Rule2024-22602
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
October 7, 2024
Effective
October 1, 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") suspending and limiting the entry of certain noncitizens into the United States during emergency border circumstances. DHS and DOJ ("the Departments") issued a complementary interim final rule ("IFR") shortly thereafter. This final rule responds to public comments received on the IFR, makes certain revisions to the regulatory text, and seeks comment on potential changes to the Circumvention of Lawful Pathways rule as well as changes that parallel modifications made by the subsequent Proclamation.
Full Text
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<title>Federal Register, Volume 89 Issue 194 (Monday, October 7, 2024)</title>
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[Federal Register Volume 89, Number 194 (Monday, October 7, 2024)]
[Rules and Regulations]
[Pages 81156-81285]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22602]
[[Page 81155]]
Vol. 89
Monday,
No. 194
October 7, 2024
Part II
Department of Homeland Security
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Rural Business-Cooperative Service
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 208, 225, and 1208
Securing the Border; Final Rule
Federal Register / Vol. 89 , No. 194 / Monday, October 7, 2024 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
[CIS No. 2778-24; Docket No: USCIS-2024-0006]
RIN 1615-AC92
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 6053-2024]
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: Final rule; 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'') suspending and limiting the entry of certain noncitizens into
the United States during emergency border circumstances. DHS and DOJ
(``the Departments'') issued a complementary interim final rule
(``IFR'') shortly thereafter. This final rule responds to public
comments received on the IFR, makes certain revisions to the regulatory
text, and seeks comment on potential changes to the Circumvention of
Lawful Pathways rule as well as changes that parallel modifications
made by the subsequent Proclamation.
DATES:
Effective date: This rule is effective at 12:01 a.m. eastern
daylight time on October 1, 2024.
Comment period for solicited comments: Comments on the extended and
expanded applicability of the Circumvention of Lawful Pathways
rebuttable presumption in Section IV of this preamble and changes that
parallel modifications made by the subsequent Proclamation described in
Section II.C.1 of this preamble must be submitted on or before November
6, 2024.
The electronic Federal Docket Management System will accept
comments prior to midnight eastern time at the end of that day.
ADDRESSES:
Docket: To view comments on the IFR that preceded this rule, search
for docket number USCIS-2024-0006 on the Federal eRulemaking Portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comment period for solicited additional comments: You may submit
comments on the specific issues identified in Sections II.C.1 and IV of
this preamble via the electronic Federal Docket Management System at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, to DHS Docket Number USCIS-2024-0006.
Follow the website instructions for submitting comments. Comments
submitted in a manner other than the one listed above, including emails
or letters sent to the Departments' officials, will not be considered
comments on the rulemaking and may not receive a response from the
Departments. Please note that the Departments cannot accept any
comments that are hand-delivered or couriered. In addition, the
Departments cannot accept comments contained on any form of digital
media storage device, 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, USCIS,
DHS, 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, DHS;
telephone (202) 447-3459 (not a toll-free call).
For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
EOIR, DOJ, 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
1. Basis for the IFR
2. The Departments' Experience With the IFR
B. Legal Authority
C. Changes From the IFR to Final Rule
1. Changes to the IFR's Thresholds
2. Clarifying Changes to Regulatory Text
3. Other Technical Changes
D. Rule Provisions
E. Severability
III. Public Comments and Responses
A. Legal Authority and Background
1. Legality Concerns
a. General Comments on Domestic Law
b. Statutory Conditions and Limitations on Asylum Eligibility
c. Expedited Removal
d. General Comments on International Law
e. UNHCR Guidelines on International Protection
f. 2000 Protocol To Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children
2. Justification and Statements on Need for the Rule
a. Rule Is Unjustified, Unsubstantiated, or Arbitrary
b. Lack of Resources Does Not Justify the Rule
c. Rule Does Not Acknowledge Factors Contributing to Migration
d. Other Comments Related to the Departments' Justification
B. General Feedback on the IFR
1. General Support
2. General Opposition
a. Negative Impacts on Noncitizens and Others
i. Conflicts With Humanitarian Values
ii. Procedural and Due Process Concerns
(1) General Concerns
(2) Access to Counsel, Unrepresented Applicants, and the Ability
or Time To Prepare
(3) Noncitizens' Ability to Have Their Claims Heard
(4) Issues With Asylum Officers, Detention Conditions, and
Quality of Credible Fear Determinations
(5) Fairness or Risks Associated With Process
iii. Impacts on Specific Vulnerable Populations, Discrimination
Concerns
iv. Impacts on Criminal Enforcement
v. Negative Impacts on Other Affected Entities
b. Negative or Minimal Impacts on Immigration System and
Government Operations
i. Undermines the Administration's Promises and Goals
ii. Similarity to Actions of Past Administration
iii. Would Be Ineffective or Not Achieve Its Intended Outcomes
c. Negative Impacts on the U.S. Economy, Workforce, Citizenry,
Public Health, and Safety
d. Other General Opposition
C. Provisions of the Rule
1. Limitation on Asylum Eligibility
a. Proclamation Exceptions--Section 3(b) of Proclamation
i. Legal Concerns Related to CBP One and the Lack of Exceptions
ii. Wait Times for CBP One Appointments
iii. Availability of and Access to CBP One Appointments and
Concerns about Discrimination
b. Regulatory Exception--Exceptionally Compelling Circumstances
c. Implementation by CBP Officers
d. Application of the Limitation on Asylum Eligibility in
Proceedings Before EOIR
e. Family Unity Provisions
2. Manifestation of Fear Standard
a. Legality Concerns
b. Concerns About the Efficiency and Complexity of the
Manifestation Standard
c. Implementation Guidance and Accuracy of Manifestation To
Identify Fear of Return
d. Trauma Impacting Manifestation and Vulnerable Populations
[[Page 81157]]
e. A Manifestation of Fear Does Not Sufficiently Align With a
Valid Claim for Asylum
f. Noncitizens May Not Understand Their Legal Right to Seek
Asylum
3. ``Reasonable Probability'' Screening Standard for Statutory
Withholding of Removal and CAT Protection
4. Other Comments on the Regulatory Provisions
a. Application to Mexican Nationals
b. Adequacy of Statutory Withholding of Removal and CAT
Protection
c. Requests for Reconsideration
D. Other Issues Relating to the Rule
1. Scope of the Rule and Implementation
a. Concerns That the Encounter Thresholds Are Too Low or
Arbitrary
b. Concerns Regarding Exceptions From the Encounter Thresholds
c. Other Concerns About the Encounter Thresholds
2. Other Comments on Issues Relating to the Rule
E. Statutory and Regulatory Requirements
1. Administrative Procedure Act
a. Foreign Affairs Exception
b. Good Cause Exception
c. Length and Sufficiency of Comment Period
2. Impacts, Costs, and Benefits (E.O. 12866 and E.O. 13563)
3. Alternatives
a. Address Root Causes of Migration
b. Prioritize Funding and Other Resources
c. Further Expand Refugee Processing or Other Lawful Pathways
d. Expand Asylum Merits Process
e. Other Congressional Action
f. Additional Suggested Measures or Revisions
F. Out of Scope
IV. Requests for Comments
A. Aligning the Geographic Reach of the Circumvention of Lawful
Pathways Rule With That of the Proclamation and This Rule
B. Extending the Applicability of the Circumvention of Lawful
Pathways Rebuttable Presumption
V. Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14094 (Modernizing Regulatory Review)
1. Effects Under a Without-IFR Baseline
2. Effects Under a With-IFR Baseline
3. Discontinuation Analysis Under a Without-IFR Baseline
4. Effects of Expansion and Extension of Circumvention of Lawful
Pathways Rebuttable Presumption
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
AMI Asylum Merits Interview
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
DOJ Department of Justice
EOIR Executive Office for Immigration Review
ERO Enforcement and Removal Operations
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FERM Family Expedited Removal Management
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
LGBTQI+ Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and
Intersex
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act of 1969
NTA Notice to Appear
OFO Office of Field Operations
OHSS Office of Homeland Security Statistics
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
TVPA Trafficking Victims Protection Act of 2000
UC Unaccompanied Child, having the same meaning as Unaccompanied
Alien Child as defined at 6 U.S.C. 279(g)(2)
UDHR Universal Declaration of Human Rights
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
USCG U.S. Coast Guard
I. Public Participation
Interested persons are invited to submit comments on the specific
issues identified in Sections II.C.1 and IV of this preamble by
submitting relevant written data, views, comments, and arguments by the
deadline stated above. To provide the most assistance to the
Departments, comments should explain the reason for any recommendation
and include data, information, or authority that supports the
recommended course of action. Comments must be submitted in English, or
an English translation must be provided. Comments submitted in a manner
other than pursuant to the instructions, including emails or letters
sent to the Departments' officials, will not be considered comments on
the rule and may not receive a response from the Departments.
Instructions: If you submit a comment, you must include the 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
1. Basis for the IFR
On June 3, 2024, the President signed Proclamation 10773 (``June 3
Proclamation'') \1\ 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 were unduly strained, the
entry into the United States of certain categories of noncitizens was
detrimental to the interests of the United States, and
[[Page 81158]]
suspending and limiting the entry of such noncitizens. 89 FR 48487,
48487-91 (June 7, 2024). The June 3 Proclamation directed DHS and DOJ
to promptly consider issuing regulations addressing the circumstances
at the southern border of the United States, including any warranted
limitations and conditions on asylum eligibility. Id. at 48492. The
Departments subsequently promulgated an IFR, effective June 5, 2024,
``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.'' \2\ Securing the
Border, 89 FR 48710, 48718 (June 7, 2024) (``the IFR'').
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\1\ As discussed in Section II.C.1 of this preamble, the
President has since issued a proclamation amending portions of the
June 3 Proclamation. That amending proclamation is referred to as
the ``September 27 Proclamation'' in this preamble. Where the
preamble refers to ``the Proclamation'' without specifying a date,
it is referring to Proclamation 10773 as amended by the September 27
Proclamation.
\2\ 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 the
Department of Homeland Security's (``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. See 89 FR at 48711 & n.2.
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The June 3 Proclamation and the IFR explain that, since 2021, as a
result of political and economic conditions globally, there have been
substantial levels of migration throughout the Western Hemisphere,
including at the southwest land border (``SWB''). 89 FR at 48487; id.
at 48711 & n.3. In December 2023, migration levels at the SWB surged to
the highest monthly total on record.\3\ Id. at 48712 n.5. DHS assessed
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 made available by Congress and the
Government of Mexico's operational constraints caused by a lack of
funding at the end of the 2023 calendar year, which limited its ability
to enforce its own immigration laws. Id. at 48725 & n.115.
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\3\ There were nearly 302,000 U.S. Customs and Border Protection
(``CBP'') encounters at and between ports of entry (``POEs'') along
the southwest land border (``SWB'') in December 2023, higher than
any previous month on record. Office of Homeland Security Statistics
(``OHSS'') analysis of July 2024 OHSS Persist Dataset [Encounters
Fiscal Year (``FY'') 2000-2024]; 89 FR at 48714 n.21; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables (last
updated Sept. 6, 2024), <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> (SWB encounters from
FY 2014 through December 2023). OHSS figures are generally rounded
throughout this preamble.
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These sustained high encounter rates outstripped the Departments'
abilities--based on available resources--to deliver timely decisions
and consequences in significant numbers for those without a legal basis
to remain in the United States. 89 FR at 48714. Due to its funding
shortfall, DHS lacked adequate resources such as sufficient USCIS
asylum officers (``AOs'') to conduct fear screenings and sufficient
temporary processing facilities, often called ``soft-sides.'' Id. These
factors limited DHS's ability to conduct credible fear interviews for
individuals in U.S. Customs and Border Protection (``CBP'') custody and
to process and hold individuals in U.S. Immigration and Customs
Enforcement (``ICE'') custody during the expedited removal process. Id.
The substantial migration throughout the hemisphere, combined with
inadequate resources and tools to keep pace, limited DHS's ability to
impose timely consequences through expedited removal, the main
consequence Congress has made available at the border under title 8
authorities. 89 FR at 48713-14. Consistent with past practice prior to
the Title 42 public health Order, individuals who are subject to but
cannot be processed under expedited removal due to resource constraints
are instead generally released, after screening and vetting, pending
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a
(``section 240 removal proceedings''), before an immigration judge
(``IJ'').
These higher encounter rates also place significant strain on the
immigration courts. Recently, despite significant increases in the
total number of IJs and case completions since Fiscal Year (``FY'')
2021, newly initiated cases have far outpaced such completions.\4\
Placing more noncitizens in section 240 removal proceedings before an
IJ--rather than processing eligible noncitizens through the expedited
removal process--only further contributes to the immigration court
backlog, and those cases can take several years to conclude.\5\ This
strain is also particularly acute in light of EOIR's current
underfunding. Rather than increase funding to support IJ team hiring,
EOIR's FY 2024 budget was $16 million less than in FY 2023 and was
$94.3 million less than its inflation-adjusted funding requirements
(referred to as ``Current Services'').\6\
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\4\ See Executive Office of Immigration Review (``EOIR''),
Adjudication Statistics: New Cases and Total Completions (July
2024), <a href="https://www.justice.gov/eoir/media/1344796/dl?inline">https://www.justice.gov/eoir/media/1344796/dl?inline</a>; EOIR,
Adjudication Statistics: Immigration Judge (IJ) Hiring (July 2024),
<a href="https://www.justice.gov/eoir/media/1344911/dl?inline">https://www.justice.gov/eoir/media/1344911/dl?inline</a>.
\5\ EOIR decisions completed in July 2024 were, on average,
initiated in February 2022, during the significant operational
disruptions caused by the COVID-19 pandemic (with encounters several
months earlier than that), but 60 percent of EOIR cases initiated
during that time were still pending as of July 2024, so the final
mean processing time (once all such cases are complete) will be
longer. OHSS analysis of EOIR data as of July 2024 (Mean EOIR Filed
Dates tab); EOIR, EOIR Strategic Plan 2024, EOIR's Strategic
Context, 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 Sept. 20, 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.''). Although 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
unaccompanied children (``UCs''). See, e.g., EOIR, Median
Unaccompanied Noncitizen Child (UAC) Case Completion and Case
Pending Time (Apr. 19, 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 1,254 days); EOIR,
Median Completion Times for Detained Cases (Apr. 19, 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 46 days in the second quarter of 2024 for removal, deportation,
exclusion, asylum-only, and withholding-only cases); EOIR,
Percentage of DHS-Detained Cases Completed within Six Months (Apr.
19, 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).
\6\ See Consolidated Appropriations Act, 2024, Public Law 118-
42, 138 Stat. 25, 133; EOIR, FY 2024 Budget Request at a Glance,
<a href="https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf">https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf</a>.
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The Departments reasoned that their capacity to predictably deliver
timely decisions and consequences is jeopardized by emergency border
circumstances, which, left unmitigated, further add to the incentives
and motivations for migrants to make the dangerous journey to the SWB,
regardless of their ultimate likelihood of success on an asylum or
protection application, and that the current immigration and asylum
systems had become a driver for irregular migration \7\ throughout the
region and an increasingly lucrative source of income for dangerous
transnational criminal organizations (``TCOs''). 89 FR at 48714.
Despite the Departments' efforts to address these substantial levels of
migration, strengthen the consequences in place at the border, and
enhance the overall functioning of the immigration system, including
through the
[[Page 81159]]
Circumvention of Lawful Pathways rule, 88 FR 31314 (May 16, 2023),
these circumstances still existed as 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. 89 FR at 48711-13, 48715.
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\7\ As used in this preamble, ``irregular migration'' refers to
the movement of people into another country unlawfully or without
authorization. With respect to the United States' borders, the term
``irregular'' is used in this preamble to refer to physically
entering between POEs or otherwise entering without documents
sufficient for lawful admission, unless entering with advance
authorization to travel or at a pre-scheduled time and place to
present at a POE.
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In the absence of congressional action, and consistent with the
President's direction in the June 3 Proclamation to consider issuing
regulations, the Departments adopted the provisions in the IFR, which
were intended to address the emergency border circumstances and to
substantially improve the Departments' ability to deliver timely
decisions and consequences during such circumstances. See 89 FR at
48710. The IFR established a limitation on asylum eligibility that
applies to certain individuals who enter irregularly across the
southern border during emergency border circumstances and revised
certain procedures applicable to the expedited removal process during
such periods to reduce the time required to apply consequences to those
individuals and remove noncitizens who do not have a legal basis to
remain in the United States. Id. at 48715. The IFR was expected to
achieve several benefits: reduce strains on limited Federal Government
immigration processing and enforcement resources; preserve the
Departments' continued ability to safely, humanely, and effectively
enforce and administer the immigration laws; protect against
overcrowding in border facilities; and reduce the ability of
exploitative TCOs and smugglers to operate. Id. at 48745, 48767.
2. The Departments' Experience With the IFR
The IFR's limitation on asylum eligibility and revised procedures
are working as intended, though as discussed below, the Departments
have determined that modest adjustments to the threshold calculations
are warranted. As explained in the paragraphs that follow, in the weeks
since June 5, 2024, U.S. Border Patrol (``USBP'') encounters between
the ports of entry (``POEs'') have dropped markedly. Although the
Departments believe that this has occurred for a range of reasons, one
important reason is that the rule itself has significantly shifted
incentives at the southern border. As explained further below, and
consistent with the explanation provided in the IFR, the rule has, at
least in part, significantly improved DHS's ability to place into
expedited removal a majority of single adults and individuals in family
units encountered by USBP; to avoid large-scale releases of such
individuals into the United States pending section 240 removal
proceedings; and to allow for swift resolution of such individuals'
cases and, where appropriate, their removal. See id. At the same time,
the Departments have continued to implement the largest expansion of
lawful, safe, and orderly pathways and processes \8\ for individuals to
come to the United States and to uphold the United States' non-
refoulement obligations under international law.
