Rule2024-12435
Securing the Border
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
June 7, 2024
Effective
June 5, 2024
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act ("INA"), finding that the entry into the United States of certain noncitizens during emergency border circumstances would be detrimental to the interests of the United States, and suspending and limiting the entry of those noncitizens. The Proclamation directed DHS and DOJ to promptly consider issuing regulations addressing the circumstances at the southern border, including any warranted limitations and conditions on asylum eligibility. The Departments are now issuing this IFR.
Full Text
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<title>Federal Register, Volume 89 Issue 111 (Friday, June 7, 2024)</title>
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[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Rules and Regulations]
[Pages 48710-48772]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12435]
[[Page 48709]]
Vol. 89
Friday,
No. 111
June 7, 2024
Part II
Department of Homeland Security
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 208, 235, and 1208
Securing the Border; Interim Final Rule
Federal Register / Vol. 89 , No. 111 / Friday, June 7, 2024 / Rules
and Regulations
[[Page 48710]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
[USCIS Docket No. USCIS-2024-0006]
RIN 1615-AC92
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5943-2024]
RIN 1125-AB32
Securing the Border
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS''); Executive Office for
Immigration Review (``EOIR''), Department of Justice (``DOJ'').
ACTION: Interim final rule (``IFR'') with request for comments.
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SUMMARY: On June 3, 2024, the President signed a Proclamation under
sections 212(f) and 215(a) of the Immigration and Nationality Act
(``INA''), finding that the entry into the United States of certain
noncitizens during emergency border circumstances would be detrimental
to the interests of the United States, and suspending and limiting the
entry of those noncitizens. The Proclamation directed DHS and DOJ to
promptly consider issuing regulations addressing the circumstances at
the southern border, including any warranted limitations and conditions
on asylum eligibility. The Departments are now issuing this IFR.
DATES:
Effective date: This IFR is effective at 12:01 a.m. eastern
daylight time on June 5, 2024.
Submission of public comments: Comments must be submitted on or
before July 8, 2024.
The electronic Federal Docket Management System will accept
comments prior to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on this IFR, identified by USCIS
Docket No. USCIS-2024-0006, through the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions for
submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to the Departments' officials, will
not be considered comments on the IFR and may not receive a response
from the Departments. Please note that the Departments cannot accept
any comments that are hand-delivered or couriered. In addition, the
Departments cannot accept comments contained on any form of digital
media storage devices, such as CDs/DVDs and USB drives. The Departments
are not accepting mailed comments at this time. If you cannot submit
your comment by using <a href="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 for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Acting Deputy Assistant Secretary for
Immigration Policy, Office of Strategy, Policy, and Plans, U.S.
Department of Homeland Security; telephone (202) 447-3459 (not a toll-
free call).
For the Executive Office for Immigration Review: 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:
Table of Contents
I. Public Participation
II. Executive Summary
A. Background and Purpose
B. Legal Authority
C. Summary of Provisions of the IFR
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of Removal, and CAT Protection
2. Expedited Removal and Screenings in the Credible Fear Process
3. Lawful Pathways Condition on Asylum Eligibility
B. Justification
1. Global Migration at Record Levels
2. Need for These Measures
3. Description of the Rule and Explanation of Regulatory Changes
C. Section-by-Section Description of Amendments
1. 8 CFR 208.13 and 1208.13
2. 8 CFR 208.35
3. 8 CFR 1208.35
4. 8 CFR 235.15
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Foreign Affairs
2. Good Cause
B. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14094 (Modernizing Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
List of Abbreviations
AO Asylum Officer
APA Administrative Procedure Act
BIA Board of Immigration Appeals (DOJ, EOIR)
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CBP U.S. Customs and Border Protection
CBP One app CBP One mobile application
CDC Centers for Disease Control and Prevention
CHNV Cuba, Haiti, Nicaragua, and Venezuela
DHS Department of Homeland Security
DOD Department of Defense
DOJ Department of Justice
EOIR Executive Office for Immigration Review
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FRP Family Reunification Parole
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration and Customs Enforcement
IFR Interim Final Rule
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ Immigration Judge
INA or the Act Immigration and Nationality Act
INS Immigration and Naturalization Service
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act
NTA Notice to Appear
OHSS Office of Homeland Security Statistics
OIS Office of Immigration Statistics
OMB Office of Management and Budget
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
UC Unaccompanied Child, having the same meaning as Unaccompanied
Alien Child as defined at 6 U.S.C. 279(g)(2)
UIP U.S. Customs and Border Protection Unified Immigration Portal
UMRA Unfunded Mandates Reform Act of 1995
UNHCR United Nations High Commissioner for Refugees
USBP U.S. Border Patrol
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
The Departments invite all interested parties to participate in
this rulemaking by submitting written data, views, comments, and
arguments on all aspects of this IFR by the deadline stated above. The
Departments also invite comments
[[Page 48711]]
that relate to the economic, environmental, or federalism effects that
might result from this IFR. Comments that will provide the most
assistance to the Departments in implementing these changes will
reference a specific portion of the IFR, explain the reason for any
recommended change, and include data, information, or authority that
supports such recommended change. Comments must be submitted in
English, or an English translation must be provided. Comments submitted
in a manner other than pursuant to the instructions, including emails
or letters sent to the Departments' officials, will not be considered
comments on the IFR and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must include the USCIS
Docket No. USCIS-2024-0006 for this rulemaking. All submissions may be
posted, without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to the
Departments. The Departments may withhold information provided in
comments from public viewing that they determine may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
USCIS Docket No. USCIS-2024-0006. You may also sign up for email alerts
on the online docket to be notified when comments are posted, or a
final rule is published.
II. Executive Summary
A. Background and Purpose
On June 3, 2024, the President signed a Proclamation under sections
212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding
that because the border security and immigration systems of the United
States are unduly strained at this time, the entry into the United
States of certain categories of noncitizens \1\ is detrimental to the
interests of the United States, and suspending and limiting the entry
of such noncitizens. The Proclamation explicitly excepts from its terms
certain persons who are not subject to the suspension and limitation.
This rule is necessary to respond to the emergency border circumstances
discussed in the Proclamation.
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\1\ For purposes of this preamble, the Departments use the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v.
Barr, 590 U.S. 222, 226 n.2 (2020).
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The Departments use the term ``emergency border circumstances'' in
this preamble to generally refer to situations in which high levels of
encounters at the southern border exceed DHS's capacity to deliver
timely consequences to most individuals who cross irregularly into the
United States and cannot establish a legal basis to remain in the
United States. As the preamble elsewhere explains, the periods during
which the Proclamation is intended to be in effect, when encounters
exceed certain thresholds, identify such situations. Hence, the
Departments in this preamble use the term ``emergency border
circumstances'' to refer more specifically to the period of time after
the date that the Proclamation's suspension and limitation on entry
would commence (as described in section 1 of the Proclamation) until
the discontinuation date referenced in section 2(a) of the Proclamation
or the date the President revokes the Proclamation (whichever comes
first), as well as any subsequent period during which the
Proclamation's suspension and limitation on entry would apply as
described in section 2(b) of the Proclamation.\2\ As the Proclamation
and this preamble explain, these circumstances exist despite the
Departments' efforts to address substantial levels of migration, and
such circumstances are a direct result of Congress's failure to update
outdated immigration laws and provide needed funding and resources for
the efficient operation of the border security and immigration systems.
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\2\ The Departments have sought to avoid describing ``emergency
border circumstances'' as the time period during which the
Proclamation is in effect, because the Departments intend for
certain provisions of this rule to remain in effect in the event a
court enjoins or otherwise renders inoperable the Proclamation or
this rule's limitation on asylum eligibility.
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The Proclamation explains that since 2021, as a result of political
and economic conditions globally, there have been substantial levels of
migration throughout the Western Hemisphere,\3\ including record levels
at the southwest land border (``SWB'').\4\ In
[[Page 48712]]
response to record levels of encounters at the SWB,\5\ the United
States Government has taken a series of significant steps to strengthen
consequences for unlawful or unauthorized entry at the border, while at
the same time overseeing the largest expansion of lawful, safe, and
orderly pathways and processes for individuals to come to the United
States for protection in decades.\6\ These steps include:
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\3\ According to OHSS analysis of the United Nations High
Commissioner for Refugees (``UNHCR'') data from 1969 to 2022, there
were more than 8.5 million displaced persons in the Western
Hemisphere in 2022, including approximately 6.6 million Venezuelans,
300,000 Nicaraguans, 260,000 Hondurans, 250,000 Cubans, 250,000
Colombians, 210,000 Haitians, and 210,000 Salvadorans, among others.
By comparison, prior to 2018 there were never more than 1 million
displaced persons in the hemisphere, and prior to 2007 there were
never more than 300,000. Nearly 1 in every 100 people in the Western
Hemisphere was displaced in 2022, compared to less than 1 in 1,000
displaced in the region each year prior to 2018. See UNHCR, Refugee
Data Finder, <a href="http://unhcr.org/refugee-statistics/download/?url=PhV1Xc">unhcr.org/refugee-statistics/download/?url=PhV1Xc</a> (last
visited May 27, 2024); see also UNHCR, Global Trends: Forced
Displacement in 2022, at 2, 8, 9, 12 (June 14, 2023), <a href="https://www.unhcr.org/global-trends-report-2022">https://www.unhcr.org/global-trends-report-2022</a> (showing rapid global
increases in forcibly displaced persons and other persons in need of
international protection in 2021 and 2022, and projecting
significant future increases); UNHCR, Venezuela Situation, <a href="https://www.unhcr.org/emergencies/venezuela-situation">https://www.unhcr.org/emergencies/venezuela-situation</a> (last updated Aug.
2023).
\4\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB'' and ``the southern
border.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. As defined in section 4(d) of
the Proclamation, the term ``southern border'' includes both the
southwest land border (``SWB'') and the southern coastal borders. As
defined in section 4(c) of the Proclamation, the term ``southwest
land border'' means the entirety of the United States land border
with Mexico. And as defined in section 4(b) of the Proclamation, the
term ``southern coastal borders'' means all maritime borders in
Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime
borders proximate to the SWB, the Gulf of Mexico, and the southern
Pacific coast in California; and all maritime borders of the United
States Virgin Islands and Puerto Rico. The Departments believe that
the factual circumstances described herein support applying this IFR
to both the SWB and the southern coastal borders, although they
recognize that occasionally different variations of this terminology
may be used. The Departments further note there are sound reasons
for the Proclamation and rule to include maritime borders of the
United States Virgin Islands and Puerto Rico; this aspect of the
Proclamation and rule help avoid any incentive for maritime
migration to such locations. The dangers of such migration, and the
operational challenges associated with responding to such maritime
migration, are well documented. See Securing America's Maritime
Border: Challenges and Solutions for U.S. National Security: Hearing
Before the Subcomm. on Transp. & Mar. Sec. of the H. Comm. on
Homeland Sec., 108th Cong. 10-11 (prepared statement of Rear Admiral
Jo-Ann F. Burdian, Assistant Commandant for Response Policy, U.S.
Coast Guard) (describing an increasingly challenging operational
environment and noting that most ``Cuban and Haitian migrants use
transit routes into Florida, either directly or via the Bahamas.
Alternatively, Dominican and some Haitian migrants use shorter
transit routes across the Mona Passage to Puerto Rico and the U.S.
Virgin Islands. Common conveyances used in this region range from
fishing vessels, coastal freighters, sail freighters, go-fast type
vessels, and `rusticas.' ''); PBS, More Than 100 Migrants Stranded
Near Puerto Rico Await Help During Human Smuggling Operation (Oct.
18, 2022), <a href="https://www.pbs.org/newshour/world/more-than-100-migrants-stranded-near-puerto-rico-await-help-during-human-smuggling-operation">https://www.pbs.org/newshour/world/more-than-100-migrants-stranded-near-puerto-rico-await-help-during-human-smuggling-operation</a> (``Mona Island is located in the treacherous
waters between Dominican Republic and Puerto Rico and has long been
a dropping off point for human smugglers promising to ferry Haitian
and Dominican migrants to the U.S. territory aboard rickety boats.
Dozens of them have died in recent months in an attempt to flee
their countries amid a spike in poverty and violence.''); United
States Coast Guard, Coast Guard Repatriates 38 Migrants to Dominican
Republic Following 2 Interdictions Near Puerto Rico (Apr. 25, 2024),
<a href="https://www.news.uscg.mil/Press-Releases/Article/3755880/coast-guard-repatriates-38-migrants-to-dominican-republic-following-2-interdict/">https://www.news.uscg.mil/Press-Releases/Article/3755880/coast-guard-repatriates-38-migrants-to-dominican-republic-following-2-interdict/</a>; United States Coast Guard, Coast Guard Repatriates 101
Migrants to Dominican Republic Following 3 Interdictions Near Puerto
Rico (Apr. 9, 2024), <a href="https://www.news.uscg.mil/Press-Releases/Article/3734747/coast-guard-repatriates-101-migrants-to-dominican-republic-following-3-interdic/">https://www.news.uscg.mil/Press-Releases/Article/3734747/coast-guard-repatriates-101-migrants-to-dominican-republic-following-3-interdic/</a>; United States Coast Guard, Coast
Guard, Federal, Local Interagency Responders Search for Possible
Survivors of Capsized Migrant Vessel in Camuy, Puerto Rico (Feb. 1,
2024), <a href="https://www.news.uscg.mil/Press-Releases/Article/3663106/coast-guard-federal-local-interagency-responders-search-for-possible-survivors/">https://www.news.uscg.mil/Press-Releases/Article/3663106/coast-guard-federal-local-interagency-responders-search-for-possible-survivors/</a>; United States Coast Guard, Coast Guard
Repatriates 28 Migrants to Dominican Republic, Following
Interdiction of Unlawful Migration Voyage in the Mona Passage (Jan.
31, 2024), <a href="https://www.news.uscg.mil/Press-Releases/Article/3661517/coast-guard-repatriates-28-migrants-to-dominican-republic-following-interdictio/">https://www.news.uscg.mil/Press-Releases/Article/3661517/coast-guard-repatriates-28-migrants-to-dominican-republic-following-interdictio/</a>. There were 35,100 encounters of Dominicans between
POEs at the SWB in Fiscal Year (``FY'') 2023 and 14,100 in the first
six months of FY 2024 (on pace for 28,200), up from an average of
400 such encounters per year in FY 2014 through FY 2019--roughly a
90-fold increase. Office of Homeland Security Statistics (``OHSS'')
analysis of March 2024 OHSS Persist Dataset.
\5\ At the SWB, U.S. Customs and Border Protection (``CBP'')
completed approximately 1.7 million encounters at and between POEs
in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY 2023, with
each year exceeding the previous record high of 1.68 million in FY
2000. Compare OHSS, 2022 Yearbook of Immigration Statistics 89 tbl.
33 (Nov. 2023), <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a> (total
apprehensions and Title 42 expulsions from 1925 to 2022), and id. at
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022), with OHSS,
2012 Yearbook of Immigration Statistics 96 tbl. 35 (July 2013),
<a href="https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2012.pdf">https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2012.pdf</a> (apprehensions from FY 2003
to FY 2012), and OHSS, 2002 Yearbook of Immigration Statistics 184
tbl. 40 (Oct. 2003), <a href="https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2002.pdf">https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2002.pdf</a> (apprehensions
from FY 1996 to FY 2002). In December 2023, CBP also completed a
single-month record of approximately 302,000 encounters at and
between POEs, almost one and a half times as many as the highest
monthly number recorded prior to 2021 (approximately 209,000 in
March 2000) based on records available in the OHSS Persist Dataset
from FY 2000 to the present. Although some of the increase in
encounters is explained by higher-than-normal numbers of repeat
encounters of the same individuals during the period in which
noncitizens were expelled pursuant to the Centers for Disease
Control and Prevention's (``CDC's'') Title 42 public health Order,
OHSS analysis of the March 2024 OHSS Persist Dataset indicates that
unique encounters were also at record high levels. See OHSS analysis
of March 2024 OHSS Persist Dataset.
DHS data in this IFR are current through March 31, 2024, the
most recent month for which DHS has data that have gone through its
full validation process. DHS primarily relies on two separate
datasets for most of the data in this IFR. Most DHS data are pulled
from OHSS's official statistical system of record data, known as the
OHSS Persist Dataset, which is typically released by OHSS on a 90-
day delay. Other data in this IFR are pulled from OHSS's Enforcement
Lifecycle dataset, which combines 23 separate DHS and DOJ datasets
to report on the end-to-end immigration enforcement process. Due to
this greater complexity, Lifecycle data generally become available
for reporting 90 to 120 days after the end of each quarter.
