Rule2024-29617
Application of Certain Mandatory Bars in Fear Screenings
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
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS or Department) is amending its regulations to allow asylum officers (AOs) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways or Securing the Border rules apply. The rule is intended to enhance operational flexibility and help DHS more swiftly remove certain noncitizens who are barred from asylum and statutory withholding of removal.
Full Text
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<title>Federal Register, Volume 89 Issue 243 (Wednesday, December 18, 2024)</title>
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103370-103414]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29617]
[[Page 103369]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
Part V
Department of Homeland Security
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8 CFR Part 208
Application of Certain Mandatory Bars in Fear Screenings; Final Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103370]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2776-24; DHS Docket No. USCIS-2024-0005]
RIN 1615-AC91
Application of Certain Mandatory Bars in Fear Screenings
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS or Department) is
amending its regulations to allow asylum officers (AOs) to consider the
potential applicability of certain bars to asylum and statutory
withholding of removal during credible fear and reasonable fear
screenings, including credible fear screenings where the Circumvention
of Lawful Pathways or Securing the Border rules apply. The rule is
intended to enhance operational flexibility and help DHS more swiftly
remove certain noncitizens who are barred from asylum and statutory
withholding of removal.
DATES: This final rule is effective January 17, 2025.
FOR FURTHER INFORMATION CONTACT: Daniel Delgado, Acting Deputy
Assistant Secretary for Immigration Policy, Office of Strategy, Policy,
and Plans, U.S. Department of Homeland Security; telephone (202) 447-
3459 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Legal Authority
III. Provisions of the Final Rule
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Proposed Rule
1. General Support for the Proposed Rule
C. Legal Authority and Background
1. DHS Legal Authority
2. DHS's Justification, Background, and Statements on the Need
for the Rule
3. Other/General Comments on Legal Authority and Background
D. Proposed Application of Mandatory Bars
1. Noncitizens in Credible Fear Screenings (8 CFR 208.30)
2. Noncitizens Subject to Circumvention of Lawful Pathways
Presumption of Ineligibility, Statutory Withholding Screen (8 CFR
208.33)
3. Inclusion of Specific Bars (e.g., Particularly Serious Crimes
Bar, Security Bar)
4. Exclusion of Specific Bars (e.g., ``Firm Resettlement Bar,''
INA Secs. 208(a)(2), (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2),
(b)(2)(A)(vi))
5. Exclusion of CAT Screenings (Withholding of Removal) (8 CFR
208.30(e)(3), 208.33(b)(2)(i))
6. Other/General Comments on the Application of Bars
7. Screening Procedures, AO Determinations, Immigration Judge
Review of Negative Fear Determinations (e.g., Discretionary vs.
Requirement, Guidance, Cases Where Bars Are Outcome-Determinative)
8. Burden of Proof
9. Other General/Mixed Feedback and Suggested Alternatives
E. Other Issues Relating to the Rule
1. Coordination With DOJ in the Rulemaking
2. Security Bars and Processing Rulemaking
3. Out of Scope Comments
F. Statutory and Regulatory Requirements
1. Administrative Procedure Act
2. Regulatory Impact Analysis Impacts and Benefits (E.O. 12866
and E.O. 13563)
3. Paperwork Reduction Act (e.g., Comments on Forms and Burden
Estimates)
4. Other/General Comments on Statutory and Regulatory
Requirements (e.g., Unfunded Mandates Reform Act, Federalism, Civil
Justice Reform, Family Assessment, Indian Tribal Governments,
Protection of Children from Environmental Health and Safety Risks,
National Environmental Policy Act)
5. Out of Scope
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act (RFA)
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks)
J. National Environmental Policy Act (NEPA)
K. Paperwork Reduction Act (PRA)
I. Background
A. Mandatory Bars NPRM
On May 13, 2024, DHS issued a notice of proposed rulemaking (NPRM)
that proposed to allow AOs to consider the potential applicability of
certain bars to asylum and statutory withholding of removal during
certain credible and reasonable fear screenings. Application of Certain
Mandatory Bars in Fear Screenings, 89 FR 41347 (May 13, 2024).
Following careful consideration of public comments received, the
Department has not made substantive modifications to the regulatory
text proposed in the NPRM, 89 FR 41347 (May 13, 2024), but has made
clarifying amendments. The rationale and the reasoning provided in the
proposed rule preamble remain valid, except where a new or supplemental
rationale is reflected in this Final Rule.
B. Securing the Border
After DHS issued the NPRM, on June 3, 2024, the President signed
Presidential Proclamation 10773, Securing the Border, 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 suspending and limiting the entry of such
noncitizens. 89 FR 48487, 48487-91 (June 7, 2024) (``June 3
Proclamation''). The June 3 Proclamation directed DHS and DOJ to
promptly consider issuing any regulations ``as may be necessary to
address the circumstances at the southern border, including any
additional limitations and conditions on asylum eligibility that they
determine are warranted, subject to any exceptions that they determine
are warranted.'' 89 FR at 48491 (sec. 3(d)).
DHS and DOJ subsequently published an Interim Final Rule (IFR) on
June 7, 2024, during the comment period of this rule, to implement the
policies and objectives of the June 3 Proclamation. 89 FR 48710 (June
7, 2024) (Securing the Border IFR). The Securing the Border IFR
effectuated three key changes to the process for those 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; (2) rather than asking specific questions of every
noncitizen encountered and processed for expedited removal, providing
general notice regarding the process for seeking asylum and related
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
[[Page 103371]]
asylum purposes because of the IFR's limitation on asylum eligibility,
screening for statutory withholding of removal and CAT protection under
a ``reasonable probability'' standard. Id. at 48718. In the credible
fear screening context, if there is not a significant possibility that
the noncitizen could demonstrate that the limitation on asylum
eligibility does not apply to them or could demonstrate by a
preponderance of the evidence that they are eligible for an exception
to the limitation (i.e., there is not a significant possibility that
the noncitizen could establish eligibility for asylum), the AO will
enter a negative credible fear determination with respect to the
noncitizen's asylum claim. 8 CFR 208.35(b)(1). The AO then screens the
noncitizen for statutory withholding of removal and protection under
CAT by determining whether there is a reasonable probability the
noncitizen would face persecution or torture in the country (or
countries) of removal. 8 CFR 208.35(b)(2). The reasonable probability
standard is defined as ``substantially more than a `reasonable
possibility' but somewhat less than more likely than not.'' 8 CFR
208.35(b)(2)(i).
On September 27, 2024, the President issued a proclamation amending
the June 3 Proclamation. 89 FR 80351 (Oct. 2, 2024) (September 27
Proclamation). The September 27 Proclamation amended the calculations
for when the suspension and limitation on entry established in the June
3 Proclamation would be discontinued, continued, or reactivated. Id. On
October 7, 2024, the Departments published a final rule responding to
public comments on the IFR and implementing changes that parallel those
made in the September 27 Proclamation. Securing the Border Final Rule,
89 FR 81156 (Oct. 7, 2024) (Securing the Border final rule).\1\
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\1\ This rule refers generally to the ``Securing the Border
rule'' when it is not necessary to specify between the Securing the
Border IFR or Securing the Border final rule.
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II. Legal Authority
The Secretary of Homeland Security's (Secretary) authority for this
rule is found in various provisions of the Immigration and Nationality
Act (INA), 8 U.S.C. 1101 et seq., as amended by the Homeland Security
Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, as amended. The
INA 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 the President or other agencies. INA sec. 103(a)(1), 8
U.S.C. 1103(a)(1). The INA also authorizes the Secretary to establish
regulations and take other actions ``necessary for carrying out'' the
Secretary's authority to administer and enforce the immigration laws.
INA secs. 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6
U.S.C. 202 (authorities of the Secretary), 271(a)(3) (conferring
authority on U.S. Citizenship and Immigration Services (USCIS) Director
to establish ``policies for performing [immigration adjudication]
functions'').
Under the INA, DHS has authority to adjudicate asylum applications
and to conduct credible fear interviews, make credible fear
determinations in the context of expedited removal, and to establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA sec. 103(a)(1),
(a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 208(b)(1)(A), (d)(1),
(d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (d)(1), (d)(5)(B); INA sec.
235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also 6 U.S.C. 271(b)
(providing for the transfer of the Commissioner of Immigration and
Naturalization's functions relating to adjudication of asylum and
refugee applications 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, the Secretary has delegated some of those
authorities to the Director of USCIS. USCIS AOs conduct credible fear
interviews, make credible fear determinations, and determine whether a
noncitizen's \2\ asylum application should be granted, all of which are
subject to review by a supervisory AO. See DHS, Delegation to the
Bureau of Citizenship and Immigration Services, No. 0150.1 (June 5,
2003); 8 CFR 208.2(a), 208.9, 208.14(b), 208.30(b), (e)(6)(i), (e)(8).
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\2\ For purposes of this preamble, DHS uses the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA. See INA sec. 101(a)(3), 8 U.S.C. 1101(a)(3); Barton
v. Barr, 590 U.S. 222, 226 n.2 (2020).
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The INA also authorizes the Secretary and Attorney General to
publish regulatory amendments governing their respective roles
regarding inspection and admission, detention and removal, withholding
of removal, and deferral of removal. See INA secs. 235, 236, 241, 8
U.S.C. 1225, 1226, 1231.
The United States is a party to the 1967 Protocol Relating to the
Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of
the Refugee Convention generally prohibits parties to the Convention
from expelling or returning (``refouler'') ``a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.'' Id.
Congress has implemented U.S. non-refoulement obligations under the
1967 Protocol through the INA, as amended by the Refugee Act of 1980,
Public Law 96-212, 94 Stat. 102, extending the form of protection from
removal now known as statutory withholding of removal. See INA sec.
241(b)(3), 8 U.S.C. 1231(b)(3) (formerly 8 U.S.C. 1253(h) (1952)); see
also 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), which provides that a noncitizen may not be
removed to a country where their life or freedom would be threatened
because of one of the protected grounds listed in Article 33 of the
Refugee Convention. See INA sec. 241(b)(3), 8 U.S.C. 1231(b)(3), 8 CFR
208.16, 1208.16; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 429-30
(1987) (discussing the statutory precursor to section 241(b)(3) of the
INA--former section 243(h), 8 U.S.C. 1253(h) (1952)); INS v. Stevic,
467 U.S. 407, 414-22 (1984) (same). 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 sec. 103(a)(1) and (3), (g)(1) and (2), 8 U.S.C. 1103(a)(1) and
(3), (g)(1) and (2).
DHS and DOJ also have authority to implement U.S. obligations under
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, December 10, 1984, S. Treaty Doc.
No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov.
20, 1994) (CAT). The Foreign Affairs Reform and Restructuring Act of
1998 (FARRA) provides the Secretary with the authority to ``prescribe
regulations to implement the obligations of the United
[[Page 103372]]
States under Article 3 of the [CAT], subject to any reservations,
understandings, declarations, and provisos contained in the United
States Senate resolution of ratification of the Convention.'' Public
Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C.
1231 note). DHS and DOJ have implemented U.S. obligations under Article
3 of the CAT in their respective immigration regulations, consistent
with FARRA. See, e.g., 8 CFR 208.16(c) through 208.18, 1208.16(c)
through 1208.18; 64 FR 8478 (Feb. 19, 1999) (``Regulations Concerning
the Convention Against Torture''), as corrected by 64 FR 13881 (Mar.
23, 1999).
Overall, this rule is authorized because Congress has conferred
upon the Secretary express rulemaking power to create certain
procedures for screening for and adjudicating asylum claims. INA sec.
103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 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
sec. 235(b)(1), 8 U.S.C. 1225(b)(1).
III. Provisions of the Final Rule and Revisions From the NPRM
The rule amends provisions at 8 CFR 208.30(e), 208.31, and
208.33(b) that effectuate the following changes to the credible fear
and reasonable fear screening procedures:
<bullet> The rule provides AOs the discretion to consider mandatory
bars to asylum under INA sec. 208(b)(2)(A)(i)-(v), 8 U.S.C.
1158(b)(2)(A)(i)-(v) or to statutory withholding of removal under INA
sec. 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (mandatory bars) in credible
fear screenings if the AO finds the noncitizen is able to establish a
credible fear of persecution but not a credible fear of torture.
<bullet> The rule provides that when the mandatory bars are
considered, the AO will find a noncitizen to have a credible fear of
persecution if there is a significant possibility that the noncitizen
can establish eligibility for asylum or withholding of removal,
including the AO's determination that no bar applies or will be applied
by the AO in that case.
<bullet> The rule allows AOs to enter a negative credible fear
finding with regard to the noncitizen's eligibility for asylum or
withholding of removal under INA sec. 208, 8 U.S.C. 1158, INA sec.
241(b)(3), 8 U.S.C. 1231(b)(3), or 8 CFR 208.16(c) if the AO determines
there is not a significant possibility the noncitizen would be able to
establish by a preponderance of the evidence that the mandatory bars do
not apply.
<bullet> The rule provides AOs the discretion to consider mandatory
bars when conducting credible fear screenings under the additional
procedures in 8 CFR 208.33(b)(2).
<bullet> The rule provides that DHS will issue a Form I-862, Notice
to Appear, if an AO conducting a credible fear screening under the
additional procedures in 8 CFR 208.33(b)(2) determines that the
noncitizen established a reasonable possibility of persecution with
respect to the identified country or countries of removal and, to the
extent bars were considered, that there is a reasonable possibility
that none of the mandatory bars apply, or if the noncitizen established
a reasonable possibility of torture.
<bullet> The rule provides that an AO will enter a negative
credible fear determination when conducting a credible fear screening
under the additional procedures in 8 CFR 208.33(b)(2) if the AO
determines that the noncitizen failed to show a reasonable possibility
that a mandatory bar does not apply and was unable to demonstrate a
reasonable possibility of torture.
<bullet> The rule provides AOs the discretion to consider mandatory
bars to statutory withholding of removal under INA sec. 241(b)(3)(B), 8
U.S.C. 1231(b)(3)(B), in reasonable fear screenings.
<bullet> The rule provides that, if an AO considers the mandatory
bars to statutory withholding of removal under INA sec. 241(b)(3)(B), 8
U.S.C. 1231(b)(3)(B), a noncitizen will be found to have a reasonable
fear of persecution if there is a reasonable possibility that the
noncitizen would be persecuted on account of their race, religion,
nationality, membership in a particular social group or political
opinion, and the noncitizen has established a reasonable possibility
that no bar applies.\3\
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\3\ As described in the NPRM, this rule makes a non-substantive
change to 8 CFR 208.31(g) and replaces the last sentence of 8 CFR
208.31(g) and paragraphs (g)(1)-(2). 89 FR at 41355 n.39. Because
those provisions describe the procedures for immigration judge
review of an AO's reasonable fear finding and are duplicative with
the corresponding provision governing immigration court procedures
at 8 CFR 1208.31(g), they are not needed in the DHS regulations in
chapter I of title 8 of the CFR. Accordingly, this rule replaces
those provisions in 8 CFR 208.31(g) with a short statement that
informs the reader that the immigration judge review procedures are
set forth at 8 CFR 1208.31(g).
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This Final Rule makes the following clarifying edits to the
regulatory text proposed in the NPRM:
<bullet> The rule adds the phrase ``in a proceeding on the merits''
to 8 CFR 208.30(e)(5)(ii)(A) and (B) to clarify how AOs will apply in
credible fear screenings the ``significant possibility'' standard with
respect to mandatory bars to asylum and statutory withholding of
removal, that is, by determining whether there is a significant
possibility that, in a proceeding on the merits, the noncitizen would
be able to establish by a preponderance of the evidence that such
bar(s) do not apply.
<bullet> The rule removes the phrase ``persecution or'' from the
last sentence of 8 CFR 208.31(c) to clarify that the sentence concerns
``reasonable fear of torture'' only, as ``reasonable fear of
persecution'' is defined earlier in the paragraph.
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
In response to the proposed rule, DHS received 4,293 comments
during the 30-day public comment period. Approximately 3,864 of the
comments were letters submitted through mass mailing campaigns, and 297
comments were unique submissions. Primarily, individuals and anonymous
entities submitted comments, as did multiple advocacy groups and legal
services providers. Other commenters included attorneys, religious and
community organizations, elected officials, and research and
educational institutions, among others.
Comments received during the 30-day comment period are organized by
topic below. DHS reviewed the public comments received in response to
the proposed rule and addresses relevant comments in this Final Rule,
grouped by subject area. DHS does not address comments seeking changes
in U.S. laws, regulations, or agency policies that are unrelated to the
changes made by this rule. This Final Rule does not resolve issues that
are outside the scope of this rulemaking. A brief summary of comments
DHS deemed to be out of scope or unrelated to this rulemaking, making a
substantive response unnecessary, is provided at the end of the
section. Comments may be reviewed at <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
docket number USCIS-2024-0005.
Following careful consideration of public comments received, DHS in
this Final Rule has not made substantive modifications to the
regulatory text proposed in the NPRM but has made clarifying edits as
described in Part III above. The rationale for the proposed rule and
the reasoning provided in the background section of that rule remain
valid with respect to the regulatory
[[Page 103373]]
amendments made by this Final Rule, except where a new or supplemental
rationale is reflected in this Final Rule.
B. General Feedback on the Proposed Rule
1. General Support for the Proposed Rule
a. Positive or Minimal Impacts on Noncitizens and Their Support Systems
Comment: A commenter said that the proposed rule would not increase
the risk of erroneous denials, stating that most of the people
requesting asylum are economic migrants.
Response: DHS appreciates the commenter's support for the rule and
agrees that the rule will not increase the risk of erroneous
determinations. DHS believes the rule will result in AOs issuing
negative fear determinations in certain cases where there is evidence
that a mandatory bar applies to a noncitizen, there is a lack of
evidence that the bar should not be applied (e.g., due to an exception
to the bar or the application of an exemption to the bar, such as an
exemption applied pursuant to INA sec. 212(d)(3)(B)(i), 8 U.S.C.
1182(d)(3)(B)(i)) and the noncitizen is not otherwise able to establish
a positive fear of torture at the applicable standard. The rule will
provide the Department greater flexibility to quickly screen out
noncitizens with non-meritorious protection claims and swiftly remove
noncitizens who present a national security or public safety concern.
The Department does not otherwise rely on the commenter's assertion--
that most people requesting asylum are economic migrants--as a
justification for the rule.
b. Positive Impacts on Immigration System and Government Operations and
Resources
Comment: Some commenters expressed support for the proposed rule
and were concerned about abuse of the asylum system. These commenters
expressed concern about fraudulent asylum claims and high levels of
unlawful entry. These commenters also believe that noncitizens are
exploiting the immigration processes and that application of the
mandatory bars at the screening stage will eliminate removal delays.
One commenter stated that AOs are capable of assessing mandatory bars
at the credible fear stage and that AOs are well-trained in asylum law.
One comment supported the proposed rule, agreeing that it will help
avoid unnecessary detention of noncitizens and enhance public safety.
