8 U.S.C.
1252(a)(1).\59\ Accordingly, noncitizens under the proposed regulations
would have opportunities at four levels to have their claims for
asylum, withholding of removal, or deferral of removal considered:
First during a nonadversarial hearing before an asylum officer and
then, if necessary, on review by an IJ, the BIA, and the appropriate
circuit court of appeals.
---------------------------------------------------------------------------
\59\ The courts of appeals have jurisdiction to review ``a final
order of removal.'' INA 242(a)(1), 8 U.S.C. 1252(a)(1). As several
courts of appeals have held, that grant of jurisdiction includes the
authority to review a conclusion that an otherwise-removable
noncitizen is ineligible for asylum, even where--unlike under the
present rule--``no formal order of removal has been entered.''
Mitondo, 523 F.3d at 787; see Shehu v. Att'y Gen., 482 F.3d 652, 656
(3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir.
2006); Nreka v. Att'y Gen., 408 F.3d 1361, 1366-67 (11th Cir. 2005).
The courts of appeals do not have jurisdiction to review ``an order
of removal without a hearing pursuant to [8 U.S.C.] 1225(b)(1).''
INA 242(a)(1), 8 U.S.C. 1252(a)(1); see INA 242(a)(2)(A), 8 U.S.C.
1252(a)(2)(A) (additional limits on review of matters related to
removal orders issued pursuant to INA 235(b)(1), 8 U.S.C.
1225(b)(1)). That limitation does not apply here. An order of
removal entered after an asylum officer conducts a full hearing on a
noncitizen's asylum application is not ``an order or removal without
a hearing.'' And, in the context of INA 242's limits on judicial
review, the references to an order of removal issued ``pursuant to''
INA 242(b)(1), 8 U.S.C. 1225(b)(1), most naturally is read to
encompass only the orders expressly described in that provision: An
order issued when a noncitizen subject to expedited removal does not
indicate 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), or an order issued
when a noncitizen is found not to have a credible fear of
persecution, INA 235(b)(1)(B)(iii)(I),8 U.S.C.
1225(b)(1)(B)(iii)(I). Cf. Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1069 (2020) (applying ``the presumption favoring judicial
review of administrative action'' in construing another limit on
judicial review in INA 242, 8 U.S.C. 1252).
---------------------------------------------------------------------------
F. Severability
Upon the completion of the notice and comment period provided for
herein and subsequent issuance of a final rule, to the extent that any
portion of the resulting final rule is stayed, enjoined, not
implemented, or otherwise held invalid by a court, the Departments
intend for all other parts of the final rule that are capable of
operating in the absence of the specific portion that has been
invalidated to remain in effect. Thus, even if a judicial decision
invalidating a portion of the final rule results in a partial reversion
to the current regulations or to the statutory language itself, the
Departments intend that the rest of the final rule continue to operate
in tandem with the reverted provisions, if at all possible. The
Departments seek comment on whether (and which of) the regulatory
provisions proposed herein should be severable from one another.
G. Discretion/Phased Implementation
The Departments believe that the proposed changes in this rule are
necessary to establish a more streamlined and timely adjudication
process for individuals who establish a credible fear of persecution or
torture, while simultaneously ensuring fundamental fairness. The
Departments emphasize, however, that this proposed rule would provide
DHS the discretion to continue placing such individuals directly into
section 240 removal proceedings before an IJ. This discretion may be
exercised, for example, when a noncitizen with a positive credible fear
determination may have committed significant criminal activity, have
engaged in past acts of harm to others, or pose a public safety or
national security threat. In some cases, DHS may determine that it is
more appropriate for such noncitizens' protection claims to be heard
and considered in the adversarial process before an IJ.
Additionally, if the Departments decide to issue a final rule
implementing this new process during FY 2022, DHS would also need to
continue to place many noncitizens receiving a positive credible fear
determination into section 240 removal proceedings, while USCIS takes
the steps needed to allow it to fully implement this new process for
all cases. As discussed below in greater detail in the costs and
benefits analysis of this proposal and its impacts on USCIS, as
required under Executive Orders 12866 and 13563, USCIS has estimated
that it will need to hire approximately 800 new employees and spend
approximately $180 million to fully implement the proposed asylum
officer hearing and adjudication process to handle approximately 75,000
cases annually. If the number of noncitizens placed into expedited
removal and making successful fear claims increases significantly above
that estimate, the cost to implement this proposed rule with staffing
levels sufficient to handle the additional cases in a timely fashion
would be substantially higher.\60\ Until USCIS is able to support full
implementation, USCIS would need to continue to place a large
percentage of individuals receiving a positive credible fear
determination into section 240 removal proceedings. This exercise of
discretion is similar to and in line with DHS's recognized
prosecutorial discretion to issue an NTA to a covered
[[Page 46922]]
noncitizen in expedited removal proceedings at any time after the
covered citizen is referred to USCIS for a credible fear determination.