CBP also publishes preliminary data pulled from its operational
systems more quickly as part of its regular Monthly Operational
Updates. The data in these updates reflect operational realities but
change over time as transactional records in the systems of record
are cleaned and validated; they are best viewed as initial estimates
rather than as final historical records. CBP released an operational
update on May 15, 2024, that includes the Component's official
reporting for encounters through the end of April. Based on these
data, SWB encounters between POEs fell slightly by six percent
between March and April. OHSS analysis of data obtained from CBP,
Southwest Land Border Encounters, <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters">https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters</a> (last accessed May 24, 2024).
The preliminary April data are best understood to reflect a
continuation of the general pattern described elsewhere in this IFR.
Excluding March through April 2020, which was an unusual case
because of the onset of the COVID-19 pandemic, the average month-
over-month change between March and April for 2013 through 2024 is a
2.3 percent increase, with 4 out of those 11 years experiencing
decreases in April and 7 years experiencing increases.
\6\ See DHS, Fact Sheet: Department of State and Department of
Homeland Security Announce Additional Sweeping Measures to Humanely
Manage Border through Deterrence, Enforcement, and Diplomacy (May
10, 2023), <a href="https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border">https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border</a>.
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<bullet> Promulgating and implementing the rule titled
Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023)
(``Circumvention of Lawful Pathways rule'');
<bullet> Deploying more than 500 additional DHS personnel at a time
to the SWB to support U.S. Customs and Border Protection (``CBP'')
operations and refocusing a significant portion of DHS's SWB workforce
to prioritize migration management above other border security
missions; \7\
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\7\ DHS, Fact Sheet: The Biden-Harris Administration Takes New
Actions to Increase Border Enforcement and Accelerate Processing for
Work Authorizations, While Continuing to Call on Congress to Act
(Sept. 20, 2023), <a href="https://www.dhs.gov/news/2023/09/20/fact-sheet-biden-harris-administration-takes-new-actions-increase-border">https://www.dhs.gov/news/2023/09/20/fact-sheet-biden-harris-administration-takes-new-actions-increase-border</a>.
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<bullet> Deploying over 1,000 additional Department of Defense
(``DOD'') personnel on top of the 2,500 steady state presence to the
SWB in May 2023 to further enhance border security; \8\
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\8\ Id.; see also DOD, Austin Approves Homeland Security Request
for Troops at Border (May 2, 2023), <a href="https://www.defense.gov/News/News-Stories/Article/Article/3382272/austin-approves-homeland-security-request-for-troops-at-border/">https://www.defense.gov/News/News-Stories/Article/Article/3382272/austin-approves-homeland-security-request-for-troops-at-border/</a>.
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<bullet> Processing record numbers of individuals through expedited
removal; \9\
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\9\ In the months between May 12, 2023, and March 31, 2024, CBP
processed roughly 316,000 noncitizens encountered at and between SWB
POEs for expedited removal, more than in any prior full fiscal year.
OHSS analysis of data pulled from CBP Unified Immigration Portal
(``UIP'') on April 2, 2024.
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<bullet> Implementing a historic expansion of lawful pathways and
processes to come to the United States, including: the Cuba, Haiti,
Nicaragua, and Venezuela (``CHNV'') parole processes, which allow
individuals with U.S.-based supporters to seek parole on a case-by-case
basis for urgent humanitarian reasons or significant public benefit;
the Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and
Guatemala, which provide access to expedited refugee processing for
eligible individuals; and the expansion of country-specific family
reunification parole processes for individuals in the region who have
U.S. citizen relatives in the United States; \10\
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\10\ 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>.
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<bullet> Expanding opportunities to enter the United States for
seasonal employment; \11\
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\11\ DHS, DHS to Supplement H-2B Cap with Nearly 65,000
Additional Visas for FY 2024, Department of Homeland Security (Nov.
3, 2023), <a href="https://www.dhs.gov/news/2023/11/03/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2024">https://www.dhs.gov/news/2023/11/03/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2024</a>.
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<bullet> Establishing a mechanism for over 1,400 migrants per day
to schedule a time and place to arrive in a safe, orderly, and lawful
manner at ports of entry (``POEs'') through the CBP One mobile
application (``CBP One app''); \12\
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\12\ 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>; CBP, CBP
One<SUP>TM</SUP> Appointments Increased to 1,450 Per Day (June 30,
2023), <a href="https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day">https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day</a>.
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<bullet> Increasing proposed refugee admissions from the Western
Hemisphere from 5,000 in Fiscal Year (``FY'') 2021 to up to 50,000 in
FY 2024; \13\
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\13\ U.S. State Dep't, Report to Congress on Proposed Refugee
Admissions for Fiscal Year 2024 (Nov. 3, 2023) <a href="https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2024/">https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2024/</a>.
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[[Page 48713]]
<bullet> Completing approximately 89 percent more immigration court
cases in FY 2023 as compared to FY 2019; \14\ and
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\14\ See EOIR, Adjudication Statistics: New Cases and Total
Completions--Historical 1-2 (Oct. 12, 2023), <a href="https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf">https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf</a>.
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<bullet> Increasing the immigration judge (``IJ'') corps by 66
percent from FY 2019 to FY 2023, including maximizing the
congressionally authorized number in FY 2023 for a total corps of
734.\15\
---------------------------------------------------------------------------
\15\ See EOIR, Adjudication Statistics: Immigration Judge (IJ)
Hiring 1 (Jan. 2024), <a href="https://www.justice.gov/eoir/media/1344911/dl?inline">https://www.justice.gov/eoir/media/1344911/dl?inline</a> (showing 734 total IJs on board in FY 2023); Executive
Office for Immigration Review (``EOIR'') Strategic Plan 2024,
Current Operating Environment, <a href="https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment">https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment</a> (last
visited May 27, 2024) (``The agency's streamlining efforts also
enabled EOIR, by the close of FY 2023, to fill all 734 appropriated
IJ positions, thus creating the largest judge corps in the agency's
history.'').
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The Proclamation further states that although these efforts and
other complementary measures are having their intended effect--DHS is
processing noncitizens for removal in record numbers and with record
efficiency \16\--the border security and immigration systems have not
been able to keep pace with the number of individuals arriving at the
southern border.\17\ Simply put, the Departments do not have adequate
resources and tools to deliver timely decisions and consequences to
individuals who cross unlawfully and cannot establish a legal basis to
remain in the United States, or to provide timely protection to those
ultimately found eligible for protection when individuals are arriving
at such elevated, historic volumes.\18\
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\16\ See supra note 9. Since May 12, 2023, the median time to
refer noncitizens encountered by CBP at the SWB who claim a fear for
credible fear interviews decreased by 77 percent from its historical
average, from 13 days in the FY 2014 to FY 2019 pre-pandemic period
to 3 days in the four weeks ending March 31, 2024; for those who
receive negative credible fear determinations, the median time from
encounter to removal, over the same time frames, decreased 85
percent from 73 days to 11 days. Pre-May 12, 2023, data from OHSS
Lifecycle Dataset as of December 31, 2023; post-May 11, 2023, data
from OHSS analysis of data downloaded from UIP on April 2, 2024.
DHS removed or returned over 662,000 noncitizens between May 12,
2023, and March 31, 2024, or an average of over 61,300 per month
(excluding crew members detained on board their vessels and other
administrative returns); this represents the highest average monthly
count of removals and returns since FY 2010. Post-May 12, 2023,
repatriations from OHSS analysis of data downloaded from UIP on
April 2, 2024; see also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last
updated May 10, 2024) (providing historic data on repatriations);
OHSS, 2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov.
2023), <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a>
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\17\ See Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, Office of
Management and Budget (``OMB'') (Aug. 10, 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf</a>.
\18\ Id.; see also Ariel G. Ruiz-Soto et al., Migration Pol'y
Inst., Shifting Realities at the U.S.-Mexico Border: Immigration
Enforcement and Control in a Fast-Evolving Landscape 20 (Jan. 2024),
<a href="https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf">https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf</a> (``Across the border,
interviewed agents expressed frustration with low staffing levels
and resource allocations compared to the challenge of managing the
border.''). DHS acknowledges that the enacted FY 2024 DHS budget
does appropriate funding sufficient to pay for approximately 2,000
additional Border Patrol agents, bringing the total level indicated
by Congress up to 22,000 agents, compared with 19,855 agents for FY
2023. 170 Cong Rec. H1809-10 (daily ed. Mar. 22, 2024) (Explanatory
Statement Regarding H.R. 2882, Further Consolidated Appropriations
Act, 2024) (``The agreement includes . . . [funding] to hire 22,000
Border Patrol Agents.''); 168 Cong Rec. S8557 (daily ed. Dec. 20,
2022) (Explanatory Statement Regarding H.R. 2617, Consolidated
Appropriations Act, 2023) (``The agreement provides funding for
19,855 Border Patrol agents.''). However, the FY 2024 appropriations
do not fully fund CBP's existing operational and staffing
requirements. Additionally, CBP estimates that it will likely be
unable to implement a hiring surge to meaningfully grow its overall
staffing levels towards the staffing levels funded by the FY 2024
budget before the end of the current fiscal year. The hiring process
requires time and resources to bring additional agents on board. For
example, it generally takes more than six months for an applicant to
complete the hiring process and report to the U.S. Border Patrol
(``USBP'') Academy to receive necessary training. See DHS, Statement
from Secretary Mayorkas on the President's Fiscal Year 2025 Budget
for the U.S. Department of Homeland Security (Mar. 11, 2024),
<a href="https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department">https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department</a> (``However, DHS's
border security and immigration enforcement efforts along the
Southwest border desperately require the additional funds requested
by the Administration and included in the Senate's bipartisan border
security legislation, which would provide DHS with approximately $19
billion to fund additional personnel, facilities, repatriation
capabilities, and other enforcement resources.'').
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This became even more clear in the months following the lifting of
the Title 42 public health Order.\19\ As the Departments resumed
widespread processing under title 8 authorities, the insufficiency of
both the available statutorily authorized tools and the resources
provided to implement them came into stark focus. Despite the expanded
ability to impose consequences at the SWB through the Circumvention of
Lawful Pathways rule and complementary measures, which led to the
highest numbers of returns and removals in more than a decade,\20\
encounter levels have remained elevated well above historical levels,
with December 2023 logging the highest monthly total on record.\21\
While encounter levels in calendar year 2024 have decreased from these
record numbers, there is still a substantial and elevated level of
migration, and historically high percentages of migrants are claiming
fear and are challenging to remove, as discussed in more detail in
Section III.B.1 of this preamble.\22\ This
[[Page 48714]]
substantial migration throughout the hemisphere, combined with
inadequate resources and tools to keep pace, limits DHS's ability to
impose timely consequences through expedited removal, the main
consequence available at the border under title 8 authorities.
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\19\ 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[ed] 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''). Although the CDC indicated its intention to lift the order on
May 23, 2022, ongoing litigation prevented the order from being
lifted until it ultimately expired on May 11, 2023. See 88 FR at
31319.
\20\ In the ten and a half months between May 12, 2023, and
March 31, 2024, DHS completed over 662,000 removals and enforcement
returns, more than in any full fiscal year since FY 2011, and the
highest monthly average of enforcement repatriations since FY 2010.
Post-May 12, 2023, repatriations from OHSS analysis of data
downloaded from UIP on April 2, 2024; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing historic data on
repatriations); OHSS, 2022 Yearbook of Immigration Statistics 103-04
tbl. 39 (Nov. 2023), <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a>
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\21\ There were nearly 302,000 CBP encounters at and between
POEs along the SWB in December 2023, higher than any previous month
on record. OHSS analysis of March 2024 OHSS Persist Dataset and
historic CBP data for encounters prior to FY 2000; see also OHSS,
2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov. 2023)
(total apprehensions and Title 42 expulsions from 1925 to 2022),
<a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a>; id. at
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (SWB encounters from FY
2014 through December 2023).
\22\ After peaking at nearly 302,000 in December 2023,
encounters at and between POEs along the SWB fell to approximately
176,000 in January 2024, 190,000 in February 2024, and 189,000 in
March 2024. At an average of 185,000 for the first three months of
2024, monthly encounters levels were almost 4 times higher than the
pre-pandemic (FY 2014 through 2019) average of 48,000 encounters at
and between POEs per month and--with the exceptions of FY 2022 and
FY 2023--represented the highest second quarter count of encounters
in any year since FY 2001. March 2024 OHSS Persist Dataset; see also
OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov.
2023), <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a> (total
apprehensions and title 42 expulsions from 1925 to 2022); id. at 94-
96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (SWB encounters from FY
2014 through December 2023).
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The sustained, high encounter rates the Departments have
experienced over the past year have outstripped the Departments'
abilities--based on available resources--to process noncitizens through
expedited removal in significant numbers. Due to its funding shortfall,
DHS simply lacks sufficient resources, such as sufficient USCIS asylum
officers (``AOs'') to conduct fear screenings and sufficient temporary
processing facilities, often called ``soft-sides,'' which limits DHS's
ability to conduct credible fear interviews for individuals in CBP
custody and to process and hold individuals in U.S. Immigration and
Customs Enforcement (``ICE'') custody during the expedited removal
process.\23\ This mismatch in available resources and encounters
creates stress on the border and immigration systems and forces DHS to
rely on processing pathways outside of expedited removal--limiting the
Departments' ability to deliver timely consequences to individuals who
do not have a legal basis to remain in the United States.\24\
Individuals who are subject to but cannot be processed under expedited
removal due to resource constraints are instead released pending
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a
(``section 240 removal proceedings''), before an IJ, a process that can
take several years to conclude.\25\ These immigration court proceedings
can be less resource intensive for processing upon initial encounter,
because individuals can be released from custody fairly quickly, but
are also far less likely to result in swift decisions and swift
consequences, and generally require more IJ and ICE attorney time to
resolve. Compare INA 235(b)(1), 8 U.S.C. 1225(b)(1), with INA 240, 8
U.S.C. 1229a. Notably, in FY 2023, when the immigration courts had a
historic high number of case completions, the number of new cases far
outnumbered those completions and led to a larger backlog--likely
extending the length of time it will take individuals encountered and
referred into section 240 removal proceedings to finish their
immigration court process.\26\
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\23\ ``Because ICE has very limited detention capacity and
appropriated bedspace has remained relatively static, the agency
must carefully prioritize whom it detains. Similar to FY 2022,
during FY 2023, Enforcement and Removal Operations' limited
detention capacity was primarily used to house two populations:
noncitizens CBP arrested at the Southwest Border and noncitizens
with criminal histories [Enforcement and Removal Operations]
arrested in the interior.'' Fiscal Year 2023 ICE Annual Report 18
(Dec. 29, 2023), <a href="https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf">https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf</a>. In FY 2024, ICE was appropriated
$5,082,218,000.00 ``for enforcement, detention and removal
operations.'' Consolidated Appropriations Act, 2024, Public Law 118-
47, 138 Stat. 460, 598 (2024). The joint explanatory statement
states that the bill provides ``$5,082,218,000 for Enforcement and
Removal Operations (ERO)'' and ``$355,700,000 for 41,500 beds for
the full fiscal year and inflationary adjustments to support current
detention facility operations.'' 170 Cong. Rec. H1807, 1812 (daily
ed. Mar. 22, 2024).
\24\ See CBP, Custody and Transfer Statistics, <a href="https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics">https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics</a> (last
updated Apr. 12, 2024) (table showing that, under current
constraints, the number of individuals processed for expedited
removal makes up only a fraction of total processing dispositions,
including section 240 proceedings).
