Rule2025-23970
Security Bars and Processing; Confirmation of Effective Date; Partial Withdrawal
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 30, 2025
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
In December 2020, DHS and DOJ (collectively, "the Departments") issued a final rule that clarified when an alien who poses a public health risk is ineligible for asylum and withholding of removal and revised their credible fear screening regulations. After multiple delays, the rule is scheduled to take effect on December 31, 2025. However, since December 2020, the Departments have further amended their regulations, complicating the codification of the 2020 rule. In this final rule, the Departments are withdrawing certain amendments from the 2020 rule while leaving unaltered the rule's substantive public health-related provisions, which will become effective as scheduled.
Full Text
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<title>Federal Register, Volume 90 Issue 246 (Tuesday, December 30, 2025)</title>
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[Federal Register Volume 90, Number 246 (Tuesday, December 30, 2025)]
[Rules and Regulations]
[Pages 61035-61049]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-23970]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 90, No. 246 / Tuesday, December 30, 2025 /
Rules and Regulations
[[Page 61035]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
RIN 1615-AC57
[CIS No. 2844-26; Docket No: USCIS 2020-0013]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208, and 1235
RIN 1125-AB08
[Dir. Order No. 03-2025]
Security Bars and Processing; Confirmation of Effective Date;
Partial Withdrawal
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS''); Executive Office for
Immigration Review (``EOIR''), Department of Justice (``DOJ'').
ACTION: Final rule; partial withdrawal and correction.
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SUMMARY: In December 2020, DHS and DOJ (collectively, ``the
Departments'') issued a final rule that clarified when an alien who
poses a public health risk is ineligible for asylum and withholding of
removal and revised their credible fear screening regulations. After
multiple delays, the rule is scheduled to take effect on December 31,
2025. However, since December 2020, the Departments have further
amended their regulations, complicating the codification of the 2020
rule. In this final rule, the Departments are withdrawing certain
amendments from the 2020 rule while leaving unaltered the rule's
substantive public health-related provisions, which will become
effective as scheduled.
DATES:
Partial Withdrawal: As of December 29, 2025, amendatory
instructions 4, 5, 6, 7, 8, 12, 13, and 14 published on December 23,
2020, at 85 FR 84160, which were delayed by the rules published at 86
FR 6847 (Jan. 25, 2021), 86 FR 15069 (Mar. 22, 2021), 86 FR 73615 (Dec.
28, 2021), 87 FR 79789 (Dec. 28, 2022), and 89 FR 105386 (Dec. 27,
2024), are withdrawn.
Effective Date: The corrections in this document are effective
December 31, 2025.
FOR FURTHER INFORMATION CONTACT:
For USCIS: Humanitarian Affairs Division, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, DHS, 5900 Capital
Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.
For EOIR: Immigration Law Division, Office of Policy, Executive
Office for Immigration Review, Department of Justice, 5107 Leesburg
Pike, Suite 2500, Falls Church, VA 22041; telephone (703) 305-0289.
SUPPLEMENTARY INFORMATION:
I. Summary
In December 2020, the Departments published the final rule titled
``Security Bars and Processing,'' 85 FR 84160 (Dec. 23, 2020)
(``Security Bars Final Rule''), to clarify that the statutory ``danger
to the security of the United States'' bars to eligibility for asylum
and withholding of removal encompass certain emergency public health
concerns. Additionally, the Security Bars Final Rule introduced
procedural changes relating to credible fear processing for certain
aliens. The Security Bars Final Rule was slated to become effective on
January 22, 2021; however, the rule's effective date was delayed
multiple times due to a preliminary injunction against a related rule
and due to conflicts with other rules issued while it was delayed. See
Security Bars and Processing; Delay of Effective Date, 86 FR 6847 (Jan.
25, 2021) (``January 2021 Delay Final Rule''); Security Bars and
Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021)
(``March 2021 Delay IFR''); \1\ Security Bars and Processing; Delay of
Effective Date, 86 FR 73615 (Dec. 28, 2021) (``December 2021 Delay
IFR''); Security Bars and Processing; Delay of Effective Date, 87 FR
79789 (Dec. 28, 2022) (``December 2022 Delay IFR''); Security Bars and
Processing; Delay of Effective Date, 89 FR 105386 (Dec. 27, 2024)
(``December 2024 Delay IFR'').
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\1\ ``IFR'' means ``interim final rule.''
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This rule withdraws amendatory instructions of the Security Bars
Final Rule that would conflict with amendments made by rules issued
while its effective date was delayed or that may otherwise cause
confusion. The rule makes no changes to the substantive public health-
related provisions that the Security Bars Final Rule adopted. Notably,
even though the Departments will no longer codify provisions of the
Security Bars Final Rule related to fear screening, the Departments may
still consider the Security Bars Final Rule's clarifications of
``danger to the security of the United States'' bars to asylum and
withholding of removal, in such screenings. See Application of Certain
Mandatory Bars in Fear Screenings, 89 FR 103370 (Dec. 18, 2024) (``DHS
Mandatory Bars Rule'') (providing USCIS asylum officers (``AOs'')
discretion to consider the potential applicability of specified
mandatory bars to asylum and statutory withholding of removal during
fear screening processes); see also Clarification Regarding Bars to
Eligibility During Credible Fear and Reasonable Fear Review, 89 FR
105392 (Dec. 27, 2024) (``EOIR Bars IFR'') (allowing Immigration Judges
to review an AO's determination that a mandatory bar applies in
credible and reasonable fear reviews).
II. Background
A. Legal Authority
The Attorney General \2\ and the Secretary of Homeland Security
issue this rule pursuant to their respective authorities concerning
asylum and withholding of removal determinations.
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\2\ In Attorney General Order Number 6260-2025 (May 8, 2025),
the Attorney General exercised her authority under 28 U.S.C. 509 and
510 to delegate her authority to issue regulations related to
immigration matters within the jurisdiction of EOIR to EOIR's
Director.
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The Homeland Security Act of 2002 (``HSA''), Public Law 107-296,
116 Stat. 2135, as amended, transferred many functions related to the
execution of Federal immigration law to the newly created DHS. The
Immigration and Nationality Act (``INA'' or ``Act''), as amended,
charges the Secretary ``with the administration and enforcement of this
chapter and all other laws relating
[[Page 61036]]
to the immigration and naturalization of aliens,'' INA 103(a)(1), 8
U.S.C. 1103(a)(1), and grants the Secretary the power to take all
actions ``necessary for carrying out'' the Secretary's authority under
the provisions of the INA, INA 103(a)(3), 8 U.S.C. 1103(a)(3).\3\ The
HSA also transferred to DHS responsibility for initial adjudication of
affirmative asylum applications, i.e., applications for asylum first
made outside the removal context. See 6 U.S.C. 271(b)(3).\4\
Specifically, the HSA vested the adjudication of affirmative asylum and
refugee applications with USCIS.\5\ Id. USCIS AOs determine in the
first instance whether an alien's affirmative asylum application should
be granted. See 8 CFR 208.2(a)(1).
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\3\ Additionally, under the HSA, references to the ``Attorney
General'' in the INA also encompass the Secretary with respect to
statutory authorities vested in the Secretary by the HSA or
subsequent legislation, including in relation to immigration
proceedings before DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.
\4\ If USCIS does not approve an affirmative application for
asylum and the alien appears to be inadmissible under section 212(a)
of the INA, 8 U.S.C. 1182(a), or deportable under section 237(a) of
the INA, 8 U.S.C. 1227(a), then, subject to certain exceptions,
USCIS will place the alien into removal proceedings under section
240 of the INA, 8 U.S.C. 1229a, where the affirmative asylum
application may be renewed for consideration by the Immigration
Judge. 8 CFR 208.14(c)(1).
\5\ When the HSA established DHS, the Citizenship and
Immigration Services component was known as the ``Bureau of
Citizenship and Immigration Services.'' 6 U.S.C. 271(a)(1). DHS
later changed the name of the Bureau of Citizenship and Immigration
Services to USCIS. Name Change From the Bureau of Citizenship and
Immigration Services to U.S. Citizenship and Immigration Services,
69 FR 60938, 60938 (Oct. 13, 2004).
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But the HSA retained DOJ's authority over certain individual
immigration adjudications including those related to defensive asylum
applications, i.e., applications for asylum made in removal proceedings
under section 240 of the INA, 8 U.S.C. 1229a (``section 240 removal
proceedings''). EOIR conducts these adjudications, subject to the
direction and regulation of the Attorney General. See 6 U.S.C. 521; INA
103(g), 8 U.S.C. 1103(g); INA 240, 8 U.S.C. 1229a. Thus, Immigration
Judges within DOJ generally continue to adjudicate all defensive asylum
applications filed by aliens during section 240 removal proceedings in
addition to adjudicating affirmative asylum applications referred to
section 240 removal proceedings by USCIS.\6\ See INA 101(b)(4), 8
U.S.C. 1101(b)(4) (defining ``[I]mmigration [J]udge''); 8 CFR
208.14(c)(1), 1208.2(b); Dhakal v. Sessions, 895 F.3d 532, 536-37 (7th
Cir. 2018) (describing affirmative and defensive asylum processes). The
Board of Immigration Appeals (``BIA'' or ``Board''), also within DOJ's
EOIR, in turn hears appeals from Immigration Judges' decisions in
section 240 removal proceedings. See 8 CFR 1003.1(b)(3). In addition,
the INA provides ``[t]hat determination and ruling by the Attorney
General with respect to all questions of law shall be controlling.''
INA 103(a)(1), 8 U.S.C. 1103(a)(1).
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\6\ USCIS has jurisdiction to adjudicate defensive asylum
applications filed by unaccompanied alien children in removal
proceedings. INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C); see also 6
U.S.C. 279(g) (defining ``unaccompanied alien child'').