Response: DHS appreciates the commenters' support for the rule. DHS
believes it is appropriate to authorize additional procedures by which
to deliver swift decisions on non-meritorious claims and consequences
for irregular migration,\4\ rather than allowing ineligible individuals
to further tax limited resources. DHS agrees that AOs are highly
capable of assessing mandatory bars at the credible fear screening
stage, as well as the reasonable fear screening stage, based on their
specialized training in asylum law, including in applying mandatory
bars.\5\
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\4\ In this preamble, ``irregular migration'' refers to the
movement of people into another country without authorization.
\5\ See, e.g., USCIS, ``RAIO Directorate--Officer Training:
Mandatory Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer
Training: Definition of Persecution and Eligibility Based on Past
Persecution'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer
Training: Nexus and the Protected Grounds'' (Apr. 24, 2024); USCIS,
``RAIO Directorate--Officer Training: Well-Founded Fear'' (Apr. 24,
2024).
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DHS agrees with the commenter that the rule will help avoid
unnecessary detention and enhance public safety by prioritizing the
speedy removal of noncitizens who may pose security threats.
Noncitizens who may have otherwise remained in detention throughout the
immigration court process for a full adjudication on the merits of
their claim, despite the existence of easily verifiable evidence
showing that they would be subject to a mandatory bar, will be quickly
removed, thereby conserving the government's detention capacity.
2. General Opposition to the Proposed Rule
a. Conflicts With Humanitarian Values
Comment: Numerous commenters expressed concerns that the rule
conflicts with humanitarian values. These commenters asserted that U.S.
immigration policy should embody the values of compassion and
humanitarianism and affirm the right to asylum and that the rule does
not do so. These commenters stated that the rule would violate the
international and universal right to safety and asylum. These
commenters also stated that the rule is immoral and contrary to U.S.
values, as they believe it would return asylum seekers to countries
without meaningful protection and where they would still be in harm's
way. These commenters believe the rule would contradict the United
States' long-standing history of welcoming immigrants and supporting
the international asylum system. Several commenters believe the
proposed rule would have negative impacts on asylum seekers who are at
risk of persecution in their home countries and have experienced
hardships to reach the border. Another commenter stated that the
proposed rule undermines the current asylum system and could send
noncitizens with legitimate asylum claims back to danger. A few
commenters said that the right to seek asylum is crucial to the safety
and justice of all people, and that the immigration system should be
more welcoming instead of limiting asylum access. Other commenters
remarked that the asylum system needs to be reformed to make it fair
and just because denying asylum could endanger those who are seeking
safety. Another commenter stated that people do not willingly leave
their homes and family to seek asylum. Some commenters believe that
U.S. policies have created the conditions in other countries that force
individuals to flee from their homes. Some commenters believe that
deterrence policies and detention of noncitizens seeking asylum is
immoral and that the rule is based on racism and xenophobia. One
commenter believes the rule would serve more as a barrier to asylum
than as a measure to protect U.S. national security.
Response: DHS disagrees with these commenters' claims concerning
the rule. This rule focuses on enhancing DHS's ability to swiftly
remove noncitizens who are ineligible for asylum and statutory
withholding of removal and are enforcement priorities: those who
present a threat to national security or public safety, while
maintaining DHS's authority to create and implement safe, orderly, and
humane migration pathways. As explained in the NPRM, the population to
which this rule will apply is likely to be relatively small, as
informed by the number of cases identified as potentially implicating
mandatory bars that are flagged by USCIS during screenings.\6\ The U.S.
government has implemented, and will continue to implement, a number of
measures designed to enhance and expand lawful pathways and processes
for noncitizens seeking to enter the United States, including to seek
asylum. Examples of lawful pathways include: the Uniting for Ukraine
process, which allows Ukrainian nationals to receive humanitarian
parole into the United States, enabling them to travel by air to the
United States and be resettled; \7\ the multilateral Safe Mobility
initiative, currently operating in Colombia, Costa Rica, Ecuador, and
Guatemala, which
[[Page 103374]]
provides access to information and education about other lawful
pathways to the United States and partner countries, local integration,
and, for eligible individuals, expedited refugee processing to the
United States; \8\ the new processes for up to 30,000 Cuban, Haitian,
Nicaraguan, and Venezuelan (CHNV) nationals per month to apply for
advance authorization to seek parole into the United States, enabling
them to travel by air to the United States; \9\ and country-specific
family reunification parole processes for certain nationals of
Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras
who have U.S. citizen relatives in the United States.\10\ DHS and its
interagency partners have also increased H-2B nonimmigrant visa
availability \11\ and refugee processing for countries within the
Western Hemisphere.\12\ Noncitizens who do not avail themselves of
these pathways can schedule an appointment through the Customs and
Border Protection (CBP) One app, a scheduling tool used by noncitizens
to present themselves at a southwest land border port of entry (POE)
\13\ The use of the CBP One app for scheduling has contributed to U.S.
Customs and Border Protection's efforts to expand its southwest border
POE migrant processing capacity well beyond the 2010-2016 daily POE
average,\14\ resulting in increased access for noncitizens to POEs.
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\6\ 89 FR 41347, 41351-52 (May 13, 2024).
\7\ See U.S. Citizenship and Immigration Services, Uniting for
Ukraine, <a href="https://www.uscis.gov/ukraine">https://www.uscis.gov/ukraine</a> (last visited Sept. 25,
2024).
\8\ U.S. Dep't of State, Safe Mobility Initiative, <a href="https://www.state.gov/refugeeadmissions/safe-mobility-initiative">https://www.state.gov/refugeeadmissions/safe-mobility-initiative</a> (last
visited Aug. 23, 2024); The White House, Fact Sheet: Biden-Harris
Administration on World Refugee Day Celebrates a Rebuilt U.S.
Refugee Admissions Program, June 20, 2024, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/</a> (last visited
Aug. 29, 2024).
\9\ See U.S. Citizenship and Immigration Services, Processes for
Cubans, Haitians, Nicaraguans, and Venezuelans, <a href="https://www.uscis.gov/CHNV">https://www.uscis.gov/CHNV</a> (last visited Sept. 25, 2024).
\10\ See generally U.S. Citizenship and Immigration Services,
Family Reunification Parole Processes, <a href="https://www.uscis.gov/FRP">https://www.uscis.gov/FRP</a>
(last visited Aug. 23, 2024).
\11\ See, e.g., 88 FR 80394 (Nov. 17, 2023) (authorizing up to
64,716 additional H-2B nonimmigrant visas for Fiscal year 2024).
\12\ See Memorandum on Presidential Determination on Refugee
Admission for Fiscal Year 2024, Presidential Determination No. 2023-
13 (Sept. 29, 2023) (providing for the admission of 35,000-50,000
refugees from the Latin America/Caribbean region to the United
States during Fiscal Year (FY) 2024); Memorandum on Presidential
Determination on Refugee Admission for Fiscal Year 2025,
Presidential Determination No. 2024-13 (Sept. 30, 2024) (providing
for the admission of 35,000-50,000 refugees from the Latin America/
Caribbean region to the United States during FY 2025).
\13\ See CBP, ``CBP One<SUP>TM</SUP> Mobile Application,''
<a href="https://www.cbp.gov/about/mobile-apps-directory/cbpone">https://www.cbp.gov/about/mobile-apps-directory/cbpone</a> (last visited
Aug. 14, 2024).
\14\ See CBP STAT Division, ``U.S. Customs and Border Protection
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of
Field Operations (OFO) Daily Average'' (internal data report,
retrieved Apr. 13, 2023).
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b. Due Process Concerns
Comment: Many commenters expressed general due process concerns.
Commenters stated that individual due process protections are critical
and that, under the proposed rule, DHS would undermine or abandon due
process in order to expedite the asylum process. Commenters stated that
to alleviate due process concerns, the Department should refrain from
implementing the rule.
Response: The Department disagrees with these commenters' claims
concerning due process. This rule does not affect the provisions that
address who DHS may refer for a credible fear screening or reasonable
fear screening. See INA sec. 235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii), 8 CFR 235.3(b)(4), 8 CFR 235.15(b)(4), 208.30(b),
and 208.31(b). This rule does not impinge noncitizens' statutory right
to representation in the credible and reasonable fear processes. See,
e.g., 8 CFR 208.30(d)(4),8 CFR 208.31(c), 8 CFR 235.15(b)(4)(i)(B).
Additionally, noncitizens in credible fear may continue to consult with
persons of their choosing. 8 CFR 208.30(d)(4); 8 CFR
235.15(b)(4)(i)(B). Further, the rule does not alter the preexisting
rights or opportunities for noncitizens in credible or reasonable fear
proceedings to seek immigration judge review of negative credible fear
or reasonable fear determinations. See 8 CFR 208.30(g)(1), 208.31(g),
208.33(b)(2), 208.35(b)(2) 1003.42, 1208.31(g), 1208.33(b).
Accordingly, the rule preserves noncitizens' process rights as provided
in the INA. See DHS v. Thuraissigiam, 591 U.S. 103, 140 (2022)
(reaffirming that noncitizens who arrive at U.S. ports of entry or are
encountered shortly after unlawfully crossing the U.S. border and are
placed in expedited removal proceedings, including those in the
credible fear screening process, have ``only those rights regarding
admission that Congress has provided by statute'').
Comment: Many commenters expressed concerns regarding access to
legal counsel under the proposed rule. Commenters voiced concerns that
the rule would inhibit access to legal counsel. Commenters noted that
the credible fear process occurs shortly after individuals reach the
United States, and they lack access to an attorney or have experienced
trauma. Commenters also noted that individuals in the asylum process
need sufficient time to find legal counsel and that as a result of the
proposed rule, individuals would not be able to pass the initial
credible fear screening and would be removed before even being able to
secure legal representation. Some commenters pointed to the low
representation rates of detained asylum seekers stemming from the
reliance on telephone access from remote detention facilities to obtain
counsel and the rapid timelines associated with screening
determinations. Commenters believe that attempts to provide legal
representation to detained individuals in screenings have been
compromised or obstructed. A commenter said that it is hard to
establish a credible fear of persecution and some noncitizens are not
prepared to address the nuances asked of them in screenings; thus, they
need lawyers to help them understand the law. Several commenters
remarked on the particular need for access to counsel if AOs were to
consider mandatory bars because challenging the applicability of a bar
would be difficult without an attorney. A commenter stated that every
noncitizen whose case is flagged with a possible mandatory bar should
be notified of their right to counsel and allowed time to secure an
attorney, and contrasted the reported difficulty of securing an
attorney during the expedited removal process with the relative ease of
doing so in section 240 removal proceedings.
Response: The Department disagrees with the commenters' claims that
this rule inhibits access to counsel. As an initial matter, because
this rule does not alter procedures governing consultation or
representation, commenters' concerns regarding those issues are outside
the scope of this rulemaking. Procedures regarding consultation and
representation are governed by other DHS regulations, guidance, and
policies. See 8 CFR 235.3(b)(4)(ii); 208.30(d)(4), 8 CFR 208.31(c).
This rule does not amend the pre-existing rights of noncitizens
regarding their rights to representation during fear screenings.
Specifically, during credible fear screenings, the INA provides that a
noncitizen ``may consult with a person or persons of the [noncitizen]'s
choosing prior to the interview or any review thereof, according to
regulations prescribed by the Attorney General,'' provided that
``[s]uch consultation shall be at no expense to the Government and
shall not unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8
U.S.C. 1225(b)(1)(B)(iv). This statutory right to consult does not
attach until a noncitizen becomes eligible for a
[[Page 103375]]
credible fear interview, and it does not guarantee an absolute right to
retain counsel. See id. The credible fear review regulations further
provide that a noncitizen ``may consult with a person or persons of the
[noncitizen's] choosing prior to the interview or any review thereof,''
``[s]uch consultation shall be at no expense to the Government and
shall not unreasonably delay the process,'' and that the person(s) with
whom the noncitizen consulted ``may be present at the interview and may
be permitted, in the discretion of the asylum officer, to present a
statement at the end of the interview.'' 8 CFR 208.30(d)(4). During the
reasonable fear screening process, individuals may be represented by an
attorney or an accredited representative at no cost to the government.
Individuals who may be subject to a mandatory bar will have the
opportunity to show that the bar does not apply during the screening
interview. Credible fear and reasonable fear screening determinations
are based on non-adversarial interviews that occur in an expedited
manner, such that the scope of representation is necessarily limited
when compared to a lengthy adversarial hearing before EOIR. In addition
to substantive training on applying mandatory bars, AOs receive
training and have practical experience conducting non-adversarial
interviews, eliciting testimony, working with interpreters, cross-
cultural communication, and working with vulnerable populations.\15\
AOs regularly assess the mandatory bars in affirmative asylum
adjudications and asylum merits interviews (AMIs); therefore, it is not
unusual for AOs to consider these issues. Accordingly, AOs are well-
suited in a screening interview to develop the record regarding a
potential mandatory bar and to ensure the noncitizen has an opportunity
to provide evidence as to why a given bar does not apply at the
appropriate standard of proof. Moreover, all credible fear and
reasonable fear determinations are reviewed by a supervisory AO for
procedural and substantive accuracy and completeness before becoming
final.\16\ DHS also believes that the non-adversarial nature of
credible fear and reasonable fear screenings, in contrast with
adversarial section 240 removal proceedings, sufficiently mitigates the
commenters' concerns about the more compressed timeframe noncitizens
have to secure an attorney during the expedited removal process, and
challenges of accessing counsel in detention.
---------------------------------------------------------------------------
\15\ See USCIS, RAIO Directorate--Officer Training: Mandatory
Bars (May 9, 2013); USCIS, RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working with an Interpreter (Apr.
24, 2024); USCIS, RAIO Directorate--Officer Training: Cross-Cultural
Communication and Other Factors That May Impede Communication at an
Interview (Apr. 24, 2024); USCIS, RAIO Directorate--Officer
Training: Interviewing Survivors of Torture and Other Severe Trauma
(Apr. 24, 2024).
\16\ See 8 CFR 208.30(e)(8); see also Memorandum for the Record,
from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations
Directorate, USCIS, Re: Asylum Division Training, Staffing,
Capacity, and Credible Fear Procedures (Sept. 26, 2024).
---------------------------------------------------------------------------
Finally, DHS disagrees that the consideration of mandatory bars is
categorically more complex than the consideration of the full array of
issues that are currently presented in screening cases on a routine
basis. For example, determining whether a noncitizen's testimony is
credible, whether harm experienced or feared was or would be inflicted
on account of a protected ground, or whether torture feared would be
inflicted with the consent or acquiescence of a person acting in an
official capacity are all potentially complex issues that AOs regularly
consider and analyze in fear screenings. As such, and in view of AOs'
training and experience previously described, the Department does not
agree that a noncitizen's ability to obtain counsel for such an
interview presents new or greater concerns than those presented by a
screening interview where mandatory bars are not considered.
Comment: A commenter expressed concern that AOs would rely on
evidence such as Interpol Red Notices issued by authoritarian regimes
as a basis for considering the applicability of bars.
Response: The Department has implemented measures to combat the
impact of abusive or unwarranted INTERPOL notices separate and apart
from this rule. For example, DHS has issued internal guidance on the
appropriate handling of INTERPOL notices that are suspected of having
been issued by a country for the purpose of persecuting an individual
or otherwise appear to be prohibited or noncompliant.
Comment: A few commenters expressed concern regarding the ability
to collect and present evidence during credible fear screenings. The
commenters stated that the inability to compile evidence would
adversely impact noncitizens, as they would not be able to gather
evidence disputing the application of a bar. Commenters stated that
consideration of the bars to asylum and statutory withholding of
removal in credible fear or reasonable fear interviews does not afford
an asylum seeker the opportunity to present the extensive evidence
needed to rebut a finding that one of the asylum bars applies.
Commenters stated that the expedited removal process does not afford
sufficient opportunity for noncitizens to gather the evidence needed to
demonstrate a bar does not apply to them and that the rule would
require noncitizens to understand highly complex bars to eligibility
that newly arriving people cannot be expected to understand. Commenters
asserted that often, the evidence these bars apply comes from
unverified or difficult-to-verify sources. Several commenters opposed
the proposed rule on the basis that detained noncitizens in expedited
removal proceedings would have difficulty discussing or adequately
defending themselves against the application of mandatory bars because
of the effect of trauma resulting from past harm or their journey to
the United States, hunger, and linguistic or cultural barriers.
Response: The Department disagrees that this rule would negatively
impact noncitizens in this manner. AOs have a duty to elicit all
relevant and useful information on a fear claim. See, e.g., 8 CFR
208.30(d). Credible testimony alone may be the basis of a positive fear
determination without the need for any corroborative documentary
evidence. Where an AO exercises discretion to consider a mandatory bar
in a fear screening, the AO will provide the noncitizen with an
opportunity to present evidence that the bar does not apply, and
credible testimony alone may be sufficient evidence to make that
showing. As noted above, AOs have training and experience in the
substantive application of mandatory bars and in non-adversarial
interviewing and eliciting testimony and are therefore well-positioned
to develop and evaluate the record in such cases, including weighing
the reliability and probative value of available evidence.\17\ Further,
all credible fear and reasonable fear determinations undergo
supervisory review prior to service.
---------------------------------------------------------------------------
\17\ See USCIS, RAIO Directorate--Officer Training: Mandatory
Bars (May 9, 2013); USCIS, RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024).
---------------------------------------------------------------------------
Noncitizens undergoing fear screenings where a bar is considered
would be able to demonstrate that the bar does not apply at the
relevant standard. For example, in credible fear under 8 CFR 208.30, a
noncitizen must
[[Page 103376]]
demonstrate that there is a significant possibility that they could
establish that the bar does not apply by a preponderance of evidence at
a future proceeding. Similarly, noncitizens would need to establish a
reasonable possibility that the bar does not apply in credible fear
screenings under 8 CFR 208.33, or in reasonable fear screenings under 8
CFR 208.31, and noncitizens need to establish a reasonable probability
that the bar does not apply in credible fear screenings conducted under
8 CFR 208.35. The screening standards themselves ensure a fair process
in that the noncitizen need only meet the significant possibility,
reasonable possibility, or reasonable probability standard in order to
pass through the screening process. These standards, which are either
lower or the same as the standards that apply in full adjudications of
asylum and statutory withholding of removal requests, do not require
the presentation of the same extent of evidence that would be needed in
a full merits hearing or interview. Furthermore, this rule does not
create a complicated process requiring full evidence gathering and
determinations to be made on possible bars to eligibility. Rather, AOs
will only consider a bar in those cases where there is easily
verifiable (as opposed to unverified or difficult-to-verify) evidence
available to the AO that, in their discretion, warrants an inquiry into
a bar, and the AO can consider that bar efficiently at the screening
stage. AOs are trained to elicit all relevant testimony in a non-
adversarial manner \18\ to ensure noncitizens have a fair opportunity
to provide any evidence necessary to evaluate their claim, which under
this rule may include the applicability of any bars or the availability
of any exceptions or exemptions.
