Rule2023-10146
Circumvention of Lawful Pathways
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
May 16, 2023
Effective
May 11, 2023
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
The Department of Homeland Security ("DHS") and the Department of Justice ("DOJ") are issuing a final rule in anticipation of a potential surge of migration at the southwest border ("SWB") of the United States following the termination of the Centers for Disease Control and Prevention's ("CDC") public health Order. The rule encourages migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in another country through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. The rule does so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would apply only to those who enter at the southwest land border or adjacent coastal borders during a limited, specified date range, the number of migrants expected to travel without authorization to the United States would be expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the rule to lead to a reduction in the number of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner. In addition, the Departments are requesting comment on whether applicability of the rebuttable presumption should be extended to noncitizens who enter the United States without documents sufficient for lawful admission during the same temporary time period at a maritime border.
Full Text
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<title>Federal Register, Volume 88 Issue 94 (Tuesday, May 16, 2023)</title>
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[Federal Register Volume 88, Number 94 (Tuesday, May 16, 2023)]
[Rules and Regulations]
[Pages 31314-31452]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10146]
[[Page 31313]]
Vol. 88
Tuesday,
No. 94
May 16, 2023
Part II
Department of Homeland Security
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8 CFR Part 208
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1003 and 1208
Circumvention of Lawful Pathways; Final Rule
Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Rules
and Regulations
[[Page 31314]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2744-23; Docket No: USCIS 2022-0016]
RIN 1615-AC83
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1208
[A.G. Order No. 5660-2023]
RIN 1125-AB26
Circumvention of Lawful Pathways
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Final rule; request for comments on expanded applicability in
maritime context.
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SUMMARY: The Department of Homeland Security (``DHS'') and the
Department of Justice (``DOJ'') are issuing a final rule in
anticipation of a potential surge of migration at the southwest border
(``SWB'') of the United States following the termination of the Centers
for Disease Control and Prevention's (``CDC'') public health Order. The
rule encourages migrants to avail themselves of lawful, safe, and
orderly pathways into the United States, or otherwise to seek asylum or
other protection in another country through which they travel, thereby
reducing reliance on human smuggling networks that exploit migrants for
financial gain. The rule does so by introducing a rebuttable
presumption of asylum ineligibility for certain noncitizens who neither
avail themselves of a lawful, safe, and orderly pathway to the United
States nor seek asylum or other protection in a country through which
they travel. In the absence of such a measure, which would apply only
to those who enter at the southwest land border or adjacent coastal
borders during a limited, specified date range, the number of migrants
expected to travel without authorization to the United States would be
expected to increase significantly, to a level that risks undermining
the Departments' continued ability to safely, effectively, and humanely
enforce and administer U.S. immigration law, including the asylum
system, in the face of exceptionally challenging circumstances. Coupled
with an expansion of lawful, safe, and orderly pathways into the United
States, the Departments expect the rule to lead to a reduction in the
number of migrants who seek to cross the SWB without authorization to
enter, thereby reducing the reliance by migrants on dangerous human
smuggling networks, protecting against extreme overcrowding in border
facilities, and helping to ensure that the processing of migrants
seeking protection in the United States is done in an effective,
humane, and efficient manner. In addition, the Departments are
requesting comment on whether applicability of the rebuttable
presumption should be extended to noncitizens who enter the United
States without documents sufficient for lawful admission during the
same temporary time period at a maritime border.
DATES:
Effective date: This rule is effective on May 11, 2023.
Comment period for solicited comments: Comments on expanded
applicability in maritime context identified in Section V of this
preamble must be submitted on or before June 15, 2023. The electronic
Federal Docket Management System will accept comments before midnight
eastern time at the end of that day.
ADDRESSES:
Docket: To view comments on the proposed rule that preceded this
rule, search for docket number USCIS 2022-0016 on the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comment period for solicited additional comments: You may submit
comments on the specific issue identified in Section V of this preamble
via the electronic Federal Docket Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, to DHS Docket Number USCIS 2022-0016. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to the Departments' officials, will not be considered comments on
the rulemaking and may not receive a response from the Departments.
Please note that the Departments cannot accept any comments that are
hand-delivered or couriered. In addition, the Departments cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs or USB drives. The Departments are not accepting mailed
comments at this time. If you cannot submit your comment by using
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact the Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, by telephone at
(240) 721-3000 (not a toll-free call) for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Director, Border and Immigration Policy,
Office of Strategy, Policy, and Plans, U.S. Department of Homeland
Security; telephone (202) 447-3459 (not a toll-free call).
For Executive Office for Immigration Review (``EOIR''): Lauren
Alder Reid, Assistant Director, Office of Policy, EOIR, Department of
Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703)
305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on the specific
issue identified in Section V of this preamble by submitting relevant
written data, views, or arguments. To provide the most assistance to
the Departments, comments should explain the reason for any
recommendation and include data, information, or authority that
supports the recommended course of action. Comments must be submitted
in English, or an English translation must be provided. Comments
submitted in a manner other than those listed above, including emails
or letters sent to the Departments' officials, will not be considered
comments on the rulemaking and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must submit it to DHS
Docket Number USCIS 2022-0016. All submissions may be posted, without
change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to the
Departments. The Departments may withhold information provided in
comments from public viewing that they determine may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
II. Executive Summary
A. Purpose of Action
Economic and political instability around the world is fueling the
highest
[[Page 31315]]
levels of migration since World War II, including in the Western
Hemisphere. Analysis by the DHS Office of Immigration Statistics
(``OIS'') found that even while CDC's Title 42 public health Order \1\
has been in place, encounters at our SWB \2\--referring to the number
of times U.S. officials encounter noncitizens \3\ attempting to cross
the SWB of the United States without authorization to do so--reached an
all-time high in 2022, driven in large part by an unprecedented exodus
of migrants at different times from countries such as Brazil, Colombia,
Cuba, Ecuador, Haiti, Nicaragua, Peru, and Venezuela.\4\ The U.S.
Border Patrol (``USBP'') completed 221,710 encounters between ports of
entry in December 2022, second only to May 2022 (224,371 encounters)
for the most monthly encounters since at least Fiscal Year (``FY'')
2000 (the period for which detailed records are available), and very
likely the most ever.\5\ Daily encounters between Ports of Entry
(``POEs'') averaged 7,152 for December 2022 and exceeded 8,000 per day
11 times during the month, as compared to average daily encounters of
1,977 for all of 2000-2019 and average daily encounters of 1,265 in the
immediate pre-pandemic period, 2014-2019.\6\ Smuggling networks enable
and exploit this unprecedented movement of people, putting migrants'
lives at risk for smugglers' financial gain.\7\ Meanwhile, the current
asylum system--in which a high number of migrants are initially
determined eligible to pursue their claims, even though most ultimately
are not granted asylum in the subsequent EOIR removal proceedings \8\--
has contributed to a growing backlog of cases awaiting review by asylum
officers (``AOs'') and immigration judges (``IJs''). The practical
result of this growing backlog is that those with meritorious claims
may have to wait years for their claims to be granted, while
individuals who are ultimately denied protection may spend years in the
United States before being issued a final order of removal.\9\ As the
demographics of border encounters have shifted in recent years to
include larger numbers of non-Mexicans--who are far more likely to
assert asylum claims--and as the time required to process and remove
noncitizens ineligible for protection has grown (during which
individuals may become eligible to apply for employment authorization),
the deterrent effect of apprehending noncitizens at the SWB has become
more limited.\10\
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\1\ See Public Health Determination and Order Regarding
Suspending the Right to Introduce Certain Persons from Countries
Where a Quarantinable Communicable Disease Exists, 87 FR 19941,
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 public
health Orders, which ``suspend[ ] the right to introduce certain
persons into the United States from countries or places where the
quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-
19'').
\2\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB,'' ``the southern
border,'' ``U.S.-Mexico border,'' or ``the land border with
Mexico.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. The ``southern border'' is
both a land and maritime border extending from beyond California to
the west to beyond Florida to the east. This rule applies along the
entirety of the U.S. land border with Mexico, referred to in the
regulatory text as the ``southwest land border,'' but the
Departments use different terms in the preamble to describe the
border. This is in large part to reflect the source material
supporting the rule, but the Departments believe that the factual
circumstances described in the preamble call for applying the rule
across the entirety of the U.S. land border with Mexico, referred to
throughout as the ``SWB.'' As discussed in greater detail below, the
Departments believe that the factual circumstances described in this
preamble call for applying the rule to coastal borders adjacent to
that land border as well; accordingly, this final rule applies to
those who enter the United States from Mexico, whether at the
southwest land border or adjacent coastal borders.
\3\ For purposes of this discussion, the Departments use the
term ``noncitizen'' to be synonymous with the term ``alien'' as it
is used in the Immigration and Nationality Act. See INA 101(a)(3), 8
U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020).
\4\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023; OIS analysis of historic U.S. Border Patrol data.
\5\ OIS analysis of OIS Production data based on data through
March 31, 2023.
\6\ OIS analysis of OIS Production data for fiscal year (``FY'')
2000-March 2023 and OIS Yearbook data for FY 1925-FY 1999. As
discussed further below, daily encounters between ports of entry
fell sharply in January 2023 following the launch of the Cuba,
Haiti, and Nicaragua parole processes, and daily encounters between
ports of entry at the SWB averaged just over 5,200 a day the 30 days
ending April 10, 2023. OIS analysis of Unified Immigration Portal
(UIP) data pulled on April 13, 2023.
\7\ Miriam Jordan, Smuggling Migrants at the Border Now a
Billion-Dollar Business, N.Y. Times, July 25, 2022, <a href="https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html">https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html</a>.
\8\ See EOIR, Executive Office for Immigration Review
Adjudication Statistics: Asylum Decision and Filing Rates in Cases
Originating with a Credible Fear Claim (Jan. 16, 2023), <a href="https://www.justice.gov/eoir/page/file/1062976/download">https://www.justice.gov/eoir/page/file/1062976/download</a>. The EOIR
adjudication outcome statistics report on the total number of cases
originating with credible fear claims resolved on any ground in a
FY, without regard to whether an asylum claim was adjudicated. The
asylum grant rate is a percentage of that total number of cases.
\9\ OIS analysis of EOIR data as of March 31, 2023.
\10\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, nearly 6 percent of Mexican
nationals made fear claims that were referred to U.S. Citizenship
and Immigration Services for adjudication, compared to nearly 57
percent of people from Northern Central America (i.e., El Salvador,
Guatemala, and Honduras), and just over 90 percent of all other
nationalities. OIS analysis of Enforcement Lifecycle data as of
December 31, 2022. Of note, according to OIS analysis of historic
EOIR and CBP data, there is a clear correlation since FY 2000
between the increasing time it takes to complete immigration
proceedings, which results in a lower share of noncitizens being
removed, and the growth in non-Mexican encounters at the SWB. Both
trends accelerated in the 2010s, as non-Mexicans became the majority
of border encounters, and they have accelerated further since FY
2021, as people from countries other than Mexico and Northern
Central America now account for the largest numbers of border
encounters.
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While the CDC's Title 42 public health Order has been in effect,
migrants who do not have proper travel documents have generally not
been processed into the United States; they instead have been expelled
to Mexico or to their home countries under the Order's authority
without being processed under the authorities set forth in Title 8 of
the United States Code, which includes the Immigration and Nationality
Act (``INA'' or ``the Act''). When the Order is lifted, however, the
United States Government will process all migrants into the United
States under Title 8 authorities, as required by statute. At that time,
the number of migrants seeking to cross the SWB without authorization
is expected to increase significantly, unless other policy changes are
made. Such challenges were evident in the days following the November
15, 2022, court decision that, had it not been stayed on December 19,
2022, would have resulted in the lifting of the Title 42 public health
Order effective December 21, 2022.\11\ Leading up to the expected
termination date, migrants gathered in various parts of Mexico,
including along the SWB, waiting to cross the border once the Title 42
public health Order was lifted.\12\ According to internal Government
sources, smugglers were also expanding their messaging and recruitment
efforts, using the expected lifting of the Title 42 public health Order
to claim that the border was open, thereby seeking to persuade would-be
migrants to participate in expensive and dangerous human smuggling
schemes. In the weeks between the November 2022 announcement that the
Title 42 public health Order would be lifted, and the December 19,
2022, stay order that kept the Title 42 public health Order in place,
encounter rates jumped from an average of just under 7,700 per week
(early November) to nearly 8,800 per
[[Page 31316]]
week (mid-December), a change not predicted by normal seasonal
effects.\13\
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\11\ See Huisha-Huisha v. Mayorkas, No. 21-100, 2022 WL 16948610
(D.D.C. Nov. 15, 2022), cert. and stay granted, Arizona v. Mayorkas,
143 S. Ct. 478 (2022).
\12\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at
the U.S.-Mexico Border. This Is Why, L.A. Times, Dec. 23, 2022,
<a href="https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion">https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion</a>.
\13\ Month over month change from November to December for all
of FY 2013-FY2022 averaged negative 2 percent. OIS analysis of OIS
Persist Dataset based on data through March 31, 2023.
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While a number of factors make it particularly difficult to
precisely project the numbers of migrants who would seek to cross the
SWB without authorization or present at a U.S. POE without documents
sufficient for admission after the lifting of the Title 42 public
health Order, DHS encounter projections and planning models from early
April suggest that encounters could rise to 11,000 per day, absent
policy changes and absent a viable mechanism for removing Cuban,
Haitian, Nicaraguan, and Venezuelan (``CHNV'') nationals who do not
have a valid protection claim.\14\ As discussed in greater detail
below, data indicate that recently announced enforcement processes, as
applied to CHNV nationals, which couple new parole processes with
prompt returns of those who attempt to cross the SWB without utilizing
these processes, are effectively deterring irregular migration \15\
from those countries to the United States, thus yielding a substantial
decrease in encounter numbers for nationals of CHNV countries.\16\
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\14\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023. The complexity of international migration limits the
Department's ability to precisely project border encounters under
the best of circumstances. The current period is characterized by
greater than usual uncertainty due to ongoing changes in the major
migration source countries (i.e., the shift from Mexico and Northern
Central America to new countries of origin, discussed further
below), the growing impact of climate change on migration, political
instability in several source countries, the evolving recovery from
the COVID-19 pandemic, and uncertainty generated by border-related
litigation, among other factors.
OIS leads an interagency SWB Encounter Projections Working Group
that generates encounter projections every two to four weeks, with
ongoing refinements to the model based on feedback from the working
group and model diagnostics. The enterprise encounter projection
utilizes a mixed method blended model that combines a Bayesian
structural time series statistical model produced by OIS with
subject matter expert input to account for real-time policy
developments and pending litigation, among other factors, that are
not captured by the statistical model. The blended model is run
through a standard statistical process (Monte Carlo simulations) to
generate 68 percent and 95 percent confidence intervals for each of
33 separate demographic groupings. In light of the greater-than-
usual uncertainty at the current time, the Departments' planning
models are designed to prepare the Departments for all reasonably
likely eventualities, and therefore focus on the upper bounds of the
blended model's 68 and 95 percent confidence intervals. As noted in
Section IV.B.2 of this preamble, in the current context, the
Departments must focus their planning efforts on the high and
moderately high planning models rather than plan to an optimistic
scenario that could leave enforcement efforts badly under-resourced
and harm efforts to provide a safe and orderly process.
\15\ In this preamble, ``irregular migration'' refers to the
movement of people into another country without authorization.
\16\ In the week prior to the announcement of the parole
processes (ending October 12, 2022, for Venezuela and January 6,
2023, for Cuba, Haiti, and Nicaragua), the daily average of CHNV
encounters was nearly 2,000 between POEs. A month after the parole
announcements, daily encounters of CHNV nationals averaged just
under 300 encounters. In the most recent seven days ending April 10,
2023, CHNV daily encounters averaged 195. OIS analysis of OIS
Persist dataset based on data through March 31, 2023, and OIS
analysis of CBP UIP data downloaded April 13, 2023.
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However, DHS will no longer have a means to promptly expel migrants
without a legal basis to stay in the United States following the
termination of the Title 42 public health Order, which means that an
important disincentive associated with the parole processes would no
longer be present. In addition, there are a number of factors that
could contribute to these gains being erased after the lifting of the
Title 42 public health Order, including the presence of several large
diaspora populations in Mexico and elsewhere in the hemisphere, the
unprecedented recent growth in migration from countries of origin not
previously typical, the already large number of migrants in proximity
to the SWB, and the general uncertainty surrounding the expected impact
of the termination of the Title 42 public health Order on the movement
of migrants. Thus, the high end of the estimated encounter rate remains
a possibility for which the Departments need to prepare. In the absence
of the policy changes included in the rule, most non-Mexicans processed
for expedited removal under Title 8 would likely establish credible
fear and remain in the United States for the foreseeable future despite
the fact that many of them will not ultimately be granted asylum,\17\ a
scenario that would likely incentivize an increasing number of migrants
to the United States and further increase the likelihood of sustained,
high encounter rates.
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\17\ See Section III.C of the preamble to the notice of proposed
rulemaking, Circumvention of Lawful Pathways, 88 FR 11704, at 11715-
11716 (Feb. 23, 2023). Overall, 63 percent of non-Mexicans placed in
expedited removal from 2014-2019 made fear claims, and 85 percent of
those claiming fear (54 percent of all those placed in expedited
removal) established fear or were otherwise placed in section 240
removal proceedings as a result of their fear claim. These rates are
likely to be higher after May 11, 2023, because of the growing
prevalence of extra-regional nationals (i.e., noncitizens not from
Mexico or Northern Central America), who are more likely than those
from Northern Central American countries to make fear claims and to
establish fear. OIS analysis of OIS Enforcement Lifecycle data based
on data through February 28, 2023.
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A sustained, high encounter rate risks overwhelming the
Departments' ability to effectively process, detain, and remove, as
appropriate, the migrants encountered. This would put an enormous
strain on already strained resources, risk overcrowding in already
crowded USBP stations and border POEs in ways that pose significant
health and safety concerns, and create a situation in which large
numbers of migrants--only a small proportion of whom are likely to be
granted asylum--are subject to exploitation and risks to their lives by
the networks that support their movements north.
In response to this urgent and extreme situation, the Departments
are issuing a rule that--
<bullet> incentivizes migrants to use lawful, safe, and orderly
means for noncitizens to enter the United States to seek asylum and
other forms of protection;
<bullet> provides core protections for noncitizens who would be
threatened with persecution or torture in other countries; and
<bullet> builds upon ongoing efforts to share the responsibility of
providing asylum and other forms of protection to eligible migrants
with the United States' regional partners.