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B. Legal Framework for Asylum and Withholding
Asylum is a discretionary benefit that the Attorney General or the
Secretary can grant if an alien establishes, among other things, that
he or she has experienced past persecution or has 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 and
Secretary ``may'' grant asylum to refugees); INA 101(a)(42)(A), 8
U.S.C. 1101(a)(42)(A) (defining ``refugee''). Aliens who are ineligible
for a grant of asylum, or who are denied asylum based on the Attorney
General's or the Secretary's discretion, nonetheless may qualify for
other forms of protection. Specifically, an alien may be eligible for
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3) (``statutory withholding of removal'') or withholding or
deferral of removal under the regulations implementing U.S. obligations
under Article 3 of the Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment, Dec. 10, 1984, 1465
U.N.T.S. 85, 114 (``CAT''). See 8 CFR 208.3(b), 208.13(c)(1),
208.16(c), 208.17(c), 1208.3(b), 1208.13(c)(1), 1208.16(c), 1208.17.
Withholding and deferral of removal bar an alien's removal to a
specific country where the alien would ``more likely than not'' face
persecution or torture, meaning that the alien would face a clear
probability that his or her life or freedom would be threatened on
account of a protected ground or a clear probability of torture. 8 CFR
208.16(b)(2), (c)(2), 1208.16(b)(2), (c)(2); see INS v. Stevic, 467
U.S. 407, 413, 424, 430 (1984) (holding that the ``clear probability''
or ``more likely than not'' standard applies to withholding of
deportation). Thus, if an alien establishes that it is more likely than
not that the alien's life or freedom would be threatened on account of
a protected ground in a specific country, but is denied asylum for some
other reason, the alien nonetheless may be entitled to statutory
withholding of removal to that specific country if not also barred from
that form of protection. INA 241(b)(3)(A), (B), 8 U.S.C. 1231(b)(3)(A),
(B); 8 CFR 208.16, 1208.16. Likewise, an alien who establishes that he
or she is more likely than not to face torture in the country of
removal will qualify for protection under the regulations implementing
the CAT (also referred to as ``CAT protection''). See 8 CFR 208.16(c),
208.17(a), 1208.16(c), 1208.17(a).
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''). Pursuant to the CAT regulations, the mandatory bars to
eligibility for withholding of removal under section 241(b)(3)(B) of
the INA, 8 U.S.C. 1231(b)(3)(B), also apply to withholding of removal
under those regulations. 8 CFR 208.16(d)(2), 1208.16(d)(2). If an alien
would be entitled to withholding of removal under the CAT regulations
but for being subject to a mandatory bar, the alien is entitled to
deferral of removal pursuant to 8 CFR 208.17(a), 1208.17(a). 8 CFR
208.16(c)(4), 1208.16(c)(4). There are no bars to deferral of removal
under the CAT regulations.
Specifically, the INA imposes the following statutory bars to
asylum eligibility at section 208(b)(2)(A)(i)-(v), 8 U.S.C.
1158(b)(2)(A)(i)-(v), and to eligibility for withholding of removal at
section 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) for persons: (1) who
``ordered, incited, assisted, or otherwise participated in the
persecution of any person'' ``on account of'' or ``because of'' a
protected ground, INA 208(b)(2)(A)(i), 241(b)(3)(B)(i), 8 U.S.C.
1158(b)(2)(A)(i), 1231(b)(3)(B)(i); (2) who have been convicted of a
``particularly serious crime,'' INA 208(b)(2)(A)(ii), 241(b)(3)(B)(ii),
8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); (3) for whom ``there are
serious reasons to believe that the alien committed a serious
nonpolitical crime outside the United States,'' INA 208(b)(2)(A)(iii),
241(b)(3)(B)(iii), 8 U.S.C. 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii); (4)
for whom ``there are reasonable grounds to believe that the alien is a
danger to the security of the United States,'' INA 208(b)(2)(A)(iv),
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv), 1231(b)(3)(B)(iv); and
(5) who are described in certain terrorism-related provisions, INA
208(b)(2)(A)(v),
[[Page 61037]]
241(b)(3)(B), 8 U.S.C. 1158(b)(2)(A)(v), 1231(b)(3)(B).
A sixth statutory bar to eligibility for asylum, which does not bar
eligibility for withholding of removal, applies to any alien who ``was
firmly resettled in another country prior to arriving in the United
States.'' INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi).
Additionally, there are statutory bars to withholding of removal
eligibility for admitted aliens who are deportable under section
237(a)(4)(D) of the INA, 8 U.S.C. 1227(a)(4)(D), for involvement in
genocide, torture, extrajudicial killing, or Nazi persecution as
defined in section 212(a)(3)(E)(i)-(iii) of the INA, 8 U.S.C.
1182(a)(3)(E)(i)-(iii). See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B); 8
CFR 1208.16(d)(2).
C. Expedited Removal and Screenings in the Credible Fear Process
In the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. This process
applies to certain aliens who are present in the United States without
having been admitted or having been paroled into the United States or
who are arriving in the United States (and, in the discretion of the
Secretary, certain other designated classes of aliens), provided the
aliens are also either (1) inadmissible under section 212(a)(6)(C) of
the INA, 8 U.S.C. 1182(a)(6)(C), which renders inadmissible aliens who
make certain material misrepresentations; or (2) inadmissible under
section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), which renders
inadmissible aliens who lack documents required for admission. INA
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). DHS may remove an alien
subject to expedited removal, ``without further hearing or review
unless the [alien] indicates either an intention to apply for asylum .
. . or a fear of persecution.'' Id.
Congress created a screening process, known as ``credible fear''
screening, to identify potentially valid claims for asylum by aliens in
expedited removal proceedings. The Departments have used the same
screening process to identify potentially valid claims for statutory
withholding of removal and CAT protection. If an alien indicates a fear
of persecution or torture, a fear of return to his or her country
(which may involve possible persecution or torture, even if not
necessarily articulated as such by the alien), or an intention to apply
for asylum during the course of the expedited removal process, DHS
refers the alien to a USCIS AO to determine whether the alien has a
credible fear of persecution or torture in the country of citizenship
or removal. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B);
see also 8 CFR 235.3(b)(4). An alien has a ``credible fear of
persecution'' if ``there is a significant possibility, taking into
account the credibility of the statements made by the alien in support
of the alien's claim and such other facts as are known to the officer,
that the alien could establish eligibility for asylum.'' INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the AO determines that
the alien does not have a credible fear of persecution or torture, the
alien may request that an Immigration Judge review that determination.
See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
208.30(g), 208.33(b)(2)(v), 1208.30(g).
D. Security Bars Rule and Subsequent Delays
On July 9, 2020, the Departments published a notice of proposed
rulemaking (``NPRM'') titled ``Security Bars and Processing,'' 85 FR
41201 (``Security Bars NPRM''). On December 23, 2020, the Departments
published the Security Bars Final Rule, responding to comments received
in response to the NPRM. 85 FR 84160. The Security Bars Final Rule
amended the Departments' asylum and withholding of removal regulations
to provide that certain emergency public health concerns generated by a
communicable disease constitute circumstances for which there are
``reasonable grounds for regarding'' or ``reasonable grounds to believe
that an alien is a danger to the security of the United States,''
making the alien ineligible to be granted asylum and ineligible for
withholding of removal, both under the INA and under the CAT
regulations. See 85 FR 84193-94, 84196-97. The Security Bars Final Rule
also amended the Departments' credible fear regulations, including by
modifying changes made to the regulatory framework by a rule that the
Departments published during the period between the Security Bars NPRM
and the Security Bars Final Rule. See Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR
80274 (Dec. 11, 2020) (``Global Asylum Final Rule'').
Relevant to this rule, the Global Asylum Final Rule and amendatory
instructions 4, 6, 8, 12, and 14 of the Security Bars Final Rule
amended the regulations setting forth the process for aliens in
expedited removal who indicate a fear of removal or an intent to apply
for asylum in multiple ways.
First, the rules require that, during credible fear screenings and
reviews, AOs and Immigration Judges consider the applicability of any
bars to being able to apply for asylum or to eligibility for asylum set
forth at section 208(a)(2)(B)-(C) and (b)(2) of the INA, 8 U.S.C.
1158(a)(2)(B)-(C) and (b)(2), including any bars established by
regulation under section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), and any bars to withholding of removal at section
241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B). See 85 FR 80390-91,
80393, 80399 (Global Asylum Final Rule amending Sec. Sec.
208.30(e)(1)(iii), (2)(iii), (5)(i), 1003.42(d)(1), 1208.30(g)(1)); 85
FR 84194-96 (Security Bars Final Rule amending Sec. Sec.
208.30(e)(5)(i)(A), (e)(5)(iv), 1003.42(d)(1)).
Second, if the AO or Immigration Judge determined that an alien
does not have a significant possibility of eligibility for asylum due
to the operation of a regulatory bar or any statutory bar to asylum
eligibility, the AO or Immigration Judge would screen the alien for
potential statutory withholding of removal and CAT protection
eligibility under the ``reasonable possibility of persecution or
torture'' standard--a standard higher than the ``significant
possibility of demonstrating eligibility for asylum'' standard that
otherwise applied.\7\ 85 FR 80390-91, 80393, 80399-400 (Global Asylum
Final Rule amending Sec. Sec. 208.30(e)(5), 1003.42(d), 1208.30(g));
85 FR 84194-95, 84197-98 (Security Bars Final Rule amending Sec. Sec.
208.30(e)(5)(i)(B), 1208.30(g)(1)(ii)).
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\7\ The ``significant possibility of eligibility for asylum''
standard to be applied in expedited removal proceedings is lower
than the ``reasonable possibility of persecution or torture''
standard because the expedited removal statute speaks in terms of
the possibility of eligibility for asylum, which requires the alien
to show a well-founded fear of persecution. INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v) (requiring ``a significant possibility . . .
that the alien could establish eligibility for asylum under section
208''); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (requiring aliens
to establish a ``well-founded fear of persecution on account of'' a
protected ground to be a ``refugee''); INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A) (allowing for a grant of asylum where an alien
establishes that he or she is a ``refugee''). The Supreme Court has
equated the ``well-founded fear'' standard with a ``reasonable
possibility.'' See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)
(quoting Stevic, 467 U.S. at 424-25). Put another way, the statutory
credible fear standard requires the officer to determine whether the
alien has a significant possibility of establishing a reasonable
possibility of persecution. When the officer applies only a
``reasonable possibility of persecution or torture'' standard, the
inquiry is into the possibility of the harm taking place, not the
possibility of meeting the ultimate standard.
