Proposed Rule2023-03718
Circumvention of Lawful Pathways
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Published
February 23, 2023
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
The Department of Homeland Security ("DHS") and the Department of Justice ("DOJ") are issuing a notice of proposed rulemaking ("NPRM" or "proposed rule") in anticipation of a potential surge of migration at the southwest border ("SWB") of the United States following the eventual termination of the Centers for Disease Control and Prevention's ("CDC") public health Order. The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would be implemented on a temporary basis, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner.
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[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Proposed Rules]
[Pages 11704-11752]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03718]
[[Page 11703]]
Vol. 88
Thursday,
No. 36
February 23, 2023
Part VII
Department of Homeland Security
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8 CFR Part 208
Department of Justice
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Executive Office for Immigration Review
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8 CFR Part 1208
Circumvention of Lawful Pathways; Proposed Rule
Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 /
Proposed Rules
[[Page 11704]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2736-22; Docket No: USCIS 2022-0016]
RIN 1615-AC83
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5605-2023]
RIN 1125-AB26
Circumvention of Lawful Pathways
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (``DHS'') and the
Department of Justice (``DOJ'') are issuing a notice of proposed
rulemaking (``NPRM'' or ``proposed rule'') in anticipation of a
potential surge of migration at the southwest border (``SWB'') of the
United States following the eventual termination of the Centers for
Disease Control and Prevention's (``CDC'') public health Order. The
proposed rule would encourage migrants to avail themselves of lawful,
safe, and orderly pathways into the United States, or otherwise to seek
asylum or other protection in countries through which they travel,
thereby reducing reliance on human smuggling networks that exploit
migrants for financial gain. It would do so by introducing a rebuttable
presumption of asylum ineligibility for certain noncitizens who neither
avail themselves of a lawful, safe, and orderly pathway to the United
States nor seek asylum or other protection in a country through which
they travel. In the absence of such a measure, which would be
implemented on a temporary basis, the number of migrants expected to
travel without authorization to the United States is expected to
increase significantly, to a level that risks undermining the
Departments' continued ability to safely, effectively, and humanely
enforce and administer U.S. immigration law, including the asylum
system, in the face of exceptionally challenging circumstances. Coupled
with an expansion of lawful, safe, and orderly pathways into the United
States, the Departments expect the proposed rule to lead to a reduction
in the numbers of migrants who seek to cross the SWB without
authorization to enter, thereby reducing the reliance by migrants on
dangerous human smuggling networks, protecting against extreme
overcrowding in border facilities, and helping to ensure that the
processing of migrants seeking protection in the United States is done
in an effective, humane, and efficient manner.
DATES: Comments must be submitted on or before March 27, 2023. The
electronic Federal Docket Management System will accept comments before
midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on this proposed rule 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 proposed rule and may not receive a response from the Departments.
Please note that the Departments cannot accept any comments that are
hand-delivered or couriered. In addition, the Departments cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs or 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 the Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, by telephone at
(240) 721-3000 (not a toll-free call) for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Acting Director, Border and Immigration
Policy, Office of Strategy, Policy, and Plans, U.S. Department of
Homeland Security; telephone (202) 447-3459 (not a toll-free call).
For Executive Office for Immigration Review (``EOIR''): Lauren
Alder Reid, Assistant Director, Office of Policy, EOIR, Department of
Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703)
305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on this action by
submitting relevant written data, views, or arguments. To provide the
most assistance to the Departments, comments should reference a
specific portion of the proposed 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 proposed rule and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must submit it to DHS
Docket Number USCIS 2022-0016. All submissions may 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 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
the docket number listed above. You may also sign up for email alerts
on the online docket to be notified when comments are posted or another
Federal Register document is published.
II. Executive Summary
Economic and political instability around the world is fueling the
highest levels of migration since World War II, including in the
Western Hemisphere. Even while CDC's Title 42 public health Order has
been in place, encounters at our SWB \1\--referring to the number of
[[Page 11705]]
times U.S. officials encounter noncitizens \2\ attempting to cross the
SWB of the United States without authorization to do so--have reached
an all-time high, driven in large part by an unprecedented exodus of
migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua,
Peru, and Venezuela. For the 30 days ending December 24, 2022, total
daily encounters along the SWB consistently fluctuated between
approximately 7,100 and 9,700 per day, averaging approximately 8,500
per day, with encounters exceeding 9,000 per day on 12 different
occasions during this 30-day stretch.\3\ Smuggling networks enable and
exploit this unprecedented movement of people, putting migrants' lives
at risk for their own financial gain.\4\ Meanwhile, the current asylum
system--in which most migrants who are initially deemed eligible to
pursue their claims ultimately are not granted asylum in the subsequent
EOIR removal proceedings \5\--has contributed to a growing backlog of
cases awaiting review by asylum officers and immigration judges. The
practical result of this growing backlog is that those deserving of
protection may have to wait years for their claims to be granted, while
individuals who are ultimately found not to merit protection may spend
years in the United States before being issued a final order of
removal. As the demographics of border encounters have shifted in
recent years to include larger numbers of non-Mexicans--who are far
more likely to make asylum claims--and as the time required to process
and remove noncitizens ineligible for protection has grown (during
which time individuals become eligible to apply for employment
authorization), the apprehension of border crossers has had limited
deterrent effect.\6\
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\1\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB,'' ``the southern
border,'' ``U.S.-Mexico border,'' or ``the land border with
Mexico.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. The ``southern border'' is
both a land and maritime border extending from beyond California to
the west to beyond Florida to the east. This proposed rule would
apply along the entirety of the U.S. land border with Mexico,
referred to in the regulatory text as the ``southwest land border,''
but the Departments use different terms in the preamble to describe
the border. This is in large part to reflect the source material
supporting the proposed rule, but the Departments believe that the
factual circumstances described in the preamble call for applying
the proposed rule across the entirety of the U.S. land border with
Mexico.
\2\ For purposes of this discussion, the Departments use the
term ``noncitizen'' to be synonymous with the term ``alien'' as it
is used in the Immigration and Nationality Act (``INA'' or ``Act'').
See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct.
1442, 1446 n.2 (2020).
\3\ DHS Office of Immigration Statistics (``OIS'') analysis of
data downloaded from the U.S. Customs and Border Protection
(``CBP'') Unified Immigration Portal (``UIP'') on January 4, 2023.
\4\ Miriam Jordan, Smuggling Migrants at the Border Now a
Billion-Dollar Business, New York Times, July 26, 2022, <a href="https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html">https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html</a> (last
visited Dec. 13, 2022).
\5\ See EOIR, Executive Office for Immigration Review
Adjudication Statistics: Asylum Decision and Filing Rates in Cases
Originating with a Credible Fear Claim (Oct. 13, 2022), <a href="https://www.justice.gov/eoir/page/file/1062976/download">https://www.justice.gov/eoir/page/file/1062976/download</a> (last visited Jan.
27, 2023). The EOIR adjudication outcome statistics report on the
total number of cases originating with credible fear claims resolved
on any ground in a fiscal year, without regard to whether an asylum
claim was adjudicated. The asylum grant rate is a percentage of that
total number of cases.
\6\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, 6 percent of Mexican nationals
made fear claims that were referred to USCIS for adjudication,
compared to 57 percent of people from Northern Central America, and
90 percent of all other nationalities. OIS analysis of Enforcement
Lifecycle data as of September 30, 2022. Of note, according to OIS
analysis of historic EOIR and CBP data, there is a clear correlation
since FY 2000 between the increasing time it takes to complete
immigration proceedings and the lower share of noncitizens being
removed, and the growth in non-Mexican encounters at the SWB. Both
trends accelerated in the 2010s, as non-Mexicans became the majority
of border encounters, and they have accelerated further since FY
2021, as people from countries other than Mexico and Northern
Central America now account for the largest numbers of border
encounters.
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While the CDC's Title 42 public health Order \7\ has been in
effect, migrants who do not have proper travel documents have generally
not been processed into the United States; they have instead been
expelled to Mexico or to their home countries under the Order's
authority without being processed under the authorities set forth in
Title 8 of the United States Code, which includes the Immigration and
Nationality Act (``INA'' or ``the Act''). When the Order is eventually
lifted, however, the United States Government will process all such
migrants who cross the border under Title 8 authorities, as statutorily
required. At that time, the number of migrants seeking to cross the SWB
without lawful authorization to do so is expected to increase
significantly, unless other policy changes are made. Such challenges
were evident in the days following the November 15, 2022, court
decision that, had it not been stayed on December 19, 2022, would have
resulted in vacatur of the Title 42 public health Order effective
December 21, 2022.\8\ Leading up to the expected termination date,
migrants gathered in various parts of Mexico, including along the SWB,
waiting to cross the border once the Title 42 public health Order was
lifted.\9\ According to internal Government sources, smugglers were
also expanding their messaging and recruitment efforts, using the
expected lifting of the Title 42 public health Order to claim that the
border was open, thereby seeking to persuade would-be migrants to
participate in expensive and dangerous human smuggling schemes. In the
weeks between the November announcement that the Title 42 public health
Order would be lifted and the December 19 stay order that kept the
Title 42 public health Order in place, encounter rates jumped from an
average of 7,700 per week (early November) to 8,600 per week (mid-
December).\10\
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\7\ See CDC, Public Health Determination and Order Regarding
Suspending the Right To Introduce Certain Persons From Countries
Where a Quarantinable Communicable Disease Exists, 87 FR 19941,
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42
orders, which ``suspend[ ] the right to introduce certain persons
into the United States from countries or places where the
quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-
19'').
\8\ See Huisha-Huisha v. Mayorkas, No. 21-100, 2022 WL 16948610
(D.D.C. Nov. 15, 2022), cert. and stay granted, Arizona v. Mayorkas,
No. 22A544, 2022 WL 17957850 (S. Ct. Dec. 27, 2022).
\9\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at the
U.S.-Mexico Border. This Is Why, L.A. Times (Dec. 23, 2022), <a href="https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion">https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion</a> (last visited Jan. 27, 2023).
\10\ OIS analysis of CBP UIP data downloaded January 13, 2023.
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While a number of factors make it particularly difficult to
precisely project the numbers of migrants who would seek to cross the
border, without authorization, after the lifting of the Title 42 public
health Order, DHS encounter projections and planning models suggest
that encounters could rise to 11,000-13,000 encounters per day, absent
policy changes and absent a viable mechanism for removing Cuban,
Haitian, Nicaraguan, and Venezuelan (``CHNV'') nationals who do not
have a valid protection claim.\11\ Early data indicate that the
recently announced enforcement processes, as applied to Cuban, Haitian,
and Nicaraguan nationals,\12\ which couple new parole
[[Page 11706]]
processes with prompt returns of those who cross the SWB without
utilizing these processes, are deterring irregular migration from those
countries,\13\ thus yielding a decrease in encounter numbers. However,
there are a number of factors that could contribute to these gains
being erased after the lifting of the Title 42 public health Order,
including the presence of several large diaspora populations in Mexico
and elsewhere in the hemisphere, the unprecedented recent growth in
migration from countries of origin not previously typical, the already
large number of migrants in proximity to the SWB, and the general
uncertainty surrounding the expected impact of the termination of the
Title 42 public health Order on the movement of migrants. Thus, the
high end of the estimated encounter rate remains a possibility for
which the Departments need to prepare. In the absence of the policy
changes included in the proposed rule, most people processed for
expedited removal under Title 8 will likely establish credible fear and
remain in the United States for the foreseeable future despite the fact
that many of them will not ultimately be granted asylum,\14\ a scenario
that would likely incentivize an increasing number of migrants to the
United States and further increase the likelihood of sustained, high
encounter rates.
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\11\ DHS SWB Encounter Planning Model generated January 6, 2023.
The complexity of international migration limits the Department's
ability to precisely project border encounters under the best of
circumstances. The current period is characterized by greater than
usual uncertainty due to ongoing changes in the major migration
source countries (i.e., the shift from Mexico and Northern Central
America to new countries of origin, discussed further below), the
growing impact of climate change on migration, political instability
in several source countries, the evolving recovery from the COVID
pandemic, and uncertainty generated by border-related litigation,
among other factors.
The DHS Office of Immigration Statistics (OIS) leads an
interagency SWB Encounter Projections Working Group that generates
encounter projections every 2-4 weeks, using the best data and
modeling available. The enterprise encounter projection utilizes a
mixed method blended model that combines a longstanding subject
matter expert model produced by the CBP STAT Division with a
Bayesian structural time series statistical model produced by OIS.
The blended model is run through a standard statistical process
(Monte Carlo simulations) to generate 68 percent and 95 percent
confidence intervals for each of 33 separate demographic groupings.
In light of the greater-than-usual uncertainty at the current time,
the Department's planning models are designed to prepare the
Department for all reasonably likely eventualities, and thereby
focus on the upper bounds of the blended model's 68 and 95 percent
confidence intervals.
\12\ See Part III.E of this preamble.
\13\ Encounters of Cubans, Haitians, and Nicaraguans between
ports of entry at the southwest border declined from 928 on January
5 (the day of the announcement) to just 92 on January 22--a decline
of 92 percent. Encounters of other noncitizens began to rebound from
their typical seasonal drop, increasing by 40 percent during the
same period. OIS analysis of CBP UIP data downloaded January 23,
2023.
\14\ See infra Section III.C.
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Such a high rate of migration risks overwhelming the Departments'
ability to effectively process, detain, and remove, as appropriate, the
migrants encountered. This would put an enormous strain on already
strained resources; risk overcrowding in already crowded U.S. Border
Patrol (``USBP'') stations and border ports of entry in ways that pose
significant health and safety concerns; and create a situation in which
large numbers of migrants--only a small proportion of whom are likely
to be granted asylum--are subject to extreme exploitation by the
networks that support their movements north.
In response to this urgent and extreme situation, the Departments
are proposing a rule that would--
<bullet> account for the lawful, safe, and orderly means for
noncitizens to enter the United States to seek asylum and other forms
of protection,
<bullet> provide core protections for noncitizens who would be
threatened with persecution or torture in other countries, and
<bullet> build upon ongoing efforts to share the responsibility of
providing asylum and other forms of protection to deserving migrants
with the United States' regional partners.
At the same time, the NPRM would address the reality of
unprecedented migratory flows, the systemic costs those flows impose on
the immigration system, and the ways in which a network of increasingly
sophisticated smuggling networks cruelly exploit the system for
financial gain. Specifically, this rule would establish a presumptive
condition on asylum eligibility for certain noncitizens who fail to
take advantage of the existing and expanded lawful pathways \15\ to
enter the United States, including the opportunity to schedule a time
and place to present at a port of entry and thus seek asylum or other
forms of protection in a lawful, safe, and orderly manner, or to seek
asylum or other protection in one of the countries through which they
travel on their way to the United States.
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\15\ The term ``lawful pathways,'' as used in this preamble,
refers to the range of pathways and processes by which migrants are
able to enter the United States or other countries in a lawful,
safe, and orderly manner and seek asylum and other forms of
protection.
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This effort draws, in part, on lessons learned from the successful
Uniting for Ukraine (``U4U'') \16\ and Venezuela parole processes,\17\
as well as the recently implemented processes for Cubans, Haitians, and
Nicaraguans,\18\ under which DHS coupled a mechanism for noncitizens
from these countries to seek entry into the United States in a lawful,
safe, and orderly manner, with the imposition of new consequences for
those who cross the border without authorization to do so--namely
returns to Mexico.\19\ Prior to the implementation of these processes,
the Government of Mexico had not been willing to accept the return of
such nationals; the Government of Mexico's decision to do so was
predicated, in primary part, on the implementation of these processes.
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\16\ See DHS, Uniting for Ukraine (Sept. 16, 2022), <a href="https://www.dhs.gov/ukraine">https://www.dhs.gov/ukraine</a> (last visited Dec. 13, 2022); DHS,
Implementation of the Uniting for Ukraine Parole Process, 87 FR
25040 (Apr. 27, 2022).
\17\ See DHS, DHS Announces New Migration Enforcement Process
for Venezuelans (Oct. 12, 2022), <a href="https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans">https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans</a> (last
visited Dec. 13, 2022); see also DHS, Implementation of a Parole
Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
\18\ These processes are further discussed in Part III.E of this
preamble.
\19\ While the Title 42 public health Order has been in place,
those returns have been made under Title 42. When the Title 42
public health Order is lifted, the affected noncitizens will instead
be subject to removal to Mexico under Title 8.
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Prior to the announcement of U4U, for example, thousands of
Ukrainian migrants, fleeing their country in the wake of Russia's
unprovoked war of aggression, arrived at ports of entry along the SWB
seeking entry into the United States. A large informal encampment
formed in Tijuana, Mexico, and Ukrainian encounters averaged just under
940 per day in the two weeks prior to the announcement of U4U.\20\
After U4U launched and Ukrainian citizens with approved applications
were provided the option to fly directly into the United States--
coupled with the return to Mexico pursuant to the Title 42 public
health Order of Ukrainians who sought to cross irregularly at the land
border--daily SWB encounters of Ukrainians dropped to an average of
just over 12 per day in the two weeks ending May 10, 2022.\21\
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\20\ OIS analysis of data pulled from CBP UIP on December 9,
2022.
\21\ Id.
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Similarly, within a week of the announcement of the Venezuela
parole process on October 12, 2022, the number of Venezuelans
encountered at the SWB fell drastically, from an average of over 1,100
a day from October 5-11 to under 200 per day from October 18-24, and
further declined to 67 per day as of the week ending November 29, 2022,
and 28 per day the week ending January 22.\22\ Similarly, the number of
Cuban, Haitian, and Nicaraguan nationals encountered dropped
significantly in the wake of the new processes being introduced, which
coupled a lawful, safe, and orderly way for such nationals to seek
parole in the United States with consequences (in the form of prompt
returns to Mexico) for those who nonetheless crossed the SWB without
authorization. Between the announcement of these processes on January
5, 2023, and January 21, the number of daily encounters between ports
of entry of Cuban, Haitian, and Nicaraguan nationals dropped from 928
to 92, a 92 percent decline.\23\
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\22\ USBP encountered an average of 225 Venezuelans per day in
November 2022 and 199 per day in December 2022. OIS analysis of data
pulled from CBP UIP on January 23, 2023. Data are limited to USBP
encounters to exclude those being paroled in through ports of entry.
\23\ OIS analysis of data pulled from CBP UIP on January 23,
2023.
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This NPRM, which draws on these successful processes, would
position the Departments to implement a temporary measure that would
discourage irregular migration \24\ by encouraging migrants to
[[Page 11707]]
use lawful, safe, and orderly pathways and allowing for swift returns
of migrants who bypass lawful pathways, even after the termination of
the Title 42 public health Order. It would respond to the expected
increase of migrants seeking to cross the SWB following the termination
of the Title 42 public health Order that would occur in the absence of
a policy shift, by encouraging reliance on lawful, safe, and orderly
pathways, thereby shifting the relevant incentives that otherwise
encourage migrants to make a dangerous journey to the border. It would
also be responsive to the requests of foreign partners that have lauded
the sharp reductions in irregular migration associated with the
aforementioned process for Venezuelans and have urged that the United
States continue and build on this kind of approach, which couples
processes for individuals to travel directly to the United States with
consequences at the land border for those who do not avail themselves
of these processes. The United States has, as noted above, already
extended this model to Cuba, Haiti, and Nicaragua. The Departments
assess that continuing to build on this approach is critical to our
ongoing engagements with regional partners, in particular the
Government of Mexico, regarding migration management in the region.