See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523.
---------------------------------------------------------------------------
\60\ USCIS presently has over 400,000 pending affirmative asylum
applications awaiting interview or adjudication. In proposing this
rule, the Departments seek to avoid simply shifting work from a
resource-challenged EOIR to a similarly resource-challenged USCIS
Asylum Division. DHS seeks to fully resource the USCIS Asylum
Division to handle their present workloads and this new workload
prior to the USCIS full takeover of the adjudication of protection
claims that follow a positive credible fear determination.
---------------------------------------------------------------------------
USCIS is primarily funded by immigration and naturalization benefit
request fees charged to applicants and petitioners. Fees collected from
individuals and entities filing immigration benefit requests are
deposited into the Immigration Examinations Fee Account (``IEFA'').
These fee collections fund the costs of adjudicating immigration
benefit requests, including those provided without charge to refugee,
asylum, and certain other applicants. The authority for establishing
fees is found in section 286(m) of the INA, 8 U.S.C. 1356(m), which
authorizes DHS to charge fees for adjudication and naturalization
services at a level to ``ensure recovery of the full costs of providing
all such services, including the costs of similar services provided
without charge to asylum applicants or other immigrants.''
The Chief Financial Officers Act of 1990 (``CFO Act''), 31 U.S.C.
901-03, requires each agency's chief financial officer to ``review, on
a biennial basis, the fees, royalties, rents, and other charges imposed
by the agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' 31 U.S.C.
902(a)(8). USCIS conducted a FY 2019 and 2020 IEFA fee review, as
required under the CFO Act, and, as a result of that review, DHS
published an updated final fee rule on August 3, 2020, with an
effective date of October 2, 2020. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 85 FR 46788 (Aug. 3, 2020). Implementation of
that new fee rule was enjoined before its effective date, and USCIS has
notified the public that it intends to continue to comply with the
court injunctions.\61\ DHS intends to rescind and replace the changes
made by the August 3, 2020 fee rule and establish new USCIS fees to
recover USCIS operating costs.\62\
---------------------------------------------------------------------------
\61\ See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520,
526 (N.D. Cal. 2020) (enjoining the rule); Nw. Immigrant Rts.
Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 41
(D.D.C. 2020) (same). On January 29, 2021, USCIS published a Federal
Register notice indicating that the agency was continuing to comply
with these court orders. U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 86 FR 7493, 7493 (Jan. 29, 2021).
\62\ DHS lists a notice of proposed rulemaking for new fees on
the Spring 2021 Unified Regulatory Agenda with a proposed
publication date of November 2021. Office of Management and Budget,
Spring 2021 Unified Regulatory Agenda (June 11, 2021), <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68</a>.
---------------------------------------------------------------------------
Current resource constraints would prevent the Departments from
immediately achieving their ultimate goal of having the protection
claims of nearly all individuals who receive a positive credible fear
determination adjudicated by an asylum officer. The Departments believe
that to fully implement the proposed rule, additional resources would
be required. The Departments therefore propose that the new process be
implemented in phases, as the necessary staffing and resources are put
into place.
A phased implementation would allow the Departments to begin
employing the proposed process in an orderly and controlled manner and
for a limited number of cases, giving USCIS the opportunity to work
through operational challenges and ensure that each noncitizen placed
into the process is given a full and fair opportunity to have any
protection claim presented, heard, and properly adjudicated in full
conformance with the law. Phased implementation would also have an
immediately positive impact in reducing the number of individuals
arriving at the southwest border who are placed into backlogged
immigration court dockets, thus allowing the Departments to more
quickly adjudicate some cases.
Given limited agency resources, the Departments anticipate first
implementing this new process for certain non-detained family units.
The Departments believe this is necessary as USCIS capacity is
currently insufficient to handle all family unit referrals under this
new proposed process. The Departments also anticipate limiting
referrals under the initial implementation of this proposed rule to
families apprehended in certain southwest border sectors or stations,
as well as based on the family unit's final intended destination (e.g.,
if the family unit is within a predetermined distance from the
potential interview location). As the USCIS Asylum Division gains
resources and builds capacity, the Departments anticipate that
additional family unit cases and then single adult cases could be
considered for processing pursuant to this phased implementation. Under
this approach, it is likely that single adult cases would not be
handled under the new process until a later phase of implementation.
The Departments are seeking comments on what might be the appropriate
factors for DHS to consider when determining which individuals to place
into the new process during this period prior to full implementation.