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\8\ The terms ``lawful pathways,'' ``lawful, safe, and orderly
pathways,'' ``lawful pathways and processes,'' and ``lawful, safe,
and orderly pathways and processes,'' as used in this preamble,
refer to the range of pathways and processes by which migrants are
able to enter the United States or other countries in a lawful,
safe, and orderly manner, including to seek asylum and other forms
of protection or other immigration benefits for which they may be
eligible.
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In the period between June 5, 2024, and August 31, 2024, average
daily total encounters between POEs at the SWB under the Proclamation
and IFR have fallen 59 percent from the level of average daily
encounters during the immediate post-pandemic period, i.e., the period
after the Circumvention of Lawful Pathways rule began to apply on May
12, 2023,\9\ and before the IFR entered into effect on June 5,
2024.\10\ This dramatic decrease in encounters has spanned multiple
demographic categories. For instance, DHS has observed a drop in
encounters of family units, a demographic category that presents
particular operational challenges. During the immediate post-pandemic
period, DHS experienced an average of about 2,000 daily encounters of
individuals in family units.\11\ Since the Departments issued the IFR,
that daily average has dropped 70 percent to about 600 individuals in
family units encountered daily.\12\ Other significant drops in
encounter numbers occurred with single adults and unaccompanied
children (``UCs'').\13\
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\9\ While the rule's effective date was May 11, 2023, 88 FR at
31314, the rule only applies to noncitizens who enter the United
States ``[s]ubsequent to the end of implementation of the Title 42
public health Order[,]'' 8 CFR 208.33(a)(1)(ii), which expired at
11:59 p.m. on May 11, 2023, see DHS, Fact Sheet: Department of State
and Department of Homeland Security Announce Additional Security
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>.
Therefore, the Circumvention of Lawful Pathways rule began to apply
on May 12, 2023.
\10\ OHSS analysis of July 2024 OHSS Persist Dataset and data
downloaded from the U.S. Customs and Border Protection Unified
Immigration Portal (``UIP'') on September 3, 2024 (Summary
Statistics tab). There was an average of about 2,100 total
encounters per day (including all demographic groups) between POEs
at the SWB from June 5, 2024, to August 31, 2024, compared to around
5,100 per day during the immediate post-pandemic period, defined as
May 12, 2023, through June 4, 2024. Id.
\11\ OHSS analysis of July 2024 Persist Dataset (Summary
Statistics tab).
\12\ OHSS analysis data downloaded from UIP on September 3, 2024
(Summary Statistics tab).
\13\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------
In contrast to processing before the IFR, DHS is now placing the
majority of single adults and individuals in family units encountered
by USBP at the SWB into expedited removal. Between June 5, 2024, and
August 31, 2024, DHS placed 59 percent of these noncitizens into
expedited removal proceedings, compared to 18 percent of such
noncitizens during the immediate post-pandemic period following the end
of the Title 42 public health Order.\14\ In the pre-pandemic
period,\15\ DHS placed 41 percent of such noncitizens into expedited
removal proceedings.\16\ The decrease in the number of encounters at
the SWB directly enabled DHS's increased placement rate of noncitizens
into expedited removal proceedings. Because encounter levels have
decreased, DHS is able to use its operational resources to refer a
higher percentage of noncitizens into expedited removal proceedings and
deliver timely consequences in a greater proportion of cases.\17\ The
IFR is remedying the
[[Page 81160]]
negative effects of the previously sustained high encounter numbers
described in the IFR and in this rule. See, e.g., 89 FR at 48749 (``In
order to maximize the consequences for those who cross unlawfully or
without authorization, DHS endeavors to deliver consequences swiftly to
the highest proportion of individuals who fail to establish a legal
basis to remain in the United States. This includes, subject to
available resources, referring the maximum number of eligible
individuals possible into expedited removal to quickly adjudicate their
claims.'').
---------------------------------------------------------------------------
\14\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Summary Statistics tab).
\15\ Throughout this preamble the ``pre-pandemic period'' refers
to FY 2014 to FY 2019.
\16\ OHSS analysis of July 2024 Persist Dataset (Summary
Statistics tab). DHS reinstated removal orders for a larger share of
single adults and individuals in family units during the pre-
pandemic period (26 percent during the pre-pandemic period compared
to 14 percent under the interim final rule (``IFR'')), which is
unsurprising given that the Departments are seeing fewer repeat
encounters as a result of the higher proportion of non-Mexicans/non-
northern Central Americans--with more limited migration histories--
as a share of total encounters. Id.; 89 FR at 48721 n.49. Notably,
the sum of reinstatements and expedited removals is still higher
during the IFR (a combined 73 percent) than it was during the pre-
pandemic period (67 percent). OHSS analysis of July 2024 Persist
Dataset (Summary Statistics tab).
\17\ The most effective way to deliver timely consequences to
noncitizens who enter irregularly is through the expedited removal
system, but DHS's capacity to use that system on a large scale is
subject to resource constraints. One such constraint is space to
hold noncitizens in DHS custody during the expedited removal
process. Because noncitizens in expedited removal are subject to
detention, including during the pendency of their credible fear
proceedings, the use of expedited removal may lead to an increase in
the time that an individual spends in CBP custody. This is
particularly the case when the individual is receiving their
credible fear interview while in CBP custody. When there are high
numbers of individuals placed in expedited removal, the number of
individuals who remain in CBP custody for a lengthier period can
increase rapidly, leading to overcrowded conditions. In addition,
given the nature of CBP facilities--which are designed for short-
term temporary holding--CBP endeavors to move all individuals out of
custody in an expeditious manner and to avoid overcrowding.
Thus, if high encounter levels result in a significant number of
individuals in CBP custody, or if those individuals have been in
custody for a significant period of time, CBP may lose optionality:
having lost the capacity to place additional noncitizens into the
expedited removal process, CBP generally must take steps to release
some individuals from custody to ensure safe and sanitary conditions
and appropriate time in custody. In cases when release is
appropriate or warranted, CBP generally issues an individual a
Notice to Appear (``NTA'') before an immigration judge (``IJ'')
prior to their release from custody. Although in some circumstances
transfer of such noncitizens to U.S. Immigration and Customs
Enforcement (``ICE'') for detention for the duration of the credible
fear process is possible, the ability to do so is dependent on the
availability of space in ICE's already significantly strained
detention network. Therefore, when ICE detention space is
unavailable, noncitizens must then be processed by CBP through non-
expedited removal pathways.
---------------------------------------------------------------------------
Relatedly, the IFR has also significantly reduced the percentage of
noncitizens encountered between POEs at the SWB who are released into
the United States pending completion of their section 240 removal
proceedings. For instance, from June 5, 2024, through August 31, 2024,
USBP placed 25 percent of noncitizens encountered at the SWB into
section 240 removal proceedings.\18\ This is down 41 percentage points
from the immediate post-pandemic period, when USBP placed 66 percent of
such noncitizens into section 240 removal proceedings, translating to a
reduction of over 60 percent.\19\ Similarly, between June 5, 2024, and
August 31, 2024, 33 percent of all noncitizens encountered at the SWB
were sent to Enforcement and Removal Operations (``ERO''); this figure
is up from 19 percent during the immediate post-pandemic period.\20\
---------------------------------------------------------------------------
\18\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Summary Statistics tab).
\19\ OHSS analysis of July 2024 Persist Dataset (Summary
Statistics tab).
\20\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------
The IFR's change to how DHS immigration officers identify and refer
noncitizens for credible fear interviews has resulted in a reduction of
such referrals. Under the IFR, during emergency border circumstances,
instead of asking specific questions about fear or providing lengthy
advisals, DHS refers a noncitizen for such an interview 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 the noncitizen's country or the country of
removal. From June 5, 2024, through August 31, 2024, 27 percent of
noncitizens encountered between POEs at the SWB and processed for
expedited removal indicated an intention to apply for asylum or a fear
of persecution or torture, compared with a 37 percent fear-claim rate
during the pre-pandemic period and 57 percent during the immediate
post-pandemic period.\21\ In the IFR, DHS explained that based on its
extensive experience administering the expedited removal process, it
concluded that the affirmative questions asked under steady state
operations are suggestive and account for part of the high rates of
referrals and screen-ins that do not ultimately result in a grant of
asylum or protection. 89 FR at 48743.\22\ The shift to a manifestation
standard has, as intended, reduced the gap between high rates of
referrals and screen-ins and historic ultimate grant rates as well as
increased processing efficiency for DHS, and noncitizens who manifest
or claim a fear, or who indicate an intention to apply for asylum,
still have their claims adjudicated as required by the INA.
---------------------------------------------------------------------------
\21\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
\22\ From FY 2014 through 2019, of total SWB encounters
processed for expedited removal and then referred to section 240
proceedings, only 18 percent of EOIR case completions ultimately
resulted in a grant of protection or relief. 89 FR at 48743 n.219;
OHSS analysis of June 2024 Enforcement Lifecycle dataset (Historic
ERCF Results tab). During that same period, 37 percent of SWB
encounters processed for expedited removal claimed fear, and 76
percent of those who claimed fear were screened in and referred to
section 240 removal proceedings. OHSS analysis of July 2024 Persist
Dataset (Summary Statistics tab).
---------------------------------------------------------------------------
The shift to a ``reasonable probability'' standard for screening
for statutory withholding of removal and protection under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT''), Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S 85,\23\ has further reduced the difference
between high screen-in rates and historically low ultimate grant rates
of protection or relief. Overall, of those USBP has referred for
credible fear interviews, the comprehensive screen-in rate has dropped
to 57 percent, compared to 83 percent during the pre-pandemic period
and 62 percent during the immediate post-pandemic period.\24\ Of USBP
encounters screened by USCIS under the rule's ``reasonable
probability'' standard, the screen-in rate has decreased to
approximately 48 percent \25\ compared to 76 percent \26\ under the
``significant possibility'' standard during the pre-pandemic period,
and approximately 51 percent \27\ for those screened under the
Circumvention of Lawful Pathway rule's lower ``reasonable possibility''
standard.\28\ The Departments believe the lower screen-in rate under
the IFR better
[[Page 81161]]
aligns with the percentage of noncitizens who have historically been
granted protection or relief. That is to say, noncitizens screened
under the higher ``reasonable probability'' standard that receive
positive findings are more likely to have meritorious claims in
ultimate adjudications.
---------------------------------------------------------------------------
\23\ In this preamble, consistent with the IFR, the Departments
generally refer to protection under the regulations implementing
U.S. obligations under Article 3 of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
(``CAT'') as ``CAT protection.'' See, e.g., 89 FR at 48716.
\24\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
Data for immediate post-pandemic and IFR periods are limited to SWB
encounters between POEs. The comprehensive screen-in rate includes
positive determinations issued by U.S. Citizenship and Immigration
Services (``USCIS''), cases where an IJ vacated USCIS's negative
determination, and cases administratively closed by USCIS in which a
discretionary NTA was issued. For cases processed under either the
Circumvention of Lawful Pathways rule or the IFR, the comprehensive
screen-in rate encompasses cases where USCIS or an IJ determined
that the noncitizen was found not subject to the Circumvention of
Lawful Pathways rule's rebuttable presumption or the IFR's
limitation on asylum eligibility under the significant possibility
standard, in addition to cases screened-in under the ``reasonable
possibility'' or ``reasonable probability'' standards, as
applicable.
\25\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Fear Screening--STB tab, Line 9 divided by Line 8). Data are
limited to SWB encounters between POEs.
\26\ OHSS analysis of June 2024 Enforcement Lifecycle dataset
(Historic ERCF Results tab). Data are limited to SWB encounters
between POEs.
\27\ OHSS analysis of July 2024 Persist Dataset (Fear
Screening--CLP tab, Line 13 divided by Line 12). Data are limited to
SWB encounters between POEs.
\28\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Summary Statistics tab). Although in the preamble to the IFR,
DHS anticipated that the manifestation approach ``will likely lead
to a higher proportion of those referred having colorable claims for
protection[,]'' see 89 FR at 48743, USCIS screen-in rates have
dropped slightly, as noted above, see OHSS analysis of June 2024
Enforcement Lifecycle dataset, July 2024 Persist Dataset, and data
downloaded from UIP on September 3, 2024 (Historic ERCF Results,
Fear Screening--STB, and Fear Screening--CLP tabs). There could be
multiple reasons for this development, including the effects of the
``manifestation'' and ``reasonable probability'' provisions, which
are difficult to disentangle.
---------------------------------------------------------------------------
As a result of the IFR, DHS is able to more quickly remove a
greater percentage of those who do not have a legal basis to remain in
the United States. In the pre-pandemic period, the median processing
time for a noncitizen encountered by USBP with a negative fear
determination in expedited removal was 75 days from encounter to
removal.\29\ During the immediate post-pandemic period, this metric
dropped to 44 days.\30\ From June 5, 2024, through August 31, 2024, the
metric dropped again to 32 days.\31\ Similarly, the processing time
from when a noncitizen is referred for a credible fear interview to
when the noncitizen receives a fear determination is down 58 percent
compared to the immediate post-pandemic period and down 71 percent
compared to the pandemic period.\32\ The Departments attribute the
decreased processing time to key provisions of the IFR. For instance,
the manifestation of fear provision has resulted in streamlined
processing and a lower percentage of individuals indicating fear,
thereby shortening the average processing time as those who do not
indicate fear do not receive a screening by an AO or review by an IJ
prior to removal. Then, for those who indicate fear, following a
minimum consultation period that DHS reduced through separate
guidance,\33\ AOs, supervisory AOs, and IJs have been applying the
IFR's reasonable probability screening standard. In addition, between
June 5, 2024, and August 31, 2024, 32 percent of all noncitizens
encountered at the SWB were removed or returned to their home country
or to Mexico directly from USBP custody.\34\ This is double the rate of
repatriations from USBP custody (16 percent) that occurred during the
immediate post-pandemic period.\35\ Overall, from June 5, 2024, through
August 31, 2024, DHS has removed or returned 70 percent of single
adults and individuals in family units encountered by USBP.\36\ This
contrasts with a 28-percent rate during the immediate post-pandemic
period.\37\ Viewed in terms of daily averages, under the IFR through
August 31, 2024, there have been about 1,880 daily encounters of single
adults and individuals in family units.\38\ And DHS has averaged about
1,320 total daily repatriations and 580 releases from CBP custody
pending immigration proceedings over that time frame.\39\
---------------------------------------------------------------------------
\29\ OHSS analysis of June 2024 Enforcement Lifecycle dataset
(Summary Statistics tab).
\30\ OHSS analysis of July 2024 Persist Dataset (Summary
Statistics tab).
\31\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Summary Statistics tab).
\32\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
\33\ The Immigration and Nationality Act (``INA'') requires that
the noncitizen be given information about the credible fear
interview and provides the right for noncitizens in the credible
fear process to consult with a person or persons of their choosing
prior to the interview, so long as the consultation is conducted
``according to [duly prescribed] regulations.'' INA
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); see INA 103(a), 8
U.S.C. 1103(a); 6 U.S.C. 557. Under those regulations, including
during circumstances in which the measures in the IFR apply,
consultation shall be at no expense to the Government, and
consultations ``shall be made available in accordance with the
policies and procedures of the detention facility where the alien is
detained, . . . and shall not unreasonably delay the process.'' 8
CFR 235.3(b)(4)(ii), 235.15(a). The regulations do not require that
the noncitizen be allowed a particular amount of time to consult
with the person or persons of their choosing. Id. On June 4, 2024,
to support implementation of the Proclamation and IFR, as a matter
of internal policy, USCIS reduced the minimum consultation period
for noncitizens subject to the rule's provisions from at least 24
hours to at least 4 hours beginning at the time ICE or CBP provides
the noncitizen with the opportunity to consult and continuing only
during the hours of 7 a.m. and 7 p.m. local time. See Memorandum for
Jennifer B. Higgins, Deputy Dir., USCIS, from Ted Kim, Assoc. Dir.,
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re:
Scheduling of Credible Fear Interviews While the Measures in the
Securing the Border Interim Final Rule Apply (June 4, 2024).
\34\ OHSS analysis of data downloaded from UIP on September 3,
2024 (Summary Statistics tab).
\35\ OHSS analysis of July 2024 Persist Dataset (Summary
Statistics tab).
\36\ DHS encountered 165,000 single adults and individuals in
family units between June 4, 2024, and August 31, 2024, and had
repatriated 119,000 of them as of September 3, 2024. OHSS analysis
of data downloaded from UIP on Sept. 3, 2024 (IFR Details tab).
\37\ During that time period, there were 1.87 million such
encounters with noncitizens other than UCs, of which 511,000
noncitizens were repatriated. OHSS analysis of July 2024 OHSS
Persist Dataset (Immediate Post-Pandemic Details tab).
\38\ OHSS analysis of data downloaded from UIP on September 3,
2024 (IFR Details tab).
\39\ Id.
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Faster repatriations free up DHS resources and capacity for
processing new arrivals, allowing for further increases in the use of
expedited removal and fewer releases pending completion of section 240
removal proceedings. These successes disrupt the ``vicious cycle'' the
Departments sought to counteract in issuing the IFR. 89 FR at 48714;
see id. at 48751 (``This reality contributes to the vicious cycle . . .
in which increasing numbers of releases lead to increased migration,
fueled by the narrative, pushed by smugglers, that migrants who are
encountered at the border will be allowed to remain and work in the
United States for long periods of time.'').