---------------------------------------------------------------------------
\18\ See USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony'' (Dec. 20, 2019).
---------------------------------------------------------------------------
DHS rejects the notion that it is categorically more difficult for
a noncitizen to discuss issues surrounding mandatory bars than it is to
discuss other issues that are already the subject of screening
interviews. AOs are trained to work with noncitizens who are
experiencing the effects of trauma and to communicate across cultural
and linguistic barriers.\19\ AOs routinely interview noncitizens in
protection screening interviews on matters that many find challenging
to discuss, including torture, sexual assault, familial violence, and
the deaths of family members.
---------------------------------------------------------------------------
\19\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing Survivors of Torture and
Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------
The permissive nature of the rule is also well-tailored to a
situation where the noncitizen is unable to testify in depth due to the
effects of trauma, or a situation where the noncitizen may be better
able to provide evidence that a mandatory bar does not apply to them in
a full hearing. As explained in the proposed rule, AOs should only
apply a mandatory bar in a screening interview where there is ``easily
verifiable information'' that the bar may apply, and even then, to only
do so if the inquiry can be done efficiently. 89 FR at 41354. Should
the AO determine that the issue would be better considered at a later
stage, they retain the discretion under this proposed rule to decline
to consider mandatory bars during the screening determination.
Comment: Many commenters expressed concerns regarding the
application of mandatory bars by AOs and officer discretion,
emphasizing that the application of the bars is complex, and asserting
that immigration judges--not AOs--should evaluate the complex legal
issues associated with the application of the mandatory bars. Several
commenters noted that bars to asylum and statutory withholding of
removal can involve complex factual and legal inquiries, with some
pointing out that DHS itself, in a prior rulemaking removing bars from
consideration in credible fear screenings, concluded that such a
``fact-intensive inquiry requiring complex legal analysis [] would be
more appropriate in a full adjudication before an asylum officer or in
section 240 proceedings with the availability of judicial review than
in credible fear screenings.'' 87 FR 18078, 18093 (Mar. 29, 2022)
(``Asylum Processing IFR''). Commenters argued that DHS's
representation that AOs would consider bars only in those cases where
there is easily verifiable evidence available to the AO that in their
discretion warrants an inquiry into a bar and where the AO is confident
that they can consider that bar efficiently is insufficient given the
complexity of this area of the law.
Commenters stated that the bars could be applied incorrectly,
arbitrarily, or unfairly, endangering individuals. Commenters also
stated that the application of bars may be based on evidence from
foreign entities, which U.S. immigration officials cannot independently
verify and which may be inaccurate. Commenters stated that noncitizens
in credible and reasonable fear processes should be subject to the same
rules and that individuals are entitled to a transparent, humane
process. Commenters also stated that AOs could be more likely to issue
negative determinations of credible fear as a result of the proposed
rule, especially if they do not listen to a noncitizen fully or fairly.
A few commenters discussed officer bias or misconduct during the
screening process. Commenters stated that, according to a complaint
filed with the DHS Office for Civil Rights and Civil Liberties, AOs
scheduled credible fear interviews without notifying the attorney of
the interview; incorrectly applied standards when evaluating claims;
used adversarial interview techniques on individuals; subjected
noncitizens to interviews in languages in which they are not fluent;
and failed to provide noncitizens with appropriate language
interpreters. Commenters stated that there would be no mechanisms for
upholding accountability under the proposed rule. Other commenters
stated that the proposed rule would yield an asylum process that is
less consistent and transparent, in part because of the discretion with
which AOs would ask questions, and the lack of consistency and
transparency would thwart efforts to monitor the process.
A commenter asserted that the rule would confuse the role of AOs
during the screening process with that of a final adjudicator.
According to the commenter, although the proposed rule may purport to
avoid adverse outcomes by making the application of the bars at the
fear screening stage discretionary instead of mandatory, the
distinction would be negligible.
Response: The Department disagrees with the claim that only
immigration judges, not both immigration judges and AOs, should
evaluate or apply the mandatory bars. DHS also rejects the notion that
the consideration of mandatory bars is categorically more complex than
the consideration of the full array of issues that AOs address on a
routine basis. AOs regularly assess the mandatory bars in affirmative
asylum adjudications and asylum merits interviews (AMIs); therefore, it
is not unusual for AOs to consider these issues.\20\
---------------------------------------------------------------------------
\20\ As noted in the NPRM, see 89 FR at 41353 n.30, DHS has long
applied in the expedited removal process the ``safe-third-country''
bar to eligibility to apply for asylum at INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A). See 8 CFR 208.30(e)(6).
---------------------------------------------------------------------------
The Department also rejects the assertion that the rule should not
be implemented due to potential officer bias or misconduct in the
interview and
[[Page 103377]]
lack of accountability through the process. AOs are capable of
conducting thorough screening interviews, applying the mandatory bars
when applicable, and maintaining fairness throughout the process, as is
required by their role.\21\ AOs are well trained in asylum law, and all
credible fear and reasonable fear determinations are reviewed by a
supervisory asylum officer (SAO) for accuracy and legal
sufficiency.\22\ As explained above, AOs receive training in and have
experience in non-adversarial interviewing and eliciting testimony, in
addition to substantive training on applying mandatory bars and
experience applying mandatory bars in full asylum adjudications.\23\
---------------------------------------------------------------------------
\21\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing--Working with an
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer
Training: Cross-Cultural Communication and Other Factors That May
Impede Communication at an Interview'' (Apr. 24, 2024).
\22\ See 8 CFR 208.30(e)(8); see also Memorandum for the Record,
from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations
Directorate, USCIS, Re: Asylum Division Training, Staffing,
Capacity, and Credible Fear Procedures (Sept. 26, 2024).
\23\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing--Working with an
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer
Training: Cross-Cultural Communication and Other Factors That May
Impede Communication at an Interview'' (Apr. 24, 2024); USCIS,
``RAIO Directorate--Officer Training: Interviewing Survivors of
Torture and Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------
The Department also rejects the claim that this new process will
confuse the role of the AO with a final adjudicator. At the start of
the screening interview, the AO will introduce themselves and explain
the interview process so as to avoid confusion about roles or
procedures. Noncitizens are also provided with an information sheet on
the credible or reasonable fear process that explains the purpose and
nature of the screening interview, including possible outcomes and what
to expect following the interview. In addition, making a determination
regarding a mandatory bar, when considered, does not make an AO any
more or less of a final adjudicator than making a determination
regarding substantive eligibility, as is currently done and is
unaffected by this rule.
Furthermore, the Department disagrees with the claims that, as a
result of the complexity of analyzing the mandatory bars, AOs may apply
the bars incorrectly or unfairly. Considering the training and
experience AOs possess, they are well-suited to exercise discretion to
apply mandatory bars in the screening context and, where evidence
related to a mandatory bar is too complex to be fully explored in the
screening context, to exercise their discretion not to apply the bar in
the screening determination. AOs will continue to issue positive fear
determinations where a noncitizen demonstrates a credible or reasonable
fear at the applicable screening standard, even where there may be
indicia of a mandatory bar but the available evidence at the screening
stage as to the bar or any available exception or exemption is limited.
DHS acknowledges that properly analyzing bars to asylum and
statutory withholding of removal can involve complicated, extensive
factfinding and legal analysis. Furthermore, some aspects of this area
of law remain unsettled, and different courts have come to different
conclusions on certain legal questions related to these bars. USCIS
Asylum Officers must follow precedent Board of Immigration Appeals
(BIA) and Attorney General decisions, except when they have been
modified or overruled by subsequent decisions of the BIA or the
Attorney General, or there is a conflicting published opinion on the
issue by the U.S. Supreme Court or by the U.S. Court of Appeals with
jurisdiction over the matter.\24\ It is not the case that the
considerations relating to legal analysis hold true in every case in
which a mandatory bar arises. For example, a noncitizen who claims to
fear persecution by the government of Colombia on account of political
opinion, but who credibly testifies to being a current member of the
Revolutionary Armed Forces of Colombia--People's Army, would clearly be
barred from both asylum and withholding of removal pursuant to INA sec.
208(b)(2)(A)(v), 8 U.S.C. 1158(b)(2)(A)(v) and INA sec. 241(b)(3)(B), 8
U.S.C. 1231(b)(3)(B), as a current member of a designated foreign
terrorist organization,\25\ regardless of whether the noncitizen could
demonstrate they are a refugee or would be persecuted on account of a
protected ground if returned to Colombia. DHS disagrees that AOs should
be categorically foreclosed from determining there is no significant
possibility or reasonable possibility such an individual could
establish eligibility for these forms of relief or protection in a full
merits hearing. This rule allows, but does not require, an AO
encountering such a scenario to consider the applicable bar in a fear
screening and to enter a negative determination with regard to the
noncitizen's eligibility for asylum or statutory withholding of
removal, preventing the noncitizen from entering a potentially years-
long immigration court process in pursuit of relief for which they are
ineligible and allowing DHS and EOIR resources that would have been
expended on such processes to be conserved for potentially meritorious
cases.
---------------------------------------------------------------------------
\24\ See 8 CFR 103.10(b), 1003.1(g); see also USCIS, ``RAIO
Directorate--Officer Training: Reading and Using Case Law'' 14
(April 24, 2024).
\25\ See INA secs. 212(a)(3)(B)(i)(V), 237(a)(4)(B), 8 U.S.C.
1182(a)(3)(B)(i)(V), 1227(a)(4)(B); see also 86 FR 68294 (Dec. 1,
2021).
---------------------------------------------------------------------------
Comment: Many commenters expressed concerns with AOs considering
mandatory bars during the fear screening stage, instead of immigration
judges during section 240 removal proceedings. Commenters stated that
applying mandatory bars at the credible fear screening stage would
preclude individuals from a full hearing that would provide them the
opportunity to prepare their cases, present witnesses and evidence, and
allow a court to determine the true nature of foreign convictions,
which are often a part of the persecution that the noncitizen
experienced in their home country for voicing dissent against an
authoritarian government. Commenters stated these decisions should be
made by immigration judges and that individuals should be able to
appear before an immigration judge or have a fair hearing, be it at the
onset of seeking status in the United States or when trying to overturn
an order of removal. Commenters asserted that eliminating hearings at
an earlier stage would deny noncitizens who have strong or pressing
cases and that the proposed rule would increase negative determinations
in credible fear and expedited removals.
Several commenters additionally discussed the accuracy of negative
credible fear determinations, stating that negative credible fear
determinations are often dismissed or reversed after review by an
immigration judge. A commenter referenced multiple examples when courts
have questioned the reliability and value afforded to credible fear
interviews, reasoning that rulings or removal orders have been
overturned in part because of unreliable information elicited during
the interviews. According to the commenter, the proposed rule would
restrict asylum by placing even greater value on screenings that are
already
[[Page 103378]]
unreliable, and the bars would be applied without the safeguards
afforded by section 240 removal proceedings. The commenter further
stated that both the Biden and Trump administrations have distanced
credible fear interviews from the low screening standard framed by
Congress.
Response: The Department disagrees with the claim that the
mandatory bars should only be considered during section 240 removal
proceedings before an immigration judge. As discussed above, AOs
receive training in and have experience in non-adversarial interviewing
and eliciting testimony, in addition to substantive training on
applying mandatory bars and experience applying mandatory bars in full
asylum adjudications.\26\
---------------------------------------------------------------------------
\26\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing--Working with an
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer
Training: Cross-Cultural Communication and Other Factors That May
Impede Communication at an Interview'' (Apr. 24, 2024); USCIS,
``RAIO Directorate--Officer Training: Interviewing Survivors of
Torture and Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------
In addition, the Department disagrees that applying the bars
earlier would preclude noncitizens from fully presenting their case
compared to if the bars were only applied in a subsequent section 240
removal proceeding. Where evidence related to a mandatory bar is too
complex to be fully explored in the screening context or where there is
additional evidence that the noncitizen may not be subject to the bar
because of an exception or exemption, AOs may exercise their discretion
not to apply the mandatory bar in the screening determination. In those
cases, if the noncitizen establishes a fear of persecution or torture
at the applicable standard, the AO will issue a positive determination
so that the bar may be further explored by the immigration judge. Where
there is evidence available to the AO that triggers an inquiry into an
applicable mandatory bar, and the AO determines that they can address
that bar efficiently at the credible fear or reasonable fear interview,
then the AO will give the noncitizen the opportunity to establish, at
the relevant standard, that the bar would not apply. The Department
believes this discretion will ensure that application of the mandatory
bars in fear screenings only occurs in cases where USCIS can
effectively and accurately apply the bar without creating
inefficiencies or frustrating the streamlined nature of the screening
process. This rule will allow AOs to, in their discretion, consider
bars in the issuance of negative fear determinations only in certain
cases where there is sufficient, easily verifiable evidence that a bar
applies to a noncitizen, there is a lack of evidence that no bar
applies or shall be applied, and the noncitizen is not otherwise able
to establish a positive fear of torture at the applicable standard.
Finally, the Department disagrees with comments that question the
accuracy and reliability of the screening interviews and determinations
and the claim that this rule will restrict asylum. AOs are trained to
conduct thorough, fair, and non-adversarial interviews, and AOs play an
integral role in the credible fear and reasonable fear screening
process. Regarding immigration judge review of AOs' credible fear or
reasonable fear determinations, DHS notes that immigration judges have
the authority to conduct de novo review of negative credible fear and
reasonable fear determinations. 8 CFR 1003.42; 8 CFR 1208.31(g).
Otherwise, the procedures for immigration judge decisions vacating
screening determinations are outside the scope of this rulemaking.
Comment: Several commenters objected to the proposed rule on the
basis that the rule would curtail the avenues for review of application
of the mandatory bars. While the noncitizen would be able to seek
review of an AO's negative determination by an immigration judge, they
would not be able to appeal the immigration judge's decision to the
Board of Immigration Appeals (BIA) or the Federal Court system.
Commenters also stated the rule forecloses judicial review.
Commenters wrote that the rule's provisions for immigration judge
review provide insufficient protections against erroneous negative
screening determinations and raise due process concerns. One commenter
indicated immigration judges, who frequently do not cite any law in
their fear review denials, do not have time to devote to in-depth
analysis with an additional layer of complexity added to hearings. A
commenter stated that AOs' credible fear determinations would be
reversed more frequently if immigration judge review included basic due
process protections, such as access to counsel. Another stated
noncitizens might not know that immigration judge review of negative
fear determination is available unless an AO tells them.
Response: Negative screening determinations of all types are
subject to review by an immigration judge. See 8 CFR 208.30(g)(1),
208.31(g), 208.33(b)(2), 208.35(b)(2). Should an immigration judge make
a negative credible fear determination, no appeal of that determination
is available. See 8 CFR 1003.42(f)(2), 8 CFR 1208.31(g)(1). Nothing in
the proposed rule alters these procedures, although the rule would
allow AOs to base a negative determination on the application of a
mandatory bar.
The comments that the rule forecloses review of negative
determinations are incorrect, as the regulations establish procedures
for referring negative determinations for review by an immigration
judge. Noncitizens are provided written notification of their right to
request an immigration judge's review of the AO's credible fear
determination. 8 CFR 235.3(b)(4)(i)(C). Where a noncitizen is issued a
negative credible fear determination, they are served by asylum office
staff with one of the following forms: Form I-869, Record of Negative
Credible Fear Finding and Request for Review by Immigration Judge
(where the negative credible fear determination is issued pursuant to
208.30); Form I-869B, Record of Negative Credible Fear and Reasonable
Possibility Finding and Request for Review by Immigration Judge for
Noncitizens Subject to the Condition on Asylum Eligibility Pursuant to
8 CFR 208.33(a); or Form I-869SB, Record of Negative Credible Fear and
Reasonable Probability Finding and Request for Review by Immigration
Judge for Noncitizens Subject to the Limitation on Asylum Eligibility
Pursuant to 8 CFR 208.35(a). In all negative determinations, the form
is read to the noncitizen aloud at service of the decision in a
language they understand (via an interpreter if necessary) and includes
an explanation of the noncitizen's right to request immigration judge
review of the negative determination, pursuant to 8 CFR 208.30(g)(1),
208.33(b)(2)(iii), or 208.35(b)(2)(iii).\27\ The noncitizen selects on
the Form I-869, Form I-869B, or Form I-869SB, whether they request
immigration judge review of the negative determination and signs the
form, which also includes the signature of the interpreter, where
applicable (or where the interpretation was via a USCIS telephonic
contract interpreter, the interpreter ID number is recorded).\28\
[[Page 103379]]
An immigration officer who refers a noncitizen subject to expedited
removal to an AO for a credible fear interview will provide the
noncitizen with a written disclosure describing, among other things,
the right to request a review by an immigration judge of the AO's
credible fear determination. 8 CFR 235.3(b)(4)(i).
---------------------------------------------------------------------------
\27\ See Memorandum for the Record, from Ted Kim, Assoc. Dir.,
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum
Division Training, Staffing, Capacity, and Credible Fear Procedures
(Sept. 26, 2024).
\28\ See Memorandum for the Record, from Ted Kim, Assoc. Dir.,
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum
Division Training, Staffing, Capacity, and Credible Fear Procedures
(Sept. 26, 2024).
---------------------------------------------------------------------------
Where a noncitizen is issued a negative reasonable fear
determination, they are served by asylum office staff with a Form I-
898, Record of Negative Reasonable Fear Finding and Request for Review
by Immigration Judge, which is read to them aloud in a language they
understand (via an interpreter if necessary) and includes an
explanation of the noncitizen's right to request immigration judge
review of the negative determination, pursuant to 8 CFR 208.31(f)-(g).
The noncitizen selects on the Form I-898 whether they request
immigration judge review and signs the form, which also includes the
signature of the interpreter, where applicable (or where the
interpretation was via a USCIS telephonic contract interpreter, the
interpreter ID number is recorded).\29\
---------------------------------------------------------------------------
\29\ See USCIS, ``Reasonable Fear Procedures Manual,'' Section
III, <a href="https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf">https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf</a>.
---------------------------------------------------------------------------
DHS disagrees with the commenters stating that the rule's
provisions for immigration judge review are inadequate to ensure that
sufficient procedural safeguards are provided or protect against
erroneous screening determinations. Immigration judges are familiar
with applying bars to asylum and statutory withholding of removal, as
well as the applicable standards of proof involved in both fear
screenings and full merits adjudications of asylum, statutory
withholding of removal, and protection under the CAT.\30\ As discussed
above, multiple provisions in title 8 of the Code of Federal
Regulations provide notice of the right to access counsel.\31\
---------------------------------------------------------------------------
\30\ See 8 CFR 1208.13(c); 1208.16(b); 1208.16(c);1208.16(d)(2);
1208.30(c)(2); 1208.30(g)(2); 1208.31(c); and 1208.31(g).
