Rule2022-06148
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 29, 2022
Effective
May 31, 2022
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
On August 20, 2021, the Department of Homeland Security ("DHS") and the Department of Justice ("DOJ") (collectively "the Departments") published a notice of proposed rulemaking ("NPRM" or "proposed rule") that proposed amending regulations governing the procedures for determining certain protection claims and available parole procedures for individuals subject to expedited removal and found to have a credible fear of persecution or torture. After a careful review of the comments received, the Departments are now issuing an interim final rule ("rule" or "IFR") that responds to comments received in response to the NPRM and adopts the proposed rule with changes. Most significantly, the IFR provides that DHS's United States Citizenship and Immigration Services ("USCIS") will refer noncitizens whose applications are not granted to DOJ's Executive Office for Immigration Review ("EOIR") for streamlined removal proceedings. The IFR also establishes timelines for the consideration of applications for asylum and related protection by USCIS and, as needed, EOIR. This IFR responds to comments received in response to the NPRM and adopts the NPRM with changes as described in this rule. The Departments solicit further public comment on the IFR's revisions, which will be considered and addressed in a future rule.
Full Text
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[Federal Register Volume 87, Number 60 (Tuesday, March 29, 2022)]
[Rules and Regulations]
[Pages 18078-18226]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-06148]
[[Page 18077]]
Vol. 87
Tuesday,
No. 60
March 29, 2022
Part II
Department of Homeland Security
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Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 208, 212, 235, et al.
Procedures for Credible Fear Screening and Consideration of Asylum,
Withholding of Removal, and CAT Protection Claims by Asylum Officers;
Interim Final Rule
Federal Register / Vol. 87 , No. 60 / Tuesday, March 29, 2022 / Rules
and Regulations
[[Page 18078]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208, 212, 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, 1235, and 1240
[A.G. Order No. 5369-2022]
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: Interim final rule with request for comments.
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SUMMARY: On August 20, 2021, the Department of Homeland Security
(``DHS'') and the Department of Justice (``DOJ'') (collectively ``the
Departments'') published a notice of proposed rulemaking (``NPRM'' or
``proposed rule'') that proposed amending regulations governing the
procedures for determining certain protection claims and available
parole procedures for individuals subject to expedited removal and
found to have a credible fear of persecution or torture. After a
careful review of the comments received, the Departments are now
issuing an interim final rule (``rule'' or ``IFR'') that responds to
comments received in response to the NPRM and adopts the proposed rule
with changes. Most significantly, the IFR provides that DHS's United
States Citizenship and Immigration Services (``USCIS'') will refer
noncitizens whose applications are not granted to DOJ's Executive
Office for Immigration Review (``EOIR'') for streamlined removal
proceedings. The IFR also establishes timelines for the consideration
of applications for asylum and related protection by USCIS and, as
needed, EOIR. This IFR responds to comments received in response to the
NPRM and adopts the NPRM with changes as described in this rule. The
Departments solicit further public comment on the IFR's revisions,
which will be considered and addressed in a future rule.
DATES: Effective Date: This interim final rule is effective May 31,
2022.
Submission of public comments: Comments must be submitted on or
before May 31, 2022. The electronic Federal Docket Management System
will accept comments prior to midnight eastern time at the end of that
day.
ADDRESSES: You may submit comments on the entirety of this interim
final rule 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 the Departments' officials, will
not be considered comments on the interim final 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 (not a toll-free call) for alternate
instructions.
FOR FURTHER INFORMATION CONTACT:
For USCIS: Ren[aacute] Cutlip-Mason, 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, Department of Justice, 5107
Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0289 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Background
B. Legal Authority
C. Changes in the IFR
1. Revisions to the Proposed DHS Regulations
2. Revisions to the Proposed DOJ Regulations
D. Provisions of the IFR
1. Credible Fear Screening Process
2. Applications for Asylum
3. Proceedings for Further Consideration of the Application for
Asylum by USCIS Through Asylum Merits Interview for Noncitizens With
Credible Fear
4. Streamlined Section 240 Removal Proceedings Before the
Immigration Judge
5. Parole
E. Summary of Costs and Benefits
F. Effective Date
III. Discussion of the IFR
A. Credible Fear Screening Process
B. Applications for Asylum
C. Proceedings for Further Consideration of the Application for
Asylum by USCIS Through Asylum Merits Interview for Noncitizens With
Credible Fear
D. Streamlined Section 240 Removal Proceedings Before the
Immigration Judge
1. Schedule of Proceedings
a. Pre-Hearing Procedures
b. Merits Hearing(s)
2. Evidentiary Standard
3. Timeline for Proceedings
4. Continuances and Filing Extensions
5. Consideration of Statutory Withholding of Removal and CAT
Protection
6. Exceptions to Streamlined Procedures
E. Other Amendments Related to Credible Fear
F. Parole
G. Putative Reliance Interests
IV. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
B. General Feedback on the Proposed Rule
1. General Support for the Proposed Rule
a. Immigration Policy Benefits
b. Positive Impacts on Applicants, Their Support Systems, and
the Economy
2. General Opposition to the Proposed Rule
a. Immigration Policy Concerns
b. Negative Impacts on Applicants and Their Support Systems
c. Negative Impacts on U.S. Citizens and the Economy
d. Other General Opposition to the Proposed Rule
C. Basis for the Proposed Rule
1. DOJ and DHS Statutory/Legal Authority
2. Need for the Proposed Rule/DOJ and DHS Rationale
3. Prior Immigration Rulemakings
D. Proposed Changes
1. Applicability
2. Parole
a. General Comments on Parole
b. Change in Circumstances Under Which Parole May Be Considered
c. Availability of Employment Authorization for Those in
Expedited Removal Who Have Been Paroled From Custody
d. Other Comments on Proposed Approach to Parole
3. Credible Fear Screening Process
a. General Comments on Credible Fear Screening Process
b. ``Significant Possibility'' Standard for Protection Claims
c. Due Process in Credible Fear Screening
d. Removal of Mandatory Bars From Consideration
[[Page 18079]]
e. Other Comments on the Proposed Credible Fear Screening
Process
4. Applications for Asylum
a. Written Record of the Credible Fear Determination Created by
USCIS, Together With the Service of the Credible Fear Determination,
Treated as an Application for Asylum
b. Date Positive Credible Fear Determination Served as Date of
Filing and Receipt
c. Inclusion of Applicant's Spouse and Children
d. Due Process in Asylum Applications
e. Other Comments on Proposed Provisions on Applications for
Asylum
5. Adjudication of Applications for Asylum for Noncitizens With
Credible Fear
a. DHS Interpretation of Statute in Creating a New Adjudication
Process
b. Review of Asylum Claim by an Asylum Officer, Rather Than by
an Immigration Judge, in Section 240 Removal Proceedings
c. Requirements for USCIS Asylum Merits Adjudication
d. Failure To Appear
e. Process for USCIS To Deny an Application for Asylum or Other
Protection and Issue a Removal Order
f. Other Comments on Proposed Adjudication of Applications for
Asylum
6. Application Review Proceedings Before an Immigration Judge
a. Creation of New Limited Proceedings in Lieu of Section 240
Removal Proceedings and Limitation on Relief to Asylum, Statutory
Withholding of Removal, and Convention Against Torture Review Only
b. De Novo Review of Full Asylum Hearing Record and
Consideration of Additional Testimony and Evidence
c. Immigration Judge's Discretion To Vacate Asylum Officer's
Removal Order
d. Immigration Judge's Authority To Review All Asylum Officer
Decisions
e. Appeal of Immigration Judge's Decision to the Board of
Immigration Appeals
f. Other Comments on Proposed Application Review Proceedings
before Immigration Judges
E. Other Issues Related to the Proposed Rulemaking
1. Public and Stakeholder Input
2. Severability
3. Discretion and Phased Implementation
a. Discretion
b. Phased Implementation
4. Comments on Immigration Court Inefficiencies and Bottlenecks
F. Statutory and Regulatory Requirements
1. Impacts and Benefits (E.O. 12866 and E.O. 13563)
a. Methodology
b. Population
c. Costs or Transfers
i. Impacts on the Credible Fear Asylum Population and Support
Networks
ii. Impacts on U.S. Workers, Companies, Economy
iii. Impacts on Federal Government
iv. Other Comments on Costs or Transfers
d. Other Comments on Impacts and Benefits of the Proposed
Rulemaking
2. Paperwork Reduction Act
3. Other Comments on Statutory and Regulatory Requirements
G. Comments Outside of the Scope of This Rulemaking
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. Summary of the Rule and Its Potential Impacts
2. Background and Purpose of the Rule
3. Population
4. Impacts of the Rule
a. Impacts to the Credible Fear Asylum Population
b. Impacts to USCIS
i. Total Quantified Estimated Costs of Regulatory Changes
ii. Intra-Federal Government Sector Impacts
c. Familiarization Costs, Benefits, and Transfers of Possible
Early Labor Market Entry
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
I. Public Participation
The Departments invite all interested parties to participate in
this rulemaking by submitting written data, views, comments, and
arguments on all aspects of this interim final 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 interim final rule. Comments must be submitted in English, or an
English translation must be provided. Comments that will provide the
most assistance to the Departments in implementing these changes will
reference a specific portion of the interim final rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change. Comments submitted in a
manner other than those listed above, including emails or letters sent
to the Departments' officials, will not be considered comments on the
interim final rule and may not receive a response from the Departments.
Instructions: If you submit a comment, you must include the agency
name 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 information
provided in comments from public viewing that they determine may impact
the privacy of an individual or that 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 may also sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Background
On August 20, 2021, the Departments published an NPRM in the
Federal Register proposing to amend the regulations governing the
process for further consideration of asylum and related protection
claims raised by individuals subject to expedited removal and found to
have a credible fear of persecution or torture. See Procedures for
Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers, 86 FR 46906
(Aug. 20, 2021).
The preamble discussion in the NPRM, including the detailed
presentation of the need for reforming the system for processing asylum
and related protection claims at the Southwest border, is generally
adopted by reference in this IFR, except to the extent specifically
noted in this IFR, or in the context of proposed regulatory text that
is not contained in this IFR.
To reform and improve the process, the NPRM proposed revisions to 8
CFR parts 208, 235, 1003, 1208, and 1235. Those proposed revisions fell
into five main categories. First, individuals subject to expedited
removal and found to have a credible fear of persecution or torture
would 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
[[Page 18080]]
Convention Against Torture (``CAT'') \1\ protection initially
adjudicated by USCIS following a nonadversarial interview before an
asylum officer. Second, individuals granted protection by USCIS would
be entitled to asylum, statutory withholding of removal, or protection
under the CAT, as appropriate, without further adjudication. Third,
individuals not granted protection would be ordered removed by the
asylum officer but would have the ability to seek prompt, de novo
review with an immigration judge (``IJ'') in EOIR through a newly
established procedure, with appeal available to the Board of
Immigration Appeals (``BIA'') and the Federal courts. Fourth,
individuals placed in expedited removal proceedings would be eligible
for consideration for parole from custody in accordance with section
212(d)(5) of the Act, if DHS determined, in the exercise of its
discretion and on a case-by-case basis, that parole is warranted
because, inter alia, detention is unavailable or impracticable
(including situations in which continued detention would unduly impact
the health or safety of individuals with special vulnerabilities).
Finally, the NPRM proposed to restore the expedited removal framework
and credible fear screening processes that were in place before various
regulatory changes made from late 2018 through late 2020. Specifically,
the longstanding ``significant possibility'' screening standard would
apply once more to all such protection claims arising from expedited
removal proceedings initiated pursuant to section 235(b)(1) of the Act,
and the mandatory bars to asylum and withholding of removal (with
limited exception) would not apply at this initial screening stage.
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\1\ 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).
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The comment period for the NPRM opened on August 20, 2021, and
closed on October 19, 2021, with 5,235 public comments received. The
Departments summarize and respond to the public comments below in
Section IV of this preamble.
B. Legal Authority
The Departments are publishing this IFR pursuant to their
respective and joint authorities concerning asylum, statutory
withholding of removal, and protection under the CAT. Section 235 of
the INA provides that if an asylum officer determines that a noncitizen
subject to expedited removal has a credible fear of persecution, the
noncitizen shall receive ``further consideration of the application for
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This IFR
addresses how that further consideration, including of the noncitizen's
related claims to statutory withholding of removal and CAT protection,
will occur.
Section 208 of the INA authorizes the ``Secretary of Homeland
Security or the Attorney General'' to ``grant asylum'' to a
noncitizen--including a noncitizen subject to expedited removal under
section 235(b) of the INA--``who has applied for asylum in accordance
with the requirements and procedures established by the Secretary of
Homeland Security or the Attorney General under this section.'' INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see INA 208(a)(1), 8 U.S.C.
1158(a)(1) (referencing asylum applications by noncitizens subject to
expedited removal under section 235(b) of the INA, 8 U.S.C. 1225(b));
see also INA 208(d)(1), (d)(5)(B), 8 U.S.C. 1158(d)(1), (d)(5)(B)
(further authorizing rulemaking concerning asylum applications).
These provisions of the INA reflect that 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. See, e.g., HSA 101, 441, 451(b),
471, 1511(d)(2), 6 U.S.C. 111, 251, 271(b), 551(d)(2). By operation of
the HSA, certain references to the ``Attorney General'' in the INA are
understood to refer to the Secretary. HSA 1517, 6 U.S.C. 557. As
amended by the HSA, the INA thus ``charge[s]'' 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 grants the Secretary the power to
``establish such regulations; . . . issue such instructions; and
perform such other acts as he deems necessary for carrying out his
authority'' under the immigration laws, INA 103(a)(3), 8 U.S.C.
1103(a)(3). The Secretary's authority thus includes the authority to
publish regulations governing the apprehension, inspection and
admission, detention and removal, withholding of removal, and release
of noncitizens \2\ encountered in the interior of the United States or
at or between the U.S. ports of entry. See INA 235, 236, 241, 8 U.S.C.
1225, 1226, 1231. Certain of the Secretary's authorities have been
delegated within DHS to the Director of USCIS.\3\ USCIS asylum officers
conduct credible fear interviews, make credible fear determinations,
and determine whether a noncitizen's affirmative asylum application
should be granted. See 8 CFR 208.2(a), 208.9(a), 208.30.
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\2\ This rule uses the term ``noncitizen'' as equivalent to the
statutory term ``alien.'' See INA 101(a)(3), 8 U.S.C. 1101(a)(3);
Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020).
\3\ See DHS, Delegation to the Bureau of Citizenship and
Immigration Services, No. 0150.1 (June 5, 2003); see also 8 CFR 2.1,
208.2(a), 208.30.
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In addition, under the HSA, the Attorney General retains authority
to ``establish such regulations . . ., issue such instructions, review
such administrative determinations in immigration proceedings, delegate
such authority, and perform such other acts as the Attorney General
determines to be necessary for carrying out'' his authorities under the
INA. HSA 1102, INA 103(g)(2), 8 U.S.C. 1103(g)(2). The Attorney General
also retains authority over certain individual immigration
adjudications, including removal proceedings pursuant to section 240 of
the INA, 8 U.S.C. 1229a (``section 240 removal proceedings,'' ``section
240 proceedings,'' or ``240 proceedings''), and certain adjudications
related to asylum applications, conducted by IJs within DOJ's EOIR. See
HSA 1101(a), 6 U.S.C. 521(a); INA 103(g), 8 U.S.C. 1103(g). With
limited exceptions, IJs within EOIR adjudicate asylum and withholding
of removal applications filed by noncitizens during the pendency of
section 240 removal proceedings, and IJs also adjudicate asylum
applications referred by USCIS to the immigration court. 8 CFR
1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 8 U.S.C.
1101(b)(4), 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3).
The United States is a party to the 1967 United Nations Protocol
Relating to the Status of Refugees, January 31, 1967, 19 U.S.T. 6223,
606 U.N.T.S. 268 (``Refugee Protocol''), which incorporates Articles 2
through 34 of the 1951 Convention Relating to the Status of Refugees,
July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee
Convention''). Article 33 of the Refugee Convention contains a
qualified non-refoulement obligation to refrain from expelling or
returning ``a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social
group or political opinion.'' 19 U.S.T. at 6276. The United States
implements its obligations under Article 33 of the Refugee Convention
(via the Refugee Protocol) through the statutory withholding of removal
[[Page 18081]]
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which
provides that a noncitizen may not be removed to a country where his or
her life or freedom would be threatened on account of one of the
protected grounds listed in Article 33 of the Refugee Convention.
The Foreign Affairs Reform and Restructuring Act of 1998
(``FARRA'') provides the Departments with the authority to ``prescribe
regulations to implement the obligations of the United States under
Article 3 of the [CAT], subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention.'' Public Law 105-277,
div. G, sec. 2242(b), 112 Stat. 2681. In addition, FARRA includes the
following policy statement: ``It shall be the policy of the United
States not to expel, extradite, or otherwise effect the involuntary
return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being subjected
to torture . . . . '' Id., sec. 2242(a). DHS and DOJ have promulgated
various regulations implementing U.S. obligations under Article 3 of
the CAT, consistent with FARRA. See, e.g., 8 CFR 208.16(c) through (f),
208.17, and 208.18; Regulations Concerning the Convention Against
Torture, 64 FR 8478 (Feb. 19, 1999), as corrected by 64 FR 13881 (Mar.
23, 1999).
Section 212 of the INA vests in the Secretary the discretionary
authority to grant parole to applicants for admission on a case-by-case
basis for urgent humanitarian reasons or significant public benefit.
INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Section 103 of the INA
authorizes the Secretary to establish rules and regulations governing
parole. INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3).
C. Changes in the IFR
After carefully reviewing the public comments received in response
to the NPRM, this IFR makes 23 changes to the regulatory provisions
proposed in the NPRM, many of which were recommended or prompted by
commenters. The regulatory changes pertain to both the DHS and DOJ
regulations. As also described below, procedurally, the Departments
could issue a final rule. However, the Departments are publishing this
IFR rather than proceeding to a final rule in order to provide the
public with an additional opportunity to comment. Although not legally
required, the additional opportunity to comment on the IFR's changes to
the NPRM is desirable given the new procedures and scheduling deadlines
applicable to the IFR's streamlined EOIR process, the limited time
between issuance of this IFR and when the first cases will be
calendared for hearings, and the changes made to facilitate a shift
from the proceedings proposed in the NPRM to the IFR's streamlined 240
proceedings. The Departments therefore solicit further public comment
on the IFR's revisions, which will be considered and addressed in a
final rule.
