Rule2023-06351
Implementation of the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 28, 2023
Effective
March 25, 2023
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
This rule amends existing Department of Homeland Security ("DHS") and Department of Justice ("DOJ") (collectively, "the Departments") regulations to implement the Additional Protocol to the Agreement between The Government of the United States of America and The Government of Canada For Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries ("Additional Protocol of 2022") negotiated by the Governments of the United States and Canada and signed in Ottawa, Ontario, Canada, on March 29, 2022, and in Washington, DC, United States, on April 15, 2022, respectively. The Additional Protocol of 2022 supplements certain terms of the December 5, 2002, Agreement between The Government of the United States and The Government of Canada For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries ("Safe Third Country Agreement," "STCA," or "Agreement"). Pursuant to the STCA, the respective governments manage which government decides certain individuals' requests for asylum or other protection relating to fear of persecution or torture (referred to as a "refugee status claim" in the STCA and the Additional Protocol of 2022) pursuant to its laws, regulations, and policies implementing its international treaty obligations relating to non-refoulement. Under the STCA, only those individuals who cross the U.S.-Canada land border at a port of entry ("POE"), or in transit while being removed or deported to a third country from the "country of last presence," are subject to the terms of the STCA. Once the Additional Protocol of 2022 is implemented, the STCA also will apply to individuals who cross the U.S.-Canada land border between POEs, including certain bodies of water, and who make an asylum or other protection claim relating to a fear of persecution or torture within 14 days after such crossing. The Additional Protocol of 2022 will enter into force once the United States and Canada have officially notified each other that they have completed the necessary domestic procedures for bringing the Additional Protocol of 2022 into force. The Departments intend this official notification to coincide with the effective date of this final rule at 12:01 a.m. on Saturday, March 25, 2023.
Full Text
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<title>Federal Register, Volume 88 Issue 59 (Tuesday, March 28, 2023)</title>
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[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Rules and Regulations]
[Pages 18227-18241]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06351]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2720-22; DHS Docket No. USCIS-2023-0003]
RIN 1615-AC84
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1240
[EOIR No. 23-0010; AG Order No. 5632-2023]
RIN 1125-AB29
Implementation of the 2022 Additional Protocol to the 2002 U.S.-
Canada Agreement for Cooperation in the Examination of Refugee Status
Claims From Nationals of Third Countries
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Final rule.
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SUMMARY: This rule amends existing Department of Homeland Security
(``DHS'') and Department of Justice (``DOJ'') (collectively, ``the
Departments'') regulations to implement the Additional Protocol to the
Agreement between The Government of the United States of America and
The Government of Canada For Cooperation in the Examination of Refugee
Status Claims From Nationals of Third Countries (``Additional Protocol
of 2022'') negotiated by the Governments of the United States and
Canada and signed in Ottawa, Ontario, Canada, on March 29, 2022, and in
Washington, DC, United States, on April 15, 2022, respectively. The
Additional Protocol of 2022 supplements certain terms of the December
5, 2002, Agreement between The Government of the United States and The
Government of Canada For Cooperation in the Examination of Refugee
Status Claims from Nationals of Third Countries (``Safe Third Country
Agreement,'' ``STCA,'' or ``Agreement''). Pursuant to the STCA, the
respective governments manage which government decides certain
individuals' requests for asylum or other protection relating to fear
of persecution or torture (referred to as a ``refugee status claim'' in
the STCA and the Additional Protocol of 2022) pursuant to its laws,
regulations, and policies implementing its international treaty
obligations relating to non-refoulement. Under the STCA, only those
individuals who cross the U.S.-Canada land border at a port of entry
(``POE''), or in transit while being removed or deported to a third
country from the ``country of last presence,'' are subject to the terms
of the STCA. Once the Additional Protocol of 2022 is implemented, the
STCA also will apply to individuals who cross the U.S.-Canada land
border between POEs, including certain bodies of water, and who make an
asylum or other protection claim relating to a fear of persecution or
torture within 14 days after such crossing. The Additional Protocol of
2022 will enter into force once the United States and Canada have
officially notified each other that they have completed the necessary
domestic procedures for bringing the Additional Protocol of 2022 into
force. The Departments intend this official notification to coincide
with the effective date of this final rule at 12:01 a.m. on Saturday,
March 25, 2023.
DATES: This final rule is effective at 12:01 a.m. on Saturday, March
25, 2023.
FOR FURTHER INFORMATION CONTACT:
For U.S. Citizenship and Immigration Services: Ren[aacute] Cutlip-
Mason, Chief, Division of Humanitarian Affairs, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588-
0009; telephone (240) 721-3000 (not a toll-free call).
For Executive Office of Immigration Review: Lauren Alder Reid,
Assistant Director, Office of Policy, Executive Office for Immigration
Review, Department of Justice, 5107 Leesburg Pike, Suite 1800, Falls
Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of the Final Rule Provisions
II. Background
A. DOJ and DHS Legal Authority
B. Overview of the Safe Third Country Agreement in the Context
of Asylum, Expedited Removal Proceedings, and Removal Proceedings
1. Asylum
2. Expedited Removal Proceedings and Removal Proceedings
[[Page 18228]]
3. Safe Third Country Agreement
C. Updates to the Safe Third Country Agreement Through the
Additional Protocol of 2022
III. Discussion of Final Rule
A. General Discussion of Changes
B. Determinations Regarding Crossing Between POEs and Whether 14
Days Have Elapsed
C. Considerations Relating to the Preponderance-of-the-Evidence
Standard
D. Return to the Country of Last Presence
IV. Detailed Summary of Regulatory Changes
A. New 8 CFR 208.30(e)(6) and (7)
B. New 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g)
(Heading), (g)(1) Through (4), (h)(1)
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
I. Executive Summary
A. Purpose of the Regulatory Action
The Departments are amending their respective regulations to
implement the Additional Protocol of 2022 to the STCA.\1\ Under the
STCA and its existing implementing regulations, third country nationals
seeking asylum or other protection from persecution or torture must
make a claim in the first country they arrive in (United States or
Canada), unless they qualify for an exception to the STCA.\2\
Therefore, asylum seekers \3\ arriving from Canada at a land border POE
\4\ in the United States, or in transit through the United States
during removal by Canada, are generally barred from pursuing their
asylum or other protection claim relating to fear of persecution or
torture \5\ in the United States unless they meet an exception under
the STCA. Those who do not meet an exception under the STCA may be
returned to Canada to pursue their claim. Similarly, third country
nationals arriving from the United States at a Canadian land border
POE, or in transit through Canada during removal by the United States,
who are seeking asylum or other protection relating to fear of
persecution or torture in Canada may be returned to the United States
under the STCA to pursue their asylum or other protection claim
relating to fear of persecution or torture under United States
immigration law, unless they qualify for an exception under the STCA.
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\1\ See Agreement between The Government of The United States of
America and The Government of Canada For Cooperation in the
Examination of Refugee Status Claims From Nationals of Third
Countries, Can.-U.S., Dec. 5, 2002, T.I.A.S. No. 04-1229, <a href="https://www.state.gov/04-1229">https://www.state.gov/04-1229</a>.
\2\ See STCA art. 4; see also 8 CFR 208.30(e)(6), 1003.42(h),
1240.11(g).
\3\ The Departments use the term ``asylum seeker'' to be
synonymous with the term ``Refugee Status Claimant'' used in the
STCA and Additional Protocol of 2022, which is defined as ``any
person who makes a refugee status claim in the territory of one of
the Parties.'' STCA art. 1(d).
\4\ See 19 CFR 101.1 (defining ``port'' and ``port of entry'')
and 8 CFR 100.4 (list of POEs).
\5\ The Departments use the term ``asylum or other protection
claim relating to persecution or torture'' to be synonymous with the
phrase ``Refugee Status Claim'' used in the STCA and Additional
Protocol of 2022, which means ``a request from a person to the
government of either Party for protection consistent with the
Convention or the Protocol, the Torture Convention, or other
protection grounds in accordance with the respective laws of each
Party.'' STCA art. 1(c). The Convention, Protocol, and Torture
Convention referenced in the definition are the Convention Relating
to the Status of Refugees, done at Geneva, July 28, 1951; the
Protocol Relating to the Status of Refugees, done at New York,
January 31, 1967; and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at New
York, December 10, 1984.
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The Additional Protocol of 2022 supplements the STCA.\6\ The United
and Canada have agreed to the Additional Protocol of 2022, but
amendments to the existing regulations of the United States are
necessary to extend the STCA's application under the Additional
Protocol of 2022 to individuals who cross between the official POEs
along the U.S.-Canada shared border, including certain bodies of water
as determined by the United States and Canada, and make an asylum or
other protection claim relating to fear of persecution or torture
within 14 days after such crossing.
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\6\ See Additional Protocol of 2022 art. 1. Correspondingly, the
provisions of the STCA apply to the Additional Protocol of 2022
except as otherwise specified in the Additional Protocol of 2022.
See id.
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B. Summary of Legal Authority
The authority for the Attorney General and the Secretary of
Homeland Security (``Secretary'') to issue this final rule is found in
section 208(a)(2)(A) of the Immigration and Nationality Act (``INA'' or
``the Act''), 8 U.S.C. 1158(a)(2)(A), which governs an individual's
eligibility to apply for asylum if the Attorney General or the
Secretary determines that the noncitizen may be removed, pursuant to a
bilateral or multilateral agreement, to a safe third country. Under
sections 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), the
Secretary is authorized to establish such regulations as the Secretary
deems necessary for carrying out the Secretary's authority under the
INA. Under section 103(g) of the INA, 8 U.S.C. 1103(g), the Attorney
General is authorized to establish such regulations as the Attorney
General deems necessary in immigration proceedings.
C. Summary of the Final Rule Provisions
This rule does not alter the procedures applied to expedited
removal proceedings, credible fear screenings, or threshold screening
interviews as provided in the current regulations. The STCA is
implemented within the existing framework that authorizes the removal
of noncitizens \7\ from the United States, including expedited removal
proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
and ordinary removal proceedings before an immigration judge under
section 240 of the INA, 8 U.S.C. 1229a.
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\7\ For purposes of the discussion in this preamble, the
Departments use the term ``noncitizen'' to be synonymous with the
term ``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C.
1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (``This
opinion uses the term `noncitizen' as equivalent to the statutory
term `alien.' See 8 U.S.C. 1101(a)(3).''). Throughout this preamble
the Departments also use the terms ``individual'' or ``person.''
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This final rule amends 8 CFR 208.30(e)(6) of the DHS regulations to
authorize an asylum officer to conduct a threshold screening interview.
This interview will determine whether a noncitizen is ineligible to
apply for asylum by claiming a fear of persecution or torture (pursuant
to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A)), when such
a claim is made within 14 days after crossing the U.S.-Canada land
border between POEs, including crossing the border in bodies of water
mutually designated by the United States and Canada. This final rule
revises 8 CFR 208.30(e)(6)(i) to clarify that persons who are subject
to the Additional Protocol of 2022 and who do not qualify for an
exception under the STCA are ineligible to apply for asylum in the
United States. This rule also revises 8 CFR 208.30(e)(6)(ii) by adding
a reference to the Additional Protocol of 2022 to clarify that a
noncitizen must establish, by a preponderance of the evidence, that an
exception applies before an asylum officer may proceed with the
credible fear determination. This rule also amends 8 CFR
208.30(e)(6)(iii) by clarifying that the STCA includes the Additional
Protocol of 2022. This rule also revises 8 CFR 208.30(e)(7) by adding a
reference to the Additional Protocol of 2022 to clarify that the
[[Page 18229]]
procedures outlined in 8 CFR 208.30(e)(7) apply to noncitizens who are
subject to an agreement under section 208(a)(2)(A) of the Act, 8 U.S.C.
