Rule2022-28121
Security Bars and Processing; Delay of Effective Date
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
December 28, 2022
Effective
December 28, 2022
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
On December 23, 2020, the Department of Homeland Security ("DHS") and the Department of Justice ("DOJ") (collectively, "the Departments") published a final rule ("Security Bars rule"), to clarify that the "danger to the security of the United States" standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes. This rule would have made a noncitizen ineligible for asylum if, among other things, the noncitizen was physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that the physical presence in the United States of noncitizens coming from that country would cause a danger to the public health. That rule was scheduled to take effect on January 22, 2021, but, as of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. The Departments subsequently further delayed the rule's effective date to December 31, 2021, and most recently to December 31, 2022. In this rule, the Departments are further extending the delay of the effective date of the Security Bars rule until December 31, 2024. The Departments are soliciting comments both on the delay until December 31, 2024, and whether the effective date of the Security Bars rule should be delayed beyond that date.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 248 (Wednesday, December 28, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Rules and Regulations]
[Pages 79789-79794]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28121]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 /
Rules and Regulations
[[Page 79789]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2670-20; Docket No: USCIS 2020-0013]
RIN 1615-AC57
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5577-2022]
RIN 1125-AB08
Security Bars and Processing; Delay of Effective Date
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: On December 23, 2020, the Department of Homeland Security
(``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the
Departments'') published a final rule (``Security Bars rule''), to
clarify that the ``danger to the security of the United States''
standard in the statutory bar to eligibility for asylum and withholding
of removal encompasses certain emergency public health concerns and to
make certain other changes. This rule would have made a noncitizen
ineligible for asylum if, among other things, the noncitizen was
physically present in a country in which a communicable disease was
prevalent or epidemic, and the Secretary of Homeland Security and the
Attorney General determined that the physical presence in the United
States of noncitizens coming from that country would cause a danger to
the public health. That rule was scheduled to take effect on January
22, 2021, but, as of January 21, 2021, the Departments delayed the
rule's effective date for 60 days to March 22, 2021. The Departments
subsequently further delayed the rule's effective date to December 31,
2021, and most recently to December 31, 2022. In this rule, the
Departments are further extending the delay of the effective date of
the Security Bars rule until December 31, 2024. The Departments are
soliciting comments both on the delay until December 31, 2024, and
whether the effective date of the Security Bars rule should be delayed
beyond that date.
DATES:
Effective date: As of December 28, 2022, the effective date of the
final rule published December 23, 2020, at 85 FR 84160, which was
delayed by the rules published at 86 FR 6847 (Jan. 25, 2021), 86 FR
15069 (Mar. 22, 2021), and 86 FR 73615 (Dec. 28, 2021), is further
delayed until December 31, 2024.
Submission of public comments: Comments must be submitted on or
before February 27, 2023.
ADDRESSES: You may submit comments on this rule, identified by DHS
Docket No. USCIS 2020-0013, through the Federal eRulemaking Portal:
<a href="http://www.regulations.gov">http://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 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 are not accepting mailed comments
at this time. If you cannot submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services (``USCIS''), 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 the Executive Office for Immigration Review: 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:
I. Public Participation
Interested persons are invited to submit comments on this action to
further delay the effective date of the Security Bars rule by
submitting relevant written data, views, or arguments. To provide the
most assistance to the Departments, comments should reference a
specific portion of the rule; explain the reason for any
recommendation; and include data, information, or authority that
supports the recommended course of action. Comments must be submitted
in English, or an English translation must be provided. Comments
submitted in a manner other than those listed above, including emails
or letters sent to the Departments' officials, will not be considered
comments on the 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 2020-0013 for this rulemaking. All
submissions will be posted, without change, to the Federal eRulemaking
Portal at <a href="http://www.regulations.gov">http://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 is offensive. For additional
information, please read the Privacy and Security Notice available at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
[[Page 79790]]
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS 2020-0013. 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. Background
On December 23, 2020, the Departments published the Security Bars
rule to amend existing regulations to clarify that in certain
circumstances there are ``reasonable grounds for regarding [a
noncitizen] \1\ as a danger to the security of the United States'' or
``reasonable grounds to believe that [a noncitizen] is a danger to the
security of the United States'' based on emergency public health
concerns generated by a communicable disease, making the noncitizen
ineligible to be granted asylum in the United States under section 208
of the Immigration and Nationality Act (``INA'' or ``the Act''), 8
U.S.C. 1158, or the protection of withholding of removal under the Act
or subsequent regulations (because of the threat of torture).\2\ The
rule was scheduled to take effect on January 22, 2021.