Statutory and Regulatory Requirements
H. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives. If a
regulation is necessary, these Executive orders direct that, to the
extent permitted by law, agencies ensure that the benefits of a
regulation justify its costs and select the regulatory approach that
maximizes 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, of reducing costs, of harmonizing rules, and of
promoting flexibility. It explicitly draws attention to ``equity, human
dignity, fairness, and distributive impacts,'' values that are
difficult or impossible to quantify. All of these considerations are
relevant here. This proposed rule has been designated as a
``significant regulatory action,'' and it is economically significant
since it meets the $100 million threshold under section 3(f)(1) of
Executive Order 12866. Accordingly, the Office of Management and Budget
(``OMB'') has reviewed this regulation.
1. Summary
This proposed rule would change and streamline the overall
adjudicatory process for asylum applications arising out of the
expedited removal process. By reducing undue delays in the system, and
by providing a variety of procedural safeguards, the rule protects
equity, human dignity, and fairness.
A central feature of the regulation changes the respective roles of
an IJ and an asylum officer during proceedings for consideration of
asylum applications after a positive credible fear determination.
Notably, IJs will retain their existing authority to review de novo the
negative determinations made by asylum officers in a credible fear
proceeding. In making credible fear determinations, asylum officers
will return to evaluating whether there is a significant possibility
that the noncitizen could establish eligibility for asylum, withholding
of removal, or CAT
[[Page 46923]]
protection for possible referral to a full hearing of the claim and the
noncitizen will still be able to seek review of that negative credible
fear determination before the IJ.
Asylum officers will take on a new role of fully adjudicating all
protection claims made by some noncitizens who have received a positive
credible fear determination, a role previously carried out only by IJs
as part of a proceeding under section 240 of the INA. Under the rule,
IJs will take on a new authority to review de novo an asylum officer's
denial of these claims.
The population of individuals likely to be affected by this
proposed rule's provisions are individuals for whom USCIS completes a
credible fear screening. The average annual number of credible fear
screenings for FY 2016 through 2020 completed by USCIS is broken out as
59,280 positive credible fear determinations and 12,083 negative
credible fear determinations, for a total of 71,363 individuals with
credible fear determinations. DHS expects that this population will be
affected by the rule in a number of ways, which may vary from person to
person depending on (1) whether the individual receives a positive
credible fear determination, and (2) whether the individual's asylum
claim is granted or denied by the asylum officer. In addition, because
of data constraints and conceptual and empirical challenges, we can
provide only a partial monetization of the impacts to individuals. For
example, asylum seekers who establish credible fear may benefit from
having their asylum claims adjudicated potentially much sooner than
they otherwise would. Those who are granted asylum sooner may have a
possible path to citizenship in the United States. This is obviously a
benefit in terms of human dignity and equity, but it is a benefit that
is not readily monetized. Asylum seekers who establish credible fear
may also benefit from filing cost savings and earlier labor force
entry. DHS has estimated this impact on a per-person workday basis.
As it relates to the Government and USCIS costs, the planned human
resource and information-related expenditures required to implement
this proposed rule are monetized as real resource costs. These
estimates are developed along three population bounds, ranging from
75,000 to 300,000 credible fear screenings to account for possible
variations in future years. Furthermore, the possibility of parole for
more individuals--applied on a case-by-case basis--could lower the cost
to the Government per person processed. DHS has also estimated
potential employment tax impacts germane to earlier labor force entry,
likewise on a per-person workday basis. Such estimates made on a per-
person basis reflect a range of wages that the impacted individuals
could earn. The per-person, per-work day estimates are not extended to
broader monetized impacts due to data constraints.
An important caveat to the possible benefits to asylum applicants
who establish a credible fear introduced above and discussed more
thoroughly in the analysis is that it is expected to take time to
implement this rule. Foremost, DHS expects the resourcing of this
proposed rule to be implemented in a phased approach. Further, while
up-front expenditures to support the changes from this proposed rule
based on planning models are high, the logistical and operational
requirements of this proposed rule may take time to fully implement.
For instance, once USCIS meets its staffing requirements, time will be
required for the new asylum staff to be trained for their positions,
which may occur over several months. As a result, the benefits to
applicants and the Government may not be realized immediately.
To develop the monetized costs of the proposed rule, DHS relied on
a low, midrange, and high population bound to reflect future
uncertainty in the population. In addition, resources are partially
phased in over FYs 2022 and 2023, as a full phasing in of resources,
potentially up to 2026, is not possible at this time. The average
annualized cost of this proposed rule ranges from $180.4 million to
$1.0 billion, at a 3 percent discount rate, and from $179.5 million to
$995.8 million, at a 7 percent discount rate. At a 3 percent discount
rate the total 10-year costs could range from $1.5 billion to $8.6
billion, with a midpoint of $3.9 billion. At a 7 percent discount rate,
the total 10-year costs could range from $1.3 billion to $7.0 billion,
with a midpoint of $3.2 billion.