\31\ See, e.g., 8 CFR 1240.10(a)(1)-(2), 1240.11(c)(1)(iii),
1240.17(f)(1), 1240.32(a), 1240.48(a).
---------------------------------------------------------------------------
Furthermore, review of negative credible fear determinations is
limited under INA sec. 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to the
review by an immigration judge previously described, so DHS has no
authority to create additional mechanisms for a noncitizen to appeal a
credible fear determination made during the expedited removal process
pursuant to INA sec. 235(b), 8 U.S.C. 1225(b).\32\ DHS acknowledges
that, before this rule, mandatory bars were only applied during a full
adjudication of the noncitizen's application for asylum or withholding
of removal, and any such decision on a bar was subject to review by
both the BIA and the relevant Federal court. See 8 CFR 1003.1(b)(3),
INA sec. 242, 8 U.S.C. 1252. Under this rule, however, noncitizens who
receive negative credible fear determinations solely because of the
applicability of a bar and who have those determinations affirmed by an
immigration judge will be removed. However, as discussed elsewhere in
this preamble, the Department considers the safeguards in place
sufficient to ensure against erroneous removals, and the benefits of
allowing DHS and EOIR resources that would have been expended on
potentially years-long immigration court processes involving
noncitizens pursuing relief for which they are ineligible to be
conserved for potentially meritorious cases outweigh the loss to this
small population of noncitizens of these additional avenues for appeal
or review.
---------------------------------------------------------------------------
\32\ INA sec. 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A).
---------------------------------------------------------------------------
As mentioned above, DHS rejects the suggestion in these comments
that determinations based on mandatory bars are categorically more
complex as a factual or legal matter than other issues routinely
decided in screening interviews and subject to these same review
provisions.
Comment: Commenters stated that noncitizens would be denied
protections at the border and could be unjustly removed; lack of
transparency would leave no way to assess whether the process would
lead to erroneous removals; and an expedited removal process would rush
individuals through credible fear interviews that unfairly require
individuals to disclose personal information about fear or trauma to
officials and without the presence of an attorney. In line with the
above remarks, a commenter encouraged DHS to retain current due process
protections to prevent the erroneous return of people to countries
where their lives would be threatened.
Response: The Department acknowledges the concern relating to the
possibility for erroneous removals but assesses the possibility to be
rare. AOs are trained in asylum law and are well-suited to apply
mandatory bars in the screening context in their discretion and, where
evidence related to a mandatory bar is limited or unavailable, or
analysis would be too complex to be fully explored in the screening
context, to exercise their discretion not to apply the bar in the
screening determination. AOs will continue to issue positive fear
determinations where a noncitizen demonstrates a credible or reasonable
fear at the applicable screening standard, even where there may be
indicia of a mandatory bar but the available evidence at the screening
stage as to the mandatory bar or available exceptions or exemptions is
limited. Retaining this discretion will safeguard against erroneous
applications of the mandatory bars. In addition to substantive training
on analyzing mandatory bars, AOs are trained to conduct non-adversarial
interviews, to elicit testimony, and to work with interpreters.\33\ The
Department also rejects the assertion that noncitizens will be unfairly
required to disclose trauma and will not have access to counsel. AOs
are trained to work with noncitizens who are experiencing the effects
of trauma and to communicate across cultural and linguistic
barriers.\34\ AOs routinely interview noncitizens during protection
screening interviews involving sensitive matters that many may find
challenging to discuss, including torture, sexual assault, familial
violence, and the deaths of family members. Additionally, noncitizens
in the credible and reasonable fear processes may be represented by an
attorney at no cost to the government. 8 CFR 208.30(d)(4), 8 CFR
208.31(c). Finally, noncitizens in credible fear may consult with
persons of their choosing. 8 CFR 208.30(d)(4).
---------------------------------------------------------------------------
\33\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing Survivors of Torture and
Other Severe Trauma'' (Apr. 24, 2024).
\34\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO
Directorate--Officer Training: Interviewing Survivors of Torture and
Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------
By their nature, the application of the mandatory bars may result
in the possible removal of noncitizens to countries where they fear
harm. This is consistent with both domestic law and international
standards identified in section II of this preamble. DHS also notes
that nothing in the rule would affect protections available to
noncitizens under regulations implementing U.S. obligations under
Article 3 of the CAT.
Comment: Commenters asserted that language access issues in
general, and particularly for speakers of rare or indigenous languages,
impede
[[Page 103380]]
noncitizens' ability to demonstrate a bar does not apply to them.
Response: 8 CFR 208.30(d)(5) requires AOs to provide for the
assistance of an interpreter in credible fear interviews where the
noncitizen is unable to effectively proceed in English and the AO is
unable to proceed competently in a language the noncitizen speaks and
understands. 8 CFR 208.31(c) imposes the same requirement for
reasonable fear interviews. Furthermore, USCIS has developed a language
access plan to ensure that limited English proficient individuals have
meaningful access to the agency's services and information.\35\ USCIS
has also issued guidance to AOs on providing language access in
credible fear interviews.\36\ This guidance provides for situations
where the AO is unable to communicate with the noncitizen because their
preferred language is not serviced by an asylum interpreter contract
and, if applicable, the noncitizen does not agree to proceed with the
credible fear interview in another language for which the AO confirms
understanding. In such a situation, the Asylum Office issues a Form I-
862, Notice to Appear (NTA), and refers the noncitizen to removal
proceedings without making a credible fear determination in such
situations. DHS is confident these measures are sufficient to ensure
limited English proficient noncitizens, including speakers of rare and
indigenous languages, are able to effectively understand the screening
process and participate in credible fear and reasonable interviews,
including addressing the applicability of any bars. Furthermore, DHS
notes that limitations in communicating in English or with an
interpreter in a language other than the noncitizen's preferred
language would weigh against an AO exercising discretion to consider
the bars, since they could limit testimony and impede efficiency.
---------------------------------------------------------------------------
\35\ See USCIS ``Language Access Plan,'' <a href="https://www.dhs.gov/sites/default/files/publications/uscisc-updated-language-access-plan-2020.pdf">https://www.dhs.gov/sites/default/files/publications/uscisc-updated-language-access-plan-2020.pdf</a> (last visited Aug. 5, 2024).
\36\ USCIS, Memorandum from Acting Asylum Division Chief Ashley
Caudill-Mirillo to Asylum Division Staff: Language Access in
Credible Fear Screenings (July 6, 2022), <a href="https://www.uscis.gov/sites/default/files/document/memos/Language-Access-in-Credible-Fear-Screenings.pdf">https://www.uscis.gov/sites/default/files/document/memos/Language-Access-in-Credible-Fear-Screenings.pdf</a>.
---------------------------------------------------------------------------
c. Impacts on Specific Vulnerable Populations
Comment: Some commenters expressed opposition to the proposed rule,
stating that it would increase the odds that people would have to
return to countries where their political beliefs, sexual orientation
or gender identity are under threat. A commenter urged the Department
to not make the process more difficult for women who are fleeing from
the abuse of a partner. Another commenter said that the proposed rule
could make it more difficult for those seeking to flee authoritarian
governments and countries where they face marginalization and
persecution. A commenter stated that their clients include indigent,
black, brown, indigenous, and LGBTQI+ (lesbian, gay, bisexual,
transgender, queer, and intersex) noncitizens who often have no other
avenue to seek safety than to come to the United States. The commenter
stated that the rule depends on the discretion of AOs to decide when to
apply mandatory bars to asylum eligibility during screenings, which
would disproportionately penalize some noncitizens based on their race,
nationality, religion, LGBTQI+ identity, or disability status because
those who have been criminalized for these statuses could be barred
from asylum.
Response: The Department disagrees with the commenters' claims
regarding the Final Rule's impact on particularly vulnerable
individuals. Under this rule, AOs will have the flexibility in
screenings to apply mandatory bars that relate to an individual's
participation in the persecution of others, or national security,
criminal, or other public safety concerns. The Department does not
believe that this rule would penalize any of the vulnerable populations
commenters identified. AOs are trained to elicit testimony in a non-
adversarial and sensitive manner and to work with vulnerable
populations.\37\ AOs are also trained to apply the mandatory bars and
analyze available evidence, including the circumstances surrounding
arrests and criminal records outside the United States, which may, in
certain instances, demonstrate a pretextual or discriminatory intent by
a foreign government.\38\ Indeed, AOs regularly analyze mandatory bars,
including criminal bars, in asylum adjudications and are experienced in
evaluating context related to arrests, criminal charges, and foreign
convictions, which, in some circumstances, may be evidence that an
individual has suffered persecution, rather than evidence of a
mandatory bar.\39\ Accordingly, considering the training and experience
AOs possess, they are well-suited to apply mandatory bars in the
screening context in their discretion and, where evidence related to a
mandatory bar is too limited or unavailable, or the analysis of the bar
would be too complex to be fully explored in the screening context, to
exercise their discretion not to apply the bar in the screening
determination.
---------------------------------------------------------------------------
\37\ See USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview'' (Apr.
24, 2024); USCIS, ``RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony'' (Apr. 24, 2024).
\38\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training:
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and
Intersex (LGBTI) Refugee and Asylum Claims'' (Apr. 24, 2024); USCIS,
``RAIO Directorate--Officer Training: Definition of Persecution and
Eligibility Based on Past Persecution'' (Apr. 24, 2024).
\39\ See id.
---------------------------------------------------------------------------
AOs will continue to issue positive fear determinations where a
noncitizen demonstrates a credible or reasonable fear at the applicable
screening standard, even where there may be indicia of a mandatory bar
but the available evidence at the screening stage as to the bar or
available exceptions or exemptions is limited. By preserving AO
discretion in the application of the mandatory bars, the rule will
protect vulnerable noncitizens who may have complicated evidentiary and
legal issues involving a mandatory bar.
d. Other/General Negative Impacts on Noncitizens and Their Support
Systems
Comment: Many commenters expressed concerns about the hardships
noncitizens face in their home countries, on the journey to the United
States, and throughout the immigration process. A commenter stated that
the proposed rule does not serve long-term migrants who are waiting on
a resolution for their cases, or new migrants who deserve to be treated
with fairness. A commenter believes that the number of migrants
attempting to enter the United States is the ``result of global
political and climate crises,'' and that solutions should be targeted
towards those issues. Further, the commenter stated that the proposed
rule would increase the suffering of noncitizens, while not addressing
the underlying problems that drive migration. Another commenter
discussed the need to ensure that noncitizens with similar claims would
not experience different outcomes based on the constraints of
government resources. A nonprofit organization opposed the rule because
it would impose additional burdens on their resources. Finally, several
commenters expressed the importance of access to asylum for vulnerable
noncitizens.
Response: The Department acknowledges the commenters' concerns for
noncitizens who may be fleeing harm in their home countries or
otherwise face hardships. To that end, the U.S. government has
implemented,
[[Page 103381]]
a number of measures designed to enhance and expand lawful pathways and
processes for noncitizens seeking to enter the United States, including
to seek asylum or other protection. Examples of lawful pathways
include: the Uniting for Ukraine process, which allows Ukrainian
nationals to receive humanitarian parole into the United States,
enabling them to travel by air to the United States; the Safe Mobility
initiative; \40\ the new CHNV processes; \41\ and country-specific
family reunification parole processes.\42\ DHS and its interagency
partners have also increased H-2B nonimmigrant visa availability \43\
and refugee processing for Western Hemisphere countries.\44\
Noncitizens who are not eligible for these pathways can schedule an
appointment to present themselves at a southwest land border port of
entry through the CBP One app.\45\ The Department agrees with the
comment that we must address the underlying drivers of migration. For
example, the U.S. Strategy for Addressing the Root Causes of Migration
in Central America, directed by the President in Executive Order 14010,
86 FR 8267 (Feb. 5, 2021), focuses on a coordinated, place-based
approach to improve the underlying causes that push Central Americans
to migrate, and it takes into account, as appropriate, the views of
bilateral, multilateral, and private sector partners, as well as civil
society.\46\ The strategy includes addressing economic, governance, and
security challenges through five pillars: (1) addressing economic
insecurity and inequality; (2) combating corruption and strengthening
democratic governance; (3) promoting human rights and labor rights; (4)
countering and preventing violence; and (5) combating sexual and
gender-based violence.\47\ In March 2024, the White House announced
that the Administration is on track to meet its commitment in the root
causes strategy to provide $4 billion to the region over four
years.\48\
---------------------------------------------------------------------------
\40\ U.S. Dep't of State, Safe Mobility Initiative, <a href="https://www.state.gov/refugeeadmissions/safe-mobility-initiative">https://www.state.gov/refugeeadmissions/safe-mobility-initiative</a> (last
visited Aug. 23, 2024); The White House, Fact Sheet: Biden-Harris
Administration on World Refugee Day Celebrates a Rebuilt U.S.
Refugee Admissions Program, June 20, 2024, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/</a> (last visited
Aug. 29, 2024).
\41\ See U.S. Citizenship and Immigration Services, Processes
for Cubans, Haitians, Nicaraguans, and Venezuelans, <a href="https://www.uscis.gov/CHNV">https://www.uscis.gov/CHNV</a> (last visited Sept. 25, 2024).
\42\ See U.S. Citizenship and Immigration Services, Family
Reunification Parole Processes, <a href="https://www.uscis.gov/FRP">https://www.uscis.gov/FRP</a> (last
visited Aug. 23, 2024).
\43\ 88 FR 80394 (Nov. 17, 2023).
\44\ See Memorandum on Presidential Determination on Refugee
Admission for Fiscal Year 2024, Presidential Determination No. 2023-
13 (Sept. 29, 2023) (providing for the admission of 35,000-50,000
refugees from the Latin America/Caribbean region to the United
States during Fiscal Year (FY) 2024); Memorandum on Presidential
Determination on Refugee Admission for Fiscal Year 2025,
Presidential Determination No. 2024-13 (Sept. 30, 2024) (providing
for the admission of 35,000-50,000 refugees from the Latin America/
Caribbean region to the United States during FY 2025).
\45\ See CBP, ``CBP One<SUP>TM</SUP> Mobile Application,''
<a href="https://www.cbp.gov/about/mobile-apps-directory/cbpone">https://www.cbp.gov/about/mobile-apps-directory/cbpone</a> (last visited
Aug. 14, 2024).
\46\ Nat'l Sec. Council, U.S. Strategy for Addressing the Root
Causes of Migration in Central America at 4 (July 2021), <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf</a>.
\47\ The White House, Fact Sheet: Update on the U.S. Strategy
for Addressing the Root Causes of Migration in Central America (Mar.
25, 2024), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/25/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-3/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/25/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-3/</a>.
\48\ Id.
---------------------------------------------------------------------------
The Department disagrees with the comment that the rule will
increase suffering of noncitizens and negatively impact both new and
long-term noncitizens waiting on case resolutions. Instead, the
Department believes the rule will increase efficiencies for noncitizens
and decrease the time noncitizens must wait for a final decision on
their protection claim, including those who may be in detention.
Noncitizens who are subject to a bar but would nevertheless receive a
positive fear determination absent this rule may, under this rule, be
more swiftly removed instead of being detained throughout their removal
proceedings, and therefore spend less time in detention. The Department
is committed to conducting screening interviews with fairness, and AOs
are trained to review each case on its own merits, even when there are
similarities between claims.
DHS acknowledges the comment regarding burden on nonprofit
resources and has included a description of impacts of the Final Rule
in Section V.B. of this preamble. This rule does not directly regulate
any organizations, and consistent with longstanding case law, a
regulatory flexibility analysis is not required when a rule has only
indirect effects on small entities, rather than directly regulating
those entities. See, e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d
327, 342-43 (D.C. Cir. 1985).
e. Negative or Minimal Impacts on Immigration System and Government
Operations and Resources
Comment: Many commenters expressed concerns that considering
mandatory bars during the fear screening stage would introduce
complexities, inconsistencies, and inefficiencies in the fear screening
process, and the asylum system needs fair and comprehensive reform. One
commenter stated that the proposed rule would make the asylum process
more complicated for noncitizens and AOs, while also putting
noncitizens in danger. One commenter expressed concerns that applying
bars during fear interviews could slow down the fear screening process
and become arduous for AOs to consider. One commenter expressed
concerns that AOs may not be able to make these decisions with clarity,
empathy, or fairness, while also potentially causing officers
psychological distress.
In line with the above remarks, a commenter stated that the
proposed rule would not increase efficiency because a small number of
people would be impacted, and that given this small numeric impact, the
Department should weigh the adverse fairness implications that the
proposed rule would impose on the few cases where the mandatory bars
are applied. In addition, they wrote that AOs face pressure to make
findings with limited resources, which would leave doubt that the rule
would increase efficiency. The same commenter further stated that the
consideration of the bars, a step not systematically taken in the
credible fear process, requires extensive factual development and legal
analysis that would lengthen credible fear and reasonable fear
interviews, thereby undermining the purported efficiency goals of the
proposed rule. Citing an interview with a representative for USCIS AOs,
the commenter raised concerns with the proposed rule's impact on the
agency's limited time and resources for conducting fear interviews. The
commenter warned that if the proposed rule were finalized, the
application of complex mandatory bars at the screening stage would
drain more time and resources from already strained AOs.
Response: The Department disagrees with the commenters' concerns
that consideration of the mandatory bars would be inefficient due to
time and resource constraints and that AOs would have difficulty making
decisions with clarity and fairness. As noted by commenters, the
Department expects only a small percentage of screening cases to be
impacted by the mandatory bars; therefore, the length of interviews
would not increase across all credible and reasonable fear interviews.
The Department also believes that while a small number of people would
be impacted by this rule, those individuals would be enforcement
priorities because
[[Page 103382]]
of national security and public safety concerns.\49\ Safeguarding
national security is one of the Department's highest priorities, and
this rule will allow the Department to efficiently identify and remove
noncitizens who are found subject to one of the outlined mandatory bars
without subjecting them to lengthy proceedings. AOs interview
noncitizens with complex cases on a regular basis and are trained in
interviewing noncitizens in credible fear and reasonable fear
screenings, as well as in interviewing affirmative asylum
applicants.\50\ AOs are capable of conducting thorough screening
interviews, applying the mandatory bars when applicable, and
maintaining fairness throughout the process, as is required by their
roles.
---------------------------------------------------------------------------
\49\ Memorandum from Alejandro N. Mayorkas, Sec'y of Homeland
Security, Guidelines for the Enforcement of Civil Immigration Law 3-
4 (Sept. 30, 2021).
\50\ See Memorandum for the Record, from Ted Kim, Assoc. Dir.,
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum
Division Training, Staffing, Capacity, and Credible Fear Procedures
(Sept. 26, 2024).