1158(a)(2)(A), other than the U.S.-Canada STCA, which includes the
Additional Protocol of 2022.
Further, this rule revises 8 CFR 1003.42(h)(1) of the regulations
of the Department of Justice's Executive Office for Immigration Review
(``EOIR''), which establishes that an asylum officer's determination
relating to the application of the STCA is not subject to an
immigration judge's review. This final rule clarifies that this
provision also extends to determinations made pursuant to the
Additional Protocol of 2022. This rule also revises 8 CFR 1003.42(h)(2)
to clarify that the existing provisions, which establish that any
determination by DHS that a noncitizen being removed from Canada in
transit through the United States should be returned to Canada to
pursue asylum claims under Canadian law is not subject to an
immigration judge's review, also extend to a determination made
pursuant to the Additional Protocol of 2022.
Next, because the STCA, as supplemented by the Additional Protocol
of 2022, also applies to individuals in removal proceedings, this final
rule makes corresponding amendments to 8 CFR 1240.11(g) (heading) and
(g)(1) through (4) of the EOIR regulations to require an immigration
judge to consider the Additional Protocol of 2022 to the STCA in
determining whether a noncitizen should be returned to Canada for
adjudication of their protection claim or whether the noncitizen should
be permitted to apply for asylum or seek other protection relating to
fear of persecution or torture in the United States. Last, this rule
revises 8 CFR 1240.11(h)(1) by adding a reference to the Additional
Protocol of 2022 to clarify that the procedures outlined in 8 CFR
1240.11(h)(1) apply to noncitizens who are subject to agreements under
section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), other than the
U.S.-Canada STCA, which includes the Additional Protocol of 2022.
II. Background
A. DOJ and DHS Legal Authority
The Attorney General and the Secretary publish this joint rule
pursuant to their respective authorities concerning asylum, withholding
of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3)
(``statutory withholding of removal''), and protection under the
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment \8\ (``Convention Against Torture'' or ``CAT'')
determinations. The Homeland Security Act of 2002 (``HSA''), Public Law
107-296, 116 Stat. 2135, as amended, created DHS and transferred to it
many functions related to the administration and enforcement of Federal
immigration law.
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\8\ Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
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The INA, as amended by the HSA, charges the Secretary ``with the
administration and enforcement of [the INA] and all other laws relating
to the immigration and naturalization of [noncitizens],'' and it grants
the Secretary the power to take all actions ``necessary for carrying
out'' his authority under the immigration laws. See INA 103(a)(1), (3),
8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 112, 202. The Secretary's
authority also includes the authority to publish regulations governing
the apprehension, inspection and admission, detention, removal,
withholding of removal, and release of noncitizens encountered in the
interior of the United States or at or between the U.S. POEs. See INA
235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
In addition, under the HSA, the Attorney General retained authority
over conduct of removal proceedings pursuant to section 240 of the INA,
8 U.S.C. 1229a (``section 240 removal proceedings''). EOIR's
immigration judges conduct these adjudications. See INA 103(g), 8
U.S.C. 1103(g), 6 U.S.C. 521; see also 8 CFR 1001.1(l). This
immigration judge authority includes adjudication of certain asylum
applications, as well as requests for statutory withholding of removal
and protection under the CAT. Additionally, the INA provides that
``determination and ruling by the Attorney General with respect to all
questions of law shall be controlling.'' INA 103(a)(1), 8 U.S.C.
1103(a)(1).
The INA authorizes the Attorney General and Secretary to set
``requirements and procedures'' for implementing the asylum provisions
in section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), and to
establish by regulation, consistent with section 208 of the INA, 8
U.S.C. 1158, ``other conditions or limitations on the consideration of
an application for asylum,'' INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B).
The HSA grants to DHS concurrent authority to adjudicate
affirmative asylum applications--i.e., applications for asylum filed
with DHS for individuals not in removal proceedings--and authority to
conduct credible fear interviews, make credible fear determinations in
the context of expedited removal, and establish procedures for further
consideration of asylum applications after an individual is found to
have a credible fear. See 6 U.S.C. 271(b)(3); INA 235(b)(1)(B), 8
U.S.C. 1225(b)(1)(B). By operation of the HSA, the references to the
``Attorney General'' in the INA are understood also to encompass the
Secretary, either solely or additionally, with respect to statutory
authorities vested in the Secretary in the HSA or subsequent
legislation, including in relation to immigration proceedings before
DHS. See 6 U.S.C. 557. Some of those authorities have been delegated
within DHS to the Director of U.S. Citizenship and Immigration Services
(``USCIS''), and USCIS asylum officers conduct threshold screening
interviews, conduct credible fear interviews, make credible fear
determinations, and determine whether a noncitizen's asylum application
should be granted.\9\ See 8 CFR 208.2(a), 208.9, 208.30.
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\9\ See DHS, Delegation to the Bureau of Citizenship and
Immigration Services, No. 0150.1 (June 5, 2003), <a href="https://www.hsdl.org/?abstract&did=234775">https://www.hsdl.org/?abstract&did=234775</a>.
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With limited exceptions, immigration judges within DOJ adjudicate
asylum, statutory withholding of removal, and CAT protection
applications filed by noncitizens during the pendency of section 240
removal proceedings, and immigration judges adjudicate applications of
asylum-seekers in cases USCIS refers to the immigration court. 8 CFR
1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 241(b)(3), 8 U.S.C.
1101(b)(4), 1229a(a)(1), 1231(b)(3).
The United States is a party to the 1967 Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of
the Refugee Convention generally provides that parties to the
Convention cannot expel or return (``refouler'') ``a refugee in any
manner whatsoever to the frontiers of territories where [their] life or
freedom would be threatened on account of [their] race, religion,
nationality, membership of a particular social group or political
opinion.'' See 19 U.S.T. at 6276. The United States implements its non-
refoulement obligations under Article 33 of the Refugee Convention (via
the 1967 Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the
[[Page 18230]]
INA, 8 U.S.C. 1231(b)(3), which provides that noncitizens may not be
removed to a country where their life or freedom would be threatened on
account of one of the protected grounds listed in Article 33 of the
Refugee Convention. See 8 CFR 208.16, 1208.16; Regulations Concerning
the Convention Against Torture, 64 FR 8478, 8478 (Feb. 19, 1999)
(effective Mar. 22, 1999), as corrected by 64 FR 13881 (Mar. 23, 1999).
Similarly, ``[u]nder Article 3 [of the CAT], the United States has
agreed not to `expel, return (``refouler'') or extradite' a person to
another state where [they] would be tortured.'' 64 FR at 8478.
Regulations to implement the United States' obligations under Article 3
of the CAT are located primarily at 8 CFR 208.16(c) through 208.18 (DHS
regulations) and 1208.16(c) through 1208.18 (EOIR regulations).\10\
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\10\ See 64 FR at 8478.
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B. Overview of the Safe Third Country Agreement in the Context of
Asylum, Expedited Removal Proceedings, and Removal Proceedings
1. Asylum
Asylum is a discretionary benefit that can be granted by the
Attorney General or the Secretary if a noncitizen establishes, among
other things, that they have experienced past persecution or has a
well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. See INA 101(a)(42), 208, 240(c)(4)(A), 8 U.S.C. 1101(a)(42),
1158, 1229a(c)(4)(A); 8 CFR 208.13, 1208.13. Under section 208(a)(1) of
the INA, 8 U.S.C. 1158(a)(1), any person who arrives or is physically
present in the United States is generally permitted to apply for
asylum. For an asylum officer or immigration judge to grant asylum,
however, they must determine that no bars to applying for asylum \11\
under section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), nor any bars
to eligibility for asylum under section 208(b)(2)(A) of the INA, 8
U.S.C. 1158(b)(2)(A), apply to an individual's case.\12\ One of these
bars provides that a noncitizen does not have the right to apply for
asylum in the United States if the Attorney General or the Secretary
\13\ determines that the noncitizen ``may be removed, pursuant to a
bilateral or multilateral agreement, to a country where the
[noncitizen]'s life or freedom would not be threatened on account of
race, religion, nationality, membership in a particular social group,
or political opinion, and where the [noncitizen] would have access to a
full and fair procedure for determining a claim to asylum or equivalent
temporary protection[.]'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The
statute also preserves the Departments' discretion not to apply the bar
in section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), in a given
case if DHS ``finds that it is in the public interest for the
[noncitizen] to receive asylum in the United States.'' Id. The INA
further provides that ``[n]o court shall have jurisdiction'' to review
any determination made under any of the provisions within section
208(a)(2) of the Act, 8 U.S.C. 1158(a)(2), including the safe third
country provision at INA section 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
See INA 208(a)(3), 8 U.S.C. 1158(a)(3).
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\11\ The bars to applying for asylum include removal to a safe
third country (INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), the one-
year filing deadline for filing an application for asylum (INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)), and previous denials of
asylum (INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C)).
\12\ The bars to eligibility for asylum include persecution of
others on account of one of the protected grounds, conviction of a
particularly serious crime, serious reasons for believing the
noncitizen committed a serious nonpolitical crime outside the United
States prior to arrival in the United States, certain support for or
participation in terrorist activities, reasons for regarding the
noncitizen as a danger to the security of the United States, and
firm resettlement. See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
\13\ As noted previously noted in Part II.A of this preamble,
references to the Attorney General in the INA, in general, are to be
read as referring to the Secretary of Homeland Security, either
solely or in addition to the Attorney General, by operation of the
HSA. See 6 U.S.C. 557.
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2. Expedited Removal Proceedings and Removal Proceedings
The STCA is implemented within the framework of existing
proceedings that authorize the removal of noncitizens from the United
States, including expedited removal proceedings under section 235(b)(1)
of the INA, 8 U.S.C. 1225(b)(1), and removal proceedings before an
immigration judge under section 240 of the INA, 8 U.S.C. 1229a.
An applicant for admission must be inspected by an immigration
officer \14\ to determine whether the individual is admissible to the
United States. See INA 235(a), (b), 8 U.S.C. 1225(a), (b). If a
noncitizen cannot ``clearly and beyond a doubt'' establish that they
are entitled to be admitted, then an immigration officer will
determine, as a matter of discretion, whether the individual will be
placed in expedited removal proceedings, where applicable, under
section 235 of the INA, 8 U.S.C. 1225, or in removal proceedings under
section 240 of the INA, 8 U.S.C. 1229a.\15\
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\14\ See 8 CFR 1.2 (defining ``immigration officer'').
\15\ See INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) (``Subject to
subparagraphs (B) and (C), in the case of a [noncitizen] who is an
applicant for admission, if the examining immigration officer
determines that a [noncitizen] seeking admission is not clearly and
beyond a doubt entitled to be admitted, the [noncitizen] shall be
detained for a proceeding under [section 240.]''); see also INA
235(b)(2)(B), 8 U.S.C. 1225(b)(2)(B) (providing that crewmen,
stowaways, and noncitizens subject to expedited removal are not
entitled to section 240 removal proceedings).