---------------------------------------------------------------------------
\1\ For purposes of the discussion in this rule, the Departments
use the term ``noncitizen'' to be synonymous with the term ``alien''
as it is used in the INA. See Immigration and Nationality Act,
101(a)(3), 8 U.S.C. 1101(a)(3).
\2\ See Security Bars and Processing, 85 FR 84160 (Dec. 23,
2020).
---------------------------------------------------------------------------
On January 20, 2021, the White House Chief of Staff issued a
memorandum asking agencies to consider delaying, consistent with
applicable law, the effective dates of any rules that had been
published and had not yet gone into effect for the purpose of allowing
the President's appointees and designees to review questions of fact,
law, and policy raised by those regulations. See Memorandum for the
Heads of Executive Departments and Agencies from Ronald A. Klain,
Assistant to the President and Chief of Staff, Re: Regulatory Freeze
Pending Review (Jan. 20, 2021), available at 86 FR 7424 (Jan. 28,
2021). As of January 21, 2021, the Departments delayed the effective
date of the Security Bars rule to March 22, 2021, then further delayed
the effective date of the Security Bars rule to December 31, 2021, and
most recently delayed the effective date of the Security Bars rule to
December 31, 2022, consistent with that memorandum and a preliminary
injunction in place with respect to a related rule, as discussed below.
See Security Bars and Processing; Delay of Effective Date, 86 FR 6847
(Jan. 25, 2021); Security Bars and Processing; Delay of Effective Date,
86 FR 15069 (Mar. 22, 2021) (``March 2021 Delay IFR''); Security Bars
and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021)
(``December 2021 Delay IFR'').
III. Basis for Delay of Effective Date
A. Impact of Injunction Against Implementation of Global Asylum Final
Rule
As stated in the March 2021 Delay IFR, the Departments had good
cause to further delay the Security Bars rule's effective date without
advance notice and comment because implementation of the Security Bars
rule was infeasible due to a preliminary injunction against a related
rule.\3\ Specifically, the Security Bars rule relies on revisions to
the Departments' regulations previously made on December 11, 2020, by a
separate joint rule, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review (``Global Asylum final
rule'').\4\ The Global Asylum final rule was scheduled to become
effective before the Security Bars rule. However, on January 8, 2021,
14 days prior to the effective date of the Security Bars rule, in
Pangea Legal Services v. Department of Homeland Security (``Pangea II
''), a district court preliminarily enjoined the Departments ``from
implementing, enforcing, or applying the [Global Asylum final] rule . .
. or any related policies or procedures.'' \5\ The preliminary
injunction remains in place. Thus, implementation of the Security Bars
rule continues to be infeasible.
---------------------------------------------------------------------------
\3\ See 86 FR at 15070.
\4\ See 85 FR 80274 (Dec. 11, 2020).
\5\ Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 512 F.
Supp. 3d 966, 977 (N.D. Cal. 2021). By issuing this rule to further
delay the effective date of the Security Bars rule, the Departments
are not indicating a position on the outcome thus far in Pangea II.
---------------------------------------------------------------------------
The Security Bars rule relies upon the regulatory framework that
was established in the Global Asylum final rule in applying bars to
asylum eligibility and withholding of removal during credible fear
screenings for noncitizens in the expedited removal process.\6\ The
expedited removal process allows for the removal of certain noncitizens
from the United States without a removal proceeding before an
immigration judge under section 240 of the Act, 8 U.S.C. 1229a. A
noncitizen who expresses a fear of persecution or torture, a fear of
return, or an intention to apply for asylum during the course of the
expedited removal process is referred to a USCIS asylum officer for a
credible fear screening to determine if the noncitizen has a credible
fear of persecution or torture in the country of removal.\7\ If the
asylum officer determines that a noncitizen has a credible fear of
persecution or torture, DHS may either: (1) refer the noncitizen to an
immigration court by initiating removal proceedings under section 240
of the INA, 8 U.S.C. 1229a (``section 240 removal proceedings''), where
the noncitizen may seek relief or protection, or (2) retain
jurisdiction over the noncitizen's asylum claim for further
consideration in an interview pursuant to 8 CFR 208.9(b).\8\
---------------------------------------------------------------------------
\6\ See, e.g., 85 FR at 84176 (``As noted, the [Security Bars]
final rule is not, as the [2020 Security Bars] NPRM proposed,
modifying the regulatory framework to apply the danger to the
security of the United States bars at the credible fear stage
because, in the interim between the NPRM and the final rule, the
Global Asylum [final rule] did so for all of the bars to eligibility
for asylum and withholding of removal.''); id. at 84189 (describing
changes made in the Security Bars rule ``to certain regulatory
provisions not addressed in the proposed rule as necessitated by the
intervening promulgation of the Global Asylum [final rule]'').