A summary of the potential impacts of this proposed rule are
presented in Table 1 and are detailed more in the ensuing analysis.
Where quantitative estimates are provided, they apply to the midpoint
figure (applicable to the wage range or the population range).
Table 1--Summary of the Potential Impacts of This Proposed Rule
----------------------------------------------------------------------------------------------------------------
Entities impacted Annual population estimate Potential impacts
----------------------------------------------------------------------------------------------------------------
Individuals who receive a positive USCIS provides a range from <bullet> Maximum potential cost-savings
credible fear determination. 75,000 to 300,000 total to applicants of Form I-589 of $364.86
individuals who receive per person.
credible fear
determinations. In recent
years (see Table 3),
approximately 83.1% of
individuals screened have
received a positive
credible fear
determination.
<bullet> Potential cost-savings to
applicants of Form I-765 of $370.28 per
person.
<bullet> Potential early labor earnings
to asylum applicants who obtain an
employment authorization document
(``EAD'') of $225.44 per person per
workday; this impact could potentially
constitute a transfer from workers in
the U.S. labor force to certain asylum
applicants. We identified three factors
that could drive this impact of early
entry to the labor force: (i) More
expeditious grants of asylum, thereby
authorizing work incident to status; and
(ii) a change in timing apropos to the
``start'' time for filing for work
authorization--the ``EAD-clock''
duration is not impacted, but it
``shifts'' to an earlier starting point.
On the other hand, some individuals who
would have reached the ``EAD-clock''
duration for a pending asylum
application and obtained work
authorization under the current
regulations may not obtain work
authorization if their asylum claim is
promptly denied.
<bullet> Individuals could not have to
wait lengthy times for a decision on
their protection claims. This is a
benefit in terms of equity, human
dignity, and fairness.
<bullet> Some individuals could benefit
from de novo review by an IJ of the
asylum officer's denial of their asylum
claim.
[[Page 46924]]
Individuals who receive a negative USCIS provides a range from <bullet> Beneficiaries of the new process
credible fear determination. 75,000 to 300,000 total may benefit in terms of human dignity if
individuals who receive paroled from detention while awaiting
credible fear their credible fear interview and
determinations. In recent determination.
years (see Table 3),
approximately 16.9% of
individuals screened have
received a negative
credible fear
determination.
<bullet> Parole may result in more
individuals failing to appear for
hearings.
DHS-USCIS............................... N/A........................ <bullet> At a 7 percent discount rate,
the resource costs could be $451.2
million annually, based on up-front and
continuing expenditures.
<bullet> It is reasonable to assume that
there could be a reduction in Form I-765
filings due to more expeditious
adjudication of asylum claims, but there
could also be countervailing influences;
hence, the volume of Form I-765 filings
(writ large or for specific classes
related to asylum) could decrease,
remain the same, or increase--these
reasons are elucidated in the analysis.
<bullet> A net change in Form I-765
volumes overall could impact the
incumbent volume of biometrics and
biometrics services fees collected;
however, based on the structure of the
USCIS Application Support Center
(``ASC'') biometrics processing
contract, it would take a significant
change in such volumes for a particular
service district to generate marginal
cost increases or savings per biometrics
submission.
EOIR.................................... 555 current IJs as well as <bullet> EOIR only reviews on appeal and
support staff and other will no longer adjudicate asylum claims
personnel. raised in expedited removal in the first
instance.
<bullet> Allows EOIR to focus efforts on
other priority work and reduce its
substantial current backlog.
<bullet> There could be non-budget
related cost-savings if the actual time
worked on a credible fear case decreases
in the transfer of credible fear cases
to USCIS.
Support networks for asylum applicants Unknown.................... <bullet> To the extent that some
who receive a positive credible fear applicants may be able to earn income
determination. earlier than they otherwise could
currently, burdens to the support
network of the applicant may be
lessened. This network could include
public and private entities and family
and personal friends, legal services
providers and advisors, religious and
charity organizations, State and local
public institutions, educational
providers, and non-governmental
organizations (``NGOs'').
Other................................... Unknown.................... <bullet> There could be familiarization
costs associated with this proposed
rule; for example, if attorneys
representing the asylum client reviewed
the rule, the cost would be about $69.05
per hour.
<bullet> There may be some labor market
impacts as some asylum seekers that
currently enter the labor market with a
pending asylum application would no
longer be entering the labor market
under this proposed rule if they get a
negative decision on their asylum claim
sooner. Applicants with a positive
credible fear determination may enter
the labor market sooner under this
proposed rule than they would currently.
<bullet> Tax impacts could accrue to the
earlier entry of some individuals into
the labor market; we estimate employment
tax impacts could be $34.49 per person
on a workday basis.