1. Revisions to the Proposed DHS Regulations
First, in new 8 CFR 208.30(g)(1)(i), this rule provides that USCIS
may, in its discretion, reconsider a negative credible fear finding
with which an IJ has concurred, provided such reconsideration is
requested by the applicant or initiated by USCIS no more than 7 days
after the concurrence by the IJ, or prior to the noncitizen's removal,
whichever date comes first. USCIS, however, will not accept more than
one such request for reconsideration of a negative credible fear
finding.
Second, this rule adds a new 8 CFR 208.4(b)(2) to clarify that
noncitizens whose asylum applications are retained by USCIS for further
consideration following a positive credible fear determination may
subsequently amend or correct the biographic or credible fear
information in the Form I-870, Record of Determination/Credible Fear
Worksheet, or supplement the information collected during the process
that concluded with a positive credible fear determination, provided
the information is submitted directly to the asylum office no later
than 7 days prior to the scheduled asylum interview, or for documents
submitted by mail, postmarked no later than 10 days prior to the
interview. This rule further provides that, upon the asylum officer
finding good cause in an exercise of USCIS discretion, the asylum
officer may consider amendments or supplements submitted after the 7-
or 10-day submission deadline or may grant the applicant an extension
of time during which the applicant may submit additional evidence,
subject to the limitation on extensions described in new 8 CFR
208.9(e)(2) and provided in new 8 CFR 208.4(b)(2). In new 8 CFR
208.9(e)(2), this rule further provides that, in the absence of exigent
circumstances, an asylum officer shall not grant any extensions for
submission of additional evidence that would prevent a decision from
being issued to the applicant within 60 days of service of the positive
credible fear determination.
Third, this rule provides in new 8 CFR 208.2(a)(1)(ii), 208.30(f),
1208.2, and 1208.30(g) that USCIS may further consider the asylum
application of a noncitizen found to have a credible fear of
persecution or torture through a nonadversarial merits interview
conducted by an asylum officer when such application is retained by
USCIS or referred to USCIS by an IJ after an IJ has vacated a negative
credible fear determination. Such nonadversarial merits interviews are
known as ``Asylum Merits interviews'' and are governed by the
procedures in 8 CFR 208.9.
Fourth, this rule provides in new 8 CFR 208.9(b) that, in the case
of a noncitizen whose case is retained by USCIS for an Asylum Merits
interview, an asylum officer will also elicit all relevant and useful
information bearing on the applicant's eligibility for statutory
withholding of removal and CAT protection. This rule provides that if
the asylum application is not granted, the asylum officer will
determine whether the noncitizen is eligible for statutory withholding
of removal in accordance with 8 CFR 208.16(b) or CAT protection
pursuant to 8 CFR 208.16(c). See 8 CFR 208.16(a), (c). Even if the
asylum officer determines that the applicant has established
eligibility for statutory withholding of removal or protection under
the CAT, the asylum officer shall proceed with referring the asylum
application to the IJ for a hearing pursuant to 8 CFR 208.14(c)(1). See
8 CFR 208.16(a). If the asylum application includes a dependent (that
is, a spouse or child who is in the United States and is included on
the principal applicant's application as a dependent, cf. 8 CFR
208.30(a), 208.14(f)) who has not filed a separate application and the
principal applicant is determined to not to be eligible for asylum, the
asylum officer will elicit sufficient information to determine whether
there is a significant possibility that the dependent has experienced
or fears harm that would be an independent basis for protection prior
to referring the family to the IJ for a hearing. See 8 CFR 208.9(b). If
the asylum officer determines that there is a significant possibility
that the dependent has experienced or fears harm that would be an
independent basis for asylum, statutory withholding of removal, or
protection under the CAT, the asylum officer shall inform the dependent
of that determination. See id. USCIS also intends to inform dependents
that they may request their own credible fear determination and
[[Page 18082]]
may separately file an asylum application if they choose to do so. If a
spouse or child who was included in the principal's request for asylum
does not separately file an asylum application that is adjudicated by
USCIS, the principal's asylum application will be deemed by EOIR to
satisfy EOIR's application filing requirements for the spouse or child
as principal applicants. See 8 CFR 208.3(a)(2), 1208.3(a)(2).
Fifth, this rule provides in 8 CFR 208.9(a)(1) that USCIS shall not
schedule an Asylum Merits interview for further consideration of an
asylum application following a positive credible fear determination
fewer than 21 days after the noncitizen has been served a record of the
positive credible fear determination. The asylum officer shall conduct
the interview within 45 days of the date that the positive credible
fear determination is served on the noncitizen, subject to the need to
reschedule an interview due to exigent circumstances. See 8 CFR
208.9(a)(1).
Sixth, this rule includes language from existing regulations,
currently in effect, in 8 CFR 208.9(d), that was inadvertently not
included in the NPRM's proposed regulatory text related to USCIS's
discretion to limit the length of a statement or comment and require
its submission in writing. See 8 CFR 208.9(d)(1).
Seventh, this rule removes language proposed in the NPRM in 8 CFR
208.9(f)(2) related to having the Asylum Merits record include verbatim
audio or video recordings, and provides that the interview will be
recorded and a verbatim transcript of the interview shall be included
in the record. See 8 CFR 208.9(f)(2).
Eighth, this rule clarifies in 8 CFR 208.9(g)(2) that if a USCIS
interpreter is unavailable, USCIS will attribute any resulting delay to
USCIS for the purposes of employment authorization pursuant to 8 CFR
208.7. The rule continues to provide that, for asylum applications
retained by USCIS for further consideration, if the applicant is unable
to proceed effectively in English, the asylum officer shall arrange for
the assistance of an interpreter in conducting the Asylum Merits
interview. See 8 CFR 208.9(g)(2).
Ninth, although the NPRM proposed to amend 8 CFR 208.10(a) to
provide that, for noncitizens whose cases are retained by USCIS for
further consideration of their asylum application after a positive
credible fear determination, failure of a noncitizen to appear for an
Asylum Merits interview might result in the issuance of an order of
removal, no changes to 8 CFR 208.10(a) are being made in this IFR.
Failure to appear may result in referral of the noncitizen to section
240 removal proceedings before an IJ as well as dismissal of the asylum
application. See 8 CFR 208.10(a).
Tenth, in 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), this rule
establishes the regulatory authority for consideration for parole of
noncitizens in expedited removal or in expedited removal with pending
credible fear determinations consistent with the current regulation at
8 CFR 212.5(b).
Eleventh, the rule includes a technical amendment to 8 CFR 212.5(b)
to incorporate a reference to 8 CFR 235.3(b).
Twelfth, in 8 CFR 235.3(c)(2), this rule includes a technical
amendment to establish the regulatory authority for consideration for
parole of noncitizens whose asylum applications are retained by USCIS
for further consideration following a positive credible fear
determination consistent with the current regulation at 8 CFR 212.5(b).
Thirteenth, the IFR includes edits to 8 CFR 208.14 and 8 CFR
1208.14 to emphasize that asylum officers' decisions on approval,
denial, referral, or dismissal of an asylum application remain subject
to review within USCIS, and an edit to 8 CFR 208.14(c)(1) to make clear
that an asylum applicant described in 8 CFR 208.14(c)(4)(ii)(A), if not
granted asylum, may first be placed into expedited removal and receive
a positive credible fear screening before being referred to an IJ.
2. Revisions to the Proposed DOJ Regulations
In the fourteenth change from the NPRM, this rule neither adopts
the NPRM's proposal to create a new IJ review process when USCIS does
not grant asylum nor requires the applicant to affirmatively request
such review. Instead, this rule requires DHS to refer noncitizens whose
applications for asylum are not granted to section 240 removal
proceedings by issuing a Notice to Appear (``NTA''). However, this rule
adds 8 CFR 1240.17 to DOJ's regulations, which will impose streamlining
measures to enable such proceedings to be completed more expeditiously
than ordinary section 240 proceedings involving cases that originate
from the credible fear process. The rules and procedures that apply
during all section 240 proceedings will generally apply to cases
governed by the new 8 CFR 1240.17, but the rule's additional procedural
requirements will further ensure efficient adjudication while
preserving fairness.
Fifteenth, this rule does not adopt the NPRM's proposed evidentiary
limitations, which would have required the noncitizen to demonstrate
that any additional evidence or testimony to be considered by the IJ
was not duplicative of that considered by the asylum officer and was
necessary to fully develop the record. Instead, with the exception of
time limits, the long-standing evidentiary standards for section 240
removal proceedings will apply as provided in new 8 CFR 1240.17(g)(1).
To ensure expeditious adjudication, this rule imposes deadlines for the
submission of evidence as specified in new 8 CFR 1240.17(f). In
general, new 8 CFR 1240.17(f)(2) requires the respondent to submit any
additional documentary evidence by the time of the status conference
which, under new 8 CFR 1240.17(f)(1), is held 30 days, or the next
available date no later than 35 days, after the master calendar hearing
unless a continuance or a filing extension is granted. Under new 8 CFR
1240.17(f)(3)(i), DHS must file any documents 15 days prior to the
merits hearing or, if the IJ determines a merits hearing is not
warranted, 15 days following the status conference. New 8 CFR
1240.17(f)(3)(ii) allows the respondent to submit a supplemental filing
replying to DHS and identifying any additional witnesses or
documentation 5 days prior to the merits hearing or, if the IJ
determines a merits hearing is not warranted, 25 days following the
status conference. These deadlines may be extended in accordance with
the continuances and extension provisions in new 8 CFR 1240.17(h), and
an IJ may otherwise accept late-filed evidence pursuant to new 8 CFR
1240.17(g)(2) under certain circumstances, including if required to do
so under statute or the Constitution.
Sixteenth, the rule provides that streamlined section 240 removal
proceedings for cases covered by the new 8 CFR 1240.17, where the USCIS
Asylum Merits interview record is transmitted to EOIR for review, will
generally be adjudicated under an expedited timeline. The master
calendar hearing will occur 30 to 35 days after DHS commences
proceedings as provided in new 8 CFR 1240.17(b) and (f)(1). Any merits
hearing will be held 60 days after the master calendar hearing, or on
the next available date no later than 65 days after the master calendar
hearing, see 8 CFR 1240.17(f)(2), subject to continuance and filing
extension requests as outlined in new 8 CFR 1240.17(h). This rule also
imposes time limits for an IJ to issue a decision as provided in new 8
CFR
[[Page 18083]]
1240.17(f)(5). To ensure expeditious adjudication, this rule adopts the
NPRM's requirement that USCIS must file the complete record of
proceedings for the Asylum Merits interview, including the transcript
and decision, with the immigration court and serve it on the respondent
pursuant to new 8 CFR 1240.17(c). Additionally, as in the NPRM, this
rule does not require the respondent to complete and file a new asylum
application, but instead provides that the record of the positive
credible determination shall be treated as satisfying the application
filing requirements subject to any supplementation or amendment, and
shall further be deemed to satisfy EOIR's application filing
requirements for any spouse or child included in the cases referred by
USCIS and who has not separately filed an asylum application that was
adjudicated by USCIS, as provided in new 8 CFR 1208.3(a)(2). See 8 CFR
1240.17(e).
Seventeenth, to prepare cases for expeditious adjudication, this
rule requires IJs to hold status conferences to take place 30 days
after the master calendar hearing, or if a hearing cannot be held on
that date, on the next available date no later than 35 days after the
master calendar hearing, as outlined in new 8 CFR 1240.17(f)(2). This
rule requires both parties to participate at the status conference,
although the level of participation required by the respondent depends
on whether the respondent has legal representation. At a minimum, as
required by new 8 CFR 1240.17(f)(2)(i)(A), if the respondent will
contest removal or seek any protection(s) for which the asylum officer
did not determine the respondent eligible, the respondent shall
indicate whether the respondent intends to testify, present any
witnesses, or offer additional documentation. If a respondent
thereafter obtains legal representation, nothing in the IFR prohibits
respondent's counsel from supplementing statements or submissions made
by the respondent during the status conference so long as there is no
delay to the merits hearing or a filing deadline or, if the case will
be delayed, the respondent satisfies the IFR's provisions governing
continuances and filing extensions. Under new 8 CFR 1240.17(f)(2)(ii)
and (f)(3), if DHS will participate in the case, DHS shall, at the
status conference or in a written statement filed no later than 15 days
prior to the scheduled merits hearing (or if the IJ determines that no
such hearing is warranted, no later than 15 days following the status
conference), set forth its position on the respondent's application and
identify contested issues of law or fact, among other things. Where DHS
has elected to participate in the case but does not timely provide its
position as required under paragraph (f)(2)(ii), the IJ has authority
pursuant to new 8 CFR 1240.17(f)(3)(i) to deem claims or arguments
previously advanced by the respondent unopposed, subject to certain
exceptions. The purpose of the status conference and these procedural
requirements is to identify and narrow the issues and ready the case
for a merits hearing.
Eighteenth, under new 8 CFR 1240.17(f)(2)(i)(B), a respondent may
choose to concede removability and not seek asylum, in which case the
IJ will issue an order of removal and deny asylum, but the IJ shall,
with a limited exception, give effect to a determination by an asylum
officer that the respondent is eligible for statutory withholding of
removal or protection under the CAT. DHS may not appeal a grant of
statutory withholding of removal or protection under the CAT in this
context to the BIA except to argue that the IJ should have denied the
application(s) based on certain evidence, as provided in new 8 CFR
1240.17(i)(2).
Nineteenth, new 8 CFR 1240.17(h) establishes standards for
continuances during these streamlined section 240 removal proceedings.
The rule adopts a ``good cause'' standard for respondent-requested
continuances or filing extensions that would delay any merits hearing
up to certain limits as detailed in new 8 CFR 1240.17(h)(2)(i). Any
such continuance or extension generally shall not exceed 10 days. When
the respondent has received continuances or filing extensions that
cause a merits hearing to occur more than 90 days after the master
calendar hearing, the rule requires the respondent to meet a heightened
standard for further continuances or extensions as provided in new 8
CFR 1240.17(h)(2)(ii). Pursuant to new 8 CFR 1240.17(h)(2)(iii), any
further continuances or extensions requested by the respondent that
would cause a merits hearing to occur more than 135 days after the
master calendar hearing may be granted only if the respondent
demonstrates that failure to grant the continuance or extension would
be contrary to statute or the Constitution. DHS may receive
continuances or extensions based on significant Government need, as
outlined in new 8 CFR 1240.17(h)(3), which will not count against the
limits on respondent-requested continuances. Further, as provided in
new 8 CFR 1240.17(h)(2)(iv) and (h)(4), any delay due to exigent
circumstances shall not count toward the limits on continuances or
extensions.
Twentieth, new 8 CFR 1240.17(f)(4)(i) and (ii) provide that in
certain circumstances the IJ may decide the respondent's application
without holding a merits hearing, including where neither party has
elected to provide testimony and DHS has declined to cross-examine the
respondent or where the IJ intends to grant the application and DHS has
not elected to examine the respondent or present evidence or witnesses.
Under these provisions, the IJ shall still hold a hearing if the IJ
decides that a hearing is necessary to fulfill the IJ's duty to fully
develop the record.
Twenty-first, new 8 CFR 1240.17(i)(2) provides that, where the
asylum officer does not grant asylum but determines the respondent is
eligible for statutory withholding of removal or CAT relief, and where
the IJ subsequently denies asylum and issues a removal order, the IJ
shall generally give effect to the asylum officer's determination(s).
In such circumstances, the IJ shall issue a removal order, but the IJ
shall give effect to the asylum officer's determination by granting
statutory withholding of removal or protection under the CAT unless DHS
presents evidence or testimony that specifically pertains to the
respondent, that was not in the record of proceedings for the USCIS
Asylum Merits interview, and that demonstrates that the respondent is
not eligible for the protection in question.
Twenty-second, this rule sets forth certain exceptions from the
procedures and timelines summarized above. Under new 8 CFR 1240.17(k),
such exceptions include the following circumstances: The respondent was
under the age of 18 on the date that the NTA was issued and is not in
consolidated removal proceedings with an adult family member; the
respondent has produced evidence demonstrating prima facie eligibility
for relief or protection other than asylum, statutory withholding of
removal, voluntary departure, or CAT relief and the respondent is
seeking to apply for, or has applied for, such relief or protection;
the respondent has produced evidence supporting a prima facie showing
that the respondent is not subject to removal, and the question of
removability cannot be resolved simultaneously with the adjudication of
the applications for asylum and related protection; the IJ finds the
respondent subject to removal to a country other than the country or
countries in which the respondent claimed a fear of persecution,
torture, or both before the asylum officer and the respondent claims a
fear of persecution, torture, or
[[Page 18084]]
both in that alternative country or countries; the case is on remand or
has been reopened following the IJ's order; or the respondent exhibits
indicia of mental incompetency.
Finally, DOJ is making technical edits in 8 CFR 1003.42 to conform
with changes to DHS regulations proposed in the NPRM and adopted in
this rule related to the credible fear screening process in new 8 CFR
208.30(e).
D. Provisions of the IFR
The Departments carefully considered the 5,235 public comments
received, and this IFR generally adopts the framework proposed in the
NPRM with certain modifications as explained in this rule. This rule
also relies on the justifications articulated in the NPRM, except as
reflected in this preamble.
1. Credible Fear Screening Process
The Departments are generally returning to the regulatory framework
governing the credible fear screening process in place before various
regulatory changes were made from the end of 2018 through the end of
2020, which currently are not in effect.\4\ As provided in this IFR,
DHS is amending 8 CFR 208.30(b) to return to providing that noncitizens
subject to expedited removal who indicate an intention to apply for
asylum, or who express a fear of persecution or torture, or a fear of
return to the noncitizen's country, shall be screened by a USCIS asylum
officer for a credible fear of persecution or torture (rather than a
credible fear of persecution, reasonable possibility of persecution, or
reasonable possibility of torture). All references in 8 CFR 208.30 and
8 CFR 235.6 to a ``credible fear of persecution, reasonable possibility
of persecution, or a reasonable possibility of torture'' are replaced
with ``credible fear of persecution or torture'' or ``credible fear.''
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\4\ On November 9, 2018, the Departments issued an 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) (``Presidential
Proclamation Bar IFR''). A month later, the U.S. District Court for
the Northern District of California preliminarily enjoined the
Departments from implementing the IFR, 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) (``Third Country Transit (TCT) Bar IFR''),
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 the TCT Bar IFR. 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) (``TCT Bar rule''), which again attempted to bar
from asylum eligibility those noncitizens who transited through 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 the TCT Bar rule,
which remains in place as of this writing. E. Bay Sanctuary Covenant
v. Barr, 519 F. Supp. 3d 663, 668 (N.D. Cal. Feb. 2021).