\25\ EOIR decisions completed in December 2023 were, on average,
initiated in December 2020, during the significant operational
disruptions caused by the COVID-19 pandemic (with encounters several
months earlier than that), but 50 percent of EOIR cases initiated
during that time were still pending as of December 2023, so the
final mean processing time (once all such cases are complete) will
be longer. OHSS analysis of EOIR data as of February 12, 2024; EOIR
Strategic Plan 2024, Current Operating Environment, <a href="https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment">https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment</a> (last visited May 26, 2024) (``EOIR [ ]
suffered operational setbacks during the COVID-19 pandemic years of
FY 2020 through FY 2022, including declining case completions due to
health closures and scheduling complications and delays in agency
efforts to transition to electronic records and the efficiencies
they represent. While the challenges of the pandemic were overcome
by adaptive measures taken during those years, the pandemic's impact
on the pending caseload is still being felt.''). While EOIR does not
report statistics on pending median completion times for removal
proceedings in general, it does report median completion times for
certain types of cases, such as detained cases and cases involving
UCs. See, e.g., EOIR, Median Unaccompanied Noncitizen Child (UAC)
Case Completion and Case Pending Time (Jan. 18, 2024), <a href="https://www.justice.gov/eoir/media/1344951/dl?inline">https://www.justice.gov/eoir/media/1344951/dl?inline</a> (median completion time
of 1,346 days); EOIR, Median Completion Times for Detained Cases
(Jan. 18, 2024), <a href="https://www.justice.gov/eoir/media/1344866/dl?inline">https://www.justice.gov/eoir/media/1344866/dl?inline</a> (median completion time of 47 days in the first quarter of
2024 for removal, deportation, exclusion, asylum-only, and
withholding-only cases); EOIR, Percentage of DHS-Detained Cases
Completed within Six Months (Jan. 18, 2024), <a href="https://www.justice.gov/eoir/media/1344886/dl?inline">https://www.justice.gov/eoir/media/1344886/dl?inline</a> (reporting seven
percent of detained cases not completed within six months).
\26\ EOIR completed more than 520,000 cases in FY 2023 (a record
number), but also had almost 1.2 million case receipts, resulting in
a net increase of nearly 700,000 cases in its backlog. See EOIR,
Adjudication Statistics: Pending Cases, New Cases, and Total
Completions 1 (Oct. 12, 2023), <a href="https://www.justice.gov/d9/pages/attachments/2020/01/31/1_pending_new_receipts_and_total_completions.pdf">https://www.justice.gov/d9/pages/attachments/2020/01/31/1_pending_new_receipts_and_total_completions.pdf</a>; EOIR, Adjudication
Statistics: New Cases and Total Completions--Historical (Oct. 12,
2023), <a href="https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf">https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf</a>. OHSS estimates
that 1.1 million of the nearly 1.2 million case receipts (95
percent) resulted from SWB encounters. OHSS analysis of March 2024
OHSS Persist Dataset.
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Said another way, at the current levels of encounters and with
current resources, the Departments cannot predictably and swiftly
deliver consequences to most noncitizens who cross the border without a
lawful basis to remain. This inability to predictably deliver timely
decisions and consequences further compounds incentives for migrants to
make the dangerous journey to the SWB, regardless of any individual
noncitizen's ultimate likelihood of success on an asylum or protection
application.\27\ Smugglers and transnational criminal organizations
(``TCOs'') have exploited this mismatch, further fueling migration by
actively advertising to migrants that they are likely to be able to
remain in the United States.\28\
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\27\ Miriam Jordan, One Big Reason Migrants Are Coming in
Droves: They Believe They Can Stay, N.Y. Times (Jan. 31, 2024),
<a href="https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html">https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html</a>.
\28\ See Parker Asmann & Steven Dudley, How US Policy Foments
Organized Crime on US-Mexico Border, Insight Crime (June 28, 2023),
<a href="https://insightcrime.org/investigations/how-us-policy-foments-organized-crime-us-mexico-border/">https://insightcrime.org/investigations/how-us-policy-foments-organized-crime-us-mexico-border/</a>.
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The Departments' ability to refer and process noncitizens through
expedited removal thus continues to be overwhelmed, creating a vicious
cycle in which the border security and immigration systems cannot
deliver timely decisions and consequences to all the people who are
encountered at the SWB and lack a lawful basis to remain in the United
States. This, in turn, forces DHS to release individuals into the
backlogged immigration court system; for the many cases in that system
initiated just prior to or during the COVID-19 pandemic, the process
can take several years to result in a final decision or
consequence,\29\ which then incentivizes more people to make the
dangerous journey north to take their chances at the SWB.\30\ The
status quo of the broken immigration and asylum system has become a
driver for unlawful migration throughout the region and an increasingly
lucrative source of income for dangerous TCOs.\31\ Without
countermeasures, those TCOs will continue to grow in strength, likely
resulting in even more smuggling operations and undermining democratic
governance in the countries where they operate.\32\ All of these
factors, taken together, pose significant threats to the
[[Page 48715]]
safety and security of migrants exploited into making the dangerous
journey to the SWB and the U.S. communities through which many such
migrants transit.
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\29\ See supra note 25.
\30\ See, e.g., Jordan, supra note 27.
\31\ See Asmann & Dudley, supra note 28.
\32\ See Jordan, supra note 27.
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In the absence of congressional action to appropriately resource
DHS and EOIR and to reform the outdated statutory framework, the
Proclamation and the changes made by this rule are intended to
substantially improve the Departments' ability to deliver timely
decisions and consequences to noncitizens who lack a lawful basis to
remain. By suspending and limiting entries until 12:01 a.m. eastern
time on the date that is 14 calendar days after the Secretary makes a
factual determination that there has been a 7-consecutive-calendar-day
average of less than 1,500 encounters, as defined by the Proclamation,
but excluding noncitizens determined to be inadmissible at a SWB POE,
and by imposing a limitation on asylum eligibility and making other
policy changes, the Proclamation and IFR will realign incentives at the
southern border.\33\ The Proclamation and IFR will do this by improving
DHS's ability to place into expedited removal the majority of
noncitizens who are amenable to such processing; to avoid large-scale
releases of such individuals pending section 240 removal proceedings;
and to allow for swift resolution of their cases and, where
appropriate, removal.
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\33\ Under the Proclamation, the term ``encounter'' refers to a
noncitizen who (i) is physically apprehended by CBP immigration
officers within 100 miles of the United States SWB during the 14-day
period immediately after entry between POEs; (ii) is physically
apprehended by DHS personnel at the southern coastal borders during
the 14-day period immediately after entry between POEs; or (iii) is
determined to be inadmissible at a SWB POE. But the 1,500 and 2,500
encounter thresholds in the Proclamation and this rule exclude the
third category of encounters--individuals determined to be
inadmissible at a SWB POE. When describing historical data in this
preamble, the Departments have generally sought to distinguish
between encounters between POEs (also referred to as ``USBP
encounters'') and encounters at and between the POEs (also referred
to as ``total CBP encounters'' or ``encounters,'' depending on the
context).
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The Proclamation imposes a suspension and limitation on entry upon
certain classes of noncitizens who are encountered while the suspension
and limitation is in effect. The Proclamation provides that the
suspension and limitation on entry applies beginning at 12:01 a.m.
eastern daylight time on June 5, 2024. The suspension and limitation on
entry will be discontinued 14 calendar days after the Secretary makes a
factual determination that there has been a 7-consecutive-calendar-day
average of less than 1,500 encounters, as defined by the Proclamation,
but excluding noncitizens determined to be inadmissible at a SWB POE.
Unaccompanied children (``UCs'') \34\ from non-contiguous countries are
not included in calculating the number of encounters. If at any time
after such a factual determination the Secretary makes a factual
determination that there has been a 7-consecutive-calendar-day average
of 2,500 encounters or more, the suspension and limitation on entry
will apply at 12:01 a.m. eastern time on the next calendar day (or will
continue to apply, if the 14-calendar-day period has yet to elapse)
until 14 days after the Secretary makes another factual determination
that there has been a 7-consecutive-calendar-day average of less than
1,500 encounters or the President revokes the Proclamation, at which
time its application will be discontinued once again.
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\34\ In this rulemaking, as in the Proclamation, the term
``unaccompanied children'' or ``UCs'' has the same meaning as the
term ``unaccompanied alien child[ren]'' under 6 U.S.C. 279(g)(2).
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The Proclamation does not apply to the following persons:
(i) any noncitizen national of the United States;
(ii) any lawful permanent resident of the United States;
(iii) any unaccompanied child as defined in section 279(g)(2) of
title 6, United States Code;
(iv) any noncitizen who is determined to be a victim of a severe
form of trafficking in persons, as defined in section 7102(16) of title
22, United States Code;
(v) any noncitizen who has a valid visa or other lawful permission
to seek entry or admission into the United States, or presents at a
port of entry pursuant to a pre-scheduled time and place, including:
(A) members of the United States Armed Forces and associated
personnel, United States Government employees or contractors on orders
abroad, or their accompanying family members who are on their orders or
are members of their household;
(B) noncitizens who hold a valid visa or who have all necessary
documents required for admission consistent with the requirements of
section 1182(a)(7) of title 8, United States Code, upon arrival at a
port of entry;
(C) noncitizens traveling pursuant to the visa waiver program as
described in section 217 of the INA, 8 U.S.C. 1187; and
(D) noncitizens who arrive in the United States at a southwest land
border port of entry pursuant to a process the Secretary of Homeland
Security determines is appropriate to allow for the safe and orderly
entry of noncitizens into the United States;
(vi) any noncitizen who is permitted to enter by the Secretary of
Homeland Security, acting through a U.S. Customs and Border Protection
immigration officer, based on the totality of the circumstances,
including consideration of significant law enforcement, officer and
public safety, urgent humanitarian, and public health interests at the
time of the entry or encounter that warranted permitting the noncitizen
to enter; and
(vii) any noncitizen who is permitted to enter by the Secretary of
Homeland Security, acting through a U.S. Customs and Border Protection
immigration officer, due to operational considerations at the time of
the entry or encounter that warranted permitting the noncitizen to
enter.
The President authorized the Secretary of Homeland Security and the
Attorney General to issue any instructions, orders, or regulations as
may be necessary to implement the Proclamation, including the
determination of the exceptions in section 3(b), and directed them to
promptly consider issuing any instructions, orders, or regulations as
may be necessary to address the circumstances at the southern border,
including any additional limitations and conditions on asylum
eligibility that they determine are warranted, subject to any
exceptions that they determine are warranted.
Consistent with the President's direction, the Departments have
determined that this IFR is necessary to address the situation at the
southern border. This IFR aligns the Departments' border operations and
applicable authorities with the Proclamation's policy and objectives.
Specifically, this IFR establishes a limitation on asylum eligibility
that applies to certain individuals who enter during emergency border
circumstances and revises certain procedures applicable to the
expedited removal process to more swiftly apply consequences for
irregular migration \35\ and remove noncitizens who do not have a legal
basis to remain in the United States. Although the Departments are
adopting these measures to respond to the emergency situation at the
southern border, they are not a substitute for congressional action--
which remains the only long-term solution to the challenges the
Departments have confronted on the border for more than a decade.
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\35\ In this preamble, ``irregular migration'' refers to the
movement of people into another country without authorization.
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[[Page 48716]]
B. Legal Authority
The Secretary and the Attorney General jointly issue this rule
pursuant to their shared and respective authorities concerning
consideration of claims for asylum, statutory withholding of removal,
and protection under regulations implemented pursuant to U.S.
obligations under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'').\36\ The
Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat.
2135, as amended, created DHS and transferred to the Secretary of
Homeland Security many functions related to the administration and
enforcement of Federal immigration law while maintaining some functions
and authorities with the Attorney General, including some shared
concurrently with the Secretary.
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\36\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, 114; see also 8 U.S.C.
1231 note (United States Policy With Respect to Involuntary Return
of Persons in Danger of Subjection to Torture); 8 CFR 208.16(c)-
208.18, 1208.16(c)-1208.18.
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The INA, as amended by the HSA, charges the Secretary ``with the
administration and enforcement of [the INA] and all other laws relating
to the immigration and naturalization of 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)(3), 8 U.S.C. 1103(a)(3); see also 6 U.S.C. 202.
The HSA provides 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 [EOIR], 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'' the Attorney General's
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 removal proceedings under section 240 of the INA, 8 U.S.C.
1229a (``section 240 removal proceedings''). These adjudications are
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g)(1), 8
U.S.C. 1103(g)(1). With limited exceptions, IJs 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's EOIR, in turn
hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1), (b)(3); see
also Garland v. Ming Dai, 593 U.S. 357, 366-67 (2021) (describing
appeals from IJs to the BIA). And 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.\37\ 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'' within the meaning of section
101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42)(A). 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]'').\38\
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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\37\ The HSA further provides, ``Nothing in this Act, any
amendment made by this Act, or in section 103 of the [INA], as
amended . . . , shall be construed to limit judicial deference to
regulations, adjudications, interpretations, orders, decisions,
judgments, or any other actions of the Secretary of Homeland
Security or the Attorney General.'' Public Law 107-296, 116 Stat.
2135, 2274 (codified at 6 U.S.C. 522).
\38\ Under the HSA, the references to the ``Attorney General''
in the INA also encompass the Secretary with respect to statutory
authorities vested in the Secretary by the HSA or subsequent
legislation, including in relation to immigration proceedings before
DHS. 6 U.S.C. 251, 271(b)(3), (5), 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 establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA 103(a)(3), 8 U.S.C.
1103(a)(3); 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 AOs
conduct credible fear interviews, make credible fear determinations,
and determine whether a noncitizen's asylum application should be
granted. See DHS, No. 0150.1, Delegation to the Bureau of Citizenship
and Immigration Services (June 5, 2003); 8 CFR 208.2(a), 208.9, 208.30.
The United States is a party to the 1967 Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of
the Refugee Convention generally 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.'' Refugee
Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.
[[Page 48717]]
Congress implemented these obligations through the Refugee Act of
1980, Public Law 96-212, 94 Stat. 102 (``Refugee Act''), creating the
precursor to what is now known as statutory withholding of removal. The
Supreme Court has long recognized that the United States implements its
non-refoulement obligations under Article 33 of the Refugee Convention
(via the Refugee Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3)
(``statutory withholding of removal''), 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.\39\ 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), (3), (g)(1)-(2), 8 U.S.C.
1103(a)(1), (3), (g)(1)-(2).
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\39\ 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.'').
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The Departments also have authority to implement Article 3 of the
CAT. 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 (codified at 8 U.S.C.
1231 note). DHS and DOJ have implemented the obligations of the United
States under Article 3 of the CAT in the Code of Federal Regulations,
consistent with FARRA. See, e.g., 8 CFR 208.16(c)-208.18, 1208.16(c)-
1208.18; Regulations Concerning the Convention Against Torture, 64 FR
8478 (Feb. 19, 1999), amended by 64 FR 13881 (Mar. 23, 1999).
This rule is necessary because, while the Proclamation recognizes
that the asylum system has contributed to the border emergency, the
Proclamation itself does not and cannot affect noncitizens' right to
apply for asylum, eligibility for asylum, or asylum procedures. That
has been the Executive Branch's consistent position for four
decades.\40\ That longstanding understanding follows from the text and
structure of the governing statutes. Section 212(f) provides that under
certain circumstances, the President may ``suspend the entry of all
aliens or any class of aliens as immigrants or nonimmigrants, or impose
on the entry of aliens any restrictions he may deem to be
appropriate.'' INA 212(f), 8 U.S.C. 1182(f). Although this provision--
first enacted in 1952--``grants the President broad discretion,'' it
``operate[s]'' only in its ``sphere[ ].'' Trump v. Hawaii, 585 U.S.
667, 683-84, 695 (2018). Section 212 of the INA, 8 U.S.C. 1182
(entitled ``Inadmissible aliens''), generally ``defines the universe of
aliens who are admissible'' and ``sets the boundaries of admissibility
into the United States.'' Id. at 695. Hence, when section 212(f)
authorizes the President to suspend ``entry,'' it ``enabl[es] the
President to supplement the other grounds of inadmissibility in the
INA,'' id. at 684 (citing Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2
(D.C. Cir. 1986)), and to bar individuals from entry into the United
States.
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\40\ In 1984, then-Assistant Attorney General of the Office of
Legal Counsel Theodore B. Olson advised that section 212(f) did not
permit the President to eliminate the asylum rights of noncitizens
who had hijacked a plane and, as a condition of the plane's release,
been flown to the United States. And in 2018, the Departments
reaffirmed that ``[a]n alien whose entry is suspended or restricted
under . . . a [section 212(f)] proclamation, but who nonetheless
reaches U.S. soil contrary to the President's determination that the
alien should not be in the United States, would remain subject to
various procedures under immigration laws,'' including ``expedited-
removal proceedings'' where they could ``raise any claims for
protection.'' Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934, 55940 (Nov. 9, 2018). Although Presidents have invoked
section 212(f) at least 90 times since 1981, to the Departments'
knowledge, none of those proclamations was understood to affect the
right of noncitizens on U.S. soil to apply for, or noncitizens'
statutory eligibility to receive, asylum. See Kelsey Y. Santamaria
et al., Cong. Rsch. Serv., Presidential Authority to Suspend Entry
of Aliens Under 8 U.S.C. 1182(f) (Feb. 21, 2024). At the same time,
nothing in the proclamations or the INA have precluded the
Departments from considering as an adverse discretionary criterion
that a noncitizen is described in a section 212(f) proclamation.