At the same time, the rule addresses the reality of unprecedented
migratory flows, the systemic costs those flows impose on the
immigration system, and the ways in which increasingly sophisticated
smuggling networks cruelly exploit the system for financial gain.
Specifically, this rule establishes a presumptive condition on asylum
eligibility for certain noncitizens who fail to take advantage of the
existing and expanded lawful pathways \18\ to enter the United States,
including the opportunity to schedule a time and place to present at a
POE, and thus seek asylum or other forms of protection in a lawful,
safe, and orderly manner, or to seek asylum or other protection in one
of the countries through which they travel on their way to the United
States.
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\18\ The terms ``lawful pathways'' and ``lawful, safe, and
orderly pathways,'' as used in this preamble, refer to the range of
pathways and processes by which migrants are able to enter the
United States or other countries in a lawful, safe, and orderly
manner and seek asylum and other forms of protection as described in
this rule.
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This effort draws, in part, on lessons learned from the successful
Venezuela parole process,\19\ as well as the similar processes for
Cubans, Haitians, and Nicaraguans,\20\ under which DHS
[[Page 31317]]
coupled a mechanism for noncitizens from these countries to seek entry
into the United States in a lawful, safe, and orderly manner, with the
imposition of new consequences for those who cross the border without
authorization to do so--namely returns to Mexico.\21\ Prior to the
implementation of these processes, the Government of Mexico had not
been willing to accept the return of such nationals; the Government of
Mexico's independent decision to allow such returns was predicated, in
primary part, on the implementation of these processes.
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\19\ See DHS, Press Release, DHS Announces New Migration
Enforcement Process for Venezuelans (Oct. 12, 2022), <a href="https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans">https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans</a>; see also DHS, Implementation of a Parole
Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
\20\ See DHS, Press Release, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), <a href="https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and">https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and</a>.
\21\ While the Title 42 public health Order has been in place,
those returns have been made under Title 42. As noted below, after
the Title 42 public health Order is lifted, affected noncitizens may
instead be subject to return or removal to Mexico under Title 8. See
The White House, Mexico and United States Strengthen Joint
Humanitarian Plan on Migration (May 2, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/</a> [hereinafter The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023)];
Government of Mexico, M[eacute]xico y Estados Unidos fortalecen Plan
Humanitario Conjunto sobre Migraci[oacute]n (May 2, 2023), <a href="https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published">https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published</a>.
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A week before the announcement of the Venezuela parole process on
October 12, 2022, Venezuelan encounters between POEs at the SWB
averaged over 1,100 a day from October 5-11. About two weeks after the
announcement, Venezuelan encounters averaged under 200 per day between
October 18 and 24.\22\ U.S. Customs and Border Protection (``CBP'')
encountered an average of 106 Venezuelans between POEs per day in March
2023, about one-tenth the number of encounters prior to the
announcement of the parole process.\23\ Similarly, the number of Cuban,
Haitian, and Nicaraguan (``CHN'') nationals encountered between POEs
dropped significantly in the wake of the introduction of the new
processes, which coupled a lawful, safe, and orderly way for such
nationals to seek parole in the United States with consequences (in the
form of prompt returns to Mexico) for those who crossed the SWB without
authorization. Between the announcement of these processes on January
5, 2023, and January 21, 2023, the number of daily encounters between
POEs of CHN nationals dropped from 928 to 73, a 92 percent decline.\24\
CHN encounters between POEs continued to decline to an average of fewer
than 17 per day in March 2023.\25\ DHS estimates that the drop in CHNV
encounters in January through March was almost four times as large as
the number of people permitted entry under the parole processes.\26\
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\22\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\23\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\24\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\25\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\26\ In December 2022, prior to the announcement of the CHN
parole processes, the OIS Enterprise Encounter Projection predicted
273,000 total encounters of CHNV nationals in January through March
2023, a projection equivalent to 265,000 unique encounters given
CHNV repeat encounter rates. During that same period, following the
enactment of the CHN parole processes, unique SWB encounters
(excluding scheduled arrivals via the CBP One app) of CHNV nationals
was 20,204-245,000 fewer unique encounters than had been predicted.
By comparison, a total of 61,967 CHNV nationals entered the United
States pursuant to the CHNV parole processes during the same period.
OIS analysis of OIS Persist Dataset based on data through March 31,
2023, and of CBP OFO CHNV Advance Travel Authorization reports.
---------------------------------------------------------------------------
This rule, which draws on these successful processes, and which
will apply only to those who enter during a limited, specified date
range at the southwest land border or adjacent coastal borders, will
discourage irregular migration by encouraging migrants to use lawful,
safe, and orderly pathways and allowing for swift returns of migrants
who bypass such pathways, even after the termination of the Title 42
public health Order. It responds to the expected increase of migrants
seeking to cross the SWB following the termination of the Title 42
public health Order that would occur in the absence of a policy shift
by encouraging reliance on lawful, safe, and orderly pathways, thereby
shifting the incentives that otherwise encourage migrants to make a
dangerous journey to the SWB. It is also responsive to the requests of
foreign partners that have lauded the sharp reductions in irregular
migration associated with the aforementioned process for Venezuelans
and have urged that the United States continue and build on this kind
of approach, which couples processes for individuals to travel directly
to the United States with consequences at the land border for those who
do not avail themselves of these processes. The United States has, as
noted above, already extended this model to Cuba, Haiti, and Nicaragua,
and the Government of Mexico and the United States recently announced a
set of additional measures on migration, including the United States'
continued commitment to welcoming CHNV nationals under these parole
processes and Mexico's commitment to continue to accept back migrants
on humanitarian grounds after May 11, 2023.\27\ The Departments assess
that continuing to implement and build on this approach is critical to
the United States' ongoing engagements with regional partners, in
particular the Government of Mexico, regarding migration management in
the region.\28\
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\27\ The White House, Mexico and United States Strengthen Joint
Humanitarian Plan on Migration (May 2, 2023).
\28\ See also The White House, Joint Statement by President
Biden and Prime Minister Trudeau (Mar. 24, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/24/joint-statement-by-president-biden-and-prime-minister-trudeau/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/24/joint-statement-by-president-biden-and-prime-minister-trudeau/</a>
(reaffirming commitment of United States and Canada to a
collaborative regional approach to migration centered on expanding
legal pathways and humane border management, including deterrence of
irregular migration).
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Consonant with these efforts, over the past two years, the United
States has taken significant steps to expand safe and orderly options
for migrants to lawfully enter the United States. The United States
has, for example, increased and will continue to increase--
<bullet> refugee processing in the Western Hemisphere;
<bullet> country-specific and other available processes for
individuals seeking parole for urgent humanitarian reasons or
significant public benefit on a case-by-case basis; and
<bullet> opportunities to lawfully enter the United States for the
purpose of seasonal employment.
In addition, once the Title 42 public health Order is terminated,
the United States will expand implementation of the CBP One\TM\ mobile
application (``CBP One app''),\29\ an innovative mechanism for
noncitizens to schedule a time to arrive at POEs along the SWB, to
allow an increasing number of migrants who may wish to claim asylum to
request an available time and location to present and be inspected and
processed at certain POEs, in accordance with operational limitations
at each POE.\30\ Use of this app keeps
[[Page 31318]]
migrants from having to wait in long lines of unknown duration at the
POEs, and enables the POEs to manage the flows in a safe and efficient
manner, consistent with their footprint and operational capacity, which
vary substantially across the SWB. Once present in the United States,
those who use this mechanism can make claims for asylum and other forms
of protection and are exempted from this rule's rebuttable presumption
on asylum eligibility. They are vetted and screened, and assuming no
public safety or national security concerns, may be eligible to apply
for employment authorization as they await resolution of their
cases.\31\
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\29\ The Departments note that unless otherwise specified,
references to the CBP One app refer to usage of the CBP One tool,
which can be accessed via the smartphone application. Although there
is a desktop version of the CBP One app, it does not currently allow
users to submit their information in advance. CBP is developing the
capability to use the desktop version for this purpose.
\30\ As of January 12, 2023, this mechanism is currently
available for noncitizens seeking to cross SWB land POEs to request
a humanitarian exception from the Title 42 public health Order. See
CBP, Fact Sheet: Using CBP One<SUP>TM</SUP> to Schedule an
Appointment (last modified Jan. 12, 2023), <a href="https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english">https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english</a>. Once the Title 42
public health Order is terminated, and the POEs open to all migrants
who wish to seek entry into the United States, this mechanism will
be broadly available to migrants in central and northern Mexico,
allowing them to request an available time and location to present
and be inspected and processed at certain POEs.
\31\ Under current employment authorization regulations, there
is no waiting period before a noncitizen parolee in this
circumstance may apply for employment authorization, except where
the noncitizen is in expedited removal proceedings, including after
a positive credible fear determination, and paroled from custody.
See 8 CFR 274a.12(c)(11), 235.3(b)(2)(iii), (b)(4)(ii).
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Moreover, on April 27, 2023, DHS and the Department of State
announced several new measures to further reduce irregular migration
across the Western Hemisphere, significantly expand lawful pathways for
protection, and facilitate the safe, orderly, and humane processing of
migrants.\32\ These new measures include--
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\32\ See DHS, Fact Sheet, U.S. Government Announces Sweeping New
Actions to Manage Regional Migration (Apr. 27, 2023), <a href="https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration">https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration</a> [hereinafter DHS, New
Actions to Manage Regional Migration (Apr. 27, 2023)].
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<bullet> creating family reunification parole processes for El
Salvador, Guatemala, Honduras, and Colombia, as well as modernizing the
longstanding Haitian Family Reunification Parole process and the Cuban
Family Reunification Parole process;
<bullet> committing to referring for resettlement thousands of
additional refugees per month from the Western Hemisphere, with the
goal of doubling the number of refugees the United States committed to
welcome as part of the Los Angeles Declaration on Migration and
Protection (``L.A. Declaration'');
<bullet> establishing regional processing centers in key locations
throughout the Western Hemisphere to reduce irregular migration;
<bullet> launching an aggressive anti-smuggling campaign targeting
criminal networks in the Dari[eacute]n Gap and combating smuggler
misinformation;
<bullet> surging AOs to complete credible fear interviews at the
SWB more quickly; and
<bullet> ramping up coordination between state and local officials
and other federal agencies to provide resources, technical assistance,
and support.\33\
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\33\ See id.
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These measures will be implemented in close coordination with
regional partners, including the governments of Mexico, Canada,
Colombia, and Guatemala, as well as the government of Spain.\34\
---------------------------------------------------------------------------
\34\ See id.; see also The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023)
(committing to increase joint actions to counter human smugglers and
traffickers, address root causes of migration, and continue to
combine expanded lawful pathways with consequences for irregular
migration).
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Available pathways provide lawful, safe, and orderly mechanisms for
migrants to enter the United States and make their protection claims.
Consistent with the CHNV processes, this rule also imposes consequences
on certain noncitizens who fail to avail themselves of the range of
lawful, safe, and orderly means for entering the United States and
seeking protection in the United States or elsewhere. Specifically,
this rule establishes a rebuttable presumption that certain noncitizens
who enter the United States without documents sufficient for lawful
admission are ineligible for asylum, if they traveled through a country
other than their country of citizenship, nationality, or, if stateless,
last habitual residence, unless they were provided appropriate
authorization to travel to the United States to seek parole pursuant to
a DHS-approved parole process; presented at a POE at a pre-scheduled
time or demonstrate that the mechanism for scheduling was not possible
to access or use due to language barrier, illiteracy, significant
technical failure, or other ongoing and serious obstacle; or sought
asylum or other protection in a country through which they traveled and
received a final decision denying that application. Unaccompanied
children (``UC'') are excepted from this presumption.\35\ This
presumption may be rebutted, and would necessarily be rebutted if, at
the time of entry, the noncitizen or a member of the noncitizen's
family with whom they are travelling had an acute medical emergency,
faced an imminent and extreme threat to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder,\36\ or
satisfied the definition of ``victim of a severe form of trafficking in
persons'' provided in 8 CFR 214.11(a). The presumption also may be
rebutted in other exceptionally compelling circumstances.
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\35\ The term ``unaccompanied child'' as used in this rule is
the same as ``unaccompanied alien child,'' which is defined at 6
U.S.C. 279(g)(2) to mean ``a child who--(A) has no lawful
immigration status in the United States; (B) has not attained 18
years of age; and (C) with respect to whom--(i) there is no parent
or legal guardian in the United States; or (ii) no parent or legal
guardian in the United States is available to provide care and
physical custody.''
\36\ The term ``imminent'' refers to the immediacy of the
threat; it makes clear that the threat cannot be speculative, based
on generalized concerns about safety, or based on a prior threat
that no longer poses an immediate threat. The term ``extreme''
refers to the seriousness of the threat; the threat needs to be
sufficiently grave, such as a threat of rape, kidnapping, torture,
or murder, to trigger this ground for rebuttal.
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The rebuttable presumption is a ``condition[ ]'' on asylum
eligibility, INA 208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and
(d)(5)(B), that applies in affirmative and defensive asylum application
merits adjudications, as well as during credible fear screenings.
Individuals who are subject to and do not rebut the presumption remain
eligible for statutory withholding of removal and protection under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'').\37\
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\37\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
---------------------------------------------------------------------------
With the ability to schedule a time and place to arrive at POEs and
the availability of other orderly and lawful pathways, this system is
designed to (1) protect against an unmanageable flow of migrants
arriving at the SWB; (2) further ongoing efforts to share the
responsibility of providing asylum and other forms of protection with
the United States' regional partners; (3) ensure that those with valid
asylum claims have an opportunity to seek protection, whether in the
United States or elsewhere; (4) enable the Departments to continue
administering the immigration laws fairly and effectively; and (5)
reduce the role of exploitative transnational criminal organizations
and smugglers.
The rule applies to noncitizens who enter the United States without
authorization from Mexico at the southwest land border or adjacent
coastal borders on or after the date of termination of the Title 42
public health Order and before a specified date, 24 months from the
rule's effective date. However, the rule will continue to apply to such
noncitizens who entered the United States during the 24-month time
frame in their Title 8 proceedings and in any subsequent asylum
applications, except for those applications filed after the two-year
period by those who entered the United
[[Page 31319]]
States as minors and who apply as principal applicants. The Departments
intend that the rule will be subject to review to determine whether the
entry dates provided in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i)
should be extended, modified, or remain as provided in the rule.
B. Effective Date
Issuance of this rule is justified in light of the migration
patterns witnessed in recent months, and the concern about the
possibility of a surge in irregular migration upon, or in anticipation
of, the lifting of the Title 42 public health Order. The Departments
seek to underscore that migrants will not be able to cross the border
without authorization to enter without consequence upon the eventual
lifting of the Order. Under this rule, the Departments will use their
Title 8 authorities to process, detain, and remove, as appropriate,
those who enter the United States from Mexico at the southwest land
border or adjacent coastal borders without authorization and do not
have a valid protection claim.
The Departments are issuing this rule without the 30-day delayed
effective date typically required by the Administrative Procedure Act
(``APA'') \38\ because the Departments have determined that it is
necessary to implement the rule when the Title 42 public health Order
is lifted. The lifting of the Order could occur as a result of several
different litigation and policy developments, including the vacatur of
the preliminary injunction entered in Louisiana v. CDC, 603 F. Supp. 3d
406 (W.D. La. 2022), appeal pending, No. 22-30303 (5th Cir. June 15,
2022); the lifting of the stay entered by the Supreme Court in Arizona
v. Mayorkas, 143 S. Ct. 478 (2022); or ``the expiration of the
Secretary of HHS' declaration that COVID-19 constitutes a public health
emergency,'' Public Health Reassessment and Order Suspending the Right
to Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, 86 FR 42828, 42829 (Aug. 5, 2021). The
expiration of the declaration by the Secretary of Health and Human
Services (``HHS'') that COVID-19 constitutes a public health emergency
is expected to occur on May 11, 2023, in light of the recent
announcement that ``[a]t present, the Administration's plan is to
extend'' the public health emergency to May 11 and then allow it to
expire ``on that date.'' \39\ The Departments have thus sought to move
as expeditiously as possible, while also allowing sufficient time for
public comment.
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\38\ See 5 U.S.C. 553(d). The Departments further address this
requirement in Section VI.A of this preamble.
\39\ Office of Mgmt. & Budget, Exec. Office of the President,
Statement of Administration Policy (Jan. 30, 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf</a>; see also HHS, Fact Sheet: COVID-19 Public Health
Emergency Transition Roadmap (Feb. 9, 2023), <a href="https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html">https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html</a> (``Based on current COVID-19 trends, the
Department of Health and Human Services (HHS) is planning for the
federal Public Health Emergency (PHE) for COVID-19, declared under
Section 319 of the Public Health Service (PHS) Act, to expire at the
end of the day on May 11, 2023.'').
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C. Changes From Proposed Rule to Final Rule
On February 23, 2023, the Departments issued a notice of proposed
rulemaking (``NPRM'' or ``proposed rule'') \40\ in anticipation of a
potential surge of migration at the SWB following the eventual
termination of the CDC's public health Order. Following careful
consideration of public comments received, the Departments have made
modifications to the regulatory text proposed in the NPRM, as described
below. The rationale for the proposed rule and the reasoning provided
in the proposed rule preamble remain valid, except as distinguished in
this regulatory preamble.
---------------------------------------------------------------------------
\40\ 88 FR 11704.
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1. Removing Provisions Implementing the Proclamation Bar IFR and the
TCT Bar Final Rule
Consistent with the proposed rule, Circumvention of Lawful
Pathways, 88 FR 11704, 11727-28 (Feb. 23, 2023), the Departments have
added amendatory instructions to remove provisions enacted to implement
the bars to asylum eligibility established in an interim final rule
(``IFR'') entitled, Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018) (``Proclamation Bar IFR''), and a final rule
entitled, Asylum Eligibility and Procedural Modifications, 85 FR 82260
(Dec. 17, 2020) (``TCT Bar Final Rule'').\41\
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\41\ The TCT Bar Final Rule amended an earlier IFR on the same
topic. See Asylum Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019). The IFR was vacated prior to the issuance of
the TCT Bar Final Rule. Additionally, where the Departments refer to
the ``Proclamation Bar'' or ``TCT Bar'' without including ``IFR'' or
``Final Rule,'' the Departments are referring to the bars as applied
and not to the rulemaking documents that implemented them.