Around the same time that the Departments issued the final TCT
Bar rule, they 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 Global Asylum rule. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d
966, 977 (N.D. Cal. 2021) (``Pangea II''). That preliminary
injunction remains in place as of this writing.
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 Security Bars rule's
effective date to December 31, 2022, as the Departments consider
possible action to rescind or revise the rule. See Security Bars and
Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021).
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DHS is further amending 8 CFR 208.30(b) to provide that the asylum
officer to whom such a noncitizen is referred for a credible fear
screening may, in USCIS's discretion and with supervisory concurrence,
refer the noncitizen for proceedings under section 240 of the Act
without making a credible fear determination.
DHS is amending 8 CFR 208.30(c) to provide for the inclusion of a
noncitizen's concurrently arriving spouse or child in the noncitizen's
positive credible fear evaluation and determination, unless the
noncitizen declines such inclusion. Additionally, DHS is amending 8 CFR
208.30(c) to provide asylum officers with the discretion to include a
noncitizen's other concurrently arriving family members in the
noncitizen's positive credible fear evaluation and determination for
purposes of family unity.
DHS is amending 8 CFR 208.30(e) to return to defining ``credible
fear of persecution'' as ``a significant possibility, taking into
account the credibility of the statements made by the [noncitizen] in
support of the [noncitizen's] claim and such other facts as are known
to the [asylum] officer, that the [noncitizen] can establish
eligibility for asylum under section 208 of the Act or for withholding
of removal under section 241(b)(3) of the Act.'' DHS is further
amending 8 CFR 208.30(e) to return to defining ``credible fear of
torture'' as ``a significant possibility that the [noncitizen] is
eligible for withholding of removal or deferral of removal under the
Convention Against Torture, pursuant to [8 CFR] 208.16 or [ ] 208.17.''
Additionally, as provided in the NPRM, DHS is amending 8 CFR
208.30(e)(5) to return to the existing and two-decade-long practice of
not applying at the credible fear screening the mandatory bars to
applying for, or being granted, asylum that are contained in sections
208(a)(2)(B)-(D) and (b)(2) of the Act, including any bars established
by regulation under section 208(b)(2)(C) of the Act, or bars to
eligibility for statutory withholding of removal, with limited
exceptions. DHS is maintaining the regulations related to the threshold
screening under the safe third country agreement with Canada in 8 CFR
208.30(e)(6), but making technical edits to change ``credible fear of
persecution, reasonable possibility of persecution, or reasonable
possibility of torture'' to ``credible fear of persecution or torture''
to align the terminology with the rest of this IFR. DHS will continue
to require supervisory review of all credible fear determinations
before they can become final. See 8 CFR 208.30(e)(8).
Consistent with the NPRM, this IFR amends 8 CFR 208.30(g) to return
to providing that once an asylum officer has made a negative credible
fear determination, if a noncitizen refuses or fails to either request
or decline IJ review, such refusal or failure to make an indication
will be considered a request for IJ review. In those instances, the
noncitizen will be served with a Form I-863, Notice of Referral to
Immigration Judge. If, upon review of an asylum officer's negative
credible fear determination, the IJ finds the noncitizen possesses a
credible fear of persecution or torture, the IJ shall vacate the Form
I-860, Notice and Order of Expedited Removal, and remand the case to
DHS for further consideration of the application for asylum.
Alternatively, DHS may commence section 240 removal proceedings, during
which the noncitizen may file an
[[Page 18085]]
application for asylum and withholding of removal. If the IJ concurs
with the negative credible fear determination, DHS can execute the
individual's expedited removal order, promptly removing the individual
from the United States.
In comparison to the NPRM, in this IFR, DHS is amending 8 CFR
208.30(g) to provide that USCIS may, in its discretion, reconsider a
negative credible fear determination with which an IJ has concurred,
provided such reconsideration is requested by the noncitizen or
initiated by USCIS no more than 7 days after the concurrence by the IJ,
or prior to the noncitizen's removal, whichever date comes first, and
further provided that no previous request for consideration has already
been made.\5\ There is no change for noncitizens who do not elect to
have their determination reviewed by an IJ. Any reconsideration request
made prior to review by an IJ will be treated as an election for review
by an IJ. See 8 CFR 208.30(g)(1).
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\5\ Reconsideration requests made by noncitizens of negative
credible fear determinations already affirmed by an IJ are
colloquially known as requests for reconsideration (``RFRs'').
---------------------------------------------------------------------------
2. Applications for Asylum
Under section 235(b)(1)(B)(ii) of the Act, noncitizens who receive
a positive credible fear determination from a USCIS asylum officer are
referred for ``further consideration of the application for asylum.''
As provided in the NPRM, this rule establishes a new process by which
such ``further consideration'' may occur, wherein a noncitizen will
have their asylum claim adjudicated following an Asylum Merits
interview before a USCIS asylum officer in the first instance, rather
than by an IJ in section 240 removal proceedings. See 8 CFR 208.30(f).
In issuing both the NPRM and this IFR, the Departments concluded
that the expedited removal process presented an opportunity for
establishing a more efficient process for making protection
determinations for those coming to our borders. The credible fear
interview process creates a unique opportunity for the protection claim
to be presented to a trained asylum officer and documented; that
documentation can then initiate and facilitate a merits adjudication.
Unlike those noncitizens who are placed directly into section 240
removal proceedings after apprehension at the border, noncitizens
placed instead into expedited removal and who subsequently make a fear
claim are referred to USCIS for an interview under oath. Rather than
move noncitizens who receive positive credible fear determinations
directly into section 240 proceedings--which is what happens to
noncitizens apprehended at the border who are not placed into expedited
removal--the Departments have determined that it is appropriate to
establish a more efficient process that includes the involvement of
USCIS and the creation of a documented record of the noncitizen's
protection claim during the credible fear screening process. By
treating the record of the credible fear determination as an asylum
application and by issuing a follow-up interview notice when the
credible fear determination is served, USCIS will be able to promptly
schedule and conduct an interview on the merits of the noncitizen's
protection claims and issue a final decision. For those noncitizens not
granted asylum by USCIS, the IFR's process will also create a more
complete record of the principal applicant's protection claims, as well
as those of their spouse or child included on the application and
interviewed during the Asylum Merits interview. EOIR can then use the
rationale of the USCIS determination in a streamlined section 240
removal proceeding. Consistent with the NPRM, DHS is amending 8 CFR
208.3 to address application and filing requirements for noncitizens
over whom USCIS retains jurisdiction for further consideration of
asylum applications pursuant to the Asylum Merits process established
by this rule. DHS is amending 8 CFR 208.3(a) to provide, in new 8 CFR
208.3(a)(2), that the written record of a positive credible fear
finding satisfies the asylum application filing requirements in 8 CFR
208.3(a)(1). DHS is further amending 8 CFR 208.3(a) to provide, in new
8 CFR 208.3(a)(1) and (2), that noncitizens placed in the Asylum Merits
process are subject neither to the general requirement in 8 CFR
208.3(a)(1) that asylum applicants file a Form I-589, Application for
Asylum and for Withholding of Removal, nor to the benefit request
submission requirements of 8 CFR 103.2.
Consistent with the NPRM, DHS is also amending 8 CFR 208.3(a) to
provide that the written record of the positive credible fear
determination shall be considered a complete asylum application for
purposes of the one-year filing deadline at 8 CFR 208.4(a), requests
for employment authorization based on a pending application for asylum
under 8 CFR 208.7, and the completeness requirement at 8 CFR 208.9(a);
shall not be subject to the requirements of 8 CFR 103.2; and shall be
subject to the conditions and consequences in 8 CFR 208.3(c) upon
signature at the Asylum Merits interview, as described in new 8 CFR
208.3(a)(2). DHS is amending 8 CFR 208.3(c)(3) to provide that receipt
of a properly filed asylum application under 8 CFR 208.3(a) commences
the period after which a noncitizen may file an application for
employment authorization based on a pending asylum application. DHS is
further amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(2),
that the date that the positive credible fear determination is served
on the noncitizen shall be considered the date of filing and receipt.
DHS is further amending 8 CFR 208.3(a) to provide, in new 8 CFR
208.3(a)(2), that biometrics captured during expedited removal for the
principal applicant and any dependents may be used to verify identity
and for criminal and other background checks for purposes of an asylum
application under the jurisdiction of USCIS and any subsequent
immigration benefit.
DHS is amending current 8 CFR 208.4(c), rather than 8 CFR
208.3(a)(2) as provided in the NPRM, and redesignating it as 8 CFR
208.4(b), with certain modifications as compared to the NPRM, to
provide the noncitizen the opportunity to subsequently amend or correct
the biographic or credible fear information in the Form I-870, Record
of Determination/Credible Fear Worksheet, or supplement the information
collected during the process that concluded with a positive credible
fear determination, within a specified time frame (7 or 10 days,
depending on the method of submission) prior to the scheduled Asylum
Merits interview. DHS is further amending current 8 CFR 208.4(c) to
provide, in new 8 CFR 208.4(b)(2), that, finding good cause in an
exercise of USCIS's discretion, the asylum officer may consider
amendments or supplements submitted after the 7- or 10-day submission
deadline or may grant the applicant an extension of time during which
the applicant may submit additional evidence, subject to the limitation
on extensions described in 8 CFR 208.9(e)(2). In the absence of exigent
circumstances, an asylum officer shall not grant any extensions for
submission of additional evidence that would prevent an Asylum Merits
decision from being issued to the applicant within 60 days of service
of the positive credible fear determination, as described in new 8 CFR
208.9(e)(2).
[[Page 18086]]
3. Proceedings for Further Consideration of the Application for Asylum
by USCIS Through Asylum Merits Interview for Noncitizens With Credible
Fear
Under the framework in place prior to this rulemaking, if an asylum
officer determined that a noncitizen subject to expedited removal had a
credible fear of persecution or torture, DHS placed the noncitizen
before an immigration court for adjudication of the noncitizen's claims
by initiating section 240 removal proceedings. Section 235(b)(1)(B)(ii)
of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), however, authorizes a procedure
for ``further consideration of [an] application for asylum'' that may
commence outside of section 240 removal proceedings.
Consistent with the NPRM, DHS is amending 8 CFR 208.2(a) to provide
that USCIS may take initial jurisdiction to further consider the
application for asylum, in an Asylum Merits interview, of a noncitizen,
other than a stowaway and a noncitizen physically present in or
arriving in the Commonwealth of the Northern Mariana Islands
(``CNMI''), found to have a credible fear of persecution or torture.
DHS is amending 8 CFR 208.9(b) to provide that the purpose of the
Asylum Merits interview shall be to elicit all relevant and useful
information bearing on the applicant's eligibility for asylum. In
comparison to the NPRM, DHS is further amending 8 CFR 208.9(b) to
provide that, in the case of a noncitizen whose case is retained by
USCIS for an Asylum Merits interview, an asylum officer will also
elicit all relevant and useful information bearing on the applicant's
eligibility for statutory withholding of removal and CAT protection.
This rule further provides in 8 CFR 208.16(a) that, in the case of a
noncitizen whose case is retained by or referred to USCIS for an Asylum
Merits interview and whose asylum application is not approved, the
asylum officer will determine whether the noncitizen is eligible for
statutory withholding of removal under 8 CFR 208.16(b) or withholding
or deferral of removal pursuant to the CAT under 8 CFR 208.16(c).
In comparison to the NPRM, DHS is amending 8 CFR 208.9(a) to
provide that USCIS shall not schedule an Asylum Merits interview for
further consideration of an asylum application following a positive
credible fear determination fewer than 21 days after the noncitizen has
been served a record of the positive credible fear determination. The
asylum officer shall conduct the interview within 45 days of the date
that the positive credible fear determination is served on the
noncitizen subject to the need to reschedule an interview due to
exigent circumstances, as provided in new 8 CFR 208.9(a)(1). Consistent
with the NPRM, DHS is amending 8 CFR 208.9 to specify the procedures
for such interviews before an asylum officer. With limited exception,
these amendments generally provide that the same procedures applicable
to affirmative asylum interviews will also apply to interviews under
this rule, such as the right to have counsel present, 8 CFR 208.9(b),
at no expense to the Government.
In this IFR, DHS also includes language from existing regulations
in 8 CFR 208.9(d) that was inadvertently not included in the NPRM's
proposed regulatory text related to the USCIS's discretion to limit the
length of a statement or comment and require its submission in writing.
As was stated in the NPRM, DHS is amending 8 CFR 208.9(f) to provide,
in new 8 CFR 208.9(f)(2), that for Asylum Merits interviews, a verbatim
transcript of the interview will be included in the referral package to
the immigration judge. However, DHS is removing the language proposed
in the NPRM regarding the record also including a verbatim audio or
video recording in new 8 CFR 208.9(f)(2). DHS believes that recording
the interview in order to produce a verbatim transcript that will be
included in the record is sufficient to meet the aims of the rule.\6\
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\6\ The Departments may consider making available a process by
which parties to EOIR proceedings under 8 CFR 1240.17 will be able
to timely review, upon request, the recording of the USCIS Asylum
Merits interview.
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DHS is amending 8 CFR 208.9(g) to provide, in new 8 CFR
208.9(g)(2), that if a noncitizen is unable to proceed effectively in
English at an Asylum Merits interview, the asylum officer shall arrange
for the assistance of an interpreter in conducting the interview. In
comparison to the NPRM, this rule provides in new 8 CFR 208.9(g)(2)
that if a USCIS interpreter is unavailable, USCIS will attribute any
resulting delay to USCIS for purposes eligibility for employment
authorization.
In comparison to the revisions proposed in the NPRM, this IFR
leaves existing 8 CFR 208.10 unchanged--thus providing that a
noncitizen's failure to appear for an Asylum Merits interview may
result in the referral of the application for consideration in section
240 removal proceedings before an IJ (as opposed to the issuance of an
order of removal). See 8 CFR 208.10(a)(1).
In 8 CFR 208.14(b), USCIS continues to implement its authority to
grant asylum in any case within its jurisdiction. In comparison to the
NPRM, DHS is amending 8 CFR 208.14(c) and 208.16(a) and (c) to provide
that if an asylum officer conducting an Asylum Merits interview for
further consideration of an asylum application after a positive
credible fear determination does not grant asylum to an applicant, the
asylum officer will determine whether the applicant is eligible for
statutory withholding of removal or CAT protection. The asylum officer
will not issue an order of removal as proposed in the NPRM, nor issue a
final decision on an applicant's request for statutory withholding of
removal or CAT protection. Instead, the asylum officer will refer the
application--together with the appropriate charging document and
written findings of, and the determination on, eligibility for
statutory withholding of removal or CAT protection--to an IJ for
adjudication in streamlined section 240 removal proceedings. See 8 CFR
208.14(c); 8 CFR 208.16(a), (b), (c)(4); 8 CFR 1208.14(c). The referral
of the asylum application of a principal applicant to the IJ will also
include any dependent of that principal applicant, as appropriate. See
8 CFR 208.3(a)(2), 208.14(c)(1). If the asylum application includes a
dependent who has not filed a separate application and the principal
applicant is determined to not to be eligible for asylum, the asylum
officer will elicit sufficient information to determine whether there
is a significant possibility that the dependent has experienced or
fears harm that would be an independent basis for protection prior to
referring the family to the IJ for a hearing. See 8 CFR 208.9(b), (i).
If a spouse or child who was included in the principal's request for
asylum does not separately file an asylum application that is
adjudicated by USCIS, the principal's asylum application will be deemed
by EOIR to satisfy EOIR's application filing requirements for the
spouse or child as principal applicants. See 8 CFR 1208.3(a)(2).
4. Streamlined Section 240 Removal Proceedings Before the Immigration
Judge
DOJ is adding 8 CFR 1240.17, which shall govern section 240 removal
proceedings for respondents whose cases originate from the credible
fear process and who have not been granted asylum after an initial
adjudication by an asylum officer, pursuant to 8 CFR 208.14(c)(1). The
general rules and procedures that govern all other removal proceedings
under section 240 apply to removal proceedings covered by this
[[Page 18087]]
rule with certain exceptions designed to streamline the proceedings and
account for the unique procedural posture of these cases.
Under new 8 CFR 1240.17(b), USCIS will issue an NTA to any
noncitizen not granted asylum by USCIS after an Asylum Merits interview
held pursuant to 8 CFR 208.2(a), with the master calendar hearing in
these streamlined section 240 proceedings scheduled for 30 to 35 days
after service of the NTA. Under new 8 CFR 1240.17(e), the record of the
proceedings for the interview before the asylum officer and the asylum
officer's decision shall be admitted as evidence and considered by the
IJ. Moreover, this rule provides that a respondent is not required to
separately prepare and file a Form I-589, Application for Asylum and
for Withholding of Removal, and that the record of the positive
credible fear determination satisfies the application filing
requirements for the principal applicant as well as for any dependent
included in the referral and who did not separately file an asylum
application that was adjudicated by USCIS. See 8 CFR 208.3(a),
1208.3(a), 1240.17(e). That is, any spouse or child included in the
referral will be deemed to have satisfied EOIR's application filing
requirements as a principal applicant.
The Departments have determined that it is appropriate for cases
under this rule to proceed on a streamlined time frame before the IJ as
claims will have been significantly developed and analyzed by USCIS
before the IJ proceedings start, the record will be available for
review by the IJ, and respondents will not be required to prepare and
file an asylum application. Accordingly, the rule establishes timelines
for certain hearings to occur as provided in new 8 CFR 1240.17(f)(1)-
(4). As set forth in new 8 CFR 1240.17(h), the rule imposes limitations
on the length of continuances and filing extensions that can be granted
before a respondent must satisfy a heightened standard to receive
additional continuances or filing extensions that have the effect of
further delaying a hearing required under the rule. The rule also
imposes certain procedural requirements and gives IJs additional tools
designed to narrow the issues and ready the case for a merits hearing,
if necessary. Under new 8 CFR 1240.17(f)(1) and (2), the rule requires
the IJ to hold a status conference 30 days after the master calendar
hearing or, if a status conference cannot be held on that date, on the
next available date no later than 35 days after the master calendar
hearing, and imposes obligations on both parties to participate at the
conference, although the level of participation required by the
respondent depends on whether the respondent has legal representation.