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This authority, though broad, does not authorize the President to
override the asylum statute.\41\ The asylum statute, first enacted in
the Refugee Act of 1980, today provides that ``[a]ny alien who is
physically present in the United States or who arrives in the United
States . . . irrespective of such alien's status, may apply for
asylum.'' INA 208(a)(1), 8 U.S.C. 1158(a)(1). The right to apply for
asylum thus turns on whether a noncitizen is ``physically present'' or
has ``arrive[d] in the United States,'' id., as those terms are
properly understood, and exists regardless of whether a noncitizen is
inadmissible.\42\ As a result, the power under section 212(f) to
suspend ``entry'' does not authorize the President to override the
asylum rights of noncitizens who have already physically entered the
United States and who are entitled to an adjudication of eligibility
under the applicable statutory and regulatory rules and standards.\43\
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\41\ The Supreme Court, though it has never squarely addressed
this issue, has also never indicated that section 212(f) confers
power to affect asylum rights of those present in the United States.
Cf., e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174-77
(1993) (upholding a Coast Guard program of intercepting migrant
vessels and returning migrants to their home country, authorized in
part by section 212(f), on the basis that statutory rights under the
withholding of removal statute did not have ``extraterritorial
application'' to migrants who were not physically present); Hawaii,
585 U.S. at 689, 695 (assuming, without deciding, that section
212(f) ``does not allow the President to expressly override
particular provisions of the INA,'' while emphasizing the particular
``sphere[ ]'' in which it operates).
\42\ Section 212(f) contrasts with 42 U.S.C. 265, which
authorizes the CDC to temporarily suspend ``the right to introduce .
. . persons and property'' into the United States if such suspension
``is required in the interest of the public health.'' During the
COVID-19 pandemic and to prevent the ``serious danger of the
introduction of [the] disease into the United States,'' 42 U.S.C.
265, the CDC issued an order invoking section 265 to expel certain
noncitizens without allowing asylum applications. As the final rule
implementing section 265 explained, the provision is part of a
``broad public health statute'' that ``operates separately and
independently of the immigration power'' and authorizes the CDC ``to
temporarily suspend the effect of any law . . . by which a person
would otherwise have the right to be introduced . . . into the
U.S.,'' Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424, 56426, 56442 (Sept.
11, 2020), including the immigration laws, id. at 56426 (noting that
legislative history indicates that section 265 was intended to
suspend immigration if public health required it). The drafting
history of section 265 also confirms that Congress conferred
authority to prohibit ``the introduction of persons'' in order to
broaden this provision and that this provision subsumed but was not
limited to the authority to ``suspend immigration.'' Br. for
Appellants at 41-43, Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C.
Cir. 2022) (No. 21-5200); see Huisha-Huisha, 27 F.4th at 730-31
(determining plaintiffs not likely to succeed on their challenge to
the CDC order on the ground that it improperly suspended migrants'
right to apply for asylum). Section 265 is a public-health authority
under the Public Health Service Act. Its grant of authority to allow
the CDC to temporarily suspend immigration laws in case of a public
health emergency has no relevance to the interpretation of section
212(f), which is in title 8.
\43\ For similar reasons, section 215(a) of the INA, 8 U.S.C.
1185(a), which the Proclamation also invokes, does not authorize the
President to impose the condition and limitation on asylum
eligibility created by this rule. Cf. United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 540-47 (1950) (holding that under the
precursor to section 215(a)(1) of the INA and the presidential
proclamation and regulations issued pursuant to that provision,
which during times of national emergency made it unlawful for ``any
alien to . . . enter or attempt to . . . enter the United States
except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President shall
prescribe,'' the Attorney General could issue regulations governing
entry during such an emergency to ``deny [certain noncitizens] a
hearing . . . in special cases'' notwithstanding the ordinary
exclusion hearing provisions governing entry). This does not mean,
however, that the President could not invoke section 215(a) as
authority to impose reasonable rules, regulations, and orders on
asylum applicants and asylees, such as travel document requirements
for re-entry and departure controls.
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[[Page 48718]]
This rule, as discussed elsewhere, is authorized because Congress
has conferred upon the Secretary and the Attorney General express
rulemaking power to create new conditions and limitations on asylum
eligibility and create certain procedures for adjudicating asylum
claims. INA 103(a)(1), (a)(3), (g), 208(b)(1)(A), (b)(2)(C), (d)(5)(B),
8 U.S.C. 1103(a)(1), (a)(3), (g), 1158(b)(1)(A), (b)(2)(C), (d)(5)(B);
INA 235(b)(1)(B)(iii)(III), (iv), 8 U.S.C. 1225(b)(1)(B)(iii)(III),
(iv).
C. Summary of Provisions of the IFR
This IFR adds provisions at 8 CFR 208.13(g), 208.35, 235.15,
1208.13(g), and 1208.35 that effectuate three key changes to the
process for those seeking asylum, statutory withholding of removal, or
protection under the CAT during emergency border circumstances giving
rise to the suspension and limitation on entry under the Presidential
Proclamation of June 3, 2024, Securing the Border (``Presidential
Proclamation of June 3''):
<bullet> During emergency border circumstances, persons who enter
across the southern border and who are not described in section 3(b) of
the Proclamation will be ineligible for asylum unless they demonstrate
by a preponderance of the evidence that exceptionally compelling
circumstances exist, including if the noncitizen demonstrates that they
or a member of their family as described in 8 CFR 208.30(c) with whom
they are 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.
<bullet> During emergency border circumstances, rather than asking
specific questions of every noncitizen encountered and processed for
expedited removal to elicit whether the noncitizen may have a fear of
persecution or an intent to apply for asylum, for those who enter
across the southern border and are not described in section 3(b) of the
Proclamation, DHS will provide general notice regarding the process for
seeking asylum, statutory withholding of removal, or protection under
the CAT and will refer a noncitizen for a credible fear interview only
if the noncitizen manifests a fear of return, expresses an intention to
apply for asylum or protection, or expresses a fear of persecution or
torture or a fear of return to his or her country or the country of
removal.
<bullet> The limitation on asylum eligibility will be applied
during credible fear interviews and reviews, and those who enter across
the southern border during emergency border circumstances and are not
described in section 3(b) of the Proclamation will receive a negative
credible fear determination with respect to their asylum claim unless
there is a significant possibility the noncitizen could demonstrate by
a preponderance of the evidence that exceptionally compelling
circumstances exist. Such noncitizens will thereafter be screened for a
reasonable probability of persecution because of a protected ground or
torture, a higher standard than that applied to noncitizens in a
similar posture under the Circumvention of Lawful Pathways rule. The
``reasonable probability'' standard is defined to mean substantially
more than a ``reasonable possibility'' but somewhat less than more
likely than not.
As discussed throughout this IFR, these changes are designed to
implement the policies and objectives of the Proclamation by enhancing
the Departments' ability to address historic levels of migration and
efficiently process migrants arriving at the southern border during
emergency border circumstances.
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of Removal, and CAT Protection
Asylum is a discretionary benefit that can be granted by the
Secretary or the Attorney General if a noncitizen establishes, among
other things, that they have experienced past persecution or have a
well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA 208(b)(1)-(2), 8 U.S.C. 1158(b)(1)-(2) (providing that,
unless subject to a mandatory bar, the Secretary or Attorney General
``may'' grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A) (defining ``refugee''). As long as they retain their
asylee status, noncitizens who are granted asylum (1) cannot be removed
or returned to their country of nationality or, if they have no
nationality, their last habitual residence, (2) receive employment
authorization incident to their status, (3) may be permitted to travel
outside of the United States and return with prior consent, and (4) may
seek derivative benefits for their spouses or children. INA 208(c)(1),
8 U.S.C. 1158(c)(1); see Johnson v. Guzman Chavez, 594 U.S. 523, 536
(2021) (``[A] grant of asylum permits an alien to remain in the United
States and to apply for permanent residency after one year[.]''
(emphasis omitted) (internal quotation marks and citation omitted)); 8
CFR 274a.12(a)(5) (employment authorization incident to asylum status);
8 CFR 223.1(b) (allowing for return to the United States after travel
with a requisite travel document for a ``person who holds . . . asylum
status pursuant to section 208 of the Act''); see also 6 U.S.C.
271(b)(3) (transferring asylum functions to DHS); 6 U.S.C. 557
(providing that references to any other officer shall be deemed to
refer to the ``Secretary'' with respect to any transferred function);
INA 208(b)(3), 8 U.S.C. 1158(b)(3) (derivative asylum status).
Asylum applications are generally classified as ``affirmative'' or
``defensive'' applications, depending on the agency with which they are
filed. If a noncitizen is physically present in the United States, not
detained, and not in section 240 removal proceedings, the noncitizen
may file an asylum application with USCIS. These applications are
``affirmative'' filings. Generally, if the noncitizen is in section 240
removal proceedings before an IJ, the noncitizen may apply for asylum
before the IJ as a defense to removal.\44\ These applications are
``defensive'' filings.
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\44\ The only exception is that USCIS has initial jurisdiction
over asylum applications filed by a UC even where the applicant is
in section 240 removal proceedings. INA 208(b)(3)(C), 8 U.S.C.
1158(b)(3)(C).
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Noncitizens are eligible for asylum if they have been persecuted or
have a well-founded fear of future persecution in their country of
nationality or, if they have no nationality, their last habitual
residence, on account of one of five protected grounds and are not
subject to a bar to eligibility. See generally INA 208, 8 U.S.C. 1158;
INA 101(a)(42), 8 U.S.C. 1101(a)(42). To be granted
[[Page 48719]]
asylum, eligible noncitizens must also establish that they merit asylum
in the exercise of discretion. Id. Noncitizens who are ineligible for a
grant of asylum, or who are denied asylum based on the Attorney
General's or the Secretary's discretion, may qualify for other forms of
protection. An application for asylum submitted by a noncitizen in
section 240 removal proceedings is also considered an application for
statutory withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3). See 8 CFR 1208.3(b), 1208.13(c)(1). An IJ also may
consider a noncitizen's eligibility for statutory withholding of
removal and CAT protection under regulations issued pursuant to the
implementing legislation regarding the obligations of the United States
under Article 3 of the CAT. FARRA sec. 2242(b) (codified at 8 U.S.C.
1231 note); 8 CFR 1208.3(b), 1208.13(c)(1); see also 8 CFR 1208.16(c),
1208.17.
Statutory withholding of removal and CAT protection preclude
removing a noncitizen to any country where the noncitizen would ``more
likely than not'' face persecution or torture, meaning that the
noncitizen's life or freedom would be threatened because of a protected
ground or that the noncitizen would be tortured. 8 CFR 1208.16(b)(2),
(c)(2). Thus, if a noncitizen establishes that it is more likely than
not that their life or freedom would be threatened because of a
protected ground, but is denied asylum for some other reason, the
noncitizen nonetheless may be entitled to statutory withholding of
removal if not otherwise barred from that form of protection. INA
241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 1208.16. Likewise,
a noncitizen who establishes that they more likely than not will face
torture in their country of removal will qualify for CAT protection.
See 8 CFR 208.16(c), 208.17(a), 1208.16(c), 1208.17(a).
In contrast to the more generous benefits available by attaining
asylum, statutory withholding of removal and CAT protection do not: (1)
prohibit the Government from removing the noncitizen to a third country
where the noncitizen would not face the requisite likelihood of
persecution or torture (even in the absence of an agreement with that
third country); (2) create a path to lawful permanent resident status;
or (3) afford the same ancillary benefits, such as derivative
protection for family members. See, e.g., Guzman Chavez, 594 U.S. at
536 (``distinguish[ing] withholding-only relief from asylum'' on the
ground that withholding does not preclude the Government from removing
the noncitizen to a third country and does not provide the noncitizen
any permanent right to remain in the United States); Matter of A-K-, 24
I&N Dec. 275, 279 (BIA 2007) (stating that ``the Act does not permit
derivative withholding of removal under any circumstances''); INA
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory provision allowing
asylum status to be granted to accompanying or following-to-join spouse
or children of a noncitizen granted asylum; no equivalent statutory or
regulatory provision for individuals granted withholding or deferral of
removal).
2. Expedited Removal and Screenings in the Credible Fear Process
In the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. The process is
applicable to certain noncitizens present or arriving in the United
States (and, in the discretion of the Secretary, certain other
designated classes of noncitizens) who are found to be inadmissible
under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C),
which renders inadmissible noncitizens who make certain material
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), which renders inadmissible noncitizens who lack
documentation requirements for admission. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Upon being subject to expedited removal, such
noncitizens may be ``removed from the United States without further
hearing or review unless the [noncitizen] indicates either an intention
to apply for asylum . . . or a fear of persecution.'' Id.
Congress created a screening process, known as ``credible fear''
screening, to identify potentially valid claims for asylum by
noncitizens in expedited removal proceedings. The Departments have used
the same screening process to identify potentially valid claims for
statutory withholding of removal and CAT protection. If a noncitizen
indicates a fear of persecution or torture, a fear of return, or an
intention to apply for asylum during the course of the expedited
removal process, DHS refers the noncitizen to a USCIS AO to determine
whether the noncitizen has a credible fear of persecution or torture in
the country of citizenship or removal. INA 235(b)(1)(A)(ii), (B), 8
U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4). A noncitizen
has a ``credible fear of persecution'' if ``there is a significant
possibility, taking into account the credibility of the statements made
by the alien in support of the alien's claim and such other facts as
are known to the officer, that the alien could establish eligibility
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the AO
determines that the noncitizen does not have a credible fear of
persecution or torture, the noncitizen may request that an IJ review
that determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 208.33(b)(2)(v), 1208.30(g).
If the AO (or an IJ reviewing the AO's decision) determines that a
noncitizen has a credible fear of persecution or torture, USCIS can
refer the noncitizen to an immigration court for adjudication of the
noncitizen's claims in section 240 removal proceedings, 8 CFR
208.30(f), 8 CFR 1208.30(g)(2)(iv)(B), and the noncitizen may
subsequently file a defensive asylum application with the court during
those proceedings, see 8 CFR 1240.1(a)(1)(ii). Alternatively, USCIS can
retain jurisdiction over the application for asylum for further
consideration in an asylum merits interview. See 8 CFR 208.30(f).
During an asylum merits interview, a positive credible fear
determination is treated as the asylum application, and strict
timelines thereafter govern the applicant's case before both USCIS and
EOIR. See 8 CFR 208.2(a)(1)(ii), 208.3(a)(2), 208.4(b)(2), 208.9(a)(1),
(e)(1)-(2), (g)(2), (i), 1240.17. The AO may grant asylum, subject to
review within USCIS, where the noncitizen is eligible and warrants a
grant as a matter of discretion. 8 CFR 208.14(b). If the noncitizen is
not eligible or does not warrant a grant of asylum as a matter of
discretion, the AO refers the application to EOIR. 8 CFR 208.14(c)(1).
Where USCIS does not grant asylum, the AO's decision will also include
a determination on eligibility for statutory withholding of removal and
CAT protection based on the record before USCIS. 8 CFR 208.16(a),
(c)(4).
For cases referred to EOIR following an asylum merits interview,
the written record of the positive credible fear determination serves
as the asylum application, 8 CFR 1240.17(e), and the record the AO
developed during the asylum merits interview, as supplemented by the
parties, serves as the record before the IJ, 8 CFR 1240.17(c),
(f)(2)(i)(A)(1), (f)(2)(ii)(B). The IJ reviews applications for asylum
de novo and also reviews applications for statutory withholding of
removal and CAT protection de novo where USCIS found the noncitizen
ineligible for such protection. 8 CFR 1240.17(i)(1). However, where
USCIS found the noncitizen eligible for statutory withholding of
removal or CAT
[[Page 48720]]
protection, IJs must give effect to USCIS's eligibility determination
unless DHS demonstrates, through evidence or other testimony that
specifically pertains to the noncitizen and was not in the record of
proceedings for the asylum merits interview, that the noncitizen is not
eligible for such protection. 8 CFR 1240.17(i)(2). With a limited
exception, DHS may not appeal the grant of any protection for which the
AO determined the noncitizen eligible. Id.