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Third, if the alien would be able to establish a significant
possibility of eligibility for asylum or a reasonable
[[Page 61038]]
possibility of persecution but for being subject to one or both of the
bars to asylum and withholding for those who pose a ``danger to the
security of the United States'' at section 208(b)(2)(A)(iv) or
241(b)(3)(B)(iv) of the INA, 8 U.S.C. 1158(b)(2)(A)(iv) or
1231(b)(3)(B)(iv), the AO or Immigration Judge would screen the alien
to determine whether he or she would be more likely than not to be
tortured in the country of removal. 85 FR 84194-95, 84197-8 (Security
Bars Final Rule amending Sec. Sec. 208.30(e)(5)(iii)(B), (C),
(iv)(A)(1), (2), (f), 1208.30(g)(1)(ii)). If the alien met that burden,
DHS would either place the alien in asylum-and-withholding-only
(``AWO'') proceedings instead of section 240 removal proceedings or
remove the alien to a third country. 85 FR 84194-95 (Security Bars
Final Rule amending Sec. 208.30(e)(5)(iii)(B), (iv)(A)(2)). Unlike
section 240 removal proceedings, during which aliens may apply for any
form of relief or protection for which they may be eligible, aliens in
AWO proceedings may apply only for asylum, statutory withholding of
removal, and CAT protection. See 8 CFR 1208.2(c)(1).
Fourth, aliens determined to have a credible fear of persecution,
or a reasonable possibility of persecution or torture, would be
referred for AWO proceedings. 85 FR 80392 (Global Asylum Final Rule
amending Sec. 208.30(f)); 85 FR 84194-95, 84197-98 (Security Bars
Final Rule amending Sec. Sec. 208.30(e)(5)(i)(B), (f)(1),
1208.30(g)(1)(ii), (2)(iv)(B)).
Fifth, if an alien refused to indicate whether he or she wants
Immigration Judge review of a negative determination, DHS would
consider such a refusal as declining review. 85 FR 80392, 80399 (Global
Asylum Final Rule amending Sec. Sec. 208.30(g)(1) and
1208.30(g)(2)(i)); 85 FR 84195-96, 84197-98 (Security Bars Final Rule
amending Sec. Sec. 208.30(g)(1) and 1208.30(g)(2)(i)).
The Global Asylum Final Rule and Security Bars Final Rule also
amended provisions relating to the processes for applying two since-
rescinded regulatory bars to asylum eligibility, see 85 FR 80390-91
(Global Asylum Final Rule amending Sec. Sec. 208.30(e)(5)(ii)-(iii),
1003.42(d)(2)-(3), 1208.30(g)(1)(i)-(ii)); 85 FR 84194-95, 84197-98
(Security Bars Final Rule amending Sec. 208.30(e)(5)(iii),
1208.30(g)(1)(ii)),\8\ and updated language in various provisions to
take account of the heightened ``reasonable possibility'' and ``more
likely than not'' standards, see 85 FR 80389-94, 80399-400 (Global
Asylum Final Rule amending various provisions in Sec. Sec. 208.30,
1003.42, and 1208.30); 85 FR 84194--98 (Security Bars Final Rule
amending Sec. Sec. 208.30(e)(4), (g)(1), 235.6(a)(2)(i), 1208.30(e),
(g)(2)(iv)(A)-(B), 1235.6(a)(2)(i)).
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\8\ See Circumvention of Lawful Pathways, 88 FR 31314 (May 16,
2023) (rescinding Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018), and Asylum Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17, 2020)).
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Although the Security Bars Final Rule was originally scheduled to
take effect on January 22, 2021, intervening events and circumstances
required the Departments to delay its effective date, most recently
until December 31, 2025.\9\ First, prior to the January 22, 2021,
effective date of the Security Bars Final Rule, a district court
preliminarily enjoined the Departments ``from implementing, enforcing,
or applying the [Global Asylum Final Rule] or any related policies or
procedures.'' Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 977
(N.D. Cal. 2021) (``Pangea II''). The Security Bars Final Rule
explicitly relied on changes made by the Global Asylum Final Rule, and
the regulatory text of the Security Bars Final Rule repeated broader
changes made by the Global Asylum Final Rule, such as requiring the
application of bars to asylum eligibility and withholding of removal
during credible fear screenings. See, e.g., 85 FR 84187-88.
Accordingly, as a result of the Pangea II preliminary injunction, the
Departments determined that delay of the Security Bars Final Rule's
effective date was justified. See January 2021 Delay Final Rule, 86 FR
6847; March 2021 Delay IFR, 86 FR 15070-71; December 2021 Delay IFR, 86
FR 73616-17; December 2022 Delay IFR, 87 FR 79790-91; December 2024
Delay IFR, 89 FR 105387.
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\9\ See 86 FR 6847; 86 FR 15069; 86 FR 73615; 87 FR 79789; 89 FR
105386.
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In the December 2022 Delay IFR, the Departments explained that they
were delaying the Security Bars Final Rule's effective date because its
implementation remained infeasible due to the Pangea II preliminary
injunction against the Global Asylum Final Rule and related policies
and procedures. See 87 FR 79790-91. Further, the Departments determined
that, as a result of a subsequent, intervening rulemaking, Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078
(Mar. 29, 2022) (``Asylum Processing IFR''), implementation of the
Security Bars Final Rule would result in conflicting and confusing
regulatory text. 87 FR 79791-92. The Departments thus explained that
delaying the effective date until December 31, 2024, would permit the
Departments ``sufficient time to complete notice-and-comment rulemaking
to modify or rescind the Security Bars final rule, even in the event
that circumstances require shifting departmental priorities and
resources.'' 87 FR 79792.
However, superseding regulatory priorities prevented completion of
the anticipated rulemaking prior to December 31, 2024. After
considering public comments on the December 2022 Delay IFR related to
the Security Bars Final Rule's effective date, the Departments
determined that it was appropriate to delay the rule's effective date
until December 31, 2025, ``in light of the Departments' limited
resources and intervening regulatory priorities.'' December 2024 Delay
IFR, 89 FR 105388. The Departments also explained that allowing the
Security Bars Final Rule to become effective would ``conflict with
regulatory changes implemented by the intervening rulemakings,
resulting in conflicting and confusing changes to the Departments'
regulations.'' See 89 FR 105388. The Departments also noted that, since
the publication of the Security Bars Final Rule, the Departments had
issued multiple additional rules altering the credible fear screening
process and asylum eligibility more generally. See, e.g., Asylum
Processing IFR, 87 FR 18078; Circumvention of Lawful Pathways, 88 FR
31314 (May 16, 2023) (``Lawful Pathways Final Rule''); DHS Mandatory
Bars Rule, 89 FR 103370; Securing the Border, 89 FR 81156 (Oct. 7,
2024). The Departments determined that the intervening rules and their
impacts on screening processes required further evaluation of ``their
potential interplay with the Security Bars final rule.'' See 89 FR
105388.
Beyond these important considerations, the Departments also
concluded that ``there would be no direct, immediate impact on
eligibility for asylum or other protection if the Security Bars final
rule were to go into effect on December 31, 2024, because there [was]
no existing public health situation that would trigger the bars
outlined in the rule.'' 89 FR 105389. The Departments determined that
the lack of any immediate impact further supported delaying the
effective date. Accordingly, based on the foregoing considerations, the
Departments delayed the effective date of the Security Bars Final Rule
to December 31, 2025. 89 FR 105389. The Departments also continued to
welcome
[[Page 61039]]
comments about the effective date of the Security Bars Final Rule but
did not seek comments on whether the Departments should modify or
rescind the rule or comments otherwise addressing the substance of the
rule. 89 FR 105389.
E. Subsequent Rules
Since the publication of the Security Bars Final Rule, the
Departments have issued four rules amending their credible fear
provisions that are relevant here: (1) the Asylum Processing IFR; (2)
the Lawful Pathways Final Rule; (3) the DHS Mandatory Bars Rule; and
(4) the EOIR Bars IFR. Those rules' amendments overwrote or rescinded
provisions that the Security Bars Final Rule would amend upon becoming
effective. Accordingly, some of the Security Bars Final Rule's
amendments, if allowed to go into effect, would create conflicting text
and inconsistent and confusing terminology that would complicate
implementing the regulations. Further, amendments that the Departments
adopted after the Security Bars Final Rule would be overwritten without
justification for the reversion and without observing the procedures
typically required by the Administrative Procedure Act (``APA'').
Overall, implementation of the Security Bars Final Rule without any
change would put the Departments' ability to use the expedited removal
system at risk. These issues are discussed in greater detail below.
1. Asylum Processing IFR
On March 29, 2022, the Departments issued the Asylum Processing
IFR. As relevant here, the Asylum Processing IFR amended 8 CFR 208.30,
1003.42, and 1208.30 to generally return to the regulatory framework in
place prior to the promulgation of the Global Asylum Final Rule. 87 FR
18091. The specific amendments that were reversed by the Asylum
Processing IFR were those that required the consideration of mandatory
bars during credible fear screenings, provided procedures for aliens
determined to be subject to such bars, required that aliens with a
positive screening determination be placed in AWO proceedings, and
mandated that an alien's failure to indicate whether he or she wants
Immigration Judge review of a negative determination be interpreted as
a decision to decline such review. 87 FR 18218-23 (amending portions of
Sec. Sec. 208.30, 235.6, 1003.42, 1208.30, and 1235.6). In doing so,
the Asylum Processing IFR amended 8 CFR 208.30 to remove paragraphs
(e)(5)(i)(A) and (B) and (f)(1)--paragraphs the Security Bars Final
Rule would amend upon becoming effective--as discussed in Section III.A
of this preamble.