If DHS indicates that it will participate in the case, DHS has an
obligation under new 8 CFR 1240.17(f)(2)(ii) and (f)(3) to set forth
its position on the respondent's application and identify contested
issues of law or fact (including which elements, if any, of the
respondent's claim(s) it is challenging), among other things. In
certain circumstances, where DHS does not respond in a timely manner to
the respondent's claims, the IJ has authority to deem those claims
unopposed, as provided in new 8 CFR 1240.17(f)(3)(i). However, DHS may
respond at the merits hearing to any arguments or claimed bases for
asylum first advanced by the respondent after the status conference.
See 8 CFR 1240.17(f)(3)(i). Where DHS has indicated that it will not
participate in a merits hearing, the rule allows DHS, in certain,
limited instances, to retract this position prior to the merits
hearing, as provided in new 8 CFR 1240.17(f)(2)(ii). The rule allows
IJs to hold additional status conferences if the case is not ready for
a merits hearing, as provided in new 8 CFR 1240.17(f)(2).
Under new 8 CFR 1240.17(f)(4), the IJ may forgo a merits hearing
and decide the respondent's application on the documentary record (1)
if neither party has requested to present testimony and DHS has
indicated that it waives cross-examination, or (2) if the noncitizen
has timely requested to present testimony, DHS has indicated that it
waives cross-examination and does not intend to present testimony or
produce evidence, and the IJ concludes that the application can be
granted without further testimony. The rule preserves the IJ's ability
to hold a merits hearing if the IJ decides that it is necessary to
fulfill the IJ's duty to fully develop the record.
If the case cannot be decided on the documentary record, the new 8
CFR 1240.17(f)(2) requires the IJ to hold a merits hearing 60 days
after the master calendar hearing or, if a hearing cannot be held on
that date, on the next available date no later than 65 days after the
master calendar hearing. At the merits hearing, the respondent may
testify fully and offer any additional evidence that has been submitted
in compliance with the time limits on evidentiary filings under the
normal evidentiary standards that apply to 240 removal proceedings as
provided in new 8 CFR 1240.17(f)(4)(iii)(A) and (g)(1). If the
proceedings cannot be completed at the scheduled merits hearing, the IJ
shall schedule any continued merits hearing as soon as possible but no
later than 30 days after the initial merits hearing except in case of a
continuance or extension as provided in 8 CFR 1240.17(f)(4)(iii)(B).
Under new 8 CFR 1240.17(f)(5), the IJ is required, wherever
practicable, to issue an oral decision on the date of the final merits
hearing or, if the IJ concludes that no hearing is necessary, no later
than 30 days after the status conference. Where issuance of an oral
decision on such date is not practicable, the IJ must issue an oral or
written decision as soon as practicable, and in no case more than 45
days after the applicable date described in the preceding sentence. See
8 CFR 1240.17(f)(5).
Under new 8 CFR 1240.17(i)(2), if the IJ denies asylum but an
asylum officer has determined that the respondent is eligible for
statutory withholding of removal or protection under the CAT with
respect to the proposed country of removal, then the IJ shall enter an
order of removal but give effect to the asylum officer's eligibility
determination by granting the applicable form of protection, unless DHS
demonstrates that evidence or testimony that specifically pertains to
the respondent and that was not in the record of proceedings for the
USCIS Asylum Merits interview establishes that the respondent is not
eligible for such protection. Under new 8 CFR 1240.17(f)(2)(i)(B), the
rule similarly provides that where an asylum officer has declined to
grant asylum but has determined that the respondent is eligible for
statutory withholding of removal or protection under the CAT with
respect to the proposed country of removal, the respondent may elect
not to contest removal and not pursue a claim for asylum before the IJ
but still receive statutory withholding of removal or CAT protection.
In such a case, the rule provides that the IJ shall enter an order of
removal but give effect to the asylum officer's eligibility
determination by granting the applicable form of protection, unless DHS
makes a prima facie showing through evidence that specifically pertains
to the respondent and that was not in the record of proceedings for the
USCIS Asylum Merits interview that the respondent is not eligible for
such protection. Similarly, new 8 CFR 1240.17(d) further provides that
an IJ must give effect to an asylum officer's determination that a
noncitizen is eligible for statutory withholding of removal or
protection under the CAT, even if the noncitizen is ordered removed in
absentia, unless DHS makes a prima facie showing through evidence that
specifically pertains to the
[[Page 18088]]
respondent and that was not in the record of proceedings for the USCIS
Asylum Merits interview that the respondent is not eligible for such
protection. In addition, new 8 CFR 1240.17(l) makes clear that DHS may,
in keeping with existing regulations, seek to terminate such
protection.\7\
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\7\ Nothing in this rule alters the existing regulatory
provisions governing termination of withholding or deferral; these
provisions apply to any noncitizen whose removal has been withheld
or deferred, whether through the procedure established in this rule
or otherwise. See 8 CFR 208.17(d), 208.24(f), 1208.17(d),
1208.24(f).
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Finally, the rule specifically exempts certain cases that cannot be
expedited under the circumstances from the timelines and other
expedited aspects of the streamlined 240 proceedings. See 8 CFR
1240.17(k). Such exceptions include the following circumstances: The
respondent was under the age of 18 on the date that the NTA was issued
and is not in consolidated removal proceedings with an adult family
member, 8 CFR 1240.17(k)(1); the respondent has produced evidence of
prima facie eligibility for relief or protection other than asylum,
statutory withholding of removal, protection under the CAT, and
voluntary departure, and the respondent is seeking to apply for, or has
applied for, such relief or protection, 8 CFR 1240.17(k)(2); \8\ the
respondent has produced evidence that supports a prima facie showing
that the respondent is not removable and the IJ determines that the
issue of whether the respondent is removable cannot be resolved
simultaneously with the adjudication of the applications for asylum and
related protection, 8 CFR 1240.17(k)(3); the IJ finds the respondent
subject to removal to a country other than the country or countries in
which the respondent claimed a fear of persecution, torture, or both
before the asylum officer and the respondent claims a fear of
persecution, torture, or both in that alternative country or countries,
8 CFR 1240.17(k)(4); the case is on remand or has been reopened
following the IJ's order, 8 CFR 1240.17(k)(5); or the respondent
exhibits indicia of mental incompetency, 8 CFR 1240.17(k)(6). The
provisions at 8 CFR 1240.17(f), (g), and (h), which pertain to the
schedule of proceedings, to the consideration of evidence and
testimony, and to continuances, adjournments, and filing extensions,
will not apply in such cases. The other provisions in 8 CFR 1240.17,
however, will apply.
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\8\ The rule does not specify the particular type of evidence
that must be produced in order to demonstrate prima facie
eligibility for relief. Such evidence could include testimonial
evidence as well as documentary evidence. The rule further does not
require that a completed application for the relief at issue be
filed with the immigration court.
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5. Parole
DHS is amending 8 CFR 235.3(b)(2)(iii) to permit parole of detained
individuals whose inadmissibility is being considered in the expedited
removal process, or who have been ordered removed under the expedited
removal process, only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit, which includes, as interpreted
in longstanding regulations, see 8 CFR 212.5(b), circumstances in which
continued detention is not in the public interest, provided that the
noncitizen presents neither a security risk nor a risk of absconding.
Similarly, DHS is amending 8 CFR 235.3(b)(4)(ii) to permit parole of
detained individuals pending a credible fear interview and any review
of an asylum officer's credible fear determination by an IJ only on a
case-by-case basis for urgent humanitarian reasons or significant
public benefit, including if continued detention is not in the public
interest, provided that the noncitizen presents neither a security risk
nor a risk of absconding. This rule further finalizes, as proposed,
that such a grant of parole would be for the limited purpose of parole
out of custody and cannot serve as an independent basis for employment
authorization under 8 CFR 274a.12(c)(11). See 8 CFR 235.3(b)(2)(iii),
(b)(4)(ii). The IFR also includes a technical amendment to 8 CFR
212.5(b) to incorporate a reference to 8 CFR 235.3(b). Parole is not
guaranteed but instead considered on a case-by-case basis to determine
whether it is warranted as a matter of discretion; DHS also may impose
reasonable conditions on parole such as periodic reporting to U.S.
Immigration and Customs Enforcement (``ICE''). See INA 212(d)(5)(A), 8
U.S.C. 1182(d)(5)(A); 8 CFR 212.5(d).\9\
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\9\ Noncitizens who are paroled are not considered to be
``admitted'' to the United States. See INA 101(a)(13)(B),
212(d)(5)(A); 8 U.S.C. 1101(a)(13)(B), 1182(d)(5)(A).
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Additionally, DHS is including in this rule a technical amendment
to 8 CFR 235.3(c)(2) to provide that parole of noncitizens with
positive credible fear determinations whose asylum applications are
retained by USCIS for further consideration through the Asylum Merits
process is permissible only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit, including if
continued detention is not in the public interest, provided that the
noncitizen presents neither a security risk nor a risk of absconding.
This technical amendment is necessary to clarify that the parole
authority pertaining to noncitizens awaiting an Asylum Merits interview
with USCIS under this rule will be consistent with 8 CFR 212.5, just as
the parole authority pertaining to detained noncitizens subject to
expedited removal who are placed in section 240 removal proceedings is
consistent with 8 CFR 212.5. As noted above, parole is not guaranteed
but instead considered on a case-by-case basis to determine whether it
is warranted as a matter of discretion.
E. Summary of Costs and Benefits
The primary individuals and entities that this rule is expected to
affect are: (1) Noncitizens who are placed into expedited removal and
who receive a credible fear screening; (2) the support networks of
asylum applicants who receive a positive credible fear determination;
(3) USCIS; and (4) EOIR. The expected impacts to these individuals and
entities and to others are detailed in Section V.B of this preamble. In
brief, by reducing undue delays in the asylum adjudication system, and
by providing a variety of procedural safeguards, the rule protects
equity, human dignity, and fairness given that individuals who are
eligible for asylum or other protection may receive that protection
more promptly, while individuals who are ineligible may more promptly
be ordered removed. In the Departments' judgment, these benefits--which
are difficult or impossible to quantify--along with the benefits of the
rule that are more amenable to quantification, amply justify the
aggregate costs of the rule.
The rule's impact on affected noncitizens (and, in turn, on their
support networks) may vary substantially from person to person
depending on, among other things, whether the individual receives a
positive credible fear determination and whether the individual's
asylum claim is granted or not granted by USCIS. For example, some
individuals may benefit more from an earlier grant of asylum because
they may be able to enter the labor force sooner. And individuals who
establish credible fear may benefit from cost savings associated with
no longer having to file a Form I-589, Application for Asylum and for
Withholding of Removal.
The Departments have estimated the human resource- and information-
related expenditures required for USCIS to implement this rule. These
estimates are developed along three population
[[Page 18089]]
bounds to account for possible variations in the number of credible
fear screenings in future years. Implementation of the rule also is
expected to reduce EOIR's workload, allowing EOIR to focus efforts on
other priority work and to reduce the growth of its substantial current
backlog. That expected reduction in workload would result from (1)
cases in which USCIS grants asylum never reaching EOIR, resulting in a
potential 15 percent reduction in EOIR's caseload originating from
credible fear screening (assuming historic grant rates), and (2) many
of the cases reaching EOIR being resolved with less investment of
immigration court time and resources than they would have required if
referred directly to EOIR in the first instance.
An important caveat to the Departments' estimates of the potential
costs and benefits associated with this rule is that it will take time
to fully implement the rule, as the Departments intend to take a phased
approach to implementing the rule.
F. Effective Date
This IFR will be effective 60 days from the date of publication in
the Federal Register.
This rule applies prospectively and only to adults and families who
are placed in expedited removal proceedings and indicate an intention
to apply for asylum, a fear of persecution or torture, or a fear of
return to their home country, after the rule's effective date. The rule
does not apply to unaccompanied children, as they are statutorily
exempt from expedited removal proceedings. See 8 U.S.C.
1232(a)(5)(D)(i) (providing that ``any unaccompanied alien child'' whom
DHS seeks to remove ``shall be . . . placed in removal proceedings
under section 240'' of the INA); see also 6 U.S.C. 279(g)(2) (defining
``unaccompanied alien child'').\10\ The rule also does not apply to
individuals in the United States who are not apprehended at or near the
border and subject to expedited removal.\11\ Such individuals will
continue to have their asylum claims heard in section 240 removal
proceedings in the first instance, or through an affirmative asylum
application under section 208 of the INA, 8 U.S.C. 1158, if they have
not yet been placed in immigration proceedings. The rule also does not
apply to (1) stowaways or (2) noncitizens who are physically present in
or arriving in the CNMI who are determined to have a credible fear.
Such individuals will continue to be referred to asylum-and-
withholding-only proceedings before an IJ under 8 CFR 208.2(c).
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\10\ In lieu of being placed in section 240 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. See 8 U.S.C.
1232(a)(2).
\11\ The former Immigration and Naturalization Service (``INS'')
initially implemented expedited removal processes only for certain
noncitizens arriving at ports of entry. In 2002, DHS, by
designation, expanded the application of expedited removal to
certain 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) had 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 certain
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 certain noncitizens, not covered by prior designations, who
entered the country without inspection less than two 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. Executive Order
14010, Creating a Comprehensive Regional Framework To Address the
Causes of Migration, To Manage Migration Throughout North and
Central America, and To Provide Safe and Orderly Processing of
Asylum Seekers at the United States Border, 86 FR 8267, 8270-71
(Feb. 2, 2021). On March 21, 2022, DHS published a Federal Register
Notice rescinding the 2019 designation. See Rescission of the Notice
of July 23, 2019, Designating Aliens for Expedited Removal, 87 FR
16022 (Mar. 21, 2022).
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III. Discussion of the IFR
The principal purpose of this IFR is to simultaneously increase the
promptness, efficiency, and fairness of the process by which
noncitizens who cross the border without appropriate documentation are
either removed or, if eligible, granted protection. The IFR
accomplishes this purpose both by instituting a new process for
resolving the cases of noncitizens who have been found to have a
credible fear of persecution or torture and by facilitating the use of
expedited removal for more of those who are eligible, and especially
for populations whose detention presents particular challenges. When
individuals 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); 8 CFR
208.30. Under procedures in place immediately prior to the effective
date of this IFR, individuals who receive a positive credible fear
determination are referred to an immigration court for section 240
removal proceedings, during 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 an NTA,
for full consideration of the asylum and withholding of removal claim
in proceedings under section 240 of the Act''). As explained in the
NPRM, it may take years before the individual's protection claim is
first adjudicated by an IJ. This delay creates additional stress and
uncertainty 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, are unable to lawfully work until
their asylum application has been granted or has remained pending for
several months, and are unable to petition for qualified family
members, some of whom may still be at risk of harm. Moreover, 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. Such additional entrants only further
increase the backlog and lengthen the delays.
To respond to this problem, this rule at 8 CFR 208.2(a)(1)(ii) and
208.9 provides USCIS the authority to adjudicate in the first instance
the asylum claims of individuals who receive a positive credible fear
determination, and further provides that USCIS does so following a
nonadversarial interview by an asylum officer. The rule also provides
at 8 CFR 208.3(a)(2) that the record of a credible fear interview will
serve as an asylum application for noncitizens whose cases are retained
by or referred back to USCIS for adjudication after a positive credible
fear determination, thereby allowing cases originating with a credible
fear screening to be adjudicated substantially sooner. Both the
Departments and the noncitizen can avoid the burden caused by delays
associated with otherwise requiring the noncitizen to file a Form I-
589, Application for Asylum and for Withholding of Removal. See Section
IV.D.4.a of this preamble. By
[[Page 18090]]
authorizing USCIS to adjudicate in the first instance the asylum claims
of individuals who receive a positive credible fear determination and
by making it possible for this adjudication to be made promptly and
independently of EOIR, the Departments predict that the rule will also
help to stem the rapid growth of the EOIR caseload, described in
greater detail in the NPRM. See 86 FR 46937. As for the noncitizen,
this change reduces potential barriers to protection for eligible
applicants by enabling asylum seekers to meet the statutory requirement
to apply for asylum within one year of arrival, avoiding the risk of
filing delays, and immediately beginning the waiting period of work
authorization eligibility. See id. at 46916. Any spouse or child who
arrived with the principal asylum applicant and is included as a
dependent on the principal applicant's positive credible fear
determination may make a separate claim for protection and submit their
own principal asylum application to USCIS for consideration.
As noted in the NPRM, 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. From 2018
through 2020, however, several attempts were made to change the
credible fear screening process. Many of these attempts have been
initially vacated or enjoined, and the implementation of others has
been delayed pending consideration of whether they should be revised or
rescinded.\12\ The Global Asylum rule, which is enjoined, revised
regulations to provide that noncitizens with positive credible fear
determinations would be placed in asylum-and-withholding-only
proceedings before an IJ. See 85 FR 80276. In the Global Asylum rule,
the Departments explained their view that placing such noncitizens in
asylum-and-withholding-only proceedings before an IJ would ``bring the
proceedings in line with the statutory objective that the expedited
removal process be streamlined and efficient,'' id., and later noted
that it would ``lessen the strain on the immigration courts by limiting
the focus of such proceedings and thereby streamlining the process,''
id. at 80286. The Departments provided that these asylum-and-
withholding-only proceedings would follow the same rules of procedure
that apply in section 240 proceedings and that a noncitizen could
appeal their case to the BIA and Federal circuit courts, as necessary.
See id. at 80289. The Departments acknowledged that IJs often
adjudicate multiple forms of relief in a single removal proceeding, in
addition to asylum, statutory withholding of removal, or CAT protection
claims, and stated that those additional issues ``generally only serve
to increase the length of the proceedings'' and that ``there may be
rare scenarios in which [noncitizens] subject to expedited removal are
eligible for a form of relief other than asylum.'' Id. In the Global
Asylum rule, the Departments concluded that placing noncitizens with
positive credible fear determinations into more limited asylum-and-
withholding-only proceedings properly balanced the need to prevent
noncitizens from being removed to countries where they may face
persecution or torture with ensuring efficiency in the overall
adjudication process. See id.
---------------------------------------------------------------------------
\12\ See supra note 4 (discussing recent regulations and their
current status).