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Under expedited removal proceedings, individuals arriving in the
United States, also referred to as ``arriving aliens'' \16\ or
``certain other [noncitizens]'' as designated by the Secretary who are
found to be inadmissible under either section 212(a)(6)(C) of the INA,
8 U.S.C. 1182(a)(6)(C), for misrepresentation, or section 212(a)(7) of
the INA, 8 U.S.C. 1182(a)(7), for failure to meet documentation
requirements for admission, may be ``removed from the United States
without further hearing or review unless the [noncitizen] indicates
either an intention to apply for asylum under [section 208 of the INA,
8 U.S.C. 1158] or a fear of persecution.'' INA 235(b)(1)(A)(i), (iii),
8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 235.3(b). In addition to the
foregoing classes of noncitizens subject to expedited removal, the
Secretary has designated other noncitizens subject to expedited
removal, including noncitizens who are present in the United States
without having been inspected at a POE, who are encountered by an
immigration officer within 100 air miles of a U.S. land border, ``who
have not established to the satisfaction of an immigration officer that
they have been physically present in the U.S. continuously for the
fourteen-day (14-day) period immediately prior to the date of
encounter,'' and who otherwise meet certain criteria for expedited
removal.\17\
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\16\ ``Arriving alien'' is defined in regulations as meaning, in
general, an ``applicant for admission coming or attempting to come
into the United States at a port-of-entry,'' and the term includes
noncitizens who are interdicted at sea and brought into the United
States. 8 CFR 1.2, 1001.1(q).
\17\ See Designating Aliens For Expedited Removal, 69 FR 48877,
48877 (Aug. 11, 2004).
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Generally, if a noncitizen is placed into expedited removal
proceedings, and the noncitizen indicates an intention to apply for
asylum or expresses a fear of persecution or torture or a fear of
return to their country,\18\ the examining immigration officer will
refer the noncitizen for an interview with an asylum officer. The
purpose of the interview with an asylum officer is to screen for
potential eligibility for asylum and other related protection claims
relating to fear of persecution or torture. See 8 CFR 208.30(e)(2) and
(3). Under the STCA, however, for
[[Page 18231]]
noncitizens arriving from Canada at a land border POE, the asylum
officer will conduct a threshold screening, prior to any credible fear
screening, to determine whether a noncitizen is subject to the STCA and
barred from applying for asylum or seeking other protection relating to
fear of persecution or torture. See 8 CFR 208.30(e)(6), 8 CFR
1240.11(g)(4). An immigration judge does not have jurisdiction to
review an asylum officer's determination that the STCA applies. See 8
CFR 1003.42(h)(1) and (2). Under 8 CFR 208.30(e)(7) or 8 CFR
1240.11(h), if a noncitizen is subject to an agreement other than the
U.S.-Canada STCA, the procedures outlined in 8 CFR 208.30(e)(7) or
1240.11(h) apply. See 8 CFR 208.30(e)(7), 1240.11(h).
---------------------------------------------------------------------------
\18\ See 8 CFR 235.3(b)(4).
---------------------------------------------------------------------------
If DHS does not make an STCA determination and refers the
noncitizen to an immigration judge for section 240 removal proceedings,
the immigration judge determines whether the noncitizen is eligible to
apply for asylum or other protection claims relating to fear of
persecution or torture, including whether the STCA applies to render
the noncitizen ineligible to apply for asylum under section
208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and subject to removal
to Canada under the terms of the STCA. See INA 235(b)(1)(A)(i),
(b)(2)(A), 8 U.S.C. 1225(b)(1)(A)(i), (b)(2)(A); 8 CFR 235.1(f)(2),
1240.11(g).
3. Safe Third Country Agreement
On December 5, 2002, the Governments of Canada and the United
States signed the STCA to effectively manage the flow of asylum and
other protection claimants between the two countries. The STCA
allocates responsibility between the United States and Canada whereby
one country or the other (but not both) assumes responsibility for
processing the claims of certain third country national \19\ asylum
seekers who are traveling from Canada into the United States or from
the United States into Canada. The STCA provides for a threshold
determination concerning which country will consider the merits of a
noncitizen's asylum and other protection claims relating to persecution
or torture. This process enhances the two nations' ability to manage,
in an orderly fashion, asylum and other protection claims brought by
persons crossing the U.S.-Canada common border.\20\
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\19\ The STCA does not apply to those seeking asylum or other
protection relating to fear of persecution or torture who are
citizens of Canada or the United States or who, not having a country
of nationality, are habitual residents of Canada or the United
States. See STCA art. 2.
\20\ See Implementation of the Agreement Between the Government
of the United States of America and the Government of Canada
Regarding Asylum Claims Made in Transit and at Land Border Ports of
Entry, 69 FR 69480, 69488 (Nov. 29, 2004) (``DHS Final Rule'').
---------------------------------------------------------------------------
Consistent with section 208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A), the STCA provides for the return of certain asylum
seekers to the ``country of last presence,'' the country in which the
noncitizen was physically present immediately prior to making the
asylum or protection claim,\21\ following the crossing of the land
border at a POE,\22\ or in transit from the country of last presence
during the course of deportation or removal. Accordingly, under the
STCA, noncitizens arriving in the United States from Canada at a POE,
or in transit, must seek asylum or protection in Canada, unless they
meet an exception under the STCA.\23\
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\21\ See STCA art. 1(a) (defining ``Country of Last Presence'').
\22\ See 19 CFR 101.1 (defining POE); see also 8 CFR 100.4 (list
of POEs).
\23\ Under Article 6 of the STCA, either country retains
discretion to examine a protection claim where it determines that it
is the public interest to do so, notwithstanding the provisions of
the STCA.
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The Attorney General and the Secretary promulgated final rules
implementing the STCA, adding, among other provisions, 8 CFR 208.30(e)
(DHS regulations) and 8 CFR 1003.42(h) and 1240.11(g) (EOIR
regulations) on November 29, 2004.\24\
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\24\ See DHS Final Rule, 69 FR at 69480; Asylum Claims Made by
Aliens Arriving from Canada at Land Border Ports-of-Entry, 69 FR
69490 (Nov. 29, 2004) (``DOJ Final Rule''). The final rules were
issued after the Departments both had published proposed rules. See
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum
Claims Made in Transit at Land Border Ports-of-Entry, 69 FR 10620
(Mar. 8, 2004); Asylum Claims Made by Aliens Arriving from Canada at
Land Border Ports-of-Entry, 69 FR 10627 (Mar. 8, 2004).
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The DHS regulations implementing the STCA under 8 CFR 208.30(e)(6)
provide a mechanism within the expedited removal process for
determining whether the STCA or its exceptions apply.\25\ Prior to
making a determination whether a noncitizen who is arriving in the
United States (at a U.S.-Canada land border POE or in transit through
the United States during removal by Canada) and placed into expedited
removal proceedings has a credible fear of persecution or torture, the
asylum officer conducts the threshold screening interview to determine
whether the noncitizen is ineligible to apply for asylum or other
protection relating to persecution or torture and subject to removal to
Canada.\26\ In doing so, the asylum officer follows the same non-
adversarial interview procedures as generally used in the expedited
removal credible fear context.\27\ Additionally, the asylum officer
advises the noncitizen of the STCA's exceptions and questions the
noncitizen as to whether any of the exceptions apply to the
noncitizen's case.\28\ If the asylum officer, with concurrence from a
supervisory asylum officer, determines that the STCA applies and that
the noncitizen does not qualify for an exception under the STCA, the
noncitizen is not eligible to apply for asylum or other protection
relating to persecution or torture in the United States. The noncitizen
is advised that the noncitizen will be removed to pursue their
protection claim(s) in Canada. See 8 CFR 208.30(e)(6)(i).
---------------------------------------------------------------------------
\25\ The exceptions under the STCA can be found in 8 CFR
208.30(e)(6)(iii) and (iv).
\26\ See 8 CFR 208.30(e)(6).
\27\ See 8 id. (``In conducting this threshold screening
interview, the asylum officer shall apply all relevant interview
procedures outlined in paragraph (d) of this section, provided,
however, that paragraph (d)(2) of this section shall not apply to
aliens described in this paragraph[.]'').
\28\ See 8 CFR 208.30(e)(6).
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If the noncitizen establishes by a preponderance of the evidence
that the noncitizen qualifies for an exception under the terms of the
STCA, the asylum officer will make a written notation of the basis for
the STCA exception and conduct a credible fear interview to determine
whether the noncitizen has a credible fear of persecution or
torture.\29\
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\29\ See 8 CFR 208.30(e)(6)(ii). When a noncitizen is determined
to be not subject to the STCA or subject to an exception, the asylum
officer conducts the credible fear screening to identify potential
eligibility for asylum, statutory withholding of removal, and
protection under the CAT. See 8 CFR 208.30 (describing this
process). If the asylum officer determines that a noncitizen does
have a credible fear of persecution or torture, DHS may either: (1)
refer the noncitizen to an immigration judge by initiating section
240 removal proceedings where the noncitizen may apply for asylum or
other protection, or (2) retain jurisdiction over the noncitizen's
asylum claim for further consideration in an interview pursuant to 8
CFR 208.9(b). See 8 CFR 208.2(a)(1)(ii), 208.30(f),
1208.2(a)(1)(ii), 1235.6(a)(1)(i).
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For individuals arriving from Canada at a land border POE or in
transit during removal by the Canadian government who are issued a
Notice to Appear placing them directly in section 240 removal
proceedings (instead of being processed through expedited removal
proceedings \30\), the immigration judge makes the STCA determination,
as authorized by 8 CFR 1240.11(g) of the EOIR regulations. The
immigration
[[Page 18232]]
judge makes this determination during the course of section 240 removal
proceedings and in accordance with the procedures set forth in 8 CFR
1240.1 et seq. If the immigration judge determines that the STCA
applies and the noncitizen does not qualify for an exception to STCA,
the noncitizen is ineligible to apply for asylum or other
protection.\31\ The noncitizen may apply for any other relief from
removal for which the noncitizen may be eligible, but if the noncitizen
is ordered removed, the noncitizen shall be ordered removed to
Canada.\32\ The immigration judge may not review, consider, or decide
any discretionary public interest exception because such determinations
are reserved to DHS. However, if DHS files a written notice in the
proceedings before the immigration judge that DHS has decided in the
public interest to allow the noncitizen to pursue claims for asylum or
other related protection in the United States, the noncitizen may apply
for asylum and or other related protection.\33\
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\30\ DHS has discretion to place a noncitizen who is otherwise
subject to expedited removal into section 240 removal proceedings
before an immigration judge. See Matter of E-R-M- & L-R-M-, 25 I&N
Dec. 520, 523 (BIA 2011).
\31\ See 8 CFR 1240.11(g)(4).
\32\ Id.
\33\ See 8 CFR 1240.11(g)(3).
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Under 8 CFR 208.30(e)(6)(ii), or under 8 CFR 1240.11(g)(2) (if the
noncitizen is in section 240 removal proceedings), noncitizens must
establish by a preponderance of the evidence that they qualify for an
exception under the terms of the STCA in order to establish eligibility
to apply for asylum.
C. Updates to the Safe Third Country Agreement Through the Additional
Protocol of 2022
Canada and the United States negotiated the Additional Protocol of
2022 to allow both governments to extend the application of the STCA to
individuals who cross the U.S.-Canada land border between POEs,
including certain bodies of water, and who make an asylum or other
protection claim relating to fear of persecution or torture within 14
days after such crossing.