2. Lawful Pathways Final Rule
On May 16, 2023, the Departments published the Lawful Pathways
Final Rule, 88 FR 31314, which, as relevant here, rescinded an earlier,
enjoined final rule regarding transit through a third country, Asylum
Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 2020)
(``TCT Bar Final Rule''). Notably, to rescind the TCT Bar Final Rule,
the Departments removed various regulatory provisions including, as
relevant here, 8 CFR 208.30(e)(5)(iii) and 1208.30(g)(1). See 88 FR
31319. If the Departments did not withdraw amendatory instructions 4
and 12 of the Security Bars Final Rule, the Security Bars Final Rule
would add these specific provisions back into the regulations. See 85
FR 84194-5, 84197-98. The addition of these provisions would thus
establish procedures for adjudicators to follow when considering the
application of the TCT bar, which no longer exists. See 88 FR 31449,
31451 (removing and reserving paragraph (c)(4) of Sec. Sec. 208.13 and
1208.13). To avoid codifying such obsolete regulatory language, the
Departments are withdrawing amendatory instructions 4 and 12 of the
Security Bars Final Rule.
3. DHS Mandatory Bars Rule
On December 18, 2024, DHS issued the DHS Mandatory Bars Rule,
which, as relevant here, allows AOs to consider the potential
applicability of statutory bars to asylum and withholding of removal
during credible fear screenings except for the bar to asylum for aliens
who were firmly resettled in another country.\10\ See 89 FR 103370.
Under the DHS Mandatory Bars Rule, AOs determine at their discretion
whether to consider these statutory bars to asylum and withholding of
removal during fear screenings; in contrast, the Security Bars Final
Rule would make such consideration mandatory. See 8 CFR
208.30(e)(5)(ii); 85 FR 84190, 84194-95.
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\10\ See supra Section II.B of this preamble (explaining the
statutory bars to eligibility for asylum and withholding of
removal).
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If the Security Bars Final Rule were to go into effect in its
entirety, certain provisions within the Code of Federal Regulations
(``CFR'') would continue to make the consideration of bars
discretionary, while others would make it mandatory. Specifically,
current paragraph (ii) of 8 CFR 208.30(e)(5) provides that where an
alien ``appears to be subject to one or more of the mandatory bars''
other than the firm resettlement bar, the AO ``may consider the
applicability of such bar(s).'' But amendatory instruction 4 of the
Security Bars Final Rule would add paragraph (iv), which would also
require application of any mandatory bar, including the firm
resettlement bar. See 85 FR 84194-95. Additionally, 8 CFR 208.30(e)(5)
would set forth different screening standards where an alien is subject
to a mandatory bar to asylum and withholding of removal that would vary
depending on the type of mandatory bar--under current paragraph (ii),
the applicable screening standard for torture where an alien is subject
to a mandatory bar to asylum and withholding of removal is the
``significant possibility'' of demonstrating eligibility for CAT
protection standard, whereas under paragraph (iv), if the alien is
subject to the security bars to asylum and withholding of removal, the
alien would be screened for torture at the ``more likely than not''
standard. Compare 8 CFR 208.30(e)(5), with 85 FR 84194-95 (adding
paragraph (iv) to 8 CFR 208.30(e)(5)). Finally, the discretionary
provisions at current paragraph (ii) would require placing an alien who
receives a positive determination into section 240 removal proceedings
or allowing USCIS to maintain jurisdiction for further consideration of
the application, whereas paragraph (iv) would require that DHS place
the alien into AWO proceedings or remove the alien to a third country,
as applicable. These irreconcilable provisions require the withdrawal
of amendatory instruction 4.
4. EOIR Bars IFR
Shortly after publication of DHS's Mandatory Bars Rule, DOJ
published the EOIR Bars IFR, 89 FR 105392, to clarify that Immigration
Judges review AOs' credible fear determinations de novo, including,
where relevant, an AO's application of any bars to asylum or
withholding of removal. To effectuate this clarification, and as
relevant here, EOIR amended 8 CFR 1003.42(d) to explicitly state that
the Immigration Judge's de novo credible fear ``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).'' 89 FR 105402. However, amendatory instruction 8 of the
Security Bars Final Rule instructs the Office of the Federal Register
(``OFR'') to revise 8 CFR 1003.42(d)(1), a paragraph that no longer
exists. See 85 FR 84196; see also 8 CFR 1003.42. If the Departments do
not withdraw amendatory instruction 8 of the Security
[[Page 61040]]
Bars Final Rule, see 85 FR 84196, the OFR would be unable to revise a
non-existent paragraph and thus would add an editorial note to 8 CFR
1003.42 to indicate an apparent agency error, creating confusion and
leading to questions surrounding the text's validity and effect. Cf.
Document Drafting Handbook 6-4 (June 2025), <a href="https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf">https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf</a> (``Document Drafting
Handbook'') (noting that OFR may ``add an editorial note of the agency
error'' in the context of other sorts of discrepancies in regulations).
Thus, EOIR's regulations would lack the clarity needed as to whether an
Immigration Judge is able to review any bars the AO may have applied
pursuant to 8 CFR 208.30(e)(5) in making a negative fear determination.
Accordingly, for clarity of the regulations, EOIR will maintain its
later-enacted provision from the EOIR Bars IFR at 8 CFR 1003.42(d),
which necessitates withdrawing amendatory instruction 8 of the Security
Bars Final Rule.
III. Discussion
The Departments have considered the complete history of this
rulemaking, the subsequent history of the provisions it was poised to
amend as discussed in Sections II.D and E of this preamble, and all
concerns raised by commenters in response to the delay rules, as
discussed below in Sections IV and V of this preamble. Although the
Departments previously suggested that they may initiate a new
rulemaking with respect to the Security Bars Final Rule,\11\ the
Departments after further consideration decline to pursue a new
rulemaking. Instead, the rule will take effect as scheduled with
specific amendments withdrawn to avoid conflicting or confusing
regulatory text.
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\11\ See March 2021 Delay IFR, 86 FR 15069, 15071 (requesting
comment on ``a potential future rulemaking rescinding or amending
the Security Bars'' Final Rule); December 2021 Delay IFR, 86 FR
73617; December 2022 Delay IFR, 87 FR 79792-93.
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The portions of the Security Bars Final Rule that will remain
unchanged and go into effect as previously scheduled are the
substantive provisions that clarify that the bars to asylum and
withholding of removal for those who pose a danger to the security of
the United States cover aliens who may pose certain public health
risks. These provisions will be codified at 8 CFR 208.13(c)(10),
1208.13(c)(10) (clarification with respect to asylum), and at 8 CFR
208.16(d)(2), 1208.16(d)(2) (clarification with respect to statutory
and CAT withholding of removal).
However, the Departments now withdraw certain amendments in the
Security Bars Final Rule. The Departments are withdrawing the
amendatory instructions that would amend the Departments' credible fear
regulations because, as explained in Sections II.E and III.A of this
preamble, codification of those provisions is irreconcilable with the
current state of the regulations, which the Departments have amended
multiple times since the publication of the Security Bars Final Rule.
Additionally, as explained in Section III.B of this preamble, the
Departments are withdrawing amendments relating to the ability to
remove aliens to third countries to avoid unnecessary confusion. Thus,
this rule withdraws the amendatory instructions from the Security Bars
Final Rule to the extent that they would amend 8 CFR 208.16(f), 208.30,
235.6, 1003.42, 1208.16(f), 1208.30, and 1235.6, and the Security Bars
Final Rule will no longer amend those provisions. The reasons for
withdrawal of the amendatory instructions related to these specific
provisions are discussed further below.
A. Withdrawing Credible Fear Amendments
With this rule, the Departments are withdrawing the amendatory
instructions that would amend 8 CFR 208.30, 235.6, 1003.42, 1208.30,
and 1235.6 (amendatory instructions 4, 5, 6, 7, 8, 12, 13, and 14). The
Departments are withdrawing these portions of the Security Bars Final
Rule because they conflict with the currently effective regulations due
to amendments by intervening rules. Specific conflicts with subsequent
rules are discussed in more detail in Section II.E of this preamble;
more generally, however, if the Security Bars Final Rule were to go
into effect, its publication of cross-references to the now nonexistent
8 CFR 208.13(c)(4) and 1208.13(c)(4) would introduce inconsistencies in
the regulations and create confusion as to the Departments' intended
procedures for credible fear determinations. Further, the setting forth
of two entirely different processes and procedures for applying
mandatory bars during credible fear screenings would interfere with the
Departments' ability to consider those bars during screenings and
reviews.
Additionally, amendatory instructions to revise five different
paragraphs cannot be implemented as intended. Specifically, amendatory
instructions 4, 8, and 12 instruct OFR to revise five paragraphs that
no longer exist: 8 CFR 208.30(e)(5)(i)(A) and (B) and (f)(1),
1003.42(d)(1), and 1208.30(g)(1)(ii). Those paragraphs existed when the
Security Bars Final Rule was published; thus, OFR could have
``revised'' them as instructed at that time. See Document Drafting
Handbook at 3-38 (stating that the amendatory term ``[r]evise''
``[r]eplaces an existing CFR unit in its entirety,'' whereas the term
``[a]dd'' ``[i]nserts new content into the CFR''). However, subsequent
rules removed those paragraphs. See Asylum Processing IFR, 87 FR 18218-
19 (amending 8 CFR 208.30 to remove paragraphs (e)(5)(i)(A) and (B) and
(f)(1)); Lawful Pathways Final Rule, 88 FR 31451 (redesignating
paragraph (d)(1) of 8 CFR 1003.42 as paragraph (d) and removing and
reserving paragraph (g)(1) in 8 CFR 1208.30). Thus, OFR could not amend
these paragraphs as instructed in the Security Bars Final Rule and
would instead add editorial notes to 8 CFR 208.30, 1003.42, and 1208.30
indicating an apparent agency error. Cf. Document Drafting Handbook at
6-4 (noting that OFR may ``add an editorial note of the agency error''
in the context of other sorts of discrepancies in regulations). The
addition of the effective text as editorial notes would create
confusion as to the text's validity and effect.