---------------------------------------------------------------------------
This rule offers another approach. It establishes 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 appropriate
safeguards against error.\13\ The rule authorizes USCIS to adjudicate
in the first instance the asylum 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 will use to adjudicate these
claims will be nonadversarial, and the decisions will be made within
time frames consistent with those established by Congress in section
208(d)(5)(A) of the INA, 8 U.S.C. 1158(d)(5)(A).\14\
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\13\ Section 4(b)(i) of Executive Order 14010, Creating a
Comprehensive Regional Framework to Address the Causes of Migration,
To Manage Migration Throughout North and Central America, and To
Provide Safe and Orderly Processing of Asylum Seekers at the United
States Border, instructed the Secretary 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
and protection claims] and adherence to standards of fairness and
due process.'' 86 FR 8267, 8270 (Feb. 2, 2021).
\14\ See INA 208(d)(5)(A)(ii)-(iii), 8 U.S.C. 1158(d)(5)(A)(ii)-
(iii) (specifying that an initial interview or hearing on an asylum
application should generally commence within 45 days after the
filing of the application and that final administrative adjudication
should generally be completed within 180 days after the filing of
the application).
---------------------------------------------------------------------------
The Departments believe that the approach in this rule, in contrast
to the approach outlined in the Global Asylum rule, will allow for
noncitizens' claims to be heard more efficiently and fairly. As further
explained in this rule, allowing noncitizens with positive credible
fear determinations to have their asylum, statutory withholding, and
CAT protection claims heard in a nonadversarial setting before an
asylum officer capitalizes on the investment of time and expertise that
USCIS has already made and, for the subset of cases in which asylum is
granted by USCIS, saves investment of time and resources by EOIR and
ICE. See Sections II.C. and IV.D.5 of this preamble. The extensive and
well-rounded training that asylum officers receive is designed to
enable them to conduct nonadversarial interviews in a fair and
sensitive manner. This rule will 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. If the
asylum officer does not grant asylum following an Asylum Merits
interview, the noncitizen will be referred to an IJ for streamlined
section 240 removal proceedings, with a structure that provides for the
prompt resolution of their claims and that allows the noncitizen to
seek other forms of relief. If the asylum application includes a
dependent who has not filed a separate application and the principal
applicant is determined not to be eligible for asylum, the asylum
officer will elicit sufficient information to determine whether there
is a significant possibility that the applicant's dependent has
experienced or fears harm that would be an independent basis for
protection prior to referring the family to the IJ for a hearing. This
will allow EOIR to consider all family members to have separately filed
an asylum application once the family is placed into the streamlined
section 240 removal proceedings.
This IFR will help more effectively achieve many of the goals
outlined in the Global Asylum rule--including improving efficiency,
streamlining the adjudication of asylum, statutory withholding of
removal, and CAT protection claims, and lessening the strain on the
immigration courts--albeit with a different approach. This rule helps
meet the goal of lessening the strain on the immigration courts by
having USCIS asylum officers adjudicate asylum claims in the first
instance, rather than IJs. As explained further in this rule, the
Departments anticipate that the number of cases USCIS refers to EOIR
for adjudication will decrease. See Sections IV.F.1.a and V.B.4.b.ii of
this preamble. In contrast to the Global Asylum rule, in this rule, the
[[Page 18091]]
Departments are amending regulations to include several time frames for
the adjudication process and particular procedural requirements
designed to streamline the overall process and take advantage of the
record created by the asylum officer, while still providing noncitizens
with a full and fair opportunity to present testimony and evidence in
support of their claims before an IJ. See Sections II.A.4 and III.D of
this preamble. Accordingly, these changes better meet the Departments'
goals of improving efficiency and streamlining the process. In
addition, upon reconsideration, the Departments recognize that giving
noncitizens the opportunity to seek other forms of relief within the
context of streamlined section 240 removal proceedings helps reduce
barriers to accessing other immigration benefits that may be available,
and that the potential benefits to noncitizens of having such an
opportunity outweigh efficiency concerns.
The Departments clarify that nothing in this rule 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 an NTA to place the
noncitizen in ordinary section 240 removal proceedings at any time
after they are referred to USCIS for a credible fear determination. See
8 CFR 208.30(b), (f); Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171
(BIA 2017); Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011).
Moreover, should any provision of the rule governing the USCIS process
for cases covered by 8 CFR 208.2(a)(1)(ii) be enjoined or vacated, EOIR
has the discretion to place into ordinary section 240 proceedings any
case referred to EOIR under this section.
A. Credible Fear Screening Process
The credible fear screening regulations under this rulemaking
generally 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
and determined to be inadmissible pursuant to INA 212(a)(6)(C) or
(a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), can be placed in 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).
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 ``significant possibility'' standard, which
presently applies to all relevant protection claims because the
regulatory changes referenced above have been vacated or enjoined.\15\
---------------------------------------------------------------------------
\15\ See supra note 4 (discussing recent regulations and their
current status).
---------------------------------------------------------------------------
The Departments are returning to codifying the historical practice
of applying the ``significant possibility'' standard across all forms
of protection screened in the credible fear process. This rule adopts
the ``significant possibility'' standard for credible fear screening
for purposes of asylum, statutory withholding of removal, and CAT
protection. While the statutory text at INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), only defines ``credible fear'' for purposes of
screening asylum claims, the Departments believe that the efficiency
gained in screening the same or a closely related set of facts using
the same legal standard at the same time is substantial and should not
be overlooked. Moreover, the credible fear screening process is
preliminary in nature; its objective is to sort out, without undue
decision costs, which cases merit further consideration. See generally
INA 235(b)(1)(B); 8 U.S.C. 1225(b)(1)(B). Efficiently using one
standard of law at the preliminary step is consistent with that
objective, even though the ultimate adjudication of a noncitizen's
claim for each form of protection may require a distinct analysis.
The standard for establishing a credible fear of persecution under
the INA requires ``a significant possibility, taking into account the
credibility of the statements made by the [noncitizen] in support of
the [noncitizen's] claim and such other facts as are known to the
officer, that the [noncitizen] could establish eligibility for asylum
under section 208'' of the INA. INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). While the ``significant possibility'' standard for
the purpose of screening for asylum is established by statute, the
statute does not specify a standard to be used in screening for
statutory withholding of removal or CAT protection. In June 2020, the
Departments proposed alternative standards for statutory withholding of
removal and CAT protection. See Procedures for Asylum and Withholding
of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264,
36268 (June 15, 2020) (``Global Asylum NPRM''). Under that proposed
rule, ``asylum officers would consider whether [noncitizens] could
establish a credible fear of persecution, a reasonable possibility of
persecution, or a reasonable possibility of torture.'' Id. at 36269. In
finalizing that rule, the Departments noted that in changing the
standard of law for withholding of removal and deferral of removal, an
individual's ``screening burdens would become adequately analogous to
the merits burdens, where the [individual's] burdens for statutory
withholding of removal and protections under the CAT regulations are
higher than the burden for asylum.'' Global Asylum rule, 85 FR 80277.
However, pursuant to an Executive order and with the additional context
of the court's injunction against the implementation of the Global
Asylum rule in Pangea II,\16\ the Departments have reviewed and
reconsidered that rule. See Executive Order 14012, Restoring Faith in
Our Legal Immigration Systems and Strengthening Integration and
Inclusion Efforts for New Americans, 86 FR 8277 (Feb. 2, 2021) (``E.O.
on Legal Immigration'') (ordering review of existing regulations for
consistency with the E.O. on Legal Immigration). In line with this
review, the Departments have revisited the approach of having divergent
standards applied during the credible fear screening and determined
that keeping one standard in screening for asylum, statutory
withholding, and CAT protection better promotes an efficient credible
fear screening process.
---------------------------------------------------------------------------
\16\ See supra note 4 (discussing recent regulations and their
current status).
---------------------------------------------------------------------------
In multiple rulemaking efforts, the Departments promulgated
divergent standards for asylum and withholding of removal, along with
variable standards for individuals barred from certain types of
protection.\17\ However, in working to create efficiencies within this
process, as well as recognizing that the Departments have signaled
their intention to either modify or rescind these rules,\18\ adhering
to the legal standard that was set by Congress in section
235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v), is the logical
[[Page 18092]]
choice. See 86 FR 46914. Upon reconsideration, the Departments believe
that the varied legal standards created by different rulemakings, and
enjoined or vacated by legal challenges, defeat their intended purpose,
and complicate and extend the initial screening process provided for in
INA section 235. Having asylum officers apply varied legal standards
would generally lead to the need to elicit additional testimony from
noncitizens at the time of the credible fear screening interview, which
lengthens credible fear interviews and increases adjudication times. In
the Departments' view, the delays associated with complicating and
extending every credible fear interview likely outweigh any
efficiencies gained by potential earlier detection of individuals who
may be barred from or ineligible for certain types of protection. For
example, when the TCT Bar IFR was in effect,\19\ asylum officers were
required to spend additional time during any interview where the bar
potentially applied developing the record related to whether the bar
applied, whether an exception to the bar might have applied, and, if
the noncitizen appeared to be barred and did not qualify for an
exception to the bar, developing the record sufficiently such that a
determination could be made according to the higher reasonable fear
standard. This additional time spent developing the record when the
higher reasonable fear standard applied decreased the efficiency of the
screening interviews themselves and complicated the analysis asylum
officers were required to perform, thus contributing to the overall
lengthening of the entire process.
---------------------------------------------------------------------------
\17\ See supra note 4 (describing the TCT Bar IFR, Presidential
Proclamation Bar IFR, and Security Bars rule).
\18\ See Executive Office of the President, Office of Management
and Budget (``OMB''), Office of Information and Regulatory Affairs
(``OIRA''), Spring 2021 Unified Agenda of Regulatory and
Deregulatory Actions, <a href="https://www.reginfo.gov/public/do/eAgendaHistory">https://www.reginfo.gov/public/do/eAgendaHistory</a> (last visited Mar. 5, 2022) (select DHS or DOJ);
Executive Office of the President, OMB, OIRA, Fall 2021 Unified
Agenda of Regulatory and Deregulatory Actions, <a href="https://www.reginfo.gov/public/do/eAgendaMain">https://www.reginfo.gov/public/do/eAgendaMain</a> (last visited Mar. 5, 2022)
(select DHS or DOJ).
\19\ The TCT Bar IFR went into effect on July 16, 2019, see 84
FR 33829, and was vacated on June 30, 2020, see Capital Area
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d at 45-57. The TCT
Bar rule went into effect on January 19, 2021. See 85 FR 82260.
However, it did not have an impact on credible fear processing. The
TCT Bar rule did not directly make any amendments to the credible
fear regulations at 8 CFR 208.30 and instead relied on changes to
the credible fear regulations made by the Global Asylum rule in
order to apply the TCT bar in credible fear. On January 8, 2021, the
Global Asylum rule was preliminarily enjoined. See Pangea II, 512 F.
Supp. 3d 966. As a result of the preliminary injunction in Pangea
II, the amendments to 8 CFR 208.30 made by the Global Asylum rule
were enjoined. Thus, the bar to asylum eligibility at 8 CFR
208.13(c)(4) established in the TCT Bar rule did not apply in
credible fear while the Global Asylum rule remained enjoined. The
TCT Bar rule itself was enjoined on February 16, 2021. See E. Bay
Sanctuary Covenant, 519 F. Supp. 3d at 668. Therefore, only the TCT
Bar IFR ever went into effect.
---------------------------------------------------------------------------
In the Global Asylum NPRM, the Departments stated that ``[r]aising
the standards of proof to a `reasonable possibility' for the screening
of [noncitizens] seeking statutory withholding of removal and CAT
protection would allow the Departments to better screen out non-
meritorious claims and focus limited resources on claims much more
likely to be determined to be meritorious by an immigration judge.'' 85
FR 36271. However, based on the Departments' experience implementing
divergent screening standards for asylum, statutory withholding of
removal, and CAT protection while the TCT Bar IFR was in effect, no
evidence has been identified that this approach resulted in more
successful screening out of non-meritorious claims while ensuring the
United States complied with its non-refoulement obligations.
The Departments also reasoned in the Global Asylum NPRM: ``Adopting
a higher standard for statutory withholding and CAT screenings would
not hinder the streamlined process envisioned for expedited removal.
Asylum officers already receive extensive training and guidance on
applying the `reasonable possibility' standard in other contexts
because they are determining whether a reasonable possibility of
persecution or torture exists in reasonable fear determinations
pursuant to 8 CFR 208.31. In some cases, asylum officers would need to
spend additional time eliciting more detailed testimony from
[noncitizens] to account for the higher standard of proof; however, the
overall impact on the time asylum officers spend making screening
determinations would be minimal.'' 85 FR 36271. However, the
Departments have reconsidered these predictions, again based on the
experience implementing divergent screening standards while the TCT Bar
IFR was in effect. Beyond the additional time asylum officers
themselves spent conducting these screening interviews, making
determinations, and recording their assessments, supervisory asylum
officers reviewing these cases spent additional time assessing whether
the varying standards of proof were properly applied to the forms of
relief for which asylum officers screened. This effort also required
the additional investment of time and resources from Asylum Division
headquarters, including training and quality assurance staff who had to
develop and deliver guidance and trainings on the new process, monitor
the work being conducted in the field to ensure compliance with
regulations and administrative processes, and provide guidance to
asylum officers and supervisory asylum officers on individual cases.
Attorneys from the USCIS Office of Chief Counsel had to spend time and
resources reviewing and advising on training materials and guidance
issued by the Asylum Division, as well as on individual cases on which
legal advice was sought to ensure proper application of the divergent
screening standards on various forms of relief. IJs reviewing negative
determinations by asylum officers were also compelled to spend
additional time ensuring the proper application of these screening
standards, compared to the time spent reviewing determinations under a
single standard in the status quo ante. The Departments failed to
account in the relevant rulemakings for the necessity of expending
these additional resources beyond time spent by asylum officers
themselves making screening determinations.
The Departments also stated in the Global Asylum NPRM: ``The
procedural aspects of making screening determinations regarding fear of
persecution and of torture would remain largely the same. Moreover,
using a higher standard of proof in the screening context for those
seeking statutory withholding of removal or protection under the CAT
regulations in the immigration courts allows the Departments to more
efficiently and promptly distinguish between aliens whose claims are
more likely or less likely to ultimately be meritorious.'' 85 FR 36271.
However, for the reasons detailed above, the Departments' experience
implementing divergent screening standards while the TCT Bar IFR was in
effect demonstrated that these predictions of increased efficiency and
promptness did not materialize, undermining congressional intent that
the screening process in the expedited removal context operate nimbly
and in a truly expedited manner.
In clarifying that the ``significant possibility'' standard applies
not only to credible fear screening for asylum, but also to credible
fear screening for statutory withholding and CAT protection, the
Departments will help ensure that the expedited removal process remains
truly expedited, and will allow for asylum officers to adhere to a
single legal standard in screening claims for protection from
persecution and torture in the expedited removal process.
Similarly, through this rulemaking, the Departments are generally
returning the regulatory text to codify the pre-2018, and current,
practice of screening for eligibility for asylum and statutory
withholding of removal while not applying most bars to asylum or
withholding of removal in the credible
[[Page 18093]]
fear screening process. The Global Asylum rule, which has been
enjoined, attempted to require the application of a significantly
expanded list of mandatory bars during credible fear screenings and
mandated a negative credible fear finding should any of the bars apply
to the noncitizen at that initial stage. See 85 FR 80278; supra note 4.
In the Global Asylum NPRM, the Departments justified this change by
stating: ``From an administrative standpoint, it is pointless and
inefficient to adjudicate claims for relief in section 240 proceedings
when it is determined that an alien is subject to one or more of the
mandatory bars to asylum or statutory withholding at the screening
stage. Accordingly, applying those mandatory bars to aliens at the
`credible fear' screening stage would eliminate removal delays inherent
in section 240 proceedings that serve no purpose and eliminate the
waste of adjudicatory resources currently expended in vain.'' 85 FR
36272. However, upon reconsideration, the Departments have determined
that, in most cases, the stated goal of promoting administrative
efficiency can be better accomplished through the mechanisms
established in this rulemaking rather than through applying mandatory
bars at the credible fear screening stage. The Departments now believe
that it is speculative whether, had the Global Asylum rule been
implemented, a meaningful portion of the EOIR caseload might have been
eliminated because some individuals who were found at the credible fear
screening stage to be subject to a mandatory bar would not have been
placed into section 240 proceedings. This is particularly true in light
of the Global Asylum rule's preservation of a noncitizen's ability to
request review of a negative credible fear determination (including the
application of mandatory bars at the credible fear stage) by an IJ, as
well as that rule's allowance for individuals found subject to a
mandatory bar to asylum at the credible fear screen stage to
nonetheless have their asylum claims considered by an IJ in asylum-and-
withholding-only proceedings if they demonstrate a reasonable
possibility of persecution or torture and are not subject to a bar to
withholding of removal. Requiring asylum officers to broadly apply
mandatory bars during credible fear screenings would have made these
screenings less efficient, undermining congressional intent that the
expedited removal process be truly expeditious, and would further limit
DHS's ability to use expedited removal to an extent that is
operationally advantageous.
Requiring asylum officers to broadly apply the mandatory bars at
credible fear screening would increase credible fear interview and
decision times because asylum officers would be expected to devote time
to eliciting testimony, conducting analysis, and making decisions about
all applicable bars. For example, when the TCT Bar IFR was in
effect,\20\ asylum officers were required to spend additional time
during any interview where the bar potentially applied developing the
record related to whether the bar applied, whether an exception to the
bar might have applied, and, if the noncitizen appeared to be barred
and did not qualify for an exception to the bar, developing the record
sufficiently such that a determination could be made according to the
higher reasonable fear standard. As another example, a ``particularly
serious crime'' is not statutorily defined in detail, beyond an
aggravated felony,\21\ and offenses typically are designated as
particularly serious crimes through case-by-case adjudication--the kind
of fact-intensive inquiry requiring complex legal analysis that would
be more appropriate in a full adjudication before an asylum officer or
in section 240 proceedings with the availability of judicial review
than in credible fear screenings.\22\ Presently, asylum officers ask
questions related to all mandatory bars to develop the record
sufficiently and identify potential bars but, since mandatory bars are
not currently being applied in the credible fear determination, the
record does not need to be developed to the level of detail that would
be necessary if the issue of a mandatory bar was outcome-determinative
for the credible fear determination. If a mandatory bar were to become
outcome determinative, it would be necessary to develop the record
sufficiently to make a decision about the mandatory bar such that,
depending on the facts, the interview would go beyond its
congressionally intended purpose as a screening for potential
eligibility for asylum or related protection--and a fail-safe to
minimize the risk of refoulement--and would instead become a decision
on the relief or protection itself. The level of detailed testimony
necessary in some cases to make such a decision would require asylum
officers to spend significantly more time developing the record during
the interview and conducting additional research following the
interview.