Meanwhile, noncitizens have continued to use lawful, safe, and
orderly pathways and processes to seek entry to the United States. For
example, the use of the CBP One mobile application (``CBP One app'') to
schedule an appointment at a SWB POE is an available tool that permits
noncitizens to present themselves at the border in a lawful, safe, and
orderly manner. From June 5, 2024, through August 31, 2024,
approximately 123,500 noncitizens with CBP One appointments presented
at SWB POEs and were accordingly processed outside of the procedures
set forth in the IFR.\40\ See 8 CFR 208.35(a)(1), 1208.35(a)(1);
section 3(b)(v)(D) of the Proclamation. During the pre-pandemic period,
approximately 300 encounters were processed at SWB POEs per day.\41\
Since the launch of the CBP One app in January 2023, approximately
1,500 encounters have been processed at SWB POEs each day (with and
without CBP One appointments).\42\ And from the start of FY 2024
through August 31, 2024, that average increased to approximately 1,700
per day.\43\ Other lawful pathways that continue to be available
include expanded parole processes for specific populations and
demographics such as nationals of Cuba, Haiti, Nicaragua, and Venezuela
(``CHNV''), which allow certain individuals with U.S.-based supporters
to seek parole on a case-by-case basis for urgent humanitarian reasons
or significant public benefit; \44\ the Safe Mobility Offices in
Colombia, Costa Rica, Ecuador, and Guatemala, which provide, among
other services, access to information and referrals for humanitarian
and family parole processes, labor pathways, expedited refugee
processing, and other lawful, safe, and orderly pathways for eligible
[[Page 81162]]
individuals to the United States and other countries; \45\ country-
specific family reunification parole processes for certain nationals of
Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras
who have qualifying U.S. citizen relatives in the United States; \46\
and temporary nonimmigrant worker visas, which provide employment
opportunities for eligible individuals.\47\
---------------------------------------------------------------------------
\40\ Id.
\41\ OHSS analysis of July 2024 Persist Dataset (OFO Encounters
tab).
\42\ Id. On June 30, 2023, CBP announced the expansion of
available appointments for noncitizens through the CBP One mobile
application (``CBP One app'') to 1,450 per day, up from 1,250.
Cumulatively, the expansion to 1,450 appointments represented a
nearly 50 percent increase from May 12, 2023, when CBP processed
1,000 appointments per day. See 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>.
\43\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP on September 3, 2024 (OFO Encounters tab).
\44\ USCIS, Processes for Cubans, Haitians, Nicaraguans, and
Venezuelans (last reviewed/updated Aug. 29, 2024), <a href="https://www.uscis.gov/CHNV">https://www.uscis.gov/CHNV</a>.
\45\ U.S. Dep't of State, Safe Mobility Initiative: Helping
Those in Need and Reducing Irregular Migration in the Americas,
<a href="https://www.state.gov/safe-mobility-initiative/">https://www.state.gov/safe-mobility-initiative/</a> (last visited Aug.
23, 2024).
\46\ See USCIS, Family Reunification Parole Processes (last
reviewed/updated Sept. 10, 2024), <a href="https://www.uscis.gov/FRP">https://www.uscis.gov/FRP</a>.
\47\ See USCIS, Temporary (Nonimmigrant) Workers (last reviewed/
updated July 24, 2024), <a href="https://www.uscis.gov/working-in-the-united-states/temporary-nonimmigrant-workers">https://www.uscis.gov/working-in-the-united-states/temporary-nonimmigrant-workers</a>.
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Thus, the provisions of the IFR and other measures taken to assist
in the IFR's implementation are effective tools in managing levels of
irregular migration that, absent key policy interventions like this
rule, severely strain the Departments' abilities to safely,
effectively, and humanely enforce and administer U.S. immigration laws.
The historically high level of encounters that DHS experienced in the
months before the IFR's implementation has decreased markedly, and
DHS's ability to expeditiously process noncitizens and deliver swift
consequences to those who do not establish a legal basis to remain in
the United States has therefore improved significantly.
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 CAT. 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.\48\
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\48\ The Homeland Security Act of 2002 (``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.'' 116
Stat. at 2274 (codified at 6 U.S.C. 522).
---------------------------------------------------------------------------
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 certain other officers. INA 103(a)(1), 8
U.S.C. 1103(a)(1). The INA grants the Secretary the authority to
establish regulations and take other actions that the Secretary deems
``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(a). 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 immigration laws. INA 103(g)(2), 8 U.S.C.
1103(g)(2).
Under the HSA, the Attorney General retains authority over the
conduct of section 240 removal proceedings. These adjudications are
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521(a); INA 103(g)(1),
8 U.S.C. 1103(g)(1); 8 CFR 1240.1. 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. 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]'').\49\
The INA also provides the Secretary and the Attorney General authority
to publish regulations 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 103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2); see also, e.g.,
INA 235(b)(1)(B)(iii)(III), (B)(iv), (C), 8 U.S.C.
1225(b)(1)(B)(iii)(III), (B)(iv), (C).
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\49\ 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 INA and HSA grant DHS the authority to adjudicate asylum
applications and to conduct credible fear interviews, make credible
fear determinations in expedited removal proceedings, and establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA 103(a)(1), (a)(3), 8
U.S.C. 1103(a)(1), (a)(3); INA 208(b)(1)(A), (d)(1), (d)(5)(B), 8
U.S.C. 1158(b)(1)(A), (d)(1), (d)(5)(B); INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also 6 U.S.C. 271(b)(3) (providing for the transfer
of adjudication of asylum and
[[Page 81163]]
refugee applications from the Commissioner of Immigration and
Naturalization to the Director of the Bureau of Citizenship and
Immigration Services, now USCIS); 6 U.S.C. 557 (providing that
references to any officer from whom functions are transferred under the
HSA are to be understood as referring to the Secretary of Homeland
Security). Within DHS, AOs conduct credible fear interviews, make
credible fear determinations, and determine whether a noncitizen's
asylum application should be granted, all of which are subject to
review by a supervisory AO. See 8 CFR 208.2(a), 208.9, 208.14(b),
208.30(b), (e)(6)(i), (e)(8). The INA grants IJs the authority to
review AO negative credible fear determinations. INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).
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 33.1 of
the Refugee Convention generally prohibits parties to the Convention
from expelling or returning (``refouling'') ``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, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.
Because the Refugee Protocol is not self-executing,\50\ Congress
implemented these non-refoulement obligations through the INA, as
amended by the Refugee Act of 1980, Public Law 96-212, 94 Stat. 102
(``Refugee Act''). See 8 U.S.C. 1253(h) (1952); Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 174-77 (1993) (describing the history of
the statutory withholding provision and the Refugee Act amendments).
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.\51\ 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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\50\ 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.''
(citations omitted)).
\51\ 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 provision in section 208 of the INA, 8 U.S.C.
1158).
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The Departments also have authority to implement Article 3 of the
CAT, which is likewise not self-executing.\52\ The Foreign Affairs
Reform and Restructuring Act of 1998 (``FARRA'') delegates to the
Departments 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 (codified at 8 U.S.C. 1231 note). Consistent with FARRA, DHS and
DOJ have implemented in the Code of Federal Regulations the United
States' obligations under Article 3 of the CAT. 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).
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\52\ Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 2011) (``This
multilateral treaty is non-self-executing and thus does not itself
create any rights enforceable in U.S. courts.'' (citation omitted)).
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This rule is necessary because, although 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, their eligibility for asylum,
or asylum procedures. This recognition that section 212(f) does not
affect the right to pursue a claim for asylum has been the Executive
Branch's consistent position for four decades.\53\ 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 within 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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\53\ In 1984, then-Assistant Attorney General for 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 were understood
to affect the right of noncitizens on U.S. soil to apply for, or
noncitizens' statutory eligibility to receive, asylum. Kelsey Y.
Santamaria et al., Cong. Rsch. Serv., Presidential Authority to
Suspend Entry of Aliens Under 8 U.S.C. 1182(f) (updated Feb. 21,
2024). At the same time, nothing in the proclamations or the INA has
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.\54\ First enacted in the Refugee Act, the
asylum statute today provides that ``[a]ny alien who is physically
present in the United States or who arrives in the United States[,]
[[Page 81164]]
. . . 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.'' \55\ Id. 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.\56\
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\54\ 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, 509 U.S. at 164 n.13, 174-77, 187-88 (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).
\55\ Section 212(f) of the INA, 8 U.S.C. 1182(f), contrasts with
42 U.S.C. 265, which authorizes the Centers for Disease Control and
Prevention (``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 a public health Order invoking section
265 to expel certain noncitizens generally without title 8
protections, including asylum applications. As the final rule
implementing section 265 explained, that provision originates in a
``broad public health statute'' that Congress intended to ``operate[
] 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's predecessor 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.
\56\ 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 is prohibited from invoking
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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This rule, as discussed in the IFR and this preamble, 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), 8 U.S.C.
1103(a)(1), (a)(3), (g); INA 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8
U.S.C. 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. Changes From the IFR to Final Rule
The Departments issued the IFR, effective June 5, 2024, adopting
provisions at 8 CFR 208.13(g), 208.35, 235.15, 1208.13(g), and 1208.35
that effectuated three key changes to eligibility for asylum and the
expedited removal process for noncitizens who are encountered at the
southern border during the emergency border circumstances giving rise
to the suspension and limitation on entry under the June 3
Proclamation: (1) adding a limitation on asylum eligibility, subject to
an exception for exceptionally compelling circumstances, that is
considered during credible fear screenings in addition to its
application during adjudications on the merits; (2) rather than asking
specific questions of every noncitizen encountered and processed for
expedited removal, providing general notice regarding the process for
seeking asylum, statutory withholding of removal, or CAT protection and
referring 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;
and (3) for those found not to have a credible fear of persecution for
asylum purposes because they could not establish a significant
possibility that they are not subject to or are exempt from the
limitation on asylum eligibility, screening for potential eligibility
for statutory withholding of removal and CAT protection under a
``reasonable probability'' standard.
Following careful consideration of public comments received and the
Departments' experiences implementing the IFR's provisions since early
June 2024, the Departments have made modifications to the regulatory
text adopted in the IFR, as described below. The rationale for the
provisions adopted in the IFR and the reasoning provided in the IFR's
preamble remain valid, except as distinguished in this regulatory
preamble.
1. Changes to the IFR's Thresholds
On September 27, 2024, the President issued a proclamation amending
the June 3 Proclamation. See Presidential Proclamation of September 27,
2024, Amending Proclamation 10773 (``September 27 Proclamation'').
Following the issuance of the IFR, the Departments have closely
monitored its implementation and results across the southern border.
The Departments recommended to the President adjustments to the
Proclamation based on their experiences implementing the Proclamation
and IFR. Following those recommendations, the President issued the
September 27 Proclamation, which amended section 2 of the June 3
Proclamation in two ways. First, section 2(a) of the June 3
Proclamation provided that the suspension and limitation on entry would
be discontinued at 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 fewer than 1,500
encounters between POEs. As amended by the September 27 Proclamation,
the 7-consecutive-calendar-day average must remain below 1,500
encounters between POEs for 28-consecutive-calendar-days before the 14-
calendar-day waiting period is triggered.\57\ Second, the September 27
Proclamation deleted section 2(c) of the June 3 Proclamation, which
provided that UCs \58\ from non-contiguous countries shall not be
included in calculating the number of encounters for purposes of
section 2(a) and 2(b) of the June 3 Proclamation.
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\57\ As an illustration, for any given day, DHS will calculate
the average number of encounters for that day and the prior 6
calendar days i.e., the 7-consecutive-calendar-day average. If that
average remains below 1,500 for 28 consecutive calendar days, the
14-day waiting period will begin.
\58\ In this preamble, as in the Proclamation, the terms
``unaccompanied children'' or ``UCs'' have the same meaning as the
term ``unaccompanied alien child[ren]'' under 6 U.S.C. 279(g)(2).
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The Departments are implementing changes in this final rule that
parallel those made in the September 27 Proclamation. Specifically, the
Departments are revising Sec. Sec. 208.13(g) and 1208.13(g) to refer
to ``the Presidential Proclamation of June 3, 2024, as defined in
paragraph (h) of this section.'' Paragraph (h) of each section now
defines ``Presidential Proclamation of June 3, 2024'' as referring to
[[Page 81165]]
``Proclamation 10773 of June 3, 2024, as amended by the Presidential
Proclamation of September 27, 2024[ ]'' for the purpose of Sec. Sec.
208.13(g), 208.35, and 235.15 (in the case of Sec. 208.13(h)) and
Sec. Sec. 1208.13(g) and 1208.35 (in the case of Sec. 1208.13(h)).
The Departments are also making conforming changes in Sec. Sec.
208.35, 235.15, and 1208.35. To ensure that the rule can function even
if the September 27 Proclamation were rendered inoperative by court
order, and consistent with the September 27 Proclamation, the
Departments have also included a severability clause in both Sec. Sec.
208.13(h) and 1208.13(h).
The Departments believe that shifting to the 28-consecutive-
calendar-day requirement for this rule, in parallel with the changes
made in the September 27 Proclamation, is necessary to ensure that the
rule's measures discontinue only once there has been a durable and
sustained decrease in encounters at the southern border such that the
emergency border circumstances have in fact abated. Premature and
frequent discontinuations of the rule's measures, as discussed below,
would increase the risk of sizeable and disruptive surges and could
undermine the message the Departments intend the rule to send, which is
to discourage noncitizens from utilizing irregular migration and the
services of smugglers and TCOs to enter the United States. In the IFR,
the Departments explained that at 1,500 daily encounters between POEs,
``DHS would be able to swiftly deliver a consequence to enough
individuals to meaningfully impact migratory decisions and deter
unlawful entries.'' 89 FR at 48752. The Departments further explained
that ``[t]he 14-day waiting period prior to a discontinuation provides
time for the Departments to complete processing of noncitizens
encountered during emergency border circumstances and to confirm that a
downward trend in encounters is sustained.'' 89 FR at 48749 n.248. The
changes made here further both purposes.
Requiring the 7-consecutive-calendar-day average to remain below
1,500 encounters for 28 consecutive calendar days instead of one
calendar day will guard against a circumstance in which the threshold
for discontinuation is met solely due to a short-term, erratic decrease
(such as a short-term holiday downturn \59\ or a decrease due to an
extreme weather event) that does not signal a meaningful reduction in
overall migration pressures. Such short-term decreases could force the
provisions of the rule to trigger on and off more frequently, causing
operational strain while also signaling to migrants that emergency
border circumstances are so temporal and episodic that the rule's
measures can be avoided by waiting in Mexico for a short period of
time--which could lead to a cycle of surges that significantly disrupt
border processing. Moreover, if the Departments had opted for a
substantially smaller number of consecutive days, there is a
significant risk that the rule would deactivate due to a transient drop
due to holidays, weather, or another cause, which can lead to several
weeks of uncharacteristically low encounters. At the same time, a 28-
day period is still a short enough period to ensure a timely response
when an actual, sustained downturn occurs. The Departments have
therefore decided that 28 days strikes an appropriate balance.
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\59\ Short-term decreases that are not associated with changes
in the fundamental drivers of migration have been especially notable
during the end-of-year holiday season. From FY 2013 through FY 2024,
SWB encounters fell by an average of 42 percent in the two weeks
between December 23 and January 5, only to be followed by an average
increase of 41 percent in the two weeks between January 5 and
January 18. See OHSS analysis of July 2024 Persist Dataset (USBP
Encounters--Holiday Dip tab). Although the January rebound was less
dramatic in 2023 and 2024, this historic pattern suggests that if
average encounters heading into the holidays are even as low as the
mid-2000s--well above the intended threshold for discontinuation of
emergency circumstances--a short-term decrease could push the 7-day
average number of encounters below 1,500 even though the fundamental
drivers of high levels of migration have not changed. A metric based
on a 7-day average would trigger a discontinuation of emergency
circumstances in this scenario, but the likely January rebound means
a 28-day metric would not.
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The Departments' experience since the IFR's implementation has
informed their view that the limited changes made by this rule are
necessary to provide greater assurance that a decrease is likely to be
sustained and to guard against costly toggling of the rule when a brief
decrease proves not to be sustained. For one thing, this experience
highlights the risk that under an approach that looks only to a 7-
consecutive-calendar-day average, the rule might discontinue even
though a reduction is unlikely to be sustained. Comparing the week
ending June 4, 2024, to the week ending August 31, 2024, the
Departments observed (as expected) a significant decrease in encounters
at the southern border, but Mexico's government reported a much smaller
decrease in encounters within Mexico.\60\ This trend suggests that even
though the IFR has affected incentives for migrants to try to cross the
U.S. border, migrants continue to travel towards the U.S. border in
large numbers, and that even if the 7-consecutive-calendar-day average
dropped below 1,500 encounters, that drop likely would not be sustained
given the large and growing population of migrants in Mexico who could
relatively quickly reach the U.S. border. Moreover, if the IFR's
provisions did deactivate, that large and growing population in Mexico
would be a ready target for smugglers and TCOs, increasing the risk of
a surge following a discontinuation that does not reflect a truly
sustained decrease in migration flows.
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\60\ See OHSS analysis of data downloaded from UIP on September
3, 2024, and data provided by the Government of Mexico as of August
31, 2024 (Mexican Enforcement tab) (showing that comparing the week
ending June 4, 2024, to the week ending August 31, 2024, total
Mexican enforcement apprehensions dropped 19 percent, while total
U.S. Border Patrol (``USBP'') encounters dropped 48 percent).