On February 23, 2021, President Biden released a statement with
Prime Minister Justin Trudeau of Canada: Roadmap for a Renewed U.S.-
Canada Partnership.\34\ The leaders declared a shared interest in
revitalizing and expanding the two countries' ``historic alliance and
steadfast friendship.'' \35\ The leaders expressed their common concern
about the global migration crisis, commitment to providing haven to
refugees and asylum seekers, and determination to work together to
strengthen efforts in these areas, including refugee resettlement.\36\
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\34\ See White House, Roadmap for a Renewed U.S.-Canada
Partnership (Feb. 23, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/23/roadmap-for-a-renewed-u-s-canada-partnership/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/23/roadmap-for-a-renewed-u-s-canada-partnership/</a> (``Roadmap'').
\35\ Id.
\36\ Id.
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On November 18, 2021, the two leaders (also joined by President
Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico) issued a joint
statement following the North American Leaders' Summit (``NALS''),
underscoring the need for bold regional cooperation due to ``[t]he
complex factors causing an extraordinary increase in irregular
migration throughout the hemisphere.'' \37\ They also affirmed their
commitment to adopt an ambitious and comprehensive approach to safe,
orderly, and humane migration management, based on shared
responsibility.\38\
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\37\ See White House, Building Back Better Together: A Secure,
Prosperous North America (Nov. 18, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/18/building-back-better-together-a-secure-prosperous-north-america/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/18/building-back-better-together-a-secure-prosperous-north-america/</a>
(``Building Back Better Together'').
\38\ Id.; see also White House, Fact Sheet: Key Deliverables for
the 2023 North American Leaders' Summit, (Jan. 10, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/10/fact-sheet-key-deliverables-for-the-2023-north-american-leaders-summit/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/10/fact-sheet-key-deliverables-for-the-2023-north-american-leaders-summit/</a> (``Fact Sheet''). Additionally, last year, Canada adopted
the Los Angeles Declaration on Migration and Protection. See White
House, Los Angeles Declaration on Migration and Protection (June 10,
2022), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/</a>
(``Los Angeles Declaration'').
---------------------------------------------------------------------------
The Canadian Minister of Immigration, Refugees, and Citizenship and
the Secretary finalized the Additional Protocol of 2022, signed in
Ottawa, Ontario, Canada, on March 29, 2022, and in Washington, DC,
United States, on April 15, 2022, respectively.
The Additional Protocol of 2022 does not change the existing
provisions of the STCA or the processes associated with the
determinations on whether the STCA applies. However, it extends the
application of the STCA so that it applies not only to noncitizens who
are encountered at a POE or in transit, but now also to noncitizens who
enter in areas located between POEs on the U.S.-Canada land border,
including certain bodies of water as mutually determined by the
Governments of the United States and Canada, and who make an asylum or
other protection claim relating to fear of persecution or torture
within 14 days after such crossing.\39\ The Additional Protocol of 2022
also stipulates that the country of last presence will not be required
to accept the return of an asylum seeker if it determines that the
asylum seeker did not make a claim relating to fear of persecution or
torture within 14 days after crossing the land border between the
POEs.\40\ To assist the country of last presence in making this
determination, the Additional Protocol of 2022 provides that the
receiving country shall provide the country of last presence any
relevant information, including information regarding the apprehension
or entry of the noncitizen, if available.\41\
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\39\ See Additional Protocol of 2022 art. 1 (``Except to the
extent specified herein, the provisions of the Agreement shall
apply, mutatis mutandis, except Article 10 of the Agreement, to this
Additional Protocol . . . .'').
\40\ Additional Protocol of 2022 art. 3(b).
\41\ See id. art. 3(c). The Additional Protocol of 2022 contains
provisions that are not relevant to this rulemaking but that are
related to the implementation of the Additional Protocol of 2022,
such as provisions relating to the development of standard operating
procedures (Article 4), Termination (Article 5), Suspension (Article
6), and Effective Date of the Additional Protocol of 2022 (Article
7).
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The Additional Protocol of 2022 is expected to support orderly
migration, ensure the integrity of the asylum process and processes
related to other protection claims, encourage individuals to seek
asylum in the country of last presence, and discourage dangerous and
illegal crossings between POEs.
III. Discussion of Final Rule
A. General Discussion of Changes
With this final rule, the Departments are implementing the terms of
the Additional Protocol of 2022 to the STCA and amending their
respective regulations at 8 CFR 208.30(e)(6) and (7),\42\ 8 CFR
1003.42(h)(1) and (2), and 8 CFR 1240.11(g) and (h)(1) \43\ governing
the threshold screening process and the eligibility of noncitizens to
apply for
[[Page 18233]]
asylum. Because the Additional Protocol of 2022 only expands the
application of the STCA, but otherwise does not make any changes that
would affect existing policies, procedures, and safeguards in and
associated with the STCA determinations, the existing policies,
procedures, and safeguards, as outlined in current regulations, also
apply to the terms of the Additional Protocol of 2022.\44\
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\42\ DHS is making conforming amendments to 8 CFR 208.30(e)(7),
which addresses the implementation procedures for agreements under
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), other than
the STCA and the Additional Protocol of 2022. DHS is amending the
paragraph by replacing the current reference to the STCA of ``other
than the U.S.-Canada Agreement effectuated in 2004'' with an updated
reference to read ``other than the U.S.-Canada Agreement, which
includes the Additional Protocol of 2022.'' The amendments thus
clarify that the procedures outlined in paragraph (e)(7) of 8 CFR
208.30 do not apply to those noncitizens who are subject to the
U.S.-Canada Agreement, which includes the Additional Protocol of
2022. See 8 CFR 208.30(e)(7) (revised).
\43\ DOJ is making conforming amendments to 8 CFR 1240.11(h)(1),
which addresses the implementation of procedures for bilateral or
multilateral agreement other than the STCA and the Additional
Protocol of 2022. DOJ is amending the paragraph by replacing the
current reference to the STCA of ``--other than the 2002 U.S.-Canada
Agreement--'' with an updated reference to read ``--other than the
2002 U.S.-Canada Agreement, which includes the Additional Protocol
of 2022--.'' See 1240.11(h)(1) (revised).
\44\ Additional Protocol of 2022 art. 1.
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Under the amended final regulations, the terms of the STCA as
supplemented by the Additional Protocol of 2022 will also apply to
those individuals who cross the U.S.-Canada land border between the
POEs on or after 12:01 a.m. on Saturday, March 25, 2023, and make a
claim for asylum or other protection claim relating to a fear of
persecution or torture within 14 days after such crossing. See 8 CFR
208.30(e)(6) and (7) and (e)(6)(i) through (iii), 1003.42(h)(1) and
(2), 1240.11(g)(1) through (4) (as revised by this rule).
Correspondingly, the Departments are adding references to the
Additional Protocol of 2022 to these provisions where necessary to
incorporate the Additional Protocol of 2022 within the regulatory
framework.
Moreover, under the STCA, as supplemented by the Additional
Protocol of 2022 and this rule, other noncitizens who are not defined
as ``arriving aliens'' but who are subject to expedited removal
proceedings will be subject to the same threshold screening to
determine whether such noncitizens are barred from applying for asylum
in the United States under the STCA, as supplemented by the Additional
Protocol of 2022. These other individuals, who are subject to expedited
removal proceedings with DHS, include noncitizens encountered within
100 miles of the land border and within 14 days of crossing the U.S.-
Canada border.\45\ In this context, a noncitizen is not eligible to
apply for asylum or other related protection in the United States when
DHS determines, during the threshold screening interview, that the
noncitizen may be removed to Canada because the STCA, as supplemented
by the Additional Protocol of 2022, is applicable and none of the
exceptions apply to the noncitizen. See INA 208(a)(2), 8 U.S.C.
1158(a)(2); 8 CFR 208.30(e)(6)(i) through (iii) (revised). However, if
DHS determines that the noncitizen has established by a preponderance
of the evidence that an exception to the STCA, as supplemented by the
Additional Protocol of 2022, does apply, then the asylum officer will
make a written notation of the inapplicability of the STCA, which
includes the Additional Protocol of 2022, and immediately proceed with
the credible fear determination. See 8 CFR 208.30(e)(6)(ii) (revised).
As provided in the existing EOIR regulations, immigration judges do not
have jurisdiction to review an asylum officer's STCA determination.\46\
The new regulatory text will continue to provide that an immigration
judge does not have jurisdiction to review an asylum officer's STCA
determination under the STCA, as supplemented by the Additional
Protocol of 2022. See 8 CFR 1003.42(h)(1) (revised) (for applicants for
admission), 8 CFR 1003.42(h)(2) (revised) (for noncitizens in transit).
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\45\ See 69 FR at 48877.
\46\ See 8 CFR 1003.42(h)(1) and (2).
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DOJ is also amending the regulatory text of 8 CFR 1003.42(h)(1) by
removing the term ``arriving alien'' and replacing it with ``applicants
for admission'' to clarify that an asylum officer's determinations
regarding applicants for admissions are not subject to review by the
immigration judge. See 8 CFR 1003.F42(h)(1) (revised). However, where
an asylum officer has made a negative credible fear finding, the new
regulatory text continues to provide that an immigration judge will
continue to have jurisdiction to review this finding. See id.
DOJ is further amending the EOIR regulations to add references to
the Additional Protocol of 2022 throughout 8 CFR 1240.11(g) and (h)(1),
where appropriate, and to reflect that if a noncitizen is placed into
section 240 removal proceedings, the immigration judge will make the
determination whether the STCA, as supplemented by the Additional
Protocol of 2022, applies. See 8 CFR 1240.11(g)(1) and (g)(2)(i)
(revised).
DOJ is also amending 8 CFR 1240.11(g)(2)(ii) and (g)(3) by adding
references to the Additional Protocol of 2022 to clarify that
individuals who are subject to the STCA, as supplemented by the
Additional Protocol of 2022, may establish exceptions. See 8 CFR
1240.11(g)(2)(ii) and (g)(3) (revised). Furthermore, DOJ is amending 8
CFR 1240.11(g)(3) to clarify that an immigration judge does not have
jurisdiction to review, consider, or decide any issues pertaining to
any discretionary determination of whether the noncitizen should be
permitted to pursue an asylum claim notwithstanding the STCA, as
supplemented by the Additional Protocol of 2022, because, under current
STCA procedures, discretionary public interest determinations are
reserved to DHS. See 8 CFR 1240.11(g)(3) (revised).
As is the case under current STCA procedures, a noncitizen in
section 240 removal proceedings otherwise ineligible to apply for
asylum under the STCA, as supplemented by the Additional Protocol of
2022, may apply for asylum with an immigration judge if DHS files a
written notice in the proceedings before the immigration judge that DHS
has decided in the public interest to allow the noncitizen to pursue
claims for asylum or other related protection. See 8 CFR 1240.11(g)(3)
(revised). In addition, DOJ is amending 8 CFR 1240.11(g)(4), which
provides that a noncitizen who is found to be ineligible to apply for
asylum because of a safe third country agreement,\47\ such as the STCA,
is also ineligible to apply for statutory withholding of removal \48\
or protection under the CAT. See 8 CFR 1240.11(g)(4). Because the
Additional Protocol of 2022 supplements the STCA without changing this
procedure, those noncitizens subject to the STCA, as supplemented by
the Additional Protocol of 2022, will continue to be ineligible for
withholding of removal or protection under the CAT. See 8 CFR
1240.11(g)(4) (revised). However, the noncitizen may apply for any
relief from removal for which the noncitizen may be otherwise eligible,
as is currently the case before the Additional Protocol of 2022 becomes
effective. See 8 CFR 1240.11(g)(4) (current); 8 CFR 1240.11(g)(4)
(revised).