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\24\ In this NPRM, ``irregular migration'' refers to the
movement of people into another country without authorization.
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Consonant with these efforts, the United States already has taken
significant steps to expand safe and orderly options for migrants to
lawfully enter the United States. The United States has, for example,
increased and will continue to increase--
<bullet> refugee processing in the Western Hemisphere;
<bullet> country-specific and other available processes for
individuals seeking parole for urgent humanitarian reasons or other
reasons of significant public benefit; and
<bullet> opportunities to lawfully enter the United States for the
purpose of seasonal employment.
In addition, once the Title 42 public health Order is terminated,
the United States will expand implementation of the CBP One application
(``CBP One app''), an innovative mechanism for noncitizens to schedule
a time to arrive at ports of entry at the SWB, to allow an increasing
number of migrants who may wish to claim asylum to request an available
time and location to present and be inspected and processed at certain
ports of entry, in accordance with operational limitations at each port
of entry.\25\ Use of this app protects migrants from having to wait in
long lines of unknown duration at the ports of entry, and enables the
ports of entry to manage the flows in a safe and efficient manner,
consistent with their footprint and operational capacity, which vary
substantially across the SWB. Once present in the United States, those
who enter through this mechanism would be able to make claims for
asylum and other forms of protection and would be exempted from this
proposed rule's rebuttable presumption on asylum eligibility. They
would be vetted and screened, and assuming no public safety or national
security concerns, would be eligible to apply for employment
authorization after crossing the border as they await resolution of
their cases.\26\
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\25\ As of January 12, 2023, this mechanism is currently
available for noncitizens seeking to cross SWB land ports of entry
to request a humanitarian exception from the Title 42 public health
Order. See CBP, Fact Sheet: Using CBP One<SUP>TM</SUP> to Schedule
an Appointment (last modified Jan. 12, 2023), <a href="https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english">https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english</a> (last visited Jan.
13, 2023). Once the Title 42 public health Order is terminated, and
the ports of entry open to all migrants who wish to seek entry into
the United States, this mechanism will be broadly available to
migrants in central and northern Mexico, allowing them to request an
available time and location to present and be inspected and
processed at certain ports of entry.
\26\ Under current employment authorization regulations, there
is no waiting period before a noncitizen parolee in this
circumstance may apply for employment authorization. See 8 CFR
274a.12(c)(11).
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These and other available pathways increase the accessibility of
humanitarian protection and other immigration benefits in ways that
provide a lawful, safe, and orderly mechanism for migrants to make
their protection claims. Consistent with U4U and the CHNV processes,
this proposed rule would also position the Departments to impose
consequences on certain noncitizens who fail to avail themselves of the
range of lawful, safe, and orderly means for seeking protection in the
United States or elsewhere. Specifically, this proposed rule would
establish a rebuttable presumption that certain noncitizens who enter
the United States without documents sufficient for lawful admission are
ineligible for asylum, if they traveled through a country other than
their country of citizenship, nationality, or, if stateless, last
habitual residence, unless they were provided appropriate authorization
to travel to the United States to seek parole pursuant to a DHS-
approved parole process; presented at a port of entry at a pre-
scheduled time or demonstrate that the mechanism for scheduling was not
possible to access or use; or sought asylum or other protection in a
country through which they traveled and received a final decision
denying that application. This presumption could be rebutted, and would
necessarily be rebutted if, at the time of entry, the noncitizen or a
member of the noncitizen's family had an acute medical emergency; faced
an imminent and extreme threat to life or safety, such as an imminent
threat of rape, kidnapping, torture, or murder; \27\ or satisfied the
definition of ``victim of a severe form of trafficking in persons''
provided in 8 CFR 214.11. The presumption also would be rebutted in
other exceptionally compelling circumstances, as the adjudicators may
determine in the sound exercise of the judgment permitted to them under
the proposed rule. Unaccompanied children would be excepted from this
presumption.
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\27\ The term ``imminent'' refers to the immediacy of the
threat; it makes clear that the threat cannot be speculative, based
on generalized concerns about safety, or based on a prior threat
that no longer poses an immediate threat. The term ``extreme''
refers to the seriousness of the threat; the threat needs to be
sufficiently grave, such as a threat of rape, kidnapping, torture,
or murder, to trigger this ground for rebuttal.
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The rebuttable presumption would be a ``condition[ ]'' on asylum
eligibility, INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C),
(d)(5)(B), that would apply in affirmative and defensive asylum
application merits adjudications, as well as during credible fear
screenings. Individuals subject to the rebuttable presumption would
remain eligible for statutory withholding of removal and protection
under the regulations implementing U.S. obligations under Article 3 of
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'').\28\
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\28\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
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With the availability to schedule a time and place to arrive at
U.S. ports of entry and other lawful pathways, this proposed system is
designed to protect against an unmanageable flow of migrants arriving
at the SWB; ensure that those with valid asylum claims have an
opportunity to have their claims heard, whether in the United States or
elsewhere; enable the Departments to continue administering the
immigration laws fairly and effectively; and reduce the role of
exploitative transnational criminal organizations and smugglers.
The Departments propose that the rule would apply to noncitizens
who enter the United States without authorization at the southwest land
border on or after the date of termination of the Title 42 public
health Order and before a specified sunset date, 24 months from the
rule's effective
[[Page 11708]]
date. After the sunset date, the rule would continue to apply to such
noncitizens during their Title 8 proceedings. The Departments intend
that the rule would be subject to a review prior to its scheduled
termination date, to determine whether the rebuttable presumption
should be extended, modified, or sunset as provided in the rule.
Issuance of this rule is justified in light of the migration
patterns witnessed in late November and December of 2022, and the
concern about the possibility of a surge in irregular migration upon,
or in anticipation of, the eventual lifting of the Title 42 public
health Order. The Departments seek to obtain public comment on the
proposal and to avoid any misimpression that migrants will be able to
cross the border without authorization, and without consequence, upon
the eventual lifting of the Order. Under this proposed rule the
Departments would use their Title 8 authorities to process, detain, and
remove, as appropriate, those who cross the SWB without authorization
and do not have a valid protection claim.
The Departments are issuing this proposed role with a 30-day
comment period because they seek to be in a position to finalize the
proposed rule, as appropriate, before the Title 42 public health Order
is lifted. The lifting of the Order could occur as a result of several
different litigation and policy developments, including the vacatur of
the preliminary injunction entered in Louisiana v. CDC, No. 22-cv-885,
2022 WL 1604901 (W.D. La. May 20, 2022), appeal pending, No. 22-30303
(5th Cir.); the lifting of the stay entered by the Supreme Court in
Arizona v. Mayorkas, No. 22A544, 2022 WL 17957850 (U.S. Dec. 27, 2022);
or ``the expiration of the Secretary of HHS' declaration that COVID-19
constitutes a public health emergency,'' 86 FR at 42829. The
termination of the Secretary of HHS' declaration that COVID-19
constitutes a public health emergency is expected to occur on May 11,
2023 in light of the recent announcement that ``[a]t present, the
Administration's plan is to extend'' the public health emergency to May
11 and then end it on that date, Office of Mgmt. & Budget, Exec. Office
of the President, Statement of Administration Policy (Jan. 30, 2023),
available at <a href="https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf</a>. The Departments are thus seeking to move as
expeditiously as possible, while also allowing sufficient time for
public comment. For similar reasons, the Departments may conclude that
it is necessary to shorten or forgo the standard 30-day delay in the
final rule's effective date. In addition, if, prior to the issuance of
the final rule, the Title 42 public health Order is lifted or encounter
rates rise significantly (even without the lifting of the Title 42
public health Order), the Departments intend to take appropriate
action, consistent with the Administrative Procedure Act (``APA''),
which may include issuance of a temporary or interim final rule similar
to this NPRM while the Departments complete the notice-and-comment
rulemaking process.
The Departments are requesting comments on all aspects of the NPRM
and particularly welcome comments addressing the following issues:
<bullet> Whether the proposed duration of the rule should be
modified, including whether it should be shorter, longer, or of
indefinite duration;
<bullet> Whether the Departments should modify, eliminate, or add
to the proposed grounds for necessarily rebutting the rebuttable
presumption;
<bullet> Whether the Departments should modify, eliminate, or add
to the proposed exceptions to the rebuttable presumption;
<bullet> Whether the proposed mechanisms for evaluating asylum,
statutory withholding, and CAT claims should be retained or modified;
<bullet> Whether any further regulatory provisions should be added
or amended to address the application of the rebuttable presumption in
adjudications that take place after the rule's sunset date; and
<bullet> Whether the proposed rule appropriately provides migrants
a meaningful and realistic opportunity to seek protection.
In addition, although the Departments have not identified any
persons or entities with justifiable reliance interests in the status
quo concerning eligibility for asylum--which is an entirely
discretionary benefit--the Departments welcome comments on the
existence of reliance interests and the best ways to address them.
III. Background
A. Migratory Trends
Political and economic instability, coupled with the lingering
adverse effects of the COVID-19 global pandemic, have fueled a
substantial increase in migration throughout the world. This global
increase is reflected in the trends on our border, where we have
experienced a sharp increase in encounters of non-Mexican nationals
over the past two years, and particularly in the final months of 2022.
Throughout the 1980s and into the first decade of the 2000s, encounters
along the SWB routinely numbered in excess of one million per year,
with USBP averaging 1.2 million encounters per year from Fiscal Year
(``FY'') 1983 through FY 2006.\29\ By the early 2010s, three decades of
investments in border security and strategy contributed to reduced
border flows, with USBP averaging fewer than 400,000 encounters per
year from 2011-2018.\30\ These gains were subsequently reversed,
however, as USBP SWB encounters more than doubled between 2017 and 2019
to reach a 12-year high.\31\ Following a steep drop in the first months
of the COVID-19 pandemic, encounters almost doubled again in 2021 as
compared to 2019, increased by an additional one-third between 2021 and
2022, and reached an all-time high of 2.2 million USBP SWB encounters
in FY 2022.\32\ Encounters in the first quarter of FY 2023 (October-
December 2022) exceeded the same period in FY 2022 by more than a
third, and non-Mexican encounters in this same period were up 61
percent over the previous year.\33\ (See Figure 1, below.)
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\29\ OIS analysis of historic USBP data. Encounter data prior to
2005 are only available for U.S. Border Patrol. All numbers in this
paragraph are likewise therefore limited to USBP encounters.
\30\ Id.
\31\ Id.
\32\ Id. As discussed in the following section, encounter data
from March 2020 through the current data somewhat overstate flows to
the border since repeat encounters have been markedly higher during
the period that Title 42 expulsions have been completed.
\33\ OIS Persist data through December 31, 2022.
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1. Changing Demographics
Shifts in migrants' demographics have accelerated the increase in
flows. Border encounters in the 1980s and 1990s consisted
overwhelmingly of single adults from Mexico, most of whom were
migrating for economic reasons.\34\ Beginning in the 2010s, a growing
share of migrants have been from Northern Central America (``NCA'')
\35\ and, since the late 2010s, from countries throughout the
Americas.\36\ As the
[[Page 11709]]
make-up of border crossers has expanded from Mexican single adults to
single adults and families from throughout the hemisphere (and beyond),
the number of encounters has increased; those encountered also have
been more likely to seek asylum and other forms of relief.\37\
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\34\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 96 to over 99 percent of
apprehensions of persons entering without inspection between 1980
and 2000. On Mexican migrants from this era's demographics and
economic motivations, see Jorge Durand et al., ``The New Era of
Mexican Migration to the United States,'' 86 The Journal of American
History, no. 2, 518 (1999) (addressing the demographics and economic
motivations of Mexican migrants from this era).
\35\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\36\ According to OIS Production data, Mexican nationals
continued to account for 89 percent of total SWB encounters in FY
2010, with Northern Central Americans accounting for 8 percent and
all other nationalities for 3 percent. Northern Central Americans'
share of total encounters increased to 21 percent by FY 2012 and
averaged 46 percent in FY 2014-FY 2019, the last full year before
the start of the COVID-19 pandemic. All other countries accounted
for an average of 5 percent of total SWB encounters in FY 2010-FY
2013, and for 10 percent of total encounters in FY 2014-FY 2019.
\37\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, 6 percent of Mexican nationals
made fear claims that were referred to USCIS for adjudication
compared to 57 percent of people from Northern Central America and
90 percent of all other nationalities. OIS analysis of Enforcement
Lifecycle data as of September 30, 2022.
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The application of Title 42 authorities at the land border also has
altered migratory patterns, in part by incentivizing individuals who
are expelled--without being issued a removal order, which, unlike a
Title 42 expulsion order, carries immigration consequences \38\--to try
to re-enter, often multiple times.\39\ For this reason, the growth in
encounters since 2021 is best assessed by comparing unique encounters--
defined as the number of individuals who are encountered in a given
year, instead of the total number of encounters, which can include a
single migrant who sought to enter multiple times and is counted as an
encounter each time--in recent months to those in the pre-pandemic
period of FY 2014-FY 2019.\40\
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\38\ For example, subject to certain exceptions, noncitizens
ordered removed pursuant to expedited removal (INA section
235(b)(1), 8 U.S.C. 1225(b)(1)) or section 240 (8 U.S.C. 1229a)
removal proceedings initiated at the time of arrival in the United
States are inadmissible for five years after the date of removal.
INA 212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i). Noncitizens
previously removed pursuant to expedited removal orders or section
240 removal orders who enter or attempt to re-enter the United
States without being admitted are also inadmissible pursuant to
section 212(a)(9)(C)(i)(II) of the INA, 8 U.S.C.
1182(a)(9)(C)(i)(II). Such noncitizens may be subject to
reinstatement of such a prior order of removal upon subsequent
illegal re-entry. INA 241(a)(5), 8 U.S.C. 1231(a)(5).
\39\ According to OIS analysis of OIS Persist Data through June
30, 2022, a total of 39 percent of noncitizens expelled under the
Title 42 authority between March 2020 and May 2022 were re-
encountered within one month, compared to 5 percent of those
repatriated after issuance of a removal order issued pursuant to
Title 8 authorities; and 12-month re-encounter rates were 47 percent
for Title 42 expulsions compared to 14 percent for Title 8
repatriations. Persons expelled under the Title 42 authority were
more likely to be re-encountered than those repatriated after
issuance of a removal order issued pursuant to Title 8 authorities,
regardless of citizenship or family status.
\40\ The period FY 2014-FY 2019 is chosen as the comparison
period because these were the first years in which non-Mexicans
consistently accounted for a large and growing share of SWB
encounters. The period since FY 2021 focuses on unique encounters,
defined as persons not previously encountered in the 12 months prior
to the referenced encounter date, because Title 42 has contributed
to much higher repeat encounter rates, as 28 percent of SWB
encounters since April 2020 have been repeat encounters, where
repeat encounters are defined as encounters of individuals
previously encountered in the preceding 12 months, compared to 15
percent of SWB encounters in FY 2013 through February 2020. OIS
Persist Dataset based on data through December 31, 2022. (Detailed
data on repeat versus unique encounters are not available before FY
2013.)
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The number of unique encounters increased sharply in FY 2021 to
1,126,888 (and 1,734,683 total encounters) from an average of 471,216
unique encounters (and 581,045 total encounters) per year in FY 2014-FY
2019.\41\ Notably, both the number and percentage of unique encounters
from countries other than Mexico and NCA contributed to a big share of
this increase, rising sharply in FY 2021 to 322,123 (representing 29
percent of unique encounters), from an average of 40,549 per year (8
percent of unique encounters) in FY 2014-FY 2019.\42\ This trend
continued in FY 2022, with unique encounters reaching 1,741,506
(2,378,945 total encounters). This increase was largely driven by
nationals of countries other than Mexico and NCA, accounting for
972,191 unique encounters (1,028,987 total encounters) in FY 2022 (56
percent of unique encounters; 43 percent of total encounters) and
424,530 unique encounters (442,932 total encounters) in the first three
months of FY 2023 (71 percent of unique encounters; 62 percent of total
encounters).\43\ Migrant populations from these newer source countries
have included large numbers of families and children.\44\
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\41\ OIS Persist Dataset based on data through December 31,
2022.
\42\ Id.
\43\ Id.
\44\ A total of 65 percent of unique NCA encounters and 40
percent of all other unique non-Mexican encounters were
unaccompanied children or family unit individuals in FY 2021-FY
2023Q1, compared to 13 percent of unique Mexican encounters. OIS
Persist Dataset based on data through December 31, 2022.
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Much of this shift is driven by a significant increase in unique
encounters of CHNV nationals, which jumped more than ten-fold from an
average of 15,557 in FY 2014-FY 2019 to 169,436 in FY 2021, with total
CHNV encounters increasing from an average of 33,095 to 184,716.\45\
CHNV unique encounters increased sharply again in FY 2022 to 605,690
(626,410 total encounters), constituting 35 percent of all unique
encounters in FY 2022 and 26 percent of total encounters that year.\46\
Overall, unique encounters of CHNV nationals rose 257 percent between
FY 2021 and FY 2022 (with total CHNV encounters rising 239 percent),
unique encounters of Brazilians, Colombians, Ecuadorans, and Peruvians
increased 100 percent (with total encounters increasing 56 percent),
and unique encounters of Mexican and NCA nationals fell 4 percent (with
total encounters falling 0.5 percent).\47\ These trends continued in
the first 3 months of FY 2023, with CHNV countries accounting for 40
percent of unique encounters October-December 2022 and Brazilians,
Colombians, Ecuadorans, and Peruvians climbing to 19 percent.\48\ (See
Figure 2, below.)
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\45\ OIS Persist Dataset based on data through December 31,
2022.
\46\ Id.
\47\ Id. Of note, OIS utilizes a rigorous record matching
methodology to generate unique encounter data, and the program is
only run monthly upon receipt of CBP's official monthly encounter
data. (The official encounter data are also only produced monthly
after the real-time data go through extensive quality control.) OIS
has only extended its person-level record matching back to 2013. For
these reasons, unique encounter records are only available for
encounters occurring between 2013 and December 2022. Most references
in this preamble report on total encounter data, instead of unique
encounter data, since it allows analysis of more recent numbers as
well as longer historic comparisons. To the extent we are relying on
unique encounters, the text will explicitly say so.
\48\ Id.
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BILLING CODE 4410-30-P
Figure 1: SWB U.S. Border Patrol Encounters, FY 1960-FY 2022
[[Page 11710]]
[GRAPHIC] [TIFF OMITTED] TP23FE23.011
Note: Figure is limited to U.S. Border Patrol encounters because
Office of Field Operations data are unavailable prior to 2005.
Border Patrol encounters account for 87 percent of SWB encounters
since FY 2009.
Source: OIS analysis of CBP data and OIS Production data through
December 31, 2022.
Figure 2: Total SWB Encounters by Selected Citizenships, FY 2010-
December 2022
[GRAPHIC] [TIFF OMITTED] TP23FE23.012
Source: OIS Production data through December 31, 2022.