\7\ See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii),
(B); see also 8 CFR 235.3(b)(4)(i), 1235.3(b)(4)(i).
\8\ See 8 CFR 208.2(a)(1)(ii), 208.30(f), 1208.2(a)(1)(ii),
1235.6(a)(1)(i).
---------------------------------------------------------------------------
On July 9, 2020, the Departments published a Notice of Proposed
Rulemaking for the Security Bars rule (``2020 Security Bars NPRM''),
which proposed regulatory text to apply the security bars during
credible fear screenings.\9\ This proposal would have modified the
then-existing regulatory framework, which instructed that, even if the
noncitizen might have been subject to a bar to asylum eligibility or
withholding of removal (including the ``danger to the security of the
United States'' bars underlying the Security Bars rule), the potential
applicability of that bar would not have impacted their credible fear
determination.\10\ The modification in the Security Bars NPRM would
have applied these security bars during the credible fear screening
rather than during a full removal hearing. The 2020 Security Bars NPRM
justified the application of the security bars in the credible fear
determination process as necessary to allow DHS to quickly remove
individuals covered by the expanded security bars to asylum eligibility
and withholding of removal, rather than sending potentially barred
individuals to section 240 removal proceedings, for consideration of
further relief or protection from removal before an immigration judge,
which can take more time.\11\ The 2020 Security Bars
[[Page 79791]]
NPRM further explained that applying the security bars during credible
fear screenings was necessary to reduce health and safety dangers to
both the public at large and DHS officials.\12\
---------------------------------------------------------------------------
\9\ Security Bars and Processing, 85 FR 41201, 41216-18 (July 9,
2020).
\10\ See id. at 41207.
\11\ See id. at 41210-12.
\12\ See id. at 41210.
---------------------------------------------------------------------------
On December 11, 2020, while the Departments were reviewing the
comments submitted in response to the 2020 Security Bars NPRM, the
Global Asylum final rule was published.\13\ The Global Asylum final
rule changed the governing regulations to apply all bars to asylum
eligibility and withholding of removal during credible fear
screenings.\14\ Most relevant, the Global Asylum final rule changed the
then-existing regulatory framework described above, in which evidence
of a bar to asylum eligibility or withholding of removal did not have
any impact on a credible fear determination (even though the bars would
be part of the ultimate adjudication of asylum eligibility or
withholding of removal before the Executive Office for Immigration
Review), to a framework that instead required asylum officers to apply
all of the bars to asylum eligibility or withholding of removal during
credible fear screenings.\15\
---------------------------------------------------------------------------
\13\ 85 FR at 80274.
\14\ See id. at 80391.
\15\ See id.
---------------------------------------------------------------------------
On December 23, 2020, the Security Bars rule was published. In that
final rule, the Departments revised the text from the 2020 Security
Bars NPRM to explicitly rely on the intervening changes made by the
Global Asylum final rule.\16\ As a result, the regulatory text of
significant portions of the Security Bars rule relies upon and repeats
broader regulatory text established by the Global Asylum final rule,
such as applying bars to asylum eligibility and withholding of removal
during credible fear screenings.\17\ The Security Bars rule assumed
that the Global Asylum final rule would be in effect, and, therefore,
the Security Bars rule did not make additional changes to the credible
fear framework.\18\
---------------------------------------------------------------------------
\16\ 85 FR at 84174-77.
\17\ Compare e.g., id. at 84194-98 (revisions to 8 CFR 208.30,
235.6, 1208.30, 1235.6, and other provisions in the Security Bars
rule), with, e.g., 85 FR at 80390-80401 (revisions to same sections
in the Global Asylum final rule).