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\47\ See INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
\48\ See INA 241(b)(3), 8 U.S.C. 1231(b)(3).
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Finally, DHS is amending the last sentence of 8 CFR 1240.11(g)(4)
by adding a reference to the Additional Protocol of 2022. Adding a
reference to the Additional Protocol of 2022 does not change procedures
that have been in place under the STCA. The provision continues to
state that, where an immigration judge determines that a noncitizen in
removal proceedings is subject to the STCA and no exceptions apply, the
noncitizen will be ordered removed to Canada, where the noncitizen will
be able to pursue their protection claim under the laws of Canada, but
the provision now clarifies that the STCA includes the Additional
Protocol of 2022. See 8 CFR 1240.11(g)(4) (revised).
B. Determinations Regarding Crossing Between POEs and Whether 14 Days
Have Elapsed
The Additional Protocol of 2022 supplements the STCA to provide
that the STCA not only applies to
[[Page 18234]]
individuals encountered at a POE or in transit while being removed or
deported to a third country, but also to individuals who have crossed
the U.S.-Canada land border between POEs, including via mutually
designated bodies of water along or across the U.S.-Canada land border,
and who seek asylum or other protection relating to persecution or
torture within 14 days after such crossing.\49\ As explained throughout
this preamble, the Departments have existing procedures in place in the
expedited removal context and the section 240 removal proceedings
context relating to individuals crossing the U.S. border at designated
POEs, in transit, or between POEs, as well as for the assessment of a
14-day time frame. The STCA is embedded within this process. See Part
II of this preamble. Hence, the determinations concerning applicability
of the STCA, as supplemented by the Additional Protocol of 2022,
including the location and time of a noncitizen's crossing, as well as
the calculation of the 14 days, will be made within that existing
framework.\50\ Consistent with existing practice, the noncitizen may
not challenge an asylum officer's determination regarding whether the
STCA, as supplemented by the Additional Protocol of 2022, applies to
the noncitizen. See 8 CFR 208.30(e)(6) (current); 8 CFR 208.30(e)(6)
(revised); see also 8 CFR 1003.42(h); INA 208(a)(3), 8 U.S.C.
1158(a)(3).
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\49\ See Additional Protocol of 2022 arts. 1-2.
\50\ See 69 FR at 48879.
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C. Considerations Relating to the Preponderance-of-the-Evidence
Standard
Under the STCA, a noncitizen must establish by a preponderance of
the evidence that an exception to the STCA applies. See 8 CFR
208.30(e)(6)(ii) (DHS regulation), 1240.11(g)(2) (EOIR regulation).
Because the implementation of the Additional Protocol of 2022 does not
alter the procedural aspects of the administration of the STCA, a
noncitizen--to establish eligibility to apply for asylum or other
protection relating to a fear of persecution or torture--must continue
to establish by a preponderance of the evidence that an exception to
the STCA (now, as supplemented by the Additional Protocol of 2022),
applies to the noncitizen. See 8 CFR 208.30(e)(6)(ii), 1240.11(g)(2)(i)
(revised).
D. Return to the Country of Last Presence
The Additional Protocol of 2022 requires information-sharing steps
that do not result in additional regulatory amendments. These steps
will be included in the standard operating procedures of the United
States and Canada related to information sharing and will help each
country to address and resolve any differences regarding operational
implementation.
Under the STCA as originally signed, neither the United States nor
Canada is required to accept the return of an asylum seeker
automatically; both countries review each case individually in making
those decisions.\51\ Either country may choose to allow an asylum
seeker who is encountered at a POE, or in transit, from the other
country to pursue an asylum or other protection claim relating to fear
of persecution or torture if circumstances warrant in accordance with
its own laws and policies.\52\
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\51\ See STCA art. 4(3); see also DHS Final Rule, 69 FR 69483-
84; DOJ Final Rule, 69 FR 69493-94.
\52\ See STCA arts. 4, 6.
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Similarly, under the terms of the Additional Protocol of 2022, the
country of last presence is not required to accept the return of the
asylum seeker if it determines that the noncitizen did not make a claim
for asylum or other protection claim relating to fear of persecution or
torture within 14 days after crossing the land border in between the
POEs.\53\
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\53\ See Additional Protocol of 2022 art. 3(b).
---------------------------------------------------------------------------
Under the Additional Protocol of 2022, the receiving country is
responsible for providing the country of last presence sufficient
information relevant to the determination of the noncitizen's crossing
of the land border between the POEs and the noncitizen's claim,
including a copy of the record of apprehension between the POEs, if
available, to assist the country of last presence in making the
necessary determinations.\54\ Therefore, before a noncitizen can be
returned to Canada, DHS will provide relevant information, including a
copy of the record of apprehension if available, to the Canadian
Government.\55\
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\54\ See Additional Protocol of 2022 art. 3(c).
\55\ These additional information sharing steps do not result in
additional regulatory amendments. In accordance with Article 4 of
the Additional Protocol of 2022--which refers to Article 8 of the
STCA's mandate to establish standard operating procedures--these
procedures shall also be included in standard operating procedures
to assist with the implementation. See Additional Protocol of 2022
art. 4. In accordance with the second paragraph of Article 8 of the
STCA, which provides that these standard operating procedures
``shall include mechanisms for resolving differences respecting the
interpretation and implementation of the terms of [the STCA],'' the
Departments will cooperate with their Canadian counterparts to
address and resolve any differences in the same spirit in which the
STCA has been implemented over the years and in which the Additional
Protocol of 2022 was negotiated. As reflected in the STCA and the
Additional Protocol of 2022 themselves, and as previously indicated
by DHS, the resolution of these procedures is more appropriately
addressed through operating procedures than through the promulgation
of regulations. See DHS Final Rule, 69 FR 69486.
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IV. Detailed Summary of Regulatory Changes
A. New 8 CFR 208.30(e)(6) and (7)
DHS is amending 8 CFR 208.30(e)(6) in the introductory text by
adding references to the Additional Protocol of 2022. DHS is further
amending the provision by adding that, prior to any determination
concerning whether a noncitizen who, on or after 12:01 a.m. on
Saturday, March 25, 2023, entered the United States by crossing the
U.S.-Canada land border between POEs, including a crossing of the
border in those waters as mutually designated by the United States and
Canada, and who made an asylum or other protection claim relating to
fear of persecution or torture within 14 days after such crossing, the
asylum officer shall conduct a threshold screening interview to
determine whether the noncitizen is ineligible to apply for asylum
under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and
subject to removal to Canada by operation of the STCA, which includes
the Additional Protocol of 2022. DHS is further amending the third
sentence of 8 CFR 208.30(e)(6) by adding a reference to the Additional
Protocol of 2022 and rewording the provision, so that, under the
amended provision, the asylum officer shall advise the noncitizen of
the exceptions in the STCA, which includes the Additional Protocol of
2022, and question the noncitizen as to the applicability of any of
these exceptions to the noncitizen's case.
DHS is amending 8 CFR 208.30(e)(6)(i) by adding references to the
Additional Protocol of 2022 to clarify that, if the asylum officer,
with concurrence from a supervisory asylum officer, determines from the
threshold screening interview that the noncitizen is subject to the
STCA, which includes the Additional Protocol of 2022, and that the
noncitizen does not qualify for an exception under the STCA, which
includes the Additional Protocol of 2022, then the noncitizen is
ineligible to apply in the United States for asylum or other forms of
protection relating to a fear of persecution or torture.
Next, DHS is amending 8 CFR 208.30(e)(6)(ii) by adding references
to the Additional Protocol of 2022, where appropriate, to clarify that
if a noncitizen establishes by a preponderance of the evidence that
they
[[Page 18235]]
qualify for an exception under the terms of the STCA, which includes
the Additional Protocol of 2022, then the asylum officer shall make a
written notation of the basis of the exception, and then proceed
immediately to determine whether the noncitizen has a credible fear of
persecution or torture under 8 CFR 208.30(d). DHS is amending 8 CFR
208.30(e)(6)(iii) by adding a reference to the Additional Protocol of
2022 to clarify that a noncitizen qualifies for an exception to the
STCA, which includes the Additional Protocol of 2022, if the noncitizen
is not being removed from Canada in transit through the United States
and meets the requirements of the exceptions otherwise listed.
Last, DHS is amending 8 CFR 208.30(e)(7) to clarify that the STCA
referenced in that paragraph includes the Additional Protocol of 2022.
This amendment does not change the substance of that paragraph.
The amendments to 8 CFR 208.30(e)(6) and (7) are effective at 12:01
a.m. on Saturday, March 25, 2023. The Department of State (``DOS'')
will publish the Additional Protocol of 2022 on its website,\56\ once
effective, and noncitizens should refer to the DOS web page.
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\56\ See DOS, Treaties and Other International Acts Series
(TIAS), <a href="https://www.state.gov/tias/">https://www.state.gov/tias/</a> (last visited Mar. 16, 2023).
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This rule does not otherwise alter the procedures applied to
expedited removal proceedings, credible fear screenings, or threshold
screening interviews as provided in the current regulations.
B. New 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) (Heading),
(g)(1) Through (4), and (h)(1)
DOJ is revising 8 CFR 1003.42(h)(1) in the paragraph heading, and
throughout the text of the paragraph, by replacing ``arriving alien''
with ``applicant for admission'' and adding references to the
Additional Protocol of 2022 to clarify that an immigration judge has no
jurisdiction to review an asylum officer's determination that an
applicant for admission is ineligible to apply for asylum pursuant to
the STCA, which includes the Additional Protocol of 2022, formed under
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and that the
noncitizen should be returned to Canada to pursue the noncitizen's
claim for asylum or other protection under the laws of Canada. DOJ is
further amending the third sentence of the same paragraph by adding
references to the Additional Protocol of 2022 and replacing ``arriving
alien'' with ``applicant for admission'' to clarify that, in any case
where an asylum officer has found that an applicant for admission
qualifies for an exception to the STCA, which includes the Additional
Protocol of 2022, or that the STCA, which includes the Additional
Protocol of 2022, does not apply, an immigration judge has jurisdiction
to review a negative credible fear finding made thereafter by the
asylum officer. DOJ, in addition, is amending 8 CFR 1003.42(h)(2) to
add a reference to the Additional Protocol of 2022. This amendment does
not affect the substance of that paragraph. Under the amended
provision, an immigration judge has no jurisdiction to review any
determination by DHS that an alien being removed from Canada in transit
through the United States should be returned to Canada to pursue asylum
claims under Canadian law, under the terms of the STCA, which includes
the Additional Protocol of 2022.
Next, DOJ is amending 8 CFR 1240.11(g) (heading) and (g)(1) by
adding references to the Additional Protocol of 2022, with the effect
that the STCA, which includes the Additional Protocol of 2022, will
apply to noncitizens who are placed in section 240 removal proceedings,
provided that they, on or after 12:01 a.m. on Saturday, March 25, 2023,
enter the United States by crossing the U.S.-Canada land border between
the POEs and claim a fear of persecution or torture within 14 days
after such crossing. In appropriate cases, the immigration judge will
determine whether, under that Agreement, which includes the Additional
Protocol of 2022, the noncitizen should be returned to Canada, or
whether the noncitizen should be permitted to pursue asylum or other
protection claims in the United States.