3. Lawful Pathways Condition on Asylum Eligibility
On March 20, 2020, the Director of the Centers for Disease Control
and Prevention (``CDC'') issued an order under 42 U.S.C. 265 and 268
suspending the introduction of certain noncitizens from foreign
countries or places where the existence of a communicable disease
creates a serious danger of the introduction of such disease into the
United States and the danger is so increased by the introduction of
persons from the foreign country or place that a temporary suspension
of such introduction is necessary to protect the public health.\45\ The
CDC's Title 42 public health Order was extended multiple times.\46\
While the Title 42 public health Order was in effect, noncitizens who
did not have proper travel documents were generally not processed into
the United States; they were instead 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 INA. Circumvention of Lawful Pathways, 88 FR 11704,
11705 (Feb. 23, 2023) (``Circumvention of Lawful Pathways NPRM''). In
early 2023, the President announced that the Administration expected to
end the public health emergency on May 11, 2023, which would cause the
then-operative Title 42 public health Order to end. See id. at 11708.
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\45\ CDC, Order Under Sections 362 & 365 of the Public Health
Services Act (42 U.S.C. 265, 268): Order Suspending Introduction of
Certain Persons from Countries Where a Communicable Disease Exists
(Mar. 20, 2020), <a href="https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf">https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf</a>.
\46\ 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[ed] 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'').
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As the Departments stated in the Circumvention of Lawful Pathways
rule, absent further action, the end of the Title 42 public health
Order was expected to cause encounters with noncitizens seeking to
enter the United States at the SWB to rise to or remain at all-time
highs--as high as 11,000 migrants daily. 88 FR at 31331, 31315. And
many of these individuals would be entitled to remain in the United
States pending resolution of their asylum and protection claims. See
INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii) (not allowing for
removal of those found to have a credible fear pending further
consideration of the asylum claim); see also 88 FR at 31363 (noting
that ``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''). The Departments thus faced a looming
urgent situation: absent policy change, the end of the Title 42 public
health Order was expected to result in many more migrants crossing the
border and asserting claims of fear or seeking protection, which would
in turn exceed the border security and immigration systems' capacity to
process migrants in a safe, expeditious, and orderly way. See 88 FR at
31363. To address this expected increase in the number of migrants at
the SWB and adjacent coastal borders seeking to enter the United States
without authorization, the Departments promulgated the Circumvention of
Lawful Pathways rule. See 88 FR 31314.
The Circumvention of Lawful Pathways rule, which became effective
on its public inspection date, May 11, 2023, id., and applies to those
who enter during a two-year period, imposes a rebuttable presumption of
asylum ineligibility on certain noncitizens who fail to pursue safe,
orderly, and lawful processes for entry into the United States or seek
protection in another qualifying country through which they traveled. 8
CFR 208.33(a), 1208.33(a). The rebuttable presumption applies to
noncitizens who enter the United States from Mexico at the SWB or
adjacent coastal borders without documents sufficient for lawful
admission where the entry is: (1) between May 11, 2023, and May 11,
2025; (2) subsequent to the end of implementation of the Title 42
public health Order issued on August 2, 2021, and related prior orders
issued pursuant to the authorities in 42 U.S.C. 265 and 268 and the
implementing regulation at 42 CFR 71.40; and (3) after the noncitizen
traveled through a country other than their country of citizenship,
nationality, or, if stateless, last habitual residence, that is a party
to the Refugee Convention or Refugee Protocol. 8 CFR 208.33(a)(1),
1208.33(a)(1).
The presumption does not apply to UCs or to noncitizens who availed
themselves of or were traveling with a family member who availed
themselves of certain safe, orderly, and lawful pathways--specifically
those who (1) received 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 but
who can demonstrate 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. 8 CFR 208.33(a)(2), 1208.33(a)(2).
Noncitizens may also overcome the presumption by demonstrating by a
preponderance of the evidence that ``exceptionally compelling
circumstances exist.'' 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Such
circumstances necessarily exist where, at the time of entry, the
noncitizen or a family member 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) was a victim of a severe form of
trafficking in persons under 8 CFR 214.11(a). 8 CFR 208.33(a)(3)(i)(A)-
(C), (ii), 1208.33(a)(3)(i)(A)-(C), (ii). A noncitizen presumed
ineligible for asylum under the rule may still apply for statutory
withholding of removal or CAT protection and thus may not be removed to
a country where it is more likely than not that they will be persecuted
because of a protected ground or tortured.
The condition on asylum eligibility in the Circumvention of Lawful
Pathways rule (``Lawful Pathways condition'') applies to asylum
applications before USCIS and EOIR. 8 CFR 208.13(f), 1208.13(f). It
also applies during credible fear screenings. 8 CFR 208.33(b),
1208.33(b). Noncitizens subject to expedited removal who indicate a
fear of persecution or an intention to apply for asylum are currently
first screened to assess whether the rebuttable presumption applies
and, if so, whether the noncitizen is able to rebut the presumption. 8
CFR 208.33(b). If the AO
[[Page 48721]]
determines that the rebuttable presumption does not apply or the
noncitizen has rebutted the presumption, the general procedures
governing the credible fear process then apply. See 8 CFR
208.33(b)(1)(ii). On the other hand, if the AO determines that the
noncitizen is covered by the rebuttable presumption and no 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 8 CFR
208.33(b)(1)(i), (b)(2). The Circumvention of Lawful Pathways rule
currently provides that, if a noncitizen has established a reasonable
possibility of persecution or torture, then DHS will issue a notice to
appear (``NTA'') to commence section 240 removal proceedings and may
not refer the case to the asylum merits interview process. 8 CFR
208.33(b)(2)(ii).
Where a noncitizen requests review by an IJ, the IJ reviews the
negative credible fear finding de novo. See 8 CFR 1208.33(b). If the IJ
determines that the noncitizen has made a sufficient showing that the
rebuttable presumption does not apply to them or that they can rebut
the presumption, and that the noncitizen has established a significant
possibility of eligibility for asylum, statutory withholding of
removal, or CAT protection, the IJ issues a positive credible fear
finding and the case proceeds under existing procedures. See 8 CFR
208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that the
noncitizen is covered by the rebuttable presumption and it has not been
rebutted, but the noncitizen has established a reasonable possibility
of persecution or torture, the IJ issues a positive credible fear
finding and DHS will issue an NTA to commence section 240 removal
proceedings. 8 CFR 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 8 CFR
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 USCIS
reconsider the AO's negative determination, although USCIS may, in its
sole discretion, reconsider a negative determination. See 8 CFR
208.33(b)(2)(v)(C).
A noncitizen who has not established during expedited removal
proceedings a significant possibility of eligibility for asylum because
of the Lawful Pathways condition 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. See 8 CFR 1208.33(b)(4). Where a principal
asylum applicant in section 240 removal proceedings is eligible for
statutory withholding of removal or withholding of removal under the
CAT and would be granted asylum but for the rebuttable presumption, and
where either an accompanying spouse or child does not independently
qualify for asylum or other protection from removal or the principal
asylum applicant has a spouse or child who would be eligible to follow
to join that applicant, the presumption shall be deemed rebutted as an
exceptionally compelling circumstance. 8 CFR 1208.33(c).
B. Justification
1. Global Migration at Record Levels
Border encounters in the 1980s, 1990s, and 2000s consisted
overwhelmingly of single adults from Mexico, most of whom were
migrating for economic reasons.\47\ Beginning in the 2010s, a growing
share of migrants were from northern Central America \48\ and, since
the late 2010s, from countries throughout the Americas.\49\ Since 2010,
the makeup of border crossers has significantly changed, expanding from
Mexican single adults to single adults and families from the northern
Central American countries, and now to single adults and families from
throughout the hemisphere (and beyond). Those encountered also have
been more likely to seek asylum and other forms of relief or
protection, straining the Departments' capacity to process individuals
through expedited removal.\50\
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\47\ See 88 FR at 11708. According to OHSS Persist data and
historic Office of Immigration Statistics (``OIS'') Yearbooks of
Immigration Statistics, Mexican nationals accounted for 87 to over
99 percent of apprehensions between POEs of persons entering without
inspection between 1981 and 2010. See March 2024 OHSS Persist
Dataset; see, e.g., INS, 1981 Statistical Yearbook of the
Immigration and Naturalization Service 119 tbl. 53 (1981); INS, 1999
Statistical Yearbook of the Immigration and Naturalization Service
208-11 tbl. 56 (Mar. 2002), <a href="https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1999.pdf">https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1999.pdf</a>. For more
information about Mexican migrants' demographics and economic
motivations during some of that time period, see Jorge Durand et
al., The New Era of Mexican Migration to the United States, 86 J.
Am. Hist. 518, 525-27, 530-31, 535-36 (1999).
\48\ Northern Central America refers to El Salvador, Guatemala,
and Honduras. 88 FR at 11708 n.35.
\49\ According to OHSS Persist data, Mexican nationals continued
to account for 89 percent of total CBP SWB encounters in FY 2010,
with northern Central Americans accounting for 8 percent and all
other nationalities accounting for 3 percent. March 2024 OHSS
Persist Dataset. Northern Central Americans' share of total CBP SWB
encounters increased to 21 percent by FY 2012 and averaged 48
percent from FY 2014 to FY 2019, the last full year before the start
of the COVID-19 pandemic. Id. Nationals from all other countries
except Mexico and the northern Central American countries accounted
for an average of 5 percent of total CBP SWB encounters from FY 2010
to FY 2013, and for 10 percent of total encounters from FY 2014 to
FY 2019. Id. This transition has accelerated since the start of FY
2021, as Mexican nationals accounted for approximately 32 percent of
total CBP SWB encounters in FY 2021 through March 2024, including
roughly 29 percent in the first six months of FY 2024; northern
Central Americans accounted for roughly 25 percent from FY 2021
through March 2024 (20 percent in FY 2024 through March 2024); and
all other countries accounted for roughly 42 percent from FY 2021
through March 2024, including roughly 51 percent of FY 2024
encounters through March 2024. Id.
\50\ For noncitizens encountered at the SWB from FY 2014 to FY
2019 who were placed in expedited removal proceedings, roughly 6
percent of Mexican nationals made fear claims that were referred to
USCIS for determination compared to roughly 57 percent of people
from northern Central America and 90 percent of all other
nationalities. OHSS analysis of Enforcement Lifecycle data as of
December 31, 2023; see also 88 FR at 11709 n.37.
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In the early 2010s, U.S. Border Patrol (``USBP'') encounters along
the SWB reached modern lows, averaging fewer than 400,000 per year from
2011 to 2018. See 88 FR at 11708. This followed decades during which
annual USBP encounters routinely numbered in the millions; however, the
overall share of those who were processed for expedited removal and
claimed a fear never exceeded 2 percent until 2011. Id. at 11708,
11716. Despite these historically low encounter numbers, the
Departments faced significant challenges in 2014 due to an
unprecedented surge in migration by UCs and in 2016 due to a surge in
family units at the border--demographics that present unique challenges
due to their vulnerability.\51\
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\51\ Decl. of Blas Nu[ntilde]ez-Neto ] 6, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
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From FY 2017 to FY 2019, however, encounters between the POEs along
the SWB more than doubled, to more than 850,000, and--following a
significant drop during the beginning of the COVID-19 pandemic--
continued to increase in FY 2021 and FY 2022.\52\ In FY 2021, USBP
encounters between POEs along the SWB reached a level not seen since
the early 2000s--over 1.6 million.\53\ In FY 2022, encounters at the
[[Page 48722]]
SWB reached a new high-water mark, with total USBP encounters exceeding
2.2 million.\54\ FY 2023 saw a slight drop, but USBP encounters
remained high--over 2.0 million.\55\ By early 2023, while the Title 42
public health Order was in place, total encounters at the SWB--
referring to the number of times U.S. officials encountered noncitizens
attempting to cross the SWB without authorization to do so either
between or at POEs--had reached all-time highs.\56\ This dramatic
increase in encounters has coincided with a substantial and--setting
aside the period of time when the Title 42 public health Order was in
effect--persistent increase in the number of noncitizens making fear
claims in recent years. See 88 FR at 11716.\57\ In 2019--prior to the
implementation of the Title 42 public health Order--44 percent of
noncitizens encountered at the SWB placed in expedited removal
proceedings claimed fear, resulting in 98,000 credible fear screenings.
Id. The number of fear claims returned to these historically high
levels after the Title 42 public health Order ended. From May 2023
through March 2024, approximately 54 percent of noncitizens encountered
at and between SWB POEs who were subject to expedited removal claimed
fear (approximately 169,000 fear claims out of 315,000 noncitizens
processed for expedited removal, excluding cases processed for
expedited removal but reprocessed into other dispositions by ICE).\58\
These high numbers of both encounters and fear claims combine to
further compound the significant stress on the immigration system.
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\52\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing
historic data on SWB encounters).
\53\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing
historic data on SWB encounters).
\54\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing
historic data on SWB encounters).
\55\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing
historic data on SWB encounters).
\56\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (providing
historic data on SWB encounters). During the initial seven months of
FY 2023, while the Title 42 public health Order was still in effect,
total CBP encounters surged to an all-time high of 1.4 million--an
11 percent increase over the same period in FY 2022 and nearly
double the encounters recorded in FY 2021 for the same time period.
\57\ The percentage of noncitizens encountered at and between
SWB POEs processed for expedited removal who made fear claims
steadily rose from 16 percent in FY 2013 to 44 percent in FY 2019,
experienced a temporary dip in FY 2020 at the start of the Title 42
public health Order, and then resumed an upward trajectory, reaching
a peak of 59 percent in FY 2023, marking the highest level of fear
claims as a share of the SWB expedited removal population ever
recorded. See OHSS Enforcement Lifecycle as of December 31, 2023;
March 2024 OHSS Persist Dataset. Data on the exact number of
noncitizens encountered at the SWB processed for expedited removal
who made fear claims is not available for years prior to FY 2013,
but OHSS estimates that about 84 percent of all fear claims made in
prior years were made by noncitizens encountered at and between SWB
POEs. Even if 100 percent of fear claims made before FY 2013 were
made by noncitizens encountered at the SWB, the level of fear claims
as a share of SWB encounters at and between POEs processed for
expedited removal in 2023 would be the highest ever.
\58\ OHSS analysis of data downloaded from CBP UIP on April 2,
2024.
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Much of this growth in encounters was driven by nationalities that
DHS had never before encountered in large numbers at the border--
including nationals of countries such as Brazil, Colombia, Cuba,
Ecuador, Haiti, Nicaragua, Peru, and Venezuela, as well as migrants
from Eastern Hemisphere countries.\59\ Because of this, DHS has had to
undertake a focused diplomatic effort, working closely with the
Department of State, to enter into commitments with countries to
facilitate the return of their nationals. However, despite this
concerted effort, it remains difficult for DHS to repatriate nationals
of some of these countries who do not establish a legal basis to remain
in the United States, including those from the Eastern Hemisphere--
substantially limiting DHS's ability to impose consequences on those
nationals.\60\
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\59\ Nationals from all countries other than Mexico and the
northern Central American countries accounted for less than 5
percent of total CBP SWB encounters each year between FY 1981 and FY
2010, an average of 5 percent of SWB encounters from FY 2010 to FY
2013, and 10 percent of total SWB encounters from FY 2014 to FY
2019. The increase in encounters from these new countries of origin
has accelerated since the start of FY 2021, as non-Mexican, non-
northern Central American countries accounted for 42 percent of
encounters from the start of FY 2021 through the second quarter of
FY 2024, including 51 percent of FY 2024 encounters through March
2024. OHSS analysis of historic OIS Yearbooks of Immigration
Statistics and March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SW Border Encounters
by Citizenship'').
\60\ See 88 FR at 11708-11.
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Overall, countries other than Mexico and the northern Central
American countries of El Salvador, Guatemala, and Honduras accounted
for 43 percent of total SWB encounters from January 2021 to March
2024--including 51 percent of total SWB encounters in FY 2023 and in
the first two quarters of FY 2024--up from 10 percent from FY 2014 to
December 2020.\61\ Encounters of Mexican nationals have fallen to 29
percent of total SWB encounters during this time frame--an enormous
change from historical trends that has sweeping ramifications for the
border and immigration system, which are detailed below.\62\
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\61\ March 2024 OHSS Persist Dataset; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``CBP SW Border Encounters by
Agency and Selected Citizenship'').
The application of title 42 authorities at the SWB also altered
migratory patterns, in part by incentivizing individuals who were
expelled--without being issued a removal order, which, unlike a
title 42 expulsion, carries immigration consequences--to try to re-
enter, often multiple times. See 88 FR at 11709. The majority of
repeat encounters were of Mexican and northern Central American
nationals, who were much more likely than others to be expelled to
the Mexican side of the U.S.-Mexico border--between FY 2020 and FY
2023, 72 percent of Mexican and 50 percent of northern Central
American encounters at and between SWB POEs resulted in title 42
expulsion, contrasting sharply with 8 percent of non-Mexican and
non-northern Central American encounters experiencing similar
outcomes. March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``CBP SW Border
Encounters Book-Outs by Selected Citizenship'').