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Adding this rule's 28-consecutive-day requirement reduces those
concerns by providing for greater stability. With that change, the
rule's provisions will not be discontinued unless there has been a 7-
consecutive-calendar-day average of less than 1,500 encounters that is
sustained over a period of 28 days. The Departments expect that this
change, coupled with the IFR's 14-day waiting period after the
Secretary makes the factual determination necessary to discontinue the
suspension and limitation on asylum eligibility, will reduce any
perceived incentive to remain close to the U.S.-Mexico border in
anticipation of a rapid change in policy. Although the Departments
recognize that this change does not eliminate the risk of the rule
discontinuing even when regional migration flows remain high, they
assess that this rule's approach better balances this risk against this
rule's purpose as an exceptional measure to address emergency border
circumstances that should not apply when encounters have fallen for a
sustained period. The Departments further discuss later in this
subsection why the rule's approach appropriately balances those
considerations.
The Departments' concern is also consistent with some of the public
comments received on the IFR. For instance, one commenter remarked that
some migrants had concluded that they should congregate near the border
in preparation for the Proclamation and IFR's measures to discontinue.
Other commenters expressed concern regarding potential
misunderstandings about the threshold for discontinuation. Given the
reality that a surge remains possible, the Departments seek to avoid a
situation where the emergency
[[Page 81166]]
measures in this rule are discontinued prematurely.
The Departments note that the existing 14-day waiting period before
discontinuation once this threshold is reached will continue to help
the Departments complete processing of noncitizens encountered during
emergency border circumstances and to confirm that a sustained downward
trend in encounters has been achieved. See 89 FR at 48749 n.248. At the
same time, under the prior standard for discontinuation, a rapid shift
between discontinuing and reactivating the rule's provisions would
remain possible.\61\ Such a shift would pose significant operational
challenges.
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\61\ From FY 2013 through FY 2019, there were 2,014 days where
the 7-consecutive-calendar-day average of USBP encounters (including
encounters of UCs from non-contiguous countries) was below 1,500.
OHSS analysis of July 2024 Persist Dataset (Trigger Analysis tab).
Of those 2,014 days, 1,813 days (90 percent of the total) were also
part of a period of time when the 7-consecutive-calendar-day average
had remained below 1,500 for 28 consecutive days. Id. Thus,
considering hypothetical lower-bound thresholds for the period FY
2013 through FY 2019, switching from the IFR's approach to this
rule's approach would have reduced the number of below-threshold
days by only 10 percent. Id. While it is too early in the post-IFR
period to know the precise reduction in volatility it has brought
about, requiring the 7-day average to remain below 1,500 encounters
for 28 consecutive days may have a broadly similar effect.
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Experience with the IFR suggests that rapidly switching between the
rule's provisions discontinuing and reactivating would result in
harmful operational burdens. For instance, upon implementation of the
Proclamation and IFR, the Departments had to prioritize processing of
individuals encountered prior to June 5. Therefore, USBP was unable to
immediately maximize processing of the desired number of noncitizens
through expedited removals.\62\ USBP took 6 days to ramp up processing
for expedited removal under the IFR, from about 60 encounters processed
under the rule on June 5 to about 1,500 on June 10, which was the first
day that a majority of encounters were processed for expedited removal
under the rule.\63\ Similarly, USBP released an average of about 930
post-June 4 encounters per day between June 5 and June 17, including 8
days of over 1,000 releases, before releases fell to an average of
about 510 per day between June 18 and August 31, including an average
of about 410 per day in August.\64\ And although ICE repatriated
approximately 38,500 single adults and members of family units from
June 5 through July 31, 2024, only around 15,400 (40 percent) of them
were encountered by USBP after June 4, 2024.\65\ The rest were pre-June
5th USBP SWB encounters and pre- and post-June 5th Office of Field
Operations (``OFO'') encounters (39 percent) or non-SWB encounters and
interior enforcement (21 percent).\66\ USCIS did not complete its first
credible fear interview under the IFR until June 9, 2024, and completed
an average of about 20 interviews per day for the first two weeks after
June 4, compared to an average of roughly 330 per day in the month of
August.\67\ EOIR did not conduct its first review of an adverse
credible fear determination under the IFR until June 11, 2024, and
averaged approximately 9 reviews per day in the first 3 weeks after
June 4 compared to an average of about 90 per day in August.\68\ The
lag between the rule's activation and the Departments' ability to fully
avail themselves of the rule's efficiencies means that when the
provisions of the rule discontinue and then reactivate, the
Departments' abilities to deliver timely decisions and consequences
consistent with the rule's purpose may be unnecessarily impaired.
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\62\ OHSS analysis of data downloaded from UIP on September 3,
2024 (IFR Ramp Up tab).
\63\ Id.
\64\ Id.
\65\ OHSS analysis of July 2024 Persist Dataset (IFR Ramp Up
tab).
\66\ OHSS analysis of data downloaded from UIP on September 3,
2024 (IFR Ramp Up tab).
\67\ Id.
\68\ Id.
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In addition, although the Departments continue to believe that the
burden of shifting between applying this rule and the Circumvention of
Lawful Pathways rule is warranted when there has been a sustained
reduction in irregular migration, such a burden is much harder to
justify in the context of a short-lived reduction in encounters
followed by very high levels of encounters. For instance, USCIS
required time to provide training, procedures, and guidance to the
field before its staff could process credible fear referrals under the
IFR. Additionally, EOIR required time to ensure IJs have sufficient
docket capacity for any increase in credible fear reviews in response
to any increased number of expedited removal cases. EOIR also required
time to provide training to IJs who conduct credible fear reviews or
who adjudicate cases involving individuals who enter the United States
while the Proclamation and rule are in effect. To be sure, subsequent
reactivation of the rule's measures will be easier given that the
Departments' personnel will have become familiar with the rule's
provisions. Nonetheless, reactivation will always require resources and
coordination within the workforce necessitating the need to ensure that
discontinuations and reactivations do not occur with undue
frequency.\69\
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\69\ The Departments acknowledge that they have not made a
similar change to require 28 consecutive days of a 7-day average of
encounters above 2,500 for the rule's provisions to be reactivated.
The absence of a similar requirement prior to reactivation reflects
the operational exigencies in a circumstance where there has been a
7-consecutive-calendar-day average of more than 2,500 encounters.
See 89 FR at 48749 n.248. The Departments have determined that those
operational exigencies require the rule's provisions to be
reactivated and outweigh the resources and coordination that
reactivation requires.
---------------------------------------------------------------------------
The Departments have also determined that it is appropriate and
necessary to include UCs from non-contiguous countries in the encounter
calculations relevant to discontinuing and continuing or reactivating
the provisions of this rule, in parallel with the changes made in the
September 27 Proclamation. Under the June 3 Proclamation and the IFR,
the thresholds for such discontinuation and continuation or
reactivation did not include encounters of such UCs. But as some
commenters on the IFR correctly noted, excluding such encounters
results in an unrealistic assessment of the Departments' resources and
capabilities. All UCs (regardless of whether they came from a
contiguous country or a non-contiguous country) require a greater
proportion of resources to process and hold safely in CBP facilities
and merit inclusion in the threshold calculations to accurately reflect
this reality. For example, UCs in CBP custody generally must be
referred to the Department of Health and Human Services' Office of
Refugee Resettlement and transferred to its care within 72 hours after
determining that the noncitizen is a UC, absent exceptional
circumstances. 8 U.S.C. 1232(b)(3); see also 6 U.S.C. 279. Because of
this, UCs are generally prioritized for processing in CBP facilities.
The processing and treatment of UCs also include a number of other
unique legal and policy requirements, such as conducting a thorough
screening for trafficking and any claims of fear of return.\70\ During
their time in custody, UCs receive medical screenings and child-
appropriate activities and humanitarian supplies. They also must
generally be held separately from unrelated adults, impacting CBP's
holding capacity. This means that DHS must expend resources to quickly
process, refer, and transfer UCs to the Office of Refugee
Resettlement's care. This time-consuming and resource-intensive process
must always be followed for
[[Page 81167]]
UCs encountered at the southern border, regardless of whether emergency
border circumstances are present.
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\70\ See 8 U.S.C. 1232(a)(2)(A)(ii).
---------------------------------------------------------------------------
In addition, UCs who are nationals or habitual residents of a
contiguous country may, in certain circumstances, be permitted to
withdraw their applications for admission and voluntarily return to
their respective countries of nationality or habitual residence. See 8
U.S.C. 1232(a)(2). To determine whether such an outcome is permissible,
such UCs are screened for indicators of trafficking or credible
evidence that they are at risk of being trafficked upon return, whether
they are able to make an independent decision to withdraw their
applications, and whether they have any fear of return owing to a
credible fear of persecution. See 8 U.S.C. 1232(a)(2)(A), (a)(4).
However, as a matter of longstanding policy, CBP screens all UCs--even
those from non-contiguous countries--in this manner.
Because one of the primary purposes of the rule is to alleviate
undue strain on the limited resources of the border security and
immigration systems, the Departments found that they must consider the
operational burden that results from all UC encounters at the border.
That is why UC encounters from all countries, not just from contiguous
countries, should be considered by the Secretary when making a factual
determination that average daily encounters at the southern border have
exceeded or fallen below the requisite thresholds contained in the rule
and the Proclamation.
Also informing the Departments' decision to reconsider the IFR's
approach is that in recent months, encounters of UCs from non-
contiguous countries have grown relative to other encounters. That
growth, which adds operational burdens separate from those inherent in
the processing of individuals for expedited removal, increases the
distorting effects of excluding these UCs. Specifically, the
Departments had observed from June 2023 through May 2024 that rates of
encounters of UCs from non-contiguous countries had generally accounted
for about 6.5 percent of total encounters of all non-contiguous
nationalities, and comprised about 15 percent of encounters of
nationals of El Salvador, Guatemala, and Honduras.\71\ However, while
encounters of UCs from non-contiguous countries have decreased in
absolute terms since June 2024, such encounters have not decreased in
proportion with the decreases seen among single adults and individuals
in family units. Rather, the UCs' share of total non-contiguous
encounters has increased to 8.9 percent, including 24 percent of all
encounters of nationals of El Salvador, Guatemala, and Honduras.\72\ As
a result, the share of total encounters attributable to UCs from non-
contiguous countries increased from 4.6 percent from June 2023 to May
2024 to 6.4 percent from June 2024 to August 2024, and the share of all
UCs increased from 6.2 percent to 9.4 percent.\73\
---------------------------------------------------------------------------
\71\ See OHSS analysis of July 2024 OHSS Persist Dataset and
data downloaded from UIP on September 3, 2024 (USBP Encounters by
Fam Status tab).
\72\ See OHSS analysis of July 2024 OHSS Persist Dataset and
data downloaded from UIP on September 3, 2024 (USBP Encounters by
Fam Status tab). While the monthly average single adult encounters
fell 53 percent between June 2023-May 2024 and June 2024-August
2024, and the monthly average number of encounters of individuals in
family units fell 69 percent, encounters of non-contiguous UCs fell
just 42 percent, and encounters of UCs overall fell just 37 percent.
Id.
\73\ OHSS analysis of July 2024 OHSS Persist Dataset and data
downloaded from UIP on September 3, 2024 (USBP Encounters by Fam
status tab).
---------------------------------------------------------------------------
With the two changes just described, the rule will continue to
serve the purposes that the IFR pursued from the start. First, the rule
continues to target emergency border circumstances exceeding the
Departments' capacity to effectively process, detain, and remove, as
appropriate, the noncitizens encountered; Section III.D.1 of this
preamble describes why the rule's thresholds continue to reflect those
circumstances, accounting for the inclusion of UCs from non-contiguous
countries.
Second, the rule will continue to deactivate when a decrease in
encounters means that those emergency border circumstances no longer
exist. Although the change to require that the 7-consecutive-calendar-
day average must remain below 1,500 encounters for 28 consecutive days
appropriately ensures that the rule does not deactivate prematurely,
the rule will continue to deactivate where a decrease is likely to be
genuinely sustained. Encounter levels are driven by a variety of
factors, many of which are external to the United States and difficult
to predict, such as natural disasters, economic changes, and political
instability. However, the Departments believe, based on past
experience, that the Departments may experience an average daily
encounter rate below 1,500 for 28 consecutive days. In fact, from FY
2013 through FY 2019, the 7-consecutive-calendar-day USBP encounter
average was below 1,500 encounters for 28 consecutive days 71 percent
of the time.\74\ Even since the IFR was promulgated, encounters have
dropped to levels indicating that the threshold in section 2(a) of the
Proclamation will be met if migration dynamics change for a sustained
period. If, consistent with the June 3 Proclamation, one excludes UCs
from non-contiguous countries, the Departments have observed 40
separate days between June 5, 2024, and August 31, 2024, with
encounters within 15 percent of 1,500 (i.e., below 1,725).\75\ And if,
consistent with the September 27 Proclamation, one includes such UCs,
the Departments have observed 15 such days.\76\ These single-day
figures suggest that the threshold for discontinuation, as revised,
will be met if migration dynamics change for a sustained period.
---------------------------------------------------------------------------
\74\ See OHSS analysis of July 2024 OHSS Persist Dataset
(Trigger Analysis tab). The Departments rely on data from FY 2013
through FY 2019 and not data from the pandemic period given the
unique circumstances dictating migratory trends during the latter
time.
\75\ See OHSS analysis of data downloaded from UIP on September
3, 2024 (Section 2c Encounters tab).
\76\ See id.
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2. Clarifying Changes to Regulatory Text
This final rule also makes clarifying changes to the regulatory
text. In Sec. Sec. 208.35(b)(2) and 1208.35(b)(2)(iii), the
Departments removed from the definition of ``reasonable probability''
the clause: ``that the alien would be persecuted because of his or her
race, religion, nationality, membership in a particular social group or
political opinion, or tortured, with respect to the designated country
or countries of removal.'' The Departments believe that the remaining
definition of ``reasonable probability''--``substantially more than a
reasonable possibility, but somewhat less than more likely than not''--
accurately defines the reasonable probability standard. The deleted
clause describes what the AO or IJ is assessing for rather than what
the standard means, so it need not be part of the standard's
definition.
3. Other Technical Changes
The final rule also implements two technical changes. First, the
rule replaces the term ``alien'' with ``noncitizen'' where it appears
in 8 CFR 1208.35. See 8 CFR 1001.1(gg). Second, the rule amends 8 CFR
208.35(a)(2)(i)(C) and 1208.35(a)(2)(i)(C) as well as the provisions of
the Circumvention of Lawful Pathways rule at 8 CFR 208.33(a)(3)(i)(C)
and 1208.33(a)(3)(i)(C) to update the cross-references to the
definition of ``victim of a severe form of trafficking in persons.''
Specifically, the rule replaces the cross-references to 8
[[Page 81168]]
CFR 214.11 with cross-references to 8 CFR 214.201. This change
recognizes that on August 28, 2024, after the Departments published the
IFR, DHS's rule Classification for Victims of Severe Forms of
Trafficking in Persons; Eligibility for ``T'' Nonimmigrant Status, 89
FR 34864 (Apr. 30, 2024),\77\ became effective, which moved the
definition of ``victim of a severe form of trafficking in persons''
from Sec. 214.11 to Sec. 214.201. See id. at 34931-32.
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\77\ See also 89 FR 68081 (Aug. 23, 2024) (making corrections).
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D. Rule Provisions
The rule contains the following key provisions:
<bullet> The rule applies to certain individuals who seek asylum,
statutory withholding of removal, or CAT protection during emergency
border circumstances giving rise to this rule and to the suspension and
limitation on entry under the June 3 Proclamation, as amended by the
September 27 Proclamation. See 8 CFR 208.13(g), 208.35, 235.15,
1208.13(g), 1208.35.
<bullet> The rule establishes that those who enter across the
southern border during emergency border circumstances and who are not
described in section 3(b) of the June 3 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 214.201. See
8 CFR 208.13(g), 208.35(a), 1208.13(g), 1208.35(a). Exceptionally
compelling circumstances may also be established for noncitizens in
section 240 removal proceedings or the asylum merits interview
(``AMI'') process under specified conditions to ensure family unity.
See 8 CFR 208.35(c), 1208.35(c).
<bullet> The rule also establishes that, 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 June 3 Proclamation, DHS will
provide general notice regarding the process for seeking asylum,
statutory withholding of removal, and 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 their country or the country of removal. See 8 CFR 235.15.
<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 June 3 Proclamation will receive a
negative credible fear determination with respect to their asylum claim
unless there is a significant possibility that the noncitizen would
ultimately be able to demonstrate by a preponderance of the evidence
that the limitation does not apply or that they meet an exception. 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. 8 CFR
208.35(b), 1208.35(b).
E. Severability
As stated in 8 CFR 208.13(h), 208.35(b)(3), 208.35(e), 235.15(g),
1208.13(h), 1208.35(b)(4), and 1208.35(e), the Departments intend for
the provisions of the rule to be severable from each other and to be
given effect to the maximum extent possible, such that if a court holds
that any provision is invalid or unenforceable as to a particular
person or circumstance, the other provisions will remain in effect as
to any other person or circumstance.\78\ See 89 FR at 48757-59. During
emergency border circumstances, the Departments' abilities to refer and
safely process noncitizens through expedited removal is overwhelmed and
prevents the border security and immigration systems from delivering
timely decisions and consequences to noncitizens arriving at the
southern border. See 89 FR at 48714. Consequently, each provision of
the rule is designed to function sensibly without the others, and the
Departments intend for them to be severable so that each can operate
independently.
---------------------------------------------------------------------------
\78\ Courts have uniformly held that the Administrative
Procedure Act (``APA''), 5 U.S.C. 706(2), authorizes courts to sever
and set aside ``only the offending parts of the rule.'' Carlson v.
Postal Regulatory Comm'n, 938 F.3d 337, 351 (D.C. Cir. 2019); see,
e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988).
