Rule2024-30500
Clarification Regarding Bars to Eligibility During Credible Fear and Reasonable Fear Review
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 27, 2024
Effective
December 27, 2024
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
This interim final rule ("IFR") makes a technical amendment to Department of Justice ("Department") regulations to clarify that immigration judges' de novo review of asylum officers' credible fear and reasonable fear determinations shall, where relevant, include review of the asylum officer's application of any bars to asylum or withholding of removal under Department of Homeland Security ("DHS") regulations, as well as other clarifying technical changes related to credible fear and reasonable fear processes.
Full Text
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<title>Federal Register, Volume 89 Issue 248 (Friday, December 27, 2024)</title>
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[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Rules and Regulations]
[Pages 105392-105403]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30500]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1208
[EOIR Docket No. 025-0910; A.G. Order No. 6107-2024]
RIN 1125-AB33
Clarification Regarding Bars to Eligibility During Credible Fear
and Reasonable Fear Review
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim final rule; request for comment.
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SUMMARY: This interim final rule (``IFR'') makes a technical amendment
to Department of Justice (``Department'') regulations to clarify that
immigration judges' de novo review of asylum officers' credible fear
and reasonable fear determinations shall, where relevant, include
review of the asylum officer's application of any bars to asylum or
withholding of removal under Department of Homeland Security (``DHS'')
regulations, as well as other clarifying technical changes related to
credible fear and reasonable fear processes.
DATES:
Effective date: This interim final rule is effective December 27,
2024.
Comments: Electronic comments must be submitted, and written
comments must be postmarked or otherwise indicate a shipping date on or
before January 27, 2025. The electronic Federal Docket Management
System (FDMS) at <a href="https://www.regulations.gov">https://www.regulations.gov</a> will accept electronic
comments until 11:59 p.m. Eastern Time on that date.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name and reference
RIN 1125-AB33 or EOIR Docket No. 025-0910, by one of the two methods
below.
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow
the website instructions for submitting comments.
<bullet> Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to:
Sarah Flinn, Acting Assistant Director for Policy, Office of Policy,
Executive Office for Immigration Review, Department of Justice, 5107
Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper
handling, please reference the agency name and RIN 1125-AB33 or EOIR
Docket No. 025-0910 on your correspondence. Mailed items must be
postmarked or otherwise indicate a shipping date on or before the
submission deadline.
FOR FURTHER INFORMATION CONTACT: Sarah Flinn, Acting Assistant Director
for Policy, Office of Policy, Executive Office for Immigration Review,
Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041;
telephone (703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this IFR
via one of the methods and by the deadline stated above. The Department
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this IFR. Comments that will
provide the most assistance to the Department will reference a specific
portion of the IFR; explain the reason for any recommended change; and
include data, information, or authority that support such recommended
change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
<a href="http://www.regulations.gov">www.regulations.gov</a>. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONALLY
IDENTIFYING INFORMATION'' in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify the confidential
business information to be redacted
[[Page 105393]]
within the comment. If a comment has so much confidential business
information that it cannot be effectively redacted, all or part of that
comment may not be posted on <a href="http://www.regulations.gov">www.regulations.gov</a>.
Personally identifiable information located as set forth above will
be placed in the agency's public docket file, but not posted online.
Confidential business information identified and located as set forth
above will not be placed in the public docket file. The Department may
withhold from public viewing information provided in comments that it
determines may impact the privacy of an individual or is offensive. For
additional information, please read the ``Privacy & Security Notice''
that is available via the link in the footer of <a href="http://www.regulations.gov">www.regulations.gov</a>. To
inspect the agency's public docket file in person, you must make an
appointment with the agency. Please see the FOR FURTHER INFORMATION
CONTACT paragraph above for agency contact information.
II. Legal Authority
The Department issues this IFR pursuant to section 103(g) of the
Immigration and Nationality Act (``INA''), 8 U.S.C. 1103(g), as amended
by the Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116
Stat. 2135 (as amended). Under the HSA, the Attorney General is charged
with ``such authorities and functions under [the INA] and all other
laws relating to the immigration and naturalization of [noncitizens]
\1\ as were [previously] exercised by the Executive Office for
Immigration Review [(``EOIR'')], or by the Attorney General with
respect to [EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6
U.S.C. 521. The Attorney General also has the authority to ``establish
such regulations, . . . issue such instructions, review such
administrative determinations in immigration proceedings, delegate such
authority, and perform such other acts as the Attorney General
determines to be necessary for carrying out'' the Attorney General's
authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2). These
authorities cover forms of relief or protection from removal, including
asylum, statutory withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. 1231(b)(3), and protection under the regulations
implementing U.S. obligations under Article 3 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(``CAT'').\2\
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\1\ For purposes of the discussion in this preamble, the
Department uses the term ``noncitizen'' synonymously with the term
``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C.
1101(a)(3); 8 CFR 1001.1(gg).
\2\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty
Doc. No. 100-20, 1465 U.N.T.S. 85, 114.
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Noncitizens who are physically present or arrive in the United
States as provided in section 208 of the INA, 8 U.S.C. 1158, may apply
for asylum, subject to certain exceptions in section 208(a)(2) of the
INA, 8 U.S.C. 1158(a)(2). By statute, certain noncitizens are
ineligible to apply for or to be granted asylum, and Congress has
delegated to the Attorney General the authority to establish additional
limitations and conditions, consistent with applicable statutes, under
which noncitizens shall be ineligible for asylum. See INA 208(b)(2)(A),
8 U.S.C. 1158(b)(2)(A) (statutory bars to asylum); INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C) (additional limitation authority); INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (allowing for additional
regulatory conditions or limitations on consideration of asylum
applications). The Attorney General is also charged with providing a
review procedure for negative credible fear determinations regarding
asylum made by an asylum officer during the expedited removal process.
See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).
Additionally, the United States is a party to the 1967 United
Nations 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 ``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.'' 19 U.S.T. at 6276. Congress codified
these obligations in the Refugee Act of 1980, creating the precursor to
what is now known as statutory withholding of removal.\3\ 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.\4\ See INA
241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. By
statute, certain noncitizens are ineligible for statutory withholding
of removal. See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (establishing
bars to statutory withholding of removal).
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\3\ Public Law 96-212, 94 Stat. 102 (``Refugee Act'').
\4\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999); see
also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987)
(distinguishing between Article 33's non-refoulement prohibition,
which aligns with what was then called withholding of deportation,
and Article 34's call to ``facilitate the assimilation and
naturalization of refugees,'' which the Court found aligned with the
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158).
The Refugee Convention and Refugee Protocol are not self-executing.
See, e.g., Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005)
(``The 1967 Protocol is not self-executing, nor does it confer any
rights beyond those granted by implementing domestic
legislation.'').
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Separately, the Department also has authority to implement Article
3 of the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty
Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States
Nov. 20, 1994). The Foreign Affairs Reform and Restructuring Act of
1998 (``FARRA'') provides the Department with the authority to
``prescribe regulations to implement the obligations of the United
States under Article 3 of the [CAT], subject to any reservations,
understandings, declarations, and provisos contained in the United
States Senate resolution of ratification of the Convention.'' Public
Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C.
1231 note). The Department has implemented the United States'
obligations under Article 3 of the CAT by regulation, consistent with
FARRA. See, e.g., 8 CFR 1208.16(c)-1208.18; Regulations Concerning the
Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), amended by 64
FR 13881 (Mar. 23, 1999).
III. Background
A. Asylum and Related Protection
Asylum is a discretionary form of relief for noncitizens who
establish, among other things, that they have experienced past
persecution or have a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1)
(providing that the Attorney General ``may'' grant asylum to
[[Page 105394]]
refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining
``refugee'').