DOJ is also amending 8 CFR 1240.11(g)(2)(i) and (ii) by adding
references to the Additional Protocol of 2022, where appropriate, and
to clarify that a noncitizen is ineligible to apply for asylum pursuant
to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), unless the
immigration judge determines by a preponderance of the evidence that
(1) the STCA, which includes the Additional Protocol of 2022, does not
apply to the noncitizen or does not preclude the noncitizen from
applying for asylum or other forms of protection in the United States;
or (2) the noncitizen qualifies for an exception to the STCA, which
includes the Additional Protocol of 2022, as set forth in 8 CFR
1240.11(g)(3).
DOJ is also amending 8 CFR 1240.11(g)(3) by adding references to
the Additional Protocol of 2022, where appropriate, to clarify that the
immigration judge shall apply the relevant regulations in deciding
whether the noncitizen qualifies for any exception that would permit
the United States to exercise authority over the noncitizen's asylum
claim. The amendments further clarify that related exceptions are
codified at 8 CFR 208.30(e)(6)(iii). The regulation continues to
provide that the immigration judge shall not review, consider, or
decide any issues pertaining to any discretionary determination of
whether the noncitizen should be permitted to pursue an asylum claim in
the United States because such discretionary public interest
determinations are reserved to DHS. The amendments further clarify that
a noncitizen in removal proceedings who is otherwise ineligible to
apply for asylum under the STCA, which includes the Additional Protocol
of 2022, may apply for asylum if DHS files a written notice in the
proceedings before the immigration judge that it has decided in the
public interest to allow the noncitizen to pursue claims for asylum or
other related protection.
Next, DOJ is amending 8 CFR 1240.11(g)(4) by adding references to
the Additional Protocol of 2022, where appropriate, to clarify the
following provisions: first, a noncitizen who is found to be ineligible
to apply for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A), is ineligible to apply for statutory withholding of
removal and seek protection under the CAT; second, the noncitizen in
this scenario may apply for any other relief from removal for which the
noncitizen may be eligible; and third, if a noncitizen who is subject
to the STCA, which includes the Additional Protocol of 2022, and
section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), is ordered
removed, the noncitizen shall be ordered removed to Canada, in which
case the noncitizen will be able to pursue their protection claim under
the laws of Canada.
Finally, DOJ is amending 8 CFR 1240.11(h)(1) to add a reference to
the Additional Protocol of 2022. This amendment does not affect the
substance of that paragraph.
The amendments to 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g)
(heading), and paragraphs (g)(1), (g)(2)(i) and (ii), (g)(3) and (4),
and (h)(1) are effective at 12:01 a.m. on Saturday, March 25, 2023.
This rule does not otherwise alter the procedures applied to
noncitizens in section 240 removal proceedings as provided in current
regulations.
[[Page 18236]]
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (``APA'') generally requires
agencies to publish notice of a proposed rulemaking in the Federal
Register and allow for a period of public comment. 5 U.S.C. 553(b). The
APA also generally requires publication of a substantive rule not less
than 30 days before its effective date. 5 U.S.C. 553(d). Agencies may
forgo notice-and-comment rulemaking and a delayed effective date when
the rulemaking involves ``a military or foreign affairs function of the
United States.'' \57\
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\57\ See 5 U.S.C. 553(a)(1).
---------------------------------------------------------------------------
The Departments are bypassing notice-and-comment procedures and a
delay in the effective date of the regulation because this rule
involves a ``foreign affairs function of the United States.'' \58\ The
purpose of the foreign affairs exemption is to allow more cautious and
sensitive consideration of those matters that affect relations with
other Governments.\59\ Courts have held that this exemption applies
when the rule in question ``is clearly and directly involved in a
foreign affairs function.'' \60\ In addition, although the text of the
APA does not expressly require an agency invoking this exemption to
show that such procedures may result in ``definitely undesirable
international consequences,'' some courts have required such a
showing.\61\ Under either formulation, a rule is covered by the foreign
affairs exemption if, among other things, it directly involves
activities or actions characteristic to the conduct of international
relations.\62\ Cooperative agreements regulating migration and
immigration with other nations, such as the STCA and the Additional
Protocol of 2022, are similar to the executive agreements that have
previously been recognized as part of the executive powers that bear
the characteristics of the conduct of international relations.\63\ The
use of the foreign affairs exemption is well established and has long
been recognized by courts as applicable when a rule itself--as is the
case with this rulemaking--implements an international agreement
between the United States and another sovereign state.\64\
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\58\ In 2004, when implementing the STCA, DHS and DOJ
promulgated regulations through notice-and-comment rulemaking even
though the rulemaking related to United States foreign affairs and
the Departments could have asserted that exemption to the notice-
and-comment requirement. At the time, however, the STCA had only
been recently negotiated, and the regulations created a new
regulatory framework to address the special terms of the STCA. The
Departments thus made a discretionary decision that public comment
could be beneficial. The Departments' 2004 decision does not
obligate the Departments now to make the same decision with respect
to this rulemaking. See, e.g., Hoctor v. U.S. Dep't of Agric., 82
F.3d 165, 171-72 (7th Cir. 1996) (observing that there is nothing in
the APA to forbid an agency to use notice-and-comment procedures
even if not required under the APA and that courts should attach no
weight to an agency's varied approaches involving similar rules);
see also Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698,
744 n.62 (D. Or. 1997) (observing that agencies may voluntarily
elect notice-and-comment procedures for a variety of reasons even
though not required); cf. Perez v. Mortg. Bankers Ass'n, 575 U.S.
92, 101-02 (2015) (holding that agencies may ``grant additional
procedural rights in the exercise of their discretion,'' including
``the right to notice and an opportunity to comment'' when not
otherwise required by the APA, but also noting that ``reviewing
courts are generally not free to impose them if the agencies have
not chosen to grant them'' (quotation marks omitted)); Malek-Marzban
v. Immigr. & Naturalization Serv., 653 F.2d 113, 116 (4th Cir. 1981)
(concluding that agencies are not estopped from asserting the
foreign affairs exemption even if they routinely and voluntarily
submitted policy decisions involving foreign affairs functions to
rulemaking procedures in the past; the agencies' past actions do not
restrict agencies' prerogatives when circumstances require swift
action). Unlike in 2004, when the rulemaking created a completely
new regulatory framework to implement the STCA, this rulemaking
implements the terms of the Additional Protocol of 2022, which only
expands the locations to which the STCA applies, while leaving in
place the existing regulatory processes and procedures.
Additionally, with this rulemaking, the Departments are implementing
an existing international obligation and have determined that
bypassing notice-and-comment procedures on the implementation of
this foreign policy is warranted without seeking comments, for the
reasons outlined in this rulemaking.
\59\ See, e.g., City of New York v. Permanent Mission of India
to United Nations, 618 F.3d 172, 175, 200-03 (2d Cir. 2010) (holding
that a DOS notice establishing an exemption from real property taxes
on property owned by foreign governments was properly promulgated
without notice and comment under the foreign affairs exemption of
the APA); see also Am. Ass'n of Exps. & Imps. Textile & Apparel Grp.
v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985).
\60\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984)
(cleaned up).
\61\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008).
\62\ See City of New York, 618 F.3d at 201 (finding that a DOS
notice related directly to foreign affairs); see Capital Area
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C.
2020) (``CAIR'') (observing that, for the foreign affairs exemption
to apply, a rule must clearly and directly involve activities or
actions characteristic to the conduct of international relations),
appeal dismissed as moot sub nom. I.A. v. Garland, No. 20-5271, 2022
WL 696459 (D.C. Cir. Feb. 24, 2022).
\63\ See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2003)
(recognizing that the President has authority to enter into
executive agreements with other countries, requiring no ratification
by the Senate or approval by Congress, and that this power has
``been exercised since the early years of the Republic''); see also
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993)
(recognizing that immigration matters may involve foreign and
military affairs for which the President has unique responsibility);
Toll v. Moreno, 458 U.S. 1, 10 (1982) (``Our cases have long
recognized the preeminent role of the Federal Government with
respect to the regulation of [noncitizens] within our borders.'');
Truax v. Raich, 239 U.S. 33, 42 (1915) (finding that ``[t]he
authority to control immigration--to admit or exclude
[noncitizens]--is vested solely in the Federal government'').
\64\ See Int'l Bhd. of Teamsters v. Pe[ntilde]a, 17 F.3d 1478,
1486 (D.C. Cir. 1994) (upholding a regulation published under the
foreign affairs exemption of the APA and implementing an agreement
between the United States and Mexico); WBEN, Inc. v. United States,
396 F.2d 601, 616 (2d Cir.1968) (finding that the foreign affairs
exemption applied to Federal Communications Commission rule
implementing an agreement between the United States and Canada that
imposed power limits on pre-sunrise broadcasts); CAIR, 471 F. Supp.
3d at 54 (observing that ``the foreign affairs function exception
plainly covers heartland cases in which a rule itself directly
involves the conduct of foreign affairs,'' such as ``scenarios in
which a rule implements an international agreement between the
United States and another sovereign state'').
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This rule falls under the foreign affairs exemption because it puts
into effect the negotiated-and-signed Additional Protocol of 2022,
which is supplementing the existing agreement between the Governments
of the United States and Canada regarding migration issues and border
management and, in particular, the management of the flow of asylum
seekers. Furthermore, the Additional Protocol of 2022 implements United
States foreign policy and fosters diplomatic relations with the
Government of Canada by mutually supporting the integrity of each
country's immigration system and aspects of the system specific to the
U.S.-Canada border and regional migration management.\65\
---------------------------------------------------------------------------
\65\ See STCA Introductory statements (``RECOGNIZING and
respecting the obligations of each Party under its immigration laws
and policies; EMPHASIZING that the United States and Canada offer
generous systems of refugee protection, recalling both countries'
traditions of assistances to refugees and displaced persons abroad,
consistent with the principles of international solidarity that
underpin the international refugee protection system, and committed
to the notion that cooperation and burden-sharing with respect to
refugee status claimants can be enhanced; . . . CONVINCED . . . that
agreements among states may enhance the international protection of
refugees by promoting the orderly handling of asylum applications by
the responsible party and the principle of burden-sharing . . .
.'').
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In cases other than those involving the implementation of
international agreements, certain courts have found that immigration
matters typically implicate foreign affairs, but that not all
immigration matters meet the APA's foreign affairs exemption.\66\ In
those cases, courts have evaluated not only whether agency action
implicates foreign affairs broadly, but also whether the use of notice-
and-comment procedures and a 30-day delay in the
[[Page 18237]]
effective date would ``provoke definitely undesirable international
consequences.'' \67\ Here, a delay in implementation of the Additional
Protocol of 2022 created by notice-and-comment rulemaking and a delayed
effective date would lead to undesirable international consequences by
jeopardizing not only the goals of the Additional Protocol of 2022, but
also the United States diplomatic relationship with Canada and the
credibility of the United States as a negotiating partner on migration
issues.
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\66\ See Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir.
1980) (stating that ``[t]he foreign affairs exception would become
distended if applied to [former Immigration and Naturalization
Service] actions generally, even though immigration matters
typically implicate foreign affairs'').
\67\ See E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 676
(9th Cir. 2021) (stating that, for the foreign affairs exemption to
apply, the public rulemaking provisions should provoke definitely
undesirable international consequences); see also City of New York,
618 F.3d at 202 (``In short, while a case-by-case determination that
public rule making would provoke `definitely undesirable
international consequences,' may well be necessary before the
foreign affairs exception is applied to areas of law like
immigration that only indirectly implicate international relations,
quintessential foreign affairs functions such as diplomatic
relations and the regulation of foreign missions are different. Such
actions clearly and directly involve a foreign affairs function''
(some quotation marks omitted)); Rajah, 544 F.3d at 437 (recognizing
that multiple undesirable consequences could follow from notice-and-
comment rulemaking, including impaired relations with other
countries if the government were to conduct and resolve a public
debate on matters affecting the other country).