---------------------------------------------------------------------------
For example, the Departments intend for the ``reasonable
probability'' screening standard to be used--even in the absence of a
limitation on asylum eligibility, the manifestation of fear procedures,
or the Proclamation--to screen for statutory withholding of removal and
CAT protection claims if a noncitizen was otherwise unable to establish
a credible fear of persecution for asylum purposes due to the Lawful
Pathways rebuttable presumption. 8 CFR 208.35(b)(3), 1208.35(b)(4); see
8 CFR 208.35(b)(2), (e), 1208.35(b)(2), (e), 235.15(g); 89 FR at 48757.
That approach ensures that, during emergency border circumstances, the
Departments will continue to be able to benefit from the higher
screening standard, even without the limitation on asylum eligibility
this rule adopts.
To maintain operational flexibility, DHS similarly intends for
manifestation of fear procedures under 8 CFR 235.15 to remain in
effect, even without a limitation on asylum eligibility, the reasonable
probability standard, or the Proclamation. See 8 CFR 235.15(g). As with
the reasonable probability standard, allowing for the continued use of
the manifestation of fear provisions absent the other portions of the
rule or Proclamation ensures that such a tool remains available to the
Departments during emergency border circumstances.
Finally, the Departments intend for the limitation on asylum
eligibility to be severable from the manifestation of fear procedures,
the reasonable probability standard, and the Proclamation because the
limitation on asylum eligibility operates independently of those
provisions and the Proclamation, and in the absence of those tools
would likewise continue to be an important tool for addressing
emergency border circumstances at the southern border. See 8 CFR
208.35(e), 1208.35(e).
III. Public Comments and Responses
The Departments received 1,067 comments on the IFR, the majority of
which expressed opposition. A range of governmental and non-
governmental entities, public officials, and private persons submitted
comments. The Departments summarize and respond to the public comments
below.
A. Legal Authority and Background
1. Legality Concerns
a. General Comments on Domestic Law
Comment: Commenters asserted that the rule violates domestic law
and
[[Page 81169]]
emphasized that U.S. law allows noncitizens to apply for asylum
regardless of where they entered the United States. Some commenters
described a fundamental right to apply for asylum for anyone inside the
United States and stated that analysis of an asylum application should
focus on the applicant's reasonable fear of persecution rather than
manner of entry, criticizing what a commenter characterized as a
categorical exclusion of those ``apprehended between ports of entry
from asylum eligibility, barring narrow exceptions.'' Commenters
asserted that entering the United States either through a POE or across
the southern border between POEs and asking for asylum constitutes a
``lawful pathway.'' Other commenters stated that the Departments should
not and cannot categorically deny asylum for reasons unrelated to the
merits of the claim itself. One commenter claimed that the rule
effectively closes the border and asserted that closing the border is
unconstitutional.
Although some commenters agreed that the rule is within the scope
of the Departments' authority and is consistent with the INA, other
commenters claimed that the rule would violate the Refugee Act of 1980
and the INA, specifically section 208 of the INA, 8 U.S.C. 1158.
Commenters claimed that the rule conflicts with the plain language of
these provisions, which permit a noncitizen ``physically present in the
United States'' to apply for asylum. Refugee Act of 1980, 94 Stat. at
105; INA 208(a)(1), 8 U.S.C. 1158(a)(1). Commenters asserted that the
INA does not require those seeking protection to apply before entering
or at a POE or to schedule an appointment through a website or app in
order to make an application, but instead allows applications from
anywhere along the border. Commenters also stated that, although
Congress gave the Attorney General and the Secretary authority to
impose additional limitations on asylum eligibility, such limitations
must be consistent with legislation and congressional intent. Along the
same lines, a commenter stated that the IFR undermines the separation
of powers between Congress and the Executive Branch because it is
Congress, not the Executive Branch, that enacts laws, and the IFR
rewrites the INA.
Response: The Departments disagree that this rule is inconsistent
with U.S. law or congressional intent. The rule does not effectively
close the border, require the Departments to turn away migrants at the
southern border, or categorically deny all asylum applications filed by
noncitizens who enter the United States across the southern border. Nor
does the rule prohibit any noncitizen from seeking protection solely
because of the manner or location of their entry into the United
States. Rather, the rule is a limitation on asylum eligibility, as
authorized by sections 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C.
1158(b)(2)(C) and (d)(5)(B), and the Departments' other discretionary
authorities, e.g., sections 103(a)(3), (g)(2), and 208(b)(1)(A) of the
INA, 8 U.S.C. 1103(a)(3), (g)(2), and 1158(b)(1)(A). Given these
authorities for the Departments to act, the Departments disagree that
the IFR (or the final rule) violates the principle of separation of
powers.
The rule's limitation on asylum eligibility does not prevent anyone
from pursuing a claim for asylum, nor does it categorically foreclose
eligibility for asylum. The Departments have authority to impose
limitations on asylum eligibility. As explained above, the INA
authorizes the Secretary and the Attorney General 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]''). And section 208(b)(1)(A) of the INA, 8
U.S.C. 1158(b)(1)(A), authorizes the Secretary or the Attorney General
to grant asylum in their discretion. The INA also provides the
Secretary and the Attorney General authority to publish regulations
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 103(a)(3), (g)(2),
235(b)(1)(B)(iii)(III), (B)(iv), (C), 241(a)(3), (d)(2)(B), 8 U.S.C.
1103(a)(3), (g)(2), 1225(b)(1)(B)(iii)(III), (B)(iv), (C), 1231(a)(3),
(d)(2)(B); see also INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).
Consistent with these authorities, the Departments have promulgated
other limitations or conditions on asylum eligibility, including some
provisions that Congress later adopted and codified in the INA. See
Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392,
37392 (June 2, 1980) (imposing firm resettlement bar); Aliens and
Nationality; Asylum and Withholding of Deportation Procedures, 55 FR
30674, 30678, 30683 (July 27, 1990) (promulgating 8 CFR 208.14(c)
(1990), which provided for mandatory regulatory bars to asylum for
those convicted in the United States of a particularly serious crime or
those who constitute a danger to the security of the United States
while retaining a prior regulatory bar to asylum for noncitizens who
were firmly resettled in a third country prior to arriving in the
United States); Asylum Procedures, 65 FR 76121, 76134 (Dec. 6, 2000)
(providing that an applicant does not have a well-founded fear of
persecution if they could avoid persecution by internally relocating);
see also, e.g., Afriyie v. Holder, 613 F.3d 924, 934-36 (9th Cir. 2010)
(discussing internal relocation), overruled on other grounds by
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc);
Yang v. INS, 79 F.3d 932, 935-36 (9th Cir. 1996) (holding that the
regulatory firm resettlement limitation was a permissible exercise of
the Attorney General's authority under the asylum statute). Restraining
the Departments' authority to promulgate additional limitations and
conditions on the ability to establish eligibility for asylum
consistent with section 208 of the INA, 8 U.S.C. 1158, would be
contrary to Congress' intent that the Departments' only constraint be
that additional limitations and conditions are consistent with section
208, 8 U.S.C. 1158, and ``this chapter.'' INA 208(b)(2)(C), (d)(5)(B),
8 U.S.C. 1158(b)(2)(C), (d)(5)(B); see also DHS v. Thuraissigiam, 591
U.S. 103, 112 (2020) (recognizing that the ``theme'' of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(``IIRIRA'') ``was to protect the Executive's discretion from undue
interference by the courts'' (alteration and internal quotation marks
omitted)); R-S-C v. Sessions, 869 F.3d 1176, 1187 (10th Cir. 2017)
(reasoning that the ``delegation of authority'' in section 208(b)(2)(C)
of the INA, 8 U.S.C. 1158(b)(2)(C), ``means that Congress was prepared
to accept administrative dilution'' of section 208(a)(1) of the INA, 8
U.S.C. 1158(a)(1)); INS v. Cardoza-Fonseca, 480 U.S. 421, 444-45
(1987); Circumvention of Lawful Pathways, 88 FR 11704, 11740 (Feb. 23,
2023).
The rule is within the scope of the Departments' authority and does
not conflict with the statutory requirement that noncitizens
``physically present in the United States'' be permitted to apply for
asylum because it adds a limitation on asylum eligibility as permitted
under section 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C.
1158(b)(2)(C) and
[[Page 81170]]
(d)(5)(B). The limitation is not a sweeping categorical bar that would
preclude a grant of asylum solely based on manner of entry, which some
courts have found to conflict with section 208(a)(1) of the INA, 8
U.S.C. 1158(a)(1). E.g., East Bay Sanctuary Covenant v. Biden (East Bay
III), 993 F.3d 640, 669-70 (9th Cir. 2021) (concluding that a prior
regulation that enacted a bar on asylum eligibility for those who
entered the United States between designated POEs was ``effectively a
categorical ban'' on migrants based on their method of entering the
United States, in conflict with section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1)).
Under this rule--and contrary to commenter assertions--manner of
entry alone is never dispositive. Rather, the rule's limitation on
asylum eligibility does not apply if a noncitizen establishes that
exceptionally compelling circumstances exist. See 8 CFR
208.35(a)(2)(i), 1208.35(a)(2)(i). The rule provides that such
exceptionally compelling circumstances include where the noncitizen, or
a family member with whom they are traveling, faced an acute medical
emergency; faced an imminent and extreme threat to life or safety, such
as an imminent threat of rape, kidnapping, torture, or murder; or was a
victim of a severe form of trafficking in persons. 8 CFR
208.35(a)(2)(i), 1208.35(a)(2)(i).
Specifically, the limitation at issue here turns on whether--during
the emergency border circumstances described in the Proclamation and
this rule--an individual has followed the lawful, safe, and orderly
pathways that the United States Government has established, or shown
exceptionally compelling circumstances, when it is essential that
noncitizens use such pathways to ensure the Government's ability to
manage the border.
Limitations and conditions on asylum eligibility do not need to
directly relate to whether a noncitizen satisfies the definition of a
``refugee'' within the meaning of section 101(a)(42)(A) of the INA, 8
U.S.C. 1101(a)(42)(A), but instead can embrace policy considerations
that justify a finding of ineligibility. See, e.g., Zheng v. Mukasey,
509 F.3d 869, 871 (8th Cir. 2007) (noting that IIRIRA included several
provisions, including the one-year bar, ``intended to reduce delays and
curb perceived abuses in removal proceedings''); Ali v. Reno, 237 F.3d
591, 594 (6th Cir. 2001) (recognizing that asylum law ``was never
intended to open the United States to refugees who had found shelter in
another nation and had begun to build new lives'' (internal quotation
marks and citation omitted)); Matter of Negusie, 28 I&N Dec. 120, 125
(A.G. 2020) (discussing the persecutor bar, and noting that Congress
intended to make ``certain forms of immigration relief,'' including
asylum, ``unavailable to persecutors''), stayed by Matter of Negusie,
28 I&N Dec. 399, 399 (A.G. 2021); Singh v. Nelson, 623 F. Supp. 545,
556 (S.D.N.Y. 1985) (``[A]ttempting to discourage people from entering
the United States without permission . . . provides a rational basis
for distinguishing among categories'' of noncitizens who are not
lawfully present.).
In sum, as with other conditions and limitations imposed by section
208(b)(2) of the INA, 8 U.S.C. 1158(b)(2), this rule is grounded in
important policy objectives, including providing those with meritorious
asylum claims an opportunity to have their claims heard in a timely
fashion, preventing an increased flow of migrants arriving at the
southern border that will overwhelm the Departments' ability to provide
safe and orderly processing, and reducing the role of exploitative TCOs
and smugglers. In seeking to enhance the overall functioning of the
immigration system and to improve processing of asylum applications,
the Departments are, in the exercise of their authority to promulgate
limitations on asylum eligibility and in recognition of the limited
resources provided by Congress, electing to implement a limitation on
asylum eligibility that places greater weight on manner of entry. This
limitation on asylum eligibility is expected to disincentivize
irregular migration by those unlikely to establish exceptionally
compelling circumstances during times when encounters exceed certain
benchmarks and therefore challenge the Departments' ability to swiftly
process single adults and individuals in family units encountered by
USBP at the SWB through expedited removal. See Section II.A.2 of this
preamble for further discussion of the Departments' experience with the
IFR.
Comment: Commenters claim that the rule violates the principles of
non-refoulement and nondiscrimination in the Refugee Act and other U.S.
laws. Some commenters claimed the rule conflicts with congressional
intent to create a uniform procedure for noncitizens applying for
asylum regardless of manner of entry.
Response: The Departments disagree that the rule conflicts with
U.S. law or congressional intent. The rule does not violate the
principles of non-refoulement and nondiscrimination. And the rule does
not conflict with what commenters describe as a congressional intent to
create a uniform procedure for noncitizens applying for asylum. See
Cazun v. Att'y Gen. U.S., 856 F.3d 249, 258 (3d Cir. 2017). The
Departments may create additional substantive limitations and
conditions on asylum eligibility--as Congress itself has done, and as
Congress expressly authorized the Departments to do. INA 208(b)(2)(A),
(b)(2)(C), 8 U.S.C. 1158(b)(2)(A), (b)(2)(C). Moreover, all noncitizens
to whom the rule applies are subject to the same procedures for
adjudicating their asylum claims as those who are not subject to the
rule. The United States has implemented its non-refoulement obligations
through section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) (which is
referred to as statutory withholding of removal) and the regulations
implementing U.S. obligations under Article 3 of the CAT at 8 CFR
208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, and 1208.18. The INA's
provision in section 208, 8 U.S.C. 1158, for the discretionary granting
of asylum instead aligns with Article 34 of the Refugee Convention,
which is precatory and does not require any signatory to actually grant
asylum to all those who are eligible. See, e.g., Cardoza-Fonseca, 480
U.S. at 441.
Comment: Commenters asserted that, under Matter of Pula, 19 I&N
Dec. 467 (BIA 1987), manner of entry may not be the dispositive factor
in deciding whether a noncitizen is eligible for asylum. Similarly,
commenters argued that Matter of Pula is binding precedent and
precludes consideration of manner of entry over all other factors. A
commenter claimed that manner of entry can only be considered in
determining whether a noncitizen merits asylum as a matter of
discretion and not in determining whether the noncitizen is eligible
for asylum.
Response: The rule is consistent with historical consideration of
manner of entry as a relevant factor in considering whether to grant
asylum as a matter of discretion. In Matter of Pula, the BIA
identified--as relevant factors as to whether a noncitizen warrants the
favorable exercise of discretion in granting asylum--the noncitizen's
``circumvention of orderly refugee procedures,'' including their
``manner of entry or attempted entry''; whether they ``passed through
any other countries or arrived in the United States directly'';
``whether orderly refugee procedures were in fact available to help''
in any transit countries; and whether they ``made any attempts to seek
asylum before coming to the United States.'' 19 I&N Dec. at 473-74. The
BIA explained that section 208(a) of the INA, 8 U.S.C. 1158(a),
required the Attorney General to establish procedures for adjudicating
[[Page 81171]]
applications filed by any noncitizen, ``irrespective of such alien's
status,'' but the BIA did not preclude consideration of the manner of
entry in assessing whether to grant asylum. Id. at 473. The BIA also
stated that while the manner of entry could ``be a serious adverse
factor, . . . it should not be considered in such a way that the
practical effect is to deny relief in virtually all cases.'' Id. at
473. The BIA cautioned against placing ``too much emphasis on the
circumvention of orderly refugee procedures'' as ``the danger of
persecution should generally outweigh all but the most egregious of
adverse factors.'' Id. at 473-74.
While the Departments acknowledge that the rule places greater
weight on manner of entry under certain emergency circumstances, this
decades-old precedent establishes that the Departments can permissibly
take into account manner of entry. Both how much weight to place on
that factor and whether to do so in weighing asylum eligibility fall
well within the broad discretion conferred on the Departments by
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Cf. Lopez v.
Davis, 531 U.S. 230, 243-44 (2001) (government can rely on rulemaking
to ``resolve certain issues of general applicability unless Congress
clearly expresses an intent to withhold that authority'' (quoting Am.
Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)); Reno v. Flores, 507
U.S. 292, 313 (1993) (noting that INS need not ``forswear use of
reasonable presumptions and generic rules'' even where the statute
``requires some level of individualized determination'' (citations and
quotation marks omitted)).
Under this rule, manner of entry, standing alone, is never
dispositive. Rather, the limitation at issue here turns on whether--
during the emergency border circumstances described in the Proclamation
and this rule--an individual has followed the lawful, safe, and orderly
pathways that the United States has established when it is essential
that noncitizens use such pathways to ensure the United States' ability
to manage the border. And even during these situations, the rule's
limitation on asylum eligibility does not apply if a noncitizen
establishes that exceptionally compelling circumstances exist. See 8
CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). The rule provides that such
exceptionally compelling circumstances include where the noncitizen, or
a family member with whom they are traveling, faced an acute medical
emergency; faced an imminent and extreme threat to life or safety, such
as an imminent threat of rape, kidnapping, torture, or murder; or was a
victim of a severe form of trafficking in persons. 8 CFR
208.35(a)(2)(i), 1208.35(a)(2)(i).
In line with Matter of Pula, then, the rule considers factors other
than manner of entry. And, like Matter of Pula, this rule provides for
consideration of manner of entry in assessing eligibility for some
asylum seekers in ``a way that the practical effect is'' not ``to deny
relief in virtually all cases.'' 19 I&N Dec. at 473. Rather, the manner
of entry reduces the availability of relief only in limited
circumstances--during emergency border circumstances described in the
Proclamation and this rule--and only for those unable to establish
exceptionally compelling circumstances.