Noncitizens who are ineligible, by statute or regulation, to apply
for or to be granted asylum, or who are denied asylum as a matter of
discretion, nonetheless may qualify for other forms of protection from
removal.\5\ Specifically, such an applicant may be eligible for
statutory withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3). Statutory withholding of removal prevents a
noncitizen's removal to any country where the noncitizen's life or
freedom would ``more likely than not'' be threatened because of a
protected ground. See generally 8 CFR 1208.16(b)(2) (withholding of
removal under the INA); see also INS v. Stevic, 467 U.S. 407, 413, 424
(1984) (holding that the ``clear probability'' or ``more likely than
not'' standard applies to withholding of deportation); INS v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987) (holding that, while withholding of
removal requires a showing that it is ``more likely than not'' that a
noncitizen would be subject to persecution, an applicant for asylum
must only demonstrate a ``well-founded fear'' of persecution).
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\5\ Applications for asylum are treated as applications for
statutory withholding of removal and protection under the CAT, where
relevant. See 8 CFR 1208.3(b) (treating an asylum application as an
application for statutory withholding of removal), 1208.13(c)(1)
(explaining that an asylum applicant shall also be considered for
CAT protection ``if the applicant requests such consideration or if
the evidence presented by the [noncitizen] indicates that the
[noncitizen] may be tortured in the country of removal'').
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Additionally, noncitizens who express a fear of torture may be
eligible for protection under the CAT, which is available in two forms:
withholding of removal or deferral of removal. See 8 CFR 1208.16(c)
(CAT withholding of removal), 1208.17 (CAT deferral of removal),
1208.18 (CAT implementation). Both withholding of removal and deferral
of removal under the CAT prevent a noncitizen's removal to any country
where the noncitizen is ``more likely than not'' to be tortured. 8 CFR
1208.16(c), 1208.17, 1208.18.
The INA includes several statutory bars to asylum, which can affect
a noncitizen's ability to apply for, or their eligibility for, such
relief. Compare INA 208(a)(2), 8 U.S.C. 1158(a)(2) (bars to applying
for asylum), with INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (bars to
eligibility for asylum). For example, the statute contains six
mandatory bars to asylum eligibility, covering any noncitizen: (1) who
``ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of'' a protected ground; (2) who,
``having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of the United States;''
(3) for whom ``there are serious reasons for believing'' that the
noncitizen ``has committed a serious nonpolitical crime outside the
United States'' prior to arrival in the United States; (4) for whom
``there are reasonable grounds for regarding'' as ``a danger to the
security of the United States;'' (5) who is described in the terrorism-
related inadmissibility grounds, with limited exception; or (6) who
``was firmly resettled in another country prior to arriving in the
United States.'' See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
The statute also includes four similar mandatory bars to
withholding of removal eligibility for a noncitizen: (1) who ``ordered,
incited, assisted, or otherwise participated in the persecution of an
individual because of the individual's race, religion, nationality,
membership in a particular social group, or political opinion''; (2)
who, having been convicted by a final judgment of a particularly
serious crime, is a danger to the community of the United States; (3)
for whom ``there are serious reasons to believe'' that the noncitizen
committed a serious nonpolitical crime outside the United States before
their arrival in the United States; or (4) for whom ``there are
reasonable grounds to believe that'' the noncitizen is a danger to the
security of the United States, including for engaging in terrorist
activities as described in INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B).\6\
See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).
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\6\ The statute sets forth another bar to withholding of removal
eligibility for those who participated in Nazi persecution,
genocide, or the commission of any act of torture or extrajudicial
killing. INA 237(a)(4)(D), 8 U.S.C. 1227(a)(4)(D). This bar does not
apply to noncitizens in expedited removal, as it only applies to
noncitizens who are ``deportable'' under section 237(a)(4)(D) of the
INA, 8 U.S.C. 1227(a)(4)(D), i.e., admitted noncitizens. However,
this bar could be relevant for purposes of reasonable fear
screening, as it could be applied to admitted noncitizens subject to
administrative removal under section 238 of the INA, 8 U.S.C. 1228
(expedited removal of noncitizens convicted of committing aggravated
felonies).
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Regarding protection under the CAT, noncitizens who are subject to
a bar to statutory withholding of removal pursuant to section
241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B), are likewise
ineligible for withholding of removal under the CAT. See 8 CFR
1208.16(d)(2) (explaining that ``an application for withholding of
removal . . . under the Convention Against Torture shall be denied if
the applicant falls within section 241(b)(3)(B) of the Act''). However,
there are no bars to deferral of removal under the regulations
implementing the CAT. See 8 CFR 1208.17(a); but see 8 CFR
1208.17(d)(4), (e) and (f) (explaining instances where deferral of
removal may be terminated). Thus, a noncitizen who is entitled to
protection under the CAT but is subject to a mandatory bar to CAT
withholding of removal ``shall be granted deferral of removal'' as a
limited form of protection. 8 CFR 1208.17(a). In other words, granting
deferral of removal under the CAT is mandatory for noncitizens who
establish eligibility for such protection. Id.
B. Credible Fear and Reasonable Fear Screening Processes
In the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. See INA
235(b)(1), 8 U.S.C. 1225(b)(1). The process is applicable to
noncitizens arriving in the United States (and, in the discretion of
the Secretary of Homeland Security, certain other designated classes of
noncitizens) who are found to be inadmissible under certain provisions
of the INA. See INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i)
(applying the expedited removal process to noncitizens inadmissible
under section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C)
(inadmissible based on material misrepresentations), and section
212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (documentation requirements
for admission)).
In the expedited removal process, such noncitizens may be ``removed
from the United States without further hearing or review unless the
[noncitizen] indicates either an intention to apply for asylum under
section 1158 of this title or a fear of persecution.'' INA
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If a noncitizen indicates
an intention to apply for asylum, a fear of persecution or torture, or
a fear of return, DHS uses a ``credible fear'' screening to identify
potentially valid claims for asylum, statutory withholding of removal,
and CAT protection, so as to prevent noncitizens placed in expedited
removal from being removed to a country in which they would face
persecution or torture without further consideration of their fear
claim. See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B);
see also 8 CFR 235.3(b)(4), 208.30(b).
To implement the credible fear screening process, such noncitizens
are referred for an interview by a U.S. Citizenship and Immigration
Services
[[Page 105395]]
(``USCIS'') asylum officer to determine whether the noncitizen has a
credible fear of persecution or torture. INA 235(b)(1)(A)(ii), (B), 8
U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4). 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 officer, that the [noncitizen] could
establish eligibility for asylum under section 1158 of [the INA].'' INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). The credible fear screening
by the asylum officer may also include consideration of certain
limitations on, or presumptions against, asylum eligibility. See, e.g.,
Circumvention of Lawful Pathways, 88 FR 31314, 31450 (May 16, 2023)
(codifying the lawful pathways condition on asylum eligibility at 8 CFR
208.33 and 1208.33); Securing the Border, 89 FR 81156 (Oct 7, 2024)
(codifying a limitation on asylum eligibility for certain noncitizens
who enter during emergency border circumstances).
During the screening process, such cases may be referred to EOIR
for the limited purpose of having an immigration judge review the
asylum officer's determination that a noncitizen does not have a
credible fear of persecution or torture. INA 235(b)(1)(B)(iii)(III), 8
U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g)(1). Specifically, if
the asylum officer determines that the noncitizen does not have a
credible fear of persecution or torture, the noncitizen may request
that an immigration judge review that determination. Id.; 8 CFR
208.30(g), 208.33(b), 208.35(b)(2)(v), 1208.30(g), 1208.33(b),
1208.35(b). This process is generally known as a ``credible fear
review.'' See, e.g., 8 CFR 1003.42 (``Review of credible fear
determinations''). Such reviews are intended to be concluded ``as
expeditiously as possible, to the maximum extent practicable within 24
hours, but in no case later than 7 days'' after the asylum officer's
determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). No further appeal is available from a credible
fear review.\7\ See 8 CFR 1003.42(f).
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\7\ Although a noncitizen may not appeal an immigration judge's
negative credible fear finding, USCIS may, in its discretion,
reconsider a negative credible fear determination where such
requests are available and initiated within the timeframe set forth
by regulation. See 8 CFR 208.30(g)(1)(i); see also
208.33(b)(2)(v)(C) (discretionary USCIS reconsideration under Lawful
Pathways rule); 208.35(b)(2)(v)(B) (same for Securing the Border
rule).