A main goal of the Security Bars Final Rule was to clarify how the
bars to asylum and withholding of removal relating to aliens who pose a
danger to the security of the United States apply during credible fear
screenings. See 85 FR 84160. Despite the Departments' withdrawal of the
rule's amendments to their credible fear provisions, currently
operative regulations independently provide a framework through which
adjudicators may consider statutory bars to eligibility for asylum and
withholding of removal, including the Security Bar Final Rule's
amendments clarifying the ``danger to the security of the United
States'' bars, during the credible fear process. Notably, 8 CFR
208.30(e)(5)(i) and (ii) provide that an AO may consider the mandatory
bars set forth in section 208(b)(2)(A)(i) through (v) of the INA, 8
U.S.C. 1158(b)(2)(A)(i)-(v), or section 241(b)(3)(B) of the INA, 8
U.S.C. 1231(b)(3)(B), during a credible fear determination. Such
consideration includes section 208(b)(2)(A)(iv) of the INA, 8 U.S.C.
1158(b)(2)(A)(iv), and section 241(b)(3)(B)(iv) of the INA, 8 U.S.C.
1231(b)(3)(B)(iv), which the Security Bars Final Rule, when effective,
will clarify by providing that aliens may be ineligible for asylum and
withholding of removal for posing a ``danger to the security of the
United States'' based on certain public health
[[Page 61041]]
concerns.\12\ Additionally, 8 CFR 1003.42(d) provides that an
Immigration Judge may review an AO's credible fear determination de
novo, including, where relevant, review of an AO's application of any
bars to asylum and withholding of removal. Consequently, both AOs and
Immigration Judges may consider statutory bars, including the Security
Bar Final Rule's amendments clarifying the ``danger to the security of
the United States'' bars, during the credible fear process without the
Security Bar Final Rule's amendments to 8 CFR 208.30, 235.6, 1003.42,
1208.30, and 1235.6. Indeed, as discussed above, allowing the Security
Bars Final Rule to become effective without removing the identified
amendatory instructions may have the opposite effect--that is, it may
interfere with the Departments' ability to apply its amendments
clarifying the ``danger to the security of the United States'' bars
during credible fear screenings because it would result in confusing
regulatory text and editorial notes.
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\12\ DHS explained that this application would occur in the 2024
notice of proposed rulemaking that preceded the DHS Mandatory Bars
Rule in 2024. DHS Mandatory Bars Rule, 89 FR 41358 (``Should the
provisions of the [Security Bars] rule go into effect . . . , it
would have implications as to who could constitute a security risk--
as in, what is `a danger to the security of the United States.'
Under the Instant rule, AOs would be allowed to consider those
provisions as part of applying the security bar in credible fear and
reasonable fear screenings.'')
---------------------------------------------------------------------------
Overall, the Departments have determined that implementing the
Security Bars Final Rule without withdrawing the above-identified
instructions would impede the Administration's success in managing the
border.\13\ If the Departments do not withdraw these instructions, the
Security Bars Final Rule would create confusion and inconsistencies in
the operative CFR provisions that govern the processing of aliens using
expedited removal procedures. For the foregoing reasons, amendatory
instructions 4, 6, 8, 12, and 14 are withdrawn. The Departments are
also withdrawing amendatory instructions 5, 7, and 13, which include
authority citations rendered unnecessary by the withdrawal of the
former list of instructions. Importantly, these withdrawals will have
no immediate impact on current credible fear screening processes or the
adjudication of asylum applications.
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\13\ See, e.g., DHS, History Made, Again: Trump Administration
Crushes Border Records in July (Aug. 1, 2025), <a href="https://www.dhs.gov/news/2025/08/01/history-made-again-trump-administration-crushes-border-records-july">https://www.dhs.gov/news/2025/08/01/history-made-again-trump-administration-crushes-border-records-july</a> [<a href="https://perma.cc/JRY3-KTRF">https://perma.cc/JRY3-KTRF</a>] (describing
continued record low border encounter and release numbers).
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B. Withdrawing Third-Country Removal Provisions
Paragraph (f) in 8 CFR 208.16 and 1208.16 currently reiterates that
DHS may remove an alien granted withholding of removal or deferral of
removal to a third country other than the country to which removal has
been withheld or deferred. The Security Bars Final Rule would revise 8
CFR 208.16(f) and 1208.16(f) to add procedures for removing an alien to
a third country ``prior to a determination or adjudication of the
alien's initial request for withholding or deferral of removal'' in
certain circumstances and set out parameters for the use of such
authority. 85 FR 84193-94, 84197. In practice, these revisions would
codify a process to notify the alien of the potential third country
removal and allow the alien to withdraw his or her initial request for
withholding or deferral of removal to avoid removal to the third
country. See 85 FR 84810 (``This rule provides the alien with the
option to return to his or her home country rather than to seek
withholding or deferral protection, which could lead to such third
country removal.''). If the alien did not elect to withdraw his or her
application, then the alien could be removed to the third country
unless he or she established that he or she would more likely than not
face torture in the third country. 85 FR 84194, 84197.
Upon further consideration, the Departments are withdrawing these
amendments because they could cause confusion and are unnecessary to
effectuate the substantive public health-related provisions the
Security Bars Final Rule will implement.
First, the Departments are withdrawing the amendments to 8 CFR
208.16(f) and 1208.16(f) to avoid confusion as to the possibility of
third-country removals and the availability of withholding of removal
under the INA and CAT protection from the third country. As noted
above, the revisions the Security Bars Final Rule would make to 8 CFR
208.16(f) and 1208.16(f) would require the consideration of the
likelihood of torture in the third country, which is the test for CAT
protection, but not the likelihood of persecution on account of a
protected ground, which is the test for statutory withholding of
removal. See 85 FR 84194, 84197. The omission of the test for statutory
withholding of removal makes sense in the context of the Security Bars
Final Rule, which states in its preamble that ``DHS's discretionary
ability to remove certain aliens to third countries only applies to
aliens determined to be ineligible for asylum and withholding of
removal pursuant to the danger to the security of the United States
eligibility bars.'' \14\ 85 FR 84181. However, the regulatory text does
not include the requirement that the alien be first subject to the
asylum and withholding eligibility bars identified in the preamble of
the Security Bars Final Rule. The amendments to 8 CFR 208.16(f) and
1208.16(f) made by the Security Bars Final Rule could lead a reader to
believe, incorrectly, that in all third-country-removal circumstances
aliens must only be screened for a likelihood of torture, and not a
likelihood of persecution, when relevant. To avoid the potential for
confusion or interference with DHS's ability to remove aliens to third
countries, the Departments are withdrawing the amendments to 8 CFR
208.16(f) and 1208.16(f).
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\14\ The Security Bars Final Rule also states that third-country
removals would be used in circumstances where aliens were ineligible
for asylum due to the TCT Bar. See 85 FR 84181. The process for
removals in that circumstance was set forth in amendments to 8 CFR
208.30(e)(5)(iii)(B)(2).
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Second, these provisions are not necessary for DHS to effectuate
third country removals. See INA 241(b), 8 U.S.C. 1231(b) (outlining the
countries to which DHS may remove an alien). For aliens in removal
proceedings, the Immigration Judge designates the country or countries
of removal, in accordance with section 241 of the INA, 8 U.S.C. 1231. 8
CFR 1240.10(f). If, during the course of proceedings, DHS seeks to
remove an alien to a third country, DHS notifies the Immigration Judge
of that new prospective country of removal, and, if relevant, the alien
may seek protection from removal to that country. See id.; 8 CFR
1240.11(c)(1)(i).
C. Unaffected Provisions
This rule does not make any changes to the remainder of the
Security Bars Final Rule. That rule makes key changes to 8 CFR 208.13
and 1208.13, including by clarifying that aliens are subject to the
statutory bars to eligibility for asylum and withholding of removal
where there are ``reasonable grounds for regarding'' or ``reasonable
grounds to believe that [an] alien is a danger to the security of the
United States'' in certain circumstances based on emergency public
health concerns generated by a communicable disease. See 85 FR 84193-
94, 84196-97 (adding clarifying provisions to the asylum and
withholding of removal regulations at 8 CFR 208.13(c)(10),
208.16(d)(2), 1208.13(c)(10), and 1208.16(d)(2)). The
[[Page 61042]]
revisions introduce specific criteria, such as exhibiting symptoms of a
disease or having been exposed to the disease during its incubation and
contagion period. See 85 FR 84193-94, 84196-97 (adding these criteria
at 8 CFR 208.13(c)(10)(i)(A)-(B), 208.16(d)(2)(ii)(A)-(B),
1208.13(c)(10)(i)(A)-(B), and 1208.16(d)(2)(ii)(A)-(B)). The revisions
further allow DHS, DOJ, and the Department of Health and Human Services
to jointly designate regions or countries experiencing epidemics as
posing a public health risk to the United States, making aliens from
those areas ineligible for asylum and withholding of removal. See 85 FR
84193-94, 84196-97 (adding this authority at 8 CFR
208.13(c)(10)(ii)(A)-(C), 208.16(d)(2)(iii)(A)-(C),
1208.13(c)(10)(ii)(A)-(C), and 1208.16(d)(2)(iii)(A)-(C)).
Additionally, the revisions explicitly exempt from operation of the
Security Bars Final Rule those aliens returning from Canada under the
Agreement Between the Government of the United States and the
Government of Canada for Cooperation in the Examination of Refugee
Status Claims from Nationals of Third Countries \15\ that is currently
in place with Canada under section 208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A). See 85 FR 84193-94, 84196-97 (adding exemption at 8 CFR
208.13(c)(10)(iii), 208.16(d)(2)(iv), 1208.13(c)(10)(iii), and
1208.16(d)(2)(iv)).