----------------------------------------------------------------------------------------------------------------
In addition to the impacts summarized above, and as required by OMB
Circular A-4, Table 2 presents the prepared accounting statement
showing the costs and benefits associated with this regulation.\63\
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\63\ OMB, Circular A-4 (2003), <a href="https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a> (last viewed June 1,
2021).
Table 2--OMB A-4 Accounting Statement
[$ millions, 2020]
----------------------------------------------------------------------------------------------------------------
Time Period: 2022-2031
-----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Monetized benefits............... Not estimated Not estimated Not estimated
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un- N/A N/A N/A
monetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified benefits............ Some individuals may benefit from filing cost-savings Regulatory Impact
related to Forms I-589 and I-765. Early labor market Analysis (``RIA'').
entry would be beneficial in terms of labor earnings to
the applicant, but also because it could reduce burdens
on the applicants' support networks.
Benefits driven by increased efficiency would enable
some asylum-seeking individuals to move through the
asylum process more expeditiously than through the
current process, with timelines potentially decreasing
significantly, thus promoting both human dignity and
equity. Adjudicative efficiency gains and expanded
parole could lead to individuals spending less time in
detention, which would benefit the Government and the
affected individuals.
[[Page 46925]]
Another benefit is that EOIR would not see the cases in
which USCIS grants asylum, which we estimate as at
least a 15 percent reduction in their overall credible
fear workload. This stands to mitigate the backlog of
cases pending in immigration courts. Additionally, this
benefit would extend to individuals granted or denied
asylum faster than if they were to go through the
current process with EOIR.
Depending on the individual case circumstances, this
proposed rule would mean that such noncitizens would
likely not remain in the United States--for years,
potentially--pending resolution of their claims, and
those who qualify for asylum would be granted asylum
several years earlier than they are under the present
process.
The anticipated operational efficiencies from this
proposed rule may provide for prompt grant of relief or
protection to qualifying noncitizens and ensure that
those who do not qualify for relief or protection are
removed more efficiently than they are under current
rules.
----------------------------------------------------------------------------------------------------------------
Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for 10- (3%) ................. ................. RIA.
year period between 2021 and $453.8 $180.4 $1,002.4
2030 (discount rate in
parenthesis).
------------------------------------------------------------------------------
(7%) ................. ................. RIA.
$451.2 179.5 995.8
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un- <bullet> Potential cost-savings applicable to Form I- RIA.
monetized, costs. 589 of $338.86 per person.
<bullet> Potential cost-savings applicable to Form I-
765 of $377.32 per person.
<bullet> Potential early labor earnings of $225.44 per
person per workday.
<bullet> The transfer of cases from EOIR to USCIS would
allow resources at EOIR to be directed to other work,
and there is a potential for cost-savings to be
realized as it relates to credible fear processing
specifically, if the average cost of work-time spent on
cases by USCIS asylum officers would be lower than at
EOIR currently. These would not be budgetary cost-
savings, and USCIS has not made a one-to-one time- and
cost-specific comparison between worktime actually
spent on a case at EOIR and USCIS.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs. N/A
----------------------------------------------------------------------------------------------------------------
Transfers
----------------------------------------------------------------------------------------------------------------
Annualized transfers:............ Potential labor earnings that would accrue to credible
fear asylum applicants that enter the labor market
earlier than they would currently.
----------------------------------------------------------------------------------------------------------------
From whom to whom?............... Potentially a distributional economic impact in the
form of a transfer to asylum applicants who enter
earlier than they would currently from others in the
U.S. workforce.
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category.. N/A RIA.
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or N/A
Tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses...... This proposed rule does not directly regulate small RFA.
entities, but rather individuals.
----------------------------------------------------------------------------------------------------------------
Effects on wages................. None
----------------------------------------------------------------------------------------------------------------
Effects on growth................ None
----------------------------------------------------------------------------------------------------------------
2. Background and Purpose of the Rule
The purpose of this proposed rule is to address the rising number
of apprehensions at or near the southwest border and the ability of the
U.S. asylum system to fairly and efficiently handle protection claims
made by those encountered. The proposed rule streamlines and simplifies
the adjudication process for certain individuals who are encountered at
or near the border, placed into expedited
[[Page 46926]]
removal, and determined to have a credible fear of persecution or
torture, with the aim of adjudicating applications for asylum,
statutory withholding of removal, and CAT protection in a timelier
fashion and in conformity with procedural protections against erroneous
denial of relief or protection. The principal facet of the rule is to
transfer the initial responsibility for adjudicating asylum, statutory
withholding of removal, and CAT protection applications from IJs to
USCIS asylum officers for individuals within expedited removal
proceedings who receive a positive credible fear determination.
The proposed rule also would broaden the circumstances in which
individuals making a fear claim during the expedited removal process
could be considered for parole on a case-by-case basis prior to a
positive credible fear determination being made. For such individuals,
parole could be granted as an exercise of discretion not only where
required to meet a medical emergency or for a legitimate law
enforcement objective, but also where detention is unavailable or
impracticable.