\18\ See 85 FR at 84175 (``The Departments note that the final
rule is not, as the NPRM proposed, modifying the regulatory
framework to apply the danger to the security of the United States
bars at the credible fear stage. In the interim between the NPRM and
the final rule, the Global Asylum [final rule] did so for all of the
bars to eligibility for asylum and withholding of removal.'').
---------------------------------------------------------------------------
The Security Bars rule, if it were to become effective as
published, would bar two broad categories of noncitizens who ``pose a
danger to the security of the United States'' from eligibility for
asylum, statutory withholding of removal, and withholding of removal
under regulations implementing the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'') \19\; and
would alter the screening processes for eligibility for CAT deferral of
removal in credible fear interviews.\20\ The Security Bars rule
provided that, if an asylum officer determined that a noncitizen was
subject to the bars outlined in the rule, the asylum officer would
screen the noncitizen for potential eligibility for deferral of removal
under the CAT regulations (``CAT deferral of removal'') by determining
whether it was ``more likely than not'' that the noncitizen would be
tortured in the prospective country of removal.\21\
---------------------------------------------------------------------------
\19\ CAT, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85.
\20\ See id. at 84160, 84174.
\21\ See id. at 84194-95.
---------------------------------------------------------------------------
As a result of the interplay between the two rules, implementation
of the Security Bars rule would violate the injunction against the
application, implementation, or enforcement of the Global Asylum final
rule and related policies or procedures. Effective implementation of
the Security Bars rule relies on the application of the asylum and
withholding of removal bars to eligibility at the credible fear
screening stage, as established by the Global Asylum final rule.\22\
Accordingly, implementing the Security Bars rule would effectively
reinsert or rely upon regulatory provisions enjoined by the Pangea II
court. In other words, under the Pangea II injunction, it would be
impermissible to apply the bars to asylum eligibility and withholding
of removal outlined in the Security Bars rule to noncitizens in the
credible fear screening process. Given these circumstances, the
Departments believe that the Security Bars rule, which could not be
implemented as designed, would not necessarily provide the framework
for achieving its intended goals.
---------------------------------------------------------------------------
\22\ As the Departments explained in the Security Bars rule, the
intervening Global Asylum final rule made changes to the credible
fear screening framework to provide that noncitizens receiving
positive credible fear determinations be placed in asylum-and-
withholding-only proceedings, rather than section 240 removal
proceedings. See 85 FR at 84188. The Security Bars rule relied upon
this change made in the Global Asylum final rule to provide that
noncitizens who receive positive credible fear determinations under
the Security Bars rule would be placed in such asylum-and-
withholding-only proceedings rather than section 240 removal
proceedings, unless they were removed to third countries. See id.
The Security Bars rule also assumes that the Departments are using
the reasonable possibility of persecution or torture standards for
withholding of removal claims in the credible fear screening
context, which is also based on a change that was made in the Global
Asylum final rule. See id. at 84188, 84191.
---------------------------------------------------------------------------
B. Impact of Asylum Processing IFR
On March 29, 2022, the Departments published an interim final rule
titled Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
Officers (``Asylum Processing IFR'').\23\ The Asylum Processing IFR
became effective on May 31, 2022.\24\ The Asylum Processing IFR amended
the governing regulations to allow USCIS asylum officers to adjudicate
the asylum applications of individuals subject to expedited removal who
are found to have a credible fear of persecution or torture.\25\
---------------------------------------------------------------------------
\23\ See 87 FR 18078.
\24\ The implementation of the Asylum Processing IFR is taking
place in a phased manner, beginning with a small number of
individuals, and will grow as USCIS builds operational capacity over
time. See 87 FR at 18185.
\25\ See id. at 18089.
---------------------------------------------------------------------------
The Asylum Processing IFR also amended certain regulations modified
in part by the Security Bars rule to return to the regulatory framework
governing credible fear screening standards and, with limited
exceptions, applicability of mandatory bars at the credible fear
screening stage that had been in place before the Global Asylum final
rule was promulgated.\26\ In particular, the Asylum Processing IFR
revised the regulations governing the credible fear screening process
to apply the longstanding ``significant possibility'' standard in
screenings for statutory withholding of removal and CAT protection
claims.\27\ And, with limited exceptions, the Asylum Processing IFR
revised the regulatory framework to return to longstanding regulations
to screen for eligibility for asylum and statutory withholding of
removal without applying bars to asylum and withholding of removal in
the credible fear screening process.\28\ The regulatory changes made by
the Asylum Processing IFR do not include the applicability of the bars
outlined in the Security Bars rule.\29\
---------------------------------------------------------------------------
\26\ See id. at 18084, 18091-94.