BILLING CODE 4410-30-C
2. Impact on Regional Partners
These migratory flows have affected every country throughout the
Western Hemisphere. In the first nine months of 2022 alone, the
Government of Colombia encountered over 170,000 Venezuelan migrants; as
of September 2022, there were nearly 2.5 million Venezuelans living in
Colombia, compared to 1.7 million in September 2021, representing an
increase of approximately 800,000 in just one year.\49\ From January
through October 2022, the Government of Panama encountered
approximately 210,000 irregular migrants having crossed through the
Dari[eacute]n Gap--a dangerous 100-kilometer stretch of dense jungle
between Colombia and Panama, which is particularly notorious for the
violence of the human smugglers operating in lawless stretches of
jungle \50\--with nearly 60,000 migrants crossing into Panama
irregularly via the Dari[eacute]n Gap in October 2022 alone, a sharp
increase compared to the almost 5,000 migrants encountered in January
2022.\51\ The
[[Page 11711]]
Costa Rican migration agency similarly reports that 3,700 migrants were
arriving every single day at Costa Rica's border with Panama in October
2022.\52\ Meanwhile, the number of displaced Nicaraguans in Costa Rica
doubled in an eight-month period, reaching more than 150,000 in
February 2022, before the same figure increased to approximately
200,000 by June 2022.\53\ Nicaraguans also claimed asylum in Mexico at
three times the rate in 2022 as compared to 2021 \54\ and, as discussed
above, are being encountered on our border at an unprecedented rate.
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\49\ R4V, Regional Refugee and Migrant Response Plan 2023-2024
(Nov. 30, 2022), <a href="https://www.r4v.info/en/rmrp2023-2024">https://www.r4v.info/en/rmrp2023-2024</a> (last visited
Dec. 15, 2022); R4V, Refugees and Migrants from Venezuela (Dec. 12,
2022), <a href="https://www.r4v.info/en/refugeeandmigrants">https://www.r4v.info/en/refugeeandmigrants</a> (last visited Dec.
15, 2022).
\50\ Refugees International, Life on the Edge of the Darien Gap
(June 16, 2022) <a href="https://www.refugeesinternational.org/reports/2022/6/16/life-on-the-edge-of-the-darien-gap">https://www.refugeesinternational.org/reports/2022/6/16/life-on-the-edge-of-the-darien-gap</a> (last visited Dec. 15,
2022); United Nations Office on Drugs and Crime, Abused and
Neglected: A Gender Perspective on Aggravated Migrant Smuggling
Offences and Response, <a href="https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf">https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf</a> (last visited Dec.
11, 2022).
\51\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, <a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last visited
Dec. 11, 2022).
\52\ Michael D. McDonald, The American Dream Is Over for
Venezuelans Stranded in Costa Rica, Bloomberg, Oct. 27, 2022,
<a href="https://www.bloomberg.com/news/articles/2022-10-27/american-dream-is-over-for-venezuelans-stranded-in-costa-rica">https://www.bloomberg.com/news/articles/2022-10-27/american-dream-is-over-for-venezuelans-stranded-in-costa-rica</a> (last visited Dec.
13, 2022).
\53\ Boris Cheshirkov, Number of Displaced Nicaraguans in Costa
Rica Doubles in Less than a Year, UNHCR, Mar. 25, 2022, <a href="https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html">https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html</a> (last visited Dec. 13,
2022); UNHCR, Costa Rica Fact Sheet September 2022 (Oct. 30, 2022),
<a href="https://reliefweb.int/report/costa-rica/costa-rica-fact-sheet-september-2022">https://reliefweb.int/report/costa-rica/costa-rica-fact-sheet-september-2022</a> (last visited Dec. 13, 2022) (``As of June 30, 2022,
Costa Rica was hosting 215,933 people of concern: of these, 11,205
are refugees and 204,728 asylum seekers, the majority Nicaraguans
(89%).'').
\54\ See Government of Mexico, La COMAR en N[uacute]meros (Dec.
2022), <a href="https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf">https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf</a> (last visited Feb. 1, 2023).
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Mexico has similarly experienced a sharp increase in irregular
migration in recent months. In October 2022, the Government of Mexico
encountered more than 50,000 irregular migrants, almost doubling the
numbers encountered only a few months earlier.\55\ This increase was
driven largely by a dramatic rise in Venezuelan encounters, which rose
from about 1,200 in February 2022 to more than 20,000 in October
2022.\56\ In addition to Venezuela and the NCA countries, Mexico also
saw consistently high volumes from a wide range of countries in the
Western Hemisphere, including Brazil, Colombia, Cuba, Ecuador,
Nicaragua, and Peru.\57\ From January to October 2022, some 350,000
irregular migrants have been encountered in Mexico, which is already
more than it encountered in all of calendar year 2021.\58\
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\55\ Government of Mexico, Events of People in an Irregular
Migratory Situation in Mexico by Continent and Country of
Nationality, 2022 (Cuadro 3.1.1), <a href="http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/CuadrosBOLETIN?Anual=2022&Secc=3">http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/CuadrosBOLETIN?Anual=2022&Secc=3</a> (last visited Dec. 11, 2022).
\56\ Id.
\57\ Id.
\58\ Id.
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The increased flow of Venezuelans and Nicaraguans has posed a
particular concern for the region, as neither government accepts the
repatriation of their nationals at anywhere near the scale at which
they are currently migrating. Colombia is hosting more than 2 million
Venezuelans and has granted temporary protection to 1.5 million; Peru
is hosting 1.5 million Venezuelans, including over 500,000 asylum
seekers; Brazil and Chile are hosting 380,000 Haitians; and Costa Rica
is hosting more than 200,000 Nicaraguans and recently announced its
intention to grant Nicaraguans and Venezuelans temporary
protection.\59\
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\59\ UNHCR, Colombia Operational Update: January-February 2022
(Mar. 19, 2022), <a href="https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022">https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022</a> (last visited Dec. 4,
2022); The White House, Fact Sheet: The Los Angeles Declaration on
Migration and Protection U.S. Government and Foreign Partner
Deliverables (June 10, 2022) (``L.A. Declaration Fact Sheet''),
<a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/</a> (last
visited Dec. 13, 2022); UNHCR, Peru, <a href="https://reporting.unhcr.org/peru">https://reporting.unhcr.org/peru</a> (last visited Dec. 11, 2022); Migration Policy Institute,
Haitian Migration through the Americas: A Decade in the Making
(Sept. 30, 2021), <a href="https://www.migrationpolicy.org/article/haitian-migration-through-americas">https://www.migrationpolicy.org/article/haitian-migration-through-americas</a> (last visited Dec. 13, 2022); Alvaro
Murillo et al., Costa Rica Prepares Plan to Regularize Status of
200,000 Mostly Nicaraguan Migrants, Reuters, Aug. 10, 2022, <a href="https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/">https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/</a> (last visited
Dec. 13, 2022).
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3. Venezuela Process
As described above, on October 12, 2022, in an effort to address
the significant increase in Venezuelan migrants, the United States and
Mexico jointly announced a new process that was modeled on the
successful U4U process, seeking to incentivize Venezuelans to use a new
lawful process to come to the United States and disincentivize them
from traveling to the U.S.-Mexico land border. Specifically, the
Venezuela process allows eligible Venezuelan nationals, and their
family members, to request an advance authorization to travel to the
United States, which, if issued, allows them to travel to the United
States to be considered for a case-by-case determination of parole by
U.S. Customs and Border Protection (``CBP'') officers. The initiation
of this process was paired with a decision by the Mexican Government to
accept the return (under the Title 42 public health Order currently in
place) of Venezuelans who sought to cross the U.S.-Mexico border
irregularly. The United States Government is currently in close
consultation with the Government of Mexico, as well as other foreign
partners, to accept the return of third-country nationals under Title 8
authorities, including Venezuelan nationals, subsequent to the lifting
of the Title 42 public health Order.
The Venezuela process has had a profound impact on the movement of
Venezuelan migrants throughout the region. In the week leading up to
the October 12, 2022, announcement, the United States was encountering
approximately 1,100 Venezuelans between ports of entry at its SWB every
day; numbers fell sharply within weeks and averaged 67 Venezuelans per
day the week ending November 29, 2022, and 28 per day the week ending
January 22, 2023.\60\ Panama's daily encounters of Venezuelans also
declined significantly in the wake of the parole process, falling some
88 percent, from 4,339 on October 16, 2022, to 532 by the end of that
month. In October 2022, there were a total of 59,773 migrants who
irregularly entered Panama; as a result of the sharp decline in
Venezuelan migration, Panama encountered 16,632 migrants in
November.\61\
---------------------------------------------------------------------------
\60\ OIS analysis of data pulled from CBP UIP on January 23,
2023.
\61\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, <a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last visited
Dec. 11, 2022).
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The success of the Venezuela process provided a model for the
subsequently announced Cuban, Haitian, and Nicaragua processes and
supports this proposed rule. These processes demonstrate that the
availability of processes to enter the United States in an orderly
manner, coupled with consequences imposed on those who bypass lawful
pathways, can significantly change migratory patterns in ways that
protect migrants from a dangerous journey, reduce the role of
pernicious smuggling networks, and respond to the urgency of the
moment, given the current and anticipated flows and capacity
limitations at the SWB.
4. Processes for Cubans, Haitians, and Nicaraguans
On January 5, 2023, as part of the United States' continued efforts
to decrease migration flows at the SWB and building upon the successes
of the Venezuela process, DHS announced similar border enforcement
measures to address the significant increase in encounters of Cuban,
Haitian, and Nicaraguan nationals attempting to enter the United States
without
[[Page 11712]]
authorization.\62\ Further, DHS lifted the initial cap of 24,000 on the
number of parolees eligible for the previously implemented Venezuela
process and replaced it with a monthly cap of 30,000 travel
authorizations spread across the four separate parole processes.\63\
Although it has only recently been implemented, initial results
indicate that the parole processes for Cuban, Haitian, and Nicaraguan
nationals--which coupled the implementation of new pathways for
nationals from these countries to enter the United States with the
prompt return to Mexico of those who arrived at the SWB without advance
authorization--have had a similar effect as the Venezuela process in
disincentivizing migrants from these countries from making the
dangerous irregular journey to United States. In the first weeks after
the announcement, encounters of Cubans, Haitians, and Nicaraguans
(``CHNs'') between ports of entry on the SWB declined from 928 on the
day of the announcement (January 5, 2023) to just 92 on January 22--a
decline of 92 percent. The decline in encounters of nationals of these
countries occurred even as encounters of other noncitizens began to
rebound from their typical seasonal drop.\64\
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\62\ See, DHS, DHS Continues to Prepare for End of Title 42;
Announces New Border Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), <a href="https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and">https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and</a> (last visited Jan. 30, 2023).
\63\ See 88 FR 1279, 1280 (Jan. 9, 2023).
\64\ OIS analysis of CBP UIP data downloaded January 23, 2023.
SWB encounters typically fall in the weeks between Christmas and
mid-January, a pattern also observed in the 2022-2023 cycle. Total
SWB encounters between ports of entry averaged 7,728 per day for
December 1-24, 2022, and then dropped to an average of almost 4,900
per day between December 25, 2022 and January 1, 2023, including a
low of 2,750 on the first. Similarly, encounters of Cubans,
Haitians, and Nicaraguans between ports of entry averaged 2,828 per
day December 1-24 and dropped to an average of just over 1,300 per
day December 25-January 1, including a low of 467 on January 1. Yet
while encounters of all groups rebounded after New Year's, CHN and
non-CHN nationals have diverged since the announcement of the new
processes, with encounters of non-CHN nationals increasing 67
percent January 1-22 and encounters of CHN nationals falling back
below their New Year's day level. Id.
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5. Border Encounters Remain High, and Are Likely To Increase Further
Absent Additional Policy Changes
Despite the sharp decrease in Venezuelan migration encountered at
the U.S. border in the wake of implementation of the Venezuela process,
the baseline number of total SWB encounters remained high throughout
the end of 2022--and significantly higher than the historical average
of less than 1,600 encounters per day from 2014-2019.\65\ For the 30
days ending December 24, 2022, total daily encounters along the SWB
consistently fluctuated between approximately 7,100 and 9,700,
averaging approximately 8,500 per day, with encounters exceeding 9,000
per day on twelve different occasions during this 30-day period.\66\
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\65\ OIS Persist Dataset based on data through December 2022.
\66\ OIS analysis of data pulled from CBP UIP on January 4,
2023.
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The number of migrants crossing the Dari[eacute]n Gap and heading
north also remained high by historical standards, even after the number
of Venezuelan migrants began to decline.\67\ Almost 110,000 migrants
traveled through the Dari[eacute]n Gap between 2010 and 2019.\68\ The
majority of these encounters occurred in 2015, 2016, and 2019, which
saw 29,289, 30,055, and 22,102 encounters per year, respectively; \69\
encounters were fewer than 10,000 all other years.\70\ This is compared
to over 16,000 in the month of November alone in 2022.\71\ As of the
end of November 2022, approximately 4,000 migrants crossed the
Dari[eacute]n Gap per week on average from a wide range of countries,
including most prominently Ecuador and Haiti,\72\ and NGOs operating in
Mexico reported that there were at least 125,000 migrants moving
northward through Mexico that month as well, many of whom may seek to
make their way to the SWB.\73\
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\67\ Government of Panama, Baja Ingreso de Migrantes Irregulares
a Panam[aacute] (Oct. 28, 2022), <a href="https://www.migracion.gob.pa/inicio/noticias/878-baja-ingreso-de-migrantes-irregulares-a-panama">https://www.migracion.gob.pa/inicio/noticias/878-baja-ingreso-de-migrantes-irregulares-a-panama</a>
(last visited Dec. 13, 2022).
\68\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]--Colombia 2010-2019, <a href="https://www.migracion.gob.pa/images/img2021/pdf/IRREGULARES%202010-2019%20actualizado.pdf">https://www.migracion.gob.pa/images/img2021/pdf/IRREGULARES%202010-2019%20actualizado.pdf</a> (last visited Dec. 8, 2022).
\69\ Id.
\70\ Id.
\71\ Government of Panama, Irregulares en Tr[aacute]nsito
Frontera Panam[aacute]-Colombia 2022, <a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last visited
Dec. 11, 2022).
\72\ Id.
\73\ La Prensa Latina Bilingual Media, NGOs Estimate 125K
Migrants Moving North Through Southern Mexico (Nov. 7, 2022),
<a href="https://www.laprensalatina.com/ngos-estimate-125k-migrants-moving-north-through-southern-mexico/">https://www.laprensalatina.com/ngos-estimate-125k-migrants-moving-north-through-southern-mexico/</a> (last visited Dec. 13, 2022).
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Meanwhile, the refusal of certain countries to accept the removal
of their own nationals poses particular challenges. There was a
significant increase in the number of encounters of Cuban and
Nicaraguan nationals at the SWB in the fall of 2022--in part driven by
the fact that, generally, neither country accepts removals of their
nationals at the rate the United States seeks to remove them. Nationals
from these two countries accounted for over 83,000 SWB encounters in
the 30 days ending December 24, 2022--an average of approximately 2,770
a day, as compared to an average of approximately 1,570 a day in the 30
days preceding the April 1, 2022, CDC termination order.\74\ Cubans and
Nicaraguans together accounted for just over 32 percent of total
encounters during the more recent time period.\75\ These challenges
prompted the January 5, 2023, adoption of new parole processes for
Cuban, Haitian, and Nicaraguan nationals that combine the
implementation of lawful, safe, and orderly pathways for nationals from
those countries to seek to come to the United States, coupled with the
prompt return of those who fail to use these lawful processes. This was
made possible by the Government of Mexico's independent decision to
start accepting returns of nationals of these countries--a decision
that was in part contingent on the implementation of these new lawful
processes for migrants from these countries to enter the United States
without making the dangerous journey to the SWB. Within the first weeks
of implementation, the numbers of Cuban, Haitian, and Nicaraguan
nationals encountered at the SWB without authorization decreased
significantly, and while these processes are in place, DHS anticipates
that encounters of Cuban, Haitian, and Nicaraguan nationals will remain
low, as compared to the numbers encountered at the end of 2022, akin to
the results that were observed following the implementation of the
Venezuela process. However, DHS anticipates that flows from all four
countries would increase--perhaps significantly--in the absence of (1)
a policy change to allow for swift removal of inadmissible noncitizens;
and (2) the Government of Mexico's continued willingness to accept the
returns of CHNV nationals, once the Title 42 public health Order is
lifted.
---------------------------------------------------------------------------
\74\ OIS Persist Dataset based on data through October 2022, and
OIS analysis of data pulled from CBP UIP on January 4, 2023.
\75\ OIS analysis of data pulled from CBP UIP on January 4,
2023.
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Specifically, the DHS Office of Immigration Statistics planning
model assumes that, without a meaningful policy change, border
encounters could rise, and potentially rise dramatically--up to as high
as 13,000 a day--subsequent to the lifting of the Title 42 public
health Order.\76\ As described below, DHS does not currently have the
[[Page 11713]]
infrastructure, personnel, or funding to sustain the processing of
migratory flows of this magnitude in a safe and orderly manner over
time.
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\76\ DHS SWB Encounter Planning Model generated January 6, 2023.
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6. The Importance of Quickly Returning Migrants Without a Legal Basis
To Stay
DHS data shows that the ability to quickly remove individuals who
do not have a legal basis to remain in the United States can reduce
migratory flows--whereas, conversely, the inability or failure to do so
risks yielding increased flows. CBP, for example, saw rapidly
increasing numbers of encounters of Guatemalan and Honduran nationals
from January 2021 until August 2021, when these countries began
accepting the direct return of their nationals via Title 42. In January
2021, CBP encountered an average of 424 Guatemalan nationals and 362
Honduran nationals a day. By August 4, 2021, the 30-day average daily
encounter rates had climbed to 1,249 Guatemalan nationals and 1,502
Honduran nationals--an increase of 195 percent and 315 percent,
respectively. In the 60 days immediately following the resumption of
return flights, average daily encounters fell by 38 percent for
Guatemala and 42 percent for Honduras, as shown in Figure 3 below.\77\
Since then, encounters for both countries have fluctuated but remain
well below the pre-August 4, 2021, numbers; in November 2022,
encounters averaged 481 per day for Guatemala and 433 per day for
Honduras.\78\
---------------------------------------------------------------------------
\77\ OIS analysis of OIS Persist Dataset based on data through
August 31, 2022.
\78\ OIS Persist Dataset based on data through November 2022.
---------------------------------------------------------------------------
Figure 3: Daily Encounters of Guatemalan and Honduran Nationals, May 1-
November 1, 2021
[GRAPHIC] [TIFF OMITTED] TP23FE23.013
Note: Figure depicts 30-day average of daily encounters.
Source: OIS Persist Data as of September 30, 2022.
Returns have proven to be effective, but the Departments do not
believe that they are sufficient. For instance, while the numbers of
encounters of Guatemalan and Honduran nationals have fallen, in the 30
days ending December 24, 2022, CBP encountered an average of around 970
nationals from these two countries each day.\79\ The provision of
lawful processes for individuals who intend to migrate is also a
critical component to reducing migratory flows, particularly when
paired with a consequence for bypassing such lawful pathways--a model
that has been proven to work by U4U and the Venezuela process in recent
months, as detailed above.