The Departments also recognize that the specific analysis discussed
in Matter of Pula (considering manner of entry in the discretionary
decision of whether to grant asylum) is distinct from how this rule
considers manner of entry (as part of provisions governing asylum
eligibility). See 19 I&N Dec. at 472. The Departments, in exercising
their broad discretion to issue regulations adopting additional
limitations on asylum eligibility, are not bound to consider manner of
entry only as a factor contributing to whether a particular noncitizen
warrants a favorable exercise of discretion. While Matter of Pula
allows manner of entry to be one factor in the consideration of whether
a noncitizen merits a grant of asylum as a matter of discretion, it
does not purport to restrict the Departments from considering a
noncitizen's manner of entry in assessing eligibility. Id. at 473-74.
Moreover, while Matter of Pula considered manner of entry for
purposes of a discretionary grant whereas the rule considers manner of
entry as a limitation on asylum eligibility, adjudicators are not
precluded from considering the same facts when evaluating both
eligibility and discretion. Indeed, it is possible for a single fact to
be relevant to both determinations. See Kankamalage v. INS, 335 F.3d
858, 864 (9th Cir. 2003) (concluding that a conviction did not render a
noncitizen ineligible for asylum, but stating that the Board was ``not
prohibited from taking into account Kankamalage's robbery conviction
when it decides whether or not to grant asylum as a matter of
discretion''); Matter of Jean, 23 I&N Dec. 373, 385 (A.G. 2002)
(concluding that even a noncitizen who ``qualifies as a `refugee' ''
and whose criminal conviction did ``not preclude her eligibility'' for
asylum could nevertheless be ``manifestly unfit for a discretionary
grant of relief'').
The Departments conclude that this rule does not conflict with
Matter of Pula, which remains the applicable standard for discretionary
determinations in the absence of a regulation that otherwise governs
the discretionary determination. See, e.g., Thamotar v. U.S. Att'y
Gen., 1 F.4th 958, 970-71 (11th Cir. 2021) (observing that
discretionary asylum determinations continue to be governed by Matter
of Pula); Hussam F. v. Sessions, 897 F.3d 707, 718 (6th Cir. 2018)
(stating that ``circumvention [of proper immigration procedures] may be
taken into account as a `serious adverse factor''' (quoting Matter of
Pula, 19 I&N Dec. at 473)); see also Andriasian v. INS, 180 F.3d 1033,
1043-44 (9th Cir. 1999) (finding that reliance on certain Matter of
Pula factors was inappropriate once regulations controlling
discretionary denials of asylum on the basis of a petitioner's stay or
opportunity to stay in a third country had been promulgated). And the
Departments view Matter of Pula as providing support for the
proposition that it is lawful to consider manner of entry for asylum
applicants.
b. Statutory Conditions and Limitations on Asylum Eligibility
Comment: Commenters stated that the rule would be inconsistent with
or would otherwise render superfluous the statutory firm-resettlement
bar and safe-third-country bar. See INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi); INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
Response: This rule is within the Departments' broad authority to
create new limitations on asylum eligibility, and the Departments
disagree that the rule conflicts with any of the exceptions to a
noncitizen's ability to apply for asylum or limitations on a
noncitizen's eligibility for a grant of asylum under section 208(a)(2)
or (b)(2) of the INA, 8 U.S.C. 1158(a)(2) or (b)(2).
The INA's firm-resettlement provision precludes a noncitizen who
``was firmly resettled in another country prior to arriving in the
United States'' from demonstrating eligibility for asylum. INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); see also 8 CFR 208.15,
1208.15 (2020).\79\ The INA's safe-third-
[[Page 81172]]
country provision prohibits a noncitizen from applying for asylum if
the noncitizen ``may be removed, pursuant to a bilateral or
multilateral agreement'' to a safe third country in which the
noncitizen would not be subject to persecution and ``would have access
to a full and fair procedure for determining a claim to asylum or
equivalent temporary protection.'' INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A).
---------------------------------------------------------------------------
\79\ These regulations were amended by Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85
FR 80274 (Dec. 11, 2020), but the amendments were preliminarily
enjoined. See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.,
512 F. Supp. 3d 966, 969 (N.D. Cal. 2021). This order remains in
effect, and thus the 2020 version of these provisions--the version
immediately preceding the enjoined amendment--is currently
effective.
---------------------------------------------------------------------------
The rule does not conflict with or otherwise render the firm-
resettlement bar or safe-third-country bar superfluous; instead, this
rule and the statutory bars apply independently.
First, this rule has a different scope. In contrast to those
statutory bars, this limitation on asylum eligibility only applies to
those who enter the United States during emergency border
circumstances. See 8 CFR 208.35(a)(1), 1208.35(a)(1). Additionally,
unlike those who are subject to the firm-resettlement or safe-third-
country bars, those who are subject to this limitation on asylum
eligibility are not categorically barred from applying for asylum or
from being eligible for asylum, as application of the rule's limitation
on asylum eligibility will be considered on a case-by-case basis,
including to determine if exceptional circumstances apply to overcome
this limitation.
The rule also serves a different purpose than those statutory bars.
The INA's firm resettlement and safe-third-country provisions limit
asylum eligibility and applications, respectively, for noncitizens who
have available sustained protection in another country, and they help
protect against forum shopping. See Rosenberg v. Yee Chien Woo, 402
U.S. 49, 55-56 (1971) (noting that the concept of firm resettlement is
historically rooted in the notion of providing ``a haven for the
world's homeless people'' while encouraging ``other nations to do
likewise''); see also Maharaj v. Gonzales, 450 F.3d 961, 988-89 (9th
Cir. 2006) (en banc) (O'Scannlain, J., concurring in part and
dissenting in part) (recognizing that the firm-resettlement provision
protects against forum shopping, an issue ``that our immigration laws
have long sought to avoid''). The limitation on asylum eligibility
adopted in this rule, by contrast, seeks to streamline the Departments'
processing of noncitizens while upholding all screening and protection
requirements, thereby conserving limited resources during the emergency
border circumstances described in the Proclamation and this rule and
allowing for enough resources to continue to process lawful cross-
border trade and travel and noncitizens who present in a safe and
orderly manner at a POE. The rule is also designed to encourage
noncitizens to use lawful, safe, and orderly pathways to the United
States during emergency border circumstances or to wait until such
circumstances have abated, to the extent possible. Thus, the limitation
has a different object and purpose, and it is consistent with those
statutory provisions.
Moreover, the INA permits the Attorney General and the Secretary to
create new eligibility limitations and does not limit this authority
from overlapping with existing statutory conditions. See R-S-C, 869
F.3d at 1187 (noting that Congress's delegation of authority in section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), ``means that Congress
was prepared to accept administrative dilution'' of the right to seek
asylum); cf. Hawaii, 585 U.S. at 690-91 (recognizing that the existence
of the Visa Waiver Program ``did not implicitly foreclose the Executive
from imposing tighter restrictions'' in ``similar'' areas).
Indeed, section 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C.
1158(b)(2)(C) and (d)(5)(B), provide no subject-matter limit other than
requiring any regulation be ``consistent with'' section 208 of the INA,
8 U.S.C. 1158, and the INA generally. See R-S-C, 869 F.3d at 1187 n.9.
The limitation on asylum eligibility established by this rule is
consistent with section 208 of the INA, 8 U.S.C. 1158, as a whole, and
the INA generally, and it is consistent with the firm-resettlement and
safe-third-country bars in particular.
c. Expedited Removal
Comment: Several commenters claimed that the rule conflicts with
the expedited removal process created by Congress in IIRIRA. Commenters
noted that the statutory framework provides for preliminary screening
of noncitizens in credible fear interviews, where noncitizens may apply
for asylum after demonstrating a ``significant possibility'' that the
noncitizen could establish eligibility for asylum. In this regard, one
commenter asserted that Congress had intended the ``significant
possibility'' standard to be a ``low screening standard,'' but that the
IFR ``would convert the preliminary screening into a full
adjudication'' of whether the IFR applied and would eliminate the
``significant possibility'' standard ``entirely for all asylum seekers
covered[,] . . . forc[ing] them to meet an even higher `reasonable
probability' standard.'' Commenters asserted that the rule's
requirement that noncitizens instead show a ``reasonable probability''
of persecution or torture is in conflict with this statutory framework.
Commenters further asserted that the rule effectively creates a new
legal framework by which to evaluate asylum claims in conflict with the
statutory process. One commenter claimed that the rule unlawfully shuts
down the U.S. asylum system.
Response: The Departments disagree that the rule conflicts with the
expedited removal process created by Congress. The expedited removal
process is applicable to certain noncitizens 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 required 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 alien 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. See INA 235(b)(1)(A)(ii),
(B), 8 U.S.C. 1225(b)(1)(A)(ii), (B). But Congress has not provided for
such a screening for statutory withholding of removal or CAT
protection. In the absence of a statutory process for screening for
potential eligibility for statutory withholding of removal and CAT
protection, the Departments have also used the credible fear screening
process to identify potentially valid claims for such protection. See
generally 8 CFR 208.30, 1003.42, 1208.30 (providing for screenings for
potential eligibility for statutory withholding of removal and CAT
protection alongside screening for potential asylum eligibility). 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 an AO to
determine whether the noncitizen has a credible fear of persecution or
torture in the
[[Page 81173]]
country of nationality or removal. INA 235(b)(1)(A)(ii), (B), 8 U.S.C.
1225(b)(1)(A)(ii), (B); see also 8 CFR 208.30(e)(2), 235.3(b)(4); id.
208.13(b)(1)-(2), 1208.13(b)(1)-(2) (defining the grounds for asylum
eligibility); id. 208.16(b)-(c), 1208.16(b)-(c) (defining the grounds
for statutory withholding of removal and CAT protection). 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).
Just as the statute is silent on the availability of screening
procedures for statutory withholding of removal and CAT protection, it
is also silent on the standard applied during such screenings. By
regulation, the Departments have applied the ``significant
possibility'' standard to also screen for potential eligibility for
statutory withholding of removal and CAT protection, see 8 CFR
208.30(e)(2)-(3), 1003.42(d): AOs must determine whether ``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 can establish
eligibility . . . for withholding of removal under section 241(b)(3) of
the Act,'' 8 CFR 208.30(e)(2), and whether the noncitizen ``shows that
there is a significant possibility that the alien is eligible for
withholding of removal or deferral of removal under the Convention
Against Torture, pursuant to Sec. 208.16 or Sec. 208.17,'' 8 CFR
208.30(e)(3). If the AO determines that the noncitizen does not have a
credible fear of persecution or torture in the proposed country of
removal, 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 208.16(b)-(c), 208.30(g),
208.33(b)(2)(v), 1208.16(b)-(c), 1208.30(g).
To the extent commenters allege that the Departments are not
applying the ``significant possibility'' standard to screen for asylum
eligibility--such as for application of the limitation on asylum
eligibility--the commenters are mistaken. Under this rule, the AO or IJ
determines whether there is a significant possibility that the
noncitizen would ultimately be able to demonstrate by a preponderance
of the evidence that the limitation does not apply or that they meet
the exception for exceptionally compelling circumstances. The
``significant possibility'' standard applies by statute, section
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v), and the
regulation does not in any way displace that standard, by its terms or
otherwise. The Departments did not explicitly include this language in
the regulation itself. This is because the provisions regarding
credible fear screenings at 8 CFR 208.35(b) and 1208.35(b)(2) generally
explain the order of operations--instructing the AO or IJ to consider
the limitation first before considering the rest of the asylum claim.
In other rules adopting conditions and limitations on asylum
eligibility, the Departments have consistently used the regulatory text
to explain the order of operations for consideration of the limitations
during credible fear screenings without explicitly restating the
applicable statutory standard,\80\ while at the same time explaining
that the ``significant possibility'' standard applies in the
preamble.\81\ Deviating from the Departments' practice here could
wrongly imply that, in other regulations pertaining to the credible
fear process, the default standard of proof for AO and IJ
determinations is something other than the ``significant possibility''
standard. To avoid that unwanted implication, the Department declines
to modify the text of Sec. Sec. 208.35 and 1208.35 as well. The
``reasonable probability'' standard does not affect or change the
``significant possibility'' standard used to screen for asylum
eligibility, which, as discussed above, is set by statute and remains
in effect for asylum claims in the credible fear process. Accordingly,
the Departments disagree with the claim that the use of the
``reasonable probability'' standard for the purposes of screening for
potential eligibility for statutory withholding of removal and CAT
protection would eliminate, or in any way affect, the ``significant
possibility'' standard as it applies to screening for asylum
eligibility.
---------------------------------------------------------------------------
\80\ For example, under the Circumvention of Lawful Pathways
rule, ``[t]he asylum officer shall first determine whether the alien
is covered by the presumption . . . and, if so, whether the alien
has rebutted the presumption[.]'' 8 CFR 208.33(b)(1); see also 8 CFR
1208.33(b)(2) (``The immigration judge shall first determine whether
the alien is covered by the presumption at 8 CFR 208.33(a)(1) and
1208.33(a)(1) and, if so, whether the alien has rebutted the
presumption in accordance with 8 CFR 208.33(a)(3) and
1208.33(a)(3).''); Asylum Eligibility and Procedural Modifications,
84 FR 33829, 33843-45 (July 16, 2019) (interim final rule amending
and adding provisions at 8 CFR 208.30(e)(5)(ii) through(iii),
1003.42(d)(2) and(3), and 1208.30(g)(1)(i) through (ii), providing
the order of operations for applying two now-rescinded bars to
asylum eligibility); 88 FR at 31319; id. at 31449 (adding amendatory
instructions to remove regulatory provisions added to implement the
bars to asylum eligibility adopted in two prior rules).
\81\ See, e.g., 89 FR at 48755 (explaining that, during the
credible fear interview, ``the AO will first determine whether there
is a significant possibility that the noncitizen is eligible for
asylum in light of the [rule's] limitation on asylum eligibility'');
id. at 48757-58 (discussing the application of the ``significant
possibility'' standard under the rule during IJ review of a negative
credible fear determination); 84 FR at 33837 (``If there is a
significant possibility that the alien is not subject to the
eligibility bar (and the alien otherwise demonstrates that there is
a significant possibility that he or she can establish eligibility
for asylum), then the alien will have established a credible
fear.''); Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934, 55943 (Nov. 9, 2018) (``If there is a significant possibility
that the alien is not subject to the eligibility bar (and the alien
otherwise demonstrates sufficient facts pertaining to asylum
eligibility), then the alien will have established a credible
fear.'').
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The Departments also disagree that the rule's application of the
``reasonable probability'' standard to screen for potential eligibility
for statutory withholding of removal or CAT protection is inconsistent
with the ``significant possibility'' standard under the expedited
removal statute. As the Departments observed previously, ``Congress
clearly expressed its intent that the `significant possibility'
standard be used to screen for asylum eligibility but did not express
any clear intent as to which standard should apply to other
applications.'' 88 FR at 11742. Section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), and FARRA section 2242 are silent as to what screening
standards and procedures are to be employed in determining potential
eligibility for statutory withholding of removal or CAT protection, and
the INA elsewhere confers broad discretionary authority to establish
rules and procedures for implementing those provisions. See, e.g., INA
103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2). Accordingly, the
Departments have some discretion to articulate the screening standard
for claims for statutory withholding of removal and CAT protection. As
further discussed in Section III.C.3 of this preamble, the Departments
continue to believe that during the emergency border circumstances
described in the IFR and this rule, the ``reasonable probability''
screening standard is more appropriate in light of the ultimate burden
of proof for statutory withholding of removal and CAT protection and
better captures the population of noncitizens with potentially valid
claims for such protection. See 89 FR at 48745-47.
Thus, despite the claims of some commentators, the rule does not
effectively shut down the U.S. asylum system or deviate from applicable
statutory standards. Noncitizens still
[[Page 81174]]
may seek asylum and protection in the United States.
d. General Comments on International Law
Comment: Commenters generally asserted that the rule violates
international law. A commenter wrote that seeking asylum is a human
right guaranteed by international law and the rule unjustly denies
people this right. In this regard, a commenter asserted that the use of
emergency border circumstances as a justification for promulgating the
rule is insufficient to justify violating international law and that
the lack of a time frame or sunset provision denies access to migrants
seeking asylum and places them at risk of refoulement. Commenters
claimed that the rule imposes prohibited penalties on asylum seekers,
bars refugees from a path to citizenship, and impermissibly
discriminates based on manner of entry, race, and nationality. A
commenter stated that regulations that deny access to asylum based on
arbitrary factors that do not relate to a person's status as a refugee
are inconsistent with the Refugee Convention and that the United States
has an obligation under the Convention to provide a ``fair and
efficient refugee status determination procedure'' to individuals in
the U.S. asylum process.
Commenters were concerned that the rule violates the United
States's non-refoulement obligations under the Refugee Convention
(through the Refugee Protocol) and Article 3 of the CAT. For example,
commenters predicted many noncitizens would not be able to satisfy the
comparatively higher standards of proof for statutory withholding of
removal and CAT protection claims and that, in turn, would lead to the
refoulement of persons who, if not for the rule's limitation on asylum
eligibility, would have been granted asylum. Several of these
commenters also asserted that statutory withholding of removal and CAT
protection are insufficient to satisfy the United States's non-
refoulement obligations because they afford lesser protection than
asylum. Commenters expressed apprehension that the rule would result in
the turning away of migrants who seek refuge at the southern border.
Another commenter wrote that the rule is consistent with U.S.
commitments under the Refugee Protocol and the CAT, reasoning that
neither is self-executing and therefore the United States is bound only
by its own law implementing these treaties. The commenter acknowledged
that the United States implements its non-refoulement obligations
through the withholding of removal statute at section 241(b)(3) of the
INA, 8 U.S.C. 1231(b)(3). Another commenter, however, asserted that the
argument that asylum is discretionary under U.S. law and therefore the
rule does not violate the Refugee Protocol is incorrect as a matter of
international law, even if true under domestic law, because parties to
the Refugee Convention must provide asylum and protection from
refoulement to those who meet the definition of ``refugee.''