---------------------------------------------------------------------------
To remove the provisions enacted to implement the Proclamation Bar
IFR and TCT Bar Final Rule, the Departments have made the following
changes:
<bullet> removed and reserved paragraphs 8 CFR 208.13(c)(3) and
1208.13(c)(3), which previously included the requirements for the
Proclamation Bar IFR's applicability;
<bullet> removed and reserved paragraphs 8 CFR 208.13(c)(4) and
1208.13(c)(4), which previously included the requirements for the TCT
Bar Final Rule's applicability;
<bullet> removed and reserved paragraphs 8 CFR 208.13(c)(5) and
1208.13(c)(5), which provided that determinations made with regard to
whether an applicant met one of the exceptions to the TCT Bar Final
Rule would not bind Federal departments or agencies with respect to
certain later adjudications;
<bullet> amended 8 CFR 208.30(e)(5) to remove paragraphs (ii) and
(iii), which regard application during credible fear of the
Proclamation Bar IFR and TCT Bar Final Rule, respectively;
<bullet> removed reference to 8 CFR 208.30(e)(5)(ii) through (iv)
from what was previously (i) and redesignated (i) as (e)(5);
<bullet> amended 8 CFR 1003.42(d) to remove paragraphs (1) and (2)
and redesignated paragraph (3) as (d) because paragraphs (d)(1) and (2)
provided the standard of review for Proclamation Bar and TCT Bar
determinations made during credible fear screenings; and
<bullet> removed and reserved 8 CFR 1208.30(g)(1), which provided
instructions to IJs regarding the application of the Proclamation Bar
and the TCT Bar during credible fear reviews.
2. Applicability of Rebuttable Presumption After the Two-Year Period
The rule applies to certain noncitizens who enter during the two-
year period in any asylum application they submit, regardless of when
the application is filed or if the noncitizen makes subsequent entries.
See 8 CFR 208.13(f) (``For applications filed by aliens who entered the
United States between May 11, 2023, and May 11, 2025, also refer to the
provisions on asylum eligibility described in Sec. 208.33.''); 8 CFR
1208.13(f) (same); 8 CFR 208.33(a)(1), 1208.33(a)(1) (providing that
the rebuttable presumption applies to noncitizens who enter the United
States from Mexico at the southwest land border or adjacent coastal
borders without documents sufficient for lawful admission between the
effective date and a date 24-months later and after the end of
implementation of the Title 42 public health Order with certain
exceptions).
[[Page 31320]]
To remove any potential ambiguity regarding the ongoing applicability
of the lawful pathways rebuttable presumption, the final rule makes the
presumption's ongoing applicability explicit in 8 CFR 208.33(c)(1) and
1208.33(d)(1) by stating that the lawful pathways condition on
eligibility shall apply to ``any asylum application'' that is filed by
a covered noncitizen ``regardless of when the application is filed and
adjudicated.''
The Departments have exempted from this ongoing application of the
rebuttable presumption certain noncitizens who enter the United States
during the two-year period while under the age of 18 and who later seek
asylum as principal applicants after the two-year period. In the NPRM,
the Departments requested comment on ``[w]hether any further regulatory
provisions should be added or amended to address the application of the
rebuttable presumption in adjudications that take place after the
rule's sunset date.'' 88 FR at 11708. After reviewing comments raising
concerns about the impact of the rule on children who arrive as part of
a family unit and who are thus subject to the decision-making of their
parents, the Departments have decided to adopt a provision excepting
such children from the rule in certain circumstances after the two-year
period ends. See 8 CFR 208.33(c)(2), 1208.33(d)(2). The Departments
recognize that children who enter with their families are generally
traveling due to their parents' decision-making. Exempting children
from the rebuttable presumption entirely would mean, under the rule,
that all family units that include minor children would also be
exempted, which could incentivize families who otherwise would not make
the dangerous journey to do so. And if the rule were amended to only
exempt the child, it could inadvertently lead to the separation of a
family in many cases because every child would have to be treated
separately from their family during the credible fear screening as they
would not be subject to the rebuttable presumption but their parents
could be.
Although accompanied children remain subject to the rebuttable
presumption generally, the Departments have determined that the
presumption should not apply to them in any application for asylum they
file after the two-year period, but only if they apply as a principal
(as opposed to a derivative) applicant. The Departments believe this
exception to the general applicability provision balances the interest
in ensuring the rebuttable presumption has an impact on behavior, while
at the same time recognizing the special circumstance of children who
enter in a manner that triggers the rebuttable presumption, likely
without intending to do so or being able to form an understanding of
the consequences. Specifically, if the Departments were to extend this
exception to all children after the two-year period, even if they
applied only as a derivative, the Departments would risk incentivizing
families to seek to prolong their proceedings to file their asylum
applications after the two-year period expires, undermining the
Departments' interest in efficient adjudications. In addition, any
family that did so would be able to avoid the applicability of the
presumption entirely, by virtue of the rule's family unity provision.
The Departments have decided not to include such a broad exemption, in
light of the urgent need to disincentivize a further surge in irregular
migration.
3. Expansion of Applicability to Adjacent Coastal Borders
As proposed in the NPRM, the rule would apply to certain
noncitizens who enter the United States at the SWB--that is, ``along
the entirety of the U.S. land border with Mexico.'' 88 FR at 11704 n.1.
The Departments received comments that applying the rule only to those
who enter the United States from Mexico across the U.S.-Mexico land
border would inadvertently incentivize noncitizens without documents
sufficient for lawful admission to circumvent the land border by making
a hazardous attempt to reach the United States by sea. In this final
rule, the Departments have decided to modify 8 CFR 208.33(a)(1) and 8
CFR 1208.33(a)(1) to provide that the rule's rebuttable presumption of
ineligibility for asylum applies to noncitizens who enter the United
States from Mexico at ``adjacent coastal borders.'' The term ``adjacent
coastal borders'' refers to any coastal border at or near the U.S.-
Mexico border. This modification therefore means that the rule's
rebuttable presumption of ineligibility for asylum applies to
noncitizens who enter the United States at such a border after
traveling from Mexico and who have circumvented the U.S.-Mexico land
border.
This modification mirrors the geographic reach of the CDC's Title
42 public health Order, which likewise applied--as relevant here--to
certain covered noncitizens traveling from Mexico who would otherwise
be introduced into a congregate setting ``at or near the U.S. land and
adjacent coastal borders.'' See 86 FR at 42841. Because the Title 42
public health Order did not define the phrase ``adjacent coastal
borders,'' its meaning was developed during the public health Order's
implementation. Specifically, as implemented by CBP, the term
``adjacent coastal borders'' was interpreted to apply to the same
population as the Amended CDC Order issued in May 2020, which first
introduced the concept of ``coastal'' application. The Amended Order
applied to ``persons traveling from Canada or Mexico (regardless of
their country of origin) who would otherwise be introduced into a
congregate setting in a land or coastal POE or Border Patrol station at
or near the U.S. border with Canada or Mexico, subject to exceptions.''
\42\ With regard to persons traveling from Mexico, in line with the
interpretation above, CBP implemented the Title 42 public health Order
as covering any coastal border adjacent to the U.S.-Mexico border
reached by an individual traveling from Mexico and landing within the
United States having circumvented the U.S.-Mexico land border. Applying
the same geographic reach that has been applied by CBP for the past
three years to this rule will avoid the risk that smugglers would
exploit what could be perceived as a new ``loophole'' following the
lifting of the Title 42 public health Order to persuade migrants to
make a perilous crossing to the United States from Mexico by sea. In
DHS's experience, that risk may well materialize, as smugglers
routinely prey on migrants using perceived changes in U.S. immigration
law.\43\ Any such campaign by smugglers to persuade more migrants to
circumvent the land border would result in life-threatening risks for
migrants and DHS personnel, given the elevated danger associated with
maritime crossings. As just one example of how dangerous such attempts
can be, the Departments note that in March 2023, two suspected human
smuggling boats from Mexico capsized and eight
[[Page 31321]]
people died off the coast near San Diego, California.\44\ This
incident, as well as the increases in maritime migration over the past
few years, as discussed further in Section V of this preamble, and
commenters' concerns that the NPRM would have encouraged migration by
sea, as discussed further in Section IV.B.8.i of this preamble, have
led the Departments to extend the rebuttable presumption to the
adjacent coastal borders. Specifically, in the interest of ensuring
that this rule is not used to encourage intending migrants to undertake
attempts that could end in similar tragedies, the Departments believe
it is important that the text of 8 CFR 208.33(a)(1) and 8 CFR
1208.33(a)(1) make clear that the rule's presumption applies equally to
noncitizens who arrive from Mexico on coasts adjacent to the southwest
land border.
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\42\ See Amendment and Extension of Order Under Sections 362 and
365 of the Public Service Act; Order Suspending Introduction of
Certain Persons from Countries Where a Communicable Disease Exists,
85 FR 31503 (May 26, 2020); CBP, CBP COVID-19 Response: Suspension
of Entries and Imports Concept of Operations 1-3 (May 20, 2020),
<a href="https://www.cbp.gov/document/foia-record/title-42">https://www.cbp.gov/document/foia-record/title-42</a>.
\43\ See Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
<a href="https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media">https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media</a> (``A review of social
media groups and pages identified by migrants showed . . . dubious
offers of coyote or legal services, false claims about conditions
along the route, misinformation about points of entry at which
officials waive the rules, and baseless rumors about changes to
immigration law.'').
\44\ See Karen Kucher et al., 8 Reported Dead After 2 Suspected
Smuggling Boats Crash at Black's Beach in San Diego, L.A. Times,
Mar. 12, 2023, <a href="https://www.latimes.com/california/story/2023-03-12/8-reported-dead-after-2-suspected-smuggling-boats-crash-at-blacks-beach-in-san-diego">https://www.latimes.com/california/story/2023-03-12/8-reported-dead-after-2-suspected-smuggling-boats-crash-at-blacks-beach-in-san-diego</a>; Wendy Fry, An Endless Fight: As Border
Infrastructure on Land Improves, Smugglers Take to the Water, San
Diego Tribune, Nov. 6, 2019, <a href="https://www.sandiegouniontribune.com/news/border-baja-california/story/2019-11-06/an-endless-fight-as-border-infrastructure-on-land-improves-smugglers-take-to-the-water">https://www.sandiegouniontribune.com/news/border-baja-california/story/2019-11-06/an-endless-fight-as-border-infrastructure-on-land-improves-smugglers-take-to-the-water</a>.
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4. Clarification of Meaning of ``Final Decision''
As was proposed in the NPRM, the rule excepts from the rebuttable
presumption noncitizens who sought asylum or other protection in
another country through which they traveled and received a ``final
decision'' denying that application. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). The Departments have amended this paragraph to
further define what constitutes a ``final decision'' for the purposes
of this exception. With this change, the final rule specifies that a
``final decision includes any denial by a foreign government of the
applicant's claim for asylum or other protection through one or more of
that government's pathways for that claim.'' Id. The provision further
states that a ``final decision does not include a determination by a
foreign government that the noncitizen abandoned the claim.'' Id. The
Departments have made this change in response to comments, as discussed
below, and to provide clarity that a noncitizen must in fact pursue the
claim since a denial based on abandonment would be insufficient.
5. Exception for Unaccompanied Children
The NPRM provided that ``[u]naccompanied alien children, as defined
in 6 U.S.C. 279(g)(2), are not subject to paragraph (a)(1) of this
section.'' See 88 FR at 11750-51 (proposed 8 CFR 208.33(b),
1208.33(b)). The Departments have modified the proposed language to
explicitly state that this exception applies to noncitizens who were
UCs at the time of entry.\45\ 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
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\45\ Numerous commenters recognized that the NPRM proposed an
exception for UCs, but did not indicate a clear understanding of
whether this exception applied to those who were UCs at the time of
entry or at the time of adjudication.
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This added language makes clear that the UC exception aligns with
other exceptions in this rule, which are based upon conditions at the
time of a noncitizen's presentation at a POE, see 8 CFR 208.33(a)(2),
1208.33(a)(2), and more closely aligns the regulatory text with the
Departments' stated purpose in the NPRM that ``unaccompanied children
would be categorically excepted from the rebuttable presumption,'' 88
FR at 11724.
6. Expansion of Family Unity Provision
The NPRM provided that where a principal applicant is eligible for
statutory withholding of removal or CAT withholding and would be
granted asylum but for the presumption, and where an accompanying
spouse or child does not independently qualify for asylum or other
protection from removal, the presumption shall be deemed rebutted as an
exceptionally compelling circumstance. See 88 FR at 11752 (proposed 8
CFR 1208.33(d)). Commenters raised concerns that excluding asylum
applicants who travel without their families may inadvertently
incentivize families to engage in irregular migration together so as
not to risk that the principal applicant would be prevented from later
applying for their family members to join them. This could involve
making a dangerous journey with vulnerable family members, such as
children. Accordingly, as discussed in Section IV.E.7.ii of this
preamble, in response to these comments, the Departments have expanded
the provision to also cover principal asylum applicants who have a
spouse or child who would be eligible to follow to join that applicant
as described in section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A). See 8 CFR 1208.33(c).
7. Other Changes
In addition to the changes this final rule makes to the NPRM
detailed above, this final rule also makes other changes to the
regulatory text set out in the NPRM.
First, the Departments have reorganized and made other edits to
proposed 8 CFR 208.33(a) and 1208.33(a) to improve clarity for
noncitizens, counsel appearing before the Departments, other members of
the public, and adjudicators. For example, the Departments added the
exception for unaccompanied children to 8 CFR 208.33(a)(2)(i) and
1208.33(a)(2)(i) rather than maintaining it as a standalone paragraph
at 8 CFR 208.33(b) and 1208.33(b). Similarly, the Departments added
headings and additional guideposts within 8 CFR 208.33(a) and
1208.33(a). Second, the Departments revised 8 CFR 208.33 and 1208.33 to
move instructions from 8 CFR 208.33 to 8 CFR 1208.33 regarding IJ
review that are better placed in EOIR's regulations. For example, the
Departments removed the sentence at proposed 8 CFR 208.33(c)(2)(ii)
stating that noncitizens may apply for asylum, withholding of removal,
and protection under the CAT in removal proceedings and included that
at new 8 CFR 1208.33(b)(4). These revisions do not change the meaning
of those provisions.
D. Rule Provisions
The rule contains the following key provisions:
<bullet> The rule imposes a rebuttable presumption of ineligibility
for asylum upon certain noncitizens who enter the United States from
Mexico at the southwest land border or adjacent coastal borders without
documents sufficient for lawful admission as described in INA
212(a)(7), 8 U.S.C. 1182(a)(7). See 8 CFR 208.33(a)(1), 1208.33(a)(1).
The rebuttable presumption applies to only those noncitizens whose
entry was (1) between May 11, 2023 and May 11, 2025; (2) subsequent to
the end of implementation of the Title 42 public health Order; and (3)
after the noncitizen traveled through a country other than the
noncitizen's country of citizenship, nationality, or, if stateless,
last habitual residence, that is a party to 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'') or 1967 Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268
(``Refugee Protocol''). See 8 CFR 208.33(a)(1)(i) through (iii),
1208.33(a)(1)(i) through (iii).
[[Page 31322]]
<bullet> The rule excepts from the rebuttable presumption any
noncitizen who is an unaccompanied child as defined in 6 U.S.C.
279(g)(2). See 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
<bullet> The rule also excepts from the rebuttable presumption a
noncitizen if the noncitizen or a member of the noncitizen's family
with whom the noncitizen is traveling (1) was provided appropriate
authorization to travel to the United States to seek parole, pursuant
to a DHS-approved parole process; (2) presented at a POE, pursuant to a
pre-scheduled time and place, or presented at a POE without a pre-
scheduled time and place, if the noncitizen demonstrates by a
preponderance of the evidence that it was not possible to access or use
the DHS scheduling system due to language barrier, illiteracy,
significant technical failure, or other ongoing and serious obstacle;
or (3) sought asylum or other protection in a country through which the
noncitizen traveled and received a final decision denying that
application. See id. 208.33(a)(2)(ii), 1208.33(a)(2)(ii).
<bullet> The rule allows a noncitizen to rebut the presumption by
demonstrating by a preponderance of the evidence that exceptionally
compelling circumstances exist. A noncitizen necessarily rebuts the
presumption if they demonstrate by a preponderance of the evidence that
the noncitizen, or a member of the noncitizen's family with whom the
noncitizen is traveling, (1) faced an acute medical emergency; (2)
faced an imminent and extreme threat to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder; or (3)
satisfied the definition of ``victim of a severe form of trafficking in
persons'' provided in 8 CFR 214.11(a). See id. 208.33(a)(3),
1208.33(a)(3). In addition, as a measure to ensure family unity, the
rule provides that in removal proceedings pursuant to section 240 of
the INA, 8 U.S.C. 1229a (``section 240 removal proceedings''), where a
principal asylum applicant is eligible for statutory withholding of
removal or CAT withholding and would be granted asylum but for the
rebuttable presumption, and where an accompanying spouse or child does
not independently qualify for asylum or other protection from removal
or where the principal asylum applicant has a spouse or child who would
be eligible to follow to join them if they are granted asylum, as
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A),
the presumption is deemed rebutted as an exceptionally compelling
circumstance. See 8 CFR 1208.33(c).
<bullet> The rule establishes procedures, applicable in the
expedited removal context, under which AOs will determine whether the
noncitizen has made a sufficient showing that the rebuttable
presumption does not apply or that they meet an exception to or can
rebut the presumption. See id. 208.33(b). If the AO determines that the
rebuttable presumption does not apply or the noncitizen falls within an
exception or has rebutted the presumption, the general procedures in 8
CFR 208.30 apply. See id. 208.33(b)(1)(ii). On the other hand, if the
AO determines that the rebuttable presumption does apply and no
exception or rebuttal ground applies, the AO will consider whether the
noncitizen has established a reasonable possibility of persecution or
torture with respect to the identified country or countries of removal.
See id. 208.33(b)(1)(i), 208.33(b)(2).
<bullet> The rule provides that an AO's adverse determination as to
the applicability of the rebuttable presumption, whether an exception
applies or the presumption has been rebutted, and whether the
noncitizen has established a reasonable possibility of persecution or
torture, are all subject to de novo IJ review. See id.
208.33(b)(2)(iii) through (v), 1208.33(b). The noncitizen must request
such review by so indicating on a Record of Negative Fear Finding and
Request for Review by Immigration Judge. See id. 208.33(b)(2)(iv) and
(v), 1208.33(b)(1).
<bullet> The rule establishes procedures for such IJ review.