---------------------------------------------------------------------------
Comment: Commenters suggested that DHS look elsewhere to improve
the immigration system, such as employing and training more immigration
officers, or focusing on adjudicating pending cases in the backlog
instead of imposing additional burdens on officers who are performing
fear screenings. One commenter stated that backlogs at USCIS and the
Executive Office for Immigration Review (EOIR) would make the
successful implementation of this rule difficult, and it is unclear
where the resources would come from to execute the proposed rule
fairly. A few other commenters stated that resources should be spent
creating accessible pathways to citizenship and policies that reduce
poverty and violence in the countries from which noncitizens are
fleeing.
Response: The Department continues to expand its workforce to meet
different priorities and believes that resources can be, and are being,
allocated to both reducing the backlog and increasing efficiencies in
the credible and reasonable fear processes.\51\ While the Department
appreciates the resource allocation suggestions made by some commenters
and would direct those commenters to E.O. 14010,\52\ which aims to
address root causes of migration and create a strategy for managing
migration, and E.O. 14012,\53\ which aims to identify and eliminate
barriers to immigration access and improve the naturalization process,
the Department also notes that these suggestions are outside the scope
of this rule. Finally, the comment suggesting increased immigration
judge hiring and training is outside the scope of this rule.
---------------------------------------------------------------------------
\51\ See, e.g., DHS, ``Statement from Secretary Mayorkas on the
Recognition of DHS Advancement on Partnership for Public Service
List of `Best Places to Work') (May 20, 2024) (``Secretary Mayorkas
helped to secure the first increase in Border Patrol staffing in
over a decade with 300 additional Agents added in Fiscal Year 2023,
and another 1,400 added in Fiscal Year 2024.''), <a href="https://www.dhs.gov/news/2024/05/20/statement-secretary-mayorkas-recognition-dhs-advancement-partnership-public-service">https://www.dhs.gov/news/2024/05/20/statement-secretary-mayorkas-recognition-dhs-advancement-partnership-public-service</a> (last visited
Aug. 15, 2024); USCIS, ``Talking Points, Asylum National Engagement;
March 6, 2024,'' <a href="https://www.uscis.gov/sites/default/files/document/outreach-engagements/Asylum-National-Engagement-talking-points-3-6-24.pdf">https://www.uscis.gov/sites/default/files/document/outreach-engagements/Asylum-National-Engagement-talking-points-3-6-24.pdf</a> (last visited Aug. 15, 2024).
\52\ E.O. 14010, 86 FR 8267 (Feb. 5, 2021).
\53\ E.O. 14012, 86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------
Comment: Several commenters expressed concern that the proposed
rule could exacerbate the existing inequities in asylum processing,
which they stated served neither noncitizens nor the U.S. government's
need to manage the border. One commenter stated that the mandatory bars
are very complex and that in a screening interview where the noncitizen
is unlikely to have legal representation, applying those bars will lead
to inconsistent and erroneous outcomes. Commenters indicated the rule
leaves excessive discretion to AOs to determine whether to consider
bars to asylum and withholding of removal in credible fear and
reasonable fear screenings, which would lead to inconsistent results
and undermine the efficiency of screenings. Commenters predicted the
discretion the rule accords to AOs to consider bars in fear screenings
will lead to discrimination and inequity, including profiling on the
basis of race, religion, or nationality.
Response: The Department disagrees with the comment that the rule
will exacerbate inequities in the asylum system and does not serve
border management needs. The commenters did not explain what they were
referring to as existing inequities in asylum processing. The
Department has outlined its commitment to increase access and equity in
the immigration process in the DHS Equity Action Plan.\54\ The
Department also disagrees that the rule does not serve noncitizens or
the U.S. government's border management needs. The rule will allow DHS
to quickly screen out certain non-meritorious claims and remove those
noncitizens who pose a national security or public safety threat more
expeditiously. This serves both government and noncitizen needs, as it
safeguards national security while allowing the Department to use
resources more efficiently. Applying the mandatory bars earlier in the
process means that the Department can more effectively use its
resources to adjudicate other cases in a more expedient manner.
---------------------------------------------------------------------------
\54\ See DHS, ``DHS Equity Action Plan,'' <a href="https://www.dhs.gov/publication/equity">https://www.dhs.gov/publication/equity</a> (last visited Aug. 15, 2024).
---------------------------------------------------------------------------
The Department disagrees that application of the mandatory bars
during the screening process will lead to erroneous and inconsistent
decisions. AOs are trained to analyze and apply the mandatory bars in
affirmative asylum cases; therefore, they are well-suited to exercise
discretion to apply mandatory bars in the screening context. If
evidence related to a mandatory bar is too complex to be fully explored
in the screening context, the rule will allow AOs to exercise their
discretion not to apply the bar in the screening determination. In
those cases, AOs will continue to issue positive fear determinations
where a noncitizen demonstrates a credible or reasonable fear at the
applicable screening standard, even where there may be indicia of a
mandatory bar but the available evidence at the screening stage as to
the bar or any available exception or exemption is limited.
DHS disagrees that providing discretion to AOs to consider bars in
fear screenings will lead to inconsistent or inequitable results. AOs
already receive standardized training on how to apply the bars to
asylum in full adjudications. The five bars to statutory withholding of
removal that could be considered under this rule generally correspond
to five of the six mandatory bars to asylum. See INA secs.
208(b)(2)(A)(i)-(v), 241(b)(3)(B)(i)-(iv) and (b)(3)(B), 8 U.S.C.
1158(b)(2)(A)(i)-(v), 1231(b)(2)(B)(i)-(iv) and (b)(3)(B). Therefore,
AOs understand the types of evidence that would indicate the potential
applicability of these bars to both forms of relief. AOs are also
trained, in cases where there is evidence a bar may apply, to note the
possible applicability of the bar in the credible fear or reasonable
fear determination.\55\ Such training helps to ensure consistent
application of AO discretion in determining whether to consider bars in
fear screenings.
---------------------------------------------------------------------------
\55\ See USCIS, RAIO Directorate--Officer Training: Credible
Fear of Persecution and Torture Determinations (May 9, 2024); USCIS,
RAIO Directorate--Officer Training: Reasonable Fear of Persecution
and Torture Determinations (Feb. 13, 2017); see also Credible Fear
Procedures Manual (CFPM), Section III.E.7; Reasonable Fear
Procedures Manual (RFPM), Section III.F.
---------------------------------------------------------------------------
DHS also disagrees that providing AOs discretion to consider bars
will
[[Page 103383]]
undermine the efficiency of screenings. It is precisely this concern
for efficiency that, in part, motivates the Department's decision not
to require AOs to consider bars in every screening conducted, but
rather permit them to do so in those cases where there is easily
verifiable evidence available to the AO that, in their discretion,
warrants an inquiry into a bar, and the AO can consider that bar
efficiently.
DHS further disagrees that providing AOs this discretion will lead
to discrimination and profiling on the basis of race, religion, or
nationality. Such discrimination is not only unlawful and against USCIS
policy,\56\ but contrary to the fundamental purpose of fear screenings,
which exist to ensure the United States does not return eligible
noncitizens to torture or to persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Furthermore, AOs are trained to be neutral decisionmakers,\57\
to conduct interviews in a non-adversarial manner, to not let personal
biases interfere with their work, and to treat each individual who
appears before them with courtesy, professionalism, and respect.\58\
---------------------------------------------------------------------------
\56\ See 42 U.S.C. 1983; see also USCIS, ``USCIS Policy
Manual,'' Vol. 1, Part A, Ch.9, Section (D)(1), <a href="https://www.uscis.gov/policy-manual">https://www.uscis.gov/policy-manual</a>.
\57\ See USCIS, ``RAIO Directorate--Training Module: Decision
Making'' (Apr. 4, 2024).
\58\ See USCIS, RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Apr.
24, 2024) and USCIS, RAIO Directorate--Training Module: Core Values
and Guiding Principles for RAIO Employees (Apr. 24, 2024).
---------------------------------------------------------------------------
Comment: One commenter opposed the rule for doing too little to
address the high level of border crossings, and address the asylum and
immigration court pending caseload, describing it as too narrow in
scope and containing numerous loopholes that would do little to stem
what they described as the tide of asylum fraud that plagues the
system.
Response: The rule is not intended to address high levels of border
crossings, or primarily, to address backlogs in the immigration system.
Neither is it intended to address fraud in the asylum system. While the
Department does expect the rule to conserve some government resources
that may be used on other cases, it does not expect that the rule will
substantially decrease the pending caseload at the immigration courts
or at USCIS.
f. Negative Impacts on the U.S. Economy and Workforce, U.S. Citizens,
Public Health and Safety
Comment: Several commenters expressed opposition to the proposed
rule, stating that it would raise additional barriers to gaining asylum
during a time when noncitizens could help strengthen the United States
and increase government tax revenue. A commenter noted that immigrants
help the economy. Another commenter added that there could be concerns
with accommodating large numbers of noncitizens, but the pros outweigh
the cons. Several commenters stated that the U.S. population and
workforce is projected to decline, so the United States should be
accepting noncitizens to help fill gaps in the workforce. Some
commenters stated that noncitizens are often eager to rebuild their
lives and contribute to their communities. Other commenters noted that
noncitizens are resourceful, which is why we should welcome them. A
commenter stated that because of the many hazards that noncitizens have
faced, they will become strong model citizens.
Response: The Department agrees that immigrants contribute
significantly to the U.S. economy and workforce. This rule does not
curtail access to the immigration system for individuals who are
eligible for protection or relief from removal. By allowing AOs to
apply certain mandatory bars in screenings, the Department is working
to ensure that individuals who will not ultimately be eligible for
protection or relief from removal are not unnecessarily consuming U.S.
Government resources during their pursuit of non-meritorious protection
claims.
g. Other Opposition to the Rule
Comment: Several commenters remarked that this is the incorrect
approach to dealing with the asylum system. Further, a commenter said
that the current immigration policy is costly and traumatizing,
especially to those who are vulnerable. Another commenter remarked that
those seeking asylum should not be criminalized, since noncitizens
seeking asylum are fleeing oppressive environments. A commenter urged
the Department to withdraw the proposed rule in its entirety to instead
adopt humane solutions to the humanitarian and operational challenges
at the border. They offered several alternatives, such as increasing
capacity at ports of entry; engaging civil society entities to provide
respite services; improving communication and cooperation between civil
society, State and local governments, and Federal agencies; ending
detention and monitoring of asylum seekers; and providing legal
representation and social services to asylum seekers. A few commenters
expressed disappointment towards the Biden administration because of
the restrictiveness of the proposed rule.
Response: The Department disagrees with the commenters' claims and
declines to adopt their suggestions, which are beyond the scope of this
rulemaking in any event. With this rule, the Department is considering
the application of mandatory bars at an earlier stage in the process.
Concerning legal representation, the Department notes that during the
credible and reasonable fear processes, noncitizens may be represented
by an attorney at no cost to the government. Additionally, noncitizens
in credible fear may consult with persons of their choosing. 8 CFR
208.30(d)(4). Noncitizens who are referred to USCIS for a credible fear
or reasonable fear interview are provided with an information sheet
related to the applicable screening interview process (e.g., M-444,
Information About Credible Fear Interview; M-488, Information About
Reasonable Fear Interview; Information About Credible Fear Interview
Sheet (for credible fear cases referred to USCIS under the Securing the
Border rule)), in addition to a list of free or low-cost legal service
providers. Certain suggestions, including those to increase processing
capacity at ports of entry, strengthening communication and cooperation
between civil society, State and local governments, and Federal
agencies, ending the detention and monitoring of asylum seekers, and
providing legal and social services to newly arrived asylum seekers,
are outside the scope of this rule.
Comment: One commenter opposed the proposed rule stating that a
future ``more overtly hostile anti-immigrant administration'' could
abuse the discretion that the rule allows AOs, such as if a future
administration sought to expand the use of expedited removal across the
country.
Response: The Department emphasizes that the NPRM and this rule
allow AOs to exercise discretion to consider a mandatory bar during a
fear screening interview. The discretion the rule provides is not
unbounded. AOs should only expend resources considering mandatory bars
where there is easily verifiable evidence that a bar may apply and
where they determine that they can address the issue efficiently in the
context of a screening interview.
Under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
DHS[thinsp]may remove certain noncitizens without a hearing before an
immigration judge through expedited removal proceedings. The INA also
grants the Secretary authority to apply expedited removal procedures
[[Page 103384]]
(by designation) to ``any or all'' noncitizens referred to in the
statute as ``certain other aliens.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C.
1225(b)(1)(A)(iii)(I). A noncitizen is within the class of ``certain
other aliens'' if the noncitizen ``has not been admitted or paroled
into the United States, and . . . has not affirmatively shown, to the
satisfaction of an immigration officer, that the alien has been
physically present in the United States continuously for the 2-year
period immediately prior to the date of the determination of
inadmissibility.'' INA 235(b)(1)(A)(iii)(II), 8 U.S.C.
1225(b)(1)(A)(iii)(II). Such designation ``shall be in the sole and
unreviewable discretion'' of the Secretary and ``may be modified at any
time.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR
235.3(b)(1)(ii).
In case of a hypothetical future policy choice to expand the use of
expedited removal to additional contexts, DHS emphasizes that
noncitizens found under this rule to lack a credible fear or reasonable
fear of persecution due to the application of a mandatory bar would
ultimately be ineligible for the underlying relief in a merits hearing
if they were instead placed into immigration court proceedings directly
through service of a Notice to Appear.
Moreover, the concerns about future administrations abusing their
discretion by, for example, expanding expedited removal's use across
the country, are misplaced. The application of expedited removal is not
geographically limited by statute. See INA 235(b)(1), 8 U.S.C.
1225(b)(1). Currently, the regulations implementing expedited removal
allow for its use if a noncitizen has failed to establish they have
been continuously present in the United States for at least two years
prior to their date of inadmissibility, but there is no limit as to its
nationwide use. 8 CFR 235.3(b)(ii).
Comment: One commenter faulted the proposed rule for allegedly
seeking to deter asylum seekers from entering the United States.
Response: DHS rejects this characterization. The rule is not
designed to deter noncitizens from seeking asylum. The rule simply is
intended to provide flexibility to AOs to apply the covered mandatory
bars where there is easily verifiable evidence so that, when possible,
noncitizens who would otherwise ultimately be found ineligible for
relief or protection after a lengthy immigration process may instead
have their cases handled more efficiently. In addition, this
flexibility allows DHS to more expeditiously remove some noncitizens
who pose a threat to the safety or security of the United States. As
noted above, DHS has established numerous new pathways to facilitate
the lawful entry of noncitizens into the United States, which enables
noncitizens to more easily seek asylum or other immigration benefits in
appropriate cases.
Comment: One commenter criticized the rule as a reinstatement of
the ``Asylum Ban'' and characterized it as going against President
Biden's campaign promises.
Response: This rule is not equivalent to an ``asylum'' ban or any
other sort of categorical ban. As discussed elsewhere in this preamble,
this rule is intended to simply provide AOs with the discretionary
authority to consider certain statutory bars to asylum and withholding
of removal during fear screenings when doing so could increase
efficiency. Individuals subject to these bars are already ineligible
for asylum or withholding of removal as relevant, but, without the
rule, the bars are only fully applied at a later stage in a
noncitizen's immigration proceedings.
C. Legal Authority and Background
1. DHS Legal Authority
Comment: Many commenters asserted that the proposed rule is in
contravention of international and domestic law regarding refugee
protection and non-refoulement. In support of this assertion, several
commenters cited the 2003 Office of the U.N. High Commissioner for
Refugees (UNHCR) Guidelines, which direct that exclusion clauses only
be considered during regular refugee determinations proceedings and not
during expedited proceedings. A commenter stated that the proposed
provisions in the rule will create barriers to asylum and withholding
of removal for asylum seekers and violates the 1967 Protocol Relating
to the Status of Refugees.
Response: DHS disagrees with the assertion that the proposed rule
is in contravention of applicable law. The INA provides mandatory bars
to applying for asylum at section 208(a)(2) of the INA, 8 U.S.C.
1158(a)(2); to asylum eligibility at section 208(b)(2)(A) of the INA, 8
U.S.C. 1158(b)(2)(A); and to eligibility for withholding of removal at
section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B) (referred to
collectively as ``mandatory bars''). Further, as explained above,
Congress has conferred upon the Secretary express rulemaking power to
create certain procedures for screening for and adjudicating asylum
claims. INA sec. 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA
sec. 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 sec. 235(b)(1), 8 U.S.C. 1225(b)(1).
There are no bars to deferral of removal under the regulations
implementing U.S. obligations under Article 3 of the CAT. Prior to
being granted asylum or statutory withholding of removal in the United
States, noncitizens are required to show that the mandatory bars do not
apply to them.
The relevant statutory provisions are silent as to the
consideration of the mandatory bars during screening interviews. All
relevant domestic legal provisions on this topic have taken the form of
regulatory action. The former Immigration and Naturalization Service
issued a rule in 2000 precluding, in response to comments,
consideration of the asylum bars at the credible fear stage.\59\
Additional regulatory action on this subject was taken in 2020 and
2022. See 85 FR 80274, 80278 (Dec. 11, 2020) (``Global Asylum Rule'');
87 FR at 18221-22. In none of these actions that precluded
consideration of bars has the government concluded that considering
mandatory bars at the screening stage would violate statutory
provisions or other legal requirements. Instead, the basis of these
rules, when it has been articulated, has focused primarily on
efficiency of eliciting testimony related to and analyzing the
mandatory bars at the screening stage. See 87 FR 18078, 18093 (Mar. 29,
2022). This rule is based on a judgment by DHS that, under certain
limited circumstances, the consideration of the mandatory bars at the
screening stage represents an appropriate expenditure of resources.
---------------------------------------------------------------------------
\59\ See 65 FR 76121, 76129 (Dec. 6, 2000) (``Asylum
Procedures'') (codifying the statement in 8 CFR 208.30 that a
noncitizen who appears to be subject to one or more of the mandatory
bars would nevertheless be referred to section 240 removal
proceedings for full consideration of their claim and explaining
that this change was done in response to comments suggesting such a
referral ``regardless of any apparent statutory ineligibility under
section 208(a)(2) or 208(b)(2)(A) of the Act'').
---------------------------------------------------------------------------
DHS notes that while international guidelines represent helpful
interpretative guidance, they are not binding authority on DHS. As
such, the 2003 UNHCR guidance \60\ does not carry the force of law. The
guidance raised by the commenters states that
---------------------------------------------------------------------------
\60\ UNHCR, ``Guidelines on International Protection No. 5,
Application of the Exclusion Clauses: Article 1F of the 1951
Convention relating of the Status of Refugees'' (Sept. 4, 2003),
<a href="https://www.unhcr.org/us/media/guidelines-international-protection-no-5-application-exclusion-clauses-article-1f-1951">https://www.unhcr.org/us/media/guidelines-international-protection-no-5-application-exclusion-clauses-article-1f-1951</a>.
it is essential that rigorous procedural safeguards are built into
the exclusion determination procedures. Exclusion decisions should
in principle be dealt with
[[Page 103385]]
in the context of the regular refugee status determination procedure
and not in either admissibility or accelerated procedures, so that a
full factual and legal assessment of the case can be made.\61\
---------------------------------------------------------------------------
\61\ Id.