Response: This rule is consistent with the United States'
international treaty obligations. Three primary documents govern the
rights of refugees and corresponding obligations of states in
international law: the Refugee Convention; the Refugee Protocol, which
incorporates Articles 2 through 34 of the Refugee Convention; and the
CAT. 88 FR at 31384. Together, these documents provide a framework for
states to provide protection to noncitizens fleeing persecution or
torture and establish the principle of non-refoulement, which prohibits
states from returning refugees to territories in specific
circumstances. Id.
These treaties, however, do not prescribe or impose any particular
minimum procedures for implementation of non-refoulement obligations.
Although the United States is a party to the 1967 Refugee Protocol \82\
and the CAT, these treaties are not directly enforceable in U.S. law.
See INS v. Stevic, 467 U.S. 407, 428 & n.22 (1984); 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.''); Omar v. McHugh, 646 F.3d 13, 17
(D.C. Cir. 2011) (explaining that the CAT ``is non-self-executing and
thus does not itself create any rights enforceable in U.S. courts'').
Instead, the United States has implemented its obligations through
domestic legislation and implementing regulations. The Refugee
Convention's non-refoulement obligation is contained in Article 33.1,
which prohibits contracting states from returning a refugee to a
territory ``where his life or freedom would be threatened'' on account
of an enumerated ground. 19 U.S.T. at 6276, 189 U.N.T.S. at 176. The
United States has implemented the non-refoulement provisions of Article
33.1 of the Refugee Convention through the withholding of removal
provisions at section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), rather
than through the asylum provisions at section 208 of the INA, 8 U.S.C.
1158. See Cardoza-Fonseca, 480 U.S. at 429, 440-41. The CAT's non-
refoulement provision is in Article 3, which prohibits the return of a
person to a country where there are ``substantial grounds for
believing'' the person will be tortured. S. Treaty Doc. No. 100-20 at
20, 1465 U.N.T.S. 85, 114. The United States has implemented its
obligations under Article 3 of the CAT through regulations. See FARRA,
Public Law 105-277, sec. 2242(b), 112 Stat. 2681-761, 2681-822
(codified at 8 U.S.C. 1231 note); see also, e.g., 8 CFR 208.16(c),
208.17, 208.18, 1208.16(c), 1208.17, 1208.18. The rule does not change
or limit ultimate eligibility for statutory withholding of removal or
CAT protection. Instead, applicants subject to the rule's limitation on
asylum eligibility will be screened for potential eligibility for
statutory withholding of removal and CAT protection under a
``reasonable probability'' standard, which is lower than the ultimate
statutory or regulatory standard of proof for those forms of
protection.
---------------------------------------------------------------------------
\82\ See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169
n.19 (1993) (``Although the United States is not a signatory to the
[1951 Refugee] Convention itself, in 1968 it acceded to the United
Nations Protocol Relating to the Status of Refugees, which bound the
parties to comply with Articles 2 through 34 of the Convention as to
persons who had become refugees because of events taking place after
January 1, 1951.'' (citation omitted)).
---------------------------------------------------------------------------
The rule will limit asylum eligibility for some noncitizens. But,
as the Supreme Court has explained, asylum ``does not correspond to
Article 33 of the Convention, but instead corresponds to Article
34[,]'' which provides that contracting countries ``shall as far as
possible facilitate the assimilation and naturalization of refugees.''
Cardoza-Fonseca, 480 U.S. at 441 (quoting Refugee Convention art. 34,
19 U.S.T. at 6276, 189 U.N.T.S. at 176); see also United Nations High
Commissioner for Refugees (``UNHCR''), Handbook on Procedures and
Criteria for Determining Refugee Status and Guidelines on International
Protection Under the 1951 Convention and the 1967 Protocol Relating to
the Status of Refugees 16 para. 25 (2019 ed.) (``[T]he granting of
asylum is not dealt with in the 1951 Convention or the 1967
Protocol''). Article 34 ``is precatory; it does not require the
implementing authority actually to grant asylum to all those who are
eligible.'' Cardoza-Fonseca, 480 U.S. at 441. Because the limitation on
asylum eligibility does not affect ultimate eligibility for statutory
withholding of removal or protection under the CAT regulations, the
rule is consistent with U.S. non-refoulement obligations under the
Refugee Protocol (incorporating,
[[Page 81175]]
among other things, Article 33 of the Refugee Convention) and the CAT.
See R-S-C, 869 F.3d at 1188 n.11 (explaining that ``the Refugee
Convention's nonrefoulement principle--which prohibits the deportation
of aliens to countries where the alien will experience persecution--is
given full effect by the Attorney General's withholding-only rule'');
Cazun v. Att'y Gen. U.S., 856 F.3d 249, 257 & n.16 (3d Cir. 2017);
Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016).
The Departments agree that asylum is an important form of
protection and acknowledge that the right to seek asylum has been
recognized under the Universal Declaration of Human Rights (``UDHR''),
art. 14, G.A. Res. 217A (III), U.N. Doc. A/810 (1948). The UDHR is a
nonbinding human rights resolution of the UN General Assembly, and thus
it does not impose legal obligations on the United States. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (``[T]he [UDHR] does not
of its own force impose obligations as a matter of international
law.'').
Moreover, although the rule creates a limitation on eligibility for
asylum, the rule does not bar those seeking asylum from taking part in
procedures that protect them from refoulement. Under the rule, all
noncitizens processed for expedited removal who manifest a fear of
return, express an intention to apply for asylum or protection, or
express a fear of persecution or torture or a fear of return to their
country or the country of removal are referred for a credible fear
interview. Even in those cases where the AO determines that the
noncitizen has not established a significant possibility that they
could ultimately demonstrate by a preponderance of the evidence that
they are not subject to the limitation on asylum eligibility or are
excepted from it, the noncitizen may still demonstrate credible fear by
showing a reasonable probability of persecution or torture. Similarly,
even if found ineligible for asylum by an IJ due to the application of
the limitation on asylum eligibility, a noncitizen may still
demonstrate eligibility for statutory withholding of removal or CAT
protection.
The rule is also consistent with the Refugee Convention and the
corresponding obligations under international law, including the
specific provisions cited by commenters. The rule does not violate the
nondiscrimination requirement in Article 3 of the Refugee Convention.
Article 3 prohibits discrimination on the basis of ``race, religion or
country of origin.'' 19 U.S.T. at 6264, 189 U.N.T.S. at 156. The rule
does not discriminate on the basis of any of the protected
characteristics described in Article 3. This rule is limited to the
southern border because that is the U.S. border where emergency
circumstances exist. The Departments acknowledge that this limitation
will affect those noncitizens with easier access to the southern border
and not those with easier access to other borders of the United States.
However, the rule does not treat such noncitizens differently on that
basis; the rule applies equally based on the actions of a noncitizen
during emergency border circumstances. Specifically, the application of
this rule is limited to those who enter the United States across the
southern border during emergency border circumstances described in the
Proclamation and this rule, are not described in section 3(b) of the
Proclamation, and do not establish the existence of exceptionally
compelling circumstances. For the same reason, the rule does not
violate other antidiscrimination principles described in other
international human rights treaties, including the International
Convention on the Elimination of All Forms of Racial Discrimination,
arts. 2-5, Dec. 21, 1965, T.I.A.S. No. 94-1120, 660 U.N.T.S. 195, and
the International Covenant on Civil and Political Rights, arts. 2-3,
Dec. 16, 1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 171.
Similarly, the rule is consistent with Article 31.1 of the Refugee
Convention, which prohibits states from ``impos[ing] penalties'' on
refugees based on ``illegal entry or presence'' if such refugees are
``coming directly from a territory where their life or freedom was
threatened'' and ``present themselves without delay to the authorities
and show good cause for their illegal entry or presence.'' 19 U.S.T. at
6275, 189 U.N.T.S. at 174. As the commentary to the Refugee Convention
explains, the term ``penalties'' in Article 31.1 refers ``to
administrative or judicial convictions on account of illegal entry or
presence, not to expulsion.'' UNHCR, The Refugee Convention, 1951: The
Travaux Pr[eacute]paratoires Analyzed with a Commentary by Dr. Paul
Weis 219, <a href="https://www.unhcr.org/us/media/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul-weis">https://www.unhcr.org/us/media/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul-weis</a>; see Cazun, 856
F.3d at 257 & n.16 (rejecting argument that the reinstatement bar on
asylum was a ``penalty'' within the meaning of Article 31.1). The rule
does not change any rules or policies relating to detention or
convictions for unlawful entry or presence. The Departments acknowledge
that the Ninth Circuit concluded in East Bay III, 993 F.3d at 674, that
the bar to asylum at issue in that case violated Article 31.1 of the
Refugee Convention because it imposed a ``penalty.'' As described in
the IFR, the rule here does not create a categorical bar to asylum, but
instead a limitation on asylum eligibility, and East Bay III
accordingly does not address the lawfulness of this rule. 89 FR at
48735. Moreover, the Ninth Circuit's conclusion was erroneous because
the denial of discretionary relief is not a penalty within the meaning
of Article 31.1. Id. at 48736.
Comment: One commenter asserted that the IFR conflicts with the
United States Supreme Court's decisions in Murray v. Schooner Charming
Betsy, 6 U.S. (2 Cranch) 64, 118 (1804), which generally states that
ambiguous U.S. statutes should be interpreted to avoid conflicts with
international law where possible, and INS v. Cardoza-Fonseca, 480 U.S.
421, 436-37 (1987), which explained that ``one of Congress' primary
purposes'' when passing the Refugee Act of 1980 ``was to bring United
States refugee law into conformance with the 1967 [Refugee Protocol].''
Response: The Departments disagree with the commenter that the IFR
conflicts with Charming Betsy or Cardoza-Fonseca.\83\ As explained
above, the rule is consistent with the United States' obligations under
international law, specifically the Refugee Convention, the Refugee
Protocol, and the CAT. The rule does not change the ultimate
eligibility requirements for statutory withholding of removal or CAT
protection and is consistent with the United States' non-refoulement
obligations. Moreover, the rule does not prohibit any person from
seeking asylum or, more importantly for purposes of U.S. non-
refoulement obligations, from seeking or obtaining statutory
withholding of removal or CAT protection. All noncitizens processed for
expedited removal who manifest a fear of return, express an intention
to apply for asylum or protection, or express a fear of persecution or
torture or a fear of return to their country or the country of removal
are entitled to a credible fear interview. Even in cases in which the
AO determines that the noncitizen is subject to the limitation on
eligibility for asylum, the noncitizen may still receive a positive
credible fear determination by
[[Page 81176]]
showing a reasonable probability of persecution or torture. Similarly,
after applying for asylum before an IJ, a noncitizen may still
demonstrate eligibility for statutory withholding of removal or CAT
protection.
---------------------------------------------------------------------------
\83\ For purposes of this response, the Departments assume
arguendo that the Charming Betsy canon applies with respect to non-
self-executing treaties. See, e.g., Saleh v. Bush, 848 F.3d 880, 891
n.9 (9th Cir. 2017) (noting that the question remains unsettled).
---------------------------------------------------------------------------
e. UNHCR Guidelines on International Protection
Comment: Commenters stated that the rule violates UNHCR statements
and guidelines and the right to seek asylum guaranteed by Article 14 of
the UDHR. Commenters also claimed that the pre-screening procedures in
expedited removal proceedings are contrary to UNHCR guidelines and that
adjudicators must instead provide full and individualized assessments
of each asylum case.
Response: The Departments agree that asylum is an important
protection in international law and acknowledge that the right to seek
asylum has been recognized under article 14 of the UDHR. However, the
UDHR is a nonbinding human rights resolution of the UN General Assembly
and does not impose legal obligations on the United States. See Sosa,
542 U.S. at 734-35 (``[T]he [UDHR] does not of its own force impose
obligations as a matter of international law.''). Moreover, UNHCR's
interpretations of, or recommendations regarding, the Refugee
Convention and Refugee Protocol are ``not binding on the Attorney
General, the BIA, or United States courts.'' INS v. Aguirre-Aguirre,
526 U.S. 415, 427 (1999). UNHCR's Handbook on Procedures and Criteria
for Determining Refugee Status ``itself disclaims such force,
explaining that `the determination of refugee status under the 1951
Convention and the 1967 Protocol . . . is incumbent upon the
Contracting State in whose territory the refugee finds himself.''' Id.
at 427-28 (quoting Cardoza-Fonseca, 480 U.S. at 439 n.22). Such
guidance ``may be a useful interpretative aid,'' id. at 427, but it
does not impose obligations on the United States.
Comment: Commenters stated that the rule violates the Refugee
Convention because the exclusion grounds in Article 1(F) of the Refugee
Convention are exhaustive, yet the rule creates an exclusion ground not
found in Article 1(F). The commenters acknowledged that the rule's
limitation on asylum eligibility contains an exception but asserted
that the exception is insufficient to comply with the Refugee
Convention. Along the same lines, a commenter asserted that such
exclusionary grounds should only be considered after an assessment of
whether the noncitizen is a ``refugee'' and be balanced against the
need for protection itself, as is the order of procedures in a full
merits hearing.
Response: The Departments disagree with the commenters'
characterization of the limitation on asylum eligibility in this rule
as a ground of exclusion like those in Article 1(F) of the Refugee
Convention. Article 1(F) of the Refugee Convention provides that the
provisions of the Convention ``shall not apply to any person with
respect to whom there are serious reasons for considering that'' they
have: (1) ``committed a crime against peace, a war crime, or a crime
against humanity''; (2) ``committed a serious non-political crime
outside the country of refuge prior to [their] admission to that
country as a refugee''; or (3) ``been guilty of acts contrary to the
purposes and principles of the United Nations.'' As explained above,
the United States has implemented the non-refoulement provisions of
Article 33.1 of the Refugee Convention through the withholding of
removal provisions at section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), rather than through the asylum provisions at section 208 of
the INA, 8 U.S.C. 1158. This rule's limitation on asylum eligibility
does not extend to statutory withholding of removal and therefore does
not implicate the application of the Convention's exclusion grounds to
the mandatory non-refoulement obligation of Article 33. See R-S-C, 869
F.3d at 1188 n.11 (explaining that ``the Refugee Convention's
nonrefoulement principle--which prohibits the deportation of aliens to
countries where the alien will experience persecution--is given full
effect by the Attorney General's withholding-only rule'' (emphasis
added)). Nor does the rule restrict who qualifies as a refugee. Cf. INA
101(a)(42), 8 U.S.C. 1101(a)(42) (excluding those who ``ordered,
incited, assisted, or otherwise participated in the persecution of any
person on account of'' a protected ground from the ``refugee''
definition); UNHCR, UNHCR Statement on Article 1F of the 1951
Convention at 1 (July 2009), <a href="https://www.unhcr.org/us/media/unhcr-statement-article-1f-1951-convention">https://www.unhcr.org/us/media/unhcr-statement-article-1f-1951-convention</a> (providing that the exclusion
grounds ``exclude a person from being a refugee where there are serious
reasons for considering that she/he has committed certain heinous
acts'').
In any event, the exclusion clauses of Article 1(F) of the Refugee
Convention do not limit the United States from adopting additional or
different limitations on asylum eligibility. Congress has implemented
Article 1(F) in establishing mandatory bars to eligibility for
statutory withholding of removal. See INA 241(b)(3)(B), 8 U.S.C.
1231(b)(3)(B). Congress adopted certain parallel bars to asylum
eligibility, see, e.g., INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), but
also authorized the Departments to establish additional limitations on
asylum eligibility, see INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As
discussed earlier in this preamble, the asylum statute implements the
precatory provision in Article 34 of the Convention, but neither the
mandatory nor the precatory provisions of the Convention and Protocol
are directly enforceable in U.S. law. See Stevic, 467 U.S. at 428 &
n.22; Al-Fara, 404 F.3d at 743 (``The 1967 Protocol is not self-
executing, nor does it confer any rights beyond those granted by
implementing domestic legislation.'' (citations omitted)). Instead, the
United States has implemented its obligations through domestic
legislation and implementing regulations, and the Protocol ``serves
only as a useful guide in determining congressional intent in enacting
the Refugee Act.'' Barapind v. Reno, 225 F.3d 1100, 1107 (9th Cir.
2000) (citations omitted). Thus, the Refugee Protocol does not
circumscribe the United States' prerogative to establish limitations on
asylum eligibility that extend beyond the exclusion grounds described
in Article 1(F).
f. 2000 Protocol To Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children
Comment: A commenter stated that the rule conflicts with the United
States' obligations under the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention Against Transnational Organized Crime,
Nov. 15, 2000, 2237 U.N.T.S. 319 (``Trafficking Protocol''), and the
Trafficking Victims Protection Act of 2000 (``TVPA''), 22 U.S.C. 7101
et seq., because the rule will not prevent human trafficking and will
instead drive trafficking networks further underground and make people
more vulnerable to exploitation. The commenter stated that the reality
of human movement and escape from harm will drive people to take other
routes and reported that they had handled cases involving individuals
who were mistreated after being forced to take on large debts to pay
smuggling networks to seek safety in the United States. The commenter
also claimed the rule will exacerbate violent crime, which increases
asylum seekers' vulnerabilities to trafficking.
Response: The Departments disagree that the rule conflicts with
U.S.