Specifically, if the IJ determines that the noncitizen has made a
sufficient showing that the rebuttable presumption does not apply to
them or that they meet an exception to or can rebut the presumption,
and that the noncitizen has established a significant possibility of
eligibility for asylum, statutory withholding of removal, or CAT
withholding, the IJ issues a positive credible fear finding and the
case proceeds under existing procedures at 8 CFR 1208.30(g)(2)(iv)(B).
See id. 208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that
the rebuttable presumption applies and has not been rebutted and no
exception is applicable, but the noncitizen has established a
reasonable possibility of persecution or torture with respect to the
identified country or countries of removal, the IJ will issue a
positive credible fear finding and DHS will issue a Form I-862, Notice
to Appear, to commence section 240 removal proceedings. See id.
208.33(b)(2)(v)(B), 1208.33(b)(2)(ii). And finally, if the IJ issues a
negative credible fear determination, the case is returned to DHS for
removal of the noncitizen. See id. 208.33(b)(2)(v)(C),
1208.33(b)(2)(ii). In such a circumstance, the noncitizen may not
appeal the IJ's decision or request that U.S. Citizenship and
Immigration Services (``USCIS'') reconsider the AO's negative
determination, although USCIS may, in its sole discretion, reconsider a
negative determination. See id. 208.33(b)(2)(v)(C).
<bullet> The rule provides that a noncitizen who is found to be
subject to the lawful pathways condition during expedited removal
proceedings may, if placed in section 240 removal proceedings, apply
for asylum, statutory withholding of removal, or CAT protection, or any
other form of relief or protection for which the noncitizen is eligible
during those removal proceedings. See id. 1208.33(b)(4).
<bullet> The rule declines to adopt the Proclamation Bar IFR on a
permanent basis and removes the language effectuating the Proclamation
Bar. Specifically, the rule removes and reserves paragraphs 8 CFR
208.13(c)(3) and 1208.13(c)(3), which previously included the
requirements for the bar's applicability.
<bullet> The rule removes regulatory provisions implementing the
TCT Bar Final Rule. The rule removes and reserves paragraphs 8 CFR
208.13(c)(4) and 1208.13(c)(4), which previously included the
requirements for the TCT Bar Final Rule's applicability. The rule also
removes and reserves paragraphs 8 CFR 208.13(c)(5) and 1208.13(c)(5),
which provided that determinations made with regard to whether an
applicant met one of the exceptions to the TCT Bar Final Rule would not
bind Federal departments or agencies with respect to certain later
adjudications. Given the removal of the TCT Bar Final Rule and its
implementing provisions, these provisions are no longer necessary.
<bullet> The rule also amends the CFR to remove provisions
implementing the Proclamation Bar IFR and TCT Bar Final Rule during the
credible fear process. The rule removes 8 CFR 208.30(e)(5)(ii) and
(iii), which implemented the Proclamation Bar IFR and TCT Bar Final
Rule, respectively. The rule also removes reference to (ii) though (iv)
from what was previously (i) and redesignates (i) as (e)(5). Similarly,
the rule also amends provisions relating to IJ standard of review for
Proclamation Bar and TCT Bar determinations by removing 8 CFR
1003.42(d)(2) and (3), and redesignates 8 CFR 1003.42(d)(1) as
paragraph (d). Finally, the rule removes and reserves 8 CFR
1208.30(g)(1), which provided instructions to IJs regarding the
application of the Proclamation Bar
[[Page 31323]]
and the TCT Bar during credible fear reviews.
<bullet> The rule contains a special provision providing that the
rebuttable presumption does not apply to an asylum application filed
after May 11, 2025, if the noncitizen was under the age of 18 at the
time of entry, and the noncitizen is applying for asylum as a principal
applicant. See id. 208.33(c)(2), 1208.33(d)(2).
<bullet> The rule contains a severability clause reflecting the
Departments' intention that the rule's provisions be severable from
each other in the event that any aspect of the new provisions governing
the rebuttable presumption is held to be invalid or unenforceable by
its terms, or as applied to any person or circumstance. See id.
208.33(d), 1208.33(e).
III. Legal Authority
The Secretary and the Attorney General jointly issue this rule
pursuant to their shared and respective authorities concerning asylum,
statutory withholding of removal, and 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 while
maintaining many functions and authorities with the Attorney General,
including concurrently with the Secretary.
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 aliens,'' except insofar as
those laws assign functions to other agencies. INA 103(a)(1), 8 U.S.C.
1103(a)(1). The INA also grants the Secretary the authority to
establish regulations and take other actions ``necessary for carrying
out'' the Secretary's authority under the immigration laws, INA
103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6 U.S.C. 202.
The HSA charges the Attorney General with ``such authorities and
functions under [the INA] and all other laws relating to the
immigration and naturalization of aliens as were [previously] exercised
by the Executive Office for Immigration Review, or by the Attorney
General with respect to [EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1);
see also 6 U.S.C. 521. In addition, under the HSA, the Attorney General
retains authority to ``establish such regulations, . . . issue such
instructions, review such administrative determinations in immigration
proceedings, delegate such authority, and perform such other acts as
the Attorney General determines to be necessary for carrying out'' his
authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2).
Under the HSA, the Attorney General retains authority over the
conduct of section 240 removal proceedings. These adjudications are
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g), 8
U.S.C. 1103(g). With limited exceptions, IJs within DOJ adjudicate
asylum, statutory withholding of removal, and CAT protection
applications filed by noncitizens during the pendency of section 240
removal proceedings, including asylum applications referred by USCIS to
the immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA
240(a)(1), 8 U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8
CFR 1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532,
536-37 (7th Cir. 2018) (describing affirmative and defensive asylum
processes). The Board of Immigration Appeals (``BIA''), also within
DOJ, in turn hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1)
and (b)(3); see also Garland v. Ming Dai, 141 S. Ct. 1669, 1677-78
(2021) (describing appeals from IJ to BIA). In addition, the INA
provides that the ``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).
In addition to the separate authorities discussed above, the
Attorney General and the Secretary share some authorities. Section 208
of the INA, 8 U.S.C. 1158, authorizes the ``Secretary of Homeland
Security or the Attorney General'' to ``grant asylum'' to a noncitizen
``who has applied for asylum in accordance with the requirements and
procedures established by'' the Secretary or the Attorney General under
section 208 if the Secretary or the Attorney General determines that
the noncitizen is a refugee. INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).
Section 208 thereby authorizes the Secretary and the Attorney General
to ``establish[ ]'' ``requirements and procedures'' to govern asylum
applications. Id. The statute further authorizes them to ``establish,''
``by regulation,'' ``additional limitations and conditions, consistent
with'' section 208, under which a noncitizen ``shall be ineligible for
asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the
Attorney General to ``provide by regulation for any other conditions or
limitations on the consideration of an application for asylum not
inconsistent with [the INA]'').\46\ The INA also provides the Secretary
and Attorney General authority to publish regulatory amendments
governing their respective roles regarding apprehension, inspection and
admission, detention and removal, withholding of removal, deferral of
removal, and release of noncitizens encountered in the interior of the
United States or at or between POEs. See INA 235, 236, 241, 8 U.S.C.
1225, 1226, 1231.
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\46\ Under the HSA, the references to the ``Attorney General''
in the INA also 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. 6 U.S.C. 557.
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The HSA granted DHS the authority to adjudicate asylum applications
and to conduct credible fear interviews, make credible fear
determinations in the context of expedited removal, and to establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also 6 U.S.C. 271(b) (providing for the transfer of
adjudication of asylum and refugee applications from the Commissioner
of Immigration and Naturalization to the Director of the Bureau of
Citizenship and Immigration Services, now USCIS). Within DHS, the
Secretary has delegated some of those authorities to the Director of
USCIS, and USCIS AOs conduct credible fear interviews, make credible
fear determinations, and determine whether a noncitizen's asylum
application should be granted. See DHS, Delegation to the Bureau of
Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); 8 CFR
208.2(a), 208.9, 208.30.
The United States is a party to the Refugee Protocol, which
incorporates Articles 2 through 34 of the Refugee Convention. Article
33 of the Refugee Convention generally prohibits parties to the
Convention from expelling or returning (``refouler'') ``a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.'' 120%
Congress codified these obligations in the Refugee Act of 1980,
creating the precursor to what is now known as statutory withholding of
removal.\47\ The Supreme Court has long recognized that the United
States implements its non-refoulement obligations under Article 33 of
the Refugee Convention (via the
[[Page 31324]]
Refugee Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which
provides that a noncitizen may not be removed to a country where their
life or freedom would be threatened on account of one of the protected
grounds listed in Article 33 of the Refugee Convention.\48\ See INA
241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA
also authorizes the Secretary and the Attorney General to implement
statutory withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3). See INA 103(a)(1) and (3), (g)(1) and (2), 8 U.S.C.
1103(a)(1) and (3), (g)(1) and (2).
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\47\ Public Law 96-212, 94 Stat. 102 (``Refugee Act'').
\48\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999);
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987)
(distinguishing between Article 33's non-refoulement prohibition,
which aligns with what was then called withholding of deportation
and Article 34's call to ``facilitate the assimilation and
naturalization of refugees,'' which the Court found aligned with the
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158).
The Refugee Convention and Protocol are not self-executing. E.g.,
Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967
Protocol is not self-executing, nor does it confer any rights beyond
those granted by implementing domestic legislation.'').
---------------------------------------------------------------------------
The Departments also have authority to implement Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20,
1994). The Foreign Affairs Reform and Restructuring Act of 1998
(``FARRA'') provides the Departments with the authority to ``prescribe
regulations to implement the obligations of the United States under
Article 3 of the [CAT], subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention.'' Public Law 105-277,
div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 1231 note).
DHS and DOJ have implemented the United States' obligations under
Article 3 of the CAT in the CFR, consistent with FARRA. See, e.g., 8
CFR 208.16(c) through 208.18, 1208.16(c) through 1208.18; Regulations
Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999),
as corrected by 64 FR 13881 (Mar. 23, 1999).
This rule does not change the eligibility requirements for
statutory withholding of removal or CAT protection. As further
discussed below, the rule applies a ``reasonable possibility'' standard
in screenings for statutory withholding of removal and CAT protection
in cases where the presumption of asylum ineligibility is applied and
not rebutted. While the application of this standard is a change from
the prior practice in the expedited removal context, it is the same
standard used in protection screenings in other contexts and is
consistent with both domestic and international law. See 8 CFR 208.31.
IV. Public Comments and Responses
The Departments received 51,952 comments on the proposed rule, the
majority of which expressed opposition to the proposal. A range of
governmental and non-governmental entities, public officials, and
private persons submitted comments. The Departments summarize and
respond to the public comments below.
A. General Support
1. General Support
Comment: Many commenters stated their support for the rule overall.
Commenters emphasized the importance of border security, stating that
the Government must do what is necessary to both manage workloads at
the border and stop migrants from entering the United States without
permission.
Response: Promulgation of this rule is needed because, once the
Title 42 public health Order is lifted, the number of migrants
traveling to the United States without authorization is expected to
increase significantly, to a level that risks undermining the
Departments' ability to safely, effectively, and humanely enforce and
administer U.S. immigration law, including the asylum system. Such a
surge would also place additional pressure on States, local
communities, and non-governmental organization (``NGO'') partners both
along the border and in the interior of the United States.
To address these issues, the rule imposes a rebuttable presumption
of asylum ineligibility for certain migrants who enter the United
States outside of safe, orderly, and lawful pathways and without first
seeking protection in a third country they have traveled through en
route to the SWB, during a designated period of time. The rule (1)
incentivizes the use of multiple existing lawful, safe, and orderly
means for noncitizens to enter the United States to seek asylum and
other forms of protection; (2) continues to provide core protections
for noncitizens who would be threatened with persecution or torture in
other countries; and (3) builds upon ongoing efforts to share the
responsibility of providing asylum and other forms of protection to
deserving migrants with the United States' regional partners.
The successful implementation of the CHNV parole processes has
demonstrated that an increase in lawful pathways, when paired with
consequences for migrants who do not avail themselves of such pathways,
can incentivize the use of such pathways and undermine transnational
criminal organizations, such as smuggling operations. The rule, which
is fully consistent with domestic and international legal obligations,
provides the necessary consequences to maintain this incentive under
Title 8 authorities. In short, the Departments expect the rule, coupled
with an expansion of lawful, safe, and orderly pathways, to reduce the
number of noncitizens seeking to cross the SWB without authorization to
enter the United States.
The benefits of reducing the number of encounters include
protecting against overcrowding in border facilities; allowing for the
continued effective, humane, and efficient processing of noncitizens at
and between ports of entry; and helping to reduce reliance on dangerous
human smuggling networks that exploit migrants for financial gain. Even
where the rule applies, the presumption against asylum eligibility may
be rebutted in certain circumstances, such as where, at the time of the
noncitizen's entry into the United States, they or a family member with
whom they are traveling are experiencing an acute medical emergency or
an extreme and imminent threat to life or safety, or are a victim of a
severe form of trafficking. Moreover, DHS will still screen migrants
who cannot overcome the rebuttable presumption to determine if the
migrant has established a reasonable possibility of persecution for the
purposes of statutory withholding of removal or a reasonable
possibility of torture for the purposes of protection under the
regulations implementing the CAT. See 8 CFR 208.33(b)(2)(i). Should a
migrant receive a negative credible fear determination, they can also
seek review of the determination by an IJ. See 8 CFR 208.33(b)(2)(iii)
through (v). Those who are found to have credible fear due to a
reasonable possibility of persecution or torture will then have the
opportunity for further consideration of their protection claims via a
section 240 removal proceeding. See 8 CFR 208.33(b)(2)(ii).
2. Need, Effectiveness, and Rationale for the Rule
Comment: Commenters described the rule as a common-sense approach
to managing migration at the border and
[[Page 31325]]
discouraging illegal migration, while others stated that the rule would
contribute to the ``rule of law'' at the border. Other commenters noted
that a change such as that made by this rule is necessary, as it is
simply impossible to admit all migrants who want to enter the United
States. Some commenters stated that the rule is a reasonable solution
until Congress can take legislative action to address the issue. Other
commenters supported the rule's encouragement for migrants to first
seek protection in third countries they pass through before requesting
asylum at the SWB and asserted that such a requirement is standard in
international law; commenters further stated that the rule would
discourage ``asylum shoppers.'' Commenters stated that allowing
migrants to cross multiple countries en route to the United States
before claiming asylum defeats the true purpose of asylum. Some
commenters stated that migrants know that claiming asylum allows them
entry into the United States, and thus take advantage of the process.
Response: As noted above, the Departments have designed this rule
in response to the number of migrants expected to travel without
authorization to the United States after the lifting of the Title 42
public health Order, absent a policy change such as this one. In that
case, the circumstances likely to occur include the following: an
additional number of migrants anticipated to arrive at the border; the
severe strain on resources that this influx of migrants would cause
DHS; and a substantial resulting impact on U.S. Government operations,
as well as local communities. DHS's successful Uniting for Ukraine
(``U4U'') and CHNV parole processes--under which DHS coupled a
mechanism for noncitizens from these countries to seek entry to the
United States in a lawful, safe, and orderly manner with the imposition
of new consequences for those who cross the SWB without authorization--
have demonstrated that an increase in the availability of lawful
pathways paired with consequences for migrants who do not avail
themselves of such pathways can incentivize the use of lawful pathways
and undermine transnational criminal organizations, such as smuggling
operations. The Departments expect similar benefits from this rule,
especially a reduced number of encounters at the border, which will
help to protect against overcrowding in border facilities; allow for
the continued effective, humane, and efficient processing of
noncitizens at and between ports of entry; and reduce reliance on
dangerous human smuggling networks that exploit migrants for financial
gain.
The Departments designed the rule to strike a balance that
maintains safe and humane processing of migrants while also including
safeguards to protect especially vulnerable individuals. The rule
provides exceptions to the rebuttable presumption and allows migrants
to rebut the presumption in exceptionally compelling circumstances.
These exceptions and opportunities for rebuttal are meant to ensure
that migrants who are particularly vulnerable, who are in imminent
danger, or who could not access the lawful pathways provided are not
made ineligible for asylum by operation of the rebuttable presumption.
Those who are not excepted from and are unable to rebut the presumption
of ineligibility may still pursue statutory withholding of removal and
protection under the CAT. In addition, to further aid migrants, the
Departments plan to continue to work with foreign partners to expand
lawful pathways for migration, as well as expand the Departments'
mechanisms for lawful processing. Thus, the rule will disincentivize
irregular migration and instead incentivize migrants--including those
intending to seek asylum--to use lawful, safe, and orderly pathways to
enter the United States, or seek asylum or other protection in another
country through which they travel.
3. Mitigate Irregular Migration and the Associated Impacts
Comment: Many commenters expressed support for the rule for a
variety of reasons. Commenters supported the change in policy, noting
that this rule would result in a more efficient use of government
resources at the border. Commenters also supported the proposed rule's
use of a formal process for asylum applicants. Some commenters stated
their support for the rule because the journey to the SWB is dangerous
due to harsh conditions and smugglers, and this rule would weaken
smugglers and transnational criminal enterprises and reduce their
exploitation of migrants. Commenters also stated that incentivizing
migrants to present themselves at POEs would reduce their risk of
exploitation by human traffickers or other harm when attempting to
cross between POEs. Commenters commended the Departments for
prioritizing safe and orderly processing methods for those seeking
refuge. Some commenters indicated that border security is critical and
expressed concerns that malicious actors could enter the United States
more easily during a surge in migration.
Response: The Departments recognize these commenters' support for
the rule and agree that maintaining border security is critical. The
Departments agree that irregular migration is dangerous and can lead to
increased strain on SWB operations and resources, increased illegal
smuggling activity, and increased pressure on communities along the
SWB. The United States has taken several measures to meet the influx of
migrants crossing the SWB and is taking new steps to address increased
flows throughout the Western Hemisphere.\49\
---------------------------------------------------------------------------
\49\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
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However, the anticipated increase in the number of migrants
following the lifting of the Title 42 public health Order threatens to
exceed the Departments' capacity to safely and humanely process
migrants. By coupling the rule with additional lawful pathways and
allowing migrants to schedule their arrival at a SWB POE, currently via
the CBP One app, the rule will reduce the number of noncitizens seeking
to cross the SWB without authorization to enter the United States. This
reduction will protect against overcrowding in border facilities; allow
for the continued effective, humane, and efficient processing of
noncitizens at and between ports of entry; and help to reduce reliance
on dangerous human smuggling networks that exploit migrants for
financial gain. The Departments expect that this rule will result in
decreased strain on border states, local communities, and NGOs and,
accordingly, allow them to better absorb releases from CBP border
facilities and provide support to the migrant community. Ultimately,
this rule will disincentivize irregular migration and instead
incentivize migrants to use safe, orderly, and lawful pathways to the
United States or to seek protection in third countries.