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\15\ See Implementation of the 2022 Additional Protocol to the
2002 U.S.-Canada Agreement for Cooperation in the Examination of
Refugee Status Claims From Nationals of Third Countries, 88 FR 18227
(Mar. 28, 2023).
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IV. Public Comments on Delay IFRs and Responses
As part of the second, third, and fourth delays of the Security
Bars Final Rule, the Departments requested and received public comments
addressing both the delay of the effective date and any potential
future action to modify or rescind the Security Bars Final Rule.
Individuals, elected officials, and non-governmental organizations all
commented on the March 2021, December 2021, and December 2022 delay
IFRs.\16\ The Departments did not receive any comments on the December
2024 delay IFR.\17\ The Departments summarize and respond to comments
below.\18\
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\16\ Comments may be reviewed at <a href="https://www.regulations.gov/document/USCIS-2020-0013-5072/comment">https://www.regulations.gov/document/USCIS-2020-0013-5072/comment</a>; <a href="https://www.regulations.gov/document/USCIS-2020-0013-5118/comment">https://www.regulations.gov/document/USCIS-2020-0013-5118/comment</a>; <a href="https://www.regulations.gov/document/USCIS-2020-0013-5136/comment">https://www.regulations.gov/document/USCIS-2020-0013-5136/comment</a>; and <a href="https://www.regulations.gov/docket/EOIR-2020-0010/comments">https://www.regulations.gov/docket/EOIR-2020-0010/comments</a>.
\17\ Readers may visit <a href="https://www.regulations.gov/docket/USCIS-2020-0013/comments?postedDateFrom=2024-12-27&postedDateTo=2025-11-10">https://www.regulations.gov/docket/USCIS-2020-0013/comments?postedDateFrom=2024-12-27&postedDateTo=2025-11-10</a>
to see that no comments were received on the docket after the date
of publication of the December 2024 Delay IFR.
\18\ The Departments do not address comments seeking changes to
U.S. laws, regulations, or agency policies that are unrelated to the
changes made by the Security Bars Final Rule, nor does this rule
resolve issues that are outside the scope of that rulemaking.
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A. Support for the Security Bars Final Rule
Comment: Several commenters expressed support for the Security Bars
Final Rule, stating that the clarification would apply in time-limited
circumstances and its implementation would prioritize the public health
and security of Americans while still providing protections to
refugees. Commenters believed the Security Bars Final Rule would ensure
that communicable diseases are not spread within the United States,
thereby preventing Americans' health from being placed at risk.
Additionally, commenters noted that other measures exist to offer
aliens protection. Several commenters stated that seeking asylum is a
privilege and not a right and that the Security Bars Final Rule aligns
with international treaties, particularly 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''), and the INA, with one commenter noting
that aliens are inadmissible to the United States if they ``have a
communicable disease of public health significance,'' INA
212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i).
Response: The Departments appreciate the commenters' support for
the Security Bars Final Rule.
B. Opposition to the Security Bars Final Rule
Comments: Several commenters expressed the opinion that the
Departments were implementing the Security Bars Final Rule to deny
immigration benefits, using public health concerns as a pretext. One
commenter stated that the rule would run ``the risk of continuing to
perpetuate harmful racist stereotypes and tropes under the guise of
public health.'' Another questioned the need for the rule's public
health-related immigration restrictions, as ``the vast majority of the
pandemic-related spread stems from within our borders.'' Another
commenter argued that there was ``no viable public health argument for
this rule'' and that the rule uses ``false public health claims to
justify violations of U.S. law and treaty obligations to protect
refugees.'' Another commenter argued that the rule ``labels asylum
seekers as threats to national security and prevents them from
accessing life-saving asylum,'' all under ``the guise of public
health.'' One commenter stated that the rule ``violates [the rights of
individuals requesting asylum] under the mistaken guise of public
health.'' Another wrote that the rule ``relies heavily on the crutch of
public health and potential impacts on border security that are
unsubstantiated, speculative, and avoidable.'' Another commenter wrote
that public health measures should be applied equally to all
individuals entering the United States, and not merely for those
seeking asylum. Another wrote that the rule ``weaponizes public health
as a pretext for disregarding fundamental aspects of U.S. asylum law.''
A few commenters also opined that the rule was not medically sound,
arguing that DHS officials lack the medical expertise to make public
health determinations. One commenter wrote that the rule would
``arbitrarily discriminate against individuals based on a border patrol
agent's uninformed medical determination or an individual's country of
origin.''
Response: The Departments disagree with the commenters'
characterizations of the Security Bars Final Rule, which the
Departments adopted after receiving and responding to comments,
including responding to comments making substantively similar claims.
See, e.g., 85 FR 84167-71. The current rulemaking is not a reevaluation
of the Security Bars Final Rule itself; that rule has already been
issued through notice-and-comment rulemaking. Rather, this rulemaking
addresses whether certain technical, non-substantive changes to the
Security Bars Final Rule are necessary before the rule goes into effect
as scheduled, as explained in Sections II.E and III of this preamble.
Comments: Several commenters expressed the opinion that there were
less restrictive means available to combat a public health emergency
and that the Security Bars Final Rule could harm public trust by
exacerbating health disparities among immigrant communities. One
commenter stated that the rule is ``sweeping in scope and would apply
to people who present no--or minimal--risk to public health.'' Another
commenter wrote that COVID-19 testing and isolation could help meet the
needs of public health while being less restrictive on the asylum
process. Another commenter wrote that the rule
[[Page 61043]]
fails to consider less restrictive alternatives that safeguard public
health while protecting asylum seekers, with one organization stating
that ``there are less restrictive measures to ensure public health than
a complete ban on asylum eligibility,'' and the Government should adopt
those less restrictive measures.
Response: The Departments disagree with the commenters'
characterizations of the Security Bars Final Rule, and the Departments
already responded to substantively similar claims in the Security Bars
Final Rule in response to comments received on the Security Bars NPRM.
See, e.g., 85 FR 84167-71, 84173. As noted previously, this rulemaking
is not a reevaluation of the Security Bars Final Rule itself. Rather,
this rulemaking addresses whether certain technical, non-substantive
changes to the Security Bars Final Rule are necessary before the rule
goes into effect as scheduled.
Comments: Some commenters opined that the Security Bars Final Rule
is a violation of human rights law, with one commenter writing that
rescission of the rule ``is essential to protect the right to seek
asylum and comply with U.S. domestic and international obligations.''
For example, one commenter wrote that ``[d]eporting all those who come
to a border seeking asylum without process and without protections
violates asylum-seekers' right of non-refoulement.'' Another commenter
wrote that the rule represents ``the wholesale abdication of the U.S.'s
non-refoulement obligations.'' Another commenter stated that the rule
``would result in the continued punishment of families and individuals
who attempt to exercise their legal right to seek protection in the
United States.'' With respect to due process, one commenter argued that
the rule denied asylum seekers the opportunity for a fair hearing by
applying asylum bars during initial screenings and allowing DHS to
deport individuals to third countries without adequate review. Several
commenters questioned whether the rule would violate the treaty
commitments of the United States, such as the CAT, the Refugee
Convention, and the 1967 Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268.
Response: The Departments disagree with the commenters'
characterizations of the Security Bars Final Rule, and the Departments
already responded to substantively similar claims in the Security Bars
Final Rule in response to comments received on the Security Bars NPRM.
See, e.g., 85 FR 84163-65, 84176, 84177-81. As noted previously, this
rulemaking is not a reevaluation of the Security Bars Final Rule
itself. This rulemaking instead addresses whether certain technical,
non-substantive changes to the Security Bars Final Rule are necessary
before the rule goes into effect as scheduled.
Comments: A few commenters indicated that they believe the Security
Bars Final Rule is discriminatory. Commenters stated the Security Bars
Final Rule would ``perpetuate harmful racist stereotypes and tropes,''
including ``portraying immigrants as threats to public health and
welfare.'' Another commenter wrote that the rule would
``disproportionately impact victims with limited resources or who lack
literacy in immigration law from accessing protections.'' One commenter
stated that the rule ``diminishes the rights of all to be treated with
the utmost compassion and recognized as fellow human beings.'' Some
commenters also claimed that the rule would treat asylum seekers with a
categorical public health approach rather than evaluate them on an
individual basis.
Response: The Departments disagree with the commenters'
characterizations of the Security Bars Final Rule, and the Departments
already responded to substantively similar claims in the Security Bars
Final Rule in response to comments received on the Security Bars NPRM.
See, e.g., 85 FR 84163-65, 84176, 84177-81. Again, this rulemaking is
not a reevaluation of the Security Bars Final Rule itself. Instead,
this rulemaking addresses whether certain technical, non-substantive
changes to the Security Bars Final Rule are necessary before the rule
goes into effect as scheduled.
Comments: Commenters opined that the rule would raise the standard
of proof applicable to migrants, including the burden of proof for
individuals seeking deferral of removal under the CAT regulations.
Commenters also wrote that the rule would impose an unreasonably high
burden of proof for protection under those regulations, while another
argued that the rule imposes unreasonable evidentiary burdens on asylum
seekers during expedited proceedings, effectively denying them a fair
opportunity to seek protection.
Response: As discussed in Section III.A of this preamble, the
Departments are withdrawing the amendatory instructions that would
amend the Departments' credible fear provisions. Accordingly, the
provisions discussed by these commenters will not be codified.
C. Additional Delay
The Departments previously considered and addressed comments
related to delaying the effective date of the Security Bars Final Rule.