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\20\ See supra note 19.
\21\ See INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C.
1158(b)(2)(A)(ii), (B)(i).
\22\ See Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982)
(setting out multi-factor test to determine whether a noncitizen has
committed a particularly serious crime, including ``the nature of
the conviction, the circumstances and underlying facts of the
conviction, the type of sentence imposed, and, most importantly,
whether the type and circumstances of the crime indicate that the
alien will be a danger to the community''); see also Matter of L-S-,
22 I&N Dec. 645, 649 (BIA 1999) (en banc); Matter of G-G-S-, 26 I&N
Dec. 339, 343-43 (BIA 2014) (``We have held that for an alien who
has not been convicted of an aggravated felony or whose aggravated
felony conviction did not result in an aggregate term of
imprisonment of 5 years or more, it is necessary to examine the
nature of the conviction, the type of sentence imposed, and the
circumstances and underlying facts of the conviction to determine
whether the crime was particularly serious.'').
---------------------------------------------------------------------------
IJs reviewing negative credible fear determinations where a
mandatory bar was applied would, depending on the facts, similarly face
a more complicated task, undermining the efficiency of that process as
well. Applying a mandatory bar often involves a complex legal and
factual inquiry. While asylum officers are trained to gather and
analyze such information to determine the applicability of mandatory
bars in affirmative asylum adjudications, they are currently instructed
to assess whether certain bars may apply in the credible fear screening
context. See USCIS, Credible Fear of Persecution and Torture
Determinations Lesson Plan 42-43 (Feb. 13, 2017). The latter assessment
is designed to identify any mandatory bar issues requiring further
exploration for IJs and the ICE attorneys representing DHS in section
240 removal proceedings, see 6 U.S.C. 252(c), rather than to serve as a
comprehensive analysis upon which a determination on the applicability
of a bar may be based.\23\ Because of the complexity of the inquiry
required to develop a sufficient record upon which to base a decision
to apply certain mandatory bars, such a decision is, in general and
depending on the facts, most appropriately made in the context of a
full merits interview or hearing, whether before an asylum officer or
an IJ, and not in a screening context.
---------------------------------------------------------------------------
\23\ See USCIS, Credible Fear of Persecution and Torture
Determinations Lesson Plan 44 (Feb. 13, 2017) (``The officer must
keep in mind that the applicability of these bars requires further
evaluation that will take place in the full hearing before an
immigration judge if the applicant otherwise has a credible fear of
persecution or torture. In such cases, the officer should consult a
supervisory officer follow procedures on `flagging' such information
for the hearing, and prepare the appropriate paperwork for a
positive credible fear finding.'').
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Furthermore, the Departments recognize that considerations of
procedural fairness counsel against applying mandatory bars that entail
extensive fact-finding during the credible fear screening process. In
[[Page 18094]]
response to the Global Asylum NPRM, a commenter emphasized that each of
the mandatory bars involves intensive legal analysis and asserted that
requiring asylum officers to conduct this analysis during a screening
interview would result in ``the return of many asylum seekers to harm's
way.'' Global Asylum rule, 85 FR 80294. Another commenter expressed the
concern that ``countless asylum-seekers could be erroneously knocked
out of the process based on hasty decisions, misunderstandings, and
limited information.'' Id. at 80295. Upon review and reconsideration,
due to the intricacies of the fact-finding and legal analysis often
required to apply mandatory bars, the Departments now believe that
individuals found to have a credible fear of persecution generally
should be afforded the additional time, procedural protections, and
opportunity to further consult with counsel that the Asylum Merits
process or section 240 removal proceedings provide.
In light of these concerns, the Departments have reconsidered their
position stated in the preamble to the Global Asylum NPRM that any
removal delays resulting from the need to fully consider the mandatory
bars in section 240 proceedings ``serve no purpose'' and amount to
``adjudicatory resources currently expended in vain.'' 85 FR 36272. As
stated above, the Departments now believe that, in many cases,
especially when intensive fact-finding is required, the notion that
consideration of mandatory bars at the credible fear screening stage
would result in elimination of removal delays for individuals subject
to the bars is speculative. Moreover, to the extent consideration of
mandatory bars in section 240 proceedings does result in delays to
removal, the Departments believe in light of the public comments cited
above that such delays do serve important purposes--particularly in
cases with complicated facts--namely, ensuring that the procedures and
forum for determining the applicability of mandatory bars appropriately
account for the complexity of the inquiry and afford noncitizens
potentially subject to the mandatory bars a reasonable and fair
opportunity to contest their applicability. Adjudicatory resources
designed to ensure that noncitizens are not refouled to persecution due
to the erroneous application of a mandatory bar are not expended in
vain. Rather, the expenditure of such resources helps keep the
Departments in compliance with Federal law and international treaty
obligations.
Given the need to preserve the efficiencies Congress intended in
making credible fear screening part of the expedited removal process
and to ensure procedural fairness for those individuals found to have a
significant possibility of establishing eligibility for asylum or
statutory withholding of removal but for the potential applicability of
a mandatory bar, the Departments have decided that the Global Asylum
rule's broad-based application of mandatory bars at the credible fear
screening stage should be rescinded.\24\
---------------------------------------------------------------------------
\24\ In addition to the proposed changes to the DOJ portions of
the regulations in the NPRM related to the application of mandatory
bars in the credible fear process, the IFR also includes a similar
edit to 8 CFR 1003.42(d)(1). Both 8 CFR 1003.42 and 8 CFR 1208.30
relate to IJs' review of asylum officers' credible fear
determinations, and the Departments intend for the regulations to be
consistent with regard to the treatment of mandatory bars in the
credible fear review process.
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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). The Departments
also are re-codifying the treatment of a failure or refusal on the part
of a noncitizen to request IJ review of a negative credible fear
determination as a request for IJ review. See 8 CFR 208.30(g)(1),
1208.30(g)(2)(i). In the Global Asylum rule, the Departments amended
regulations to treat a noncitizen's refusal to indicate whether they
would like IJ review as declining IJ review. See 85 FR 80296. The
Departments explained that treating refusals as requests for review
serves to create unnecessary and undue burdens and that it is
reasonable to require an individual to answer affirmatively when asked
by an asylum officer if they would like IJ review. See id. In this
rule, the Departments are reverting to the pre-existing regulations.
Upon reconsideration, the Departments recognize that there may be
numerous explanations for a noncitizen's refusal or failure to indicate
whether they would like to seek IJ review--and indeed there will be
cases in which a noncitizen wants review but fails to explicitly
indicate it. The Departments now conclude that treating any refusal or
failure to elect review as a request for IJ review, rather than as a
declination of such review, is fairer and better accounts for the range
of explanations for a noncitizen's failure to seek review. Treating
such refusals or failures to elect review as requests for IJ review
appropriately ensures that any noncitizen who may wish to pursue IJ
review (that is, any noncitizen who has not, in fact, declined IJ
review) has the opportunity to do so. A noncitizen who genuinely wishes
to decline review may of course withdraw the request for review before
the IJ; in such a case, the IJ will return the noncitizen's case to DHS
for execution of the expedited removal order. See 8 CFR 1208.30(g)(2).
In comparison to the NPRM, in this rule, the Departments are
amending 8 CFR 208.30(g) to provide, in new 8 CFR 208.30(g)(1)(i), that
USCIS may, in its discretion, reconsider a negative credible fear
determination with which an IJ has concurred, provided the request for
reconsideration is received from the noncitizen or their attorney or
initiated by USCIS no more than 7 days after the concurrence by the IJ,
or prior to the noncitizen's removal, whichever date comes first.
USCIS's reconsideration of any such request is discretionary. After an
IJ has concurred with a negative credible fear determination, DHS can
execute the individual's expedited removal order, promptly removing the
individual from the United States. Under no circumstances, however,
will USCIS accept more than one request for reconsideration.
The Departments carefully considered the public comments received
in response to the NPRM related to the proposal to foreclose any DHS
reconsideration of negative credible fear determinations. Based on
those comments, the Departments decided to retain the existing
regulatory language related to DHS reconsideration, see 8 CFR
208.30(g), but to place reasonable procedural limits on the practice.
Accordingly, the Departments are amending the regulation to include
numerical and time limitations and clarify that DHS may, in its
discretion, reconsider a negative credible fear determination with
which an IJ has concurred. These procedural limitations and
clarifications are necessary to ensure that reconsideration requests to
USCIS do not obstruct the streamlined process that Congress intended in
creating expedited removal. These changes also are consistent with 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 negative credible fear determination
that serves as the check to ensure that noncitizens who have a credible
fear of persecution or torture are not returned based on an erroneous
screening determination by USCIS. 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
[[Page 18095]]
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 statutory
provisions limiting administrative and judicial review and directing
expeditious determinations reflect clear congressional intent that
expedited removal be a truly expedited process.
The numerical and time limitations promulgated in this rule are
consistent with congressional intent and with the purpose of the
current regulation allowing for such requests. The Departments believe
that, over time, the general allowance for reconsideration by USCIS
asylum offices came to be used beyond its original intended scope. Such
requests have not used a formalized process, since there is currently
no formal mechanism for noncitizens to request reconsideration of a
negative credible fear determination before USCIS; instead, they are
entertained on an informal, ad hoc basis whereby individuals contact
USCIS asylum offices with their reconsideration requests after an IJ
has affirmed the negative credible fear determination. This informal,
ad hoc allowance for such requests, including multiple requests, has
proven difficult to manage. To deal with these many requests, USCIS has
had to devote time and resources that could more efficiently be used on
initial credible fear and reasonable fear determinations, affirmative
asylum cases, and now, Asylum Merits interviews with the present rule.
B. Applications for Asylum
If the noncitizen is found to have a credible fear, this IFR
changes the procedure as described above. Under this rule, rather than
referring the individual to an IJ for an adversarial section 240
removal proceeding in the first instance, or, as provided for in a
presently enjoined regulation, asylum-and-withholding-only proceedings
before an IJ,\25\ the individual's asylum application instead may be
retained for further consideration by USCIS through a nonadversarial
interview before an asylum officer. See 8 CFR 208.30(f). 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 can be referred back to
USCIS for further consideration of the individual's asylum claim. See 8
CFR 1003.42, 1208.30(g). To eliminate delays between a positive
credible fear determination and the filing of an application for
asylum, the Departments are amending regulations to provide, in new 8
CFR 208.3(a)(2), 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, will be treated as an ``application for
asylum,'' with the date of service on the individual considered the
date of filing. Every individual who receives a positive credible fear
determination and whose case is retained by USCIS will be considered to
have filed an application for asylum at the time the determination is
served on them. The application will be considered filed or received as
of the service date for purposes of the one-year filing deadline for
asylum, see INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), and for starting
the waiting period for eligibility to file for employment authorization
based upon a pending asylum application, see 8 CFR 208.3(c)(3). The
Departments are amending regulations to provide that this application
for asylum will be considered a complete application for purposes of 8
CFR 208.4(a), 208.7, and 208.9(a) in order to qualify for an interview
and adjudication, and will 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 filing a frivolous asylum application at the time of
the Asylum Merits interview, as provided in new 8 CFR 208.3(a)(2).\26\
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\25\ See Global Asylum rule, 85 FR 80276; supra note 4
(discussing recent regulations and their current status).
\26\ In addition, the Departments are amending 8 CFR 1208.3 and
1208.4 to account for changes made by this rule, including the
provisions that will treat the record of the credible fear
determination as an application for asylum in the circumstances
addressed by the rule. The amendment at 8 CFR 1208.3(c)(3) affects
language that was enacted in the rule entitled ``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. at 81750-51. The
December 16, 2020, rulemaking is preliminarily enjoined. See Order
at 1, Nat'l Immigrant Justice Ctr. v. Exec. Office for Immigration
Review, No. 21-cv-56 (D.D.C. Jan. 14, 2021). This rule makes 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 preliminarily enjoined regulation, will be made through
later rulemakings. See Executive Office of the President, OMB, OIRA,
Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions,
<a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1125-AB15">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1125-AB15</a> (last visited Feb. 28,
2022).
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The Departments will implement these changes to the credible fear
process by having the 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 the credible
fear interview, as 8 CFR 208.30(d) already provides and will continue
to provide under the IFR, the asylum officer will ``elicit all relevant
and useful information'' for the credible fear determination, create a
summary of the material facts presented by the noncitizen during the
interview, review the summary with the noncitizen, and allow the
noncitizen to correct any errors. The record created will contain the
necessary biographical information and sufficient information related
to the noncitizen's fear claim to be considered an application. As a
matter of longstanding practice in processing families through credible
fear screenings, the information captured by the asylum officer during
the credible fear interview will contain information about the
noncitizen's spouse and children, if any, including those who were not
part of the credible fear determination--but under this rule only a
spouse or child who was included in the credible fear determination
issued pursuant to 8 CFR 208.30(c) or who has a pending asylum
application with USCIS pursuant to 8 CFR 208.2(a)(1)(ii) can be
included as a dependent on the request for asylum.\27\ See 8 CFR
208.3(a)(2). Any spouse or child included as a dependent on the
credible fear determination may request to file a separate asylum
application as a
[[Page 18096]]
principal applicant with USCIS at any time while the principal's asylum
application is pending with USCIS. See 8 CFR 208.3(a)(2). A copy of the
principal applicant's application for asylum--the record of the
credible fear determination, including the asylum officer's notes from
the interview, the summary of material facts, and other materials upon
which the determination was based--will be provided to the noncitizen
at the time that the positive credible fear determination is served.
See 8 CFR 208.30(f). As provided in new 8 CFR 208.4(b)(2), the
noncitizen may subsequently amend or correct the biographic or credible
fear information in the Form I-870, Record of Determination/Credible
Fear Worksheet, or supplement the information collected during the
process that concluded with a positive credible fear determination, up
until 7 days prior to the scheduled Asylum Merits interview before a
USCIS asylum officer, or for documents submitted by mail, postmarked no
later than 10 days before the scheduled Asylum Merits interview. The
asylum officer, finding good cause in an exercise of USCIS discretion,
may consider amendments or supplements submitted after the 7- or 10-day
submission deadline or may grant the applicant an extension of time
during which the applicant may submit additional evidence, subject to
the limitation on extensions described in 8 CFR 208.9(e)(2). In new 8
CFR 208.9(e)(2), this rule further provides that, in the absence of
exigent circumstances, an asylum officer shall not grant any extensions
for submission of additional evidence that would prevent the Asylum
Merits decision from being issued to the applicant within 60 days of
service of the positive credible fear determination. The Departments
believe that such limitations are necessary to ensure that the process
remains expeditious while maintaining fairness.
---------------------------------------------------------------------------
\27\ While only a spouse or child 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 as a dependent on the subsequent asylum application under
this 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 section 240 removal
proceedings on the asylum application of a principal asylum
applicant who is in such section 240 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 not be approved.
---------------------------------------------------------------------------
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 ascertain the basis of the noncitizen's
request for protection. Under this rule, 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 expeditiously beginning the
waiting period for employment authorization eligibility.
C. Proceedings for Further Consideration of the Application for Asylum
by USCIS Through Asylum Merits Interview for Noncitizens With Credible
Fear
In this IFR, consistent with the NPRM, the Departments are amending
regulations to authorize USCIS asylum officers to conduct Asylum Merits
interviews for individuals whose cases are retained for further
consideration by USCIS following a positive credible fear determination
or returned to USCIS if an IJ vacates an asylum officer's negative
credible fear finding.\28\ The Departments carefully considered the
comments received in response to the NPRM focused on timelines related
to Asylum Merits interviews, and, in this IFR, are including regulatory
language clarifying timelines for scheduling hearings and providing
asylum decisions.
---------------------------------------------------------------------------
\28\ In addition to the proposed changes to the DHS portion of
the regulations in the NPRM, the IFR also includes a similar edit to
8 CFR 1003.42(d)(1). This edit is intended to ensure consistency
with 8 CFR 1003.42 and the proposed edits to 8 CFR 1208.30(g)(2) so
that both provisions properly direct that a case where an IJ vacates
a negative credible fear finding will be referred back to USCIS as
intended by both the NPRM and the IFR.
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As provided in 8 CFR 208.9(a)(1), USCIS will not schedule an Asylum
Merits interview for further consideration of an asylum application
following a positive credible fear determination fewer than 21 days
after the noncitizen has been served a record of the positive credible
fear determination, unless the applicant requests in writing that an
interview be scheduled sooner. The asylum officer shall conduct the
interview within 45 days of the date that the positive credible fear
determination is served on the noncitizen--i.e., the date the asylum
application is considered filed, see 8 CFR 208.3(a)(2)--subject to the
need to reschedule an interview due to exigent circumstances. See 8 CFR
208.9(a)(1). These timelines are consistent with the INA, which
provides that, ``in the absence of exceptional circumstances, the
initial interview or hearing on the asylum application shall commence
not later than 45 days after the date an application is filed.'' INA
208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii).
The nonadversarial Asylum Merits interview process will provide
several procedural safeguards, such as the following: (1) The applicant
may have counsel or a representative present, may present witnesses,
and may submit affidavits of witnesses and other evidence, 8 CFR
208.9(b); (2) the applicant or applicant's representative will have an
opportunity to make a statement or comment on the evidence presented
and the representative will also have the opportunity to ask follow-up
questions of the applicant and any witness, 8 CFR 208.9(d)(1); (3) a
verbatim transcript of the interview will be included in the referral
package to the IJ, with a copy also provided to the noncitizen, 8 CFR
208.9(f)(2), 1240.17(c); (4) an asylum officer will arrange for the
assistance of an interpreter if the applicant is unable to proceed
effectively in English, and if a USCIS interpreter is unavailable,
USCIS will attribute any resulting delay to USCIS for purposes of
eligibility for employment authorization, 8 CFR 208.9(g); and (5) the
failure of a noncitizen to appear for an interview may result in the
referral of the noncitizen to section 240 removal proceedings before an
IJ, 8 CFR 208.10(a)(1)(iii), unless USCIS, in its own discretion,
excuses the failure to appear, 8 CFR 208.10(b)(1). The Departments
believe that these procedural safeguards will enhance efficiency and
further the expeditious adjudication of noncitizens' asylum claims,
while at the same time balancing due process and fairness concerns. The
protection claims considered in Asylum Merits interviews will be
adjudicated in a separate queue, apart from adjudications of
affirmative asylum applications filed directly with USCIS.