We note that the guidance speaks generally (``in principle'') and
is not a categorical prohibition against considering exclusion
provisions in a screening interview. DHS screening procedures do
contain ``rigorous procedural safeguards,'' including 100% supervisory
review of all decisions \62\ and the right to review of any negative
decision by an immigration judge.\63\ Additionally, noncitizens in
screening interviews have the right to consult with an individual of
their choosing, including counsel, at no cost to the government, the
right to have a consultant or counsel attend the interview, the right
to provide evidence in their native language or a language that they
are comfortable with, and the right to a non-adversarial interview with
an AO. 8 CFR 208.30(d); 208.31(c).
---------------------------------------------------------------------------
\62\ USCIS ``Credible Fear Procedures Manual,'' Section III.I,
<a href="https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf">https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf</a>; USCIS, ``Reasonable Fear
Procedures Manual,'' Section III.F.3, <a href="https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf">https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf</a>.
\63\ 8 CFR 208.30(g) and 208.31(g).
---------------------------------------------------------------------------
Furthermore, the rule instructs that the AO should only consider
any possible mandatory bar when the noncitizen does not establish a
fear of torture and when there is easily verifiable evidence indicating
that the noncitizen could be subject to a mandatory bar and, where the
noncitizen is unable to establish at the relevant standard that the bar
would not apply. As the standards of proof for screening interviews are
lower than those applicable at the merits stage, the AO would only
enter a negative fear determination if the noncitizen were unable to
demonstrate at the applicable screening standard that a mandatory bar
does not apply. Furthermore, if there are significant factual or legal
issues that would necessitate further development at a later stage, AOs
may exercise discretion to not apply the mandatory bar at the screening
stage.
DHS disagrees that the rule will create barriers to asylum and
withholding of removal for noncitizens with potentially meritorious
claims. In the current fear screening process, AOs already identify
possible mandatory bars. The rule simply permits an AO to apply the
bars at the screening stage when there is evidence that a bar may
apply, the AO determines that the bar can be addressed efficiently at
the interview, and the noncitizen is unable to demonstrate at the
applicable standard of proof that the bar does not apply or that the
noncitizen qualifies for an exception or exemption to the bar. Further,
any noncitizen who is subject to one of the mandatory bars that that
this rule permits AOs to consider at the screening stage would already
be ineligible for asylum or withholding of removal, as relevant.
Comment: Several commenters stated that DHS lacks the statutory
authority to enact the proposed rule as the expedited removal statute
does not mention mandatory bars to asylum and instructs the agency to
find a credible fear whenever an asylum seeker demonstrates a
``significant possibility'' that they ``could'' be eligible for asylum.
Response: DHS disagrees with the assertion that it lacks the
authority to enact the proposed rule. The legal authorities for this
rule are described in section II of this preamble.
As mentioned earlier, the consideration of mandatory bars in
screening interviews has been the subject of several prior rulemaking
actions. Under INA sec. 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the
term ``credible fear of persecution'' means that there is a
``significant possibility, taking into account the credibility of the
statements made by the [noncitizen] in support of the [noncitizen]'s
claim and such other facts as are known to the [asylum] officer, that
the [noncitizen] could establish eligibility for asylum under'' INA
sec. 208, 8 U.S.C. 1158. Section 208(b)(2)(A)(i)-(vi) of the INA
contains the mandatory bars to asylum and states that the eligibility
conditions for granting asylum at section 208(b)(1) of the INA, 8
U.S.C. 1158(b)(1), ``shall not apply'' to a noncitizen if one of the
mandatory bars is determined to apply. As such, if the noncitizen is
subject to one of the mandatory bars, they are not eligible for asylum.
It follows that when considering whether a noncitizen has a significant
possibility of establishing eligibility for asylum, an AO may consider
factors that would render the noncitizen ineligible for asylum.
Comment: Many commenters stated that consideration of the mandatory
bars at the screening stage is inconsistent with congressional intent
that the ``significant possibility'' standard be a low threshold to
avoid the risk that people would erroneously be screened out and
remarked that making decisions on mandatory bars is too complex to be
done fairly under the circumstances during screening interviews.
Response: Nothing in this rule modifies the standard of proof for
any of the screening interviews that would be affected by the rule. DHS
believes that the rule is consistent with Congress' intent for
expedited removal proceedings. In the Asylum Processing NPRM, DHS and
DOJ explained that Congress created a ``low screening standard'' for
expedited removal proceedings and stated that it may be inconsistent
with Congress' intent for the Departments to ``creat[e] a complicated
screening process that requires full evidence gathering and
determinations to be made on possible bars to eligibility.'' 86 FR
46906, 46914 (Aug. 20, 2021).\64\ This rule, however, does not create
any such process because AOs have the discretion, but are not required,
to consider a mandatory bar in those cases where there is easily
verifiable evidence that a bar may apply. If the AO determines that
they can consider that bar efficiently at the screening stage, the AO
could then, in their discretion, make a further inquiry into the
mandatory bar. DHS does not believe Congress' intent that the expedited
removal process be swift requires reading the statute to forbid the
application of mandatory bars during fear screenings in all cases,
particularly where, as here, DHS will apply those bars in a manner that
would not increase the length of the expedited removal process except
in those cases in which there is evidence indicating that a mandatory
bar may apply. Accordingly, this rule is consistent with Congress's
intent for expedited removal proceedings and DHS and DOJ's prior
statements regarding that intent.
---------------------------------------------------------------------------
\64\ See also 87 FR at 18135 (``The Departments agree with these
commenters that a complicated process requiring full evidence
gathering and determinations to be made on possible bars to
eligibility is incompatible with the function of the credible fear
interview'').
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DHS rejects the assertion that the mandatory bars present issues
that are inherently more complex than other issues that are regularly
considered in screening interviews. While the Department acknowledges
that certain issues in the consideration of mandatory bars can present
complex factual and legal issues, it also believes that other issues
routinely considered by AOs as part of a credible fear or reasonable
fear determination, including, for example, the viability of certain
particular social groups, whether certain types of harm rise to the
level of persecution, complex issues surrounding the motivation of the
persecutor, whether the noncitizen has provided credible testimony, and
whether certain types of feared harm would constitute torture if
carried out, also involve complex legal and factual determinations.
[[Page 103386]]
Furthermore, because the rule allows for permissive consideration
of the mandatory bars, it is well-tailored to address cases that
present particularly complex legal or factual issues. The NPRM
explained that AOs should consider mandatory bars only in situations
where there is easily verifiable information that the bar may apply,
and even then, to only do so if the inquiry can be done efficiently. If
applying a mandatory bar would require extensive legal research, or
would require extensive fact gathering, it would not be appropriate for
the AO to consider that bar as part of a noncitizen's credible fear or
reasonable fear interview under this rule.
Comment: Several commenters stated that the proposed rule conflicts
with the decision in Pangea Legal Servs. v. Dep't of Homeland Sec., 512
F. Supp. 3d 966 (N.D. Cal. 2021). Commenters noted that the
consideration of mandatory bars during credible fear screening was at
issue, and the court blocked that effort.
Response: DHS disagrees with commenters on these points. First,
this rule is distinguishable from the Global Asylum Rule, which was at
issue in Pangea Legal Servs. and which required the mandatory
consideration of bars during credible fear screenings. See 85 FR 80274
(Dec. 11, 2020). This rule is different as it affords discretion to
consider bars when there is easily verifiable evidence available but
does not mandate their consideration in any particular case. Moreover,
the district court in Pangea Legal Servs. did not opine on the merits
of the substance of the Global Asylum Rule, including its provisions
regarding the consideration of mandatory bars by AOs. Instead, as noted
in the proposed rule, the Pangea court concluded that the plaintiffs
were likely to succeed on the merits of their claim that the Global
Asylum Rule ``was done without authority of law'' because the court
found that the DHS official who approved it, then-Acting Secretary Chad
Wolf, was not properly designated as Acting Secretary. 512 F. Supp. 3d
at 975.
Comment: Several commenters objected to the proposed rule by
pointing to DHS's historical practice, dating back to the 2000
implementing regulations for expedited removal, of not applying
mandatory bars in protection screenings. Many commenters pointed to
DHS's previous rejection of considering mandatory bars in protection
screening interviews in the Asylum Processing IFR, where DHS stated
that applying asylum bars in screenings would hurt efficiency by making
interviews longer while also undermining due process rights of asylum
seekers. Several commenters objected to the proposed rule as arbitrary,
capricious, and/or an abuse of discretion not in accordance with the
law due to DHS's failure to properly explain its change in position
from the 2022 Asylum Processing IFR despite no change in circumstance
or law.
One commenter wrote that while the Department claims the rule is
narrow and will impact a small number of people, in fact, the rule
amounts to a significant change to asylum processing. The commenter
further argued that that while DHS claims that the current credible
fear process would remain the same, AOs have never been permitted to
apply bars during the screening process since its creation, and
accordingly, the rule actually significantly alters the expedited
removal screening process created by Congress over 25 years ago.
Response: DHS acknowledges its historical policy choice to not
consider the mandatory bars in screening interviews. The Department
notes that the practice established by the 2000 regulations was enacted
without substantive explanation. See Asylum Procedures, 65 FR at 76129
(Dec. 6, 2000) (codifying in 8 CFR 208.30 that a noncitizen who appears
to be subject to one or more of the mandatory bars would nevertheless
be referred to section 240 removal proceedings for full consideration
of their claim and explaining that this change was done in response to
comments suggesting such a referral ``regardless of any apparent
statutory ineligibility under section 208(a)(2) or 208(b)(2)(A) of the
Act'').
DHS recognizes that the inclusion of mandatory bars in credible
fear screenings has been a focus of several rules since 2020 that have
made numerous changes in this area, as explained in the NPRM. The
Global Asylum Rule instructed adjudicators for the first time to apply
the statutory mandatory bars in INA secs. 208(b)(2)(A) and 241(b)(3), 8
U.S.C. 1158(b)(2)(A) and 1231(b)(3), during credible fear interviews.
85 FR at 80390. Subsequently, in 2022, DHS and DOJ rejected the
consideration of all statutory mandatory bars during credible fear
screenings and recodified the prior practice of not doing so. 87 FR at
18092-94, 18134-36; see also 86 FR at 46914-15. DHS and DOJ reasoned
that applying the mandatory bars during all credible fear screening
interviews would make those credible fear screenings less
efficient,\65\ which could jeopardize DHS's ability to use expedited
removal,\66\ undermine Congress' intent that the expedited removal
process be swift,\67\ and undermine procedural fairness.\68\ The
Departments did not, however, conclude that applying the mandatory bars
would lead to these potentially negative repercussions in all, or even
most, cases. See 87 FR at 18093 (stating that the factual and legal
inquiries required to consider the mandatory bars were ``in general and
depending on the facts, most appropriately made in the context of a
full merits interview or hearing'') (emphasis added). Although the
Departments' policy choices in this area have shifted over time, all
these choices have remained consistent with the Department's
longstanding statutory authority to manage asylum and related fear
screenings, as discussed in Section II.
---------------------------------------------------------------------------
\65\ See 87 FR 18078, 18093, 18134 (Mar. 29, 2022) (``Asylum
Processing IFR''); 88 FR 11704, 11744 (Feb. 23, 2023) (``Lawful
Pathways NPRM'').
\66\ See 87 FR 18078, 18093 (Mar. 29, 2022) (``Asylum Processing
IFR'').
\67\ See 86 FR 46906, 46914 (Aug. 20, 2021) (``Asylum Processing
NPRM''); 87 FR 18078, 18094, 18134-35 (``Asylum Processing IFR'').
\68\ 87 FR 18078, 18093-94, 18097 (``Asylum Processing IFR'').
---------------------------------------------------------------------------
DHS acknowledges that this rule implements a policy choice that is
different from its position in 2022 but believes that this rule is not
inconsistent with that earlier position. The 2022 rule rejected the
consideration of the mandatory bars in screening interviews due
primarily to concerns of inefficiency. The permissive nature of the
current rule obviates those prior concerns about inefficient use of
resources. The Department believes, just as it did in 2022, that the
consideration of mandatory bars in instances where evidence related to
a mandatory bar is too limited or is unavailable, or where the analysis
of the bar would be too complex to be fully explored in the screening
context, would constitute an inefficient use of resources. However, in
cases where the evidence is clear, consideration of mandatory bars in a
screening interview will help preserve the government's resources by
allowing decisions to be made at the earliest possible stage.
DHS disagrees that the rule significantly changes asylum processing
or expedited removal. As explained in the NPRM, under this rule, the
current credible fear process will remain the same. The only aspect of
the determination that will change is that the AO will have the
discretion to consider the application of mandatory bars to asylum
(other than firm resettlement) and statutory withholding of removal
when screening the noncitizen for a credible fear of persecution or to
consider the potential
[[Page 103387]]
application of the mandatory bars to statutory withholding of removal.
Also, as also noted in the NPRM, the Department has experience applying
both the Third-Country-Transit Bar and the CLP presumption of
ineligibility for asylum. See 89 FR at 41354. Further, since the
Securing the Border IFR's publication, the Department has experience
applying the Securing the Border rule's limitation on eligibility for
asylum during the credible fear stage. See 8 CFR 208.35, 1208.35.
Although these limitations on asylum eligibility differ from the
mandatory bars that AOs will have discretion to consider under this
rule, AOs' demonstrated ability to apply them of asylum ineligibility
in credible fear screenings supports the Department's assessment that
certain statutory mandatory bars that may be easily verifiable can be
effectively applied in screening interviews. Additionally, DHS remains
confident that the population to which this rule will apply is likely
to be relatively small, as informed by the number of cases with bars
flagged by USCIS during screenings conducted during FY 2020-FY 2024.
Please refer to Section V.A.2 and Table 4 below. Furthermore, the
Department believes that the permissive nature of the rule obviates the
due process concerns that were articulated in the 2022 Asylum
Processing IFR. Under the current rule, AOs will only consider the
mandatory bars where there is easily verifiable evidence that a
mandatory bar applies, and AOs will retain the discretion to decline to
consider a mandatory bar if they determine that the evidence is not
easily verifiable, that they cannot efficiently gather sufficient
information to make a determination on a mandatory bar, or if they
believe that the evidence is such that the issue would be more fairly
considered at a later stage.
This rule will not require the expenditure of resources in most
screening interviews. Instead, it will rather serve as an operational
flexibility when the AO determines that there is easily verifiable
information that a mandatory bar applies and that they can efficiently
handle the issue in the context of a screening interview. Thus, DHS
does not believe that the current rule is inconsistent with the central
concerns that drove USCIS' historical practice and does not represent a
reversal of prior judgment. Instead, the rule will allow for
consideration of mandatory bars in limited instances where applying the
bar at the earliest possible stage would enhance public safety or
national security and overall operational efficiency.
Comment: One commenter stated that the proposed rule would permit
``AOs to violate the non-refoulement mandate so long as an `indicia' of
the five bars is present.''
Response: DHS believes this comment misstates the provisions of the
proposed rule. Prior to conducting a more fulsome consideration of a
mandatory bar, the AO would determine whether there is easily
verifiable information in the record that the mandatory bar applies to
the noncitizen. However, under the rule, before the issuance of a
negative determination, the AO would need to elicit all relevant
testimony to provide the noncitizen an opportunity to demonstrate the
relevant likelihood that the bar does not apply, or that an exception
or exemption to the bar applies, and determine that the noncitizen
failed to so demonstrate at the appropriate standard of proof.\69\ In
the credible fear context, for example, the evidence would need to be
sufficient to show that there is not a significant possibility that the
bar would not apply and that there is not a significant possibility
that an exemption or an exception applies, including, for example, that
the noncitizen can establish a reasonable possibility of torture. The
application of this standard of proof is substantially different from
AOs issuing negative screening determinations based on ``an indicia
[sic]'' that one of the bars might apply.
---------------------------------------------------------------------------
\69\ See 8 CFR 208.30(d) (``The purpose of the interview shall
be to elicit all relevant and useful information bearing on whether
the alien can establish a credible fear of persecution or
torture.'').
---------------------------------------------------------------------------
Further, the application of the statutory bars to a noncitizen's
claim does not violate the United States' non-refoulement obligations
as discussed earlier in this section IV.C.1.
Comment: One commenter opposed the proposed rule on the basis of
their belief that current USCIS policy for overcoming mandatory bars
requires that the noncitizen show by a preponderance of the evidence
that the ground does not apply, if the evidence indicated that a ground
for mandatory denial or referral exists. The commenter's stated
understanding is that the rule would contradict congressional intent
and Federal court ruling that apply a significant possibility standard
to credible fear screenings.
Response: Nothing in this proposed rule modifies the standard of
proof that applies to any of USCIS' screenings. In the credible fear
context, the significant possibility standard of proof would continue
to apply to all questions related to asylum, including the possible
application of the mandatory bars. These include, where applicable,
whether there is a significant possibility a noncitizen could
demonstrate they are not subject to or are excepted from the CLP rule's
presumption of ineligibility for asylum (or that they could rebut the
presumption), or whether there is a significant possibility they could
demonstrate they are not subject to or are excepted from the Securing
the Border rule's limitation on asylum eligibility. DHS acknowledges
that noncitizens subject to the CLP rule's presumption of ineligibility
for asylum or to the Securing the Border rule's limitation on
eligibility for asylum would be screened for statutory withholding of
removal, including mandatory bars (if considered), and protection under
the CAT at the reasonable possibility and reasonable probability
standards, respectively.
2. DHS's Justification, Background, and Statements on Need for the Rule
Comment: One commenter objected to the proposed rule for not
adequately explaining how AOs would reliably be able to apply the
mandatory bars during screening interviews without wasting resources or
making unwarranted negative findings.
Response: AOs regularly receive training on screening and
adjudication, including the application of mandatory bars. AOs will
consider the mandatory bars only in cases where the evidence is easily
verifiable that a bar may apply, and where they believe they can
efficiently address the issue during the screening interview.
Determinations by AOs are subject to review within USCIS, including
review by a supervisory asylum officer. See, e.g., 8 CFR 208.30(e)(8).
Noncitizens also have the right to request immigration judge review of
any negative screening determination.
Comment: Several commenters argued that DHS's reliance on its
success in implementing the CLP rule to help justify this proposed rule
is misplaced because the application of the CLP rule has resulted in
unlawful refoulement of noncitizens.
Response: DHS's experience with the CLP rule is relevant to this
rule as it demonstrates that AOs are able to fairly and efficiently
apply a rebuttable presumption of asylum ineligibility as part of a
screening interview. The CLP rule and complementary measures have been
in effect since May 11, 2023, and DHS and DOJ have been able to
implement it without interruption. This experience has helped DHS
significantly increase its capacity to screen noncitizens encountered
at the border
[[Page 103388]]
under expedited removal and move them through the process more quickly
than before the rule and complementary measures.\70\ Now that it is
clear a rebuttable presumption of asylum ineligibility can be applied
effectively during the credible fear process, the Department wishes to
provide the AOs with discretion to apply certain mandatory statutory
bars that may be easily verifiable in screening interviews.