4. Positive Impacts on Operations and Resources
Comment: Commenters supported the rule, stating that allowing
migrants to remain in the United States at the government's expense
while waiting for their asylum claim to be adjudicated is a waste of
government resources. Commenters said that the rule--specifically when
coupled with the expanded use of the CBP One app and the ability for
migrants to schedule appointments--would allow for more efficient
processing at the SWB. Commenters stated that, by decreasing
[[Page 31326]]
the number of migrants seeking asylum, the Departments would adjudicate
asylum claims much faster and decrease the amount of time migrants must
wait in the United States before receiving a final decision in their
case.
Response: The Departments recognize these commenters' support and
agree that the rule will have benefits for both those granted asylum
and the U.S. immigration system. The rule encourages noncitizens to use
lawful, safe, and orderly pathways to enter the United States, or seek
asylum or other protection in another country through which they
travel. The rule is designed to channel the high numbers of migrants
expected to seek protection in the United States following the
termination of the Title 42 public health Order into lawful, safe, and
orderly pathways and ensure they can be processed in an effective,
humane, and efficient manner. In addition, the Departments anticipate
that the use of the CBP One app--the current scheduling mechanism that
provides migrants with a means to schedule a time and place to present
themselves at a SWB POE--will allow CBP to streamline the processing of
noncitizens at POEs on the SWB and process significantly more
individuals in a safe and orderly manner.
Adjudication on the merits of an asylum claim for those who
establish credible fear and are placed into removal proceedings can be
a long process. Thirty-eight percent of all noncitizens who entered
along the SWB, received a positive credible fear determination, and
were placed into proceedings before EOIR between FY 2014 and FY 2019
remained in EOIR proceedings as of December 31, 2022.\50\ Further,
almost half (47 percent) of those in EOIR cases who received positive
credible fear determinations resulting from FY 2019 encounters
(referrals to EOIR) remained in proceedings as of December 31,
2022.\51\ Excluding in absentia orders, the mean completion time for
EOIR cases in FY 2022 was 3.7 years.\52\ Thus, those who have a valid
claim to asylum in the United States often wait years for a final
relief or protection decision; likewise, noncitizens who will
ultimately be found ineligible for asylum or other protection--which
occurs in the majority of cases--often have spent many years in the
United States prior to being ordered removed.
---------------------------------------------------------------------------
\50\ See OIS analysis of OIS Enforcement Lifecycle data based on
data through December 31, 2022.
\51\ Id.
\52\ See OIS analysis of DOJ EOIR data based on data through
March 31, 2023.
---------------------------------------------------------------------------
This lengthy adjudications process means that migrants who can
establish credible fear can expect to remain in the United States for
an extended period regardless of whether they will ultimately obtain
asylum status at an EOIR hearing on the merits. Allowing a migrant to
remain in the United States for years before ultimately determining the
migrant is ineligible for asylum or other protection is inefficient,
risks creating a pull factor for other intending migrants, and runs
counter to principles of judicial fairness, including the swift
adjudication of claims. As discussed in the NPRM, see 88 FR at 11737,
and below at Section IV.B.2 of this preamble, the Departments have
determined that this rule will lead to increased efficiencies in the
asylum adjudications process so that claims can be adjudicated without
a lengthy delay.
5. Other Support
Comment: Commenters agreed that the Departments have the legal
authority to restrict asylum eligibility based on a migrant's failure
to seek protection in a third country that they have traveled through
on route to the SWB and that such a policy is consistent with both
domestic and international law. Commenters stated that the rule was
necessary because most migrants do not have legitimate asylum claims,
noting low grant rates by EOIR, and are instead seeking economic
opportunities in the United States. Other commenters expressed general
support for the rule and stated a belief that asylum seekers do not
have legitimate claims because they may be coached by NGOs or other
organizations.At least one commenter stated that if a migrant traveled
through a third country with a legitimate asylum process on their way
to the United States, DHS should assume that the migrant is not really
in fear for their life; otherwise, the U.S. asylum system would be used
for economic migration, the demand for which should be addressed by
other means. Another commenter said that the proposed rule encourages
asylum-seekers to use the ``front door'' by presenting at POEs and
fulfills domestic and international legal obligations by removing
eligibility for asylum for those who fail to do so while maintaining
access to statutory withholding of removal and protection under the
CAT. The commenter noted that countries are within their rights to
limit access to asylum. The commenter also stated that many individuals
are barred from asylum eligibility for reasons such as fraud, criminal
convictions, and illegal reentry, and that the proposed rule would add
those who do not avail themselves of asylum in the nearest country and
do not apply at a POE to this list, which should limit further unlawful
entries and use of government resources. Some commenters supported the
rule and suggested that the Government disseminate information about
the rule in other countries to ensure migrants planning to seek asylum
are aware of both the asylum process and the consequences of non-
compliance.
Response: As discussed further below in Section IV.B.D, the
Departments agree that the rule is consistent with U.S. obligations
under both domestic and international law, including the INA; the
Refugee Convention; the Refugee Protocol, which incorporates Articles 2
through 34 of the Refugee Convention; and the CAT. While the
Departments appreciate these commenters' support for the rule, the
Departments emphasize that this rule is necessary to prevent the
expected increase in the number of migrants who would otherwise seek to
travel without authorization to the United States after the termination
of the Title 42 public health Order, which would risk undermining the
Departments' ability to safely, effectively, and humanely enforce and
administer U.S. immigration law, including the asylum system. In other
words, the Departments do not rely on the alternative goals or bases of
support for the rule expressed in the comments summarized above.
The Departments appreciate the importance of disseminating
information about the rule to the public, including intending migrants,
and are planning a robust communication effort in conjunction with and
immediately following the publication of this rule.
B. General Opposition
1. General Opposition
Comment: The Departments received many comments expressing general
opposition to the rule. Some commenters expressed opposition to the
rule and encouraged the Administration to withdraw it, without further
explanation. Commenters also stated, without explanation, that the rule
would allow future administrations the ability to decide which
nationalities are afforded protections, instead of making protections
available for everyone in need. Other commenters stated the rule
creates barriers, not pathways, for asylum seekers.
Response: The Departments take seriously the concerns expressed by
commenters who generally oppose the rule. Because some of these
comments failed to articulate specific reasoning underlying the general
opposition, the
[[Page 31327]]
Departments are unable to provide a more detailed response to those
comments. In general, the Departments emphasize that this rule is
necessary to ensure that, after the lifting of the Title 42 public
health Order, protection claims made by noncitizens encountered at the
SWB can be processed in a manner that is effective, humane, and
efficient. The rule is also designed to reduce overcrowding at DHS
facilities and reduce migrants' reliance on exploitive smuggling
networks. The Departments intend this rule to work in conjunction with
other initiatives that expand lawful pathways to enter the United
States, and thereby incentivize safe, orderly, lawful migration over
dangerous, irregular forms of migration. Although some lawful pathways,
which exist separate from this rule, are available only to particular
nationalities, this rule does not deny protection on the basis of
nationality. A noncitizen of any nationality may avoid the rebuttable
presumption by, for instance, presenting at a POE pursuant to a pre-
scheduled time and place. As discussed in the NPRM and further below,
the rule's presumption against asylum eligibility only applies to those
who enter during a 2-year period, is rebuttable, and contains multiple
exceptions to prevent undue harm to noncitizens with meritorious
protection claims.
2. Need, Effectiveness, and Rationale for the Rule
Comment: Commenters asserted that the Departments' concerns about a
future surge of migration after the end of the Title 42 public health
Order are speculative and unsupported. One commenter said that the
surge numbers were unreliable at best, that entries between POEs were
higher two decades ago, and that the surge could in part be the result
of attempted suppression of normal migration. Some commenters
questioned the Departments' planning projection of the number of border
encounters it expects when the Title 42 public health Order is lifted
as a valid justification of the NPRM. Another commenter stated that the
numbers of unauthorized unique individuals detained at the border are
far from an all-time high or a record, and that attempts to enter the
country undetected have plummeted. One commenter stated that the Title
42 public health Order increased the percentage of individuals
attempting repeated crossings at the border, which has artificially
inflated CBP's border apprehension statistics, and thereby overstated
the scale of the problem at the border. Some commenters stated that the
public is unable to properly evaluate the Departments' data used to
justify the rule because the ``DHS SWB Encounter Planning Model
generated January 6, 2023'' cited in the NPRM, e.g., 88 FR at 11705
n.11, does not have a link to the model and it does not provide
information on methodology, data sources, and alternative figures.
Response: The Departments strongly disagree that the concerns
stated in the NPRM regarding an ongoing and potential further surge of
migration are speculative or unsupported. As noted in the NPRM, for the
30 days ending December 24, 2022, total daily encounters along the SWB
consistently fluctuated between approximately 7,100 and 9,700 per day,
averaging approximately 8,500 per day, with encounters exceeding 9,000
per day on 12 different occasions during this 30-day stretch.\53\ 88 FR
at 11704-05. While commenters are correct that the Title 42 public
health Order has increased the percentage of repeat crossing attempts
relative to the 2010s, since 2022 over 97 percent of extra-regional
migrants (i.e., migrants not from Mexico or Northern Central America
\54\)--the people representing the greatest processing challenge--are
unique encounters.\55\ Encounter totals reached an all-time high in FY
2022, and they remain at historically high levels even as encounters of
CHNV nationals have fallen in recent months.\56\
---------------------------------------------------------------------------
\53\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\54\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\55\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\56\ Concrete data on unique versus repeat encounters are only
available since 2010. During that period, for the years prior to the
implementation of Title 42 expulsions, the percentage of encounters
that were unique increased each year from 2010-2019. OIS analysis of
OIS Persist Dataset based on data through March 31, 2023. While
specific data on numbers of unique encounters are not available
prior to 2010, it is widely accepted that the years before the 2010,
and particularly the years before 2000, were characterized by much
larger numbers of repeat encounters, as most encounters were of
Mexican nationals who were permitted to return to Mexico without
being subject to formal removal proceedings or other enforcement
consequences. See also DHS, FY 2021 Border Security Metrics Report
(Apr. 27, 2022), <a href="https://www.dhs.gov/immigration-statistics/border-security/border-security-metrics-report">https://www.dhs.gov/immigration-statistics/border-security/border-security-metrics-report</a>.
---------------------------------------------------------------------------
OIS leads an interagency working group that produces a roughly bi-
weekly SWB encounter projection used for operational planning, policy
development, and short-term budget planning. The model used to produce
encounter projections every two to four weeks is a mixed-method
approach that combines a statistical predictive model with subject
matter expertise intended to provide informed estimates of future
migration flow and trends. The mixed methods approach blends multiple
types of models through an ensemble approach of model averaging.\57\
The model includes encounter data disaggregated by country and
demographic characteristics going back to FY 2013, data on
apprehensions of third country nationals by Mexican enforcement
agencies, and economic data. DHS uses the encounter projection to
generate a range of planning models, including ``moderately-high''
planning models that are based on the 68 percent upper bound of the
forecast interval and ``high'' planning models based on the 95 percent
upper bound of the forecast interval.
---------------------------------------------------------------------------
\57\ Blending multiple models and basing predictions on prior
data has been understood to improve modeling accuracy. See, e.g.,
Spyros Makridakis et al., Forecasting in Social Settings: The State
of the Art, 36 Int'l J. Forecasting 15, 16 (2020) (noting that it
has ``stood the test of time [that] combining forecasts improves
[forecast] accuracy''); The Forecasting Collaborative, Insights into
the Accuracy of Social Scientists' Forecasts of Societal Change,
Nat. Hum. Behaviour, Feb. 9, 2023, <a href="https://doi.org/10.1038/s41562-022-01517-1">https://doi.org/10.1038/s41562-022-01517-1</a> (comparing forecasting methods and suggesting that
forecasting teams may materially improve accuracy by, for instance,
basing predictions on prior data and including scientific experts
and multidisciplinary team members).
---------------------------------------------------------------------------
Encounter projections are, of course, subject to some degree of
uncertainty. International migration is an exceedingly complex process
shaped by family and community networks, labor markets, environmental
and security-related push factors, and rapidly evolving criminal
smuggling networks, among other factors. Recent unprecedented changes
in migration flows have further complicated the task of predicting
future migration flows with precision. As recently as the 2000s,
unauthorized migration to the SWB consisted almost entirely of single
adults from Mexico.\58\ Families and UCs accounted for increasing
shares of unauthorized migrants in the 2010s, as did migrants from
Northern Central America; and ``extra-regional'' migrants have driven
increased flows in the 2020s, accounting for an absolute majority of
encounters in FY 2023
[[Page 31328]]
YTD.\59\ The OIS working group takes these recent changes in migration
flows into account in preparing its roughly bi-weekly encounter
projection models.
---------------------------------------------------------------------------
\58\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 97 percent of all
administrative arrests by the legacy Immigration and Nationality
Service from 1981-1999. According to OIS Production data, Mexican
nationals also accounted for 97 percent of SWB encounters from 2000-
2003. Mexico's share of SWB border encounters fell to 94 percent in
2004, an all-time low, then averaged 91 percent for the remainder of
the 2000s. OIS analysis of OIS Yearbook on Immigration Statistics,
1981-1999; OIS Production Data, 2000-2009.
\59\ Families and unaccompanied children accounted for an
estimated 11 percent of SWB encounters in 2013, rising to 62 percent
in 2019, and have averaged 30 percent from 2020 through March 2023.
Data on unaccompanied children were first collected in 2008 and data
on other family statuses were first collected in 2013, but not
universally collected until 2016. Mexican nationals accounted for an
average of 57 percent of SWB encounters from 2013-2015, fell to an
all-time low of 24 percent in 2019 (when Northern Central Americans
accounted for 64 percent of the total), and have averaged 35 percent
of encounters from 2021 through March 2023. Extra regional nationals
accounted for an average of 9 percent of SWB encounters from 2013-
2018, 12 percent from 2019-2020, and account for 52 percent in the
first six months of FY 2023. OIS analysis of OIS Persist Dataset
based on data through March 31, 2023.
---------------------------------------------------------------------------
Demographic changes in migration flows have introduced new
challenges in the field of border enforcement. For decades the
challenge was to detect and interdict Mexican nationals seeking to
evade detection and to return them to Mexico, which generally was
cooperative in accepting back its nationals across the land border.
Today's set of challenges is broader; the United States Government must
humanely process family units and UCs and consider tens of thousands of
asylum claims, granting relief or protection where appropriate and
imposing enforcement consequences (such as removal or return, and in
some cases criminal charges), all with limited processing resources and
challenges relating to barriers to repatriations for nationals from
certain countries. These changes have significant implications,
requiring substantial resources from CBP, ICE, USCIS, EOIR, and HHS.
An additional consideration in how the Departments utilize
encounter projections for operational planning and budgeting is that it
takes weeks or months to put new enforcement resources in place, while
removing such resources takes much less time. For this reason, DHS
generally must be conservative in its enforcement planning because the
failure to have adequate resources in place at the start of a migration
surge risks vicious cycles in which inadequate capacity to implement
critically needed tools to disincentivize irregular migration, coupled
with persistent and strong ``push factors,'' contribute to cascading
adverse effects as the enforcement system becomes overwhelmed. Such
effects include overcrowding in DHS facilities (which can endanger both
migrants and DHS personnel), more noncitizens being released into the
interior pending immigration proceedings, and additional flows of
migrants. In the current context of added uncertainty in the encounter
projection and evolving enforcement challenges, DHS focuses its
operational planning efforts on the high and moderately-high planning
models rather than planning for an optimistic scenario that could leave
enforcement efforts badly under-resourced. As for this policymaking
effort, the Departments believe the policies in this rule are justified
``in light of the migration patterns witnessed in late November and
December of 2022, and the concern about the possibility of a surge in
irregular migration upon, or in anticipation of, the eventual lifting
of the Title 42 public health Order.'' 88 FR at 11708.
With respect to the suggestion that the Departments should have
subjected the OIS planning model to more detailed review by commenters,
the Departments respectfully disagree. In addition to the Departments'
description of the planning model in the NPRM, see 88 FR at 11705 n.11,
the Departments presented a range of the underlying data clearly
demonstrating the scope of the problem the Departments face. See, e.g.,
88 FR at 11704-05 (``For the 30 days ending December 24, 2022, total
daily encounters along the SWB consistently fluctuated between
approximately 7,100 and 9,700 per day, averaging approximately 8,500
per day, with encounters exceeding 9,000 per day on 12 different
occasions during this 30-day stretch''); id. at 11708-14 (describing
the historically unique nature of current migratory trends and the role
of shifting demographics and other factors on these trends). Although
the Departments did not describe the planning models in minute detail,
the data make clear the basis for the proposed rule and no commenters
submitted data suggesting that the Departments do not currently face,
and will not imminently face, an urgent circumstance requiring a policy
response.
Comment: One commenter stated that concerns that NGOs and shelter
networks have or are close to reaching their ``outer limit'' of
capacity are unfounded, because according to the commenter, none of the
$800 million newly allocated for humanitarian reception had been
distributed as of the NPRM's publication in late February of this year.
The commenter wrote that there are numerous ways that the
Administration can work with Congress and NGO partners to continue to
build shelter capacity and effectively respond to the needs of arriving
migrants and asylum seekers. Similarly, a commenter noted that the
Government pays private, for-profit detention facilities $320/day to
detain noncitizens, but only pays shelters $25 for a single bed. The
commenter wrote that they had been asking the Government for more than
two years to provide more funding to shelters and increase cooperation
with NGOs, to no avail.
Response: The Departments acknowledge commenters' concerns about
funds dedicated for NGOs and shelter networks as they work to respond
to migratory flows and note that one expected effect of this rule is to
disincentivize irregular migration, which may in turn result in reduced
demand for certain NGO and shelter services. With respect to grant
funding generally, as noted in the NPRM, the Federal Emergency
Management Agency (``FEMA'') spent $260 million in FYs 2021 and 2022 on
grants to non-governmental and state and local entities through the
Emergency Food and Shelter Program--Humanitarian (``EFSP-H'') to assist
migrants arriving at the SWB with shelter and transportation. See 88 FR
at 11714. In November 2022, FEMA released $75 million through the
program, consistent with the Continuing Appropriations and Ukraine
Supplemental Appropriations Act, 2023.\60\ In addition, the Bipartisan
Year-End Omnibus, which was enacted on December 29, 2022, directed CBP
to transfer $800 million in funding to FEMA to support sheltering and
related activities for noncitizens encountered by DHS. The Omnibus
authorized FEMA to utilize this funding to establish a new Shelter and
Services Program and to use a portion of the funding for the existing
EFSP-H, until the Shelter and Services Program is established.\61\ On
February 28, 2023, DHS announced a $350 million funding opportunity for
EFSP-H.\62\ This is the first major portion of funding that is being
allocated for humanitarian assistance under the Omnibus funding
[[Page 31329]]
approved in December.\63\ For the new Shelter and Services Program,
FEMA and CBP have held several public listening sessions and are
developing plans to release a Notice of Funding Opportunity prior to
September 2023 for the second major portion of funding allocated by
Omnibus to assist migrants encountered by DHS.