\27\ See id. at 18084, 18091-92.
\28\ See id. at 18121-22, 18084, 18092-94.
\29\ See id. at 18121-22, 18084, 18091-94.
---------------------------------------------------------------------------
If the Security Bars rule were to become effective as published,
then, when combined with the changes made by the Asylum Processing IFR
to the regulations governing the credible fear screening framework and
standards, the result would be to create confusing and nonsensical
regulatory text. The Asylum
[[Page 79792]]
Processing IFR revised regulatory language in 8 CFR 208.30, 235.6,
1003.42, 1208.30, and 1235.6 that the Security Bars rule assumed would
be in effect, but which now no longer exists in the CFR. For example,
in 8 CFR 208.30(f), the Security Bars rule revised the regulatory
language that existed at the time to incorporate the ``more likely than
not'' standard, which is related to evaluating eligibility for CAT
deferral of removal when an individual is subject to the security bars
outlined in the Security Bars rule.\30\ The Asylum Processing IFR
revised 8 CFR 208.30(f) significantly, so the regulatory text that
existed at the time of the publication of the Security Bars rule no
longer exists in the current version of 8 CFR 208.30(f) in the CFR.\31\
Additional examples include 8 CFR 208.30(e)(4), (e)(5), 235.6(a)(2),
1003.42(d)(1), 1208.30(e), (g)(2), and 1235.6(a)(2). Compare, e.g., 85
FR at 84191, 84196 (portion of Security Bars rule amending 8 CFR
235.6(a)(2) to ``reflect the new screening standard for potential
eligibility for deferral of removal'' established in the Global Asylum
final rule by providing for the next procedural steps ``[i]f an asylum
officer determines that the [noncitizen] has not established a credible
fear of persecution, reasonable possibility of persecution, reasonable
possibility of torture, or that it is more likely than not that the
[noncitizen] would be tortured''), with, e.g., 87 FR at 18220 (portion
of Asylum Processing IFR amending the same section, 8 CFR 235.6(a)(2),
to omit any reference to a ``reasonable possibility of persecution,
reasonable possibility of torture, or [whether] it is more likely than
not that the [noncitizen] would be tortured'').
---------------------------------------------------------------------------
\30\ See 85 FR at 84194-95.
\31\ See 87 FR at 18219.
---------------------------------------------------------------------------
Further, if the Security Bars rule were to become effective as
published, the regulations would not coherently interrelate when viewed
individually or as a whole, which would create substantial confusion
and disorder in the credible fear screening process. The intervening
Asylum Processing IFR has made significant changes to the regulations
governing the credible fear screening framework and standards, and
because these changes are incompatible with applying the Security Bars
rule according to its terms, these intervening regulatory changes
further justify delaying the effective date of the Security Bars rule.
Accordingly, the Departments are further delaying the effective
date of the Security Bars rule until December 31, 2024, due to the
aforementioned litigation and the intervening Asylum Processing IFR.
The Departments believe that a delay of two years, rather than a
shorter delay, is appropriate. If the injunction against implementation
of the Global Asylum final rule were lifted, the Departments would need
to consider how the regulatory changes that the Asylum Processing IFR
made to the credible fear screening framework and standards impact the
regulatory text of the Security Bars rule. Given the numerous
procedural inconsistencies between the Asylum Processing IFR and the
Security Bars rule, as discussed above, the Departments believe that
determining how to feasibly apply both rules (or whether such
application is feasible at all) would require substantial time. Also,
as discussed below, the Departments are planning to issue a notice of
proposed rulemaking to modify or rescind the Security Bars rule in the
near future. The Departments would need to consider whether attempting
to apply the Security Bars rule at all would be consistent with any
policy considerations raised by that forthcoming NPRM to modify or
rescind the Security Bars rule.