See 87 FR 79792-93 (December 2022 Delay IFR discussing and responding
to comments related to the delayed effective date); see also 89 FR
105387-88 (December 2024 Delay IFR discussing and responding to
comments related to the delayed effective date). As summarized in the
December 2022 and December 2024 Delay IFRs, some commenters supported
further delaying the Security Bars Final Rule--including indefinitely--
whereas others did not support further delays. 87 FR 79793; 89 FR
105388. In the December 2022 Delay IFR, the Departments explained that
a two-year delay was appropriate to provide time to assess the
inconsistencies between the Security Bars Final Rule and other rules
and for the promulgation of a subsequent rule that the Departments were
considering at that time. 87 FR 79793. Then, in response to additional
comments, the Departments in the December 2024 Delay IFR determined
that a one-year further delay was appropriate in light of the
Departments' limited resources and intervening regulatory priorities.
89 FR 105388. The Departments also continued to welcome comments on the
possibility of further delays, 89 FR 105388, but the Departments did
not receive any comments in response to the December 2024 Delay IFR.
The Departments have decided that additional delay is not
necessary. The Departments delayed the Security Bars Final Rule largely
because of a preliminary injunction against the Global Asylum Final
Rule and because allowing the Security Bars Final Rule to go into
effect would have resulted in confusing regulatory text. See, e.g.,
December 2024 Delay IFR, 89 FR 105388. The Departments have determined
that the most effective way to remedy these concerns is to withdraw the
specific portions of the Security Bars Final Rule that may conflict
with other regulatory text (which will simultaneously withdraw the
portions of the rule that may conflict with the preliminary
injunction), while taking no further actions to interfere with other
portions of the Security Bars Final Rule (in particular, the portions
clarifying that the statutory ``danger to the security of the United
States'' bars to eligibility for asylum and withholding of removal
encompass certain emergency public health concerns) from becoming
effective as scheduled. This course of action will both resolve the
bases for
[[Page 61044]]
past delays and obviate the need for additional delays, without
interfering with the public health benefits that the Departments sought
to achieve when promulgating the Security Bars Final Rule. Thus, the
Departments believe that further delay is unnecessary.
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The APA generally requires agencies to publish ``notice of proposed
rule making'' in the Federal Register for a period of public comment
unless a rule meets an exception to that requirement. 5 U.S.C.
553(b)(A)-(B). In addition, the APA generally requires a 30-day delay
to the effective date of a rule. 5 U.S.C. 553(d).
1. Notice and Comment
This rulemaking satisfies the APA's notice-and-comment requirement.
As noted above in Section IV of this preamble, the Departments in the
second, third, and fourth delays of the Security Bars Final Rule
requested and received public comments addressing the delay of the
effective date of the Security Bars Final Rule. The Departments also
welcomed comments on whether to amend or rescind the Security Bars
Final Rule in the second delay of the Security Bars Final Rule. See
March 2021 Delay IFR, 86 FR 15069. Additionally, the Departments sought
comment on the question of further delay in the fifth delay of the
Security Bars Final Rule, see December 2024 Delay IFR, 89 FR 105388,
but the Departments did not receive any comments in response to that
request. As explained above in Section IV.B of this preamble, many
comments received by the Departments addressed the underlying merits of
the Security Bars Final Rule--a matter the Departments already
considered when initially promulgating the Security Bars Final Rule.
Some comments, however, did specifically address the issue of further
delay. For example, some commenters argued that the Departments should
delay the Security Bars Final Rule's effective date indefinitely or for
a significant, extended period of time and suggested that other legal
means should be used to manage immigration-related concerns about
infectious diseases during the delay. See December 2024 Delay IFR, 89
FR 105388 (describing previously received comments).
The Departments have considered these comments in concluding that
the most appropriate course of action is to withdraw certain provisions
of the Security Bars Final Rule while taking no action to stop the
remainder of the rule going into effect as scheduled. As explained
previously, the Departments delayed the Security Bars Final Rule
largely because of a preliminary injunction against the Global Asylum
Final Rule and because allowing the Security Bars Final Rule to go into
effect would have resulted in confusing regulatory text. See, e.g.,
December 2024 Delay IFR, 89 FR 105388. The Departments have concluded
that the most effective way to remedy these concerns is to withdraw the
specific portions of the Security Bars Final Rule that may conflict
with other regulatory text (which will simultaneously withdraw the
portions of the rule that may conflict with the preliminary injunction)
while taking no further actions to interfere with other portions of the
Security Bars Final Rule (in particular, the portions clarifying that
the statutory ``danger to the security of the United States'' bars to
eligibility for asylum and withholding of removal encompass certain
emergency public health concerns) from becoming effective as scheduled.
This course of action will both resolve the bases for past delays and
obviate the need for additional delays, without interfering with the
public health benefits that the Departments sought to achieve when
promulgating the rule. Thus, although the Departments appreciate the
response from commenters suggesting, e.g., an indefinite delay, the
Departments believe that further delay is unnecessary.
2. Procedural Rule
Even if the Departments had not complied with the notice-and-
comment requirements of the APA, the APA's notice-and-comment and
delayed-effective-date requirements do not apply to ``rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A); 5 U.S.C.
553(d)(3) (providing that the required publication or service of a
``substantive'' rule shall generally be made not less than 30 days
before its effective date). Courts ``have used the term `procedural
exception' as shorthand for that exemption.'' AFL-CIO v. NLRB, 57 F.4th
1023, 1034 (D.C. Cir. 2023). ``[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. (quoting James V.
Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000));
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. DHS, 653 F.3d 1, 5 (D.C. Cir. 2011) (citing Pub. Citizen
v. Dep't of State, 276 F.3d, 634, 640-41 (D.C. Cir. 2002)).
The Departments have determined that this rule regulates agency
procedure and is therefore exempt from notice-and-comment and delayed-
effective-date requirements under the APA. See 5 U.S.C. 553(b)(A); id.
553(d)(3). Although this rule does withdraw certain amendatory
instructions of the Security Bars Final Rule, withdrawing the
identified amendatory instructions will not alter individuals' rights
or interests, nor will doing so alter any eligibility requirements for
relief or protection from removal or place any new ``substantive
burden[s]'' on regulated parties. Elec. Priv. Info. Ctr., 653 F.3d at
6; see JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994).
Instead, removing such amendatory instructions simply avoids writing
over regulatory amendments properly adopted after the Security Bars
Final Rule was published, as described in Sections II.E and III.A of
this preamble, or codifying language that could cause confusion, as
described in Section III.B of this preamble, thus preventing the
codification of confusing or conflicting regulatory text. The substance
of the Security Bars Final Rule--i.e., that the statutory ``danger to
the security of the United States'' bars to eligibility for asylum and
withholding of removal encompass certain emergency public health
concerns--remains unaffected by the changes to the Security Bars Final
Rule adopted in this rulemaking. The changes made by this rulemaking
accordingly will not affect the ``rights or interests'' of aliens, see
AFL-CIO, 57 F.4th at 1034, because those rights or interests will
remain exactly the same as if the Security Bars Final Rule had been
[[Page 61045]]
allowed to go into effect as scheduled without the changes made by this
rulemaking. As such, this rule is a `` `housekeeping' '' measure that
falls squarely within the procedural rule exception to the APA's
notice-and-comment and delayed-effective-date requirements. See James
V. Hurson Assocs., Inc., 229 F.3d at 282 (quoting Nat'l Whistleblower
Ctr. v. Nuclear Regul. Comm'n, 208 F.3d 256, 263 (D.C. Cir. 2000)).
Accordingly, this rule is not subject to the notice-and-comment and
delayed-effective-date requirements of the APA.
3. Good Cause
A rule is exempt from the APA's notice-and-comment requirements
when an agency ``for good cause'' finds that notice and public
procedure is impracticable, unnecessary, or contrary to the public
interest. 5 U.S.C. 553(b)(B). An agency may also forgo a delayed
effective date ``for good cause found.'' 5 U.S.C. 553(d)(3). The
Departments have determined that there is good cause to forgo notice-
and-comment procedures for this partial withdrawal because providing
notice and an opportunity to comment is unnecessary. For the same
reason, this rule is exempt from the APA's delayed-effective-date
requirements.
When determining that notice and comment is ``unnecessary,'' the
agency must consider whether the rule is ``insignificant in nature and
impact, and inconsequential to . . . the public.'' See Util. Solid
Waste Activities Grp. v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001)
(quotation omitted) (holding that notice and comment rulemaking was
necessary because the regulation at issue ``greatly expanded the
regulated community and increased the regulatory burden''); see also
North Carolina Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d
755, 766 (4th Cir. 2012) (describing the unnecessary prong as applying
``when amendments are `minor or merely technical,' and of little public
interest'' (quoting Nat'l Nutritional Foods Ass'n v. Kennedy, 572 F.2d
377, 384-85 (2d Cir. 1978))).
Notice and comment on the Departments' decision to withdraw
specific amendatory instructions in the Security Bars Final Rule is
unnecessary because rules that underwent notice and comment rulemaking
or were exempt from notice and comment rulemaking, as described in
Section II.E of this preamble, superseded those amendments while the
Security Bars Final Rule's effective date was delayed. In some
instances, the intervening rules substantively removed provisions that
had been implemented by the Global Asylum Final Rule and were set to be
further amended by the Security Bars Final Rule. For example, the
requirement to consider mandatory bars during credible fear screenings
was adopted through the Global Asylum Final Rule, amended by the
Security Bars Final Rule, but subsequently removed by the Asylum
Processing IFR. See Section II.E.1 of this preamble. Intervening rules
also affected the structure of the applicable CFR sections such that
certain paragraphs that the Security Bars Final Rule would revise--in
the absence of this rulemaking--no longer exist, as described in
Section III.A of this preamble. Hence, as described in Sections II.E
and III.A of this preamble, the substantive policy choices adopted in
the amendatory instructions the Departments are withdrawing from the
Security Bars Final Rule have been reversed or altered by intervening
rules that were adopted after notice and comment or were exempt from
the APA's notice-and-comment requirements. Withdrawing these regulatory
amendments accordingly amounts to a ``technical'' change, see North
Carolina Growers' Ass'n, 702 F.3d at 766, designed only to ensure that
the CFR continues to accurately reflect the correct procedures--i.e.,
to ensure that the delayed implementation of the Security Bars Final
Rule does not create conflicts with the amendments to the credible fear
provisions that were made in the later-enacted rules discussed in
Section II.E of this preamble.\19\
---------------------------------------------------------------------------
\19\ Although the withdrawal of the parts of amendatory
instructions 3 and 11 that relate to revisions to paragraph (f) in 8
CFR 208.16 and 1208.16 are not the result of amendments by
intervening rules, their removal likewise does not effect a change
to the status quo. Withdrawing those amendments avoids introducing
potential confusion as to the availability of statutory withholding
of removal for aliens slated for removal under the INA, as described
in Section III.B of this preamble.