---------------------------------------------------------------------------
\70\ For example, as discussed in the Securing the Border IFR,
CBP placed, on average, more than 970 individuals encountered at and
between POEs each day into expedited removal between May 12, 2023,
and March 31, 2024, and USCIS conducted a record number of credible
fear interviews (more than 152,000) resulting from such cases. 89 FR
at 48724. This is more interviews from SWB encounters at and between
POEs during the same time span than in any full fiscal year prior to
2023, and more than twice as many as the annual average from FY 2010
to FY 2019. Id.
---------------------------------------------------------------------------
The Department disputes the assertion that noncitizens have been
unlawfully removed from the United States due to the application of the
CLP rule. Under the CLP rule, noncitizens have several protections
against removal, including demonstrating exceptionally compelling
circumstances at the time of entry to rebut the presumption of
ineligibility for asylum, as well as screening for statutory
withholding of removal and protection under the regulations
implementing U.S. obligations under Article 3 of the CAT.\71\ In
addition, as noted above, the United States has implemented its non-
refoulement obligations through statutory withholding of removal under
INA sec. 241, 8 U.S.C. 1231, not the discretionary asylum provisions in
section 208 of the INA, 8 U.S.C. 1158. Accordingly, it is not unlawful,
or a violation of the United States' non-refoulement obligations, to
remove a noncitizen found ineligible for asylum because they lack a
credible fear under CLP and further found not to have demonstrated a
reasonable possibility of persecution or torture for the purposes of
statutory withholding of removal or protection under the Convention
Against Torture regulations.
---------------------------------------------------------------------------
\71\ See 88 FR at 31452; Moncrieffe v. Holder, 569 U.S. 184, 187
n.1 (2013).
---------------------------------------------------------------------------
Comment: Several commenters opposed the justification for the
proposed rule stating that if at most 4 percent of the cases would be
affected, the proposed rule would not result in a meaningful portion of
the EOIR caseload being eliminated. Similarly, several commenters
objected to the justification for the proposed rule stating that the
extremely limited number of cases it would apply to does not justify
the unfairness of expecting newly arrived and often unrepresented
noncitizens to prove that mandatory bars do not apply to them.
Response: The proposed rule is not intended primarily as a backlog
reduction tool. The rule expands DHS's ability to more quickly remove
noncitizens who are enforcement priorities: those who present national
security or public safety threats.
DHS does believe that the rule will conserve interagency government
resources. Most significantly, noncitizens who are subject to the
mandatory bars often must be detained throughout their removal
proceedings. By issuing a decision at the earliest possible stage,
Immigration and Customs Enforcement's (ICE's) detention resources are
conserved in these cases. In addition, the rule would prevent some non-
meritorious cases from adding to the immigration court pending
caseload.
The Department acknowledges, however, that this rule will apply
only to a small subset of cases, as explained in section V.A.3 of this
preamble describing the low percentage of credible fear and reasonable
fear cases in which AOs have flagged the possible applicability of
mandatory bars and is therefore not likely to result in a significant
reduction in EOIR's caseload. See Section V.A.2 and Table 4 below.
Nevertheless, in the context of an immigration system that lacks the
full resources needed to handle its workload, even small efficiency
gains are important and may result in speedier decisions for other
noncitizens.
Comment: One commenter took issue with the justification for the
proposed rule based on efficiency gains, stating that the proposed rule
``will most certainly increase the time spent interviewing and writing
up a decision for those asylum officers who choose to consider a bar in
any given credible or reasonable fear interview and for their
supervisors.'' The same commenter stated that the proposed rule is
silent on scheduling procedures for cases potentially impacted by the
proposed rule, and does not acknowledge that the additional time spent
considering bars will contribute to the asylum backlog. Another
commenter similarly stated that by adding time to screening interviews,
the proposed rule does not save resources so much as frontload the
expenditure of resources on issues that may end up being relitigated at
a later stage.
Response: DHS disagrees with the commenter that the rule will
significantly increase the time spent on screening interviews and
decision making by USCIS. As the rule allows for permissive
consideration of the mandatory bars, AOs will only expend additional
resources interviewing when there is easily verifiable evidence that a
mandatory bar may apply and the AO believes they can efficiently
address the issue during a screening interview. Under current
procedures, AOs are already required to ask questions regarding the
mandatory bars in all screenings. DHS expects that, in the majority of
cases, no additional new questions will need to be asked under this
rule.
DHS does not anticipate the need to change the way it schedules
screening interviews as a result of this rule. Scheduling procedures
must be able to be quickly modified due to changes in workflow and are
not managed through regulations.
The Department recognizes that where AOs exercise discretion to
apply a mandatory bar at the screening stage because they believe the
bar can efficiently and effectively be addressed in the screening, AOs
may need to devote additional time developing the record as to that bar
and analyzing the bar in the written determination. At the same time,
where the AO bases a negative credible fear of persecution
determination on the application of a mandatory bar, they will not have
to perform a written credible fear of persecution analysis as to the
merits of the persecution claim. Additionally, the Department believes
that, in those cases, any possible added time will be offset by the
efficiency gain to the broader immigration system as a whole of
preventing noncitizens who are subject to a mandatory bar and would not
otherwise be able to establish eligibility for protection under CAT
from being placed in removal proceedings.
Comment: One commenter objected to the amount of discretion for
individual AOs provided by the proposed rule, coupled with the lack of
guidance provided by the proposed rule regarding when AOs should
consider mandatory bars. The commenter stated that this amount of
discretion could lead to impermissible discrimination or profiling
based on characteristics of the noncitizen. Another commenter objected
to the lack of guidance or examples provided in the proposed rule about
when the permissive consideration of bars would be appropriate, stating
that AOs would need to ``prophesy that such consideration would be fair
and efficient before spending the time to delve into all the nuances of
the case.''
Response: The rule provides discretion for AOs to consider
mandatory bars as a tool to maximize operational flexibility. However,
AOs'
[[Page 103389]]
discretion under the rule is not unbounded. All of the determinations
made by AOs in a screening interview are subject to supervisory review,
and, for negative determinations, to review by immigration judges if
requested by the noncitizen.
Decisions on whether the evidence of a mandatory bar present in the
case is easily verifiable and can be dealt with efficiently in the
context of a screening interview is necessarily fact specific. AOs are
trained to consider evidence \72\ in the context of where and from whom
the noncitizen claims fear, to assess the reliability of that evidence,
and to consider testimonial evidence from the noncitizen. Moreover, AOs
are well-versed in evaluating evidence as it relates to applying
mandatory bars in the context of the affirmative asylum caseload and in
conducting fear determinations generally; accordingly, they are well-
positioned to make the discretionary decision whether it would be
efficient and effective to apply a mandatory bar in an individual fear
screening, given the evidence available in the record.
---------------------------------------------------------------------------
\72\ USCIS, RAIO Directorate--Officer Training: Evidence (Apr.
24, 2024).
---------------------------------------------------------------------------
Comment: Several commenters stated that DHS failed to provide any
basis for what they described as a conclusory statement that the
juncture at which the bars' applicability is considered would have any
bearing on public safety or national security merely because those
issues are the subject of the relevant mandatory bars.
Response: Quickly removing noncitizens who may constitute a public
safety or security threat is a high priority for the Department. Many
of the noncitizens who would ultimately be subject to the mandatory
bars that AOs may consider under this rule could, based on the same
evidence, be considered public safety or national security threats. By
prioritizing decisions and consequences for these noncitizens, the
Department hopes to create disincentives to other noncitizens who may
constitute public safety or national security threats who may be
considering travelling to the United States.
D. Proposed Application of Mandatory Bars
1. Noncitizens in Credible Fear and Reasonable Fear Screenings (8 CFR
208.30 and 8 CFR 208.31)
Comment: One commenter expressed concerns over potential
limitations of telephonic credible and reasonable fear interviews,
including privacy during the interview and the ability of the AO to
assess non-verbal cues. Some commenters expressed concern that
noncitizens in the screening process do not have adequate time to rest
and prepare for their interviews.
Response: Concerns about privacy during screening interviews and
the limitations of telephonic interviews are outside the scope of this
rulemaking, as this rulemaking will not affect the mechanics how DHS
conducts credible fear and reasonable fear interviews. AOs already
elicit information related to potential mandatory bars during screening
interviews, and screening interviews are protected by regulations
governing confidentiality. 8 CFR 208.6, 1208.6. For detained
noncitizens, DHS provides private spaces so that noncitizens may speak
freely to the AO during their interview, although, in some facilities,
an officer may be present on site for safety purposes.\73\ Telephonic
credible fear and reasonable fear interviews are the current,
longstanding policy,\74\ and while AOs are not able to assess all
nonverbal cues telephonically, they are able to assess some, such as
tone of voice, inflection, and other auditory nonverbal communications.
The Department notes that it, along with DOJ, addressed similar
comments related to the conditions in which credible fear interviews
are conducted in the Securing the Border Final Rule.\75\
---------------------------------------------------------------------------
\73\ Credible Fear Procedures Manual, Section III.D.3 (May 10,
2023); Perryman, Brian R. INS Office of Field Operations. Security
and Privacy Provisions for Credible Fear Interviews Under Expedited
Removal, Memorandum to Regional Directors, District Directors,
Assistant District Directors for Detention and Deportation and
Asylum Office Directors (Washington, DC: 1 July 1997).
\74\ See USCIS ``Credible Fear Procedures Manual,'' Section
III.E.1, <a href="https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf">https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf</a>; USCIS, ``Reasonable Fear
Procedures Manual,'' Section III.E.1, <a href="https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf">https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf</a>.
\75\ See 89 FR at 81201-02.
---------------------------------------------------------------------------
2. Noncitizens Subject to CLP Presumption of Ineligibility, Statutory
Withholding of Removal Screening (Sec. 208.33)
Comment: A few commenters expressed opposition to the proposed
rule's inclusion of noncitizens subject to the CLP presumption of
eligibility. One such commenter wrote that the provision to assess
certain bars when the CLP rule applies could detrimentally affect the
most vulnerable, including those fleeing oppressive regimes, adding
that people fleeing countries where they face persecution do not have
the time or means to navigate the complex and, at times, inaccessible
legal pathways to asylum in the United States. The commenter also
stated that empowering AOs to apply the bars would defy basic
principles of fairness, increasing barriers for those subject to both
the CLP rule and this proposed rule.
Response: The Department rejects the commenters' claims that
analysis of the mandatory bars alongside the application of CLP could
disproportionately impact certain vulnerable populations and that the
rule defies principles of fairness. Commenters did not provide any
explanation for why applying mandatory bars in the context of
screenings under the CLP rule, which is intended to promote lawful,
safe, and orderly pathways to the United States and to benefit
particularly vulnerable groups by removing the incentive to make a
dangerous irregular migration journey, would disproportionately impact
any class of noncitizens. See 88 FR at 31314. Further, as noted
elsewhere, this rule does not change substantive eligibility for asylum
or for withholding of removal, so the discretionary authority of AOs
provided by this rule to consider the covered statutory bars in CLP
screening interviews will not affect the ultimate forms of relief
available to a noncitizen. The Department will apply the rule fairly
and emphasizes that the Department believes that this rule will impact
a relatively small number of individuals who are not eligible for
protection because they present a national security or public safety
threat.
To the extent that commenters' concerns regard the merits of the
CLP limitation on asylum eligibility, such concerns are outside the
scope of this rule. The Department previously accepted comments on that
rule and responded to those in the CLP final rule. 88 FR at 31324-441.
3. Inclusion of Specific Bars (e.g., Particularly Serious Crimes Bar,
Security Bar)
Comment: Some commenters expressed concerns over the potential
application of the persecutor bar with the limited time available for a
screening interview. A commenter wrote that the persecutor bar should
not be applied in fear screenings because it involves complex factual
inquiries and has unsettled legal questions. Some commenters wrote that
key questions of fact and law remained as to whether international
treaty obligations required the consideration of duress in
determinations involving the persecutor bar, or as to whether the
failure to recognize the duress exception unfairly
[[Page 103390]]
harms bona fide asylum seekers, among other issues. Commenters also
stated that AOs would need to make a prompt assessment of whether the
duress exception applies, an area of law that is unsettled. The result,
the commenter stated, would be erroneous applications of the bar based
on poor factual development and rushed legal analysis. These commenters
wrote that this analysis should occur at the merits stage, not in the
expedited removal setting.
Response: The Department understands the complexities of the
persecutor bar,\76\ but it disagrees with the commenters' statements
that analysis of the persecutor bar is legally and factually too
complex to be analyzed in a screening interview and that the extensive
factual development required would lead to erroneous application of the
bar. AOs already inquire into the potential applicability of mandatory
bars, including the persecutor bar, during credible fear and reasonable
fear screenings, noting any relevant information in the record. While
many cases implicating the persecutor bar involve complex factual and
legal issues, not all do. For example, a noncitizen who admits in
credible testimony under oath to having voluntarily forced a woman to
abort a pregnancy as part of the noncitizen's work as a health ministry
official charged with enforcing the Chinese government's ``one child
policy'' when it was in effect would clearly be barred from asylum and
statutory withholding of removal as a persecutor.\77\
---------------------------------------------------------------------------
\76\ For example, the possible ``duress exception'' referenced
by commenters has had multiple interpretations over the years from
the Board of Immigration Appeals and the Attorney General. See
Negusie v. Holder, 555 U.S. 511 (2009) (``Negusie I'') (overruling a
prior Board decision finding the plain language of the statute not
allowing for a duress defense or exception and declaring the
persecutor bar ambiguous as to consideration of duress or coercion);
Matter of Negusie, 27 I&N Dec. 347 (BIA 2018) (``Negusie II'')
(interpreting the persecutor bar for asylum as including a narrow
duress defense); Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)
(``Negusie III'') (finding the plain language of the persecutor bar
as not allowing for consideration of duress); Matter of Negusie, 28
I&N Dec. 399 (A.G. 2021) (``Negusie IV'') (ordering the Board to
refer Negusie's case to the Attorney General and staying Negusie's
case pending the Attorney General's review). The Attorney General's
decision in Negusie III remains in effect, and any further review
remains pending.
\77\ See Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006) (holding
that ``transporting captive women to undergo forced abortions''
pursuant to the one-child policy was assistance in persecution).
---------------------------------------------------------------------------
Furthermore, the persecutor bar shares multiple elements with the
refugee definition at section 101(a)(42)(A) of the INA, 8 U.S.C.
1101(a)(42)(A), that officers must analyze in every asylum case,
including whether the harm at issue rises to the level of persecution
and whether it was or would be inflicted on account of one of the five
protected grounds. The only additional considerations in the persecutor
bar analysis involve analyzing the applicant's participation in (rather
than experience or fear of) persecution, that is, whether the applicant
ordered, incited, assisted, or otherwise participated in the
persecution, and analyzing whether the applicant had the requisite
knowledge that the persecution was being or would be carried out. While
these additional elements may in some cases introduce a level of
complexity that would counsel against consideration of the persecutor
bar in a screening context, they do not necessarily do so in every
case. This significant overlap with the refugee definition analysis,
which AOs must routinely conduct in both credible fear screenings and
affirmative asylum adjudications, demonstrates that considering the
persecutor bar need not involve complex legal or factual issues in
every case in which it arises and that in some cases where there is
clear evidence it does apply, AOs will be able to address it
efficiently in credible fear or reasonable fear screenings.
Where there is evidence available to the AO that triggers an
inquiry into an applicable mandatory bar, and the AO can address that
bar efficiently at the screening interview, then the noncitizen will be
given the opportunity to establish, at the relevant standard, that the
bar would not apply. Under this rule, AOs will have the flexibility to
apply certain mandatory bars during screenings as it relates to
eligibility for asylum and statutory withholding of removal, and the
individual will continue to have the opportunity to establish a
credible or reasonable fear of torture. Notably, this rule would not
require AOs to consider applicability of mandatory bars as part of a
fear determination.\78\ Such a requirement would reduce operational
flexibility by potentially adding hours to interviews in which there
are indicia that a bar might apply, but for which applicability is
unclear.\79\ Moreover, this proposed rule would not disturb the long-
standing regulation establishing that in making credible fear
determinations, AOs ``shall consider whether the [ ] case presents
novel or unique issues that merit consideration in a full hearing
before an immigration judge.'' 8 CFR 208.30(e)(4). This rule also
preserves the option for noncitizens to be placed in an AMI or in
proceedings before an immigration judge when evidence surrounding a
possible mandatory bar needs to be further developed, as is currently
the practice. Likewise, ICE will retain the ability to detain or
otherwise monitor the noncitizen in those cases. See INA sec.
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(1)(ii); 8 CFR 208.9; see also
INA sec. 212(d)(5)(A), 8 U.S.C 1182(d)(5)(A); 8 CFR 212.5(d),
235.3(b)(4)(ii). The Department believes this discretion will safeguard
against erroneous application of the bar when it is clear that further
evidence or interviews are needed. This is why preserving the AO's
discretion in analyzing the mandatory bars is integral to the rule.
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\78\ The Global Asylum Rule took a different approach than this
proposal, requiring that AOs consider multiple mandatory bars. See
85 FR 80274, 80278 (Dec. 11, 2020) (``DHS requires asylum officers
to determine . . . whether an alien is subject to one or more of the
mandatory bars''). This proposed rule would not require such
consideration.
\79\ Because credible fear screenings are conducted at the
significant possibility standard, in cases where the application of
a bar is not obvious, requiring the AO to consider application of a
bar would likely result in significantly extended interviews with no
meaningful outcome because relevant information might not be
available to the officer at screening even with a significantly
extended interview.
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Comment: Some commenters also stated that the particularly serious
crime bar is legally and factually complex and thus is inappropriate
for inclusion in screening interviews. Commenters added that, since the
bar is different for asylum and statutory withholding of removal,
applying this bar in both credible fear and reasonable fear interviews
would be confusing for AOs who are assigned to do both types of
screenings. A commenter further reasoned that there is no indication
that the application of the particularly serious crime bar would have
any meaningful impact on screening interview efficiency because the
particularly serious crime provision applies in circumstances where an
individual has a conviction inside the United States, and most people
undergoing a credible fear interview will not have been present in the
United States previously and thus are unlikely to have been convicted
of such a crime. Instead, the commenter wrote, this bar would likely
only apply in the reasonable fear context to narrow subset of
individuals. The commenter suggested that, if the Department moves
forward with this proposed rule, it should, at minimum, remove the
application of this bar from the factors to be considered.