C. Rulemaking To Modify or Rescind Security Bars Rule
The Departments are reconsidering the Security Bars rule in light
of the Administration's policies of ensuring the safe and orderly
reception and processing of asylum seekers, consistent with public
health and safety, strengthening the asylum system, and removing
barriers that impede access to immigration benefits, with the
additional context of the complex relationship between the Global
Asylum final rule and the Security Bars rule and the court's injunction
in Pangea II.\32\ The Departments are reevaluating whether the Security
Bars rule provides the most appropriate and effective framework for
achieving its goals of mitigating the spread of communicable diseases,
including COVID-19, among certain noncitizens in the credible fear
screening process, as well as DHS personnel and the public. The
Departments are working to publish a separate NPRM in the near future
to solicit public comments on whether to modify or rescind the Security
Bars rule (``forthcoming Security Bars NPRM'').\33\ The Departments, in
publishing the December 2021 Delay IFR, anticipated that this
rulemaking would be complete by December 31, 2022. However, competing
priorities have resulted in delays in publishing the forthcoming
Security Bars NPRM. In light of the limits on the Departments'
resources, they have been required to prioritize efforts based on the
most pressing needs, which include, but are not limited to, litigation
constraints, see, e.g., Deferred Action for Childhood Arrivals, 87 FR
53152 (Aug. 30, 2022), and building an orderly process to address
increasing numbers of individuals coming to the United States, see,
e.g., Asylum Processing IFR, 87 FR 18078.
---------------------------------------------------------------------------
\32\ See, e.g., E.O. 14010, 86 FR 8267 (Feb. 2, 2021) (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); E.O. 14012, 86 FR 8277 (Feb. 2, 2021)
(Restoring Faith in Our Legal Immigration Systems and Strengthening
Integration and Inclusion Efforts for New Americans); see also
Executive Office of the President, Office of Management and Budget,
Office of Information and Regulatory Affairs, Spring 2022 Unified
Agenda of Regulatory and Deregulatory Actions, Security Bars and
Processing, <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1615-AC57">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1615-AC57</a>.
\33\ Members of the public may follow the progress of the
forthcoming Security Bars NPRM on the Administration's Unified
Agenda of Regulatory and Deregulatory Actions, which is available at
<a href="https://www.reginfo.gov/public/do/eAgendaMain">https://www.reginfo.gov/public/do/eAgendaMain</a>.
---------------------------------------------------------------------------
Accordingly, the Departments are further delaying the effective
date of the Security Bars rule until December 31, 2024. The Departments
believe that, rather than a one-year delay, as they issued in December
of 2021, a two-year delay of the effective date will better ensure that
there is sufficient time to complete notice-and-comment rulemaking to
modify or rescind the Security Bars final rule, even in the event that
circumstances require shifting departmental priorities and resources.
The Departments believe that a two-year delay will allow sufficient
time for the Departments to issue the forthcoming Security Bars NPRM,
give careful and meaningful consideration to comments received on the
forthcoming Security Bars NPRM, and issue a final rule.
In the March 2021 Delay IFR, the Departments explained that they
were considering amending or rescinding the Security Bars rule and
sought public comments on whether the Security Bars rule should be
revised or revoked and information on alternative approaches that may
achieve the best public health outcome consistent with the
Administration's immigration policy goals.\34\ The Departments received
66 comments in response to the March 2021 Delay IFR. As stated in the
December 2021 Delay IFR, the Departments plan to address comments
regarding modification or rescission of the Security Bars rule in a
separate rulemaking. See 86 FR at 73617. A number of the commenters
expressed
[[Page 79793]]
support or opposition to the substance of the Security Bars rule as
part of their response to the Departments' March 2021 Delay IFR.
Although a few of the commenters supported the Security Bars rule, the
majority of the commenters opposed the rule. Subsequently, the
Departments published the December 2021 Delay IFR on December 28, 2021,
in which they ``continue[d] to welcome data, views, and information
regarding the effective date of the Security Bars rule.'' 86 FR at
73617. The Departments received 15 unduplicated comments in response to
the December 2021 Delay IFR, 13 of which expressed opposition to the
Security Bars Final Rule. Two commenters supported implementation of
the Security Bars Final Rule without specifically discussing a delay
beyond December 31, 2021, although one stated that the policy should
not be delayed. Among commenters who opposed the Security Bars final
rule, one suggested it be ``delayed indefinitely,'' and two supported
further delay of the rule while also urging rescission of the rule.