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Separately, reasonable fear proceedings involve noncitizens who
have been ordered removed under section 238(b) of the INA, 8 U.S.C.
1228(b), based on an aggravated felony conviction, or whose prior
orders of removal have been reinstated under section 241(a)(5) of the
INA, 8 U.S.C. 1231(a)(5), but who express a fear of returning to the
country of removal. See 8 CFR 208.31(a); 1208.31(a). The reasonable
fear screening process was established by regulation to fulfill a
statutory mandate to implement, in part, the United States' obligations
under Article 3 of the CAT. See Regulations Concerning the Convention
Against Torture, 64 FR at 8478 (``This rule is published pursuant to
this mandate to implement United States obligations under Article 3 in
the context of the Attorney General's removal of [noncitizens] . . .
.''). Specifically, the reasonable fear screening process was
established to provide for the fair resolution of claims to withholding
of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and
protection under the regulations implementing U.S. obligations under
Article 3 of the CAT, without unduly disrupting the streamlined removal
processes applicable to these noncitizens. Id. at 8479.
Similar to credible fear screenings, noncitizens who express fear
are referred to an asylum officer for a reasonable fear screening. See
8 CFR 208.31(b)-(c); see also Regulations Concerning the Convention
Against Torture, 64 FR at 8485 (explaining that the reasonable fear
process is ``modeled on the credible fear screening process'').
However, unlike those in the credible fear process, noncitizens subject
to the reasonable fear process are categorically ineligible for asylum
by virtue of their aggravated felony conviction, INA 208(b)(2)(A)(ii),
(B), 8 U.S.C. 1158(b)(2)(A)(ii), (B) (barring from asylum those
convicted of an aggravated felony), or being subject to reinstatement,
INA 241(b)(5), 8 U.S.C. 1231(b)(5) (rendering those whose removal
orders have been reinstated ineligible and unable to apply for any
``relief''). Rather, the asylum officer determines whether the
noncitizen has a reasonable fear of persecution or torture upon removal
and is therefore eligible for consideration of statutory withholding of
removal or CAT protection. See 8 CFR 208.31(c). A ``reasonable fear of
persecution or torture'' means that there is a reasonable possibility
that the noncitizen would be persecuted because of their race,
religion, nationality, membership in a particular social group, or
political opinion, or a reasonable possibility that the noncitizen
would be tortured if returned to the country of removal. 8 CFR
208.31(c).
Such cases may be referred to EOIR for the limited purpose of
having an immigration judge review the asylum officer's determination
that a noncitizen does not have a reasonable fear of persecution or
torture. See 8 CFR 1208.31(g) (``Review by immigration judge''). If the
asylum officer determines that the noncitizen does not have a
reasonable fear of persecution or torture, the noncitizen may request
that an immigration judge review that determination. See 8 CFR
1208.31(f). This is generally known as a ``reasonable fear review.''
Such reviews are intended to be conducted within 10 days of filing the
referral with the immigration court. See 8 CFR 1208.31(g). No further
administrative appeal is available from a negative reasonable fear
determination. See 8 CFR 1208.31(g)(1).
During both credible fear and reasonable fear reviews, immigration
judges review de novo an asylum officer's determination that a
noncitizen does not have a credible fear or reasonable fear, as
applicable. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (providing for prompt review of an asylum
officer's determination that a noncitizen does not have a credible fear
of persecution); 8 CFR 1003.42(a) (requiring DHS to file the written
record of determination with the immigration judge for credible fear
review), 1208.31(g) (same for reasonable fear review). The immigration
judge's review may include consideration of certain limitations on, or
presumptions against, asylum eligibility. See, e.g., 8 CFR 1208.33(b)
(review of the lawful pathways condition on asylum eligibility),
1208.35(b) (review of the limitation on asylum eligibility for certain
noncitizens who enter during emergency border circumstances).
However, asylum officers historically have not considered the
applicability of mandatory bars to asylum or withholding of removal
contained in INA 208(a)(2), (b)(2)(A), 8 U.S.C. 1158(a)(2), (b)(2)(A),
or INA 241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and
reasonable fear screenings, and accordingly, immigration judges have
not reviewed the application of those bars during review of credible
fear and reasonable fear determinations. But in recent years, there
have been a number of regulations seeking to permit or mandate the
[[Page 105396]]
consideration of some or all of these bars during the credible fear
process--followed, in some cases, by regulations reversing that
approach.
As one example, in 2020, DHS and DOJ amended the Departments'
regulations to instruct asylum officers and immigration judges to apply
certain mandatory bars during the credible fear process. See Procedures
for Asylum and Withholding of Removal; Credible Fear and Reasonable
Fear Review, 85 FR 80274, 80278 (Dec. 11, 2020) (``Global Asylum
Rule''). On January 8, 2021, the Global Asylum Rule was enjoined before
its effective date. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966,
977 (N.D. Cal. 2021).
Subsequently, in 2022, the Department and DHS issued a joint rule
amending the credible fear regulations at 8 CFR 208.30(e)(5), 8 CFR
1003.42, and 8 CFR 1208.30, as relevant here, returning the regulatory
text to the pre-Global Asylum Rule approach where asylum officers do
not consider the applicability of mandatory bars for credible fear
determinations, and therefore, immigration judges do not consider the
applicability of bars in reviewing such determinations. See Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078,
18219, 18221-22 (Mar. 29, 2022) (``Asylum Processing IFR'').
Most recently, in December 2024, DHS issued a rule to allow asylum
officers to consider the potential applicability of certain bars to
asylum and statutory withholding of removal during credible fear and
reasonable fear screenings. See 89 FR 103370 (Dec. 18, 2024) (``DHS
Mandatory Bars''). Specifically, the rule allows asylum officers to
apply the mandatory asylum and withholding of removal bars relating to
national security and public safety as set forth in INA 208(b)(2)(A)(i)
through (v), 8 U.S.C. 1158(b)(2)(A)(i) through (v) and INA
241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and
reasonable fear screenings in certain instances. See id.
IV. Description of the Interim Final Rule
A. Credible Fear and Reasonable Fear Review
The Department is issuing this IFR to make a technical amendment to
EOIR's regulations in order to clarify the scope of an immigration
judge's credible fear or reasonable fear review. Upon a noncitizen's
request, immigration judges have always reviewed--and will continue to
review--the underlying asylum officer determinations made during
credible fear or reasonable fear screenings that a noncitizen could not
establish potential eligibility for relief or protection. This rule
clarifies that an immigration judge's de novo review of an asylum
officer's credible fear or reasonable fear determination includes
review of the asylum officer's application of any bars to asylum and
withholding of removal considered by the asylum officer pursuant to DHS
regulations. See 8 CFR 1003.42(d) (credible fear review), 1208.31(g)
(reasonable fear review), 1208.33(b) (credible fear review after
application of the lawful pathways rebuttable presumption of asylum
ineligibility). This housekeeping measure ensures that immigration
judges consider the asylum officers' determinations made regarding
credible fear and reasonable fear, including their application of any
bars to asylum and withholding of removal, consistent with the
statutory scheme. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (statutory review role); 8 CFR 1003.42(d)
(credible fear review), 1208.31(g) (reasonable fear review), 1208.33(b)
(credible fear review after application of the lawful pathways
rebuttable presumption of asylum ineligibility).
With respect to credible fear screenings, this housekeeping
clarification accords with the statutory scheme set forth by the INA.
The INA charges asylum officers with making determinations whether a
noncitizen has demonstrated a credible fear of persecution, INA
235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), and immigration judges with
reviewing negative credible fear determinations, INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Consistent
with this division of screening and review authority, the DHS
regulations governing asylum officers have always addressed whether or
not the bars to asylum should be taken into consideration by the asylum
officer in credible fear screenings. During the long period when asylum
officers did not apply any of those bars, the EOIR regulations
governing immigration judges did not expressly address the issue.