Even accounting for increased repeat encounters, unique
encounters at and between SWB POEs also hit all-time highs in each
year from FY 2021 to FY 2023. Nationals of countries other than
Mexico and the northern Central America countries account for an
even larger share of the growth in unique encounters, comprising 51
percent of unique encounters from January 2021 to March 2024, up
from 9 percent in FY 2014 to December 2020. March 2024 OHSS Persist
Dataset.
\62\ March 2024 OHSS Persist Dataset.
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The increase in migration at the SWB is consistent with global and
regional trends. Over the past three years, migration around the world
has reached levels not seen since World War II.\63\ The Western
Hemisphere is no exception and has been facing historic levels of
migration that have severely strained the immigration systems of
countries throughout the region.\64\ There is a growing consensus
within the region that this shared challenge cannot be solved without
collective action--a consensus reflected by the 22 countries that have
supported the Los Angeles Declaration on Migration and Protection,
which proposes a comprehensive approach to managing migration
throughout the region.\65\
---------------------------------------------------------------------------
\63\ Decl. of Blas Nu[ntilde]ez-Neto ] 2, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\64\ See 88 FR at 11710-11.
\65\ See The White House, Los Angeles Declaration on Migration
and Protection (June 10, 2022), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/</a>.
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[[Page 48723]]
As it prepared for the return to title 8 processing of all
noncitizens, DHS led a comprehensive, all-of-government planning and
preparation effort that lasted more than 18 months.\66\ This included
record deployments of personnel, infrastructure, and resources to
support DHS's frontline personnel at a substantial cost to other DHS
operations.\67\ This effort also included the development and
implementation of policy measures, including the joint DHS and DOJ
Circumvention of Lawful Pathways rule and complementary measures, which
were critically important components of DHS preparations to manage the
anticipated significant influx of migrants associated with the end of
the Title 42 public health Order's application at the border.\68\ And
the United States Government's efforts were complemented by a range of
measures taken by foreign partners in the region, such as Mexico's
independent decision to continue to accept the return of certain non-
Mexican migrants after May 11, 2023,\69\ and campaigns by Colombia and
Panama to attack smuggling networks operating in the Dari[eacute]n
Gap.\70\
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\66\ Decl. of Blas Nu[ntilde]ez-Neto ] 8, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
\67\ Id.
\68\ Id.
\69\ 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>.
\70\ Decl. of Blas Nu[ntilde]ez-Neto ] 40, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
---------------------------------------------------------------------------
The Circumvention of Lawful Pathways rule has strengthened the
consequences in place for those who cross the border irregularly and is
a critical component of the Government's regional strategy. DHS has
also put in place complementary measures to streamline expedited
removal processing to more quickly apply consequences to those who fail
to use lawful pathways. These measures include holding noncitizens
processed for expedited removal for the pendency of their credible fear
interviews in CBP facilities to maximize the use of expedited removal
and limit noncitizens absconding; \71\ changing the consultation period
such that credible fear interviews take place no earlier than 24 hours
after the noncitizen's acknowledgement of receipt of information
explaining the credible fear process; \72\ returning certain third-
country nationals to Mexico, consistent with established processes
under the INA; \73\ permitting certain non-Mexican citizens to withdraw
their application for admission and voluntarily return to Mexico; \74\
and increasing USCIS's capacity to train and prepare additional staff
temporarily detailed as AOs to conduct credible fear interviews.\75\
These measures, combined with existing processes and resources and work
with regional and international partners to disrupt irregular migration
and smuggling networks, seek to form a comprehensive framework for
managing migratory flows to the border--one that seeks to
disincentivize noncitizens from putting their lives in the hands of
callous smugglers by crossing the SWB between POEs and to incentivize
noncitizens to use lawful, safe, and orderly pathways and processes
instead.
---------------------------------------------------------------------------
\71\ Id. ] 5.
\72\ Id.
\73\ See, e.g., 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> (noting the United States and Mexico's commitment 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, and
noting that Mexico will continue to accept back migrants on
humanitarian grounds).
\74\ Decl. of Blas Nu[ntilde]ez-Neto ] 5, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\75\ Id.
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Without the Circumvention of Lawful Pathways rule and complementary
measures, DHS assesses that irregular migration at the border would be
substantially higher today. DHS saw evidence of very high levels of
irregular migration in the days leading up to the end of the Title 42
public health Order on May 11, 2023.\76\ A historic surge in migration
culminated with what were then the highest recorded encounter levels in
U.S. history over the days immediately preceding May 11, which placed a
significant strain on DHS's operational capacity at the border.\77\
Encounters between POEs almost doubled from an average of approximately
4,900 per day the week ending April 11, 2023, to an average of
approximately 9,500 per day the week ending May 11, 2023, including an
average of approximately 10,000 encounters immediately preceding the
termination of the Title 42 public health Order (from May 8 to May
11).\78\ The sharp increase in encounters between POEs during the 30
days preceding May 11 represented the largest month-over-month increase
in almost two decades--since January 2004.\79\
---------------------------------------------------------------------------
\76\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2); Decl. of Matthew J. Hudak ] 11, Florida v. Mayorkas, No. 22-
cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
\77\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
\78\ Id.
\79\ Id.
---------------------------------------------------------------------------
As a consequence of the elevated flows USBP experienced in the days
leading up to the end of the Title 42 public health Order, USBP saw a
steady increase in the numbers of noncitizens in custody, leading to
significant operational challenges.\80\ From May 8 to 11, 2023, USBP's
daily in-custody average was approximately 27,000 noncitizens, with a
single-day peak of approximately 28,500 on May 10--well above its
holding capacity at that time of approximately 18,500.\81\ During this
same time frame, eight out of nine SWB sectors were over their holding
capacity--with four sectors (El Centro, El Paso, Rio Grande Valley, and
Yuma) at more than 50 percent over their holding capacity and one
sector (Tucson) at more than two-and-a-half times over its holding
capacity.\82\
---------------------------------------------------------------------------
\80\ Id. ] 10.
\81\ Id.
\82\ Id.
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This record number of encounters between POEs severely strained DHS
operations and resources, as well as the resources of other Federal
Government agencies, local communities, and non-governmental
organizations (``NGOs'').\83\ CBP redirected limited resources from
other mission needs--in particular, legitimate travel and trade
operations, the volume of which by that time had surpassed pre-pandemic
levels--to focus on processing apprehended noncitizens.\84\
Overcrowding in CBP facilities increased the potential for health and
safety risks to noncitizens, Government personnel, and contract support
staff. Such risks were exacerbated by an increase in the average time
in custody, which generally occurs when there are large numbers of
noncitizens in custody who must be processed.\85\ To manage these
conditions, USBP sectors redirected personnel from the field to perform
tasks for noncitizens in custody, including processing, transporting,
and escorting noncitizens.\86\ This, in turn, decreased USBP's ability
to respond to noncitizens avoiding detection, other agency calls for
assistance, and noncitizens in distress.\87\
---------------------------------------------------------------------------
\83\ Id. ] 11.
\84\ Id.
\85\ Id.
\86\ Id.
\87\ Id.
---------------------------------------------------------------------------
The surge in encounters between POEs immediately preceding the end
of the Title 42 public health Order also led
[[Page 48724]]
to significant challenges for local border communities.\88\ For
example, in the days leading up to May 11, 2023, local community
resources in El Paso, Texas, were quickly overwhelmed as the number of
noncitizens arriving in the United States surpassed the city's
capacity.\89\ In anticipation of an influx of noncitizens arriving to
the city--an influx that ultimately materialized--the city declared a
state of emergency, as more than 1,000 noncitizens were sleeping on the
sidewalks and left without shelter.\90\ Similarly, the cities of
Brownsville and Laredo, Texas, declared states of emergency to allow
them to seek additional resources to bolster their capacities.\91\ The
surge in encounters also placed strain on interior cities. In May 2023,
for instance, New York's Governor declared a State Disaster
Emergency.\92\
---------------------------------------------------------------------------
\88\ Id. ] 12.
\89\ Id.
\90\ Id.
\91\ Id.
\92\ See N.Y. Exec. Order No. 28, Declaring a Disaster Emergency
in the State of New York (May 9, 2023), <a href="https://www.governor.ny.gov/executive-order/no-28-declaring-disaster-emergency-state-new-york">https://www.governor.ny.gov/executive-order/no-28-declaring-disaster-emergency-state-new-york</a>;
see also Mayor of Chicago Emergency Exec. Order No. 2023-2 (May 9,
2023).
---------------------------------------------------------------------------
Since their implementation in May 2023, the Circumvention of Lawful
Pathways rule and complementary measures have helped DHS to better
manage migratory flows. Between May 12, 2023, and March 31, 2024, CBP
placed into expedited removal more than 970 individuals encountered at
and between POEs each day on average, and USCIS conducted a record
number of credible fear interviews (more than 152,000) resulting from
such cases. This is more interviews from SWB encounters at and between
POEs during the span of ten and a half months than in any full fiscal
year prior to 2023, and more than twice as many as the annual average
from FY 2010 to FY 2019.\93\ On average, since May 12, 2023, USCIS has
completed approximately 3,300 cases each week, more than double its
average weekly completed cases from FY 2014 to FY 2019.\94\ In
addition, in FY 2023, IJs conducted over 38,000 credible fear and
reasonable fear reviews, the highest figure on record since at least
2000.\95\ These efforts have significantly reduced the median time to
process credible fear cases. Since May 12, 2023, the median time to
refer noncitizens claiming a fear for credible fear interviews
decreased by 77 percent from its historical average, from 13 days in
the FY 2014 to FY 2019 pre-pandemic period to 3 days in the four weeks
ending March 31, 2024; for those who receive negative fear
determinations, the median time from encounter to removal, in the same
time frames, decreased by 85 percent from 73 days to 11 days.\96\
---------------------------------------------------------------------------
\93\ Pre-May 12, 2023, data from OHSS Lifecycle Dataset; post-
May 11, 2023, data from OHSS analysis of data downloaded from UIP on
April 2, 2024.
\94\ Completed cases are those with credible fear interviews
that have been adjudicated or that have been closed. Pre-May 12,
2023, data from OHSS Lifecycle Dataset; post-May 11, 2023, data from
OHSS analysis of data downloaded from UIP on April 2, 2024.
\95\ EOIR, Adjudication Statistics: Credible Fear and Reasonable
Fear Review Decisions (Apr. 27, 2023), <a href="https://www.justice.gov/eoir/media/1344816/dl?inline">https://www.justice.gov/eoir/media/1344816/dl?inline</a>.
\96\ Historic processing times are based on OHSS Enforcement
Lifecycle data as of December 31, 2023; post-May 12 estimates are
based on OHSS analysis of operational CBP, ICE, USCIS, and DOJ/EOIR
data downloaded from UIP on April 2, 2024. Encounter-to-removal
cases include noncitizens removed after being placed in expedited
removal proceedings, claiming fear, and receiving a negative fear
determination or an administrative closure that is not referred to
EOIR. Comparisons to the pandemic period are not relevant because
many noncitizens who normally would have been referred for expedited
removal processing were instead expelled under title 42 authority.
---------------------------------------------------------------------------
The increase in referrals into expedited removal proceedings,
combined with the streamlining of the process, has had tangible
results. From May 12, 2023, to March 31, 2024, DHS removed more than
662,000 individuals--more removals than in any full fiscal year since
2013 and an indication that the increased efficiencies gained through
these measures have enabled DHS to swiftly impose immigration
consequences when individuals do not establish a legal basis to remain
in the United States.\97\ Over the first six months immediately
following May 12, 2023, DHS saw a significant decrease in border
encounters between POEs. After peaking at 9,700 per day in the seven
days just before the end of the Title 42 public health Order, daily SWB
encounters between POEs decreased by 45 percent to an average of 5,200
per day for the period from May 12, 2023, to November 30, 2023.\98\
While this months-long trend included variability over shorter periods,
border encounters between POEs remained below the levels projected to
occur in the absence of the Circumvention of Lawful Pathways rule and
complementary measures.\99\
---------------------------------------------------------------------------
\97\ OHSS analysis of data downloaded from UIP on April 2, 2024;
see OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024); OHSS,
2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023),
<a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a>
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\98\ Pre-May 12, 2023, data from March 2024 OHSS Persist
Dataset; post-May 11, 2023, data from OHSS analysis of data
downloaded from UIP on December 12, 2023.
\99\ Decl. of Blas Nu[ntilde]ez-Neto ] 4, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2) (noting that in the absence of the rule, DHS planning models
suggest that irregular migration could meet or exceed the levels
that DHS recently experienced in the days leading up to the end of
the Title 42 public health Order).
---------------------------------------------------------------------------
While the Circumvention of Lawful Pathways rule and complementary
measures have yielded demonstrable results, the resources provided to
the Departments still have not kept pace with irregular migration.
After months of relatively lower encounter levels between POEs
following the changes put in place after May 11, 2023, encounter levels
increased through the fall of 2023,\100\ and December 2023 saw the
highest levels of encounters between POEs in history, including a surge
in which border encounters between POEs exceeded 10,000 for three
consecutive days and averaged more than 8,000 a day for the month.\101\
That surge in migration was focused increasingly on western areas of
the border--California and Arizona--that had not been the focal point
of migration over the prior two years, and in areas that are
geographically remote and challenging to respond to. For instance, the
Tucson sector's average full-year encounter total for the pre-pandemic
period (FY 2014 to FY 2019) was approximately 62,000; by contrast, in
November and December of 2023, the sector recorded approximately 64,000
and 80,000 encounters, respectively.\102\ And while the number of
encounters between POEs since December 2023 has decreased, consistent
with seasonal migration flows and as a result of increased enforcement,
they still remain at historically high levels--USBP encounters from
January 2024 to March 2024 are just 5 percent below the levels
[[Page 48725]]
reached during the same months in 2023,\103\ while some USBP sectors,
such as Tucson and San Diego, have seen increases of 83 percent and 62
percent, respectively, from the second quarter of FY 2023, and Tucson
is on pace for an all-time high number of annual encounters.\104\
---------------------------------------------------------------------------
\100\ See CBP, Southwest Land Border Encounters, <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters">https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters</a> (last
visited May 27, 2024) (providing monthly figures for 2021 to 2024).
\101\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024); OHSS, 2022
Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023),
<a href="https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf">https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf</a>; -
Priscilla Alvarez, Authorities Encountering Record Number of
Migrants at the Border Each Day Amid Unprecedented Surge, CNN (Dec.
22, 2023), <a href="https://www.cnn.com/2023/12/22/politics/border-surge-record-amounts/index.html">https://www.cnn.com/2023/12/22/politics/border-surge-record-amounts/index.html</a>.
\102\ See March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SW Border Encounters
by Sector'').
\103\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SW Border
Encounters by Sector'').
\104\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
<a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SW Border
Encounters by Sector'').
---------------------------------------------------------------------------
Since the lifting of the Title 42 public health Order, then, it has
become increasingly clear that DHS's ability to process individuals
encountered at the SWB under applicable title 8 authorities--including,
critically, to deliver timely consequences to a meaningful proportion
of those who do not establish a legal basis to remain in the United
States--is significantly limited by the lack of resources and tools
available to the Departments. In response to the record high levels of
encounters between POEs in December 2023, DHS had to take extraordinary
steps to shift personnel and resources to the affected sectors: CBP
curtailed or suspended operations at a number of POEs, and, just before
December 25, 2023, CBP reassigned 246 officers to support USBP
operations. As part of these extraordinary measures: vehicular traffic
through the Eagle Pass, Texas, POE was suspended on November 27, 2023;
the POE in Lukeville, Arizona, was closed on December 4, 2023; rail
operations at POEs in El Paso and Eagle Pass, Texas, were suspended on
December 18, 2023; \105\ the Morley Gate POE in Nogales, Arizona, which
was closed due to construction and slated to be reopened in November
2023, delayed its reopening; \106\ and operations at Pedestrian West,
part of the San Ysidro POE in San Diego, California, were suspended on
December 9, 2023.\107\ On January 4, 2024, once the volume of migrants
had diminished and CBP officers were able to return to normal duties,
port operations in these locations resumed.\108\
---------------------------------------------------------------------------
\105\ See CBP, Statement from CBP on Operations in Eagle Pass,
Texas and Lukeville, Arizona (Nov. 27, 2023), <a href="https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-eagle-pass-texas-and-lukeville-arizona">https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-eagle-pass-texas-and-lukeville-arizona</a>.