Additionally, four commenters--including one joint comment of 135 non-
governmental organizations--urged immediate rescission of the final
rule rather than continuing to delay its effective date. Finally, some
commenters responding to the March 2021 Delay IFR specifically
addressed the question of a delayed effective date. Two of these
commenters urged the Departments to implement the Security Bars rule
without further delay, and one supported the delay. To the extent the
comments received in response to each IFR delaying the effective date
of the Security Bars rule address the substance of the Security Bars
rule beyond the question of the effective date, including suggestions
to modify or rescind the rule, the Departments will consider those
comments, and the comments on the forthcoming Security Bars NPRM, in
promulgating a final rule based on that NPRM.
---------------------------------------------------------------------------
\34\ See 86 FR at 15069, 15071.
---------------------------------------------------------------------------
To the extent the comments received in response to the March 2021
Delay IFR and the December 2021 Delay IFR address the further delay of
the Security Bars rule, the Departments have considered those comments
and have determined that a two-year further delay is most appropriate.
Several commenters, as noted, opposed delay, but the Departments have
concluded that a further delay of at least some length is necessary to
ensure the Departments are not required to try to apply both the Asylum
Processing IFR and the Security Bars rule without sufficient time to
consider the many inconsistencies between those rules. Another
commenter, as noted, suggested an indefinite delay, but the Departments
believe an indefinite delay is unnecessary at this time because the
Departments' forthcoming Security Bars NPRM will be completed at some
point in the near future, and, once that rulemaking process is
finalized, that rulemaking could obviate the need for an indefinite
delay by modifying or rescinding the Security Bars rule. Finally, the
remaining commenters who mentioned the possibility of further delay did
not cite any specific reasons for a delay of a particular length, and
the Departments have concluded that two years is an appropriate
duration. The Departments acknowledge the desire of some commenters to
rescind the Security Bars rule without further delaying its effective
date. However, as discussed in this rule, the Departments intend to
publish the forthcoming Security Bars NPRM in the near future to
address the issue of possible modification or rescission. The
Departments note that thousands of comments were received in response
to the 2020 Security Bars NPRM. The Departments anticipate that they
may similarly receive a substantial volume of comments in response to
the forthcoming Security Bars NPRM. They accordingly believe it is
prudent to delay the Security Bars rule's effective date for two years
to ensure sufficient time to carefully review, consider, and respond to
comments in promulgating a final rule--especially in light of the
Departments' potentially competing rulemaking priorities--and avoid the
need for additional IFRs to further delay the Security Bars rule's
effective date before the anticipated final rule can become effective.
See Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (``[A]n agency
has broad discretion to choose how best to marshal its limited
resources and personnel to carry out its delegated
responsibilities.'').
The Departments recognize that the COVID-19 public health emergency
is highly dynamic and continues to pose health and safety risks for
noncitizens held in congregate settings, particularly at holding and
detention facilities; for agency personnel; and for the public.\35\ As
the COVID-19 public health emergency has continued to evolve, the
Departments continue to reconsider and reevaluate how best to mitigate
the spread of COVID-19 and which actions are most appropriate in
accordance with their legal authorities.
---------------------------------------------------------------------------
\35\ See Public Health Determination and Order Regarding
Suspending the Right to Introduce Certain Persons From Countries
Where a Quarantinable Communicable Disease Exists, 87 FR 19941,
19942, 19950-52 (Apr. 6, 2022).
---------------------------------------------------------------------------
IV. Request for Comment on Further Delay of the Effective Date of the
Security Bars Rule
The Departments continue to welcome data, views, and information
regarding the effective date of the Security Bars rule. The Departments
also are soliciting comments on whether the effective date should be
delayed beyond December 31, 2024. The Departments note that comments
addressing whether the Security Bars rule should be modified or
rescinded should be submitted in response to the forthcoming Security
Bars NPRM, and not in response to this interim final rule.