---------------------------------------------------------------------------
\60\ Public Law 117-180, Division A, Sec. 101(6), Continuing
Appropriations Act, 2023.
\61\ Public Law 117-328, Division F, Title II, Security
Enforcement, and Investigations, U.S. Customs and Border Protection,
Operations and Support.
\62\ See DHS, Press Release, The Department of Homeland Security
Awards $350 Million for Humanitarian Assistance Through the
Emergency Food and Shelter Program (Feb. 28, 2023), <a href="https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through">https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through</a>; DHS Grant Opportunity DHS-
23-DAD-024-00-03, Fiscal Year 2023 Emergency Food and Shelter
National Board Program--Humanitarian (EFSP) ($350M) (Feb. 28, 2023),
<a href="https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460">https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460</a>.
\63\ DHS, Press Release, The Department of Homeland Security
Awards $350 Million for Humanitarian Assistance Through the
Emergency Food and Shelter Program (Feb. 28, 2023), <a href="https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through">https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through</a>.
---------------------------------------------------------------------------
The Departments emphasize that the reference to an ``outer limit''
in the NPRM was a prediction that the expected increase in migration at
the border following the end of the Title 42 public health Order,
without any other policy changes, could exceed the capacity of the
Department of State, local governments, and NGOs to provide assistance
to migrants. 88 FR at 11715. While commenters are correct that the $800
million in funding approved in the recent Omnibus is still being
distributed and allocated, the Departments disagree that this ongoing
funding conflicts with the statement in the NPRM. In other words,
funding allocated to date, and funding slated for further allocation
under the Omnibus funding approved in December, is insufficient to
address the impending further surge of migration expected after the
termination of the Title 42 public health Order.
Comment: Multiple commenters stated their opposition to
``deterrence-oriented'' rules. At least one commenter stated the NPRM
makes clear the Administration wants to make the asylum system
``cumbersome and difficult to navigate'' to deter potential asylum
seekers from coming to the United States, stating Vice President
Harris' comment of ``do not come'' in 2021 was a message that those
fleeing danger should not seek protection in the United States. Another
commenter stated the proposed rule would not be an effective deterrent
because of its similarity to the Migrant Protection Protocols (``MPP'')
and the Title 42 public health Order in the past, which the commenter
claimed ``outsourced and exacerbated the situation'' by leaving
thousands of individuals in dangerous conditions in Mexican border
cities waiting to see if, or when, they will get into the United
States. Another commenter stated the rule does not serve as a
deterrent, as evidenced by the growing numbers of asylum seekers at the
border.
Some commenters disagreed that the rule would reduce arrivals at
the SWB. Commenters disagreed with the premise underlying the proposed
rule--that the rebuttable presumption would disincentivize migrants
from entering the United States except through a lawful and orderly
pathway and lead to a reduction in encounters at the SWB. Another
commenter argued that the rule is providing an opportunity to smuggling
organizations and also providing an additional tool for extortion for
noncitizens seeking to enter the United States. Another commenter
stated that there is no evidence that the NPRM will deter asylum
seekers from crossing the border and suggested that arrivals at the
border would increase due to suppression of entries at POEs.
Response: The Departments disagree that the rule generally seeks to
discourage asylum seekers from coming to the United States. Rather, the
rule seeks to strike a balance: It is intended to reduce the level of
irregular migration to the United States, but also to preserve
sufficient avenues for migrants with valid claims to apply for asylum
or other protection, either in the United States or in third countries
through which they travel. This rule is also intended to disincentivize
the use of smugglers. To those ends, the rule encourages those with
meritorious claims to either apply for asylum or other protection in
the first safe country they reach or pursue available lawful pathways
to the United States as set forth in the rule.
The Departments also disagree with the comparison some commenters
made between this rule and certain past policies, including MPP and
application of the Title 42 public health Order. The rule's operation
as a rebuttable presumption, and the rule's operation in conjunction
with multiple available lawful pathways, are two of the multiple ways
in which this rule differs from certain past policies, including MPP or
expulsions under the Title 42 public health Order. As it relates to MPP
in particular, the purpose and effect of this rule is not to return
noncitizens to Mexico pending their removal proceedings. See INA
235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C). Instead, it is to incentivize
migrants, including those intending to seek asylum, to use lawful,
safe, and orderly pathways to enter the United States, or seek asylum
or other protection in another country through which they travel.
Although some migrants may wait for some period of time in Mexico
before obtaining a CBP One app appointment and before attending that
appointment, the purpose and duration of such a stay would be different
than under MPP. Absent this rule, DHS anticipates that its ability to
process noncitizens at POEs, as well as continue to facilitate regular
travel and trade, would be adversely impacted by the shifting of
resources and personnel from POEs to help process individuals
encountered between POEs.
The Departments disagree with commenters' claim that this rule will
not reduce entries and that it will incentivize irregular migration.
The Departments have shown that an increase in the availability of
lawful pathways, paired with immediate consequences for irregular
migration, can incentivize the use of lawful pathways and thus reduce
irregular migration. See 88 FR at 11705-06. Furthermore, the
Departments disagree with commenters' assertion that the rule will push
individuals away from POEs to cross between POEs. The rule incentivizes
noncitizens who might otherwise attempt to enter without inspection
between POEs to take advantage of expanded lawful pathways. The
availability of lawful pathways, such as the ability to schedule an
appointment through the CBP One app and the DHS-approved parole
processes, and the rule's operation as a rebuttable presumption are two
of the multiple ways in which this rule differs from certain efforts of
the past Administration.
Comment: Commenters raised concerns with Departmental data cited in
the NPRM. For example, commenters referred to two of the Departments'
statements in the NPRM: (1) that 83 percent of the people who were
subject to expedited removal and claimed to have a credible fear of
persecution or torture from 2014 to 2019 were referred to an IJ for
section 240 proceedings, but only 15 percent of those cases that were
completed were granted asylum or some other form of protection, see 88
FR at 11716; and (2) while only 15 percent of all case completions
result in relief or protection, OIS estimates that 28 percent of cases
decided on their merits are grants of relief, 88 FR at 11716 n.97.
Commenters stated that the 15 percent figure is misleading, because it
is based on the total percentage of completed removal cases, and not
the total percentage of cases decided on the merits of the asylum
claim. Commenters claim that this method artificially deflates the
asylum grant rate and creates the false impression that many asylum
seekers were ineligible for asylum even where there was no decision on
their asylum claim. Commenters also stated that the 28 percent figure
itself was too low because, as described by the Departments, this
figure excludes
[[Page 31330]]
withholding of removal, deferral of removal, cancellation of removal,
and claimed status reviews.
Commenters also claimed that asylum policies of the previous
Administration artificially deflated asylum grant rates. Other
commenters stated that it is logical that the percentage of cases
passing the credible fear interview stage is far higher than the cases
that eventually qualify for asylum, given that the credible fear
process is supposed to have a low bar for passage. Another commenter
stated that, by the Departments' logic, no asylum applicant should be
entitled to an initial credible fear determination and full asylum
merits hearing because their claims will probably be denied given the
low approval rating of asylum.
Response: The Departments cited relevant Departmental statistics--
which date back to 2014, prior to the implementation of any policies of
the prior Administration--to demonstrate the general point that there
is a significant disparity between positive credible fear
determinations and ultimate relief in section 240 removal proceedings.
See 88 FR at 11716. Whether one uses the 15-percent figure or the 28-
percent figure, ultimately, the number of individuals who are referred
to an IJ at the beginning of the expedited removal process greatly
exceeds the number who are granted asylum or some other form of relief
or protection.
Comment: A commenter stated that numerous factors beyond merit
impact whether an asylum seeker's case is ultimately granted (e.g.,
access to counsel, availability of experts, changing regulations and
procedures, and backlogs that affect the availability of evidence).
Another commenter noted that many who seek asylum in the United States
ultimately lose their cases not due to a lack of merit but instead
because of ``our convoluted and dysfunctional'' immigration system,
which the commenter claimed is difficult for asylum seekers to navigate
and results in denial of many asylum claims on bases unrelated to the
merits of the claim. One commenter asserted that modifying the legal
requirements for asylum will not stop migrants from fleeing armed
conflict, poverty or other dangers, because many are unaware of their
right to apply for asylum. Another commenter stated that the number of
migrants arriving is irrelevant to the merits of their asylum claims;
the commenter also argued that the rule would screen out asylum seekers
regardless of the merit of their case.
Response: The Departments acknowledge commenters' concerns that
factors unrelated to the merits of the claim, such as access to counsel
and unfamiliarity with the asylum process, could affect the ultimate
determination of an asylum claim, but disagree that these potential
issues are exacerbated by the rule. As discussed in more detail later
in Section IV.B.5 of this preamble, this rule does not deprive
noncitizens of access to counsel during credible fear proceedings.
Additionally, all AOs are trained to conduct interviews in a non-
adversarial manner and elicit relevant testimony from noncitizens.
Specific training for implementation of this rule will include training
on eliciting testimony related to whether a noncitizen can establish an
exception or rebut the presumption of asylum ineligibility; therefore,
noncitizens are not required to be familiar with the rule to remain
eligible for asylum. The Departments emphasize that in all credible
fear determinations, a noncitizen's credible testimony may be
sufficient to overcome or establish an exception to the presumption
against asylum ineligibility in this rule. INA 208(b)(1)(B)(ii), 8
U.S.C. 1158(b)(1)(B)(ii). As discussed later in Section IV.D.1.iii of
this preamble, the Departments note that the overall standard of proof
for rebutting or establishing an exception to the presumption of asylum
ineligibility during credible fear proceedings remains the
``significant possibility'' standard; that standard must be applied in
conjunction with the standard of proof required for the ultimate
determination (i.e., preponderance of the evidence that an exception
applies or that the presumption has been rebutted).
As discussed throughout the NPRM, the lawful pathways condition,
and the related modification of the withholding and CAT screening
standard applied to noncitizens subject to the condition, would improve
overall asylum processing efficiency by increasing the speed with which
asylum claims are considered. See 88 FR at 11737. By encouraging
noncitizens seeking to travel to the United States, including those
seeking asylum, to pursue lawful pathways and processes, the rule
promotes orderly processing and reduces the number of individuals who
would be placed in lengthy section 240 removal proceedings and released
into the United States pending such proceedings. Id. at 11736.
Moreover, by reducing the number of noncitizens permitted to remain in
the United States despite failing to avail themselves of a safe and
lawful pathway to seek protection, the rule reduces incentives for
noncitizens to cross the SWB, thus reducing the anticipated further
surge that is expected to strain DHS resources. The Departments
reiterate that the rule is not being promulgated to generally prevent
noncitizens from seeking asylum in the United States but to strike a
balance--reducing the level of irregular migration to the United States
while providing sufficient avenues for migrants with valid claims to
apply for asylum or other protection. The rule is needed because,
absent this rule, after the termination of the Title 42 public health
Order, the number of migrants expected to travel without authorization
to the United States is expected to increase significantly, to a level
that risks undermining the Departments' ability to safely, effectively,
and humanely enforce and administer U.S. immigration law, including the
asylum system.
Comment: One commenter asserted that the real purpose of the rule
is to incentivize an increasing number of migrants to use the CBP One
app to make fraudulent asylum claims. The same commenter also stated
``that the proposed rule and the CBP One app will incentivize increased
rates of illegal immigration into the United States.'' The commenter
further stated that because there is insufficient capacity to process
all of the asylum claims of those using the CBP One app, the rule will
simply increase the number of individuals who are paroled into the
United States, incentivizing further illegal immigration. Another
commenter argued that current migration levels result from the current
Administration's actions to ``weaken border security, promote the
influx of illegal immigration, and to remove integrity from the
administration of both the legal immigration process (including asylum
and credible fear measures) and overall enforcement of the laws.''
Similarly, another commenter stated that the root cause of this crisis
was ``the Administration's reckless open borders policies.''
Response: While the Departments acknowledge the commenters'
concerns about increased rates of unauthorized immigration into the
United States, the Departments disagree that the rule and use of the
CBP One app will incentivize noncitizens to enter the United States to
make fraudulent asylum claims. If anything, by adding a rebuttable
presumption of ineligibility, this rule creates a strong disincentive
for irregular migration relative to the status quo. The Departments
note that no commenter submitted data suggesting that the rule will
result in an increase in fraud or misrepresentation. As explained in
Section IV.B.5.iii of this
[[Page 31331]]
preamble, the Departments are confident that AOs have the training,
skills, and experience needed to assess credibility and appropriately
determine whether a noncitizen has met an exception to or rebutted the
presumption of ineligibility for asylum codified in the rule. Regarding
commenters' concerns that use of the CBP One app will increase the
number of individuals who are paroled into the United States and thus
incentivize irregular migration, the Departments note that the rule
does not provide for, prohibit, or otherwise set any policy regarding
DHS's discretionary authority to make parole determinations for those
who use the CBP One app. Even so, as outlined in the NPRM and later in
Section IV.E.3.ii of this preamble, the expanded use of the CBP One app
is expected to create efficiencies that will enable CBP to safely and
humanely expand its ability to process noncitizens at POEs, including
those who may be seeking asylum. See 88 FR at 11719. Notably, the rule,
coupled with an expansion of lawful, safe, and orderly pathways, is
expected to reduce the number of noncitizens seeking to cross the SWB
without authorization to enter the United States. Additionally, the
United States is undertaking a range of efforts to address irregular
migration, including, for instance, working with partner countries to
address the causes of migration, significantly increasing the
availability of H-2 temporary worker visas and refugee processing in
the Western Hemisphere, successfully implementing the CHNV parole
processes, and addressing the pernicious role of human smugglers. See
88 FR at 11718-21.
The Departments strongly disagree with commenters who assert that
the current migration levels are a result of any action by the
Departments to ``weaken'' security at the border. Rather, as noted in
the NPRM, economic and political instability around the world is
fueling the highest levels of migration since World War II, including
in the Western Hemisphere. See 88 FR 11704. Additionally, even while
the Title 42 public health Order has been in place, the total number of
encounters at the SWB reached an all-time high in FY 2022, and they
remain at historically high levels even as encounters of CHNV nationals
have fallen in recent months.\64\ See id. at 11704-05. During this
time, the United States has been working to build on a multi-pronged,
long-term strategy with countries throughout the region to support
conditions that would decrease irregular migration while continuing
efforts to increase immigration enforcement capacity and streamline
processing of asylum seekers and other migrants. See 88 FR at 11720-23.
This rule ensures that the United States meets its obligations under
both U.S. and international law while ensuring that vulnerable
populations are able to seek asylum or other protection through lawful,
safe, and orderly pathways.
---------------------------------------------------------------------------
\64\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023; OIS analysis of historic USBP data.
---------------------------------------------------------------------------
Comment: Commenters stated that the rule is unnecessary because the
goals of discouraging migrants from seeking asylum and swiftly removing
migrants are invalid. These commenters further stated that immigration
is good; there is no need to quickly remove asylum seekers, regardless
of backlogs; and that overwhelmed immigration facilities are problems
created by the Government that would be solved by welcoming migrants
rather than treating them as a problem or as dangerous. A few
commenters critiqued the need for the rule, writing that the proposed
rule is unnecessary and the Administration should take responsibility
for actions that have created an overloaded immigration system. Other
commenters questioned whether restrictive border measures and quickly
removing individuals actually reduce migratory flows. At least one
commenter did not understand how this rule was a ``good thing'' that
would change immigration policy in the United States, which the
commenter described as a ``disaster.'' A commenter stated that the
proposed rule is not needed and instead recommended implementing
practical and humane solutions, including funding and coordinating with
civil society organizations on the border and throughout the country.
Another commenter stated that she lives within 100 miles of the border
and does not feel threatened by the influx of migrants to her
community, and thus the rule is unnecessary.
One commenter stated that the U.S. immigration system is not broken
but the current laws need to be strictly enforced, while another
commenter stated that DHS should be strengthened so it can address each
case instead of lumping people into categories. At least one commenter
stated that there is no reason why DHS cannot process applicants more
quickly, noting that the United States received a significant number of
migrants in the early 1900s with far less technology, so the government
should be able to do so much more efficiently now with the
sophisticated technology, medical equipment, fingerprinting, and other
means available now. Another commenter stated that the rule would not
fix backlogs in immigration court, while a number of commenters
suggested that it would actually increase the backlogs.
A commenter questioned the need for the rule because the
Departments had not demonstrated that they had considered other
options. Another commenter requested that the Departments expressly
consider a range of factors, such as the U.S. economic outlook and the
role of other external variables (such as climate change) in driving
migration. The commenter suggested that such factors may influence
migration patterns to such a degree that the rule is unnecessary or
likely to be ineffective.
Response: The Departments disagree that the rule is unnecessary.
The Departments reiterate that the goal of the rule is not to generally
discourage migrants with valid claims from applying for asylum or other
protection, but rather to encourage the use of lawful, safe, and
orderly pathways into the United States. The Departments agree that the
United States' historical openness to immigration has enriched our
culture, expanded economic opportunities, and enhanced our influence in
the world. However, the U.S. immigration system has experienced extreme
strain with a dramatic increase of noncitizens attempting to cross the
SWB in between POEs without authorization, reaching an all-time high of
2.2 million encounters in FY 2022.\65\ The Departments believe that
without a meaningful policy change, border encounters could
dramatically rise to as high as 11,000 per day after the Title 42
public health Order is lifted.\66\ As described in the NPRM, DHS does
not currently have the resources to manage and sustain the processing
of migratory flows of this scale in a safe and orderly manner, even
with the assistance of modern technology. See 88 FR at 11712-13. In
response to this urgent situation, the rule will establish a rebuttable
presumption of asylum ineligibility for certain noncitizens who fail to
take advantage of the existing and expanded lawful pathways to enter
the United States, including the opportunity to schedule a time and
place to present at a SWB POE, where they may seek asylum or other
forms of protection, in a lawful, safe, and orderly manner, or to seek
asylum or other protection in one of the countries through which they
[[Page 31332]]
travel on their way to the United States. See id at 11706. The
Departments believe that this rule is necessary to address the
anticipated surge in irregular migration.