\106\ See CBP, Statement on Operational Changes and Resumption
of Rail Operations in Eagle Pass and El Paso (Dec. 22, 2023),
<a href="https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operational-changes-and-resumption-rail-operations">https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operational-changes-and-resumption-rail-operations</a>.
\107\ See CBP, Statement from CBP on Operations in San Diego,
California (Dec. 7, 2023), <a href="https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-san-diego-california">https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-san-diego-california</a>.
\108\ See CBP, Statement from CBP on Resumption of Operations in
Arizona, California, and Texas (Jan. 2, 2024), <a href="https://www.cbp.gov/newsroom/national-media-release/statement-cbp-resumption-field-operations-arizona-california-and/">https://www.cbp.gov/newsroom/national-media-release/statement-cbp-resumption-field-operations-arizona-california-and/</a>.
---------------------------------------------------------------------------
The decision to close POEs was not one taken lightly. The United
States Government fully understands the impacts of such closures on
local communities on both sides of the border, both socially and
economically.\109\ Closing international POEs is a measure of last
resort, and one that DHS was compelled to take in order to reassign its
resources to support frontline agents in a challenging moment.
---------------------------------------------------------------------------
\109\ See, e.g., Russel Contreras, U.S.-Mexico Border Closures
Could Cost Billions, Axios (Dec. 22, 2023), <a href="https://www.axios.com/2023/12/22/us-mexico-border-closures-could-cost-billions">https://www.axios.com/2023/12/22/us-mexico-border-closures-could-cost-billions</a> (discussing
evidence of the ``devastating consequences'' that follow from
partial border closings); cf. Bryan Roberts et al., The Impact on
the U.S. Economy of Changes in Wait Times at Ports of Entry: Report
to U.S. Customs and Border Protection 5 (Apr. 2013), <a href="https://ebtc.info/wp-content/uploads/2014/07/U.S.C.-Create-CBP-Final-Report.pdf">https://ebtc.info/wp-content/uploads/2014/07/U.S.C.-Create-CBP-Final-Report.pdf</a> (discussing the benefits of adding staffing to land
border POEs).
---------------------------------------------------------------------------
In addition to concerted efforts to strengthen and maximize
consequences, including through new regulations, the United States
Government has engaged intensively with the Government of Mexico to
identify coordinated measures both countries could take, as partners,
to address irregular migration. During the period before and after the
December surge, the United States Government and the Government of
Mexico held numerous talks at the highest levels of government to
address migration. For example, President Biden and President of Mexico
Andr[eacute]s Manuel L[oacute]pez Obrador spoke on December 21, 2023,
and February 3, 2024.\110\ During their conversation on December 21,
the presidents agreed that additional enforcement actions were urgently
needed so that the POEs that were temporarily closed could reopen.\111\
In subsequent high-level meetings, both countries committed to
expanding efforts to increase enforcement measures to deter irregular
migration, expanding safe and lawful pathways, and strengthening
cooperation.\112\ The Government of Mexico expressed its concern about
the economic impact of the POE closures and committed to increasing
enforcement on key transit routes north.\113\ On January 22, 2024,
after a series of follow-on meetings between United States and Mexican
Cabinet members in Washington, DC, Mexico's Foreign Secretary
enumerated a series of steps that the United States and Mexico
committed to taking to continue to address migration, including
combating human smuggling and trafficking organizations.\114\
---------------------------------------------------------------------------
\110\ See The White House, Readout of President Joe Biden's Call
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico
(Dec. 21, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/</a>; The White
House, Readout of President Joe Biden's Call with President
Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico (Feb. 3, 2024),
<a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/03/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-3/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/03/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-3/</a>.
\111\ The White House, Readout of President Joe Biden's Call
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico
(Dec. 21, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/</a>.
\112\ The White House, Readout of Homeland Security Advisor Dr.
Liz Sherwood-Randall's Trip to Mexico (Feb. 7, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/</a>.
\113\ Id.; see also, e.g., Amna Nawaz, Mexico's Foreign
Secretary Discusses What Her Country Is Doing to Ease Border Crisis,
PBS News Hour (Jan. 25, 2024), <a href="https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis">https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis</a>; US, Mexico Agree to Strengthen Efforts to Curb
Record Migration, Reuters (Dec. 28, 2023), <a href="https://www.reuters.com/world/us-mexico-keep-border-crossings-open-lopez-obrador-says-2023-12-28/">https://www.reuters.com/world/us-mexico-keep-border-crossings-open-lopez-obrador-says-2023-12-28/</a>.
\114\ See, e.g., Valentine Hilaire & Cassandra Garrison, Mexico,
US Pitch Measures to Ease Pressure on Border, Plan Guatemala Talks,
Reuters (Jan. 22, 2024), <a href="https://www.reuters.com/world/americas/mexico-us-guatemala-officials-meet-migration-talks-2024-01-22/">https://www.reuters.com/world/americas/mexico-us-guatemala-officials-meet-migration-talks-2024-01-22/</a>; Amna
Nawaz, Mexico's Foreign Secretary Discusses What Her Country Is
Doing to Ease Border Crisis, PBS News Hour (Jan. 25, 2024), <a href="https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis">https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis</a> (quoting Mexico's Foreign
Affairs Secretary as saying that ``we have done much more law
enforcement to bring down the pressure in the border in the
north'').
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DHS assesses that the surge in late 2023 was likely the result of a
number of factors, including the growing understanding by smugglers and
migrants that DHS's capacity to impose consequences at the border is
limited by the lack of resources and tools that Congress has made
available and the Government of Mexico's operational constraints at the
end of its fiscal year, which limited its ability to enforce its own
immigration laws.\115\ The
[[Page 48726]]
Departments cannot address all of these factors in one rule, but assess
that this rule will significantly increase the ability to deliver
timely decisions and timely consequences at the border within current
resources, combating perceptions and messaging to the contrary.
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\115\ See Mar[iacute]a Verza, Mexico Halts Deportations and
Migrant Transfers Citing Lack of Funds, AP News (Dec. 4, 2023),
<a href="https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc">https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc</a>; Smugglers Are Bringing Migrants To
a Remote Arizona Crossing, Overwhelming Agents, NPR (Dec. 10, 2023),
<a href="https://www.npr.org/2023/12/10/1218428530/smugglers-are-bringing-migrants-to-a-remote-arizona-crossing-overwhelming-agents">https://www.npr.org/2023/12/10/1218428530/smugglers-are-bringing-migrants-to-a-remote-arizona-crossing-overwhelming-agents</a>; Adam
Isaacson, Weekly U.S.-Mexico Border Update: Senate Negotiations,
Migration Trends, Washington Office of Latin America (Dec. 15,
2023), <a href="https://www.wola.org/2023/12/weekly-u-s-mexico-border-update-senate-negotiations-migration-trends/">https://www.wola.org/2023/12/weekly-u-s-mexico-border-update-senate-negotiations-migration-trends/</a>; Jordan, supra note 27.
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Encounters between POEs in January 2024 were substantially lower
than December 2023 encounters, consistent with historic seasonal
trends, and encounters in January 2022 and January 2023.\116\ In
February and March 2024, encounter levels increased from the levels in
January but remained significantly lower than in December 2023.\117\
Overall, from January 1 to March 31, 2024, encounters between POEs were
5 percent lower than during the same months in 2023 and 22 percent
lower than those in 2022.\118\ However, despite the overall decrease in
encounters since December 2023, specific areas of the border--in
particular USBP's San Diego and Tucson Sectors--have experienced
localized increases in encounters that have, at times, strained DHS's
holding capacity, adversely impacted local operations, and limited
DHS's ability to swiftly impose consequences on individuals who do not
establish a legal basis to remain in the United States. During the last
week of April 2024, USBP's San Diego Sector encountered an average of
more than 1,400 migrants each day, including many migrants from
countries outside the Western Hemisphere who are more difficult to
process.\119\ The USBP Tucson Sector is experiencing similar,
unprecedented migratory flows and consequent challenges. This high
concentration of encounters, including comparatively large numbers of
migrants who are hard to remove, in a focused geographic area places
particular strain on the immigration enforcement system. This is
particularly true in areas of the border--such as San Diego--where
infrastructure-related capacity constraints limit DHS's ability to
swiftly impose consequences at the border. These factors resulted in
USBP's main processing facility in San Diego reaching over 200 percent
capacity in April 2024, despite a recent expansion of this facility.
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\116\ OHSS analysis of March 2024 OHSS Persist Dataset.
\117\ OHSS analysis of March 2024 OHSS Persist Dataset.
\118\ OHSS analysis of March 2024 OHSS Persist Dataset.
\119\ See Elliot Spagat, The Latest Hot Spot for Illegal Border
Crossings is San Diego. But Routes Change Quickly, AP News (May 17,
2024), <a href="https://apnews.com/article/san-diego-border-asylum-biden-mexico-da1e7b7c81e4e58912deff6d36dbdb9e">https://apnews.com/article/san-diego-border-asylum-biden-mexico-da1e7b7c81e4e58912deff6d36dbdb9e</a>.
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Since January 2024, the United States and Mexico have continued to
hold regular, high-level conversations, as partners, to continue to
deepen their collaboration, identify emerging trends, and coordinate
additional steps by both countries to address changing flows. These
meetings have informed operational deployments by both governments,
including the coordinated response to the shift in migratory flows to
the San Diego and Tucson sectors. This extensive ongoing collaboration
was reflected by another bilateral engagement between President Biden
and President L[oacute]pez-Obrador on April 28, 2024, after which the
presidents released a joint statement in which they ``ordered their
national security teams to work together to immediately implement
concrete measures to significantly reduce irregular border crossings
while protecting human rights.'' \120\
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\120\ See The White House, Joint Statement by the President of
the United States Joe Biden and the President of Mexico
Andr[eacute]s Manuel L[oacute]pez Obrador (Apr. 29, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador">https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador</a>.
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Since then, the United States and the Government of Mexico have
worked together, cooperatively, to increase enforcement.\121\ But these
efforts--while significant--are likely to be less effective over time.
Smuggling networks are adaptable, responding to changes put in place.
Despite their immediate effectiveness, such changes are not enough--and
will almost certainly have diminished effect over time. The reality is
that the scale of irregular migration over the past two years has
strained the funding, personnel, and infrastructure of both countries'
immigration enforcement systems in ways that have, at times,
contributed to high encounters between POEs.
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\121\ See Valerie Gonzalez & Elliot Spagat, The US Sees a Drop
in Illegal Border Crossings After Mexico Increases Enforcement, AP
News (Jan. 7, 2024), <a href="https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a">https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a</a>; Luke
Barr, US Customs And Border Protection Reopening 4 Ports of Entry
After Migrant Surge Subsides, ABC News (Jan. 2, 2024), <a href="https://abcnews.go.com/US/us-customs-border-protection-reopening-4-ports-entry/story?id=106062555">https://abcnews.go.com/US/us-customs-border-protection-reopening-4-ports-entry/story?id=106062555</a>; Seung Min Kim, US and Mexico Will Boost
Deportation Flights and Enforcement to Crack Down on Illegal
Immigration, AP News (Apr. 30, 2024), <a href="https://apnews.com/article/joe-biden-andres-manuel-lopez-obrador-mexico-immigration-border-c7e694f7f104ee0b87b80ee859fa2b9b">https://apnews.com/article/joe-biden-andres-manuel-lopez-obrador-mexico-immigration-border-c7e694f7f104ee0b87b80ee859fa2b9b</a>; Julia Ainsley & Chloe Atkins,
Mexico Is Stopping Nearly Three Times as Many Migrants Now, Helping
Keep U.S. Border Crossings Down, NBC News (May 15, 2024), <a href="https://www.nbcnews.com/politics/immigration/mexico-stopping-three-times-as-many-migrants-as-last-year-rcna146821">https://www.nbcnews.com/politics/immigration/mexico-stopping-three-times-as-many-migrants-as-last-year-rcna146821</a>.
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2. Need for These Measures
DHS projects that, absent the policy changes being promulgated
here, irregular migration will once again increase, and that any
disruption in Mexican enforcement will only exacerbate that trend.
Without the Proclamation and this rule, the anticipated increase in
migration will, in turn, worsen significant strains on resources
already experienced by the Departments and communities across the
United States.
Current trends and historical data indicate that migration and
displacement in the Western Hemisphere will continue to increase as a
result of violence, persecution, poverty, human rights abuses, the
impacts of climate change, and other factors. The case of migration
through the Dari[eacute]n jungle between Colombia and Panama is
illustrative. For example, between January and April, 2024, the United
Nations High Commissioner for Refugees (``UNHCR'') tracked 139,000
irregular entries, up from 128,000 for the same months in 2023 and a
seven-fold increase over migration levels during that period in
2022.\122\ The number of migrants crossing the Dari[eacute]n will only
further increase the pressure on Mexico at its southern border and on
the United States at the SWB.
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\122\ The UNHCR tracked 20,000 irregular entries in the
Dari[eacute]n gap in 2022. OHSS analysis of downloaded from UNHCR
Operational Data Portal, Darien Panama: Mixed Movements Protection
Monitoring--January-December 2023, <a href="https://data.unhcr.org/en/documents/details/105569">https://data.unhcr.org/en/documents/details/105569</a> (last visited May 31, 2024); Darien Panama:
Mixed Movements Protection Monitoring--April 2024, <a href="https://data.unhcr.org/en/documents/details/108399">https://data.unhcr.org/en/documents/details/108399</a> (last visited May 31,
2024).
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Past unprecedented migration surges bolster the Departments' views
and the need for this rulemaking. As described in detail in Section
III.B.1 of this preamble, migration trends have been steadily
increasing in scope and complexity, featuring increasingly varied
nationalities and demographic groups. This has been true even as DHS
has experienced sustained levels of historically high encounter levels.
Over the past two years, an increasing proportion of total CBP
encounters at the SWB has been composed of families and UCs, and DHS
has seen record flows of migrants from countries outside of northern
Central America.\123\ These
[[Page 48727]]
international migration trends are the result of exceedingly complex
factors and are shaped by, among other things, family and community
networks, labor markets, environmental and security-related push
factors, and rapidly evolving criminal smuggling networks.\124\ The
United States Government is working to address these root causes of
migration and to abate adverse effects from unprecedented levels of
irregular migration,\125\ including through working closely with
partner countries across the Western Hemisphere.\126\ But these efforts
will take time to have significant impacts and will not alleviate the
stress that the border security and immigration systems are currently
experiencing, as described in the Proclamation.
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\123\ March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SWB Encounters by
Agency and Family Status'' and ``SWB Encounters by Citizenship and
Family Status'').
\124\ See 88 FR at 31327-28 & n.59.
\125\ See, e.g., 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> (committing to addressing root causes of migration).
\126\ See The White House, Fact Sheet: Third Ministerial Meeting
on the Los Angeles Declaration On Migration and Protection in
Guatemala (May 7, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala">https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala</a>.
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The Departments' views and the need for this rulemaking are further
supported by projections developed from ongoing work by DHS's Office of
Homeland Security Statistics (``OHSS''), which leads an interagency
working group that produces encounter projections used for operational
planning, policy development, and short-term budget planning. OHSS uses
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.\127\ The model includes encounter data disaggregated by
country and demographic characteristics, 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, which can include ``low'' planning models that are based on the
lower bound of the 95 percent forecast interval, ``moderate'' planning
models that are based on the upper bound of the 68 percent forecast
interval, and ``high'' planning models based on the upper bound of the
95 percent forecast interval. These planning models account for changes
in effectiveness of current enforcement and lawful migration
processes.\128\
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\127\ 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
the [forecast] accuracy''); The Forecasting Collaborative, Insights
into the Accuracy of Social Scientists' Forecasts of Societal
Change, 7 Nat. Hum. Behaviour 484 (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). DHS notes that the
complexity of international migration limits DHS'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 in demographics of those noncitizens
encountered by DHS), 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. See 88
FR at 31316 n.14.
\128\ OHSS Southwest Border Encounter Projection, April 2024.