DHS intends to apply this proposed rule only to recently-arrived
individuals who are subject to expedited removal--i.e., adults and
families. The proposed rule does not apply to unaccompanied children,
as they are statutorily exempt from being placed into expedited
removal. It also does not apply to individuals already residing in the
United States and whose presence in the United States is outside the
coverage of noncitizens designated by the Secretary as subject to
expedited removal. The proposed rule also does not apply to (1)
stowaways or (2) noncitizens who are present in or arriving in the
Commonwealth of the Northern Mariana Islands who are determined to have
a credible fear. They will continue to be referred to asylum/
withholding-only hearings before an IJ under 8 CFR 208.2(c). Finally,
it is not legally required that a noncitizen amenable to expedited
removal after the effective date of the rule be placed in the non-
adversarial review process described in this proposed rule. Rather, DHS
generally, and USCIS in particular, retains discretion to issue an NTA
to a covered noncitizen in expedited removal proceedings to instead
place them in section 240 removal proceedings at any time after they
are referred to USCIS for a credible fear determination. See Matter of
E-R-M- & L-R-M-, 25 I&N Dec. at 523; see also 8 CFR 1208.2(c).
In this section we provide some data and information relevant to
the ensuing discussion and analysis of the potential impacts of the
rule. We first present USCIS data followed by EOIR data. Table 3 shows
USCIS data for the Form I-589 and credible fear cases for the five-year
span from FY 2016 through FY 2020.
Table 3--USCIS Form I-589, Application for Asylum and for Withholding of Removal, and Credible Fear Data
[FY 2016-2020] \64\
----------------------------------------------------------------------------------------------------------------
Form I-589 receipts Credible fear completions
------------------------------------------------------------------ Total credible
FY Initial Pending Positive Negative All fear cases \65\
receipts receipts screen screen completions
----------------------------------------------------------------------------------------------------------------
2016......................... 115,888 194,986 73,081 9,697 82,778 94,048
2017......................... 142,760 289,835 60,566 8,245 68,811 79,842
2018......................... 106,041 319,202 74,677 9,659 84,336 99,035
2019......................... 96,861 349,158 75,252 16,679 91,931 102,204
2020......................... 93,134 386,014 12,824 16,134 28,958 30,839
----------------------------------------------------------------------------------
Total.................... 554,684 N/A 296,400 60,414 356,814 405,968
----------------------------------------------------------------------------------
5-year Average....... 110,937 307,839 59,280 12,083 71,363 81,194
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Quality (OPQ), and USCIS Refugee, Asylum, and International Operations
(RAIO) Directorate, CLAIMS 3 database, Global received May 11, 2021.
\64\ In FY 2020, the credible fear filings are captured in the Form I-870, ``Record of Determination/Credible
Fear Worksheet.'' As part of the credible fear screening adjudication, USCIS Asylum Officers prepare Form I-
870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about
the applicant, including the applicant's name, date of birth, gender, country of birth, nationality,
ethnicity, religion, language, and information about the applicant's entry into the United States and place of
detention. Additionally, Form I-870 collects sufficient information about the applicant's marital status,
spouse, and children to determine whether they may be included in the determination. Form I-870 also documents
the interpreter identification number of the interpreter used during the credible fear interview and collects
information about a relative or sponsor in the United States, including their relationship to the applicant
and contact information. In previous years credible fear filings included the Form I-867, ``Credible Fear
Referral.'' Prior to FY 2020, the USCIS Asylum Division electronically received information about credible
fear determinations through referral documentation provided by U.S. Customs and Border Protection. The
referral documentation includes a form containing information about the applicant: Form I-867, Credible Fear
Referral.
\65\ The credible fear total receipts are larger than the sum of positive and negative determinations because
the latter apply to ``completions,'' referring to cases forwarded to EOIR, and thus exclude cases that were
administratively closed.
As can be seen from Table 3, the Form I-589 pending case number has
grown steadily since 2016, and as of May 11, 2021, was 400,200, which
is well above the five-year average of 307,839. Over that same period,
the majority, 83.1 percent, of completed credible fear screenings were
positive, while 16.9 percent were negative.\66\
---------------------------------------------------------------------------
\66\ Calculation: Positive completions total 296,400/total
completions (296,400 + 60,414) = 296,400/356,814 = 0.831 x 100 =
83.1 percent (rounded); negative completions total 60,414/total
completions (356,814) = 0.169 x 100 = 16.9 percent (rounded).