Instead, the EOIR regulations simply provided for de novo review of the
asylum officer's determination that the noncitizen does not have a
credible fear of persecution or torture, taking into account any
additional evidence or testimony provided during the review.
Similarly, with respect to reasonable fear screenings, this rule
maintains consistency with the existing regulatory scheme, where asylum
officers ``determine'' whether the noncitizen has a reasonable fear of
persecution or torture, 8 CFR 208.31(c), and immigration judges may
review negative reasonable fear determinations. 8 CFR 1208.31(g). This
housekeeping measure clarifies that, going forward, the immigration
judge may continue to review the entirety of an asylum officer's
negative reasonable fear determination, including application of bars
during a reasonable fear screening under DHS regulations. This rule
also adds the words ``de novo'' to state that an ``asylum officer's
negative decision regarding reasonable fear shall be subject to de novo
review by an immigration judge,'' 8 CFR 1208.31(g), to explicitly
codify the standard by which the immigration judge reviews the asylum
officer's determination.
This rulemaking is intended to prevent future confusion regarding
whether an immigration judge's credible fear or reasonable fear review
will encompass review of the asylum officer's application of bars to
asylum or withholding of removal, consistent with existing review
requirements. See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B) (charging
DHS with making credible fear determinations and the Department with
review of those determinations); 8 CFR 1208.31(g) (authorizing
immigration judges to conduct reasonable fear reviews). This
clarification is particularly important in light of DHS's December 2024
rule to allow asylum officers to consider the potential applicability
of certain bars to asylum and withholding of removal during credible
fear and reasonable fear screenings. See DHS Mandatory Bars, 89 FR
103370.
Moreover, the Department found recent rulemakings regarding the
credible fear screening process instructive on providing clarity
regarding immigration judge review during that process. See, e.g.,
Circumvention of Lawful Pathways, 88 FR at 31314; Securing the Border,
89 FR at 81156. In these rulemakings, DHS and DOJ provided specific
regulatory provisions regarding immigration judge review of the
limitation on asylum eligibility or rebuttable presumption of asylum
ineligibility contained in those rules during credible fear reviews.
See, e.g., 8 CFR 1208.33(b) (review of the lawful pathways rebuttable
presumption of asylum ineligibility); 1208.35(b) (review of the
limitation on asylum eligibility for certain noncitizens who enter
during emergency border circumstances). The Department believes that
providing clarity in this rule regarding immigration judge review of
any bars to asylum or withholding of removal the asylum officer applied
[[Page 105397]]
during the credible fear and reasonable fear process would be similarly
beneficial.
Specifically, the Department is modifying EOIR's credible fear
review regulations to state: ``This determination shall, where
relevant, include review of the asylum officer's application of any
bars to asylum and withholding of removal pursuant to 8 CFR
208.30(e)(5).'' See 8 CFR 1003.42(d). The Department is also amending
the Circumvention of Lawful Pathways regulatory section to clarify that
immigration judges' de novo review under 8 CFR 1208.33(b) includes
review of the asylum officer's application of any bars to withholding
of removal pursuant to 8 CFR 208.33(b)(2).\8\ See 8 CFR 1208.33(b)(1).
Similarly, the Department is adding an affirmative sentence stating
that, during reasonable fear review before EOIR, ``[t]he immigration
judge's review shall, where relevant, include review of the asylum
officer's application of any bars pursuant to 8 CFR 208.31(c).'' See 8
CFR 1208.31(g).
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\8\ In amending these regulatory sections, the Department has
determined that it is unnecessary to also amend the Securing the
Border regulatory section at 8 CFR 1208.35. First, noncitizens who
are not subject to that rule's limitation on asylum eligibility
during the credible fear process are instead screened by asylum
officers pursuant to the procedures outlined in 8 CFR 208.30 or
208.33, as applicable. Accordingly, in those cases, immigration
judges will continue to review negative credible fear determinations
under 8 CFR 1003.42 or 1208.33(b), as applicable, and this rule
amends both of those sections to clarify immigration judges'
authority to review the asylum officer's application of any of the
mandatory bars to asylum or withholding of removal during the
credible fear process. Second, noncitizens who are subject to the
Securing the Border rule's limitation on asylum eligibility during
the credible fear process will receive a negative credible fear
determination with respect to the noncitizen's asylum claim because
of that rule's limitation on asylum, not because of the application
of any mandatory bar. These individuals are further screened for
potential eligibility for statutory withholding of removal and CAT
protection, but the Securing the Border rule does not create a free-
standing process for such screenings. Rather, such noncitizens are
screened for a reasonable probability of establishing eligibility
for statutory withholding of removal or CAT protection under the
procedures outlined in the existing Circumvention of Lawful Pathways
regulatory section at 8 CFR 208.33(b)(2)(ii), see 8 CFR
208.35(b)(2)(iii), and this rule amends the Circumvention of Lawful
Pathways provision at 8 CFR 1208.33(b) to clarify immigration
judges' authority to consider the asylum officer's application of
any mandatory bars to withholding of removal during credible fear
reviews. Accordingly, the Department believes this rule's amendments
to 8 CFR 1208.33 and 1003.42 are sufficient to clarify that
immigration judges have authority to review an asylum officer's
application of any of the mandatory bars even if the noncitizen is
subject to the limitation on, or presumption against, asylum
eligibility under the Circumvention of Lawful Pathways or the
Securing the Border rules.
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In making these changes, the Department notes that, while the
immigration judge's role is to conduct a de novo review of the asylum
officer's credible or reasonable fear determination, both the statute
and the regulations contemplate that the immigration judge may make
their ultimate de novo determination based on the record the asylum
officer provides, as well as evidence or testimony that was not
available to the asylum officer. See, e.g., INA 235(b)(1)(B)(iii)(III),
8 U.S.C. 1225 (b)(1)(B)(iii)(III) (explaining that a credible fear
review ``shall include an opportunity for the [noncitizen] to be heard
and questioned by the immigration judge. . . .''); 8 CFR 1003.42(d)
(noting that, during a credible fear review, the immigration judge will
``tak[e] 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 immigration judge''); Immigration Court
Practice Manual, Chapter 7.4(e)(4)(E) (October 25, 2023) (stating that,
during a reasonable fear review, ``[e]ither party may introduce oral or
written statements''). This rule, therefore, honors the statutory
screening and review scheme, while also preserving the existing
statutory and regulatory recognition that additional evidence or
testimony may be provided that implicates the noncitizen's credible or
reasonable fear.
The Department also notes that there may be instances where review
of an asylum officer's application of a bar may be unnecessary to make
a determination as to whether a noncitizen has a credible or reasonable
fear. For example, if the immigration judge finds that the noncitizen
could not establish a credible fear or reasonable fear for a separate
reason unrelated to any bars to asylum or withholding of removal, the
immigration judge does not need to then conduct further review of the
asylum officer's application of any bars. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (``As a general rule courts and agencies are not
required to make findings on issues the decision of which is
unnecessary to the results they reach.''). This ensures that such
reviews are ``concluded as expeditiously as possible,'' consistent with
the statute. INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III).
Further, the Department notes that this rulemaking does not itself
modify or alter the substantive standards applicable in credible fear
or reasonable fear screenings. See, e.g., 8 CFR 1003.42(d) (credible
fear standards), 1208.31(c) (reasonable fear standards), 1208.33(b)(2)
(credible fear standards under the Circumvention of Lawful Pathways
rule), 1208.35(b)(2)(iii) (credible fear standards under Securing the
Border rule). Nor does this rulemaking alter the procedures that
immigration judges currently follow during credible fear or reasonable
fear reviews. See generally 8 CFR 1003.42, 1208.30(g), 1208.31(g),
1208.33(b), 1208.35(b). In short, during credible fear and reasonable
reviews, immigration judges will continue to make a de novo
determination as to whether the noncitizen has made a threshold showing
under the relevant standard that they could establish eligibility for
asylum, statutory withholding of removal, or protection under the CAT,
as applicable. This rulemaking simply clarifies that, as part of these
existing reviews, immigration judges shall, where relevant, review the
asylum officer's application of any bars to asylum or withholding of
removal.