Response: The Department disagrees with commenters' statements that
the particularly serious crime bar analysis is
[[Page 103391]]
legally and factually too complex to be analyzed in a screening
interview and that any factual development required during a screening
interview would lead to erroneous application of the bar. AOs already
inquire into the potential applicability of mandatory bars, including
the particularly serious crime bar, during credible fear and reasonable
fear screenings, noting any relevant information in the record. The
Department also disagrees with the comment that because the
particularly serious crime bar is applied differently in asylum and
withholding of removal, it will be confusing for AOs to analyze. As
previously stated, AOs are highly capable of assessing mandatory bars
at the credible fear screening, based on their specialized training in
asylum law. AOs will also retain discretion not to analyze the bars,
especially where it is clear that further evidence and fact-gathering
is needed. AOs receive continuous training on relevant topics to ensure
their ability to conduct thorough interviews and make legally
sufficient determinations.
The Department also disagrees with the comment that the rule will
lack meaningful impact on interview efficiency because the particularly
serious crime bar applies to U.S. convictions and is unlikely to impact
many noncitizens. The particularly serious crime bar may apply to both
U.S. and foreign convictions, depending on the facts surrounding the
noncitizen's conviction, the noncitizens' immigration history, and when
a fear claim is made. See 8 CFR 208.13(c); INA secs. 208(b)(2)(A)(ii),
241(b)(3)(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). While
the Department believes this rule will impact a very small number of
noncitizens who will be removed early on in the immigration process,
this impact is still meaningful because it will free resources further
in the process, specifically with EOIR, ICE, and CBP to process other
cases more expeditiously. Inclusion of the particularly serious crime
bar in this rule serves a Department priority: to protect the public
from noncitizens who pose national security and public safety concerns.
Comment: Some commenters expressed concern with the application of
the serious nonpolitical crime bar. Another wrote that the serious
nonpolitical crime bar is not defined in the INA and does not require
an arrest or conviction and the application of this bar is legally and
factually intensive and contingent on the reliability of the available
evidence. A commenter stated the reliability of the evidence would be
subject to the circumstances of hundreds of different legal systems
from around the world. Some commenters expressed concern that the
analysis of the bar is too complex for screening interviews and
applying this bar could require extensive factual development and
review of evidence by AOs, which would further delay findings or lead
to erroneous application of the bar. A commenter is contingent on
available and reliable evidence from foreign legal authorities.
Response: While the INA does not define the phrase ``serious
nonpolitical crime,'' there is substantial case law involving the
serious nonpolitical crime bar \80\ that provides guidelines for AOs
when they encounter potential bar concerns. AOs already inquire into
the potential applicability of mandatory bars, including the serious
nonpolitical crime bar, during credible fear and reasonable fear
screenings, noting any relevant information in the record. The
Department appreciates the concerns noted in some of the comments,
namely that application of the serious nonpolitical crime bar is
legally and factually intensive and that, if improperly applied,
noncitizens may be denied due process or returned to places of
persecution. The Department is aware that analysis of the bar requires
a case-by-case evaluation of the facts and circumstances presented, but
as previously stated, AOs retain discretion to analyze the mandatory
bars, and may choose not to analyze the bar when it is clear in a given
case that additional analysis is needed. The Department is fully
committed to providing sufficient procedural safeguards consistent with
the purpose of the expedited removal process and believes that where
the potential bar analysis requires more fact-gathering and analysis
than can be completed during the screening interview, the noncitizen
may be placed in the AMI process or section 240 removal proceedings
before an immigration judge so that further analysis can occur.
Furthermore, not every case involving the serious nonpolitical crime
bar is factually and legally complex. For example, if the record
contains an authenticated record of conviction of the noncitizen for
rape from the government of the United Kingdom, such easily verifiable
evidence could be efficiently considered by an AO in the context of a
credible fear or reasonable fear screening.
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\80\ See INS v. Aguirre-Aguirre, 526 U.S. 415 (1999); Matter of
E-A-, 26 I&N Dec. 1 (BIA 2012).
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Comment: Commenters also expressed concerns regarding the inclusion
of the statutory security bars at INA secs. 208(b)(2)(A)(iv) and
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv). A
commenter expressed concern about expecting AOs to assess whether an
individual poses what the commenter called a ``true security threat''
to the United States during a screening interview. Citing case law, the
commenter stated there is unanimous agreement among foreign courts,
international law experts, and Congress' legislative history that this
bar was conceived as a narrow exception to non-refoulement obligations.
In considering the high threshold for meeting the bar, the commenter
said Congress did not intend to allow DHS to improperly subject asylum
seekers to this bar and remove ``otherwise-eligible asylees who do not
present genuine security threats to the United States,'' citing
Hernandez v. Sessions, 884 F.3d 107, 113 (2d Cir. 2018). Echoing other
comments on the bars, the commenter additionally stated that the
security bar requires a factual and legal analysis that would
substantively lengthen the time and resources that AOs need.
Furthermore, the commenter wrote, the risk of misapplying this bar
would be great.
Response: The Department rejects the concerns about AOs' ability to
assess whether a noncitizen poses a danger to the security of the
United States, that bar analysis will increase time and resources
needed, and that the risk of misapplication of the bar is great. As
previously stated, AOs will retain discretion to consider the bars at
the screening interview. AOs already inquire into the potential
applicability of mandatory bars, including the danger to the security
of the United States bar, during credible fear and reasonable fear
screenings, noting any relevant information in the record. Furthermore,
while the danger to the security of the United States bar often
involves complex factual and legal analysis, not every case in which it
arises does. For example, testimony under oath by a noncitizen who
admits to being an agent of a hostile foreign government who attempted
to irregularly enter the United States for the sole purpose of
conducting espionage targeting U.S. military bases would clearly
indicate the bar may apply. Faced with such evidence, AOs should not be
precluded from considering the applicability of the bar in a screening
interview.
Comment: Commenters also expressed concern over the inclusion of
the terrorism-related statutory bars at INA secs. 208(b)(2)(A)(v) and
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(v) and 1231(b)(3)(B)(iv). A
commenter stated that the terrorism bars have a history of wrongfully
labeling
[[Page 103392]]
individuals as terrorists and barring them from protection in the
United States, writing that these provisions have been used against
Afghan individuals and have been a vehicle for family separation. The
commenter concluded that applying the terrorism bars at the credible
fear interview and reasonable fear screening stage neither complies
with domestic and international refugee law, nor comports with U.S.
national security interests.
Response: The Department disagrees with the comment that applying
the terrorism bars in the screening interview neither complies with
domestic and international refugee law, nor comports with U.S. national
security interests. One of the Department's primary purposes is to
maintain national security by securing U.S. borders and protecting the
country from national security threats, including terrorism. As
previously mentioned, the number of noncitizens impacted by this rule
is expected to be modest. The Department believes that identifying and
removing noncitizens subject to the bars early in the process increases
efficiencies in the immigration system while also maintaining national
security. The U.S. government works to protect national security while
upholding our humanitarian mandates, in accordance with our domestic
and international obligations. In applying the terrorism bars, the
Department also considers numerous exceptions or discretionary
exemptions to the bars that may apply, including, for example,
situational exemptions for insignificant material support, certain
limited material support, exemptions for Afghan allies and civil
servants, and group-based exemptions.\81\ These exemptions are a
reflection of the Department's understanding that mandatory bar
application is a case-by-case analysis and that noncitizens seeking
protection may have faced unique circumstances that may warrant a
discretionary exemption from the mandatory bar if threshold
requirements are met and an exemption is warranted in the totality of
the circumstances. The Department again states that the AO would retain
discretion to analyze a mandatory bar at the screening stage and if
further evidence, interviews, or analysis are needed, may opt not to
analyze that bar during the screening. Instead, if the noncitizen
receives a positive determination, the bar would be fully explored in
an AMI or in front of the immigration judge. Finally, the claim that
the terrorism bars have wrongfully labelled noncitizens as terrorists,
and specifically has been used against Afghan noncitizens and as a
vehicle for family separation, is inapposite, as this rule does not
substantively amend the contours of who may be subject to this
statutory bar.
---------------------------------------------------------------------------
\81\ See USCIS, ``Terrorism-Related Inadmissibility Grounds--
Group-Based Exemptions,'' <a href="https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-group-based-exemptions">https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-group-based-exemptions</a> (last visited Aug. 29, 2024); and USCIS, ``Terrorism-
Related Inadmissibility Grounds--Situational Exemptions,'' <a href="https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-situational-exemptions">https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-situational-exemptions</a> (last visited Aug. 29, 2024).
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4. Exclusion of the Bars To Applying for Asylum and of the ``Firm
Resettlement'' Bar, INA Secs. 208(a)(2), (b)(2)(A)(vi)
Comment: A few commenters expressed appreciation that the firm
resettlement bar is excluded from this rule. A few commenters expressed
concern that the rule excludes consideration of the firm resettlement
bar and believe that officers should be required to consider all bars
during the screening process. Another commenter expressed concern that
the rule excludes consideration of the safe third country exception. A
commenter found the decision to not extend the consideration of the
firm resettlement bar to protection screenings selective and makes the
decision to consider the other bars at this stage ``questionable.'' A
commenter suggested DHS should require AOs to consider all bars to
asylum and statutory withholding of removal in fear screenings,
including the bars to applying for asylum at INA sec. 208(a)(2), 8
U.S.C. 1158(a)(2). The comment stated that it is arbitrary to exclude
all the bars from the rule. A commenter expressed concern that analysis
of the firm resettlement bar in particular is complex and it will be
difficult to properly analyze the bar during the screening process.
Response: DHS declines to include consideration of the bars to
applying for asylum--other than the safe third country bar as already
provided in 8 CFR 208.30(e)(6) for purposes of implementing the U.S.-
Canada Safe Third Country Agreement--and the firm resettlement bar in
fear screenings. Doing so would undermine the efficiency of fear
screenings and would not be a productive use of Department resources.
The overwhelming majority of noncitizens placed into the expedited
removal process who are referred for credible fear screenings appear
before an AO within days or weeks of arrival in the United States and
are therefore not subject to the 1-year filing requirement at INA sec.
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Furthermore, the safe third
country bar to applying for asylum at INA sec. 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A) currently only applies to certain noncitizens arriving
from Canada. The regulation at 8 CFR 208.30(e)(6) already provides
procedures for credible fear screening of such noncitizens, so doing so
in this rule would be duplicative. The bar to applying for asylum based
on the noncitizen having previously applied for and been denied asylum
at INA sec. 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C) is subject to an
exception for changed circumstances materially affecting eligibility
for asylum codified at INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
The necessity of exploring the applicability of this exception during a
credible fear interview would undermine the efficiency of the
screening, which is designed to quickly identify noncitizens without a
legal basis to remain in the United States and ensure those with viable
claims are able to pursue them in a full merits hearing or AMI. In
addition, these bars do not serve the same public safety purpose as the
bars that AOs will have the discretion to consider under this rule.
The Department acknowledges the comments expressing appreciation
that the Department did not include the firm resettlement bar in this
rule, DHS disagrees with comments that the firm resettlement bar should
be included and that AOs should be required to analyze all bars. One of
the purposes of this rule is to give AOs discretion, at the earliest
stage possible, to consider whether a noncitizen is unlikely to be able
to establish eligibility for asylum or statutory withholding of removal
because of a mandatory bar that relates to participation in
persecution, or national security, criminal, or other public safety
concerns. The Department believes that ignoring these serious concerns
runs counter to its policy goals. The firm resettlement bar, however,
does not fall into one of the categories listed above. Moreover,
although firm resettlement constitutes a mandatory bar to asylum
eligibility, it is not a bar to eligibility for statutory withholding.
Furthermore, as DHS explained in the NPRM, 89 FR at 41355, the firm
resettlement regulations currently in effect, 8 CFR 208.15, 1208.15
(2020), include a burden-shifting framework that requires the
Department to bear the initial ``burden of presenting prima facie
evidence of an offer of firm resettlement'' that can be rebutted by the
noncitizen. Matter of A-G-G-, 25 I&N Dec. 486, 501 (BIA 2011). This
framework differs from the analytical
[[Page 103393]]
framework for the security-related bars that are the subject of this
rulemaking. The Matter of A-G-G- framework and firm resettlement
definition could make it difficult for AOs to easily verify whether a
noncitizen is subject to the bar. This difficulty would also undermine
the efficiency of credible fear screenings, which is contrary to the
intent of Congress and the purpose of this rule.
5. Exclusion of CAT Screenings (Withholding of Removal) (Sec. Sec.
208.30(e)(3), 208.33(b)(2)(i), 208.35(b)(2)(i))
Comment: A commenter expressed concern that noncitizens found
ineligible for asylum and withholding of removal because of a mandatory
bar will only be eligible for protection under CAT. This commenter
believes that CAT protection is an inadequate form of protection.
Another commenter expressed concern that the rule would provide AOs too
much discretion to consider mandatory bars and requested limiting
discretion as related to trafficking victims and those seeking
protection under CAT.
Response: This rule does not change the underlying grounds of
eligibility for asylum, withholding of removal, or protection under the
Convention Against Torture. The rule only amends the credible fear and
reasonable fear interview processes to allow AOs to apply certain
statutory mandatory bars earlier in the process--at the interview stage
rather than at a later full merits adjudication--than would occur
without this rule. Accordingly, a noncitizen who is determined to only
be eligible for CAT protection would also only be eligible for CAT
protection absent this rule. For these reasons, the Department declines
to further address commenters' concerns that CAT protection is
``inadequate'' as they are outside the scope of this rule's changes.
The Department disagrees with the claim that the rule will provide
AOs with too much discretion to consider mandatory bars and that
discretion should be limited as related to certain noncitizens. As
previously stated, AOs will have discretion to analyze the mandatory
bars, but where more information or evidence is needed concerning the
bar and the determination is positive, the noncitizen would proceed to
an AMI or a hearing before an immigration judge. Furthermore, AOs are
trained not only in asylum law but also to recognize signs of
trafficking and follow procedures to assist potential trafficking
victims.\82\
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\82\ USCIS, RAIO Directorate--Officer Training: Detecting
Possible Victims of Trafficking (Apr. 24, 2024).
---------------------------------------------------------------------------
6. Other/General Comments on the Application of Bars
Comment: A commenter stated that the rule should not apply to
family units in the Family Expedited Removal Management (FERM) program
\83\ because family units often lack legal counsel, may speak uncommon
languages, and may not have enough time to gather evidence for their
interviews.
---------------------------------------------------------------------------
\83\ DHS-ICE, ``ICE announces new process for placing family
units in expedited removal,'' <a href="https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal">https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal</a> (May
10, 2023).
---------------------------------------------------------------------------
Response: DHS currently places certain non-detained family units in
the credible fear process in the FERM program. FERM leverages
alternatives to detention to process families through expedited
removal, including credible fear screenings, in a non-detained setting.
FERM is designed to ensure family units in the credible fear process
participate in a timely credible fear interview and any requested
review by an immigration judge without being detained.\84\ Placement in
the FERM program has no impact on the substantive credible fear
screening nor changes the applicable legal standards. This rule applies
to credible fear screenings in the non-detained FERM program the same
as it applies to credible fear screenings that take place in detention.
As with any other noncitizen in the credible fear screening process,
AOs have the discretion to apply certain mandatory bars pursuant to
this rule at the credible fear screening and if applied, noncitizens
will have the opportunity to present evidence that the bar does not
apply at the appropriate standard depending on the case. The concerns
noted in this comment are no different than those mentioned by other
commenters about the overall population of noncitizens in the screening
process. As previously stated, noncitizens in credible fear may be
represented by an attorney at no cost to the government and may consult
with persons of their choosing. INA sec. 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv), 8 CFR 235.3(b)(4)(ii); 208.30(d)(4), 8 CFR
208.31(c). The Department also provides government-contracted
interpreters if the noncitizen is unable to proceed with the interview
in English. 8 CFR 208.30(d)(5). The Department emphasizes that the rule
does not require AOs to consider applicability of the bars in the fear
determination, including FERM cases, and that the Department estimates
this will impact a relatively small number of individuals who are not
eligible for protection.
---------------------------------------------------------------------------
\84\ DHS-ICE, ``ICE announces new process for placing family
units in expedited removal,'' <a href="https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal">https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal</a> (May
10, 2023).
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7. Screening Procedures, AO Determinations, Immigration Judge Review of
Negative Fear Determinations
Comment: A few commenters expressed concern with the proposal to
make AOs' consideration of the bars at the fear screening stage
discretionary. For example, commenters expressed concern that the
opacity of the screening interview process and the discretion given to
AOs would make it impossible to verify DHS's implied claim that there
is an easily identifiable population of individuals who are ineligible
for asylum but are nonetheless subject to screening interviews. The
commenters indicated this dynamic necessarily means the rule's effects
would ultimately be obscure and unaccountable to the public.
Response: DHS disagrees that the processes under which it conducts
screening interviews are opaque. Regulations governing credible fear
and reasonable fear screenings conducting by DHS are published at 8 CFR
208.30, 208.31, 208.33, 208.35, 235.3, and 235.15. USCIS maintains
information about credible fear and reasonable fear screenings on its
public website.\85\ Individuals undergoing credible fear screenings
receive written disclosures about the process. 8 CFR 235.3(b)(4)(i) and
235.15(b)(4)(i)(B). AOs are required to determine that noncitizens
undergoing reasonable fear screenings understand the reasonable fear
determination process. 8 CFR 208.31(c). Noncitizens have the right to
consult with a person or persons of their choosing before undergoing a
credible fear interview, and such person or persons may also be present
at the interview. 8 CFR 208.30(d)(4).
[[Page 103394]]
Noncitizens undergoing reasonable fear interviews may be represented by
counsel or an accredited representative at the interview. 8 CFR
208.31(c). After an AO conducts a credible fear screening, the officer
issues the noncitizen a record of the credible fear determination,
including copies of the AO's notes, the summary of the material facts,
and other materials upon which the determination was based. 8 CFR
208.30(f), (g), 208.33(b)(2)(v), 208.35(b)(2)(v). Noncitizens
determined to lack a credible fear of persecution or torture may have
such determinations reviewed by an immigration judge. 8 CFR 208.30(g),
208.33(b)(2), 208.35(b)(2), 1003.42, and 1208.30(g). Noncitizens
determined to lack a reasonable fear of persecution or torture are
informed of the decision in writing and may request review of the
decision by an immigration judge. 8 CFR 208.31(f) and (g). Supervisors
review all credible fear and reasonable fear determinations for legal
sufficiency and compliance with applicable procedures before such
determinations are issued.\86\ These measures and others ensure the
credible fear and reasonable fear screening processes are transparent
and subject to accountability through review, including before an
immigration judge at the noncitizen's request.
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\85\ See USCIS, ``Credible Fear Screenings,'' <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/credible-fear-screenings">https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/credible-fear-screenings</a> (last visited June 24, 2024); USCIS, ``Questions and
Answers: Credible Fear Screening,'' <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening">https://www.uscis.gov/humanitarian/refuge
[…truncated; see source link]Indexed from Federal Register on December 18, 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.