---------------------------------------------------------------------------
\79\ OIS analysis of data pulled from CBP UIP on January 3,
2023.
---------------------------------------------------------------------------
7. The Pernicious Role of Smuggling Networks
As described above, migratory movements to the SWB are in many
cases facilitated by, and actively encouraged by, human smuggling
organizations that exploit migrants for profit. These smuggling
networks have become more and more sophisticated over time,
increasingly using social media to deceive migrants and lure them into
initiating a dangerous journey during which they may be robbed and
otherwise harmed, often with false promises about what will happen to
them when they reach the United States.\80\ Migrants often pay large
sums to be brought through jungles, mountains, and rivers, frequently
with small children in tow.
---------------------------------------------------------------------------
\80\ Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
<a href="https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media">https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media</a> (last visited Dec. 6,
2022).
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The Dari[eacute]n Gap is particularly notorious for the violence of
the human smugglers operating in lawless stretches of the jungle.\81\
As of October 2022, over 210,000 migrants have travelled to the SWB
from South America through the Dari[eacute]n Gap in 2022 alone.\82\ The
International Organization for Migration (``IOM'') reports that as of
October 2022, 30 individuals had died crossing the Dari[eacute]n Gap in
2022, including nine
[[Page 11714]]
children.\83\ Women and children are particularly vulnerable to attack
and injury; children are also at risk for diarrhea, respiratory
diseases, dehydration, and other ailments that require immediate
attention. The Panamanian Red Cross reports that 10 to 15 percent of
migrants are sexually assaulted crossing the Dari[eacute]n Gap.\84\
Upon reaching the border area, noncitizens seeking to cross into the
United States usually pay transnational criminal organizations--
including, increasingly, the Mexican drug cartels--to coordinate and
guide them along the final miles of their journey.\85\ This cartel-
controlled movement of people across the border is a billion-dollar
criminal enterprise, in which the migrants pay thousands of dollars to
be smuggled in inhumane conditions.\86\
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\81\ United Nations Office on Drugs and Crime, Abused and
Neglected: A Gender Perspective on Aggravated Migrant Smuggling
Offences and Response, <a href="https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf">https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf</a> (last visited Dec.
11, 2022).
\82\ Government of Panama, Irregular Migrants Transiting through
Dari[eacute]n by Country, <a href="https://www.datosabiertos.gob.pa/dataset/ebb56d40-112f-455e-9418-ccd73560021d/resource/3fae4878-5068-4b80-b250-ee9e52b16510/download/irregulares-en-transito-por-Dari">https://www.datosabiertos.gob.pa/dataset/ebb56d40-112f-455e-9418-ccd73560021d/resource/3fae4878-5068-4b80-b250-ee9e52b16510/download/irregulares-en-transito-por-Dari</a>[eacute]n-por-pais-octubre-2022.pdf (last visited Dec. 11,
2022).
\83\ Catalina Oquendo, El Dari[eacute]n, la Trampa Mortal para
los Migrantes Venezolanos, El Pa[iacute]s, Oct. 11, 2022, <a href="https://elpais.com/america-colombia/2022-10-11/el-darien-la-trampa-mortal-para-los-migrantes-venezolanos.html">https://elpais.com/america-colombia/2022-10-11/el-darien-la-trampa-mortal-para-los-migrantes-venezolanos.html</a> (last visited Dec. 13, 2022).
\84\ Voz de Am[eacute]rica, Los 10 Peligros de Cruzar el
Dari[eacute]n, el ``Infierno Verde'' de las Am[eacute]ricas (Aug.
19, 2022), <a href="https://www.vozdeamerica.com/a/los-10-peligros-de-cruzar-el-darien-el-infierno-verde-de-las-americas/6705004.html">https://www.vozdeamerica.com/a/los-10-peligros-de-cruzar-el-darien-el-infierno-verde-de-las-americas/6705004.html</a> (last
visited Dec. 13, 2022).
\85\ Interpol, People Smuggling, <a href="https://www.interpol.int/en/Crimes/People-smuggling">https://www.interpol.int/en/Crimes/People-smuggling</a> (last visited Dec. 11, 2022).
\86\ Jos[eacute] de C[oacute]rdoba et al., Smuggling Migrants to
the U.S. is Big Business, The Wall Street Journal, July 1, 2022,
<a href="https://www.wsj.com/articles/smuggling-migrants-to-the-u-s-is-big-business-11656680400">https://www.wsj.com/articles/smuggling-migrants-to-the-u-s-is-big-business-11656680400</a> (last visited Dec. 13, 2022).
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Tragically, a significant number of individuals lose their lives
along the way. In FY 2022, more than 890 migrants died attempting to
enter the United States between ports of entry across the SWB, an
estimated 58 percent increase from FY 2021 (565 deaths) and a 252
percent increase from FY 2020 (254 deaths). First responders in Eagle
Pass, Texas, estimate that about 30 bodies have been taken out of the
Rio Grande River each month since March 2022. The number of migrants
rescued by CBP has almost quadrupled over the past two years--from
approximately 5,330 in FY 2020, to approximately 12,900 in FY 2021, to
over 22,000 in FY 2022. CBP attributes these rising trends to the
historic increases in overall USBP encounters between ports of entry
over this time period, and the fact that these encounters are
increasingly taking place in remote and rugged locations where the
perils of trying to enter the United States are particularly acute.
Meanwhile, these numbers do not account for the countless incidents of
death, illness, assault, and exploitation that migrants experience well
before they arrive at our border during the perilous journey north.
This proposed rule seeks to mitigate the role of would-be smugglers
by incentivizing intending asylum seekers to utilize lawful, safe, and
orderly pathways for seeking protection in the United States or
elsewhere. For example, incentivizing migrants to schedule their
arrival at land ports of entry minimizes the role of smugglers who seek
to bring migrants through often dangerously hot and inhospitable
locations between ports of entry. Collectively, the incentives and
disincentives seek to minimize the irregular migratory flow to the
border, and thus minimize the role--and profit--of the pernicious
smuggling networks as a result.
B. Effects on Resources and Operations
The large numbers of migrants crossing the border has placed a
significant toll on the United States Government, as well as the States
and local communities where migrants are provisionally released. While
the United States Government has taken extraordinary steps to meet the
need, the current level of migratory movements and the anticipated
increase in the numbers of migrants following the lifting of the Title
42 public health Order threaten to exceed the capacity to maintain the
safe and humane processing of migrants who have crossed the border
without authorization to do so. By channeling noncitizens to lawful
pathways available away from the SWB, this proposed rule aims to
discourage migrants from making the journey to the border in the first
instance.
1. Capacity Constraints
The United States' border processing and immigration systems were
not built to manage the nature and scale of the current irregular
migration flows at the border and are operating under increasing
strain. To respond to the accelerated increase in encounters along the
SWB since January 2021, DHS has taken a series of extraordinary steps.
CBP obligated more than $669 million to build and operate 10 soft-sided
processing facilities along the SWB in FY 2022. Since 2021, DHS has
deployed more than 10,000 additional Federal personnel from across the
Department on temporary rotations to the SWB, to include CBP agents and
officers, law enforcement personnel from other DHS components, and the
DHS Volunteer Force. In addition, CBP has hired or contracted over
1,000 civilian USBP Processing Coordinators, who, among other roles,
supplement processing operations. Yet, even with this increase in
facilities and personnel, there are risks of overcrowding--challenges
that will be exacerbated as encounters increase.
In addition, the Federal Emergency Management Agency (``FEMA'') has
spent $260 million in FYs 2021 and 2022 on grants to non-governmental
and state and local entities through the Emergency Food and Shelter
Program--Humanitarian (``EFSP-H'') to assist with the reception and
onward travel of migrants arriving at the SWB.\87\ This spending is on
top of $1.4 billion in FY 2022 appropriations that were earmarked for
SWB contingency operations in response to the ongoing surge in
migration.\88\ Further, through FY 2023 appropriations, Congress made
available up to $785 million ``for the purposes of providing shelter
and other services to families and individuals encountered by the
Department of Homeland Security.'' \89\
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\87\ EFSP Humanitarian Relief Table, created by DHS (Aug. 5,
2022).
\88\ Memorandum for Interested Parties, from Alejandro N.
Mayorkas, Secretary of Homeland Security, Re: DHS Plan for Southwest
Border Security and Preparedness at 19 (Apr. 26, 2022), <a href="https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf">https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf</a> (last visited Jan. 30, 2023).
\89\ See Public Law 117-328, div. F, tit. II, sec 211, 136 Stat.
4459, 4736 (2022).
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Despite these efforts, DHS operations are subject to significant
resource and capacity constraints. Of the nine SWB USBP sectors, four
were over capacity, at 100 to 128 percent, with three more at capacity
levels between 68 and 99 percent as of December 24, 2022, prior to the
implementation of the parole processes for Cubans, Haitians, and
Nicaraguans.\90\ The impact has been particularly acute in certain
border sectors. Increased flows are disproportionately occurring within
the remote Del Rio, El Paso, and Yuma sectors. In FY 2022, the Del Rio,
El Paso, and Yuma sectors encountered almost double (94 percent
increase) the number of migrants as compared to FY 2021 and an eleven-
fold increase over the average for FY 2014-FY 2019, primarily as a
result of increases from CHNV countries.\91\ As of December 24, 2022,
these three sectors were each operating at the limits of, or over,
their safe operating capacity, given space limitations, at 100 to 128
percent.\92\
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\90\ OIS analysis of data pulled from CBP UIP on December 24,
2022.
\91\ OIS Persist Dataset based on data through October 2022.
\92\ OIS analysis of data pulled from CBP UIP on December 24,
2022.
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The focused increase in encounters in those three sectors has been
particularly
[[Page 11715]]
challenging. The Yuma and Del Rio sectors are geographically remote,
and because of that--until the past two years--have never been a focal
point for large numbers of individuals entering without authorization
between ports of entry. As a result, these sectors have limited
infrastructure to process the elevated encounters that they are
experiencing in a safe and orderly manner. The El Paso sector has
relatively modern infrastructure for processing noncitizens encountered
at the border, but is far away from other CBP sectors, which makes it
challenging to move individuals elsewhere for processing during
surges--a key component of CBP's ability to effectively manage
migratory surges.
Meanwhile, many of the land ports of entry have limited space and
capacity to process an influx of migrants, including those who may seek
protection from removal, and are expected to quickly reach their safe
operating capacity limits given the increase in migrants they are
expected to encounter following the lifting of the Title 42 public
health Order. Absent a lawful, safe, and orderly means for managing the
flows, the ports of entry risk massive congestion: migrants would be
forced to wait in long lines for unknown periods of time while exposed
to the elements in order to be processed, in conditions that could also
put the migrants at risk. This is of great concern to the Government of
Mexico, because these lines would extend into Mexico and could
adversely impact legitimate travel and trade, or lead to individuals
camping out overnight or forming makeshift encampments on Mexican
territory.
The capacity constraints are felt by DOJ as well. As the number of
migrants arriving at the SWB has increased, so too have the number of
Notices to Appear filed in EOIR's immigration courts and the number of
pending cases.\93\ In FY 2022, EOIR hired 104 immigration judges for a
total of 634 and completed a record 312,486 cases. Yet the number of
cases pending before the immigration courts has risen to nearly 1.8
million, as the courts were unable to keep pace with the incoming
volume.
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\93\ See EOIR, Executive Office of Immigration Review
Adjudication Statistics: Pending Cases, New Cases, and Total
Completions (Oct. 13, 2022), <a href="https://www.justice.gov/eoir/page/file/1242166/download">https://www.justice.gov/eoir/page/file/1242166/download</a> (last visited Feb. 1, 2023).
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2. Decompression Efforts
In an effort to reduce overcrowding in sectors that are
experiencing surges, DHS deploys lateral transportation, using buses
and flights to move noncitizens to other sectors with capacity to
process. In October 2022, USBP sectors along the SWB operated a
combined 120 decompression buses containing almost 25,000 noncitizens
along 480 routes to neighboring sectors. The majority of these buses
are staffed by CBP personnel, which often requires pulling them off
other key missions. In October 2022, USBP sectors also operated 113
lateral decompression flights, redistributing approximately 14,500
noncitizens to other sectors with additional capacity.
These assets are finite. Already in FY 2022, U.S. Immigration and
Customs Enforcement (``ICE'') modified its ICE Air Operations' air
charter contract to increase the number of daily-use aircraft from 10
to 12 to meet the increasing air transportation demands, and CBP has
executed a new contract that will provide for flight hours equivalent
to approximately four to eight additional decompression flights per
day. And while DHS is actively working to obtain additional contracted
transportation support, such contract support takes time to put in
place, and is also costly and resource intensive.
As a result, use of DHS air resources to operate lateral flights
limits DHS's capacity to operate international repatriation flights to
receiving countries, leaving noncitizens who have been ordered removed
in custody for longer, which presents challenges in light of DHS's
limited detention space. This in turn reduces the numbers of
noncitizens who can be referred for detention each day and, as
appropriate, removed efficiently after receiving final orders of
removal, including pursuant to expedited removal (``ER''), at any given
point in time. Further increases would exacerbate the need for
decompression flights and further reduce the amount of resources
available to conduct removal flights, which in turn would further
decrease the number of noncitizens who can be referred to ICE detention
centers. This would occur at precisely the point in time at which an
increase in removal flights and faster movement of migrants into
expedited removal, out of detention, and onto removal flights, as
appropriate, is needed in order to disincentivize a further increase in
encounters, and to effectively, humanely, and efficiently remove those
who do not claim a fear of persecution or torture or are otherwise
found not to have a credible fear.
3. State, Local Government, and Non-Governmental Limits
Increased encounters of noncitizens at the SWB not only strain DHS
resources, but also place additional pressure on States, local
communities, and NGO partners both along the border and in the interior
of the United States. These are key partners, providing shelter and
other key social services to migrants and facilitating the onward
movement of those conditionally released from DHS custody. In FY 2021
and FY 2022, Congress made approximately $260 million available through
FEMA's EFSP-H in an order to help sustain these efforts.\94\ As noted
above, through FY 2023 appropriations, Congress made available up to
$785 million ``for the purposes of providing shelter and other services
to families and individuals encountered by the Department of Homeland
Security.'' \95\ However, State, local government, and NGO capacity to
provide these critical supports is limited, and may reach its outer
limit once the Title 42 public health Order is lifted in the absence of
additional policy changes.
---------------------------------------------------------------------------
\94\ EFSP Humanitarian Relief Table, created by DHS (Aug. 5,
2022).
\95\ See Public Law 117-328, div. F, tit. II, sec 211, 136 Stat.
at 4736.
---------------------------------------------------------------------------
C. Systemic Issues
The U.S. asylum system was designed decades ago--when migratory
flows were dramatically different than they are today--to serve the key
goals of efficiently and fairly providing protection to noncitizens who
are in the United States and are deserving of protection, while also
efficiently denying and ultimately removing those who do are not deemed
eligible for discretionary forms of protection and do not qualify for
the mandatory relief of statutory withholding of removal or protection
under the CAT. However, a systemic lack of resources and the changing
nature, scope, and demographics of the migratory flows that the United
States is encountering has made it difficult to achieve these key, twin
goals.
By statute, certain inadmissible noncitizens may be placed in ER
pursuant to section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). Those
who are in ER and who indicate an intent to apply for asylum or a fear
of persecution or torture in their country of removal are subject to
what are referred to as ``credible fear'' interviews, pursuant to which
an asylum officer assesses whether there is a ``significant possibility
. . . that the [noncitizen] could establish eligibility for asylum.''
INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v); see also 8 CFR
235.3(b)(4)(i), 1235.3(b)(4)(i). Those found not to have a credible
fear, including following immigration judge (``IJ'') review of a
negative determination when requested, are subject to removal
[[Page 11716]]
without the full removal proceedings provided for by section 240 of the
INA, 8 U.S.C. 1229a. Those who are found to have a credible fear are
generally placed in removal proceedings under section 240 during which
they can apply for asylum and other forms of relief and protection from
removal.\96\
---------------------------------------------------------------------------
\96\ Under an interim final rule issued in March 2022, and
discussed below, some noncitizens found to have a credible fear are
referred to an asylum officer for further review of the noncitizen's
claims for asylum and other forms of protection, followed by IJ
review if the noncitizen's asylum claim is denied. See Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding
of Removal, and CAT Protection Claims by Asylum Officers, 87 FR
18078 (Mar. 29, 2022) (``Asylum Processing IFR'').
---------------------------------------------------------------------------
There is, however, a significant disparity between the number of
noncitizens who are found to have a credible fear and the number of
noncitizens whom an IJ ultimately determines should not be removed at
the end of the section 240 process because, for example, the noncitizen
is found eligible for asylum or some other form of protection (such as
withholding of removal or CAT). A full 83 percent of the people who
were subject to ER and claimed fear from 2014 to 2019 were referred to
an IJ for section 240 proceedings, but only 15 percent of those cases
that were completed were granted asylum or some other form of
protection.\97\ Similarly, among cases referred and completed since
2013, significantly fewer than 20 percent of people found to have a
credible fear were ultimately granted asylum from EOIR.\98\ Ultimately,
the number of individuals who are referred to an IJ at the beginning of
the ER process greatly exceeds the number who are actually granted
asylum or some other form of relief or protection.
---------------------------------------------------------------------------
\97\ OIS Enforcement Lifecycle data through September 30, 2022.
Referrals to an IJ include positive credible fear findings by U.S.
Citizenship and Immigration Services (``USCIS'') asylum officers,
negative fear findings that are vacated by an IJ, and USCIS case
closures that are placed in section 240 proceedings. Grants of
relief or protection include grants of asylum, statutory withholding
of removal, withholding or deferral of removal under the CAT
regulations, cancellation of removal, and adjustment of status under
various statutory provisions. While only 15 percent of all case
completions result in relief or protection, OIS estimates that 28
percent of cases decided on their merits are grants of relief. Cases
of relief decided on their merits include grants of asylum and other
grants of status under statutory provisions (i.e., excluding
withholding of removal, deferral of removal, cancellation of
removal, and claimed status reviews); and the percentage of cases
decided on their merits is calculated by dividing relief on merits
by the sum of relief on merits and removal orders on merits (i.e.,
excluding removal orders issued in absentia). All data on EOIR
outcomes for credible fear cases in this discussion are based on
case outcomes for all noncitizens encountered on the SWB in FY 2014-
FY 2019, with data reflecting final or most current outcomes as of
September 30, 2022. In general, relatively few Mexican nationals
claim credible fear when placed in expedited removal, so EOIR
outcomes cited here would be similar if the records were limited to
non-Mexican encounters.
\98\ See EOIR, EOIR Adjudication Statistics: Asylum Decision and
Filing Rates in Cases Originating with a Credible Fear Claim (Oct.
13, 2022), <a href="https://www.justice.gov/eoir/page/file/1062976/download">https://www.justice.gov/eoir/page/file/1062976/download</a>
(last visited Jan. 27, 2023). The EOIR adjudication outcome
statistics report on the total number of cases originating with
credible fear claims resolved on any ground in a fiscal year,
without regard to whether an asylum claim was adjudicated. The
asylum grant rate is a percentage of that total number of cases.