Additionally, the changes in this rulemaking do not affect the
ability of a noncitizen to pursue or receive deferral of removal under
the CAT, 8 CFR 1208.16(c)(4) and 1208.17, or the existing processes for
referring noncitizens with a fear of torture for adjudication of their
deferral claim, where applicable. See 1208.30(g)(2)(iv)(B) (referrals
from positive credible fear review); 1208.31(g)(2)(i) (further
consideration from positive reasonable fear review). There are no bars
to deferral of removal under the CAT, and noncitizens who demonstrate
the requisite credible or reasonable fear of torture will continue to
be able to pursue deferral of removal under the CAT, regardless of an
asylum officer's application of any bars to asylum or withholding of
removal specified in DHS regulations. Noncitizens who are referred for
further proceedings after positive credible or reasonable fear
determinations, and who then make the requisite showing that they are
more likely than not to be tortured, will therefore receive deferral of
removal, without any consideration of those bars.
B. Other Technical Changes
This rulemaking is also making minor technical edits for
consistency in the EOIR regulations amended by this rule. For example,
in 8 CFR 1003.42, the rule decapitalizes the words ``Immigration
Court'' and ``Immigration Judge'' to read ``immigration court'' and
``immigration judge.'' Similarly, the rule replaces outdated references
to ``the Service'' with ``DHS'' and updates references to form titles
in 8 CFR 1003.42 and 1208.31. The rule also makes two non-substantive
corrections to inadvertent
[[Page 105398]]
errors in cross-references to the definition of ``victim of a severe
form of trafficking in persons'' in 8 CFR 1208.33(a)(3)(i)(C) and
1208.35(a)(2)(i)(C).
This rulemaking also replaces the term ``alien'' with
``noncitizen'' in 8 CFR 1003.42, 1208.31, and 1208.33. Similarly, in 8
CFR 1208.33(a)(2)(i), this rulemaking replaces the phrase
``unaccompanied alien child as defined in 6 U.S.C. 279(g)(2)'' with the
phrase ``unaccompanied child as defined in 8 CFR 1001.1(hh).'' These
changes are consistent with recent terminology usage changes at EOIR.
See 8 CFR 1001.1(gg) (defining ``noncitizen'' as equivalent to the
statutory term `` `alien,' as defined in section 101(a)(3) of the
Act,'' 8 U.S.C. 1101(a)(3)), 1001.1(hh) (defining ``unaccompanied
child'' as equivalent to the statutory term `` `unaccompanied alien
child' as defined in 6 U.S.C. 279(g)(2)''); see also Efficient Case and
Docket Management in Immigration Proceedings, 89 FR at 46787 (adding
new 8 CFR 1001.1(gg)-(hh)).
This rule also removes and reserves 8 CFR 1208.31(b) through (d).
These paragraphs were duplicated from 8 CFR 208.31 as part of the
reorganization of title 8 following the transfer of functions from the
former Immigration and Naturalization Service to DHS due to the HSA.
Aliens and Nationality; Homeland Security; Reorganization of
Regulations, 68 FR 9824, 9834 (Feb. 28, 2003). Because these paragraphs
refer to DHS operations performed by asylum officers, not EOIR
immigration judges, they are therefore unnecessary to maintain in
EOIR's regulations. The Departments always regarded this duplication as
temporary and have periodically taken steps to eliminate unnecessary
duplication. E.g., id. at 9825-26; Background and Security
Investigations in Proceedings Before Immigration Judges and the Board
of Immigration Appeals, 70 FR 4743, 4749 & n.7 (Jan. 31, 2005);
Inflation Adjustment for Civil Monetary Penalties Under Sections 274A,
274B, and 274C of the Immigration and Nationality Act, 73 FR 10130,
10132 (Feb. 26, 2008).
The rule also makes clarifying, technical changes to 8 CFR
1003.42(a) and 8 CFR 1208.31(g) regarding the record forwarded by DHS
to the immigration court for credible fear or reasonable fear reviews.
These technical edits are designed to emphasize that the immigration
judge's review of the asylum officer's determination will consist of
the ``complete'' record, as described by statute in the credible fear
context, and as described by regulation in the reasonable fear context,
respectively.\9\ In other words, these edits are intended to provide
clarity for all parties by emphasizing that it is particularly
important for immigration judges to have the complete record to review
an asylum officer's application of any bars pursuant to 8 CFR 208.30(e)
and 8 CFR 208.31(c). See 8 CFR 1003.42(a), (d), 1208.31(g). These edits
to the EOIR regulations do not, however, substantively or procedurally
change the content or items that DHS provides to DOJ for the record of
a credible fear or reasonable fear determination.\10\
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\9\ In the credible fear context, by statute, the asylum officer
``prepare[s] a written record of a determination'' that ``include[s]
a summary of the material facts as stated by the applicant, such
additional facts (if any) relied upon by the officer, and the
officer's analysis of why, in the light of such facts, the
[noncitizen] has not established a credible fear of persecution''
and ``[a] copy of the officer's interview notes.'' INA
235(b)(1)(B)(iii)(II), 8 U.S.C. 1225(b)(1)(B)(iii)(II). Jurisdiction
for an immigration judge to review an asylum officer's determination
commences when DHS files this written record, as defined by the Act,
and a copy of the noncitizen's request for review, if any, with
EOIR. 8 CFR 1003.42(a). There is not a corresponding statutory
provision regarding the record in the reasonable fear context, but
the regulations require the asylum officer to provide EOIR with
``[t]he record of determination, including copies of the Notice of
Referral to the Immigration Judge, the asylum officer's notes, the
summary of the material facts, and other materials upon which the
determination was based. . . .'' 8 CFR 1208.31(g).
\10\ See id.
---------------------------------------------------------------------------
Next, the rule makes two clarifying edits to the EOIR regulations
at 8 CFR 1003.42(e). First, the rule amends the regulatory text for
specificity to include the form number--Form I-869--for the Record of
Negative Credible Fear Finding and Request for Review. 8 CFR
1003.42(e). Second, the rule clarifies that the immigration judge's
review of the negative credible fear determination will conclude no
later than 7 days after the supervisory asylum officer has ``concurred
with''--rather than ``approved''--the asylum officer's negative
credible fear determination for conformity with DHS's terminology
regarding its internal processes for supervisory review. Id.; see,
e.g., 8 CFR 208.30(b) (``after supervisory concurrence'') (emphasis
added), (e)(6)(i) (``[i]f the asylum officer, with concurrence from a
supervisory asylum officer'') (emphasis added), (e)(7)(i)(A) (same).
Additionally, this rule makes technical changes to the EOIR
regulations at 8 CFR 1003.42(d) and 1208.33(b)(2)(i) and (ii) to
correct two inadvertent omissions and clarify the appropriate countries
to consider for screenings related to statutory withholding of removal
and CAT protection. First, at 8 CFR 1003.42(d) and 1208.33(b)(2)(i),
the Department is adding ``withholding'' and ``deferral'' to the list
of the forms of relief and protection considered during an immigration
judge's credible fear review to ensure that immigration judges are
instructed to screen for both forms of CAT protection. This omission
was inadvertent in both instances, and amending the provisions in this
way is thus a mere technical change.
Relatedly, the Department is also amending 8 CFR 1003.42(d) and
1208.33(b)(2)(i) and (ii) to make clear that, when screening for
statutory withholding of removal and both withholding of removal and
deferral of removal under the CAT, the immigration judge considers
those forms of protection as to the country or countries of removal
identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b).\11\
This is a housekeeping measure to add clarity to the regulation and to
ensure it is applied consistently with the statute. This is because
under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and the
regulations implementing the CAT, both forms of protection prevent
removal to a specific country only--the proposed country of removal.
See INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.16(c)(2) (providing
that it is the noncitizen's burden to establish that they are more
likely than not to be tortured in the ``proposed country of removal'').
---------------------------------------------------------------------------
\11\ See also Matter of A-S-M-, 28 I&N Dec. 282, n. 4 (BIA 2021)
(``DHS has the discretion under section 241(b)(2)(E) of the Act to
conceivably remove [a noncitizen] to any country that is willing to
accept him or her, if [sic] unable to remove the [noncitizen] to a
country designated under sections 241(b)(2)(A) through (D) of the
Act. However, where the DHS states that an applicant in withholding-
only proceedings may be removed to a country where he or she fears
persecution or torture, an Immigration Judge needs to fully consider
whether the applicant is eligible to have his or her removal
withheld from that country under the Act and the Convention Against
Torture.'').
---------------------------------------------------------------------------
For a noncitizen subject to expedited removal, the identification
of the country or countries of removal pursuant to section 241(b) of
the Act takes place as part of DHS's removal process and occurs before
any potential referral for a credible fear screening or subsequent EOIR
credible fear review. See INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i); 8 CFR 235.3(b)(2)(i) (explaining removability
determinations made during expedited removal process). And thus, it is
before DHS--not EOIR--that the country or countries of removal will be
identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b).
This country designation is not reviewable during a credible fear
review by the immigration judge, who is
[[Page 105399]]
authorized to review only ``a determination . . . that the [noncitizen]
does not have a credible fear of persecution'' with respect to
identified countries of removal. INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). See also Matter of A-S-M-, 28 I&N Dec. 282,
285 (BIA 2021) (recognizing, in the reasonable fear context, that DHS
```retains discretion' to determine the proper country of removal under
section 241(b)(2) of the Act,'' 8 U.S.C. 1231(b)(2), and that
determination is unreviewable by an immigration judge or the Board of
Immigration Appeals). Thus, this change makes clear that the
immigration judge reviews the screening eligibility determinations with
respect to the country or countries of removal identified pursuant to
section 241(b) of the Act, 8 U.S.C. 1231(b).
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (``APA'') generally requires
agencies to publish notice of a proposed rulemaking in the Federal
Register and allow for a period of public comment. 5 U.S.C. 553(b)
through (c). The APA's notice-and-comment requirements, however, do not
apply to ``rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Courts ``have used the term `procedural exception' as
shorthand for that exemption.'' Am. Fed'n of Lab. & Cong. of Indus.
Orgs. v. Nat'l Lab. Rels. Bd., 57 F.4th 1023, 1034 (D.C. Cir. 2023)
(citing Pub. Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C. Cir.
2002) (quoting JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 328 (D.C. Cir.
1994))). ``[T]he critical feature of a rule that satisfies the . . .
procedural exception is that it covers agency actions that do not
themselves alter the rights or interests of parties, although it may
alter the manner in which the parties present themselves or their
viewpoints to the agency.' '' Id. (citing James V. Hurson Assocs., Inc.
v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000) (internal quotations
omitted)); cf. Texas v. United States, 809 F.3d 134, 176 (5th Cir.
2015) (holding that a rule is not procedural when it ``modifies
substantive rights and interests'' (quoting U.S. Dep't of Lab. v. Kast
Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984))).
To determine whether a rule is procedural or substantive, courts
``must look at [the rule's] effect on those interests ultimately at
stake in the agency proceeding.'' Neighborhood TV Co., Inc. v. FCC, 742
F.2d 629, 637 (D.C. Cir. 1984). That said, ``an otherwise-procedural
rule does not become a substantive one, for notice-and-comment
purposes, simply because it imposes a burden on regulated parties.''
James V. Hurson Assocs., Inc., 229 F.3d at 281. Even ``a rule with a
`substantial impact' upon the persons subject to it is not necessarily
a substantive rule under'' the APA. Elec. Priv. Info. Ctr. v. U.S.
Dep't of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (citing Pub.
Citizen v. Dep't of State, 276 F.3d at 640-41).
The Department has determined that this rule regulates agency
procedure and is therefore exempt from notice-and-comment procedures
under the APA, 5 U.S.C. 553(b)(A). The amendments adopted through this
IFR do not alter individuals' rights or interests nor do they alter any
eligibility requirements for relief or protection from removal. See JEM
Broad. Co., 22 F.3d at 326. Instead, these amendments clarify that an
immigration judge's review of the determinations made by an asylum
officer at the credible fear or reasonable fear screening will include,
where relevant, review of the asylum officer's application of any bars
to asylum and withholding of removal under DHS regulations. An
immigration judge's review of an asylum officer's credible or
reasonable fear determination will remain, as it has always been, de
novo, and thus the clarifications made in this rule are merely
procedural and do not place any new, ``substantive burden[s]'' on
regulated parties. Elec. Priv. Info. Ctr., 653 F.3d at 6.
EOIR's current regulations provide immigration judges with the
broad authority to conduct de novo review of an asylum officer's
credible or reasonable fear determination, and do not expressly limit
the ability of immigration judges to consider any relevant bars to
asylum or withholding of removal, should DHS provide for them by
regulation. See, e.g., 8 CFR 1003.42(d); 1208.31(g). However, rather
than risk the potential confusion regarding consideration of the
applicability of bars at the immigration judge's review stage, this
rule explicitly states that immigration judges shall, where relevant,
review the asylum officer's application of such bars. Because this
modification is a housekeeping measure, including terminology updates
for internal consistency of usage within EOIR's regulations and
additions for clarity regarding review of protection claims relating to
the designated country of removal, the Department believes that this
IFR is an efficient means of making this procedural clarification. See
James V. Hurson Assocs., Inc., 229 F.3d at 282 (``We have, therefore,
consistently recognized that `agency housekeeping rules often embody a
judgment about what mechanics and processes are most efficient.' This
does not convert a procedural rule into a substantive one.'')
(citations omitted).
As noted, the Department has previously made conforming changes to
its regulations jointly with DHS when DHS modified its own regulations
governing whether the asylum officer may consider the mandatory bars to
asylum and withholding of removal in credible fear determinations. See,
e.g., 85 FR at 80278 (Global Asylum Rule). However, the Department has
determined that, in the interest of administrative efficiency, the
Department will simply codify in the EOIR regulations that the
immigration judge will review the asylum officer's credible fear or
reasonable fear determination, including, as directed by DHS
regulations, the asylum officer's application of any bars to
eligibility, de novo. This language will ensure that EOIR regulations
sufficiently cover any scenario where asylum officers may consider the
bars to asylum and withholding of removal in a screening determination,
and will not require further EOIR rulemaking action should DHS make
future regulatory changes to the applicability of any bars to asylum or
withholding of removal during the credible fear or reasonable fear
screening processes.
Although prior notice-and-comment is not required, the Department
invites public comment on this IFR, and will, before issuing a final
rule, consider any such comments submitted in accordance with the
requirements herein.
Additionally, the Department has also determined that, because this
is a procedural rule under the APA, the rule is not subject to the
APA's requirement of a 30-day delay in the effective date. See 5 U.S.C.
553(d)(3) (providing that ``[t]he required publication or service of a
substantive rule shall be made not less than 30 days before its
effective date . . . except as otherwise provided by the agency for
good cause found and published with the rule'') (emphasis added).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), as amended by the Small
Business Regulatory Enforcement and Fairness Act of 1996, generally
requires an agency to prepare and make available to the public a final
regulatory flexibility analysis that describes the effect of a rule on
small entities (i.e., small businesses, small organizations,
[[Page 105400]]
and small governmental jurisdictions) when the agency is required ``to
publish a general notice of proposed rulemaking'' prior to issuing the
final rule. See 5 U.S.C. 603(a), 604(a).