---------------------------------------------------------------------------
The Additional Protocol of 2022 and these implementing regulations
further the United States foreign policy goal of collaborating with one
of our closest allies, partners, and neighbors, as demonstrated by the
joint public statements made by the Governments of Canada and the
United States in the Roadmap for a Renewed U.S.-Canada Partnership \68\
and the 2021 and 2023 NALS.\69\ Implementing these regulations without
delay supports international cooperation and reaffirms the United
States commitment, as reflected in the Additional Protocol of 2022, to
manage migration by deterring migration through irregular pathways and
promoting the orderly handling of asylum seekers.\70\ Because each
government under the Additional Protocol of 2022 can expeditiously
return an asylum applicant who crosses between POEs, just as occurs now
at POEs under existing regulations, implementing the Additional
Protocol of 2022 through these regulations furthers the shared United
States and Canadian policy goal of reducing incentives for individuals
to cross the shared border between POEs and to circumvent legal
pathways, including existing legal channels for humanitarian
protection. Through the Additional Protocol of 2022 and its
implementation, both countries proactively and preventatively address
situations that may lead to significant draws of asylum seekers between
POEs to either the United States or Canada. Thus, the Additional
Protocol of 2022 is an important element of both countries' ability to
manage their shared border and maintain the integrity of their
respective legal immigration and refugee and asylum protection
policies.
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\68\ See White House, Roadmap.
\69\ See White House, Building Back Better Together.; see also
White House, Fact Sheet; White House, Los Angeles Declaration.
\70\ The Departments also believe that promoting orderly
handling of asylum claims may reduce the possibility for success in
forum shopping.
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In light of the expressed commitment and acknowledgement of shared
responsibility by the United States Government to adopt an ambitious
and comprehensive approach to safe, orderly, and humane migration
management, as evidenced in joint public statements,\71\ it is critical
that the United States Government act upon its commitment. Delaying the
implementation of this rulemaking to pursue notice and comment could
create doubt in Canada, and potentially other future partners, about
whether the United States has sufficient flexibility and capacity to
carry out agreements in accordance with its declared commitments.\72\
Therefore, this agreement should be implemented rapidly by amending the
regulatory framework through this rule, in light of the President's
renewed foreign policy commitment and the longstanding U.S.-Canada
relationship.\73\
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\71\ See White House, Building Back Better Together; see also
White House, Roadmap; White House, Fact Sheet; White House, Los
Angeles Declaration.
\72\ See E. Bay Sanctuary Covenant, 993 F.3d at 676 (explaining
that the ``[u]se of the exception is generally permissible where the
international consequences of the rule-making requirements are
obvious or thoroughly explained''); Am. Ass'n of Exps. & Imps.
Textile & Apparel Grp., 751 F.2d at 1249 (finding that the foreign
affairs exemption facilitates ``more cautious and sensitive
consideration of those matters which `so affect relations with other
Governments that . . . public rule-making provisions would provoke
definitely undesirable international consequences''' (quoting H.R.
Rep. No. 69-1980, at 23 (1946)).
\73\ See Rajah, 544 F.3d at 437 (observing that the notice-and-
comment process can be ``slow and cumbersome,'' which can negatively
affect efforts to secure U.S. national interests, thereby justifying
application of foreign affairs exemption); Am. Ass'n of Exps. &
Imps. Textile & Apparel Grp., 751 F.2d at 1249 (``The timing of an
announcement of new consultations or quotas may be linked intimately
with the Government's overall political agenda concerning relations
with another country. Were we to require that CITA provide notice
thirty days before they take [e]ffect, the President's power to
conduct foreign policy would plainly be hampered.'').
---------------------------------------------------------------------------
In sum, the importance of promptly and faithfully implementing an
international agreement requires publishing this final rule without
notice and comment and without delaying the effective date of the rule.
Any delay in implementing the Additional Protocol of 2022 caused by
notice-and-comment procedures or by a delayed effective date could have
a detrimental impact on meeting United States foreign policy
objectives, on diplomatic relations with Canada, and on the credibility
of the United States as a migration partner overall.\74\
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\74\ As explained in this section, the United States and Canada
negotiated the Additional Protocol of 2022 in the context of broader
discussions to increase U.S.-Canadian cooperation on hemispheric
migration, to enhance information sharing in support of each
country's immigration-related decision-making process, and to expand
collaboration in the region to deter irregular migration at the
source and in transit countries. Expeditious implementation of the
Additional Protocol of 2022 underscores the U.S.'s commitment to
these imperatives and avoids possible undesirable international
consequences.
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B. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Although this rule pertains to a foreign affairs function of the
United States and therefore falls outside the scope of Executive Order
12866, the Departments voluntarily submitted the rule to the Office of
Information and Regulatory Affairs of the Office of Management and
Budget (``OMB'') for review, and OMB reviewed the rule on an expedited
basis as though it were a significant regulatory action under section
3(f)(4) of that Executive Order.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164
(1980), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, 110 Stat. 857, 864 (1996)
(codified at 5 U.S.C. 601 et seq.), requires an agency to prepare and
make available to the public a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
A regulatory flexibility analysis is not required when a rule is not
subject to notice-and-comment rulemaking.
D. Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year (adjusted for inflation), and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under
[[Page 18238]]
the provisions of the Unfunded Mandates Reform Act of 1995, Public Law
104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).
E. Congressional Review Act
This final rule is not a major rule as defined by section 804 of
the legislation commonly known as the Congressional Review Act
(``CRA''), see Public Law 104-121, sec. 251, 110 Stat. 847, 868 (1996)
(codified in relevant part at 5 U.S.C. 804). This rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets. DHS and DOJ have
complied with the CRA's reporting requirements and have sent this rule
to Congress and to the Comptroller General as required by 5 U.S.C.
801(a)(1). Because of this submission; because this rule is not a major
rule; and because the foreign affairs exemption in the APA applies to
this rule, this rule does not have a delayed effective date. See 5
U.S.C. 801(a)(4).
F. Executive Order 13132 (Federalism)
This final rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This final rule was drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform. This rule was written to
provide a clear legal standard for affected conduct and was reviewed
carefully to eliminate drafting errors and ambiguities so as to
minimize litigation and undue burden on the Federal court system. The
Departments have determined that this proposed rule meets the
applicable standards provided in section 3 of Executive Order 12988.
H. Family Assessment
The Departments have reviewed this rule in line with the
requirements of section 654 of the Treasury and General Government
Appropriations Act, 1999,\75\ enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999.\76\
The Departments have systematically reviewed the criteria specified in
section 654(c)(1), by evaluating whether this regulatory action: (1)
impacts the stability or safety of the family, particularly in terms of
marital commitment; (2) impacts the authority of parents in the
education, nurture, and supervision of their children; (3) helps the
family perform its functions; (4) affects disposable income or poverty
of families and children; (5) has a sufficient justification for any
financial impact on families; (6) may be carried out by State or local
government or by the family; or (7) establishes an implicit or explicit
policy concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If an agency
determines a regulation may negatively affect family wellbeing, then
the agency must provide an adequate rationale for its implementation.
---------------------------------------------------------------------------
\75\ See 5 U.S.C. 601 note.
\76\ Public Law 105-277, 112 Stat. 2681, 2681-528 (1998).
---------------------------------------------------------------------------
The Additional Protocol of 2022 expands the applicability of the
STCA, but otherwise leaves in place all existing policies, procedures,
and safeguards provided by the current regulations implementing the
STCA. The Departments have therefore determined that the implementation
of this rule will not negatively affect family wellbeing and will not
have any impact on the autonomy or integrity of the family as an
institution.
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
J. National Environmental Policy Act
DHS and its components analyze actions to determine whether the
National Environmental Policy Act, Public Law 91-190, 83 Stat. 852
(1970) (codified at 42 U.S.C. 4321 et seq.) (``NEPA''), applies to them
and, if so, what degree of analysis and documentation is required. DHS
Directive 023-01 Rev. 01 \77\ and Instruction Manual 023-01-001-01 Rev.
01 (``Instruction Manual'') \78\ establish the policies and procedures
that DHS and its components use to comply with the NEPA and the Council
on Environmental Quality (``CEQ'') regulations for implementing the
procedural requirements of NEPA. The CEQ regulations allow Federal
agencies to establish, in their NEPA implementing procedures, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') that experience has shown normally do not, individually
and cumulatively, have a significant effect on the human environment
and, therefore, do not require preparation of an environmental
assessment or environmental impact statement.\79\ Appendix A of the
Instruction Manual lists the DHS categorical exclusions.
---------------------------------------------------------------------------
\77\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01 (Oct. 31, 2014), <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf</a>.
\78\ DHS, Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act (NEPA) (Nov.
6, 2014), <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf</a>.
\79\ See 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d).
---------------------------------------------------------------------------
Under DHS NEPA implementing procedures, for an action to be
categorically excluded it must satisfy each of the following three
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\80\
---------------------------------------------------------------------------
\80\ See Instruction Manual sec. V.B(2)(a)-(c).
---------------------------------------------------------------------------
This final rule amends existing DHS and DOJ regulations at 8 CFR
208.30(e)(6) and (7), 8 CFR 1003.42(h)(l1) and (2), and 8 CFR
1240.11(g) by incorporating modifications recently negotiated by the
Government of the United States and the Government of Canada to
specific terms of the STCA in the Additional Protocol of 2022. The STCA
permits the respective governments to manage which government decides
certain noncitizens' requests for protection from persecution or
torture; correspondingly, under section 208(a)(2)(A) of the INA, 8
U.S.C. 1182(a)(2)(A), and section 240 of the INA, 8 U.S.C. 1229a, the
Departments apply the threshold screening requirement outlined in 8 CFR
208.30(e)(6), 8 CFR 1003.42(h) and 8 CFR 1240.11(g)(1) through (4) and
pursuant to domestic implementation of
[[Page 18239]]
this international treaty obligation to determine whether they should
adjudicate a noncitizen's claim for asylum or other protection claim
relating to persecution or torture. The STCA, as originally negotiated,
did not include those noncitizens seeking entry into the United States
between the official POEs (to include certain bodies of waters as
mutually designated by the United States and Canada) and who make an
asylum or other protection claim within 14 days after such crossing.
Upon implementation of the Additional Protocol of 2022 in each
respective country, and upon the effective date of this rule at 12:01
a.m. on Saturday, March 25, 2023, the threshold screening requirement
will also apply to noncitizens who cross the U.S.-Canada land border
between the official POEs and make an asylum or other protection claim
relating to persecution or torture within 14 days after such crossing.
The Departments are not aware of any significant impact on the
environment, or any change in environmental effect that will result
from the amendments being promulgated in this Final Rule. Furthermore,
the Departments have determined that this rule clearly fits within
categorical exclusion A3 in the Instruction Manual. The rule is applied
prospectively.
This final rule addresses specific threshold screening requirements
as negotiated in the Additional Protocol of 2022 and is not part of a
larger action. In accordance with its NEPA implementing procedures, the
Departments find no extraordinary circumstances associated with this
final rule that may give rise to significant environmental effects
requiring further analysis and documentation. Therefore, this action is
categorically excluded, and no further NEPA analysis or documentation
is required.