---------------------------------------------------------------------------
Meanwhile, the process for those who establish a credible fear is
quite lengthy, with half of all cases taking more than four years to
complete, and in many cases much longer. Indeed, 39 percent of all SWB
credible fear referrals to EOIR from FY 2014 to FY 2019 remain in EOIR
proceedings today.\99\ As of FY 2022 year-end, more than a quarter (26
percent) of EOIR cases resulting from SWB encounters making credible
fear claims from as long ago as FY 2014 remained in proceedings, one-
third (33 percent) of EOIR cases resulting from FY 2016 encounters
remained in proceedings, and almost half (48 percent) of EOIR cases
resulting from FY 2019 encounters remained in proceedings.\100\
Excluding in absentia orders, the mean completion time for EOIR cases
completed in FY 2022 was 4.2 years.\101\
---------------------------------------------------------------------------
\99\ OIS Enforcement Lifecycle data through September 30, 2022.
\100\ Id.
\101\ OIS analysis of DOJ EOIR data.
---------------------------------------------------------------------------
As a result, a large number of cases linger in a variety of
incompletely resolved statuses for extended periods. For all SWB
encounters from FY 2014 to FY 2019 that claimed fear and were referred
to EOIR, only 9 percent had been granted relief by the end of FY 2022,
and only 11 percent had an executed removal order--leaving 80 percent
in some degree of limbo.\102\
---------------------------------------------------------------------------
\102\ OIS Enforcement Lifecycle data through September 30, 2022.
Here and throughout this discussion, references to removal orders
and removal orders with or without confirmed removals include IJ
grants of voluntary departures with or without confirmed departures.
---------------------------------------------------------------------------
As a result, those who have a valid claim to asylum in the United
States often have to wait years for a final protection decision.
Conversely, noncitizens ultimately found ineligible for asylum or
another form of protection are likely to spend many years in the United
States prior to being ordered removed.
In addition, the proportion and the absolute numbers of people
claiming fear of persecution or torture in their home countries has
increased dramatically in recent years. Prior to 2011, the overall
share of total SWB encounters who were processed for expedited removal
and claimed fear never exceeded 2 percent.\103\ By 2013, with
increasing numbers of non-Mexican encounters, the rate had climbed to
15 percent of people placed in ER making fear claims that were referred
to USCIS asylum officers (36,025 referrals).\104\ By comparison, in
2019--prior to the implementation of the Title 42 public health Order--
further growth in non-Mexican encounters meant that 44 percent of
people placed in ER claimed fear, resulting in 98,266 credible fear
adjudications.\105\ Despite this dramatic increase in the number of
people claiming fear since 2013, the percent who are ultimately granted
asylum or other forms of protection has remained static or even fallen
over this period, with IJ asylum grant rates in FY 2013-FY 2017
consistently falling between 12 and 17 percent, down from 24-38 percent
in FY 2008-FY 2012.\106\
---------------------------------------------------------------------------
\103\ OIS analysis of historic CBP and USCIS data.
\104\ OIS analysis of Enforcement Lifecycle data through
September 30, 2022.
\105\ Id.
\106\ OIS analysis of DOJ EOIR Review of Asylum Adjudication
Statistics as of October 2022.
---------------------------------------------------------------------------
The fact that large numbers of migrants pass the credible fear
screening, only to be denied relief or protection on the merits after a
lengthy adjudicatory process, has high costs to the system in terms of
resources and time.
Meanwhile, the fact that migrants can wait in the United States for
years before being issued a final order denying relief, and that many
such individuals are never actually removed, likely incentivizes
migrants to make the journey north.
D. U.S. Efforts in Response
The United States has taken a number of measures in an attempt to
offer alternative pathways to address the root causes of migration,
improve the asylum system, and address the pernicious role of
smugglers. These are important improvements, yet alone are insufficient
in the near term to change the incentives of migrants, reduce the risks
associated with current levels of irregular migration and the
anticipated surge of migrants to the border, and protect migrants from
human smugglers that profit from their vulnerability, necessitating
this NPRM.
1. Asylum Processing IFR and Other Process Improvements
In March 2022, the Departments adopted an interim final rule
(``IFR'') to shorten the time frame for adjudicating
[[Page 11717]]
asylum claims.\107\ For noncitizens subject to that IFR, following a
positive credible fear determination, asylum officers conduct an
initial asylum merits interview instead of referring the case directly
for removal proceedings before an IJ under section 240 of the INA, 8
U.S.C. 1229a. This creates multiple efficiencies, including using the
information presented to the asylum officer in the credible fear
interview as the asylum application, which eliminates the need for
duplicative paperwork and processing time. If USCIS does not grant
asylum, the individual is referred to EOIR for streamlined section 240
removal proceedings. The entire process--from credible fear claim to a
final immigration court decision--is designed to take substantially
less time than the average four years it takes to adjudicate asylum
claims otherwise.
---------------------------------------------------------------------------
\107\ See Asylum Processing IFR, 87 FR 18078.
---------------------------------------------------------------------------
That rule, however, is being phased in gradually, and the
Departments do not yet have the capacity, and do not expect to have the
capacity in the near term, to process the large number of migrants
expected to cross the border through the system that rule establishes.
2. Process Improvements
The Departments are making a number of other process improvements
as well. DHS is digitalizing many of the processes that make up the
U.S. immigration system, thus enabling agencies to process migrants
more rapidly, securely store documentation, and share information to
inform real-time decision-making with significant time savings.
Meanwhile, USCIS also has made significant strides in protecting
against what would be even greater backlog growth by hiring new
officers and establishing an agency-wide focus on operational
efficiency. The Asylum Division has grown from 273 authorized asylum
officer positions in 2013 to 1,024 authorized asylum officer positions
in 2022. USCIS has also put in place a number of initiatives to
increase the efficiency of its processes, including the November 2022
launch of online filing for the Form I-589 for affirmative asylum
applicants, working with other DHS components to digitize the A-File
(the file containing immigration-related records relating to a
noncitizen), and conducting more than 34,211 video-assisted interviews.
EOIR has made similar strides in addressing its pending caseload,
through judicial and staff hiring, modernization of courtroom
technology, and the ongoing digitalization of court files.\108\
---------------------------------------------------------------------------
\108\ See, e.g., Executive Office for Immigration Review
Electronic Case Access and Filing, 86 FR 70708 (Dec. 13, 2021) (EOIR
final rule implementing electronic filing and records applications
for all cases before the immigration courts and the Board of
Immigration Appeals); EOIR Director's Memorandum 22-07, Internet-
Based Hearings (Aug. 12, 2022), <a href="https://www.justice.gov/eoir/page/file/1525691/download">https://www.justice.gov/eoir/page/file/1525691/download</a>.
---------------------------------------------------------------------------
In addition, EOIR has created efficiencies by reducing barriers to
immigration court. In that regard, EOIR has expanded the Immigration
Court Helpdesk program to several additional courts, issued guidance on
using the Friend of the Court model to assist pro se respondents, and
reconstituted its pro bono liaison program at each immigration
court.\109\ The above measures promote efficiency as, where a
noncitizen is represented, the IJ does not have to engage in time-
consuming discussions at hearings to ascertain whether the noncitizen
is subject to removal and potentially eligible for any relief. In
addition, a noncitizen's counsel can assist the noncitizen in gathering
evidence, can prepare the noncitizen to testify, and can work with DHS
counsel to narrow the issues the IJ must decide.
---------------------------------------------------------------------------
\109\ See, e.g., EOIR Director's Memorandum 22-06, Friend of the
Court (May 5, 2022), <a href="https://www.justice.gov/eoir/page/file/1503696/download">https://www.justice.gov/eoir/page/file/1503696/download</a>; EOIR Director's Memorandum 22-01, Encouraging and
Facilitating Pro Bono Legal Services (Nov. 5, 2021), <a href="https://www.justice.gov/eoir/book/file/1446651/download">https://www.justice.gov/eoir/book/file/1446651/download</a>.
---------------------------------------------------------------------------
While critically important, these process improvements are not, on
their own, sufficient to respond to the significant resource needs
associated with the increase in migrants anticipated following the
lifting of the Title 42 public health Order.
3. Taking on the Smugglers
In June of 2021, DOJ established a law enforcement task force,
Joint Task Force Alpha (``JTFA''), to marshal investigative and
prosecutorial resources in partnership with DHS to enhance U.S.
enforcement efforts against human smuggling and trafficking groups
operating in Mexico and the NCA countries of Guatemala, El Salvador,
and Honduras. Since then, the task force has made significant strides
in its efforts to disrupt and dismantle dangerous human smuggling
organizations.\110\ JTFA's impact and results include contributing to
165 domestic and international arrests, 69 convictions, 45 defendants
sentenced including significant jail time imposed for human smuggling-
related crimes; substantial asset forfeiture including hundreds of
thousands of dollars in cash, real property, vehicles, firearms, and
ammunition; dozens of defendants indicted under seal pending arrest;
and numerous pending extradition requests against foreign leadership
targets located in NCA and Mexico.\111\
---------------------------------------------------------------------------
\110\ DOJ Office of Public Affairs, Attorney General Announces
Initiatives to Combat Human Smuggling and Trafficking and to Fight
Corruption in Central America (June 7, 2021), <a href="https://www.justice.gov/opa/pr/attorney-general-announces-initiatives-combat-human-smuggling-and-trafficking-and-fight">https://www.justice.gov/opa/pr/attorney-general-announces-initiatives-combat-human-smuggling-and-trafficking-and-fight</a> (last visited Dec.
8, 2022).
\111\ DOJ, Office of Public Affairs (``OPA''), Eight Indicted in
Joint Task Force Alpha Investigation and Arrested as Part of
Takedown of Prolific Human Smuggling Network, Department of Justice
(Sept. 13, 2022), <a href="https://www.justice.gov/opa/pr/eight-indicted-joint-task-force-alpha-investigation-and-arrested-part-takedown-prolific-human">https://www.justice.gov/opa/pr/eight-indicted-joint-task-force-alpha-investigation-and-arrested-part-takedown-prolific-human</a> (last visited Dec. 15, 2022); DOJ, OPA, Two
Guatemalan Nationals Plead Guilty to Human Smuggling Conspiracy
Resulting in 2021 Death of Migrant in Odessa, Texas, Department of
Justice (Sept. 30, 2022), <a href="https://www.justice.gov/opa/pr/two-guatemalan-nationals-plead-guilty-human-smuggling-conspiracy-resulting-2021-death-migrant">https://www.justice.gov/opa/pr/two-guatemalan-nationals-plead-guilty-human-smuggling-conspiracy-resulting-2021-death-migrant</a> (last visited Dec. 15, 2022); U.S.
Attorney for the District of Arizona, Human Smuggling Coordinators
Sentenced to 45 Months in Prison (Aug. 31, 2022), <a href="https://www.justice.gov/usao-az/pr/human-smuggling-coordinators-sentenced-45-months-prison">https://www.justice.gov/usao-az/pr/human-smuggling-coordinators-sentenced-45-months-prison</a> (last visited Dec. 15, 2022); U.S. Attorney for the
Western District of Texas, Defendants Indicted in Tractor Trailer
Smuggling Incident That Resulted in 53 Deaths (July 20, 2022),
<a href="https://www.justice.gov/usao-wdtx/pr/defendants-indicted-tractor-trailer-smuggling-incident-resulted-53-deaths">https://www.justice.gov/usao-wdtx/pr/defendants-indicted-tractor-trailer-smuggling-incident-resulted-53-deaths</a> (last visited Dec. 15,
2022); DOJ, OPA, Readout of Latest Justice Department Leadership
Meeting on Joint Task Force Alpha's Anti-Human Smuggling and
Trafficking Efforts (June 13. 2022), <a href="https://www.justice.gov/opa/pr/readout-latest-justice-department-leadership-meeting-joint-task-force-alpha-s-anti-human">https://www.justice.gov/opa/pr/readout-latest-justice-department-leadership-meeting-joint-task-force-alpha-s-anti-human</a> (last visited Dec. 15, 2022); U.S. Attorney
for the District of Arizona, Three Individuals Arrested for
Conspiracy to Transport and Harbor 86 Illegal Aliens from Mexico,
Guatemala, and Honduras (July 6, 2022), <a href="https://www.justice.gov/usao-az/pr/three-individuals-arrested-conspiracy-transport-and-harbor-86-illegal-aliens-mexico">https://www.justice.gov/usao-az/pr/three-individuals-arrested-conspiracy-transport-and-harbor-86-illegal-aliens-mexico</a> (last visited Dec. 15, 2022); DOJ,
OPA, Eight Defendants Indicted for Human Smuggling and Drug
Conspiracy Offenses (May 10, 2022), <a href="https://www.justice.gov/opa/pr/eight-defendants-indicted-human-smuggling-and-drug-conspiracy-offenses">https://www.justice.gov/opa/pr/eight-defendants-indicted-human-smuggling-and-drug-conspiracy-offenses</a> (last visited Dec. 15, 2022); DOJ, OPA, DOJ-DHS-INL in
Mexico Host Foreign Law Enforcement Partners at Regional Human
Smuggling Roundtable Event (April 6, 2022), <a href="https://www.justice.gov/opa/pr/doj-dhs-inl-mexico-host-foreign-law-enforcement-partners-regional-human-smuggling-roundtable">https://www.justice.gov/opa/pr/doj-dhs-inl-mexico-host-foreign-law-enforcement-partners-regional-human-smuggling-roundtable</a> (last visited Dec. 15, 2022);
DOJ, OPA, Man Sentenced for Role in International Human Smuggling
Conspiracy (Sept. 28, 2021), <a href="https://www.justice.gov/opa/pr/man-sentenced-role-international-human-smuggling-conspiracy">https://www.justice.gov/opa/pr/man-sentenced-role-international-human-smuggling-conspiracy</a> (last
visited Dec. 15, 2022); DOJ, OPA, Law Enforcement Cooperation
Between United States and Mexico Leads to Mexican Takedown of
Significant Human Smugglers (Mar. 10, 2022), <a href="https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-leads-mexican-takedown">https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-leads-mexican-takedown</a> (last visited Dec. 15,
2022); U.S. Attorney for the Western District of Texas, Cuban
National Sentenced to Over 38 Years in Prison for Drug Trafficking
and Other Crimes after Using His Border Ranch as a Criminal Corridor
(Mar. 9, 2022), <a href="https://www.justice.gov/usao-wdtx/pr/cuban-national-sentenced-over-38-years-prison-drug-trafficking-and-other-crimes-after">https://www.justice.gov/usao-wdtx/pr/cuban-national-sentenced-over-38-years-prison-drug-trafficking-and-other-crimes-after</a> (last visited Dec. 15, 2022); U.S. Attorney for the District
of Arizona, Human Smuggling Coordinator Pleads Guilty (Feb. 3,
2022), <a href="https://www.justice.gov/usao-az/pr/human-smuggling-coordinator-pleads-guilty">https://www.justice.gov/usao-az/pr/human-smuggling-coordinator-pleads-guilty</a> (last visited Dec. 15, 2022); U.S.
Attorney for the District of Arizona, Human Smugglers Plead Guilty
to Transporting and Harboring Over 100 Illegal Aliens (Nov. 18,
2021), <a href="https://www.justice.gov/usao-az/pr/human-smugglers-plead-guilty-transporting-and-harboring-over-100-illegal-aliens">https://www.justice.gov/usao-az/pr/human-smugglers-plead-guilty-transporting-and-harboring-over-100-illegal-aliens</a> (last
visited Dec. 15, 2022); DOJ, OPA, Attorney General Merrick B.
Garland Delivers Remarks at the Meeting of the President's
Interagency Task Force to Monitor and Combat Trafficking in Persons
(Jan. 25, 2022), <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-meeting-president-s-interagency-task">https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-meeting-president-s-interagency-task</a> (last visited Dec. 15, 2022); DOJ, OPA, Readout of
Justice Department Leadership Meeting on Human Smuggling and
Trafficking Networks (Nov. 5, 2021), <a href="https://www.justice.gov/opa/pr/readout-justice-department-leadership-meeting-human-smuggling-and-trafficking-networks">https://www.justice.gov/opa/pr/readout-justice-department-leadership-meeting-human-smuggling-and-trafficking-networks</a> (last visited Dec. 15, 2022).
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[[Page 11718]]
In April 2022, DHS launched an unprecedented ``Counter Human
Smuggler'' campaign designed to disrupt and dismantle human smuggling
networks, which included an increase in resources for JTFA and other
interagency law enforcement efforts. The Counter Human Smuggler
campaign focuses on disrupting key aspects of these criminal
operations, including financial assets, and ability to travel and
conduct commerce. DHS has committed over $60 million to the effort and
surged more than 1,300 personnel in Latin America and along the
SWB.\112\ Working closely with our foreign partners, DHS has achieved
unprecedented results. The results so far have included a 500 percent
increase in disruption activities in the first six months, including
over 5,000 arrests and 5,500 disruptions of smuggling infrastructure
(e.g., raiding smuggler stash houses, impounding tractor trailers that
are used to smuggle migrants, and confiscating smugglers' information
technology).\113\ Despite this monumental effort to counter human
smuggling, it alone will not decrease the daily number of encounters at
the SWB to a manageable level--these efforts must be combined with
other efforts, including an increase in available lawful pathways
throughout the region and consequences for migrants who bypass them.
---------------------------------------------------------------------------
\112\ DHS, FACT SHEET: Counter Human Smuggler Campaign Update
(Oct. 6, 2022), <a href="https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th">https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th</a>
(last visited Dec. 13, 2022).
\113\ Id.
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E. Lawful Processes for Individuals To Access the United States
The United States Government has committed to enhancing legal
pathways and processes for migrants in the region to access protection
and opportunity in the United States. The United States has taken
meaningful steps to realize this commitment, including by announcing
significant increases to H-2 temporary worker visas and refugee
processing in the Western Hemisphere, and by introducing innovative
parole processes for nationals of certain countries in the region. By
expanding these pathways and processes, the United States has provided
migrants an alternative to paying smuggling organizations that profit
from taking migrants on a dangerous journey to the SWB, and has
provided incentives for migrants to seek an alternative and safer
pathway to the United States.
1. Process for Venezuelan Nationals
As described above, on October 12, 2022, the United States
Government announced a new process for Venezuelans that created a
strong incentive for Venezuelans to wait in safe places to access an
orderly process to come to the United States. The process is initiated
by a U.S.-based supporter, who agrees to provide financial support to a
Venezuelan beneficiary located outside the United States--including
those still in Venezuela--thus providing a mechanism for such
individuals to enter the United States without having to resort to a
dangerous trek north. In order to be eligible, Venezuelan beneficiaries
could not have entered the United States, Mexico, or Panama unlawfully
following the date of announcement of the process. If they pass the
requisite screening and vetting, they are provided advance
authorization to travel by air to the United States and, if authorized
to travel, are subject to a case-by-case parole determination once they
arrive. Beneficiaries of this process can apply for asylum and other
applicable immigration benefits and are eligible to immediately apply
for employment authorization through an electronic process created by
USCIS.\114\ The Venezuela process has dramatically impacted migratory
flows throughout the region, and as of January 22, 2023, more than
14,300 Venezuelans have come to the United States lawfully pursuant to
this process.\115\
---------------------------------------------------------------------------
\114\ DHS Announces New Migration Enforcement Process for
Venezuelans, supra.