This IFR is not subject to the regulatory flexibility analysis
requirement because, as explained above, the Department is not required
to publish a proposed rule before publishing this IFR. Such analysis is
not required when a rule is exempt from notice-and-comment rulemaking
under 5 U.S.C. 553(b) or other law. Because this is a rule of agency
procedure and therefore is exempt from notice-and-comment rulemaking,
no RFA analysis under 5 U.S.C. 603 or 604 is required. The Department
nonetheless welcomes comments regarding potential impacts on small
entities, which the Department may consider as appropriate.
C. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
Executive Order 12866, Regulatory Planning and Review, 58 FR 51735
(Sept. 30, 1993), as amended by Executive Order 14094, Modernizing
Regulatory Review, 88 FR 21879 (Apr. 6, 2023) and supplemented by
Executive Order 13563, Improving Regulation and Regulatory Review, 76
FR 3821 (Jan. 18, 2011), directs agencies to assess the costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects, distributive impacts, and equity). Executive Order 13563
further emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Management and Budget, Office of Information and
Regulatory Affairs (``OIRA'') has designated this IFR a ``significant
regulatory action'' under Executive Order 12866, as amended.
Accordingly, OIRA has reviewed this regulation. Further, the Department
certifies that this IFR has been drafted in accordance with the
principles of Executive Orders 12866, 13563, and 14094.
Overall, the Department believes that the changes adopted in this
IFR will not have a significant impact on adjudicators, the parties,
and the broader public. This rule is a housekeeping measure that
clarifies existing credible fear and reasonable fear review processes,
including the review of the asylum officer's application of the bars to
asylum and withholding of removal pursuant to 8 CFR 208.30(e)(5).
In sum, any changes contemplated by the IFR would not impact the
public in a way that would render the IFR in tension with the
principles of Executive Orders 12866 or 13563.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments, or a private sector
mandate, by requiring the preparation of an UMRA analysis for a rule
that may directly result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year.
This IFR is not subject to the written statement requirement
because no general notice of proposed rulemaking was published prior to
issuance of this IFR. 2 U.S.C. 1532(a). In addition, this IFR does not
contain such a mandate because it does not impose any enforceable duty
upon any other level of government or private sector entity. Any
downstream effects on such entities would arise solely due to their
voluntary choices, and the voluntary choices of others, and would not
be a consequence of an enforceable duty imposed by this IFR. Similarly,
any costs or transfer effects on State and local governments would not
result from a Federal mandate as that term is defined under UMRA. The
requirements of title II of UMRA, therefore, do not apply, and the
Department has not prepared a statement under UMRA.
E. Executive Order 13132 (Federalism)
This IFR will not have substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of Executive
Order 13132, the Department has determined that this IFR does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This IFR meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, 61 FR 4729
(Feb. 5, 1996).
G. Family Assessment
The Department has reviewed this IFR in line with the requirements
of section 654 of the Treasury and General Government Appropriations
Act, 1999, see 5 U.S.C. 601 note, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999.
Public Law 105-277, 112 Stat. 2681 (1998). The Department has reviewed
the criteria specified in section 654(c)(1), by evaluating whether this
regulatory action (1) impacts the stability or safety of the family,
particularly in terms of marital commitment; (2) impacts the authority
of parents in the education, nurture, and supervision of their
children; (3) helps the family perform its functions; (4) affects
disposable income or poverty of families and children; (5) only
financially impacts families, if at all, to the extent such impacts are
justified; (6) may be carried out by State or local government or by
the family; or (7) establishes a policy concerning the relationship
between the behavior and personal responsibility of youth and the norms
of society. If the agency determines a regulation may negatively affect
family well-being, then the agency must provide an adequate rationale
for its implementation.
The Department has determined that the implementation of this IFR
does not impose a negative impact on family well-being or the autonomy
or integrity of the family as an institution.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This IFR will not have ``tribal implications'' because it will not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. Accordingly, Executive Order 13175
(Consultation and Coordination with Indian Tribal Governments) requires
no further agency action or analysis for this rulemaking.
I. National Environmental Policy Act
The Department and its components analyzed this rulemaking action
to determine whether the National Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq. (``NEPA''), applies to these actions and, if so,
what level of NEPA review is required. 42 U.S.C. 4336.
Federal agencies may establish categorical exclusions for
categories of actions they determine normally do not
[[Page 105401]]
significantly affect the quality of the human environment, and,
therefore, do not require an Environmental Assessment or Environmental
Impact Statement. 42 U.S.C. 4336(a)(2), 4336e(1); 40 CFR 1501.4,
1507.3(c)(8). DHS has established its categorical exclusions through
Appendix A of the DHS's Directive 023-01, Revision 01,\12\ and
Instruction Manual 023-01-001-01, Revision 01 (``Instruction
Manual''),\13\ which establishes the procedures that DHS and its
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations \14\ for implementing NEPA, 40 CFR parts 1500
through 1508.
---------------------------------------------------------------------------
\12\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01, Revision 01 (Oct. 31, 2014), <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf</a>.
\13\ DHS, Implementation of the National Environmental Policy
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6,
2014), <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf</a>.
\14\ The Department is aware of the November 12, 2024 decision
in Marin Audubon Society v. Federal Aviation Administration, No. 23-
1067 (D.C. Cir. Nov. 12, 2024). To the extent that a court may
conclude that the CEQ regulations implementing NEPA are not
judicially enforceable or binding on this agency action, the
Department has nonetheless elected to follow those regulations at 40
CFR parts 1500-1508 to meet the agency's obligations under NEPA, 42
U.S.C. 4321 et seq.
---------------------------------------------------------------------------
Under DHS's NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) the entire action clearly fits within one or more of
the Categorical Exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. See Instruction
Manual at V-4 through V-6. The CEQ NEPA regulations allow an agency to
adopt another agency's determination that a categorical exclusion
applies to a proposed action if the action covered by the original
categorical exclusion determination and the adopting agency's proposed
action are substantially the same. 40 CFR 1506.3(a), (d).
As discussed in more detail throughout this rule, the Department is
modifying EOIR regulations applicable to noncitizens who have been
placed into the credible fear and reasonable fear processes to clarify
that immigration judges have the authority to review any mandatory bars
to asylum or withholding of removal applied by asylum officers during
such processes. This clarification in the EOIR regulations is
particularly important in light of DHS's December 2024 rule that allows
asylum officers to consider the potential applicability of certain bars
to asylum and statutory withholding of removal during credible fear and
reasonable fear screenings. See DHS Mandatory Bars, 89 FR 103370. DHS
has determined that promulgation of the DHS rule, which allows asylum
officers to apply the mandatory bars in the first instance during such
screenings, qualifies for a categorical exclusion because it fits
entirely within DHS categorical exclusion A3, is a standalone rule, and
DHS is not aware of any extraordinary circumstances that would cause a
significant environmental impact. See DHS Mandatory Bars, 89 FR 103412-
413.
The Department is adopting DHS's categorical exclusion
determination. See 42 U.S.C. 4336c; 40 CFR 1506.3(d) (setting forth the
ability of an agency to adopt another agency's categorical exclusion
determination). The Department has determined that this IFR fits within
categorical exclusion A3 for the promulgation of rules that interpret
or amend an existing regulation without changing its environmental
effect. See Instruction Manual at A-1 through A-2. This rule does not
alter any asylum or withholding of removal eligibility criteria.
Instead, this rule clarifies certain procedures, specifically, to make
explicit that immigration judges will review de novo any credible or
reasonable fear determination, including, where relevant, whether a
mandatory bar to asylum or withholding of removal is implicated.
Additionally, this IFR is not a piece of a larger action and serves
to clarify the Department's regulations. The Department is not aware of
any extraordinary circumstances that would cause an environmental
impact. Nothing in the IFR, which clarifies EOIR's existing regulations
and authorities, will have a significant effect on the human
environment that would necessitate the preparation of an environmental
assessment or an environmental impact statement. The Department has
also determined that the DHS action, which allows asylum officers to
consider certain statutory bars to asylum and statutory withholding of
removal during the credible fear and reasonable fear process, and the
action covered by this IFR, which clarifies that immigration judges
have authority to review asylum officers' application of any such bars
during the credible fear and reasonable process, are substantially the
same. Therefore, the Department is adopting DHS's categorical exclusion
determination. 42 U.S.C. 4336c; 40 CFR 1506.3(d).