---------------------------------------------------------------------------
In addition to the credible fear case data presented in Table 3,
USCIS data and analysis can provide some insight concerning how long it
has taken for the credible fear screening process to be completed. As
detailed in this preamble, while this proposed rule's primary concern
is the length of time before incoming asylum claims are expected to be
adjudicated by EOIR, changes to USCIS processes enabled by this
proposed rule (including, for example, improved systems for conducting
credible fear interviews for individuals who are not in detention
facilities) are also expected to reduce processing times for credible
fear cases. Table 4
[[Page 46927]]
provides credible fear processing durations at USCIS.
Table 4--Credible Fear Time Durations for Detained and Non-Detained Cases
[In average and median days, FY 2016-2021]
----------------------------------------------------------------------------------------------------------------
Detained Non-detained
FY Screen ---------------------------------------------------------------
Average Median Average Median
----------------------------------------------------------------------------------------------------------------
2016.......................... Positive........ 23.3 13 290.6 163.0
Negative........ 34 26 197.1 80.5
2017.......................... Positive........ 23.3 13 570.1 407.0
Negative........ 34.2 25 496.1 354.0
2018.......................... Positive........ 22.6 16 816.2 671.0
Negative........ 32.3 25 811.7 668.0
2019.......................... Positive........ 35.6 24 1230.9 1082.0
Negative........ 44.7 33 1067.3 959.0
2020.......................... Positive........ 37.2 20 1252.7 1065.0
Negative........ 30.3 16 1311.2 1247.0
2021.......................... Positive........ 25.6 15 955.3 919.0
Negative........ 29.8 17 1174.0 1109.0
----------------------------------------------------------------------------------------------------------------
Source: Data and analysis provided by USCIS, RAIO Directorate, SAS PME and data-bricks databases, received May
11, 2021.
* FY 2021 includes partial fiscal year data as of May 2021.
Table 4 reports the ``durations,'' defined as the elapsed days from
date of apprehension to forwarding of the credible fear screening
process at USCIS, in both averages and medians. USCIS has included the
most recent figure, which is applicable to May 11, 2021. The total time
for cases from apprehension to adjudication by EOIR can be found by
summing the times in Table 4 with the times in Table 6, below.
The data in Table 4 are not utilized to develop quantitative
impacts, but rather are intended to build context and situational
awareness. There are several key observations from the information
presented. Foremost, there is a substantial difference between
durations for the detained and the non-detained populations. The
existence of a gap is expected because USCIS can interface with
detained individuals rapidly. However, the gap has grown over time; in
2016 the duration for positive-screened processing was 12.5 times
greater, but by 2021 it had grown to a factor of nearly 40.\67\ Second,
and relatedly, there was a substantial duration rise through 2019 for
both detained and non-detained screenings, although there has been a
recent pullback. Furthermore, the duration for negative screenings is
lower across the board than for positive screenings--as of the most
recent data point the duration was about 19 percent lower for negative
screened cases.\68\ It is also seen that the 2021 average durations for
detained cases are relatively close to 2016-2018 levels, with this
series witnessing a spike in 2019.
---------------------------------------------------------------------------
\67\ Calculations: For 2016, 290.6 average days/23.3 average
days = 12.5; for 2021, 1174.0 average days/25.6 average days = 39.4.
\68\ Calculation: [1-(955.3 days/1174.0 days)] = .186, rounded
to .19.
---------------------------------------------------------------------------
Since some of the EOIR data are presented in medians, we note that
the median durations are lower than the means for both screened types.
This indicates that a small number of cases take an exceptionally long
time to resolve, resulting in large outlier data points that skew the
mean upwards. It is noted that for non-detained cases, the gap between
median and mean duration is relatively consistent up to 2021, but the
mean and median converge toward the end of the period; this feature of
the data could indicate that fewer outlier durations were represented
in the data.
It is possible that the proposed rule may impact employment
authorization applications and approvals in terms of volume and timing.
While we cannot predict the net change in filings for the Form I-765
categories, we present data on initial filings and approvals for three
asylum-related categories (Table 5). As a result of the rule, there
could be substitutions in Form I-765 categories from the (c)(8),
Applicant for Asylum/Pending Asylum, into the (a)(5), Granted Asylum
Under Section 208, and (a)(10) Granted Withholding of Removal/243 (H)
categories, in Table 5.