\115\ OIS analysis of CBP data provided January 23, 2023.
---------------------------------------------------------------------------
By coupling the provision of a safe and orderly lawful process that
allows Venezuelan nationals and their immediate family members to come
to the United States for a period of up to two years and receive work
authorization with a consequence for those who enter unlawfully between
the ports of entry, the process has provided critical protections while
also yielding a reduction in migratory flows.\116\ DHS recently
announced changes to the process.\117\ Specifically, DHS:
---------------------------------------------------------------------------
\116\ See supra Part III.A.3 of this preamble.
\117\ See 88 FR 1279 (Jan. 9, 2023).
---------------------------------------------------------------------------
<bullet> Lifted the limit of 24,000 total travel authorizations and
replaced it with a monthly limit of 30,000 travel authorizations spread
across this process and the separate and independent parole processes
for Cubans, Haitians, and Nicaraguans; and
<bullet> Added an exception that will enable Venezuelans who cross
without authorization into the United States at the SWB and are
subsequently permitted a one-time option to voluntarily depart or
voluntarily withdraw their application for admission to maintain
eligibility to participate in the parole process.\118\
---------------------------------------------------------------------------
\118\ Id. at 1280.
---------------------------------------------------------------------------
2. Processes for Nationals of Cuba, Haiti, and Nicaragua
As noted above, the United States Government recently initiated
similar processes for nationals of Cuba, Haiti, and Nicaragua.\119\
Like the process for Venezuelans, the processes for Cubans, Haitians,
and Nicaraguans allows U.S.-based supporters to apply on behalf of an
individual or family to be considered, on a case-by-case basis, for
advanced authorization to travel and a temporary period of parole for
up to two years for urgent humanitarian reasons or significant public
benefit.\120\ The parole is for an initial period of two years and
parolees may apply for work authorization immediately after entering
the country. Like the Venezuela process, implementation of the
processes for Cubans, Haitians, and Nicaraguans was and remains
contingent on the Government of Mexico's decision to accept the return
(under Title 42) or removal (under Title 8) of such migrants who enter
irregularly at the SWB.
---------------------------------------------------------------------------
\119\ See 88 FR 1255 (Jan. 9, 2023).
\120\ Id. at 1256.
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3. Additional Processes for Haitian Nationals
The United States is working to increase number of Haitians granted
immigrant visas and parole in support of family reunification. The
Department of State has resumed adjudicating immigrant visas (``IVs'')
on December 12 and has committed to surge consular officers to
eliminate the IV case backlog in early 2023.
4. Additional Processes for Cuban Nationals
In September 2022, the United States Government announced the
resumption
[[Page 11719]]
of the Cuban Family Reunification Parole (``CFRP'') program, which
allows approved Cubans to enter the United States as parolees,\121\
thereby allowing USCIS to work through the backlog of over 12,500 CFRP
applications. This program has been paused since 2017, but over 125,000
Cubans were authorized to travel for the purpose of parole from 2004 to
2017. Beneficiaries must be currently living in Cuba and be petitioned
by a U.S. citizen or LPR family member who was invited to participate.
Potential beneficiaries cannot apply for themselves.\122\
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\121\ USCIS, USCIS Resumes Cuban Family Reunification Parole
Program Operations (Sept. 9, 2022), <a href="https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations">https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations</a> (last visited Nov. 30, 2022).
\122\ USCIS, The Cuban Family Reunification Parole Program (last
updated Sept. 1, 2022) <a href="https://www.uscis.gov/humanitarian/humanitarian-parole/the-cuban-family-reunification-parole-program">https://www.uscis.gov/humanitarian/humanitarian-parole/the-cuban-family-reunification-parole-program</a>
(last visited Dec. 13, 2022).
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By statute, Cuban parolees may apply for LPR status after a year of
residence in the United States. Cuban Adjustment Act, Public Law 89-
732, 80 Stat. 1161 (1966) (8 U.S.C. 1255 note). In addition, beginning
in early 2023, the U.S. Embassy in Havana will resume full immigrant
visa processing for the first time since 2017, which will increase the
pool of noncitizens eligible for CFRP.\123\
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\123\ Department of State, Los Angeles Declaration on Migration
and Protection Lima Ministerial Meeting: Fact Sheet (``Lima
Ministerial Fact Sheet'') (last updated Oct. 6, 2022), <a href="https://www.state.gov/los-angeles-declaration-on-migration-and-protection-lima-ministerial-meeting/">https://www.state.gov/los-angeles-declaration-on-migration-and-protection-lima-ministerial-meeting/</a> (last visited Dec. 14, 2022); USCIS, USCIS
Resumes Cuban Family Reunification Parole Program Operations (Sept.
1, 2022), <a href="https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations">https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations</a> (last visited Dec.
13, 2022).
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5. Labor Pathways
The United States Government recognizes that many migrants
encountered at the SWB are seeking employment opportunities and often
hoping to provide for their families via remittances sent home. The
United States welcomes, through lawful pathways, noncitizen workers who
play a vital role in the economy, particularly in the light of
concentrated labor shortages. DHS and its interagency partners have
been working diligently over the past few years to expand recruitment
of workers for H-2 visas from the Western hemisphere and facilitate
their entry into the United States. In FY 2022, for example, the Unites
States Government issued more than 19,000 H-2 visas to Guatemalans,
Hondurans, and Salvadorans--a 94 percent increase over the 9,796 H-2
visas in FY 2021.\124\ In addition, on December 15, 2022, DHS and the
Department of Labor (``DOL'') issued a temporary final rule that made
an additional 64,716 H-2B temporary nonagricultural worker visas
available to employers in FY 2023, in addition to the 66,000 H-2B visas
that are normally available each fiscal year. The H-2B supplemental
includes an allocation of 20,000 visas to workers from Haiti and the
Central American countries of Honduras, Guatemala, and El
Salvador.\125\
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\124\ Lima Ministerial Fact Sheet.
\125\ See 87 FR 76816, 76817, 76819 (Dec. 15, 2022).
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In addition, the United States Agency for International Development
(``USAID'') has worked directly with labor ministries in Central
America to dramatically decrease the time it takes to match H-2 workers
to employers' requests--from 55 days to 16 days in Guatemala, from 24
days to nine days in Honduras, and from 42 days to 30 days in El
Salvador.\126\ Certain U.S. embassies and consulates prioritize H-2
visa applications, to the point at which these consular sections can
process them in two business days.\127\ While not a substitute for
asylum, these available processes respond to the needs of many of those
encountered at the border who are in fact seeking economic opportunity,
not asylum.
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\126\ USAID, Remarks of Administrator Power at the Discussion On
Opportunities and Incentives For Expanded H-2A Visa Recruitment with
USDA Secretary Vilsack (Sept. 30, 2022), <a href="https://www.usaid.gov/news-information/speeches/sep-30-2022-remarks-administrator-power-discussion-opportunities-and-incentives">https://www.usaid.gov/news-information/speeches/sep-30-2022-remarks-administrator-power-discussion-opportunities-and-incentives</a> (last visited Jan. 31,
2023).
\127\ Id.
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6. Expanded Refugee Processing in the Region
In the past two years, the United States Government has taken steps
to significantly expand refugee admissions from Latin America and the
Caribbean through the U.S. Refugee Admissions Program (``USRAP''). In
FY 2022, the United States Government resettled 2,485 refugees from the
Western Hemisphere, a 521 percent increase over FY 2021.\128\ In June
2022, the United States made a commitment under the Los Angeles
Declaration on Migration and Protection to resettle 20,000 refugees
from the Americas during Fiscal Years 2023 and 2024.\129\ In
fulfillment of this commitment, significant resources are being put in
place to expand regional refugee processing, which, coupled with the
process improvements, are expected to result in thousands more
individuals applying for, and being granted, refugee status.
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\128\ Lima Ministerial Fact Sheet.
\129\ L.A. Declaration Fact Sheet.
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Globally, the United States Government has dedicated significant
efforts to rebuilding, strengthening, and modernizing USRAP, including
by implementing actions stemming from a major review of USRAP
processing across the United States Government. In FY 2022, the United
States significantly improved the efficiency and responsiveness of
refugee applicant screening and vetting through coordination with the
National Vetting Center (``NVC''). Increased efficiency and vetting
through the NVC, combined with new technologies and innovation, will
allow the United States Government to further improve efficiencies in
screening and vetting.\130\
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\130\ Department of State, Report to Congress on Proposed
Refugee Admissions for Fiscal Year 2023 (Sept. 8, 2022), <a href="https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2023/">https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2023/</a> (last visited Dec. 13, 2022).
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7. Scheduling Arrivals at Ports of Entry
The United States is also expanding the implementation of an
innovative new process that uses technology--the CBP One app, a free,
public-facing application that can be downloaded on a mobile phone--to
significantly increase the number of individuals, including those who
may be seeking asylum, that CBP can process at land border ports of
entry.
Upon the lifting of the Title 42 public health Order, individuals
will be able to use the CBP One app to schedule a time to arrive at a
port of entry in order to be processed into the United States in a safe
and orderly manner, and once in the United States, able to make claims
for protection. CBP has conducted extensive testing of the application
to ensure it can receive a high volume of requests at one time, works
on both iOS and Android, is user-friendly, and employs clear and
accessible language.
The use of CBP One is expected to create efficiencies that will
enable CBP to safely and humanely expand its ability to process
noncitizens at land border ports of entry, including those who may be
seeking asylum. First, the provision of advance biographical and
biometric information by the noncitizen, as required by the application
(in the form of basic applicant information and provision of a live
photograph)--all information that would otherwise be collected upon
arrival at the port of entry--is expected to save processing time,
thereby allowing CBP officers to process more individuals than would
otherwise be possible. CBP anticipates that use of the CBP One app will
enable CBP to schedule appointments for--and
[[Page 11720]]
process--multiple times more noncitizens at the border than the pre-
pandemic (2014-2019) daily number of inadmissible noncitizens seeking
to enter the United States at land border ports of entry. Second, these
time savings are expected to reduce the time undocumented individuals
spend in CBP custody, which further facilitates a safe and orderly
process, reduces the risks associated with overcrowding, and promotes
the health and safety of the DHS workforce and noncitizens alike.
Individuals who schedule a time to arrive at a port of entry using
CBP One, present themselves at that time, and are processed into the
United States, would not be subject to the rebuttable presumption on
asylum eligibility created by this proposed rule, whether in an
application for asylum or during a credible fear screening.
While the Departments are aware of concerns regarding the
accessibility of the CBP One app, both the app and the proposed rule
are designed to take account of such accessibility concerns. CBP has
observed that the overwhelming majority of noncitizens processed at
ports of entry have smartphones. A CBP survey of migrants at the
Hidalgo and Brownsville Ports of Entry on December 11, 2022,
substantiates that observation--finding that 93 of 95 migrants of all
ages had smartphones. In addition, third parties may assist noncitizens
to navigate the app and input the required information to schedule a
time and place to arrive at a port of entry. The Departments also have
proposed to address those who nonetheless continue to have access
concerns, by excepting from the rebuttable presumption individuals who
arrive at ports of entry without a pre-scheduled time and place if the
noncitizen demonstrates by a preponderance of the evidence that it was
not possible to access or use the CBP One app due to language barrier,
illiteracy, significant technical failure, or other ongoing and serious
obstacle.
In sum, by enabling migrants to schedule a time to arrive at a port
of entry, DHS anticipates being able to minimize wait times, ultimately
process more migrants, and channel arrivals to ports according to their
capacity and ability to safely operate. This will help protect CBP
officers' ability to effectively carry out their other critical
missions of facilitating trade and travel at the ports of entry.
F. Increased Access to Protection and Other Pathways in the Region
Recognizing that managing migration is a collective responsibility,
the United States has been working closely with countries throughout
the region to prioritize and implement a strategy that advances safe,
orderly, legal, and humane migration, including access to international
protection for those in need, throughout the Western Hemisphere. This
focus is exemplified in three policy-setting documents: the U.S.
Strategy for Addressing the Root Causes of Migration in Central
America; \131\ the Collaborative Migration Management Strategy
(``CMMS''); \132\ and the Los Angeles Declaration on Migration and
Protection (``L.A. Declaration''), which was endorsed in June 2022 by
21 countries.\133\ The CMMS and the L.A. Declaration support a
collaborative and regional approach to migration and forced
displacement, pursuant to which countries in the hemisphere commit to
implementing programs to stabilize communities hosting migrants and
asylum seekers, providing increased regular pathways and protections
for migrants and asylum seekers residing in or traveled through their
countries, and humanely enforcing existing immigration laws. The L.A.
Declaration specifically lays out the goal of collectively
``expand[ing] access to regular pathways for migrants and refugees.''
\134\
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\131\ The White House, FACT SHEET: Strategy to Address the Root
Causes of Migration in Central America (July 29, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causes-of-migration-in-central-america/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causes-of-migration-in-central-america/</a> (last visited Dec. 13, 2022).
\132\ The White House, FACT SHEET: The Collaborative Migration
Management Strategy (July 29, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/</a> (last visited Dec. 13,
2022).
\133\ Department of Homeland Security, Los Angeles Declaration
on Migration and Protection (June 10, 2022), <a href="https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023">https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023</a>, (last visited Nov. 30, 2022).
\134\ Id.
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To further L.A. Declaration commitments, the Department of State's
Bureau of Population, Refugees, and Migration (``PRM'') and USAID
announced $314 million in new funding for humanitarian and development
assistance for refugees and vulnerable migrants across the hemisphere,
including support for socio-economic integration and humanitarian aid
for Venezuelans in 17 countries of the region.\135\ And on September
22, 2022, PRM and USAID announced nearly $376 million in additional
humanitarian assistance, which will provide essential support for
vulnerable Venezuelans within Venezuela, as well as urgently needed
assistance for migrants, refugees, and host communities across the
region, further contributing to stabilization to address humanitarian
crises in the region.\136\
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\135\ Department of State, Additional $314 Million for U.S.
Humanitarian Response to the Venezuela Regional Crisis (June 10,
2022), <a href="https://www.state.gov/additional-314-million-for-u-s-humanitarian-response-to-the-venezuela-regional-crisis/">https://www.state.gov/additional-314-million-for-u-s-humanitarian-response-to-the-venezuela-regional-crisis/</a> (last
visited Dec. 13, 2022).
\136\ USAID, The United States Announces Nearly $376 Million in
Additional Humanitarian Assistance for People Affected by the
Ongoing Crisis in Venezuela and the Region (Sept. 22, 2022), <a href="https://www.usaid.gov/news-information/press-releases/sep-22-2022-the-us-announces-nearly-376-million-additional-humanitarian-assistance-for-people-affected-by-ongoing-crisis-in-venezuela">https://www.usaid.gov/news-information/press-releases/sep-22-2022-the-us-announces-nearly-376-million-additional-humanitarian-assistance-for-people-affected-by-ongoing-crisis-in-venezuela</a> (last visited Dec.
13, 2022).
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Already there have been dividends from these efforts, as countries
throughout the region have made substantial improvements to their
protection systems, offering migrants meaningful new avenues to access
temporary protection, domestic job markets, and public benefits such as
health care and education. For example, as of 2021, Mexico is the third
highest recipient of asylum claims in the world and the Government of
Mexico has announced substantial increases to its labor visa programs
over the past two years to help those seeking protection enter the
labor market.\137\ Costa Rica announced its intention to provide
protected status to more than 200,000 displaced Nicaraguans.\138\ And
Colombia is working to provide temporary protected status to more than
2 million displaced Venezuelans.\139\
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\137\ L.A. Declaration Fact Sheet; International Rescue
Committee, Asylum Seekers in Mexico Need Support to Join the Labor
Market and Rebuild Their Lives, IRC and Citi Foundation Respond with
a Project (Dec. 7, 2022), <a href="https://www.rescue.org/press-release/asylum-seekers-mexico-need-support-join-labor-market-and-rebuild-their-lives-irc-and">https://www.rescue.org/press-release/asylum-seekers-mexico-need-support-join-labor-market-and-rebuild-their-lives-irc-and</a> (last visited Dec. 13, 2022).
\138\ <a href="https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022Alvaro">https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022Alvaro</a> Murillo et al., Costa
Rica Prepares Plan to Regularize Status of 200,000 Mostly Nicaraguan
Migrants, Reuters, Aug. 10, 2022, <a href="https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/">https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/</a> (last visited Dec. 13, 2022).
\139\ L.A. Declaration Fact Sheet.
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The following descriptions are illustrative of the efforts being
taken by countries in the region, all of which are parties to the 1951
United Nations Convention relating to the Status of Refugees (``Refugee
Convention'') or the 1967 Protocol relating to the Status of Refugees
(``Refugee Protocol'' or ``Protocol'') \140\ and the Convention Against
Torture.\141\ The Departments recognize that not all the options below
[[Page 11721]]
are viable for each migrant or asylum seeker, depending upon their
individual circumstances. However, a location that may be unsafe for
one person may not only be safe for, but offer a much-needed refuge to,
others. While some of the countries below are the origin for sizable
numbers of asylum seekers in the region, they also demonstrably provide
protection for others who do consider those countries to be safe
options where they are free from persecution or torture. Many such
countries have stepped up in significant ways to address the
unprecedented movement of migrants throughout the hemisphere--which has
created a humanitarian challenge for almost every country in the
region--by providing increased access to protection.
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\140\ 1967 Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223, 606 U.N.T.S. 268.
\141\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
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Mexico: The Government of Mexico has made notable strides in
strengthening access to international protection through its Mexican
Refugee Assistance Commission (``COMAR''), and as a result has now
emerged as one of the top countries receiving asylum applications in
the world.
COMAR now has staffing and field presence in seven COMAR offices
and representation at three additional National Migration Institute
offices.\142\ According to the United Nations High Commissioner for
Refugees (``UNHCR''), nearly 60,000 asylum seekers were assisted by a
legal network comprising more than 100 lawyers and paralegals in 2021,
and the Federal Public Defender's Office provides additional support to
people with asylum claims before COMAR.\143\ Applicants who do not
qualify for asylum in Mexico are automatically considered for
complementary protection if they possess a fear of harm in their
country of origin, or if there is reason to believe that they will be
subjected to torture or to cruel, inhuman, or degrading treatment, but
do not meet the refugee definition. Complementary protection allows
these beneficiaries to regularize their status.\144\
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\142\ COMAR witnessed a historically high level of asylum
applications in 2021 with 129,791 cases--a level that was maintained
through 2022, with 118,478 applications. Government of Mexico, La
COMAR en N[uacute]meros (Dec. 2022), <a href="https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf">https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf</a> (last
visited Feb. 1, 2023). Of the 419,337 individuals who have applied
for asylum from COMAR from 2013 through the end of 2022, COMAR has
granted asylum to 92,030 of these individuals. Id.
\143\ United Nations High Commissioner for Refugees, Protection
and Solutions in the Pandemic at 33 (2022), <a href="https://www.acnur.org/6261d3ab4.pdf">https://www.acnur.org/6261d3ab4.pdf</a> (last visited Dec. 17, 2022); MIRPS, MIRPS in Mexico,
<a href="https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico/">https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico/</a>
(last visited Dec. 17, 2022).