Allowing the cases of individuals who receive a positive credible
fear determination to remain with USCIS for the Asylum Merits
interview, rather than initially referring the case to an IJ for an
adversarial section 240 removal proceeding or, as provided for in a
presently enjoined regulation, for an asylum-and-withholding-only
proceeding,\29\ will capitalize on the investment of time and expertise
that USCIS has already made and, for the subset of cases in which
asylum is granted by USCIS, save investment of time and resources by
EOIR and ICE. It will 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. The Asylum Merits
interview process affords noncitizens a fair opportunity to present
their claims. In addition, noncitizens
[[Page 18097]]
who are not granted asylum will be referred to an immigration court for
a streamlined section 240 removal proceeding, which means that an IJ
will consider their asylum and, as necessary, statutory withholding and
CAT protection claims. Overall, these ample procedural safeguards will
ensure due process, respect human dignity, and promote equity.
---------------------------------------------------------------------------
\29\ See Global Asylum rule, 85 FR 80276; supra note 4
(discussing recent regulations and their current status).
---------------------------------------------------------------------------
Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii),
authorizes a procedure for ``further consideration'' of asylum
applications that is separate from section 240 removal proceedings. As
the Department of Justice recognized over two decades ago, ``the
statute is silent as to the procedures for those who . . . demonstrate
a credible fear of persecution.'' Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 10312, 10320 (Mar. 6, 1997)
(interim rule). It ``does not specify how or by whom this further
consideration should be conducted.'' 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).
By not specifying what ``further consideration'' entails, the
statute leaves it to the Departments to determine. Under the familiar
Chevron framework, it is well-settled that such ``ambiguity constitutes
an implicit delegation from Congress to the agency to fill in the
statutory gaps.'' FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 159 (2000) (citing Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984)); see also Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612, 1629 (2018) (noting that Chevron rests
on ``the premise that a statutory ambiguity represents an implicit
delegation to an agency to interpret a statute which it administers''
(quotation marks and citation omitted)). An agency may exercise its
delegated authority to plug the gap with any ``reasonable
interpretation'' of the statute. Chevron, 467 U.S. at 844.
By its terms, the phrase ``further consideration'' is open-ended.
The fact that Congress did not specify the nature of the proceedings
for those found to have a credible fear, see INA 235(b)(1)(B)(ii), 8
U.S.C. 1225(b)(1)(B)(ii), contrasts starkly with two other provisions
in the same section that expressly require or deny section 240 removal
proceedings for certain other classes of noncitizens. In one provision,
INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A), Congress provided that an
applicant for admission who ``is not clearly and beyond a doubt
entitled to be admitted'' must be ``detained for a proceeding under
[INA 240].'' And in another, INA 235(a)(2), 8 U.S.C. 1225(a)(2),
Congress provided that ``[i]n no case may a stowaway be considered . .
. eligible for a hearing under [INA 240].'' This shows that Congress
knew how to specifically require or prohibit referral to a section 240
removal proceeding when it wanted to do so. ``Where 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.''
Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021)
(quotation marks and citation omitted).
The D.C. Circuit 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 Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009) (quotation
marks and citation omitted). That Congress's silence in section
235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), permits the
Departments discretion to establish procedures for ``further
consideration'' is reinforced by the fact that the noncitizens whom DHS
has elected to process 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).
If, following an Asylum Merits interview described in this IFR,
USCIS grants asylum, the individual may be allowed to remain in the
United States indefinitely with the status of asylee and eventually may
apply for lawful permanent residence. See INA 208(c)(1), 209(b), 8
U.S.C. 1158(c)(1), 1159(b). If asylum is not granted, the asylum
officer will refer the application, together with the appropriate
charging document and the record of the Asylum Merits interview, for
adjudication in streamlined section 240 removal proceedings before an
IJ. See 8 CFR 208.14(c)(1), 1240.17(a).
The Departments carefully considered the public comments received
in response to the NPRM and reconsidered the proposals outlined in the
NPRM related to having USCIS asylum officers make final decisions
regarding statutory withholding of removal and CAT protection claims
and issue removal orders. See 86 FR 46917-19. In this IFR, DHS is
amending 8 CFR 208.9(b) to provide that, in the case of a noncitizen
whose case is retained by or referred to USCIS for further
consideration through an Asylum Merits interview, an asylum officer
will also elicit all relevant and useful information bearing on the
applicant's eligibility for statutory withholding of removal or CAT
protection. This IFR further provides in 8 CFR 208.16(a) and (c) that
if the asylum application is not granted, the asylum officer will
determine whether the noncitizen is eligible for statutory withholding
of removal under 8 CFR 208.16(b) or CAT protection under 8 CFR
208.16(c). Asylum officers will not issue orders of removal to
applicants who are not granted asylum as proposed in the NPRM, but
rather will refer applicants who are not granted asylum to the
immigration court for consideration of their protection claims in
streamlined section 240 removal proceedings before an IJ. See 8 CFR
208.14(c)(1), 208.16(a). USCIS will not issue a final decision on an
applicant's request for statutory withholding of removal or CAT
protection. Rather, pursuant to new 8 CFR 1240.17(d), (f)(2)(i)(B), and
(i)(2), if an asylum officer does not grant asylum but determines the
noncitizen is eligible for statutory withholding of removal or CAT
protection and the IJ does not grant asylum, the IJ will issue a
removal order and, subject to certain exceptions, give effect to
USCIS's determination.
If the asylum application includes a dependent who has not filed a
separate application, the asylum officer will, as appropriate and prior
to referring the family to streamlined section 240 proceedings before
an IJ, elicit information sufficient to determine whether there is a
significant possibility that the applicant's dependent has experienced
or fears harm that would be an independent basis for protection in the
event that the principal applicant is not granted asylum. See 8 CFR
208.9(b), (i). If a spouse or child who was included in the principal
applicant's request for asylum does not separately file an asylum
application that is adjudicated by USCIS, the principal's asylum
application will be deemed by EOIR to satisfy EOIR's application filing
requirements for the spouse or child as principal applicants. See 8 CFR
208.3(a)(2), 1208.3(a)(2). This provision will allow any spouse or
child in the streamlined procedure to exercise their right to seek
protection on an independent basis without the need for delaying the
proceedings to allow for the preparation and filing of an I-589,
Application for Asylum and for Withholding of Removal. The
[[Page 18098]]
Departments have determined that these changes meet the goals of this
rule, such as improving efficiency while allowing noncitizens to
receive a full and fair opportunity to be heard, and are also
responsive to commenters' concerns raised in response to the NPRM, as
detailed in Sections IV.D.5 and 6 of this preamble. While USCIS will
not make final decisions regarding statutory withholding of removal and
CAT protection claims and issue removal orders, it is appropriate for
USCIS to make eligibility determinations regarding statutory
withholding of removal and protection under the CAT. As a threshold
issue, applications for asylum, statutory withholding of removal, and
protection under the CAT are all factually linked. While the legal
standards and requirements differ among the forms of relief and
protection, the relevant applications will substantially share the same
set of operative facts that an asylum officer would have already
elicited, including through evidence and testimony, in the
nonadversarial Asylum Merits interview. Moreover, asylum officers
receive extensive training, and develop extensive expertise, in
assessing claims and country conditions, and are qualified to determine
whether an applicant will face harm in the proposed country. See INA
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b). Asylum officers
also receive training on the standards and eligibility issues related
to determinations for statutory withholding of removal and CAT
protection in order to conduct credible fear screening interviews and
make appropriate credible fear determinations under 8 CFR 208.30(e).
See 8 CFR 208.1(b).
While asylum officers will also not make final decisions regarding
a dependent's eligibility for asylum, statutory withholding of removal,
and CAT protection claims if the dependent has not received a prior
separate positive credible fear determination or filed a separate
principal asylum application with USCIS, it is appropriate for asylum
officers to elicit sufficient information regarding each dependent's
eligibility for protection in order to allow for those claims to be on
the record and appropriately considered should the family be placed
into streamlined section 240 removal proceedings. In many cases, the
family members will likely substantially share the same set of
operative facts that an asylum officer would have already elicited from
the principal applicant, including through evidence and testimony,
during the same nonadversarial Asylum Merits interview. Accordingly,
the additional questioning that will ordinarily be needed to develop
the record enough to facilitate an IJ's adjudication of any claims
through streamlined section 240 proceedings is expected to be modest.
Moreover, any dependent who wishes to be adjudicated as a principal
applicant by USCIS may file a separate application with USCIS prior to
referral to removal proceedings.
Where a noncitizen's asylum application is not granted by USCIS,
automatic referral to streamlined section 240 proceedings--as further
discussed in Section III.D of this preamble--ensures that the
application of the principal applicant and any family members may be
reviewed by the IJ. In the streamlined section 240 proceedings, the IJ
will adjudicate de novo the noncitizen's and any family members'
applications for asylum and, if USCIS determined them ineligible for
statutory withholding of removal or protection under the CAT, such
claims as well. Statutory withholding of removal and CAT protection are
nondiscretionary forms of protection, the granting of which is
mandatory upon a showing of eligibility. See, e.g., Myrie v. Att'y Gen.
United States, 855 F.3d 509, 515-16 (3d Cir. 2017); Benitez Ramos v.
Holder, 589 F.3d 426, 431 (7th Cir. 2009). Because an asylum officer
does not issue an order of removal under the IFR, it is appropriate to
wait until the IJ enters the order of removal before generally giving
effect to USCIS's statutory withholding of removal and CAT protection
eligibility determinations. See Matter of I-S- & C-S-, 24 I&N Dec. 432,
433 (BIA 2008).
D. Streamlined Section 240 Removal Proceedings Before the Immigration
Judge
Upon careful consideration of the comments received in response to
the NPRM, as discussed in Section IV of this preamble, this IFR does
not adopt the IJ review proceedings proposed in the NPRM. See 86 FR
46946-47 (8 CFR 1003.48, 1208.2(c) (proposed)). Instead, the
Departments will place noncitizens whose applications for asylum are
not granted by USCIS, as well as any spouse or children included on the
noncitizen's application, in section 240 proceedings that will be
streamlined as provided in new 8 CFR 1240.17. See 8 CFR 1240.17(a),
(b). As provided in new 8 CFR 1240.17(a), IJs must conduct these
proceedings in accordance with the procedures and requirements set
forth in section 208 of the Act, 8 U.S.C. 1158.
Currently, further consideration of an asylum application by an
individual in expedited removal is done through section 240
proceedings. See, e.g., 8 CFR 208.30(f) (2020); \30\ 8 CFR part 1240,
subpart A (2020). Such proceedings follow issuance of an NTA, which
informs the noncitizen of DHS's charges of inadmissibility or
removability, INA 239(a)(1), 8 U.S.C. 1229(a)(1), and these proceedings
provide an opportunity for the noncitizen to make his or her case to an
IJ, INA 240(a)(1), 8 U.S.C. 1229a(a)(1). Parties in section 240 removal
proceedings have a wide range of well-established rights, including the
following: The right to representation at no expense to the Government,
INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); a reasonable opportunity to
examine evidence, present evidence, and cross-examine witnesses, INA
240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B); the right to seek various forms
of relief, 8 CFR 1240.1(a)(1)(ii)-(iii); the right to file a motion to
continue, 8 CFR 1003.29; and the right to appeal specified decisions to
the BIA, 8 CFR 1003.3(a), 1003.38(a), and to later file a petition for
review in the appropriate U.S. Court of Appeals, INA 242, 8 U.S.C.
1252.
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\30\ The Global Asylum rule would have revised the process,
placing such noncitizens into asylum-and-withholding-only
proceedings instead of section 240 proceedings, see 85 FR 80276, but
it was enjoined, see supra note 4.
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Under the IFR, USCIS will have authority to adjudicate asylum
claims brought by noncitizens subject to expedited removal and found to
have a credible fear of persecution or torture rather than immediately
referring such cases for adjudication by IJs in section 240 removal
proceedings. The Departments have determined that noncitizens who
subsequently are not granted asylum by USCIS should be referred to
section 240 removal proceedings that will be streamlined as described
in new 8 CFR 1240.17. The well-established rights that apply in section
240 proceedings will continue to apply during the 240 proceedings
described in new 8 CFR 1240.17, but the latter will include new
procedures designed to streamline the process while continuing to
ensure fairness.
The Departments believe that these cases can be adjudicated more
expeditiously than other cases in section 240 removal proceedings.
Unlike other cases, noncitizens subject to this IFR will have had a
full opportunity to present their protection claims to an asylum
officer. Moreover, as established in new 8 CFR 1240.17(c) and (e), IJs
and parties in any subsequent streamlined section 240 removal
proceedings will have the benefit of a fully developed record and
[[Page 18099]]
decision prepared by USCIS.\31\ Because the USCIS Asylum Merits
interview will create a record that includes testimony and documentary
evidence, the Departments believe that less time will be needed in
immigration court proceedings to build the evidentiary record. Thus,
cases will be resolved more expeditiously before the IJ. The
Departments recognize that, in some instances, IJs may need to take
additional testimony and evidence--beyond what is contained in the
USCIS record--to fully develop the record. See, e.g., 8 CFR
1240.17(f)(4)(iii). By providing IJs with the ability to rely upon the
previously developed record in most cases, while preserving the
flexibility for IJs to take new evidence and testimony when warranted,
without the additional motions practice contemplated by the NPRM's
provisions, the IFR creates more streamlined, efficient adjudications
overall. Accordingly, the Departments believe that it is possible to
achieve the purposes of the NPRM--to increase efficiency and maintain
procedural fairness--by making procedural changes to streamline
existing 240 proceedings instead of establishing the IJ review
proceedings proposed under the NPRM.
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\31\ New 8 CFR 1240.17(c) provides that DHS will serve the
record of proceedings for the Asylum Merits interview and the asylum
officer's written decision on the respondent and on the immigration
court no later than the date of the master calendar hearing; it
further provides that, in the exceptional case in which service is
not effectuated by that date, the schedule of proceedings pursuant
to new 8 CFR 1240.17(f) will be delayed until service is
effectuated.
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In keeping with this goal, the IFR provides that these section 240
proceedings will be subject to particular procedural requirements
designed to streamline the overall process and take advantage of the
record created by the asylum officer while still providing noncitizens
with a full and fair opportunity to present testimony and evidence in
support of their claims. Where the IJ would not be able to take
advantage of that record, the streamlining measures do not apply. Thus,
new 8 CFR 1240.17(k) exempts certain cases from the streamlined
process, including, for example, where the respondent has produced
evidence of prima facie eligibility for relief or protection other than
asylum, statutory withholding of removal, CAT protection, or voluntary
departure, 8 CFR 1240.17(k)(2); where the respondent has raised a
substantial defense to the removal charge,\32\ 8 CFR 1240.17(k)(3); or
where the designated country of removal is different from the one that
the asylum officer considered in adjudicating the noncitizen's
application for asylum or protection, 8 CFR 1240.17(k)(4).\33\ New 8
CFR 1240.17(k) makes other exceptions for certain vulnerable
noncitizens and it exempts cases that have been reopened or remanded.
See 8 CFR 1240.17(k)(1), (5), (6). Accordingly, with these exceptions,
the Departments believe that these proceedings can be expedited given
the limited forms of relief and protection that will need to be
adjudicated by the IJ and given that the IJ and the parties will
benefit from the record developed before USCIS.
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\32\ As stated in note 8, supra, the rule does not specify that
a particular type of evidence is required in order to show prima
facie eligibility for relief, and such evidence could include
testimonial evidence as well as documentary evidence.
\33\ Under this IFR, a noncitizen's accompanying spouse and
children may be included in the request for asylum if they were
included in the credible fear determination. See 8 CFR 208.3(a)(2),
208.30(c). Where a noncitizen is accompanied by a spouse or
children, and the noncitizen is found to have a credible fear of
persecution or torture, the family has the choice to have the spouse
and children be included as dependents on the asylum application or
to separately seek asylum as principal applicants. See 8 CFR
208.3(a)(2), 208.30(c). Should the family choose to have the spouse
and children proceed solely as dependents, the asylum officer will,
as appropriate, elicit sufficient information to determine whether
there is a significant possibility that the applicant's spouse or
child has experienced or fears harm that would be an independent
basis for protection in the event that the principal applicant is
not granted asylum prior to referring the family to the IJ for a
hearing. See 8 CFR 208.9(b), (i). If a spouse or child who was
included in the principal applicant's request for asylum does not
separately file an asylum application that is adjudicated by USCIS,
the principal's asylum application will be deemed by EOIR to satisfy
EOIR's application filing requirements for the spouse or child as
principal applicants. See 8 CFR 1208.3(a)(2).
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The IFR provides additional procedures that will contribute to
efficient adjudication. As provided in revised 8 CFR 208.3(a)(2) and 8
CFR 1208.3(a)(2) and new 8 CFR 1240.17(e), the IFR treats the record
underlying the positive credible fear determination as the noncitizen's
asylum application, as well as an asylum application for any spouse or
child included as a dependent on the application for purposes of EOIR's
filing requirements if USCIS does not grant the principal applicant's
application and if the spouse or child does not separately file an
asylum application that is adjudicated by USCIS. This procedure
obviates the need for the noncitizen and any dependent to prepare and
file a new application before the IJ. IJs are also required to hold
status conferences to identify and narrow issues under new 8 CFR
1240.17(f)(1), (2). The USCIS Asylum Merits interview record and
decision will permit the parties and the IJ to identify any errors or
omissions in the record, narrow issues, and provide any additional
bases for asylum or related protection. Specifically, the rule, as
provided in new 8 CFR 1240.17(f)(2) and (3), imposes obligations on the
parties to identify and narrow the issues prior to the merits hearing,
although the obligations on the noncitizen depend on whether the
noncitizen has representation. As provided by new 8 CFR
1240.17(f)(2)(ii)(A), DHS must state whether it intends to rest on the
existing record, waive cross-examination of the respondent, otherwise
participate in the proceedings before the IJ, or waive appeal in the
event the IJ grants protection. This position may be retracted by DHS,
orally or in writing, prior to the issuance of the IJ's decision, if
DHS seeks consideration of evidence pursuant to the standard laid out
in 8 CFR 1240.17(g)(2). See 8 CFR 1240.17(f)(2)(ii)(C). Moreover, if
DHS indicates that it will participate in the case, at the status
conference or via a subsequent written statement it shall state its
position on the respondent's claim(s); state which elements of the
respondent's claim(s) it is contesting and which facts it is disputing,
if any, and provide an explanation of its position; identify any
witnesses it intends to call; provide any additional non-rebuttal or
non-impeachment evidence; and state the status of the identity, law
enforcement, or security investigations or examinations required by
section 208(d)(5)(A)(i) of the Act, 8 U.S.C. 1158(d)(5)(A)(i), and 8
CFR 1003.47. See 8 CFR 1240.17(f)(2)(ii), (f)(3). If DHS does not
timely respond, either at the status conference or in its written
statement, to one or more of the respondent's arguments or claimed
bases for asylum, including which arguments raised by the respondent
DHS is disputing and which facts it is contesting, the IJ has authority
to deem those arguments or claims unopposed, provided, however, that
DHS may respond at the merits hearing to any arguments or claimed bases
for asylum first advanced by the respondent after the status
conference. See 8 CFR 1240.17(f)(3)(i). The IFR creates additional
efficiencies by permitting IJs to decide applications on the
documentary record in certain circumstances, including where neither
party has elected to present testimony and DHS has not elected to
cross-examine the noncitizen or where the IJ determines that the
application can be granted without further testimony and DHS declines
to cross-examine the noncitizen. See 8 CFR 1240.17(f)(4)(i), (ii).