V. Regulatory Requirements
A. Administrative Procedure Act
Under the Administrative Procedure Act (``APA''), agencies must
generally provide ``notice of proposed rule making'' in the Federal
Register and, after such notice, ``give interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments.'' 5 U.S.C. 553(b)-(c). In the
December 2021 Delay IFR, the Departments notified the public that they
were considering ``whether the effective date of the Security Bars rule
should be extended beyond [the December 31, 2022] date'' and
specifically ``solicit[ed] comments'' on such a delay. 86 FR at 73615;
see also id. at 73617 (welcoming any ``data, views, and information
regarding the effective date of the Security Bars rule,'' including
comments on whether the effective date ``should be extended beyond
December 31, 2022, if the Pangea II injunction is still in effect or if
other intervening events occur''). As discussed above, the Departments
have considered the comments received in response to the notice and
request for comments in the December 2021 Delay IFR and have decided
for the reasons articulated above to delay the effective date of the
Security Bars rule until December 31, 2024. Both the Pangea II
injunction and intervening events such as the publication of the Asylum
Processing IFR make continued delay of the Security Bars rule
necessary. In addition, a two-year delay appropriately allows the
Departments sufficient time to both (1) consider how the Security Bars
rule would interact with the Asylum Processing IFR if the Pangea II
injunction were lifted and both rules were to be implemented
simultaneously, and (2) complete the forthcoming Security Bars NPRM
regarding whether to modify or rescind
[[Page 79794]]
the Security Bars rule as well as complete a final rule following
careful consideration of comments received.
Further, even if the Departments had not fulfilled the notice-and-
comment requirements of the APA, agencies are not required to engage in
pre-promulgation notice and comment under 5 U.S.C. 553(b) and (c) when
an agency ``for good cause finds . . . that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' 5 U.S.C. 553(b)(B). Consistent with the March 2021 Delay
IFR and the December 2021 Delay IFR, the Departments have determined
that the good cause exception applies to this rule because
implementation of the Security Bars rule has not been--and continues to
not be--feasible due to a preliminary injunction against a related
rule. Furthermore, as discussed above, the implementation of the Asylum
Processing IFR also impacts the feasibility of the Security Bars rule.
The Security Bars rule's reliance upon and interplay with the Global
Asylum final rule, as explained above, mean that implementation of the
Security Bars rule would risk violating the Pangea II injunction. The
preliminary injunction remains in place. It is therefore unnecessary
for the Departments to provide notice and an opportunity to comment
because any comments received cannot and will not affect the injunction
underlying the need for delay. See EME Homer City Generation, L.P. v.
E.P.A., 795 F.3d 118, 134-35 (D.C. Cir. 2015) (explaining that the good
cause exception applied because ``commentators could not have said
anything during a notice and comment period that would have changed''
the agency's response to a judicial decision).
B. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess the
costs, benefits, and transfers of available alternatives, and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including potential economic, environmental, public
health and safety effects, distributive impacts, and equity. Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Pursuant to Executive Order 12866, the Office of Information and
Regulatory Affairs of the Office of Management and Budget determined
that this rule is ``significant'' under Executive Order 12866 and has
reviewed this regulation.
C. Regulatory Flexibility Act
The Departments have reviewed this rule in accordance with the
Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as
amended (codified at 5 U.S.C. 601 et seq.), and have determined that
this rule to further delay the effective date of the Security Bars rule
(85 FR 84160) will not have a significant economic impact on a
substantial number of small entities. Neither the Security Bars rule,
nor this rule to delay its effective date, regulates ``small entities''
as that term is defined in 5 U.S.C. 601(6). Only individuals, rather
than entities, are eligible to apply for asylum and related forms of
relief, and only individuals are placed in immigration proceedings.
D. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).
E. Congressional Review Act
This rule is not a major rule as defined by section 804 of the
legislation commonly known as the Congressional Review Act, see Public
Law 104-121, sec. 251, 110 Stat. 847, 868 (1996) (codified in relevant
part at 5 U.S.C. 804) (``CRA''). This rule will not result in an annual
effect on the economy of $100 million or more; a major increase in
costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets. The Departments have
complied with the CRA's reporting requirements and have sent this rule
to Congress and to the Comptroller General as required by 5 U.S.C.
801(a)(1).
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Departments believe that this rule will not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule does not create new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule does not have ``[T]ribal implications'' because it does
not have substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal Government and Indian Tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Accordingly, Executive Order 13175
(Consultation and Coordination with Indian Tribal Governments) requires
no further agency action or analysis.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2022-28121 Filed 12-27-22; 8:45 am]
BILLING CODE 9111-97-P 4410-30-P
</pre></body>
</html>Indexed from Federal Register on December 28, 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.