\144\ Government of Mexico, Ley sobre Refugiados,
Protecci[oacute]n Complementaria y Asilo Pol[iacute]tico (Jan. 27,
2011), <a href="https://www.gob.mx/cms/uploads/attachment/file/211049/08_Ley_sobre_Refugiados__Protecci_n_Complementaria_y_Asilo_Pol_tico.pdf">https://www.gob.mx/cms/uploads/attachment/file/211049/08_Ley_sobre_Refugiados__Protecci_n_Complementaria_y_Asilo_Pol_tico.pdf</a> (last visited Dec. 17, 2022).
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In 2021, COMAR received nearly 130,000 asylum applications--almost
double the number of applications it processed in 2019, and the third
most of any country in the world, after the United States and
Germany.\145\ Of those applications in 2021, COMAR granted asylum in 72
percent of cases; an additional two percent of applicants were granted
complementary protection.\146\ The average case takes 8-12 months to
adjudicate.\147\ With United States Government funding and the support
of international organizations, Mexico also has substantially increased
its Local Integration Program, which relocates and integrates
individuals granted asylum in safe areas of Mexico's industrial
corridor. These individuals are then matched with jobs and provided
apartments, and their children are enrolled in local schools. In May
2022, the program reached the milestone of reintegrating its 20,000th
asylum seeker in Mexico.\148\ And in June 2022, Mexico committed to
support local labor integration for an additional 20,000 asylees over
the next three years.\149\
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\145\ Lizbeth Diaz, Mexico Asylum Applications Surge in 2021,
Haitians Top List, Reuters, Jan. 3, 2022, <a href="https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/">https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/</a> (last visited Dec. 13, 2022); TeleSUR
English, Mexico was the Third Country with the Highest Number of
Asylum Applications in 2021, YouTube (Apr. 22, 2022), <a href="https://www.youtube.com/watch?v=zD1jVg8CJ9s">https://www.youtube.com/watch?v=zD1jVg8CJ9s</a> (last visited Dec. 13, 2022).
\146\ Lizbeth Diaz, Mexico Asylum Applications Surge in 2021,
Haitians Top List, Reuters, Jan. 3, 2022, <a href="https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/">https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/</a> (last visited Dec. 13, 2022).
\147\ Refugees International, Mexico's Use of Differentiated
Asylum Procedures: An Innovative Approach to Asylum Processing (July
20, 2021), <a href="https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5">https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5</a> (last visited Dec. 13, 2022).
\148\ UNHCR, M[aacute]s de 20.000 Reubicaciones como Parte de
los Esfuerzos de Integraci[oacute]n de Personas Refugiadas en
M[eacute]xico (May 25, 2022), <a href="https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html">https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html</a> (last visited Dec. 13, 2022).
\149\ L.A. Declaration Fact Sheet.
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It is also notable that that the Government of Mexico has become a
regional leader in providing labor pathways for individuals who are
seeking economic opportunity. Mexico has committed to growing the
Border Visitor Work Card program--which allows unlimited entry and exit
for Guatemalans and Belizeans to cross Mexico's southern border and
work in Southern Mexican states--from approximately 3,500 beneficiaries
a year to 10,000-20,000 beneficiaries per year.\150\ Mexico also
announced the launch of a new temporary labor program for 15,000-20,000
Guatemalan workers. This will be expanded to Honduran and Salvadoran
workers in the medium term and highlights the priority that the
Government of Mexico is placing on providing lawful mechanisms for
migrants to access opportunity, thus reducing the incentive to resort
to irregular migration.\151\
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\150\ Government of Mexico, Press Release, Mexico to Expand
Labor Mobility Programs and Integrate Refugees into its Labor Market
(June 10, 2022), <a href="https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en">https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en</a> (last visited Dec. 16, 2022); L.A. Declaration Fact
Sheet.
\151\ Unidad de Pol[iacute]tica Migratoria, Boleti0301;n Mensual
de Estad[iacute]sticas Emigratorias (Oct. 2022), <a href="http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/Boletines_Estadisticos">http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/Boletines_Estadisticos</a> (last visited Dec. 14, 2022); L.A.
Declaration Fact Sheet.
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Guatemala: Over the past two years, the Government of Guatemala has
taken key steps to continue to develop its asylum system. In 2021, the
Guatemalan Migration Institute (``IGM'') announced that it established
the Refugee Status Recognition Department (``DRER'') to better receive
and process asylum applications, in line with the concept of regional
responsibility sharing to manage migration.\152\ DRER is a specialized
branch of IGM that has been created solely to receive asylum claims--a
key improvement from its prior practice, where intake was not
specialized for asylum seekers. The Government of Guatemala also
partnered with the United States Government and international
organizations, including UNHCR, IOM, and the United Nations
International Children's Emergency Fund to establish a series of
Attention Centers for Migrants and Refugees in Guatemala City, Tecun
Uman, and Quetzaltenango.\153\ These centers, located in key locations
across Guatemala, provide individuals an
[[Page 11722]]
opportunity to have their protection, humanitarian, and economic needs
evaluated in order to provide appropriate services and referrals. Since
their inception, more than 32,000 individuals have accessed these
centers.\154\
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\152\ Government of Guatemala Ministry of Foreign Affairs,
Comunicado, Guatemala Fortalece Acci[oacute]n Institucional en
Esfuerzo Regional por Atenci[oacute]n y Dignificaci[oacute]n de
Refugiados con Apoyo de ACNU Guatemala (Feb. 9, 2021), <a href="https://prensa.gob.gt/guatemala-fortalece-accion-institucional-en-esfuerzo-regional-por-atencion-y-dignificacion-de-0">https://prensa.gob.gt/guatemala-fortalece-accion-institucional-en-esfuerzo-regional-por-atencion-y-dignificacion-de-0</a> (last visited Dec. 13,
2022).
\153\ The White House, FACT SHEET: Update on the Collaborative
Migration Management Strategy (April 20, 2022), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/</a> (last visited Dec. 15, 2022).
\154\ Id.
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In 2019 and 2020, IGM received just under 500 asylum applications
per year; however, that number doubled to 1,054 in 2021. As of March
2022, IGM had already received nearly 300 applications in 2022 and
granted asylum to 590 individuals.\155\ In addition, with support from
the United States Government, UNHCR has helped Guatemala streamline the
issuance of work permits for refugee and asylum seekers from 15 to 4
business days.\156\
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\155\ Instituto Guatemalteco de Migraci[oacute]n,
Informaci[oacute]n Sobre Personas Solicitantes y Refugiadas en
Guatemala: Enero 2002-Marzo 2022 (Mar. 2022), <a href="https://igm.gob.gt/wp-content/uploads/2022/04/Informe-con-Graficos-Marzo-2022.pdf">https://igm.gob.gt/wp-content/uploads/2022/04/Informe-con-Graficos-Marzo-2022.pdf</a> (last
visited Dec. 13, 2022).
\156\ Government of Guatemala, Extranjeros Podr[aacute]n
Solicitar Permiso de Trabajo En L[iacute]nea (Feb. 28, 2022),
<a href="https://www.mintrabajo.gob.gt/index.php/noticias/356-extranjeros-podran-solicitar-permiso-de-trabajo-en-linea">https://www.mintrabajo.gob.gt/index.php/noticias/356-extranjeros-podran-solicitar-permiso-de-trabajo-en-linea</a> (last visited Dec. 15,
2022).
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Belize: Belize also has taken meaningful steps to expand protection
for migrants. In December 2021, the Government of Belize announced an
amnesty program for asylum seekers who registered before March 31, 2020
(but whose cases have not been adjudicated), and irregular migrants who
have lived in the country before December 31, 2016.\157\ Additionally,
migrants can qualify for other reasons tied to their societal
connections to Belize, such as having a Belizean child, marrying a
Belizean, or completing school in Belize and continuing to reside in
Belize. Recipients are immediately granted permanent residence with a
path to citizenship.\158\ UNHCR reports that, as of October 2022, a
total of 4,130 individuals (primarily Guatemalans, Hondurans and
Salvadorans) have been granted asylum in Belize.\159\
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\157\ Government of Belize, Announcement of Amnesty 2022 (Dec.
7, 2022), <a href="https://www.pressoffice.gov.bz/announcement-of-amnesty-2022/">https://www.pressoffice.gov.bz/announcement-of-amnesty-2022/</a> (last visited Dec. 8, 2022).
\158\ Id.
\159\ UNHCR, Fact Sheet: Belize September-October 2022 (Nov. 28,
2022), <a href="https://data.unhcr.org/en/documents/details/97161">https://data.unhcr.org/en/documents/details/97161</a> (last
visited Dec. 13, 2022).
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Costa Rica: Costa Rica has demonstrated its commitment to providing
humanitarian and other protections to asylum seekers and displaced
migrants over the past two years. It is currently hosting roughly
300,000 Nicaraguan nationals who have fled deteriorating economic and
security conditions in that country--a number that constitutes about 75
percent of Costa Rica's migrant population.\160\ As recently as
September 2022, Costa Rican officials reported more than 200,000
pending applications and another 50,000 people waiting for their
appointment to make a formal application. Nicaraguans account for
nearly 9 out of 10 applicants.\161\
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\160\ Nicaragua, CIA World Factbook (Dec. 2, 2022), https://
www.cia.gov/the-world-factbook/countries/nicaragua/
#:~:text=Today%20roughly%20300%2C000%20Nicaraguans%20are,seasonally%2
0for%20work%2C%20many%20illegally (last visited Dec. 15, 2022).
\161\ Moises Castillo, Fleeing Nicaraguans strain Costa Rica's
asylum system, Associated Press, Sept. 2, 2022, <a href="https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5">https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5</a> (last visited Dec. 15, 2022).
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The Government of Costa Rica recently announced its intention to
regularize the status of more than 200,000 mostly Nicaraguan migrants,
providing them with access to jobs and healthcare as part of the
process.\162\ In addition, the Government of Costa Rica committed in
its National Action Plan for the Comprehensive Regional Protection and
Solutions Framework to ``establish complementary protection or other
mechanisms to guarantee the non-refoulement principle for people who do
not meet the requirements to be recognized as refugees but should not
be returned to their country of origin, because of reasonable risk of
suffering harm.'' \163\
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\162\ Alvaro Murillo et al., Costa Rica Prepares Plan to
Regularize Status of 200,00 Mostly Nicaraguan Migrants, Reuters,
Aug. 10, 2022, <a href="https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/">https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/</a> (last visited Dec. 13, 2022).
\163\ MIRPS National Action Plan: Belize, Costa Rica, El
Salvador, Guatemala, Honduras, Mexico, Panama 7, <a href="https://globalcompactrefugees.org/sites/default/files/2021-04/MIRPS%20National%20commitments.pdf">https://globalcompactrefugees.org/sites/default/files/2021-04/MIRPS%20National%20commitments.pdf</a> (last visited Dec. 16, 2022).
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On March 15, 2022, following extensive diplomatic engagement, the
United States and the Government of Costa Rica signed a migration
arrangement, the first such agreement in the region. This agreement
outlines both countries' mutual commitment to work collaboratively to
manage migration and expand legal pathways and access to
protection.\164\ Furthermore, through the L.A. Declaration, Costa Rica
committed to renewing the temporary complementary protection category
scheme for migrants of Cuba, Nicaragua, and Venezuela.\165\ Making true
on its commitment in the L.A. Declaration, Costa Rica has established a
Temporary Complementary Protection Program, also known as a Special
Temporary Category (``STC''), for Cuban, Nicaraguan, and Venezuelan
migrants who applied for asylum between January 1, 2010, and September
30, 2022, and desire to withdraw their applications in lieu of
permission to remain lawfully in Costa Rica, work, and receive other
social services in the country. STC holders will be permitted to apply
for residency after five years.
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\164\ DHS, Readout of Secretary Mayorkas's Visit to Mexico and
Costa Rica (Mar. 15, 2022), <a href="https://www.dhs.gov/news/2022/03/16/readout-secretary-mayorkass-visit-mexico-and-costa-rica">https://www.dhs.gov/news/2022/03/16/readout-secretary-mayorkass-visit-mexico-and-costa-rica</a> (last
visited Dec. 13, 2022); U.S. Embassy in Costa Rica, United States
and Costa Rica Sign Migration Arrangement (Mar. 17, 2022), <a href="https://cr.usembassy.gov/united-states-and-costa-rica-sign-migration-arrangement/">https://cr.usembassy.gov/united-states-and-costa-rica-sign-migration-arrangement/</a> (last visited Dec. 13, 2022).
\165\ L.A. Declaration Fact Sheet.
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Colombia: Colombia has emerged as one of the leaders in the Western
Hemisphere--and the world--in its response to the unprecedented surge
in irregular migration from Venezuela. On February 8, 2021, the
Government of Colombia announced an innovative program to provide
temporary protected status for 10 years to Venezuelans residing in
Colombia as of that date, as well those who enter the country and
register through official ports of entry over the next two years. This
form of complementary protection provides Venezuelan migrants with
government identity documents, allowing them to work legally, access
public and private services, and integrate and contribute to Colombia's
economy and society.\166\
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\166\ UNHCR, Temporary Protection Status in Colombia (November
2021) (Dec. 3, 2021), <a href="https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0">https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0</a> (last visited
Dec. 13, 2022).
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More than 2.3 million Venezuelans have registered for this
complementary protection, and as of December 2022, the Government of
Colombia had approved documents to provide temporary legal status to
over 1.6 million Venezuelans and delivered them to nearly 1.5 million
Venezuelans.\167\ The new Petro Administration in Colombia has affirmed
its commitment to continuing these efforts, and Colombia is working to
expand measures that promote integration of these migrants in Colombian
society.
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\167\ Government of Colombia, Visibles: Estado Temporal de
Protecci[oacute]n, <a href="https://www.migracioncolombia.gov.co/visibles">https://www.migracioncolombia.gov.co/visibles</a>
(last visited Dec. 15, 2022).
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Ecuador: The Government of Ecuador is hosting more than 500,000
displaced Venezuelans and has worked to meaningfully expand protection
for migrants in recent months.\168\ Ecuador has received nearly 12,000
asylum applications containing over 60,000 applicants since 2017 and
granted
[[Page 11723]]
asylum to 12,643 individuals and complementary protection to another
195 individuals through mid-2022.\169\ On September 1, 2022, it
launched the first phase of its registration process, which will enable
irregular migrants to gain a temporary resident permit--opening online
registration to an estimated 120,000 Venezuelans who hold or previously
held a regular migration status and all unaccompanied minors. More than
68,500 individuals registered within the first week. The second phase
opened on November 16, 2022, to approximately 100,000 non-Venezuelan
migrants (the majority of whom are Colombian) who entered regularly. As
of November 25, 2022, more than 89,000 individuals had registered and
over 22,000 have already received their temporary residency visa. The
third phase will open February 17, 2023, to an estimated 350,000
Venezuelans who entered irregularly.
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\168\ UNHCR, Ecuador: Monthly Update October 2022 (Nov. 10,
2022), <a href="https://reporting.unhcr.org/document/3742">https://reporting.unhcr.org/document/3742</a> (last visited Dec.
13, 2022).
\169\ UNHCR, Ecuador: Monthly Update October 2022 (Nov. 10,
2022), <a href="https://reporting.unhcr.org/document/3742">https://reporting.unhcr.org/document/3742</a> (last visited Dec.
13, 2022); UNHCR, Refugee Data Finder; Asylum Applications, <a href="https://www.unhcr.org/refugee-statistics/download/?url=Lzen78">https://www.unhcr.org/refugee-statistics/download/?url=Lzen78</a> (last visited
Dec. 13, 2022); UNHCR, Refugee Data Finder; Asylum Decisions,
<a href="https://www.unhcr.org/refugee-statistics/download/?url=U7qmaT">https://www.unhcr.org/refugee-statistics/download/?url=U7qmaT</a> (last
visited Dec. 13, 2022).
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Canada: Canada operates a well-known Temporary Foreign Worker
Program and expected to welcome 50,000 agricultural workers from
Mexico, Guatemala, and the Caribbean in 2022.\170\ In 2021, Canada
admitted 61,735 workers specifically in the agricultural sector, 44
percent of whom were from Mexico and 23 percent from Guatemala.\171\
This is in addition to its refugee resettlement program, which has
received 17,687 referrals from the Western Hemisphere in 2022, of which
5,020 have been granted refugee status in Canada so far.\172\
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\170\ L.A. Declaration Fact Sheet.
\171\ Statistics Canada, Countries of Citizenship for Temporary
Foreign Workers in the Agricultural Sector (June 13, 2022), <a href="https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3210022101">https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3210022101</a> (last
visited Dec. 13, 2022).
\172\ Immigration and Refugee Board of Canada, Claims by Country
of Alleged Persecution 2022 (January to September) (Nov. 22, 2022),
<a href="https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2022.aspx">https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2022.aspx</a> (last visited Dec. 13, 2022).
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IV. Description of the Proposed Rule
A. Rebuttable Presumption of Ineligibility for Asylum and Exceptions
Pursuant to section 208(b)(1)(A), (b)(2)(C), (d)(5)(B) of the INA,
8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B), the Departments are
proposing a condition on asylum eligibility, in the form of a new
rebuttable presumption of ineligibility for asylum in proposed 8 CFR
208.33 and 8 CFR 1208.33 for certain noncitizens who enter the United
States at the southwest land border. Under this NPRM, this rebuttable
presumption would apply to certain noncitizens entering the United
States at the southwest land border without documents sufficient for
lawful admission as described in section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), on or after the date of termination of the Title 42 public
health Order, after traveling through a country that is party to the
1951 United Nations Convention relating to the Status of Refugees or
the 1967 Protocol relating to the Status of Refugees. For purposes of
proposed 8 CFR 208.33(a)(1) and 1208.33(a)(1), the phrase ``enters the
United States at the southwest land border'' would mean any crossing
into the territorial limits of the United States, i.e., physical
presence, whether presenting at a U.S. port of entry or crossing into
U.S. territory between ports of entry, without regard to whether the
noncitizen has been inspected by an immigration officer, evaded
inspection by an immigration officer, or was free from official
restraint or surveillance. In other words, the term ``enters'' would
not be intended to import the definitions of ``entry'' that have been
used in certain other, unique immigration law contexts. Cf., e.g.,
Matter of Martinez-Serrano, 25 I&N Dec. 151, 153 (BIA 2009).
This rebuttable presumption would not apply to noncitizens who
availed themselves of certain established processes to enter the United
States or sought asylum in a third country and were denied. Proposed 8
CFR 208.33(a)(1), 8 CFR 1208.33(a)(1). Specifically, the rebuttable
presumption would not be applicable to noncitizens who are provided
appropriate authorization to travel to the United States to seek
parole, pursuant to a DHS-approved parole process; presented at a port
of entry at a pre-scheduled time and place, or presented at a port of
entry, without a pre-scheduled time and place, if the noncitizen
demonstrates that the DHS scheduling system (currently the CBP One app)
was not possible for the noncitizen to access or use; or sought asylum
or other protection in a country through which the noncitizen traveled
and received a final decision denying that application. Proposed 8 CFR
208.33(a)(1)(i) through (iii), 1208.33(a)(1)(i) through (iii).\173\
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\173\ The exemption for circumstances in which the DHS
scheduling system was inaccessible or unusable is designed to
capture a narrow set of cases in which it was truly not possible for
the noncitizen to access or use the DHS system due to language
barrier, illiteracy, significant technical failure, or other ongoing
and serious obstacle.