---------------------------------------------------------------------------
\65\ OIS analysis of historic USBP data.
\66\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023.
---------------------------------------------------------------------------
The Departments also believe the rule is necessary to improve the
overall functioning and efficiency of the immigration system. See INA
208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and (d)(5)(B).
Specifically, the rule would efficiently and fairly provide relief to
noncitizens who are in the United States and are eligible for relief,
while also efficiently denying relief and ultimately removing those
noncitizens who are determined to be ineligible for asylum and do not
qualify for statutory withholding of removal or protection under the
regulations implementing the CAT. The Departments acknowledge that
despite the protections preserved by the rule and the availability of
lawful pathways, the rebuttable presumption adopted in the rule will
result in the denial of some asylum claims that otherwise may have been
granted, but the Departments believe that the rule will generally offer
opportunities for those with valid claims to seek protection. Moreover,
the Departments have determined that the benefits to the overall
functioning of the system, including deterrence of dangerous irregular
migration and smuggling, justify the rule. In sum, the rule permissibly
pursues efficient asylum processing while preserving core protections,
which is within the Departments' authority conferred by section 208 of
the INA, 8 U.S.C. 1158.
The Departments acknowledge commenters' support for enforcing
existing immigration laws. However, the Departments do not believe that
current laws and regulations are sufficient to address the current
levels of migratory flows and the anticipated increase in the number of
migrants who will attempt to enter the United States following the
lifting of the Title 42 public health Order. Likewise, a policy is
necessary to ensure lawful, safe, and orderly processing of those
migrants. Absent further action, POEs will be congested, migrants will
be forced to wait in long lines for unknown periods of time, and once
processed they will be released into local communities that are already
at or near their capacity to absorb them. See 88 FR at 11715. By
incentivizing noncitizens to use lawful pathways, this rule aims to
encourage migrants to either pursue options that would allow them to
avoid making the journey to the SWB, or to schedule in advance a time
for arrival at a POE, which will alleviate additional strain on DHS
resources. The Departments believe it would be inappropriate to elect
inaction on the basis of conjecture regarding U.S. economic outlook and
similar factors and the potential effects of such factors on the
impending surge of irregular migration.
In response to comments asserting that the Departments did not
consider other options before promulgating this final rule, the
Departments note that alternative approaches for managing the expected
surge in migration were discussed in the NPRM and the Departments
ultimately assessed, and continue to assess, that the rule is the best
option for responding to the current situation at the border and the
expected surge in migration after the lifting of the Title 42 public
health Order. See 88 FR at 11730-32. Concerns regarding backlogs,
government resources and funding are addressed in Sections IV.B.5.iv
and IV.C.2 of this preamble.
The Departments acknowledge commenters' suggestion that DHS
``strengthen'' its resources to respond to the anticipated surge in
migrants to the SWB. The Departments note that they have already
deployed additional personnel, technology, infrastructure, and
resources to the SWB and that continuing this ``strengthening'' of the
SWB would require additional congressional actions, including
significant additional appropriations, which are outside of the scope
of this rulemaking.
i. Concerns Regarding the Sufficiency of the Lawful Pathways
Comment: Commenters stated that in general, the available lawful
pathways are insufficient to meet the significant demand for migration
to the United States. Commenters stated that increasing legal pathways
for some should not come at the expense of restricting access for
asylum seekers seeking protection. Commenters stated that the existing
lawful pathways are ``extremely narrow and unavailable to many
people,'' and that it is fundamentally unjust to fault individuals for
seeking safety and stability in the only way possible. Commenters
stated that migrants who seek asylum in the United States rather than
another country are doing so rationally and intentionally and they
would seek asylum in a closer country if it was truly safe.
Multiple commenters stated that H-2 temporary worker visas are
insufficient substitutes for asylum. One commenter stated that the
Administration is ``misguided'' in touting its efforts in the proposed
rule to expand two of the most ``exploitative and troubled U.S. work
visa programs--H-2A and H-2B'' because these programs are ``deeply
flawed and in desperate need of reform.'' The same commenter stated
that expanding temporary work visa programs like H-2B and H-2A makes
little sense for those seeking asylum because they do not provide a
permanent pathway to remain in the United States and would put migrants
in danger by returning them to dangerous situations after the visa
certification expires. Similarly, other commenters stated that the H-2
programs do not provide or guarantee safety for migrants because they
are not permanent or durable solutions and they do not allow for family
unity in the United States.
Response: The United States is both a nation of immigrants and a
nation of laws. The Departments are charged with enforcing those laws
and endeavor to do so humanely. The rule is needed because, absent this
rule, after the termination of the Title 42 public health Order, the
number of migrants expected to travel without authorization to the
United States is expected to increase significantly, to a level that
risks undermining the Departments' ability to safely, effectively, and
humanely enforce and administer U.S. immigration law, including the
asylum system. The rule, coupled with an expansion of lawful, safe, and
orderly pathways, is expected to reduce the number of noncitizens
seeking to cross the SWB without authorization to enter the United
States.
Though the Departments acknowledge that existing lawful pathways
may not be available to every migrant, the Departments disagree with
comments stating that the existing lawful pathways are extremely
narrow. The United States Government has been working to significantly
expand access to lawful pathways and processes for migrants since
January 2021. In addition to the new processes DHS has implemented for
CHNV nationals, which are discussed at length in the NPRM, DHS has been
working with other Federal departments and agencies to increase access
to labor pathways; restart, streamline, and expand family reunification
parole programs; and significantly rebuild and expand refugee
processing in the region. See 88 FR at 11718-23.\67\
---------------------------------------------------------------------------
\67\ See also DHS, New Actions to Manage Regional Migration
(Apr. 27, 2023).
---------------------------------------------------------------------------
For example, DHS has worked with the Department of State and the
Department of Labor (``DOL'') to significantly expand access to the H-
2A and H-2B temporary agricultural and nonagricultural worker visas in
order to
[[Page 31333]]
help address labor shortages and provide safe and orderly pathways for
migrants seeking economic opportunity in the United States. On December
15, 2022, DHS and DOL jointly published a temporary final rule
increasing the total number of noncitizens who may receive an H-2B
nonimmigrant visa by up to 64,716 for the entirety of FY 2023. See
Exercise of Time-Limited Authority to Increase the Numerical Limitation
for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking to Change Employers,
87 FR 76816 (Dec. 15, 2022). In particular, the number of H-2 visas
issued to nationals of El Salvador, Honduras, and Guatemala has
increased by 250 percent between FYs 2020 and 2022: in FY 2022, the
Department of State issued 19,295 H-2 visas to those three countries,
compared to just 5,439 in FY 2020.\68\ The Departments disagree that
expanding use of these programs is misguided; although improvements are
possible, these programs are established features of the immigration
system and an appropriate mechanism to support lawful, safe, and
orderly travel to the United States. Moreover, these programs represent
two of several available lawful pathways, some of which provide
protection that is not temporary and does allow for derivative
protection for family members. For example, the United States
Government has restarted the Central American Minors Refugee and Parole
Program, which provides certain qualified children who are nationals of
El Salvador, Guatemala, and Honduras, as well as certain family members
of those children, an opportunity to apply for refugee status and
possible resettlement in the United States.\69\
---------------------------------------------------------------------------
\68\ See Department of State, H-2 Visa Data for El Salvador,
Guatemala, and Honduras, FY 2015-FY2023 Mid-Year (last reviewed Feb.
24, 2023).
\69\ See USCIS, Central American Minors (CAM) Refugee and Parole
Program, <a href="https://www.uscis.gov/CAM">https://www.uscis.gov/CAM</a> (last visited Apr. 5, 2023).
---------------------------------------------------------------------------
The United States Government also provides durable solutions for
humanitarian protection through the U.S. Refugee Admissions Program for
qualifying applicants. In 2022, concurrent with the announcement of the
L.A. Declaration, the United States announced that it intends to refer
for resettlement at least 20,000 refugees from Latin America and the
Caribbean in FY 2023 and FY 2024, which would put the United States on
pace to more than triple refugee admissions from the Western Hemisphere
this fiscal year alone.\70\ On April 27, 2023, DHS announced that it
would commit to welcoming thousands of additional refugees per month
from the Western Hemisphere--with the goal of doubling the number of
refugees the United States committed to welcome as part of the L.A.
Declaration.\71\ The United States Government also continues to work
with our partners to expand access to refugee resettlement more broadly
throughout the Western Hemisphere. For instance, Canada recently
announced that it will take significant steps to expand safe and
orderly pathways for migrants from the Western Hemisphere to enter
Canada lawfully. Building on prior commitments, Canada will provide an
additional 15,000 migrants from Latin America and the Caribbean with
access to legal pathways to Canada; and enter into arrangements with
the United States and like-minded countries to promote lawful labor
mobility pathways.\72\
---------------------------------------------------------------------------
\70\ See The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S. Government and Foreign
Partner Deliverables (June 10, 2022) (``L.A. Declaration Fact
Sheet''), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/</a>.
\71\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
\72\ See DHS, Press Release, United States and Canada Announce
Efforts to Expand Lawful Migration Processes and Reduce Irregular
Migration (Mar. 24, 2023), <a href="https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and">https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and</a>.
---------------------------------------------------------------------------
Comments asserting insufficiencies associated with the CHNV parole
processes and other lawful pathways identified in the rule are further
addressed in Section IV.3 of this preamble.
The rule will not impact those who use these lawful pathways that
the United States is offering for migrants to obtain entry into the
United States. Additionally, the rule will not apply to noncitizens who
enter the United States with documents sufficient for admission.
Instead, the rule is meant to promote the use of these lawful pathways
and disincentivize irregular migration.
ii. Similarity to Actions of Past Administration
Comment: Many commenters stated that the proposed rule is
functionally indistinguishable from prior asylum-related rules that
were issued by the prior Administration, particularly the TCT Bar IFR
and Final Rule, which have been enjoined, or would cause similar harm
to asylum seekers. At least one commenter criticized that the addition
of the ``rebuttable presumption'' in this rule is not enough to
distinguish it from previous rules. For example, commenters described
the rule as ``resurrect[ing] Trump-era categorical bans on groups of
asylum seekers.'' Similarly, some commenters stated that this rule is
similar to the ``asylum bans'' the past Administration attempted to
advance. Another commenter asserted that this rule operates similarly
to rules from the prior Administration because it would operate as a
ban for asylum seekers based on factors that do not relate to their
fear of return and would result in asylum denials for all who are
unable to establish that they qualify for exceptions the commenter
characterized as extremely limited. A commenter claimed that while the
Departments repeatedly assert throughout the NPRM that the rebuttable
presumption is distinguishable from the TCT Bar, the opportunity to
rebut the presumption would occur only under the most extreme scenarios
and in excess of what would ordinarily be sufficient to claim asylum.
Another commenter predicted that the proposed rule would revive
attempts to ``rig the credible fear process.'' While comparing the
rebuttable presumption standards to the non-refoulement screening
standard used under MPP, the commenter argued that the proposed rule
would impose a ``more likely than not'' screening standard that far
exceeds the standard for an asylum grant. The commenter further stated
that the ``deficient'' non-refoulement screenings carried out during
MPP foreshadow the dangers asylum seekers would face under the proposed
rule if finalized.
In comparing this rule to those issued by the prior Administration,
commenters stated that the previous rules led to asylum denials,
prolonged detention for many with bona fide claims, and family
separations. At least one commenter stated that a recent congressional
investigation found that not one person sent to Guatemala under the
prior Administration's Asylum Cooperative Agreements received asylum;
instead, migrants were forced to return to their originating country. A
commenter also stated that the rule attempts to differentiate itself
from prior policies via exceptions and alternative pathways to asylum
but that the exceptions are insufficient because they would fail to
protect the most vulnerable. Several commenters stated that asylum bans
have been proven to be ineffective at deterring noncitizens from
seeking safety. One commenter stated that calling the rule a
``rebuttable presumption'' was merely a semantic difference from prior
asylum bans, which had narrow exceptions.
Response: The Departments acknowledge these commenters'
[[Page 31334]]
concerns but disagree that the final rule is indistinguishable from
asylum-related rulemakings and policies issued by the prior
Administration. The TCT Bar IFR and Final Rule and the Proclamation Bar
IFR, for instance, categorically barred covered individuals from
certain types of relief. While the TCT Bar Final Rule only allowed
limited exceptions to its eligibility bar, including for trafficking
victims and other grounds, this rule includes a number of broader
exceptions and means for rebutting the presumption. A noncitizen can
rebut the presumption by, for example, demonstrating exceptionally
compelling circumstances by a preponderance of the evidence during a
full merits hearing. See 8 CFR 208.33(a)(3); 8 CFR 1208.33(a)(3). A
noncitizen can rebut the presumption if they establish that they or a
member of their family with whom the noncitizen is traveling meet any
of the three per se grounds for rebuttal, which provide that, at the
time of entry: (1) they faced an acute medical emergency; (2) they
faced an imminent and extreme threat to their life or safety; or (3)
they were a ``victim of a severe form of trafficking in persons'' as
defined in 8 CFR 214.11. In addition to the per se grounds for
rebuttal, a noncitizen could also rebut the presumption in other
exceptionally compelling circumstances. One exceptionally compelling
circumstance recognized by the rule is included specifically to avoid
family separations. See 8 CFR 1208.33(c). Protecting against family
separation is one example of how this rule includes appropriate
safeguards for vulnerable populations. Depending on individual
circumstances, AOs and IJs may find that certain especially vulnerable
individuals meet the exceptionally compelling circumstances standard.
The Departments acknowledge concerns about opportunities to rebut
the presumption but disagree that the rule would impose a higher
standard for rebutting the presumption than the standard to establish
asylum eligibility. The ``significant possibility'' standard is the
overall assessment applied during credible fear screenings; that
standard must be applied in conjunction with the standard of proof
required for the ultimate determination (i.e., preponderance of the
evidence that the presumption has been rebutted or an exception
established). As discussed below in Section IV.E.1 of this preamble, a
noncitizen can satisfy their burden of proof through credible testimony
alone; the rule does not require any particular evidence to rebut or
establish an exception to the presumption under 8 CFR 208.33(a)(3),
1208.33(a)(3). See INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii);
INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Accordingly, the
Departments believe that the means of rebutting or establishing an
exception to the presumption are not unduly burdensome.
The Departments have considered the approaches taken in multiple
rulemaking efforts of the last few years and now believe that the more
tailored, time-limited approach in this final rule is better suited to
address the increased migrant flows into the United States expected
after the Title 42 public health Order terminates. See 88 FR at 11728.
This rule encourages use of lawful, safe, and orderly pathways to enter
the United States and, unlike those prior rulemakings, retains a
noncitizen's ability to be found eligible for asylum should they enter
through an enumerated lawful pathway or otherwise overcome the
condition imposed by this rule. The Departments believe that the rule's
more balanced approach renders the TCT Bar Final Rule and the
Proclamation Bar IFR unnecessary, and that those rules conflict with
the approach taken in this rule.\73\ As proposed in the NPRM and
discussed at Sections IV.E.9 and IV.E.10 of this preamble, the
Departments have decided to remove those prior rules from the CFR. See
88 FR at 11728.
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\73\ Both the TCT Bar Final Rule and the Proclamation Bar IFR
are discussed further in Sections IV.E.9 and IV.E.10 of this
preamble.
---------------------------------------------------------------------------
The Departments disagree with some commenters that this final rule
will cause harms similar to those attributed to the TCT Bar Final Rule
and the Proclamation Bar IFR, which commenters allege include asylum
denials, prolonged detention, and family separation. This rule's scope
and effect are significantly different from the TCT Bar Final Rule.
Unlike the TCT Bar Final Rule, the presumption would not completely bar
asylum eligibility based on the availability of protection in a third
country. First, while this rule takes into account whether individuals
sought asylum or other forms of protection in third countries while
traveling to the United States, the rule would not require that all
noncitizens make such an application to be eligible for asylum, unlike
the TCT Bar Final Rule. For example, if the noncitizen received
authorization to travel to the United States to seek parole or
scheduled an appointment through the CBP One app to present themselves
at a POE, then the condition on asylum eligibility would not apply to
that noncitizen regardless of whether the noncitizen sought protection
in a third country. Second, while the TCT Bar Final Rule only allowed
limited exceptions to its eligibility bar, including for trafficking
victims and other grounds, this rule includes a number of exceptions
and means for rebutting the presumption, including an exception for
trafficking victims. This rule encourages noncitizens to use orderly,
lawful pathways to enter the United States, and it will only become
relevant whether the noncitizens applied for protection in a third
country through which they traveled in cases in which noncitizens do
not avail themselves of one of the pathways.
The Departments acknowledge commenters' concerns with the
effectiveness of Safe Third Country Agreements (``STCA'') or asylum
cooperative agreements. The Departments acknowledge that negotiating
such agreements is a lengthy and complicated process that depends on
the agreement of other nations. See 88 FR at 11732. The Departments
note that the only such agreement in effect is the Canada-U.S. STCA.
See generally 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, 88 FR 18227
(Mar. 28, 2023). The rule does not implement or change the framework
for negotiating STCAs, which involves extensive diplomatic
negotiations. As discussed more in Section IV.E.3.iv of this preamble,
the safe-third-country provision in section 208(a)(2)(A) of the INA, 8
U.S.C. 1158(a)(2)(A), indicates that a noncitizen may be removed,
pursuant to ``a safe-third-country agreement,'' and the noncitizen may
not apply for asylum ``unless the Attorney General finds that it is in
the public interest for the alien to receive asylum in the United
States.'' This rule operates differently. Under this rule, noncitizens
may apply for asylum and other protection in the United States. While
the rule would create a rebuttable presumption, it specifies
circumstances in which that presumption is necessarily rebutted as well
as other exceptions. By encouraging noncitizens seeking to travel to
the United States, including those intending to seek asylum, to use
lawful pathways and processes, the Departments expect the rule to
promote orderly processing, reduce the anticipated surge that is
expected to strain DHS resources, reduce the number of individuals who
would be placed in lengthy removal proceedings pursuant to section 240
of
[[Page 31335]]
the INA and released into the United States pending such proceedings,
allow for the expeditious removal of noncitizens who failed to avail
themselves of a safe and lawful pathway to seek protection, and reduce
incentives for noncitizens to cross the border using dangerous
smuggling networks. See 88 FR at 11736. Regarding comments about the
ineffectiveness of the rule to deter migrants from seeking safety, the
rule does not discourage migrants with valid claims from applying for
asylum or other protection. The rule encourages those with meritorious
claims to either apply for asylum or other protection in the first safe
country they find or pursue available lawful pathways, such as the U4U
and CHNV parole processes--which early data indicate are deterring
irregular migration from those countries, see 88 FR at 11706--or
presenting at a POE at a pre-scheduled time and place.