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Because of the significant time and operational cost it takes to
redeploy resources, DHS is generally conservative in its enforcement
planning. 88 FR at 31328. As a result, it focuses on its higher
planning models as it projects future resource deployments to avoid
using more optimistic scenarios that could leave enforcement efforts
badly under-resourced. Id. The current internal projections, based on
this robust modeling methodology, suggest that encounters may once
again reach extremely elevated levels in the weeks to come, averaging
in the three months from July to September, 2024, in the range of
approximately 3,900 to approximately 6,700 encounters at and between
POEs per day, not including an additional 1,450 noncitizens per day who
are expected to be encountered at POEs after making appointments though
the CBP One app.\129\ The Departments believe the policies in this rule
are justified in light of high levels of migration that have ultimately
proved persistent even in the face of new policies that have resulted
in processing migrants with record efficiency, as evidenced by the
migration patterns witnessed in December 2023. Current sustained, high
encounter rates exceed the border security and immigration systems'
capacity to effectively and safely process, detain, and remove, as
appropriate, all migrants who are encountered.\130\ This is generally
true when considering total encounters across the entire SWB, and even
more the case when specific sectors along the border are targeted by
smuggling organizations with focused localized surges in encounters--as
has been happening since the late fall in Tucson, Arizona, which
accounted for 35 percent of SWB encounters between POEs in the second
quarter of FY 2024, up from 18 percent in FY 2023 and 13 percent in FY
2022.\131\
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\129\ OHSS Encounter Projections, April 2024. Note that the OHSS
encounter projection excludes encounters of people who have
registered with the CBP One app along with administrative encounters
at POEs (i.e., encounters in which removal proceedings are not
considered), but includes non-CBP One enforcement encounters at
POEs, which have averaged about 190 per day since May 2023, based on
OHSS analysis of March 2024 OHSS Persist Dataset. See also CBP, CBP
One<SUP>TM</SUP> Appointments Increased to 1,450 Per Day (June 30,
2023), <a href="https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day">https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day</a>.
\130\ See, e.g., Decl. of Blas Nu[ntilde]ez-Neto ] 8, M.A. v.
Mayorkas, No. 23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\131\ March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables--October
2023, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``SW
Border Encounters by Sector'').
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Despite the fact that the average of 4,400 daily encounters between
POEs in the second quarter of FY 2024 is below the highs experienced in
the days immediately preceding the end of the Title 42 public health
Order and in December 2023,\132\ daily encounter numbers remain
sufficiently high--especially in the locations where encounters have
been extremely elevated, such as California and Arizona--that the
numbers significantly impact the operational flexibility required to
process individuals in a timely and consequential manner.\133\
[[Page 48728]]
When capacity is strained like this in specific locations along the
border, it becomes even more difficult for the Departments to deliver
timely decisions and timely consequences. At increased levels of
encounters and without a change in policy, most non-Mexicans processed
for expedited removal under title 8 would likely establish a credible
fear and remain in the United States for the foreseeable future despite
the fact that most of them will not ultimately be granted asylum,
assuming results are similar to historic rates,\134\ a scenario that
would likely continue to incentivize an increasing number of migrants
to journey to the United States and further increase the likelihood of
sustained high encounter rates.
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\132\ March 2024 OHSS Persist Dataset. As noted supra note 5,
preliminary April data show SWB encounters between POEs fell
slightly, by 6 percent, between March and April. OHSS analysis of
data obtained from CBP, Southwest Land Border Encounters, <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters">https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters</a> (last
accessed May 24, 2024). The preliminary April data are best
understood to reflect a continuation of the general pattern
described elsewhere in this rule.
\133\ The Tucson Sector accounted for 35 percent of USBP
encounters in the second quarter of FY 2024, up from 18 percent in
FY 2023 and 13 percent in FY 2022. OHSS analysis of March 2024 OHSS
Persist Dataset; see also CBP, Southwest Land Border Encounters (By
Component), <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters">https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters</a>-by-component (last modified May 15, 2024). Border
encounters typically fall around the New Year and often remain lower
than other months in January. See OHSS, Immigration Enforcement and
Legal Processes Monthly Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last
updated May 10, 2024) (``Nationwide CBP Encounters by Encounter Type
and Region''). Thus, while CBP's apprehension of 402,000 noncitizens
between POEs in the second quarter of FY 2024 is slightly lower than
the 424,000 observed in FY 2023 and 518,000 in FY 2022, it is almost
four times as high as the pre-pandemic second-quarter average for FY
2014 through FY 2019, and with the exceptions of FY 2022 and FY 2023
the highest second-quarter count recorded since FY 2001. Even with
the downturn between January and March, 2024, the high volume of
encounters and challenging demographic mix still meant that most
noncitizens processed by USBP were released from custody into the
United States (including noncitizens enrolled in an ICE Alternatives
to Detention program and those paroled by the Office of Field
Operations). OHSS analysis of March 2024 OHSS Persist Dataset; see
also OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``CBP SW
Border Encounters Book-Outs by Agency'').
\134\ Since May 12, 2023, 60 percent of non-Mexican noncitizen
SWB encounters (at and between POEs) processed for expedited removal
who have made fear claims have been referred to EOIR for immigration
proceedings. OHSS analysis of data downloaded from UIP on April 2,
2024. But based on historic (pre-pandemic) data, only 18 percent of
non-Mexican noncitizens processed for expedited removal that are
referred to EOIR result in an individual being granted relief or
protection from removal once the case is completed. OHSS Enforcement
Lifecycle December 31, 2023.
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Even in times with sustained lower encounter volumes, such as
between 2011 and 2017, the Departments experienced challenging
situations, including the first surge in UCs in 2014, that severely
strained the United States Government's capacity.\135\ Surges in
encounters at the southern border--both at and between POEs--are now
occurring more frequently and at higher magnitudes, and featuring more
diverse demographics and nationalities than ever before.\136\ These
surges affect more CBP sectors along the border, disrupt operations
more quickly, and affect readiness in other critical areas as DHS
diverts resources, including front-line agents, from other urgent tasks
and geographic areas.\137\ These actions, in turn, impact other
critical mission sets, including processing lawful trade and travel at
POEs.\138\
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\135\ OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``CBP SW
Border Encounters by Agency and Family Status'').
\136\ OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, <a href="https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables">https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables</a> (last updated May 10, 2024) (``CBP SW
Border Encounters by Agency and Family Status'' and ``CBP SW Border
Encounters by Agency and Selected Citizenship''); The Unaccompanied
Children Crisis: Does the Administration Have a Plan to Stop the
Border Surge and Adequately Monitor the Children?: Hearing Before
the S. Comm. On the Judiciary, 114th Cong. (2016) (statement of
Ronald Vitiello, Acting Chief of USBP), <a href="https://www.judiciary.senate.gov/imo/media/doc/02-23-16%20Vitiello%20Testimony.pdf">https://www.judiciary.senate.gov/imo/media/doc/02-23-16%20Vitiello%20Testimony.pdf</a>; Memorandum on the Response to the
Influx of Unaccompanied Alien Children Across the Southwest Border,
1 Pub. Papers of Pres. Barack Obama 635, 635 (June 2, 2014).
\137\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v.
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2).
\138\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v.
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2); Decl. of
Blas Nu[ntilde]ez-Neto ] 32, E. Bay Sanctuary Covenant v. Biden, No.
18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 176-2).
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DHS continues to lack the necessary funding and resources to
deliver timely consequences to the majority of noncitizens encountered
given the increased level of encounters it is experiencing at the
SWB.\139\ On August 10, 2023, the Administration submitted to Congress
a request for $2.2 billion in supplemental funding for border
operations, including $1.4 billion for CBP and $714 million for ICE for
border management and enforcement and an additional $416 million for
counter-fentanyl efforts.\140\
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\139\ Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, OMB, at 2-3 (Aug.
10, 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf</a>; The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/</a>.
\140\ See Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, OMB, at 2-3,
attach. at 45-50 (Aug. 10, 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf</a>.
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On October 20, 2023, the Administration submitted to Congress a
second request for supplemental funding for DHS, which would provide
funding to enhance enforcement and processing, procure and
operationalize needed technologies, and hire additional personnel.\141\
This funding would further support critical border enforcement efforts,
including:
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\141\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/</a>.
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<bullet> An additional 1,300 Border Patrol Agents to work alongside
the 20,200 agents proposed in the President's FY 2024 budget request,
as well as 300 Border Patrol Processing Coordinators and support staff;
\142\
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\142\ See DHS, Fact Sheet: Biden-Harris Administration
Supplemental Funding Request (Oct. 20, 2023), <a href="https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request">https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request</a>; The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/</a>.
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<bullet> An additional 1,600 AOs and associated support staff to
process migrant claims, which would provide USCIS with the critical
resources needed to expand its current credible fear interview capacity
to support timely processing of those placed in expedited removal;
\143\ and
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\143\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/</a>.
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<bullet> An expansion of detention beds and ICE removal flight
funding to sustain the current significantly increased use of expedited
removal, provide necessary surge capacity, and allow DHS to process
more expeditiously noncitizens who cross the SWB unlawfully and swiftly
remove those without a legal basis to remain in the United States.\144\
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\144\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/</a>; DHS, Fact Sheet: Biden-
Harris Administration Supplemental Funding Request (Oct. 20, 2023),
<a href="https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request">https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request</a>.
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On January 31, 2024, DHS published a new USCIS fee schedule,
effective April 1, 2024, that adjusted the fees to fully recover costs
and maintain adequate service. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 89 FR 6194, 6194 (Jan. 31, 2024); U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Correction, 89
FR 20101 (Mar. 21, 2024) (making corrections). Because there is
[[Page 48729]]
no fee required to file an asylum application or for protection
screenings, 8 CFR 106.2(a)(28), and because Congress has not provided
other funds to pay for the operating expenses of the Asylum
Division,\145\ fees generated from other immigration applications and
petitions must be used to pay for these expenses. See INA 286(m), 8
U.S.C. 1356(m). While the new fee rule does provide for increased
funding for the Refugee, Asylum, and International Operations
Directorate,\146\ keeping pace with USCIS's protection screening and
affirmative asylum workloads requires additional funding, as reflected
in the President's FY 2025 Budget.\147\ Raising fees on other
applications and petitions to cover the $755 million that would be
required to hire and support the additional 1,600 AOs called for in the
President's 2025 FY Budget \148\ would impose a burden on other filers.
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\145\ See DHS, U.S. Citizenship and Immigration Services, Budget
Overview, Fiscal Year 2025 Congressional Justification CIS--IEFA--22
(Mar. 8, 2024), <a href="https://www.dhs.gov/sites/default/files/2024-03/2024_0308_us_citizenship_and_immigration_services.pdf">https://www.dhs.gov/sites/default/files/2024-03/2024_0308_us_citizenship_and_immigration_services.pdf</a> (showing AOs
are funded by Immigration Examinations Fee Account); id. at CIS--
O&S--30 (showing that appropriated funds from the Refugee, Asylum,
and International Operations Directorate of USCIS support Refugee
Officers).
\146\ DHS, Immigration Examinations Fee Account: Fee Review
Supporting Documentation with Addendum 53 (Nov. 2023), <a href="https://www.regulations.gov/document/USCIS-2021-0010-8176">https://www.regulations.gov/document/USCIS-2021-0010-8176</a>.
\147\ See The White House, Fact Sheet: The President's Budget
Secures Our Border, Combats Fentanyl Trafficking, and Calls on
Congress to Enact Critical Immigration Reform (Mar. 11, 2024),
<a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/</a>.
\148\ Id.
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In early February 2024, a bipartisan group of Senators proposed
reforms of the country's asylum laws that would have provided new
authorities to significantly streamline and speed up immigration
enforcement proceedings and immigration adjudications for individuals
encountered at the border, including those who are seeking protection,
while preserving principles of fairness and humane treatment.\149\
Critically, the proposal included nearly $20 billion in additional
resources for DHS, DOJ, and other departments to implement those new
authorities,\150\ including resources for:
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\149\ The White House, Fact Sheet: Biden-Harris Administration
Calls on Congress to Immediately Pass the Bipartisan National
Security Agreement (Feb. 4, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/</a>.
\150\ Deirdre Walsh & Claudia Grisales, Negotiators release $118
billion border bill as GOP leaders call it dead in the House, NPR
(Feb. 4, 2024), <a href="https://www.npr.org/2024/02/04/1226427234/senate-border-deal-reached">https://www.npr.org/2024/02/04/1226427234/senate-border-deal-reached</a>.
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<bullet> Over 1,500 new CBP personnel, including Border Patrol
Agents and CBP Officers;
<bullet> Over 4,300 new AOs, as well as USCIS staff to facilitate
timely and fair decisions;
<bullet> 100 additional IJ teams to help reduce the asylum caseload
backlog and adjudicate cases more quickly;
<bullet> Shelter and critical services for newcomers in U.S. cities
and States; and
<bullet> 1,200 new ICE personnel for functions including
enforcement and removals.\151\
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\151\ The White House, Fact Sheet: Biden-Harris Administration
Calls on Congress to Immediately Pass the Bipartisan National
Security Agreement (Feb. 4, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/</a>.
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However, Congress failed to move forward with this bipartisan
legislative proposal.\152\ It also failed to pass the emergency
supplemental funding requests that the Administration submitted.
Although Congress did ultimately enact an FY 2024 appropriations bill
for DHS, the funding falls significantly short of what DHS requires to
deliver timely consequences and avoid large-scale releases pending
section 240 removal proceedings. For example, the bill does not provide
the resources necessary for DHS to refer the majority of noncitizens
encountered by USBP who are amenable to expedited removal into such
processing, resulting in large-scale releases pending section 240
removal proceedings based on current encounter numbers. Such releases,
in turn, have significant impacts on communities and contribute to
further migration by incentivizing potential migrants to travel to the
United States with the belief that, even if initially detained, they
will ultimately be released to live and work in the United States for
long periods of time. Absent the Proclamation and this rule, these
harmful results are especially likely given the circumstances described
in the Proclamation.
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\152\ Associated Press, Border Bill Fails Senate Test Vote as
Democrats Seek to Underscore Republican Resistance (May 23, 2024),
<a href="https://apnews.com/article/border-immigration-senate-vote-924f48912eecf1dc544dc648d757c3fe">https://apnews.com/article/border-immigration-senate-vote-924f48912eecf1dc544dc648d757c3fe</a>.
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The FY 2024 appropriations provided some additional funding for DHS
above its request, including for additional Border Patrol Agents and a
higher level of ICE detention beds than was previously
appropriated.\153\ Although this increase is helpful, there are a
number of ways in which the FY 2024 budget falls well short of what DHS
needs to respond to the current elevated levels of migration. For
example, the FY 2024 appropriations failed to fund the salary increase
set across the Federal Government by the Office of Management and
Budget (``OMB''), effectively reducing salary funding for the entirety
of the appropriations-funded DHS workforce.\154\ This reduction will
limit the availability of overtime to respond to surges in irregular
migration and may require difficult operational decisions during the
closing months of the fiscal year, which is historically a busier
period for such migration. The appropriations also did not provide
sufficient funding to maintain the temporary processing facilities
needed to hold migrants in custody. Further, the funds for hiring
additional personnel were restricted to the current fiscal year rather
than being provided as multi-year funds as requested; given the length
of the hiring process, DHS will not be able to realize the increases in
personnel envisioned by the legislation before the funding expires.
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\153\ See House of Representatives, Explanatory Statement:
Division C, Department of Homeland Security Appropriations Act,
2024, at 14, 25 (Mar. 18, 2024), <a href="https://docs.house.gov/billsthisweek/20240318/Division%20C%20Homeland.pdf">https://docs.house.gov/billsthisweek/20240318/Division%20C%20Homeland.pdf</a>.
\154\ See id. at 14, 22 (explaining that for CBP, ``[t]he
agreement includes $346,498,000 below the request, including the
following: $182,772,000 for the 2024 pay raise,'' and for ICE,
``[t]he agreement provides $9,501,542,000 for Operations and
Support, including a decrease below the request of $74,153,000 for
the 2024 pay raise'').
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All of these factors, taken together, mean that under the current
appropriations law, DHS will, at best, be able only to sustain most of
its current operations, resulting in an operating capacity that already
experiences strain during times of high migration levels; this will, in
turn, reduce DHS's ability to maximize the delivery of timely
consequences for those without a lawful basis to remain. Additionally,
DHS will not be able to expand capacity along the border or increase
its ability to deliver consequences through referrals into expedited
removal. Instead, DHS may actually need to reduce capacity in some key
areas, including by closing critical temporary processing facilities
and pulling USBP agents away from the frontline to undertake processing
and tasks related to custody. Thus, while DHS has made significant
progress
[…truncated; see source link]Indexed from Federal Register on June 7, 2024.
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.