K. Paperwork Reduction Act
This rule does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163
(codified at 44 U.S.C. chapter 35), and its implementing regulations, 5
CFR part 1320.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1003
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Regulatory Amendments
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in this preamble, DHS amends
part 208 of chapter I of the title 8 of the Code of Federal Regulations
as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for 8 CFR part 208 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Amend Sec. 208.30 by revising paragraphs (e)(6) introductory text,
(e)(6)(i) through (iii), and (e)(7) to read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
* * * * *
(e) * * *
(6) Prior to any determination concerning whether an alien arriving
in the United States at a U.S.-Canada land border port-of-entry or in
transit through the United States during removal by Canada or an alien
who, on or after 12:01 a.m. on Saturday, March 25, 2023, entered the
United States by crossing the U.S.-Canada land border between the
ports-of-entry, including a crossing of the border in those waters as
mutually designated by the United States and Canada, and who made an
asylum or other protection claim relating to fear of persecution or
torture within 14 days after such crossing, has a credible fear of
persecution or torture, the asylum officer shall conduct a threshold
screening interview to determine whether such an alien is ineligible to
apply for asylum pursuant to section 208(a)(2)(A) of the Act and
subject to removal to Canada by operation of the Agreement Between the
Government of the United States and the Government of Canada for
Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries (``Agreement''), which includes the Additional
Protocol of 2022 to the Agreement Between the Government of the United
States of America and the Government of Canada For Cooperation in the
Examination of Refugee Status Claims from Nationals of Third Countries
(``Additional Protocol of 2022''). In conducting this threshold
screening interview, the asylum officer shall apply all relevant
interview procedures outlined in paragraph (d) of this section,
provided however, that paragraph (d)(2) of this section shall not apply
to aliens described in this paragraph (e)(6). The asylum officer shall
advise the alien of the exceptions contained in the Agreement, which
includes the Additional Protocol of 2022, and question the alien as to
applicability of any of these exceptions to the alien's case.
(i) If the asylum officer, with concurrence from a supervisory
asylum officer, determines that an alien is subject to the Agreement,
which includes the Additional Protocol of 2022, and that an alien does
not qualify for an exception under the Agreement, which includes the
Additional Protocol of 2022, during this threshold screening interview,
the alien is ineligible to apply for asylum in the United States. After
the asylum officer's documented finding is reviewed by a supervisory
asylum officer, the alien shall be advised that the alien will be
removed to Canada in order to pursue the alien's claims relating to a
fear of persecution or torture under Canadian law. Aliens found
ineligible to apply for asylum under this paragraph shall be removed to
Canada.
(ii) If the alien establishes by a preponderance of the evidence
that the alien qualifies for an exception under the terms of the
Agreement, which includes the Additional Protocol of 2022, the asylum
officer shall make a written notation of the basis of the exception,
and then proceed immediately to a determination concerning whether the
alien has a credible fear of persecution or torture under paragraph (d)
of this section.
(iii) An alien qualifies for an exception to the Agreement, which
includes the Additional Protocol of 2022, if the alien is not being
removed from Canada in transit through the United States and:
(A) Is a citizen of Canada or, not having a country of nationality,
is a habitual resident of Canada;
(B) Has in the United States a spouse, son, daughter, parent, legal
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or
nephew who has been granted asylum, refugee, or other lawful status in
the United States, provided, however, that this exception shall not
[[Page 18240]]
apply to an alien whose relative maintains only nonimmigrant visitor
status, as defined in section 101(a)(15)(B) of the Act, or whose
relative maintains only visitor status based on admission to the United
States pursuant to the Visa Waiver Program;
(C) Has in the United States a spouse, son, daughter, parent, legal
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or
nephew who is at least 18 years of age and has an asylum application
pending before U.S. Citizenship and Immigration Services, the Executive
Office for Immigration Review, or on appeal in federal court in the
United States;
(D) Is unmarried, under 18 years of age, and does not have a parent
or legal guardian in either Canada or the United States;
(E) Arrived in the United States with a validly issued visa or
other valid admission document, other than for transit, issued by the
United States to the alien, or, being required to hold a visa to enter
Canada, was not required to obtain a visa to enter the United States;
or
(F) The Director of USCIS, or the Director's designee, determines,
in the exercise of unreviewable discretion, that it is in the public
interest to allow the alien to pursue a claim for asylum, withholding
of removal, or protection under the Convention Against Torture, in the
United States.
* * * * *
(7) When an immigration officer has made an initial determination
that an alien, other than an alien described in paragraph (e)(6) of
this section and regardless of whether the alien is arriving at a port
of entry, appears to be subject to the terms of an agreement authorized
by section 208(a)(2)(A) of the Act, and seeks the alien's removal
consistent with that provision, prior to any determination concerning
whether the alien has a credible fear of persecution, reasonable
possibility of persecution, or a reasonable possibility of torture, the
asylum officer shall conduct a threshold screening interview to
determine whether the alien is ineligible to apply for asylum in the
United States and is subject to removal to a country (``receiving
country'') that is a signatory to the applicable agreement authorized
by section 208(a)(2)(A) of the Act, other than the U.S.-Canada
Agreement, which includes the Additional Protocol of 2022. In
conducting this threshold screening interview, the asylum officer shall
apply all relevant interview procedures outlined in paragraph (d) of
this section, except that paragraphs (d)(2) and (4) of this section
shall not apply to aliens described in this paragraph (e)(7). The
asylum officer shall advise the alien of the applicable agreement's
exceptions and question the alien as to applicability of any of these
exceptions to the alien's case. The alien shall be provided written
notice that if the alien fears removal to the prospective receiving
country because of the likelihood of persecution on account of a
protected ground or torture in that country and wants the officer to
determine whether it is more likely than not that the alien would be
persecuted on account of a protected ground or tortured in that
country, the alien should affirmatively state to the officer such a
fear of removal. If the alien affirmatively states such a fear, the
asylum officer will determine whether the individual has demonstrated
that it is more likely than not that the alien would be persecuted on
account of a protected ground or tortured in that country.
* * * * *
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in this preamble, the
Attorney General amends parts 1003 and 1240 of chapter V of title 8 of
the Code of Federal Regulations as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for 8 CFR part 1003 continues to read as
follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1003,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p.1002; section
203 Pub. L. 105-100, 111 Stat 2196-200; sections 1506 and 1510 of
Pub. L. 106-308, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L.
106-554, 114 Stat. 2763A-326 to -328.
0
4. Amend Sec. 1003.42 by revising paragraphs (h)(1) and (2) to read as
follows:
Sec. 1003.42 Review of credible fear determinations.
* * * * *
(h) Safe Third Country Agreement--(1) Applicants for admission,
2002 U.S.-Canada Agreement, which includes the Additional Protocol of
2022. An immigration judge has no jurisdiction to review a
determination by an asylum officer that an applicant for admission is
not eligible to apply for asylum pursuant to the 2002 U.S.-Canada
Agreement, which includes the Additional Protocol of 2022, formed under
section 208(a)(2)(A) of the Act and should be returned to Canada to
pursue their claims for asylum or other protection under the laws of
Canada. See 8 CFR 208.30(e)(6). However, in any case where an asylum
officer has found that an applicant for admission qualifies for an
exception to that Agreement, which includes the Additional Protocol of
2022, or that the Agreement, which includes the Additional Protocol of
2022, does not apply, an immigration judge does have jurisdiction to
review a negative credible fear finding made thereafter by the asylum
officer as provided in this section.
(2) Aliens in transit. An immigration judge has no jurisdiction to
review any determination by DHS that an alien being removed from Canada
in transit through the United States should be returned to Canada to
pursue asylum claims under Canadian law, under the terms of the 2002
U.S.-Canada Agreement, which includes the Additional Protocol of 2022.
* * * * *
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
5. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
0
6. Amend Sec. 1240.11 by revising paragraphs (g) and (h)(1) to read as
follows:
Sec. 1240.11 Ancillary matters, applications.
* * * * *
(g) U.S.-Canada safe third country agreement, which includes the
Additional Protocol of 2022. (1) The immigration judge has authority to
apply section 208(a)(2)(A) of the Act, relating to a determination that
an alien may be removed to Canada pursuant to the 2002 U.S.-Canada
Agreement (``Agreement''), in the case of an alien who is subject to
the terms of the Agreement, which includes the Additional Protocol of
2022, and is placed in proceedings pursuant to section 240 of the Act.
In an appropriate case, the immigration judge shall determine whether
under that Agreement, which includes the Additional Protocol of 2022,
the alien should be returned to Canada, or whether the alien should be
permitted to pursue asylum or other protection in the United States.
(2) An alien described in paragraph (g)(1) of this section is
ineligible to
[[Page 18241]]
apply for asylum, pursuant to section 208(a)(2)(A) of the Act, unless
the immigration judge determines, by preponderance of the evidence,
that:
(i) The Agreement, which includes the Additional Protocol of 2022,
does not apply to the alien or does not preclude the alien from
applying for asylum in the United States; or
(ii) The alien qualifies for an exception to the Agreement, which
includes the Additional Protocol of 2022, as set forth in paragraph
(g)(3) of this section.
(3) The immigration judge shall apply the applicable regulations in
deciding whether the alien qualifies for any exception under the
Agreement, which includes the Additional Protocol of 2022, that would
permit the United States to exercise authority over the alien's asylum
claim. The exceptions under the Agreement, which includes the
Additional Protocol of 2022, are codified at 8 CFR 208.30(e)(6)(iii).
The immigration judge shall not review, consider, or decide any issues
pertaining to any discretionary determination on whether the alien
should be permitted to pursue an asylum claim in the United States
notwithstanding the general terms of the Agreement, which includes the
Additional Protocol of 2022, as such discretionary public interest
determinations are reserved to DHS. However, an alien in removal
proceedings who is otherwise ineligible to apply for asylum under the
Agreement, which includes the Additional Protocol of 2022, may apply
for asylum if DHS files a written notice in the proceedings before the
immigration judge that it has decided in the public interest to allow
the alien to pursue claims for asylum or withholding of removal.
(4) An alien who is found to be ineligible to apply for asylum
under section 208(a)(2)(A) of the Act is ineligible to apply for
withholding of removal pursuant to section 241(b)(3) of the Act and the
Convention Against Torture. However, the alien may apply for any other
relief from removal for which the alien may be eligible. If an alien
who is subject to the Agreement, which includes the Additional Protocol
of 2022, and section 208(a)(2)(A) of the Act is ordered removed, the
alien shall be ordered removed to Canada, in which the alien will be
able to pursue his or her claims for asylum or protection against
persecution or torture under the laws of Canada
(h) * * *.
(1) The immigration judge has authority to apply section
208(a)(2)(A) of the Act, relating to a determination that an alien may
be removed to a third country pursuant to a bilateral or multilateral
agreement--other than the 2002 U.S.-Canada Agreement, which includes
the Additional Protocol of 2022--in the case of an alien who is subject
to the terms of the relevant agreement and is placed in proceedings
pursuant to section 240 of the Act. In an appropriate case, the
immigration judge shall determine whether under the relevant agreement
the alien should be removed to the third country, or whether the alien
should be permitted to pursue asylum or other protection claims in the
United States. If more than one agreement applies to the alien and the
alien is ordered removed, the immigration judge shall enter alternate
orders of removal to each relevant country.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security,
Dated: March 22, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023-06351 Filed 3-24-23; 8:45 am]
BILLING CODE 9111-97-P
</pre></body>
</html>Indexed from Federal Register on March 28, 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.