Notwithstanding these provisions,
[[Page 18100]]
however, the IJ shall hold a hearing if the IJ decides that a hearing
is necessary to fulfill the IJ's duty to fully develop the record. See
id.
The IFR also gives appropriate effect to the asylum officer's
determination of a noncitizen's eligibility for statutory withholding
of removal or protection under the CAT. This serves to increase
efficiency and provides a safeguard where an asylum officer has already
found that the noncitizen could be subject to persecution or torture if
removed. In general, in cases where the IJ denies asylum and issues a
removal order, the IJ will give effect to the asylum officer's
determination of eligibility for statutory withholding of removal or
protection under the CAT; the IJ may not sua sponte review the asylum
officer's determination. See 8 CFR 1240.17(d), (f)(2)(i)(B), (i)(2).
However, these provisions account for the possibility that DHS may
submit evidence or testimony that specifically pertains to the
respondent and that was not included in the record of proceedings for
the USCIS Asylum Merits interview in order to demonstrate that the
respondent is not eligible for the protection(s) the asylum officer
determined. See id. In such a case, the IJ will, based on the review of
this new evidence or testimony, make a separate determination regarding
the noncitizen's eligibility for statutory withholding of removal or
protection under the CAT, as relevant.
1. Schedule of Proceedings
The Departments are imposing procedural adjudication time frames
and limitations on continuances and filing extensions during
streamlined section 240 removal proceedings under this IFR. The
Departments believe that these time frames and limitations are
justified given both the streamlining procedures discussed above and
the fact that such cases will come to the IJ with a complete asylum
application and following a nonadversarial interview before an asylum
officer at which a comprehensive record, including a verbatim
transcript and decision, has been assembled.
Under new 8 CFR 1240.17, the Departments will impose procedural
time frames on IJs with respect to their hearing schedules.
Specifically, an IJ will hold a master calendar hearing 30 days after
service of the NTA or, if a hearing cannot be held on that date, on the
next available date no later than 35 days after service. As provided by
new 8 CFR 1240.17(f)(1) and (2), the IJ will hold a status conference
30 days after the master calendar hearing or, if a status conference
cannot be held on that date, on the next available date no later than
35 days after the master calendar hearing, followed by a merits
hearing, if necessary, 60 days after the master calendar hearing or, if
a hearing cannot be held on that date, on the next available date no
later than 65 days after the master calendar hearing.\34\ If needed,
under new 8 CFR 1240.17(f)(4)(iii), the IJ may hold a subsequent merits
hearing to resolve any lingering issues or complete testimony no later
than 30 days after the initial merits hearing. As further discussed
below, the IJ may grant continuances and filing extensions under
specified standards. See 8 CFR 1240.17(h). Finally, under 8 CFR
1240.17(f)(5), whenever practical, the IJ shall issue an oral decision
on the date of the final merits hearing or, if the IJ determines that
no such hearing is warranted, no more than 30 days after the status
conference; and where issuance of an oral decision on such date is not
practicable, the IJ shall issue an oral or written decision as soon as
practicable, no later than 45 days after the final merits hearing or,
if the IJ concludes that no hearing is necessary, no later than 75 days
after the status conference.\35\
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\34\ Because the timing of the merits hearing is tied to the
date that the status conference occurs, the Departments note that
any delay of the status conference will necessarily result in a
corresponding delay of the merits hearing. In other words, if the
status conference occurs 45 days after the master calendar hearing
rather than 30-35 days after it because, for example, the respondent
requested a continuance to seek counsel or the immigration court had
to close on the original date of the status conference, see 8 CFR
1240.17(h), the merits hearing would still occur 30-35 days after
the status conference--on days 75-80.
\35\ In other words, where it is not practicable to issue an
oral decision on the date of the final merits hearing, the
immigration judge has up to 45 days to issue a decision. Where an IJ
has determined that a merits hearing is not necessary, and it is not
practicable to issue a decision within 30 days after the status
conference, the IJ has up to an additional 45 days within which to
issue a decision.
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The combined effect of these provisions should fully achieve the
NPRM's efficiency goals while allowing noncitizens to receive a full
and fair hearing in streamlined section 240 removal proceedings rather
than through the IJ review process contemplated by the NPRM. The well-
established rights that apply in ordinary section 240 proceedings will
continue to apply during the streamlined section 240 proceedings
described in new 8 CFR 1240.17, but certain new procedures will
streamline the process by taking advantage of the record created by the
asylum officer and ensure a prompt, efficient, and fair hearing on the
respondent's claim.
a. Pre-Hearing Procedures
In order to best prepare the case for adjudication, new 8 CFR
1240.17(f) establishes initial procedures to ensure that the IJ has a
complete picture of the case and the relevant issues prior to
conducting any merits hearing that may be needed. As provided in new 8
CFR 1240.17(f)(1), at the master calendar hearing, the IJ will perform
the functions required by 8 CFR 1240.10(a), including advising the
respondent of the right to be represented, at no expense to the
Government, by counsel of the respondent's own choosing. See 8 CFR
1240.17(f)(1). Additionally, the IJ will advise as to the nature of the
streamlined section 240 removal proceedings, including that the
respondent has pending applications for asylum, statutory withholding
of removal, and withholding or deferral of removal under the CAT, as
appropriate; that the respondent has the right to testify, call
witnesses, and present evidence in support of these applications; and
of the deadlines that govern the submission of evidence. See id.
Finally, except where the noncitizen is ordered removed in absentia, at
the conclusion of the master calendar hearing the IJ will schedule a
status conference to take place 30 days after the master calendar
hearing or, if necessary, on the next available hearing date no later
than 35 days after the master calendar hearing. See id. The IJ will
also advise as to the requirements for the status conference. See id.
The adjournment of the case until the status conference will not be
considered a noncitizen-requested continuance under new 8 CFR
1240.17(h)(2). See id.
The purpose of the status conference is to take pleadings, identify
and narrow any issues, and determine whether the case can be decided on
the documentary record alone or, if a merits hearing before the IJ is
needed, to ready the case for such a hearing. See 8 CFR 1240.17(f)(2).
In general, the Departments expect that the parties will use the record
of the Asylum Merits interview as a tool to prepare the proceeding for
the IJ's adjudication. See id.
At the status conference, the noncitizen must indicate, orally or
in writing, whether the noncitizen intends to contest removal or seek
any protection(s) for which the asylum officer did not determine the
noncitizen eligible. See 8 CFR 1240.17(f)(2)(i). The IJ will also
advise the noncitizen that the respondent has the right to testify,
call witnesses, and present evidence in support of the noncitizen's
application; and of the deadlines that govern the
[[Page 18101]]
submission of evidence. If a noncitizen expresses an intent to contest
removal or seek protection for which the asylum officer did not
determine the noncitizen eligible, the noncitizen must, orally or in
writing: (1) Indicate whether the noncitizen plans to testify before
the IJ; (2) identify any witnesses the noncitizen plans to call at the
merits hearing; and (3) provide any additional documentation in support
of the applications. See 8 CFR 1240.17(f)(2)(i)(A). A represented
noncitizen is further required to: (4) Describe any alleged errors or
omissions in the asylum officer's decision or the record of proceedings
before the asylum officer; (5) articulate or confirm any additional
bases for asylum and related protection, whether or not they were
presented or developed before the asylum officer; and (6) state any
additional requested forms of relief or protection. If a noncitizen is
unrepresented, the IJ will ask questions and guide the proceedings in
order to elicit relevant information from the noncitizen and otherwise
fully develop the record. See Quintero v. Garland, 998 F.3d 612, 623-30
(4th Cir. 2021) (describing the general duty of the IJ to develop the
record, which is ``especially crucial in cases involving unrepresented
noncitizens''); see also Matter of S-M-J-, 21 I&N Dec. 722, 723-24, 729
(BIA 1997) (en banc) (also describing the general duty of the IJ to
develop the record). If a noncitizen does not express an intent to
contest removal or seek protection for which the asylum officer did not
determine the noncitizen eligible, the IJ will order the noncitizen
removed and will not conduct further proceedings. See 8 CFR
1240.17(f)(2)(i)(B). In such cases, where the asylum officer determined
the noncitizen eligible for statutory withholding of removal or
protection under the CAT, the IJ will issue a removal order and will
give effect to that protection, unless DHS makes a prima facie
showing--through evidence that specifically pertains to the noncitizen
and that was not included in the record of proceedings for the USCIS
Asylum Merits interview--that the noncitizen is not eligible for such
protection. See id.
For its part, DHS must indicate at the status conference, orally or
in writing, whether it intends to: (1) Rest on the record; (2) waive
cross-examination of the noncitizen; (3) otherwise participate in the
case; or (4) waive appeal if the IJ decides to grant the noncitizen's
application. See 8 CFR 1240.17(f)(2)(ii). If DHS indicates that it will
participate in the case, it then must, orally or in writing: (1) State
its position on each of the noncitizen's claimed grounds for asylum or
related protection; (2) state which elements of the noncitizen's claim
for asylum or related protection it is contesting and which facts it is
disputing, if any, and provide an explanation of its position; (3)
identify any witnesses it intends to call at any merits hearing; (4)
provide any additional non-rebuttal or non-impeachment evidence; and
(5) state whether the appropriate identity, law enforcement, or
security investigations or examinations have been completed. See id.
DHS can provide this information at the status conference or by
submitting a written statement under 8 CFR 1240.17(f)(3)(i) as outlined
below. See id.
At the status conference, as further detailed below, the IJ will
determine whether further proceedings are warranted; if they are, the
IJ will schedule the merits hearing to take place 60 days after the
master calendar hearing or, if the merits hearing cannot be held on
that date, on the next available date no later than 65 days after the
master calendar hearing. See 8 CFR 1240.17(f)(2). The IJ may also
schedule additional status conferences prior to any merits hearing if
the IJ determines such conferences will contribute to efficient
resolution of the case. See id.
After the adjournment of the status conference, where DHS intends
to participate in a case, DHS is required to file a written statement
providing information required under 8 CFR 1240.17(f)(2)(ii) but that
DHS did not provide at the status conference, as well as any other
relevant information or argument in response to the noncitizen's
submissions. See 8 CFR 1240.17(f)(3)(i). DHS's written statement is due
no later than 15 days prior to the scheduled merits hearing or, if the
IJ determines that no such hearing is warranted, no later than 15 days
following the status conference. See id. The noncitizen may also submit
a supplemental filing after the status conference to reply to any
statement submitted by DHS, identify any additional witnesses, and
provide any additional documentation in support of the respondent's
application. See 8 CFR 1240.17(f)(3)(ii). Any such filing is due no
later than 5 days prior to the scheduled merits hearing or, if the IJ
determines that no such hearing is warranted, no later than 25 days
following the status conference. See id.
The IFR's efficiencies and timeline are predicated on the parties'
participation in the status conference and other procedural steps
needed to narrow the issues and prepare the case for adjudication in
advance of any merits hearing before an IJ. This rule helps ``ensure
efficient adjudication by focusing the immigration courts' limited
resources on the issues that the parties actually contest.'' Matter of
A-C-A-A-, 28 I&N Dec. 351, 352 (A.G. 2021). In this regard, as
described above, DHS ICE Office of the Principal Legal Advisor
attorneys representing DHS in immigration court (``DHS attorneys'')
play a critical role in narrowing the issues during section 240 removal
proceedings. The Departments believe that the rule's requirements will
increase the overall efficiency of case adjudications and help parties
better prepare their respective positions before the IJ.
b. Merits Hearing(s)
Based on the parties' statements and submissions at the status
conference, the IJ will determine whether the noncitizen's application
may be decided on the documentary record without a merits hearing or
whether a merits hearing is required. See 8 CFR 1240.17(f)(4)(i)-(iii).
Specifically, an IJ may decline to hold a merits hearing and decide the
application on the documentary record if: (1) DHS has indicated that it
waives cross-examination and neither the noncitizen nor DHS has
requested to present testimony under the pre-hearing procedures
described above, see 8 CFR 1240.17(f)(4)(i); or (2) the noncitizen has
timely requested to present testimony and DHS has indicated that it
waives cross-examination and does not intend to present testimony or
produce evidence, and the IJ concludes that the asylum application can
be granted without further testimony, see 8 CFR 1240.17(f)(4)(ii).
Notwithstanding these provisions, the IJ shall hold a hearing if the IJ
decides that a hearing is necessary to fulfill the IJ's duty to fully
develop the record. See 8 CFR 1240.17(f)(4)(i), (ii).\36\
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\36\ The Departments emphasize that permitting the IJ to issue
decisions in some cases without holding a hearing does not undermine
the fairness or integrity of asylum proceedings because the
respondent will already have testified, under oath, before the
asylum officer. The IFR's framework only allows for the IJ to render
a decision without scheduling a hearing in a manner that would not
prejudice the noncitizen or undermine the integrity of asylum
proceedings.
In Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), the BIA held that
``[a]t a minimum . . . the regulations require that an applicant for
asylum and withholding take the stand, be placed under oath, and be
questioned as to whether the information in the written application
is complete and correct.'' Id. at 118. The BIA determined that the
regulations required these procedures for fairness reasons and to
maintain ``the integrity of the asylum process itself.'' Id. The
provisions in this IFR that permit IJs to decide applications
without a hearing in certain circumstances do not raise the same
concerns that animated the BIA's decision in Matter of Fefe,
including because the cases covered by the IFR involve noncitizens
who have already received a hearing on their asylum and protection
claims before an asylum officer.
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[[Page 18102]]
If the IJ determines to hold a merits hearing, the IJ will conduct
that hearing as in section 240 removal proceedings generally. The IJ
will swear the noncitizen to the truth and accuracy of any information
or statements, hear all live testimony requested by the parties, and
consider the parties' submissions. See 8 CFR 1240.17(f)(4)(iii)(A).
The Departments' goal is for the IJ to issue an oral decision at
the conclusion of a single merits hearing (when a merits hearing is
required) whenever practicable, see 8 CFR 1240.17(f)(4)(iii)(A),
(f)(5), but the Departments recognize that not every case may be
resolved in that fashion. The rule therefore allows the IJ flexibility
in such circumstances to hold another status conference and take any
other steps the IJ considers necessary and efficient for the resolution
of the case. See 8 CFR 1240.17(f)(4)(iii)(B). In all circumstances, the
IJ will be required to schedule any subsequent merits hearing no later
than 30 days after the initial merits hearing. Id.
2. Evidentiary Standard
This IFR provides that, in the streamlined section 240 proceedings,
noncitizens and DHS will have the opportunity to address alleged errors
in the USCIS Asylum Merits record, present testimony, and submit
additional evidence. The longstanding evidentiary standard for section
240 proceedings applies--evidence must be relevant and probative, and
its use must be fundamentally fair. 8 CFR 1240.17(g)(1); see 8 CFR
1240.7(a) (``The immigration judge may receive in evidence any oral or
written statement that is material and relevant to any issue in the
case . . . .''); Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004)
(``The traditional rules of evidence do not apply to immigration
proceedings . . . . `The sole test for admission of evidence is whether
the evidence is probative and its admission is fundamentally fair.' ''
(citations omitted) (citing Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996);
quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995))); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980) (holding that evidence
must be ``relevant and probative and its use not fundamentally
unfair''). In addition, any evidence submitted must be timely (after
taking into account a timely request for a continuance or filing
extension that is granted), see 8 CFR 1240.17(g)(1), subject to certain
exceptions, see 8 CFR 1240.17(g)(2). Evidence submitted after the
deadline set by the IJ but before the IJ issues a decision in the case
may be considered only if it could not reasonably have been obtained
and presented before the applicable deadline through the exercise of
due diligence, or it its exclusion would violate a statute or the
Constitution.\37\ See id. As in all section 240 proceedings, the IJ
will exclude evidence that does not meet the requirements described
above. See 8 CFR 1240.17(g)(1).
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\37\ In addition, as described below, under new 8 CFR
1240.17(h), a party may seek to have an extension of a filing
deadline. For example, a party may seek to have a filing deadline
extended if there is an unexpected delay in receipt of the evidence
from a medical practitioner or other party.
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The Departments are not adopting the NPRM's proposal that
noncitizens seeking to submit additional evidence for IJ review would
have to demonstrate that it was not duplicative and was necessary to
develop the record. Instead, the Departments believe the IFR's
provisions will promote efficiency and fairness by allowing the parties
and adjudicators to apply longstanding, workable evidentiary standards.
The Departments believe that the NPRM's efficiency goals can be
achieved in the context of streamlined section 240 removal proceedings
without the NPRM's evidentiary restrictions because, unlike individuals
in ordinary section 240 removal proceedings, noncitizens whose cases
are subject to this rule will already have received an initial
adjudication by USCIS, and their case will come to the immigration
court with a fully developed record.
3. Timeline for Proceedings
As noted in the NPRM, the Departments' purpose for conducting
rulemaking on this topic is to develop a ``better and more efficient''
system for processing applications for asylum and related relief
brought by individuals subject to expedited removal under section 235
of the Act, 8 U.S.C. 1225. 86 FR 46907. Under the current procedures,
individuals who are first placed in the expedited removal process but
who are subsequently found to have a credible fear of persecution or
torture are placed in section 240 removal proceedings before the
immigration court. 8 CFR 208.30(f) (2020). Under existing procedures,
these proceedings often take several years to complete and can be
highly protracted and inefficient. Further, as stated in the NPRM, the
current system was created at a time when most noncitizens en
[…truncated; see source link]Indexed from Federal Register on March 29, 2022.
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.