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A noncitizen could rebut this presumption by demonstrating
exceptionally compelling circumstances by a preponderance of the
evidence. The proposed rule lists three per se grounds for rebuttal: if
a noncitizen demonstrates that, at the time of entry, they or a member
of their family as described in 8 CFR 208.30(c) with whom the
noncitizen is traveling faced an acute medical emergency; faced an
imminent and extreme threat to their life or safety; or were a ``victim
of a severe form of trafficking in persons'' as defined in 8 CFR
214.11. Proposed 8 CFR 208.33(a)(2)(i) through (iii), 1208.33(a)(2)(i)
through (iii). Acute medical emergencies would include situations in
which someone faces a life-threatening medical emergency or faces acute
and grave medical needs that cannot be adequately addressed outside of
the United States. Examples of imminent and extreme threats would
include imminent threats of rape, kidnapping, torture, or murder that
the noncitizen faced at the time the noncitizen crossed the SWB, such
that they cannot wait for an opportunity to present at a port of entry
in accordance with the processes outlined in this proposed rule without
putting their life or well-being at extreme risk; it would not include
generalized threats of violence. In addition to the per se grounds for
rebuttal, the presumption also could be rebutted in other exceptionally
compelling circumstances, as the adjudicators in the sound exercise of
their judgment may determine.
One such additional exceptionally compelling circumstance that the
proposed rule would recognize avoids a circumstance that may lead to
the separation of a family. See proposed 8 CFR 1208.33(d). Those
subject to the lawful pathways condition on asylum eligibility who do
not rebut the presumption would be able to continue to apply for
statutory withholding of removal and protection under the CAT. Unlike
in asylum, spouses and minor children are not eligible for derivative
grants of withholding of removal or CAT protection. Compare INA
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (``[a] spouse or child . . . of an
alien who is granted asylum under this subsection may, if not otherwise
eligible for asylum under this section, be granted the same status as
the alien if accompanying, or following to join, such alien''), with
INA 241(b)(3), 8 U.S.C. 1231(b)(3) (not providing for derivative
statutory withholding of removal), and 8 CFR 1208.16(c)(2) (not
providing for derivative CAT protection); see also
[[Page 11724]]
Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (recognizing
that the asylum statute allows for derivative beneficiaries of the
principal applicant for asylum, but that the withholding of removal
statute makes no such allowance). Where a principal asylum applicant is
eligible for statutory withholding of removal or CAT protection and
would be granted asylum but for the lawful pathways rebuttable
presumption, and where the denial of asylum on that ground alone would
lead to the applicant's family being separated because at least one
other family member would not qualify for asylum or other protection
from removal on their own--meaning the entire family may not be able to
remain together--the Departments have determined that the possibility
of separating the family would constitute an exceptionally compelling
circumstance that rebuts the lawful pathways presumption of
ineligibility for asylum. See Executive Order 14011, Establishment of
Interagency Task Force on the Reunification of Families, 86 FR 8273,
8273 (Feb. 5, 2021) (``It is the policy of my Administration to respect
and value the integrity of families seeking to enter the United
States.'').
This family unity provision would appear in EOIR's regulations and
not DHS's regulations. That is because only EOIR adjudicators are able
to issue removal orders to noncitizens found to have a credible fear
and thus, functionally, are the only adjudicators able to withhold or
defer those orders under the statute or the regulations implementing
the CAT. Hence, a key inquiry for this rebuttal circumstance--whether
the principal applicant is eligible for statutory withholding of
removal or CAT protection--would be one reserved for EOIR and made
during removal proceedings even for those who are first processed
through the asylum merits process. Thus, inquiry into this rebuttal
circumstance is properly reserved for proceedings before EOIR.
Importantly, the absence of this provision from the DHS regulations
would not lead to the separation of families. When USCIS conducts a
credible fear screening of a family unit, it will find that the entire
family unit passes the screening if one member of the family is found
to have a credible fear. See 8 CFR 208.30(c). USCIS will continue to
process family claims in this manner even when applying the reasonable
possibility standard.
The proposed rule also contains a specific exception to the
rebuttable presumption for unaccompanied children. Recognizing
Congress's attention to the particular vulnerability of unaccompanied
children, see INA 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E) (exempting
unaccompanied children from the safe-third-country bar); INA
208(b)(3)(C), 8 U.S.C. 1158(a)(2)(E) (permitting unaccompanied children
to present their asylum claims in the first instance to an asylum
officer in a non-adversarial interview),\174\ unaccompanied children
would be categorically excepted from the rebuttable presumption. See
proposed 8 CFR 208.33(b)(1), 1208.33(b)(1). Moreover, applicability of
the rebuttable presumption would be adjudicated during the credible
fear process for noncitizens processed for expedited removal, as well
as applied to merits adjudications, as discussed below. Pursuant to the
Trafficking Victims Protection Reauthorization Act of 2008,
unaccompanied children whom DHS seeks to remove cannot be processed for
expedited removal and, thus, are never subject to the credible fear
process. 8 U.S.C. 1232(a)(5)(D). As unaccompanied children are already
precluded from expedited removal, which may already be an incentive for
children to arrive unaccompanied at our border, the Departments do not
expect--based on their experience implementing current law concerning
expedited removal and asylum--that this exclusion of unaccompanied
children from the rebuttable presumption would serve as a significant
incentive for families to send their children unaccompanied to the
United States. Moreover, under this NPRM, families would be able to
avail themselves of lawful pathways and processes to enter the United
States and not be subject to the rebuttable presumption.
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\174\ See also 8 U.S.C. 1232(d)(8) (``Applications for asylum
and other forms of relief from removal in which an unaccompanied
alien child is the principal applicant shall be governed by
regulations which take into account the specialized needs of
unaccompanied alien children and which address both procedural and
substantive aspects of handling unaccompanied alien children's
cases.'').
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B. Screening Procedures
Although the rebuttable presumption would apply to any noncitizen
who is described in proposed 8 CFR 208.33(a)(1), it would most
frequently be relevant for noncitizens who are subject to expedited
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).\175\
As described above, such noncitizens are subject to removal ``without
further hearing or review'' unless they indicate an intention to apply
for asylum or fear of persecution. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Noncitizens in expedited removal who indicate an
intention to apply for asylum or fear of persecution are referred to an
asylum officer for an interview to determine if they have a credible
fear of persecution and should accordingly remain in proceedings for
further consideration of the application. INA 235(b)(1)(A)(ii),
(b)(1)(B)(i)-(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (b)(1)(B)(i)-(ii). In
addition, asylum officers consider whether a noncitizen in expedited
removal may be eligible for withholding of removal under section
241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or for protection under the
regulations implementing U.S. non-refoulement obligations under the
CAT. See 8 CFR 208.30(e)(2) and (3).
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\175\ For a more complete description of the expedited removal
process, see the Legal Authority section below.
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Accordingly, the proposed rule would implement changes to and build
on this existing system and would instruct asylum officers to apply the
lawful pathways rebuttable presumption during credible fear screenings.
The proposed rule would establish procedures for asylum officers to
follow when determining whether the rebuttable presumption applies to a
noncitizen, see proposed 8 CFR 208.33(a)(1), and, if it does, whether
the noncitizen has rebutted the presumption, see proposed 8 CFR
208.33(a)(2). In addition, for noncitizens found to be ineligible for
asylum under the proposed rule, the proposed rule would establish
procedures for asylum officers to further consider a noncitizen's fear
of removal in the context of the noncitizen's eligibility for
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or for protection under the regulations implementing the
CAT.
For each noncitizen referred to an asylum officer for a credible
fear interview, the asylum officer would first determine if the
noncitizen is covered by and fails to rebut the presumption of
ineligibility at proposed 8 CFR 208.33(a)(1). If the asylum officer
determines that the answer to both questions is ``yes,'' then the
noncitizen would be ineligible for asylum under the lawful pathways
condition, and the asylum officer would proceed to determine whether
the noncitizen has established a reasonable possibility of persecution
or torture \176\ in order to
[[Page 11725]]
screen for withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), or for withholding of removal under the regulations
implementing the CAT as to the identified country of removal.\177\
However, if the asylum officer determines that the answer to either
question is ``no''--meaning the asylum officer has determined that the
noncitizen is not covered by the lawful pathways condition (for
example, because the noncitizen pursued a lawful pathway set forth in
proposed 8 CFR 208.33(a)(1)) or is excepted pursuant to proposed 8 CFR
208.33(b)(2)) \178\ or the asylum officer determined that the
noncitizen met the burden to rebut the presumption under proposed 8 CFR
208.33(a)(2)--then the asylum officer would follow the procedures in 8
CFR 208.30, which provide for a positive credible fear determination if
the noncitizen establishes a significant possibility of establishing
eligibility for asylum under section 208 of the INA, statutory
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or withholding of removal under the regulations
implementing the CAT.
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\176\ The Departments acknowledge that, in the Asylum Processing
IFR, they recently rescinded changes made by the Global Asylum Rule
that applied mandatory bars during credible fear screenings and
subjected noncitizens' remaining claims for statutory withholding
and CAT protection to the ``reasonable possibility'' of persecution
or torture standard. As discussed in Part V.C.6.ii of this preamble,
the Departments have determined that in the unique circumstances
discussed in this proposed rule, it would be appropriate to apply
the lawful pathways additional limitation on asylum eligibility
during the credible fear screening stage and to then apply the
``reasonable possibility'' of persecution or torture standard to
screen the remaining applications for statutory withholding of
removal and CAT protection, and that doing so in the way the
Departments intend would lead to better allocation of resources
overall.
\177\ In most cases, the country of removal is the noncitizen's
country of citizenship or nationality. However, DHS may identify one
or more alternative countries of removal. See INA 241(b)(2), 8
U.S.C. 1231(b)(2) (designating countries of removal).
\178\ For example, as discussed above, the proposed rule excepts
unaccompanied children, but such exception is not relevant to the
discussion here as unaccompanied children are ineligible for
expedited removal. See 8 U.S.C. 1252(a)(5)(D).
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In other words, if the asylum officer determines that the
noncitizen is not subject to or has overcome the presumption described
in this proposed rule and thus is otherwise potentially eligible for
asylum, the asylum officer's credible fear determination would follow
the procedures already in place, including the use of the ``significant
possibility'' standard to screen for eligibility for asylum, statutory
withholding of removal, and CAT protection. See 8 CFR 208.30(e)(2) and
(3); see also 86 FR at 46914-15 (describing the history of the credible
fear screening process and ``significant possibility'' standard). If,
however, the asylum officer determines that the noncitizen is
ineligible for asylum due to the lawful pathways condition, the asylum
officer's review would be limited to whether the noncitizen has
demonstrated a reasonable possibility of persecution or torture, in
order to screen for statutory withholding of removal and CAT
protection.
If the asylum officer finds that a noncitizen who is ineligible for
asylum due to the lawful pathways condition establishes a reasonable
possibility of persecution or torture, as with other credible fear
interviews, DHS would issue the noncitizen a Form I-862, Notice to
Appear, and thereby place the noncitizen in removal proceedings under
section 240 of the Act, 8 U.S.C. 1229a. During the course of removal
proceedings, the noncitizen would be able to apply for asylum,
statutory withholding of removal, and protection under the CAT by
filing a Form I-589 in accordance with the form's and the court's
instructions, and the noncitizen could also seek any other claims for
relief they wish to pursue.\179\ In adjudicating the noncitizen's
application for asylum in section 240 proceedings, the IJ would use a
de novo standard of review (meaning the judge considers the asylum
officer's record, but rules without deferring to the asylum officer's
factual findings or legal conclusions) in determining the applicability
of the lawful pathways condition on eligibility for asylum.
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\179\ Specifically, the asylum officer's determination regarding
the noncitizen's ineligibility for asylum due to the lawful pathways
condition would not be controlling in section 240 removal
proceedings, and the IJ would be able to consider the noncitizen's
asylum eligibility using a de novo standard of review. In addition,
the noncitizen could seek any other form of relief or protection
available in section 240 proceedings, subject to the eligibility
requirements for such relief or protection.
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If the asylum officer were to find that a noncitizen is ineligible
for asylum due to the lawful pathways condition and fails to
demonstrate a reasonable possibility of persecution or torture, the
asylum officer would enter a negative credible fear determination,
provide the noncitizen with a written notice of the decision, and
inquire if the noncitizen wishes to seek further review of the asylum
officer's determination before an IJ. The noncitizen would indicate
whether or not he or she desires such review on a Record of Negative
Fear Finding and Request for Review by Immigration Judge. If the
noncitizen requests an IJ's review, the asylum officer would serve the
noncitizen with a Form I-863, Notice of Referral, and provide the IJ
with the record of the asylum officer's determination. A complete
description of the proposed IJ review proceedings is set out in the
next section. As relevant for the DHS procedures, however, the proposed
rule provides that the case would be returned to DHS for removal of the
noncitizen if the IJ affirms the asylum officer and issues a negative
credible fear determination, either because (1) the IJ determined that
the noncitizen is covered by the lawful pathways condition and did not
rebut the presumption and that the noncitizen did not establish a
reasonable possibility of persecution or torture, or (2) the IJ
determined that the noncitizen was not covered by the lawful pathways
condition or rebutted the presumption and that the noncitizen did not
establish a significant possibility of qualifying for asylum,
withholding of removal, or protection under the CAT. On the other hand,
if the IJ issues a positive credible fear finding, DHS would initiate
further proceedings that would allow the noncitizen the opportunity to
pursue a claim for asylum, statutory withholding of removal, and CAT
protection. Specifically, if the IJ finds that the noncitizen is not
covered by the lawful pathways condition or successfully rebutted the
condition's presumption of ineligibility for asylum and established a
significant possibility of eligibility for asylum, withholding of
removal, or CAT protection, DHS would have the discretion either to
issue the noncitizen a Form I-862, Notice to Appear, and thereby place
the noncitizen in removal proceedings under section 240 of the Act, 8
U.S.C. 1229a, or to refer the noncitizen for a merits interview before
an asylum officer under newly established procedures. See 8 CFR
1208.30(g)(2)(iv)(B); Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (``Asylum
Processing IFR''). Alternatively, if the IJ finds that the noncitizen
is subject to the lawful pathways condition and did not rebut the
presumption of ineligibility but determines that the noncitizen
established a reasonable possibility of persecution or torture, DHS
would file a Form I-862, Notice to Appear, and place the noncitizen in
removal proceedings under section 240 of the Act, 8 U.S.C. 1229a.\180\
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\180\ The Departments note that this proposed rule would provide
that DHS will refer all noncitizens subject to the lawful pathways
limitation who establish a reasonable possibility of persecution or
torture to removal proceedings under section 240 of the INA, 8
U.S.C. 1229a, even though the Credible Fear and Asylum Processing
IFR provides that DHS has discretion to place other categories of
screened-in noncitizens either in section 240 removal proceedings or
in an asylum merits hearing before a USCIS asylum officer under
newly established procedures. See generally 87 FR 18078. The
Departments believe this approach is the best use of resources
because asylum officers could not grant the ultimate relief--
withholding of removal under the Act or the Convention Against
Torture--that noncitizens who have a reasonable fear of persecution
but who are ineligible for asylum may be eligible for. In other
words, because each such proceeding would have to go to an
immigration judge, there would not be the same efficiency gained by
allowing those cases to possibly proceed to an asylum merits
interview before an asylum officer.
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[[Page 11726]]
C. IJ Review Procedure
Under longstanding regulations, IJs have had the authority to
review, upon the request of a noncitizen, an asylum officer's negative
credible fear determination. See generally 8 CFR 1003.42, 1208.30.
Consistent with this practice, this proposed rule would provide for IJ
review of asylum officers' negative credible fear determinations in
cases governed by proposed 8 CFR 208.33. A negative credible fear
determination encompasses findings that noncitizens have not
established a significant possibility of eligibility for asylum or a
reasonable fear of persecution or torture for purposes of statutory
withholding under the INA or the regulations implementing CAT.
Thus, where an asylum officer issues a negative credible fear
determination pursuant to this proposed rule, the asylum officer would
inquire whether the noncitizen wishes for an IJ to review that
determination. See proposed 8 CFR 208.33(c)(2)(iii). Where the
noncitizen requests such review, the record would be referred to an IJ.
See proposed 8 CFR 208.33(c)(2)(v). As required by the INA, IJ review
will be held in-person, by video, or by telephone, and the noncitizen
will have ``an opportunity . . . to be heard and questioned by the
immigration judge.'' \181\
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\181\ INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 1003.42(c).
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Consistent with established practice, the IJ would evaluate the
case under a de novo standard of review. See 8 CFR 1003.42(d)(1),
proposed 8 CFR 1208.33(c)(1). The IJ would first assess whether the
rebuttable presumption of asylum ineligibility at proposed 8 CFR
208.33(a)(1) and 1208.33(a)(1) applies and, if so, whether it was
rebutted by the noncitizen. Where the IJ determines that the
presumption applies and is not rebutted, the IJ would assess whether
the noncitizen has established a reasonable possibility of persecution
or torture in the country of removal. Where the IJ concludes that the
noncitizen has established such a reasonable possibility, the IJ would
issue a positive credible fear determination. See proposed 8 CFR
1208.33(c)(2)(ii). Where the IJ concludes that the noncitizen has not
established such a reasonable possibility, the IJ would issue a
negative credible fear determination. See id.
If the IJ determines that the presumption does not apply or that
the noncitizen rebutted the presumption, the IJ would continue to
determine whether the noncitizen has established a significant
possibility of eligibility for asylum, withholding of removal under
section 241(b)(3) of the Act, or withholding of removal under the CAT.
Where the IJ determines that the noncitizen has established a
significant possibility of eligibility, the IJ would issue a positive
credible fear determination. See proposed 8 CFR 1208.33(c)(2)(i). Where
the IJ determines that the noncitizen has not established a significant
possibility of eligibility for asylum, withholding of removal under
section 241(b)(3) of the Act, or withholding of removal under the CAT,
the IJ would issue a negative credible fear determination. See id.
Where the IJ issues a positive credible fear determination based on
the ``significant possibility'' standard, DHS would have the discretion
either to refer the noncitizen for an asylum merits interview before an
asylum officer, or to place the noncitizen in removal proceedings under
section 240 of the Act, 8 U.S.C. 1229a. See proposed 8 CFR
208.33(c)(2)(v)(A); Asylum Processing IFR. Where the IJ issues a
positive credible fear determination based on the ``reasonable
possibility'' standard, DHS would issue a Form I-862 and place the
noncitizen in removal proceedings under section 240 of the Act, 8
U.S.C. 1229a. See proposed 8 CFR 208.33(c)(2)(v)(B). In all cases, the
noncitizen would have the ability to pursue their claims for asylum,
withholding of removal under the Act, and protection under the CAT.
Where the IJ issues a negative credible fear determination, the
noncitizen would be removed by DHS, although USCIS has the discretion
to reconsider its negative credible fear determination. See proposed 8
CF
[…truncated; see source link]Indexed from Federal Register on February 23, 2023.
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.