Comment: Some commenters noted the rise in recidivist encounters
following the end of the prior Administration despite many efforts to
restrict asylum access and stated that removals under this rule would
increase rates of recidivism.
Response: The Departments disagree that removals under this rule
will increase the rate of recidivism. The Departments note that a range
of external considerations (such as the COVID-19 pandemic, litigation
resulting in injunctions or vacatur of those rules prior to or during
initial stages of their implementation,\74\ and differences in the
operation of the Title 42 public health Order and this rule) prevent
the Departments from drawing any firm conclusions applicable to this
rulemaking based solely on recidivism numbers following the end of the
prior Administration. The application of the Title 42 public health
Order at the border has had unpredictable impacts on migration. Because
Title 42 expulsions have no consequence, aside from the expulsion
itself, DHS has seen a substantial increase in recidivism for
individuals processed under Title 42 as compared to those processed
under Title 8 authorities. In March 2023, for example, 26 percent of
encounters at the SWB involved individuals who had at least one prior
encounter during the previous 12 months, compared to an average 1-year
re-encounter rate of 14 percent for FYs 2014-2019.\75\
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\74\ Federal courts have either vacated or enjoined the
Departments from implementing the TCT Bar IFR and Final Rule,
Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202
(Oct. 21, 2020) (``Criminal Asylum Bars Rule''), and Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11, 2020) (``Global Asylum Rule'').
See, e.g., Capital Area Immigrants' Rights Coal. v. Trump, 471 F.
Supp. 3d 25 (D.D.C. 2020) (vacating the TCT Bar IFR); E. Bay
Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East
Bay I'') (affirming injunction of the TCT Bar IFR); E. Bay Sanctuary
Covenant v. Barr, 519 F. Supp. 3d 663 (N.D. Cal. 2021) (``East Bay
II'') (enjoining the TCT Bar Final Rule); Pangea Legal Servs. v.
DHS, 501 F. Supp. 3d 792 (N.D. Cal. 2020) (enjoining the Criminal
Asylum Bars Rule) (``Pangea I''); Pangea Legal Servs. v. U.S. Dep't
of Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021)
(``Pangea II'') (preliminarily enjoined the Departments ``from
implementing, enforcing, or applying the [Global Asylum Rule] . . .
or any related policies or procedures.''); E. Bay Sanctuary Covenant
v. Biden, 993 F.3d 640, 681 (9th Cir. 2021) (``East Bay III''); see
O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting the
history of the litigation over the Proclamation Bar IFR and vacating
it).
\75\ Including CBP enforcement encounters at or between ports of
entry. OIS Persist based on data through March 31, 2023.
---------------------------------------------------------------------------
Overall, since the start of the pandemic and the initiation of
Title 42 expulsions, 39 percent of all Title 42 expulsions have been
followed by a re-encounter of the same individual within 30 days versus
a 9 percent 30-day re-encounter rate for Title 8 repatriations.\76\
Similarly, the 12-month re-encounter rates are 51 percent for Title 42
expulsions versus 20 percent for Title 8 repatriations.\77\ While a
portion of the overall gap between Title 42 and Title 8 re-encounter
rates is likely explained by the fact that many Title 42 expulsions are
to Mexico and almost all Title 8 repatriations are to individuals'
countries of citizenship, it is notable that a large gap between Title
42 and Title 8 re-encounter rates is also observed in the case of
Mexican nationals, all of whom are repatriated to Mexico.\78\
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\76\ Title 8 repatriation, as used here, refers to both removals
(noncitizen required to depart based on a removal order) and returns
(noncitizen required to depart leaves without a formal order of
removal).
\77\ OIS analysis of OIS Enforcement Lifecycle based on data
through December 31, 2022.
\78\ For Mexican nationals, since the start of the pandemic, the
30-day re-encounter rates are 44 percent for Title 42 expulsions
versus 15 percent for Title 8 repatriations, and the 12-month re-
encounter rates are 55 percent for Title 42 expulsions versus 26
percent for Title 8 repatriations. OIS analysis of OIS Enforcement
Lifecycle based on data through December 31, 2022.
---------------------------------------------------------------------------
This gap is likely, in part, because a removal under Title 8
carries with it at least a five-year bar to admission, among other
legal consequences. As a result, it is the Departments' assessment that
a return to Title 8 processing of all noncitizens will likely reduce
recidivism at the border. Moreover, the Departments believe it would be
unwarranted to conclude that, based on recidivist apprehensions while
the Title 42 public health Order has been in place, conditions on
asylum eligibility do not discourage attempts to enter the United
States unlawfully. This rule, which will take effect upon the lifting
of the Title 42 public health Order, anticipates that those who receive
negative credible fear determinations will be removed upon issuance of
final orders of removal and be subject to at least a five-year bar on
admission in addition to having the rebuttable presumption apply to any
subsequent asylum application the noncitizen may file in the future.
iii. Unnecessary Given the Asylum Processing IFR
Comment: Some commenters questioned why this proposed rule is
necessary given that the Asylum Processing IFR was adopted less than
one year ago. See Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (``Asylum
Processing IFR''). In referencing the Asylum Processing IFR, one
commenter noted that this rule is an ``abrupt change in reasoning from
less than a year ago,'' which, according to the commenter, indicates
that the rule is ``political'' rather than based on reasoned decision
making. Some commenters noted that in the Asylum Processing IFR, the
Departments explained that applying the TCT Bar Final Rule at the
credible fear stage as proposed by the past Administration was
inefficient and consumed considerable resources so there is ``no basis
to suddenly reverse course again.'' A commenter argued that the
proposal would depart from conclusions DHS reached within the last year
in the Asylum Processing IFR recommitting agencies to the statutory
``significant possibility'' standard for asylum claims. One commenter
asserted that while the proposed rule is premised on the idea that
applying a higher ``reasonable possibility'' standard can weed out non-
meritorious asylum cases, the Departments recently acknowledged in the
Asylum Processing IFR that the higher standard is not effective at
screening out such claims. The same commenter expressed concern that
the Government's ``abrupt about-face'' is not based on new data, but
rather on the lack of evidence that the reasonable possibility standard
is not effective in the context in which it is currently used. Another
commenter similarly wrote that the application of the reasonable
possibility standard at the credible fear screening stage represents a
``stark reversal'' from DHS's position in the Asylum Processing IFR
that asylum eligibility bars should not be applied at the initial
screening stage and
[[Page 31336]]
that the ``significant possibility'' standard should be applied when
screening for all protection claims (i.e., asylum, withholding of
removal, and CAT protection). A commenter stated that the proposed rule
introduces conflict with the Asylum Processing IFR and expressed
concern that implementation of the new rule would be difficult for AOs.
One commenter stated that the Departments should make greater use of
the recent 2022 asylum merits interview process, which would provide a
solution to the problems the Departments asserted in the NPRM.
Response: The Departments recognize that under the Asylum
Processing IFR issued in March 2022, certain noncitizens determined to
have a credible fear are referred to an AO, in the first instance, for
further review of the noncitizen's asylum application. See 87 FR at
18078. For noncitizens subject to that IFR, following a positive
credible fear determination, AOs conduct an initial asylum merits
interview instead of referring the case directly for removal
proceedings pursuant to section 240 of the INA. If USCIS does not grant
asylum, the individual is referred to EOIR for streamlined removal
proceedings pursuant to section 240. In issuing the Asylum Processing
IFR, the Departments concluded that protection determinations during
the expedited removal process could be made more efficient. See 87 FR
at 18085. The purpose of the Asylum Processing IFR was to
simultaneously increase the promptness, efficiency, and fairness of the
process by which noncitizens who enter the United States without
appropriate documentation are either removed or, if eligible, granted
relief or protection. Id. at 18089. Additionally, the Asylum Processing
IFR enables meritorious cases to be resolved more quickly, reducing the
overall asylum system backlog, and using limited AO and IJ resources
more efficiently. Id. at 18090. The entire process is designed to take
substantially less time than the average of over four years it takes to
adjudicate asylum claims otherwise. See 88 FR at 11716. This final rule
builds upon this existing system while implementing changes, namely
that AOs will apply the lawful pathways rebuttable presumption during
credible fear screenings.
The Departments disagree with commenters' suggestion that the
proposed rule was political and not based on reasoned decisions.
Rather, the rule's primary purpose is to incentivize migrants,
including those intending to seek asylum, to use lawful, safe, and
orderly pathways to enter the United States, or seek asylum or other
protection in another country through which they travel. The rule
establishes procedures for AOs and IJs to follow when determining
whether the rebuttable presumption applies to a noncitizen and, if it
does, whether the noncitizen has established any exceptions to or
rebutted the presumption. See 8 CFR 208.33(b). In addition, for
noncitizens found to be ineligible for asylum under 8 CFR 208.33, the
rule establishes procedures for AOs to further consider a noncitizen's
eligibility for statutory withholding of removal or protection under
the regulations implementing the CAT. See 8 CFR 208.33(c)(2).
Individuals subject to the lawful pathways condition will still be
placed into removal proceedings under section 240 if they meet the
``reasonable possibility'' of persecution or torture standard. One of
the goals of the Asylum Processing IFR is to streamline the expedited
removal process, and this rule is complementary to that goal, but is
also necessary to incentivize lawful, safe, and orderly migratory
flows. This rule does not foreclose processing noncitizens through the
process established by the Asylum Processing IFR.
The Departments acknowledge that the approach in this rule is
different in certain respects from that articulated in the Asylum
Processing IFR issued in March 2022. However, the Departments believe
the current and impending situation on the ground along the SWB
warrants departing in some respects from the approach generally applied
in credible fear screenings. See 88 FR at 11742. The Asylum Processing
IFR was designed for non-exigent circumstances. However, as noted in
the NPRM, encounters of non-Mexican nationals at the SWB between POEs
have reached a 10-year high of 1.5 million in FY 2022,\79\ driven by
smuggling networks that enable and exploit this unprecedented movement
of people. This heightened migratory flow has overburdened the current
asylum system, resulting in a growing backlog of cases awaiting review
by AOs and IJs. See 88 FR at 11705. The exigent circumstances giving
rise to this rule arose after the Asylum Processing IFR was issued and
require departing from the general approach in the Asylum Processing
IFR in specific ways--i.e., applying the condition on eligibility
during credible fear screenings, applying the ``reasonable
possibility'' standards to individuals who cannot show a ``significant
possibility'' of eligibility for asylum based on the presumption
established in the rule, requiring an affirmative request for IJ review
of a negative credible fear determination, and limiting requests for
reconsideration after IJ review and instead providing for
reconsideration based only on USCIS's discretion.
---------------------------------------------------------------------------
\79\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
---------------------------------------------------------------------------
The Departments believe that the condition on eligibility and this
rule's departures from the Asylum Processing IFR are reasonable and
necessary for the reasons discussed in the NPRM. See 88 FR at 11744-47.
The rule will help achieve many of the goals outlined in the Asylum
Processing IFR, including improving efficiency; streamlining the
adjudication of asylum, statutory withholding of removal, and CAT
protection claims; and reducing the strain on the immigration courts by
screening out and removing those with non-meritorious claims more
quickly. See 87 FR 18078.
The Departments note that the rule does not apply a higher
``reasonable possibility'' standard to asylum claims; rather, the rule
applies the statutory ``significant possibility'' standard to asylum
claims, as explained elsewhere in this preamble. The rule only applies
the ``reasonable possibility'' standard to statutory withholding and
CAT claims, and only if a noncitizen is subject to and has not
established an exception to or rebutted the presumption at the credible
fear screening. Additionally, the Asylum Processing IFR did not
conclude that the higher standard was ``not effective'' at screening
out non-meritorious statutory withholding and CAT claims, but rather
made a policy determination that the higher standard was inefficient
given the circumstances of that particular rule. See 87 FR at 18092.
The Departments reached a different policy conclusion after the Asylum
Processing IFR was issued and believe that this rule is necessary to
address the current and exigent circumstances described throughout the
NPRM. See 88 FR at 11744-47.
The Departments appreciate commenters' support for the asylum
merits interview process, but the Departments reiterate the discussion
from the NPRM that the asylum merits interview process should not be
used for noncitizens subject to the presumption. See 88 FR at 11725-26.
This is because each such proceeding, in which the noncitizen would
only be eligible for forms of protection that the AO cannot grant
(withholding of removal or CAT protection), would have to ultimately be
adjudicated by an IJ. Further, the Departments note that the processes
relating to management of those who have already established a credible
fear
[[Page 31337]]
are different from the processes for migrants seeking entry into the
United States who are making an initial claim of fear.
iv. Unnecessary Given Parole Processes
Comment: Some commenters objected that although the Departments
stated that they anticipate a surge in CHNV individuals claiming fear
at the SWB after the termination of the Title 42 public health Order,
the proposed rule also claims that the parole processes for these
populations are working to limit irregular migration from these
countries.
Response: In an effort to address the significant increase in CHNV
migrants at the SWB, the United States has taken significant steps to
expand safe and orderly processes for migrants from these countries to
lawfully come to the United States. Specifically, these processes
provide a lawful and streamlined way for eligible CHNV nationals and
their family members to apply to come to the United States without
having to make the dangerous journey to the SWB.\80\ Individuals can
request an advance authorization to travel to the United States to be
considered on a case-by-case basis for a grant of temporary parole by
CBP. Noting the success of the CHNV parole processes coupled with
enforcement measures in limiting irregular migration of CHNV nationals,
the Departments also recognize that there are a number of factors that
could prevent the same level of success after the lifting of the Title
42 public health Order absent additional policy changes. See 88 FR at
11706. These factors include the presence of large CHNV populations
already in Mexico and elsewhere in the hemisphere as a result of past
migratory flows and the already large number of migrants from these
countries in the proximity of the SWB after they were expelled to
Mexico under the Title 42 public health Order. See id. In addition, as
the Departments noted in the NPRM, the incentive structure created by
the CHNV parole processes relies on the availability of an immediate
consequence, such as the application of expedited removal under this
rule, for those who do not have a valid protection claim or lawful
basis to stay in the United States. See 88 FR at 11731. The parole
processes thus work with this rule in a complementary manner to address
the expected surge in migration after the Title 42 public health Order
is lifted.
---------------------------------------------------------------------------
\80\ See DHS, Press Release, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), <a href="https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and">https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and</a>.
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v. Unnecessary Given Lack of Access to Asylum
Comment: Some commenters stated that the rule would not succeed at
meeting its goal of deterring irregular immigration since migrants are
already aware, even without the rule, that there is a low chance of
actually receiving asylum in the United States.
Response: The Departments reiterate that the rule's primary goal is
to incentivize migrants, including those intending to seek asylum, to
use lawful, safe, and orderly pathways to enter the United States, or
seek asylum or other protection in another country through which they
travel. The rule is intended to reduce the level of irregular migration
to the United States without discouraging migrants with valid claims
from applying for asylum or other protection. Even assuming migrants
are aware of the relative likelihood of success of their asylum claims,
the Departments do not believe the low ultimate approval rate for
asylum and other forms of protection, which has long been the status
quo, has served as a strong disincentive against making protection
claims given the comparatively high chance of receiving a positive
credible fear determination (83 percent for FYs 2014-19, see 88 FR at
11716) after which migrants are able to wait in the United States to
present their claims, the multi-year backlog of immigration court
cases,\81\ and the fact that many migrants who are denied asylum are
not ultimately removed, see id. Additionally, many noncitizens who are
encountered at the border and released pending their immigration
proceedings will spend years in the United States, regardless of the
outcome of their cases. See id. Indeed, most noncitizens who receive a
positive credible fear determination will be able to live and work in
the United States for the duration of their removal proceedings--which,
on average, take almost 4 years.\82\ This reality provides a powerful
incentive for noncitizens to make protection claims. Therefore, a low
approval rate for asylum applications does not necessarily offer much
disincentive against making protection claims.
---------------------------------------------------------------------------
\81\ See TRAC, Immigration Court Asylum Backlog through February
2023, <a href="https://trac.syr.edu/phptools/immigration/asylumbl/">https://trac.syr.edu/phptools/immigration/asylumbl/</a> (last
visited Mar. 14, 2023) (average 1,535 days from I-589 filing to
merits hearing).
\82\ OIS analysis of DOJ EOIR data based on data through March
31, 2023.
---------------------------------------------------------------------------
vi. Ineffective Without Changes to Withholding of Removal or CAT
Adjudications
Comment: Some commenters stated that if the process for applying
for statutory withholding of removal or CAT protection stays the same,
the rule would not be an effective deterrent for people who do not have
a meritorious claim for asylum who are seeking to delay their removal
from the United States. One commenter suggested that because those
subject to the rule can seek protection through statutory withholding
of removal and CAT, even with this rule in place, they will likely
continue to arrive without using a lawful pathway. The commenter
further stated that people fleeing unlivable conditions at home, the
overwhelmingly majority of whom have no real knowledge of U.S.
immigration law, are unlikely to carefully dissect the rule's subtle
changes to eligibility standards. And as long as migrants know there is
the possibility of protection in the United States--no matter whether
through asylum or another form of relief--they will likely continue to
make the dangerous trek to the border, where they will then cross.
Response: The Departments note that the rule would implement
changes to the existing credible fear screening process. Specifically,
if noncitizens cannot make a sufficient showing that the lawful
pathways condition on eligibility for asylum is inapplicable or that
they are subject to an exception or rebuttal ground, then the AO will
screen the noncitizen for statutory withholding of removal and
protection under the CAT using the higher ``reasonable possibility''
standard. See 8 CFR 208.33(b)(2)(i). This ``reasonable possibility''
standard is a change from the practice currently applied for statutory
withholding of removal and CAT protection in the credible fear process.
As explained in the NPRM, the Departments have long applied--and
continue to apply--the higher ``reasonable possibility'' of persecution
or torture standard in reasonable-fear screenings because this standard
better predicts the likelihood of succeeding on the ultimate statutory
withholding of removal or CAT protection application than does the
``significant possibility'' of establishing eligibility for the
underlying protection standard, given the higher burden of proof for
statutory withholding of removal and CAT protection. See 88 FR at
11746-47. The Dep
[…truncated; see source link]Indexed from Federal Register on May 16, 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.