J. Paperwork Reduction Act
This IFR does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.
K. Congressional Review Act
The Department has determined that this action is a rule relating
to agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency parties
and, accordingly, is not a ``rule'' as that term is used by the
Congressional Review Act (5 U.S.C. 801). Therefore, the reporting
requirement of 5 U.S.C. 801 does not apply.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Noncitizens.
8 CFR Part 1208
Administrative practice and procedure, Noncitizens, Immigration.
Accordingly, for the reasons set forth in the preamble, the
Department amends 8 CFR parts 1003 and 1208 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Amend Sec. 1003.42 by:
0
a. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
an alien.................................. a noncitizen.
The alien................................. The noncitizen.
the alien................................. the noncitizen.
the alien's............................... the noncitizen's.
an alien's................................ a noncitizen's.
Aliens.................................... Noncitizens.
same alien................................ same noncitizen.
the Service............................... DHS.
------------------------------------------------------------------------
0
b. Revising paragraphs (a), (d) and (e); and
[[Page 105402]]
0
c. In paragraph (b), (c), and (f) through (i), removing the words
``Immigration Court'' and ``Immigration Judge'' and adding in their
place ``immigration court'' and ``immigration judge'', respectively.
The revisions read as follows:
Sec. 1003.42 Review of credible fear determinations.
(a) Referral. Jurisdiction for an immigration judge to review a
negative credible fear determination by an asylum officer pursuant to
section 235(b)(1)(B) of the Act shall commence with the filing by DHS
of Form I-863, Notice of Referral to Immigration Judge, and a complete
copy of the record of determination as defined in section
235(b)(1)(B)(iii)(II) of the Act with the immigration court.
* * * * *
(d) Standard of review. The immigration judge shall make a de novo
determination as to whether 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 immigration judge, that the noncitizen could establish
eligibility for asylum under section 208 of the Act, or could establish
eligibility for withholding of removal under section 241(b)(3)(B) of
the Act, or withholding or deferral of removal under the Convention
Against Torture with respect to the country or countries of removal
identified pursuant to section 241(b) of the Act. This determination
shall, where relevant, include review of the asylum officer's
application of any bars to asylum and withholding of removal pursuant
to 8 CFR 208.30(e)(5).
(e) Timing. The immigration judge shall conclude the review to the
maximum extent practicable within 24 hours, but in no case later than 7
days after the date the supervisory asylum officer has concurred with
the asylum officer's negative credible fear determination issued on the
Form I-869, Record of Negative Credible Fear Finding and Request for
Review.
* * * * *
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
3. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.
Sec. 1208.31 [Amended]
0
4. Amend Sec. 1208.31 by:
0
a. Revising the section heading;
0
b. Removing and reserving paragraphs (b), (c), and (d);
0
c. Revising paragraph (g) introductory text; and
0
d. In the additions to the amendments set forth above, as shown in the
following table, remove the words in the left column and add in their
place the words in the right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
an alien.................................. a noncitizen.
the alien................................. the noncitizen.
any alien................................. any noncitizen.
alien's................................... noncitizen's.
aliens.................................... noncitizens.
the Service............................... DHS.
------------------------------------------------------------------------
The revisions read as follows:
Sec. 1208.31 Reasonable fear of persecution or torture determinations
involving noncitizens ordered removed under section 238(b) of the Act
and noncitizens whose removal is reinstated under section 241(a)(5) of
the Act.
* * * * *
(g) Review by immigration judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to de novo review
by an immigration judge upon the noncitizen's request. The immigration
judge's review shall, where relevant, include review of the asylum
officer's application of any bars to withholding of removal pursuant to
8 CFR 208.31(c). If the noncitizen requests review of the asylum
officer's negative decision regarding reasonable fear, the asylum
officer shall serve the noncitizen with a Form I-863, Notice of
Referral to Immigration Judge. The record of determination, including
copies of the Form I-863, Notice of Referral to Immigration Judge, the
asylum officer's notes, the summary of the material facts, and other
materials upon which the determination was based shall be provided to
the immigration judge with the negative determination. In the absence
of exceptional circumstances, such review shall be conducted by the
immigration judge within 10 days of the filing of the Form I-863,
Notice of Referral to Immigration Judge, and the complete record of
determination with the immigration court. Upon review of the asylum
officer's negative reasonable fear determination:
* * * * *
0
5. Amend Sec. 1208.33 by:
0
a. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear; and
------------------------------------------------------------------------
------------------------------------------------------------------------
An alien.................................. A noncitizen.
an alien.................................. a noncitizen.
The alien................................. The noncitizen.
the alien................................. the noncitizen.
alien's................................... noncitizen's.
------------------------------------------------------------------------
0
b. Removing the words ``unaccompanied alien child as defined in 6
U.S.C. 279(g)(2)'' in paragraph (a)(2)(i) and adding, in their place,
the words ``unaccompanied child as defined in 8 CFR 1001.1(hh)'';
0
c. Removing the reference to ``8 CFR 214.201(a)'' in paragraph
(a)(3)(i)(C) and adding in its place ``8 CFR 214.201''; and
0
d. Revising paragraphs (b)(1), (b)(2)(i), and (b)(2)(ii).
The revisions read as follows:
Sec. 1208.33 Lawful pathways condition on asylum eligibility.
* * * * *
(b) * * *
(1) Where an asylum officer has issued a negative credible fear
determination pursuant to 8 CFR 208.33(b), and the noncitizen has
requested immigration judge review of that credible fear determination,
the immigration judge shall evaluate the case de novo, as specified in
paragraph (b)(2) of this section. In all cases under paragraph (b)(2),
the immigration judge's review shall, where relevant, include review of
the asylum officer's application of any bars to withholding of removal
pursuant to 8 CFR 208.33(b)(2). In doing so, the immigration judge
shall take 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 immigration judge.
(2) * * *
(i) Where the immigration judge determines that the noncitizen is
not covered by the presumption, or that the presumption has been
rebutted, the immigration judge shall further determine, consistent
with Sec. 1208.30, whether the noncitizen has established a
significant possibility of eligibility for asylum under section 208 of
the Act, or has established a significant possibility of eligibility
for withholding of removal under section 241(b)(3) of the Act or
withholding or deferral of removal under the Convention Against Torture
with respect to the country or countries of removal identified by DHS
pursuant to section 241(b) of the Act. Where the immigration judge
determines that the noncitizen has established a significant
possibility of eligibility for one of those forms of relief or
protection, the immigration judge shall issue a positive credible fear
finding. Where the immigration judge determines that the noncitizen has
not established a significant possibility of eligibility for
[[Page 105403]]
any of those forms of relief or protection, the immigration judge shall
issue a negative credible fear finding.
(ii) Where the immigration judge determines that the noncitizen is
covered by the presumption and that the presumption has not been
rebutted, the immigration judge shall further determine whether the
noncitizen has established a reasonable possibility of persecution
(meaning a reasonable possibility of being persecuted because of their
race, religion, nationality, political opinion, or membership in a
particular social group) or torture with respect to the country or
countries of removal identified by DHS pursuant to section 241(b) of
the Act. Where the immigration judge determines that the noncitizen has
established a reasonable possibility of persecution or torture, the
immigration judge shall issue a positive credible fear finding. Where
the immigration judge determines that the noncitizen has not
established a reasonable possibility of persecution or torture, the
immigration judge shall issue a negative credible fear finding.
* * * * *
Sec. 1208.35 [Amended]
0
6. Amend Sec. 1208.35 by removing the reference to ``Sec. 214.11 of
this title'' in paragraph (a)(2)(i)(C) and adding in its place ``Sec.
214.201 of this title''.
Dated: December 17, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-30500 Filed 12-26-24; 8:45 am]
BILLING CODE 4410-30-P
</pre></body>
</html>Indexed from Federal Register on December 27, 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.