Table 5--USCIS Form I-765 Application for Employment Authorization Initial Receipts and Approvals Related to
Asylee Categories
[FY 2016-2020]
----------------------------------------------------------------------------------------------------------------
EAD category (a)(5) EAD category (c)(8) EAD category (a)(10)
Granted Asylum Under Applicant for Asylum/ Granted Withholding of
Section 208 Pending Asylum Removal/243 (H)
FY -----------------------------------------------------------------------------
Initial Initial Initial
receipts Approvals receipts Approvals receipts Approvals
----------------------------------------------------------------------------------------------------------------
2016.............................. 29,887 27,139 169,970 152,269 2,008 1,621
2017.............................. 32,673 29,648 261,782 234,053 1,936 1,076
2018.............................. 38,743 39,598 262,965 246,525 1,733 1,556
2019.............................. 47,761 41,288 216,038 177,520 2,402 2,101
[[Page 46928]]
2020.............................. 31,931 36,334 233,864 183,820 3,318 2,554
-----------------------------------------------------------------------------
5-year total.................. 180,995 174,007 1,144,619 994,187 11,397 8,908
-----------------------------------------------------------------------------
Average................... 36,199 34,801 228,924 198,837 2,279 1,782
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality (OPQ), CLAIMS 3, data obtained May 11, 2021, <a href="https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf">https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf</a> (last visited
August 9, 2021).
Across the three relevant employment authorization categories, the
total of the averages is 267,402 initial EADs, with a total of 235,420
approved EADs.
Having presented information and data applicable to USCIS
specifically, we now turn to EOIR data and information. Table 6
presents average and median processing times for EOIR to complete
credible fear cases originating from the credible fear screening
process, positive and negative, and detained and non-detained (the
processing time represents that time between when a case is lodged in
EOIR systems and a final decision). Note that the ``initial case
completions'' are not directly comparable to USCIS completions (Table
3) in terms of annual volumes for two primary reasons. First, there can
be timing differences in terms of when a credible fear case is sent to
EOIR and when it is lodged in their processing systems. Second, not all
individuals determined to have a credible fear follow up with their
case with EOIR, and some cases filed are administratively closed.
Therefore, as a general rule, case completions by EOIR would be
necessarily lower than ``completions'' at USCIS.
Table 6--EOIR Time Duration Metrics, Days, and Completions for Cases With a Credible Fear Origin
----------------------------------------------------------------------------------------------------------------
Average Median Initial case
FY processing time processing time completions
----------------------------------------------------------------------------------------------------------------
6A. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
Origin
----------------------------------------------------------------------------------------------------------------
2016........................................................ 413 214 16,794
2017........................................................ 447 252 26,531
2018........................................................ 648 512 33,634
2019........................................................ 669 455 55,404
2020........................................................ 712 502 33,517
2021-March 31, 2021 (years) *............................... 1,078 (2.95) 857 (2.35) 6,646
----------------------------------------------------------------------------------------------------------------
6B. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
Origin and Only an Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of
Removal Under the CAT
----------------------------------------------------------------------------------------------------------------
2016........................................................ 514 300 7,519
2017........................................................ 551 378 13,463
2018........................................................ 787 690 19,293
2019........................................................ 822 792 30,052
2020........................................................ 828 678 21,058
2021-March 31, 2021 (years) *............................... 1,283 (3.52) 1,316 (3.61) 3,730
----------------------------------------------------------------------------------------------------------------
Source: EOIR, Planning, Analysis, and Statistics Division (``PASD''), data obtained April 19, 2021.
* Current through March 31, 2021.
The FY 2021 data point reflects data through the start of FY 2021
to March 31, 2021, and we have included the current processing times in
years for situational awareness. As Table 6 shows, there was an across-
the-board jump in processing times in 2018, followed by a leveling off
until 2021, when the processing times surged again.
3. Population
The population expected to be affected by this rule is the total
number of credible fear completions processed annually by USCIS
(71,363, see Table 3), split between an average of 59,280 positive-
screen cases and 12,083 negative-screen cases. This can be considered
the maximum, ``encompassing,'' population that could be impacted.
However, we take into consideration larger populations to account for
variations and uncertainty in the future population.
4. Impacts of the Rule
This section is divided into three modules. The first (A) focuses
on impacts to asylum seekers, presented on a per-person basis. The
second (B) discusses costs to the Federal Government, and the third (C)
discusses other, possible impacts, including benefits.
[[Page 46929]]
i. Impacts to the Credible Fear Asylum Population
Under the change in procedures of this proposed rule, asylum
applicants who have established a credible fear of persecution or
torture would not be required to file Form I-589 with USCIS.
Individuals in this population could accrue cost-savings relevant to
this change. There is no filing fee for Form I-589, and the time burden
is currently estimated at 12.0 hours per response, including the time
for reviewing instructions, and completing and submitting the form.\69\
With regard to cost-savings, DHS believes the minimum wage is
appropriate to rely on as a lower bound, as the applicants would be new
to the U.S. labor market. The Federal minimum wage is $7.25 per hour;
however, in this proposed rule, we rely on the ``effective'' minimum
wage of $11.80. As The New York Times reported, ``[t]wenty-nine states
and the District of Columbia have state-level minimum hourly wages
higher than the federal [minimum wage],'' as do many city and county
governments. This New York Times report estimates that ``the effective
[…truncated; see source link]Indexed from Federal Register on August 20, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.