[[Page 81177]]
obligations under the Trafficking Protocol or the TVPA. At the outset,
the Departments note that the Trafficking Protocol is separate from the
Refugee Convention and Refugee Protocol; the Trafficking Protocol
explicitly disclaims any impact upon those agreements or on the non-
refoulement principle they contain. See Trafficking Protocol art. 14(1)
(``Nothing in this Protocol shall affect the rights, obligations and
responsibilities of States and individuals under international law,
including . . . , in particular, where applicable, the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees and the
principle of non-refoulement as contained therein.'').
In addition, the rule is consistent with the Trafficking Protocol
and TVPA. Nothing in the IFR or the rule is implicated by or conflicts
with the provisions of the Trafficking Protocol, none of which relate
to limitations on asylum eligibility. Moreover, the IFR and this rule
remain in line with the purpose of the Trafficking Protocol in
protecting and assisting the victims of human trafficking,\84\ as they
specify that any person who can demonstrate by a preponderance of the
evidence that they are a ``victim of a severe form of trafficking in
persons'' as defined in 8 CFR 214.201 will thereby show exceptionally
compelling circumstances, and will therefore not be subject to the
rule's limitation on asylum eligibility. Similarly, the IFR and this
rule are entirely consistent with the TVPA, which provides immigration
relief to certain victims of a severe form of trafficking in persons
who assist law enforcement (or meet certain exceptions), Public Law
106-386, sec. 107(e), 114 Stat. 1464, 1477, but does not otherwise
implicate immigration authorities under title 8.
---------------------------------------------------------------------------
\84\ Trafficking Protocol art. 2.b, 2237 U.N.T.S. at 344.
---------------------------------------------------------------------------
Regarding the commenter's concerns about smuggling and trafficking,
the Departments believe the most helpful approach to prevent migrants
from falling victim to smugglers and traffickers is to both discourage
attempts to enter the United States irregularly and, ultimately, to
increase the availability of lawful pathways for migration.
This rule is expected to continue to reduce irregular migration,
which benefits human smuggling and trafficking organizations. The rule
is also expected to reduce human trafficking and smuggling by reducing
overall flows of migrants, thereby allowing the Departments to better
manage their limited resources while delivering consequences more
swiftly through expedited removal for those without a legal basis to
remain. Id. at 48762, 48766-67.
Moreover, CBP immigration officers (both USBP agents and CBP
officers) have extensive experience interviewing and observing
individuals. Id. at 48744. They are trained to identify potential
trafficking victims or victims of crimes and to take appropriate follow
up action. Id. The commenter's prediction that the rule may increase
asylum seekers' vulnerabilities to trafficking is speculative and
ignores CBP immigration officers' training and experience in combating
and preventing human trafficking. Additionally, without this rule,
incentives for irregular migration would likely increase, which would
likely exacerbate the very vulnerabilities about which the commenter
expressed concern, including by driving more migrants into the hands of
human traffickers promising a pathway to the United States. See id. at
48714-15.
Regarding the commenter's concerns about the safety of noncitizens
attempting to enter the United States, one cause of recent surges in
irregular migration is smugglers and migrants' growing understanding
that DHS's capacity to impose consequences at the border is limited by
the lack of resources and tools that Congress has made available. Id.
at 48714. The Departments assess that the IFR has significantly
increased the ability to deliver timely decisions and consequences,
combating contrary messaging and perceptions. See Section II.A.2 of
this preamble; see also 89 FR at 48746. Additional discussion of the
rule's incentive effects is found at Sections III.A.2 and III.B.2 of
this preamble.
2. Justification and Statements on Need for the Rule
a. Rule Is Unjustified, Unsubstantiated, or Arbitrary
Comment: Several commenters argued that the Departments' reliance
on the success of the Circumvention of Lawful Pathways rule to justify
the IFR is erroneous because the evidence regarding the high levels of
encounters at the border does not support implementing such ``extreme''
measures as those contained in the IFR. One commenter stated that the
Departments cannot argue that the Circumvention of Lawful Pathways rule
has been successful at alleviating the stress on the border and
immigration systems while at the same time arguing that the measures in
the IFR are needed to address the surge in high levels of migration at
the southern border. Another commenter argued that (1) the increase in
encounters prior to the end of the Title 42 public health Order does
not necessarily mean that encounters would have remained high after the
Title 42 public health Order ended, and (2) it is implausible that the
Circumvention of Lawful Pathways rule led to higher encounters prior to
its implementation and lower encounters after its implementation, as
most migrants did not know what the Circumvention of Lawful Pathways
rule was before it was implemented. Thus, the commenter claimed, it is
more likely that the end of the Title 42 public health Order was the
reason for higher encounters prior to its end and lower encounters
after its end. The commenter concluded that, as there is insufficient
evidence to support the asserted success of the Circumvention of Lawful
Pathways rule, a fundamental justification of the IFR, it is not
justifiable to institute more stringent processes under the IFR.
Another commenter similarly took issue with the effectiveness of
the Circumvention of Lawful Pathways rule, stating that it is well
understood that the Title 42 public health Order drove border crossings
to record highs, and the end of the Title 42 public health Order would
therefore have led to a substantial decrease in border crossings
without further policy changes. However, the commenter said the
Departments claimed, without any evidence, that crossing levels under
the Title 42 public health Order were somehow predictive of crossing
levels after the Title 42 public health Order ended; the commenter said
this assertion is contrary to the record.
Response: The Departments disagree with commenters' claim that
there is not enough evidence demonstrating the Circumvention of Lawful
Pathways rule's impact on encounters at the SWB. In the first month
following the implementation of the Circumvention of Lawful Pathways
rule, encounters between POEs along the SWB decreased by 69 percent
compared to their peak just before the end of the Title 42 public
health Order.\85\ The Departments believe that overall encounters would
not have decreased after the end of the Title 42 public health Order
absent their implementation of policy changes, including the
Circumvention of Lawful Pathways rule, to address the level of
irregular migration. The Departments
[[Page 81178]]
agree with commenters that the Title 42 public health Order increased
repeat crossing attempts, but as noted in the Circumvention of Lawful
Pathways rule, repeat crossings were a contributing factor, but not the
only reason, for the increase in overall encounters: for example,
unique encounters with nationals of countries outside of Mexico and
Northern Central America were also rising also increased in each of FYs
2022-2024, as compared with the pre-pandemic period.\86\ In addition to
the overall increase in encounters and unique encounters, several other
factors caused the Departments to project a spike in average daily
encounters in the run-up to the end of the Title 42 public health
Order, including: (1) the prospect that DHS would no longer have a
means to promptly expel migrants without a legal basis to stay in the
United States following the termination of the Title 42 public health
Order; (2) the presence of several large diaspora populations in Mexico
and elsewhere in the hemisphere; (3) the unprecedented recent growth in
migration from countries of origin not previously typically
encountered; (4) the already large number of migrants in proximity to
the SWB; and (5) the general uncertainty surrounding the expected
impact of the termination of the Title 42 public health Order. See 89
FR at 48723; see also 88 FR at 31316. Consistent with their
projections, the Departments planned for, and briefly observed, a very
significant spike in average daily encounters. See 89 FR at 48723. Had
these levels of migration persisted without the incentives put in place
by the Circumvention of Lawful Pathways rule, encounters may have
exceeded even the very high levels of irregular migration that the
Departments observed under that rule. See id. at 48723-24. The
Departments believe the Circumvention of Lawful Pathways rule mitigated
the overall impact on the border security and immigration systems that
would have been caused by an expected surge following the end of
processing under the Title 42 public health Order. This is evidenced by
the sharp initial drop CBP saw in overall encounters at the SWB in the
weeks following the expiration of the Title 42 public health Order and
when the Circumvention of Lawful Pathways rule went into effect.\87\
Instead of seeing a surge of migrants arriving at the border following
the end of the Title 42 public health Order, there was a precipitous
drop that lasted through June 2023.\88\ At about the same time DHS
assessed, and public reporting confirmed, that DHS messaging about the
Circumvention of Lawful Pathways rule and associated measures were
effective in dissuading potential migrants from attempting to cross the
U.S. border due to the disincentives created by that rule.\89\
---------------------------------------------------------------------------
\85\ See Decl. of Blas Nu[ntilde]ez-Neto ] 13, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
\86\ Unique USBP SWB encounters of nationals of countries other
than Mexico and Northern Central America were more than 30 times
higher in each of FY 2022-FY 2024 (through May 2024) than in the
pre-pandemic period. OHSS analysis of July 2024 Persist Dataset
(USBP Encounters by Citizenship tab).
\87\ Average daily CBP SWB encounters fell 68 percent from their
May 12, 2023, level in the first 11 days after the CLP rule went
into effect and remained at similar low levels throughout May and
June 2024. OHSS analysis of July 2024 OHSS Persist Dataset
(Encounters FY2000-2024 tab).
\88\ Id. In July 2023, total monthly CBP SWB encounters remained
below 200,000. While total encounters increased from August 2023
through December 2023, the same increase occurred between August
2022 and December 2022 while the Title 42 public health Order was
still in place, suggesting that these surges are more consistent
with seasonal migration trends that changes in U.S. immigration
policy cannot unilaterally mitigate. Id.
\89\ See Mary Beth Sheridan, Reyes Mata III, Maria Sacchetti &
Nick Miroff, End of Title 42 Pandemic Border Policy Brings Reset,
But No Sudden Rush, Wash. Post (May 12, 2023), <a href="https://www.washingtonpost.com/nation/2023/05/12/title-42-pandemic-ends-border-migrants/">https://www.washingtonpost.com/nation/2023/05/12/title-42-pandemic-ends-border-migrants/</a>; see also Valerie Gonzalez, Migrants Rush Across
U.S. Border in Final Hours Before Title 42 Asylum Restrictions are
Lifted, PBS (May 11, 2023), <a href="https://www.pbs.org/newshour/politics/migrants-rush-across-u-s-border-in-final-hours-before-title-42-asylum-restrictions-are-lifted">https://www.pbs.org/newshour/politics/migrants-rush-across-u-s-border-in-final-hours-before-title-42-asylum-restrictions-are-lifted</a>; Decl. of Blas Nu[ntilde]ez-Neto ]
22, E. Bay Sanctuary Covenant v. Biden, No. 18-cv-6810 (N.D. Cal.
June 16, 2023) (Dkt. 176-2); Testimony of Blas Nu[ntilde]ez-Neto
Before U.S. House of Representatives Committee on Homeland Security
Subcommittee on Border Security and Enforcement on ``Examining DHS'
Failure to Prepare for the Termination of Title 42'' (June 6, 2023),
<a href="https://www.congress.gov/118/meeting/house/115908/witnesses/HHRG-118-HM11-Wstate-Nuez-NetoB-20230606.pdf">https://www.congress.gov/118/meeting/house/115908/witnesses/HHRG-118-HM11-Wstate-Nuez-NetoB-20230606.pdf</a>.
---------------------------------------------------------------------------
The Departments recognize that while the Circumvention of Lawful
Pathways rule is a valuable tool available to the Departments to reduce
irregular migration, it is not, by itself, able to mitigate all the
factors influencing migration trends. Despite the success of the
Circumvention of Lawful Pathways rule and complementary measures, for
much of the immediate post-pandemic period until issuance of the IFR,
border encounters remained higher than the Departments' abilities to
consistently deliver timely decisions and consequences.\90\ Therefore,
even if the evidence supporting the Circumvention of Lawful Pathways
rule's success was inconclusive (which the Departments do not believe),
the Departments would have adopted the IFR in response to the high
number of migrants subsequently arriving at the southern border,
overwhelming the Departments' resources and preventing them from
delivering timely decisions and consequences to those who lack a lawful
basis to remain.
---------------------------------------------------------------------------
\90\ Total daily SWB encounters averaged about 5,700/day in
April and May 2024 and USBP SWB encounters averaged about 4,100/day,
compared to averages of 1,600 and 1,300/day, respectively, in the
pre-Pandemic period (OHSS analysis of July 2024 Persist Dataset
(Encounters FY2000-2024 tab). In late 2023, while the Title 42
public health Order was in place, total encounters at the SWB
reached all-time highs. OHSS's analysis of July 2024 Persist Dataset
(Encounters FY2000-2024 tab) shows that total SWB encounters reached
over 242,000 in November 2023 and over 301,000 in December 2023.
Total SWB encounters for the month of May 2023 were approximately
207,000. This was the month the Title 42 public health Order ended
and when the Circumvention of Lawful Pathways rule went into effect.
Total SWB encounters for the following month (June 2023) dropped
precipitously to 145,000 encounters, but total SWB encounters
climbed back to 233,000 in August 2023 and remained at highly
elevated levels through December 2023.
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The rule is a tailored approach designed to substantially improve
the Departments' abilities to process noncitizens more expeditiously
and deliver timely decisions and consequences to most noncitizens who
cross between POEs into the United States during emergency border
circumstances. As discussed in Section II.A.2 of this preamble, the IFR
is working as intended. DHS is placing into expedited removal the
majority of single adults and individuals in family units encountered
by USBP at the SWB, the rule has reduced the percentage of noncitizens
encountered at the SWB who are released, and DHS is more quickly
removing a greater percentage of those without a legal basis to remain
in the United States than during the immediate post-pandemic period,
which in turn discourages additional crossings.\91\ Since promulgating
the IFR,
[[Page 81179]]
USBP has placed 59 percent of noncitizen single adults and individuals
in family units encountered at the SWB into expedited removal
proceedings, compared to 18 percent of such noncitizens during the
immediate post-pandemic period following the end of the Title 42 public
health Order,\92\ and 41 percent in the pre-pandemic period.\93\
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\91\ OHSS analysis of July 2024 Persist Dataset and data
downloaded from UIP August 6, 2024, for encounters since May 1, 2024
(Summary Statistics tab). For encounters under the IFR through July
31, 2024, 34 percent of bookouts of single adults and individuals in
family unit were releases, compared to 64 percent in the immediate
post-pandemic period. Thirty percent of bookouts from CBP custody
were repatriations, up from 16 percent during the immediate post-
pandemic period. Overall, DHS repatriated an average of
approximately 1,370 noncitizens encountered at the SWB per day
during the first two months of enforcement under the IFR, up from
approximately 1,360 in the immediate post-pandemic period. Id. This
marginal increase understates the actual impact of the IFR, however,
given the sharp drop in encounters: repatriations of noncitizens
encountered at the SWB as a share of SWB encounters were equivalent
to 26 percent in the immediate post-pandemic period compared to 62
percent under the IFR--a rate that is also slightly higher than the
pandemic period (58 percent, only 5 percent of which were title 8
repatriations) and the pre-pandemic period (61 percent, at a time of
much lower encounters and when Mexicans and Northern Central
Americans accounted for over 90 percent of USBP encounters). Id. For
public reporting suggesting that migrants are aware of the IFR and
that it has discouraged attempts to cross into the United States
irregularly, see Mariana Mart[iacute]nez Barbra & Caterina Morbiato,
US Border Policy Spurred Migrant Camps Hundreds of Miles Away in
Mexico's Capital, Associated Press, Sept. 1, 2024, <a href="https://apnews.com/article/mexico-migrants-asylum-cbp-app-camps-22b49fabf6e4d7d25d2873d0637544fe">https://apnews.com/article/mexico-migrants-asylum-cbp-app-camps-22b49fabf6e4d7d25d2873d0637544fe</a>.
\92\ OHSS analysis of July 2024 OHSS Persist Dataset and data
downloaded from UIP on September 3, 2024. (Summary Statistics tab).
\93\ Id.
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While more noncitizens without a legal basis to remain in the
United States were removed under the Circumvention of Lawful Pathways
rule than in the pre-pandemic period, the Departments recognize that
the volume of noncitizens arriving at the SWB remained beyond the
Departments' capacity to timely process given the resources provided by
Congress.\94\ As explained in the IFR's preamble, once the Departments
resumed widespread processing under their title 8 authorities, it
became clear that, even with the Circumvention of Lawful Pathways
rule's expanded measures to impose consequences along the SWB,
substantial migration throughout the hemisphere, combined with
inadequate resources and tools to keep pace, limited DHS's ability to
meaningfully address the historic levels of encounters at the southern
border. See 89 FR at 48713.
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\94\ OHSS analysis of July 2024 OHSS Persist Dataset (Immediate
Post-Pandemic Details tab). Although sustained high encounter rates
outstripped the Departments' abilities--based on available
resources--to process noncitizens through expedited removal in
significant numbers in the immediate post-pandemic period, between
May 12, 2023, and June 4, 2024, CBP placed into expedited removal an
average of about 920 individuals encountered between POEs each day
on average, and USCIS conducted more than 206,000 credible fear
interviews, a record number. Id. Between May 12, 2023, and June 4,
2024, DHS removed or returned more than 796,000 noncitizens who did
not have a legal basis to remain in the United States, the vast
majority of whom crossed the SWB. Id. USBP encounters at the SWB
decreased by 16 percent compared to the previous 12 months, to an
average of 5,100 per day for the period from May 12, 2023, to June
4, 2024, id., and border encounters remained below the levels
projected to occur in the absence of the Circumvention of Lawful
Pathways rule and complementary measures. April 2023 OHSS Encounter
Projection.
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The Departments did not and have not represented that the
Circumvention of Lawful Pathways Rule would singlehandedly resolve
migratory pressures in the region; the Departments only represent that
it would reduce the number of daily encounters at the SWB that, absent
intervention, were predicted to materialize in a post-Title 42 public
health Order surge. The pre-IFR status quo of the broken immigration
and asylum systems had become a driver for irregular migration
throughout the region and an increasingly lucrative source of income
for dangerous TCOs. See 89 FR at 48714. Without adequate
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. See id. All of these
factors, taken together, pose significant threats to the safety and
security of migrants exploited into making the dangerous journey to the
SWB and the U.S. communities through which many suc
[…truncated; see source link]Indexed from Federal Register on October 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.