---------------------------------------------------------------------------
As to whether there is good cause to forego the delayed effective
date typically required by the APA, courts have asked whether the need
to immediately implement a new rule outweighs regulated parties' need
to prepare for implementation of the rule. See, e.g., Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
Here, there is no need for additional delay for regulated parties to
prepare for implementation of this rule. Regulated parties have long
been on notice that the Security Bars Final Rule was scheduled to go
into effect on December 31, 2025; and the changes made to the Security
Bars Final Rule by this current rulemaking will not require any time
for adjustment by regulated parties because withdrawing certain
portions of the Security Bars Final Rule will ensure only that the
immigration adjudication system continues to function as it currently
does. In contrast, delaying this rule under section 533(d) of the APA
would risk causing significant confusion, as discussed above in
Sections II.E and III of this preamble.
For these reasons, the Departments have determined that notice-and-
comment procedures and a delayed effective date are unnecessary.
4. Foreign Affairs
The requirements of 5 U.S.C. 553 do not apply to this rule because
it involves a ``foreign affairs function of the United States.'' 5
U.S.C. 553(a)(1). Courts have held that this exception applies when the
rule in question ``clearly and directly involves a foreign affairs
function.'' E.B. v. U.S. Dep't of State, 583 F. Supp. 3d 58, 63 (D.D.C.
2022) (cleaned up). In addition, although the text of the APA does not
require an agency invoking this exception to show that such procedures
may result in ``definitely undesirable international consequences,''
some courts have required such a showing. Rajah v. Mukasey, 544 F.3d
427, 437 (2d Cir. 2008) (quotation marks omitted). This rule satisfies
both standards.
This rule is intended to ensure the Departments' continued ability
to process aliens using the expedited removal statute by avoiding
conflicting instructions to agency personnel implementing the credible
fear screening process and the removal process generally. See INA
235(b)(1), 8 U.S.C. 1225(b)(1). If there are conflicting instructions,
the Departments' ability to operate the expedited removal system, as
well as the use of third-country removal procedures, could be
interrupted. As recently explained when expanding the scope of
expedited removal to the statutory maximum, the use of expedited
removal ``enhance[s] national security and public safety--while
reducing government costs--by facilitating prompt immigration
determinations.'' Designating Aliens for Expedited Removal, 90 FR 8139,
8139 (Jan. 24, 2025). The Departments believe that the use of expedited
removal, both at the border and elsewhere, disincentivizes aliens from
entering the United States unlawfully. If that process is interrupted,
those disincentives may disappear.
Ensuring the continued viability of the expedited removal process
and third-country removal procedures
[[Page 61046]]
without delay avoids the possibility of losing momentum with
international partners to address shared challenges to border security
and illegal immigration. The United States' border management strategy
is predicated on the belief that migration is a shared responsibility
among all countries in the region, and Executive Order 14150 of January
20, 2025 (``America First Policy Directive to the Secretary of
State''), sets out the President's vision that ``the foreign policy of
the United States shall champion core American interests and always put
America and American citizens first.'' 90 FR 8337 (Jan. 20, 2025). In
this regard, the Administration is actively engaged in negotiations,
including wide-ranging discussions with foreign partners, on matters
related to border security, such as to reduce illegal immigration and
advance security in the United States and the region. See Imposition
and Collection of Civil Penalties for Certain Immigration-Related
Violations, 90 FR 27439, 27454-55 & nn.48-55 (June 27, 2025)
(discussing the Administration's efforts).
For its foreign policy efforts to succeed in this regard, the
United States must demonstrate its own willingness to maintain its
ability to use available tools to disincentivize, prepare for, and
respond to ongoing migratory challenges and unlawful immigration. This
rule ensures that two such critical tools--expedited removal and third-
country removals--will not be potentially interrupted by conflicting
and confusing regulatory provisions and so will remain means by which
the Departments may deliver consequences to aliens who make the
dangerous journey for purposes of entering the United States
unlawfully. Such efforts demonstrate to international partners the
United States' commitment to ending illegal immigration. Although
southern border encounters between ports of entry have fallen to
historical lows since January 2025,\20\ this Administration has made it
a priority to take all measures to ensure that DHS maintains
operational control at the border in order to prevent potential illegal
immigration surges, as occurred during the last Administration.\21\
Loss of operational control of the border results in large numbers of
migrants making the dangerous journey to the southern border through
countries in the Western Hemisphere.\22\ Therefore, delaying this
rule's withdrawal of the identified amendatory instructions to await
further notice and comment or a delayed effective date could undermine
the momentum that this Administration has built with foreign partners
towards shared border security challenges.
---------------------------------------------------------------------------
\20\ CBP, Trump Administration Delivers 5 Straight Months of 0
Releases at the Border (Oct. 24, 2025), <a href="https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-5-straight-months-0-releases-border">https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-5-straight-months-0-releases-border</a> [<a href="https://perma.cc/W33V-ZPH3">https://perma.cc/W33V-ZPH3</a>].
\21\ See Executive Order 14165, Securing Our Borders, 90 FR 8467
(Jan. 20, 2025).
\22\ See, e.g., Securing the Border, 89 FR 81186 (noting that
when there is a strain on resources due to a large number of aliens
crossing the southern border illegally, this situation creates
``incentives for migrants to make the dangerous journey to the
southern border in the hope that the overwhelmed and under-resourced
immigration system will not be able to expeditiously process them
for removal'').
---------------------------------------------------------------------------
Moreover, the Administration is actively engaged in negotiations
with other countries intended to address the large number of illegal
aliens in the United States, including those who may be subject to
expedited removal or removed to a third country. This includes various
agreements that the Administration has signed with foreign governments
in which those countries have agreed to accept third-country nationals,
as well as their own nationals, upon removal.\23\ The Administration's
negotiations also include discussions designed to help ensure that
other countries issue travel documents for their nationals for removal
and approve removal flights from the United States in a timely
manner.\24\
---------------------------------------------------------------------------
\23\ See Agreement Between the Government of the United States
of America and the Government of the Republic of Honduras for
Cooperation in the Examination of Protection Requests, 90 FR 30076
(July 8, 2025); Agreement Between the Government of the United
States of America and the Government of the Republic of Guatemala
Relating to the Transfer of Nationals of Central American Countries
to Guatemala, 90 FR 31670 (July 15, 2025); Agreement Between the
Government of the United States of America and the Government of the
Republic of Uganda for Cooperation in the Examination of Protection
Requests, 90 FR 42597 (Sept. 3, 2025); Agreement Between the
Government of the United States of America and the Government of the
Republic of Ecuador Relating to the Transfer of Third-Country
Nationals to Ecuador, 90 FR 51376 (Nov. 17, 2025); Marco Rubio,
Press Statement: Signing of a Safe Third Country Agreement with
Paraguay (Aug. 14, 2025), <a href="https://www.state.gov/releases/office-of-the-spokesperson/2025/08/signing-of-a-safe-third-country-agreement-with-paraguay">https://www.state.gov/releases/office-of-the-spokesperson/2025/08/signing-of-a-safe-third-country-agreement-with-paraguay</a> [<a href="https://perma.cc/5H66-NDBV">https://perma.cc/5H66-NDBV</a>]; Ministry of Foreign
Affairs of the Republic of Belize, Belize Signs Safe Third Country
Agreement With United States (Oct. 20, 2025), <a href="https://www.pressoffice.gov.bz/belize-signs-safe-third-country-agreement-with-united-states">https://www.pressoffice.gov.bz/belize-signs-safe-third-country-agreement-with-united-states</a> [<a href="https://perma.cc/U6VC-PLT3">https://perma.cc/U6VC-PLT3</a>]; Ecuavisa, Ecuador
recibir[aacute] hasta 300 refugiados al a[ntilde]o enviados por EE.
UU. (Sept. 1, 2025), <a href="https://www.ecuavisa.com/noticias/politica/estados-unidos-refugiados-ecuador-DC10033154">https://www.ecuavisa.com/noticias/politica/estados-unidos-refugiados-ecuador-DC10033154</a> [<a href="https://perma.cc/CE4Z-MXB8">https://perma.cc/CE4Z-MXB8</a>].
\24\ It is critical to the ability of the United States to
remove aliens that the aliens' countries of citizenship timely issue
travel documents for their nationals for removal and that the
countries approve removal flights from the United States. In
bilateral engagements, this Administration has made it clear to
other countries that it is their responsibility to facilitate the
return of their nationals who do not have a legal basis to remain in
the United States. A country's refusal to either issue travel
documents for its nationals or authorize removal flights may carry
consequences. For example, on January 26, 2025, Colombia's refusal
to allow removal flights to land in Colombia led the United States
to impose visa restrictions to indicate that reducing illegal
immigration and removal of aliens with no legal right to remain in
the United States is a critical foreign policy objective of the
United States. See The White House, Statement from the Press
Secretary (Jan. 26, 2025), <a href="https://www.whitehouse.gov/briefings-statements/2025/01/statement-from-the-press-secretary/">https://www.whitehouse.gov/briefings-statements/2025/01/statement-from-the-press-secretary/</a> [<a href="https://perma.cc/B5MT-2LXE">https://perma.cc/B5MT-2LXE</a>]; U.S. Department of State, Secretary Rubio
Authorizes Visa Restrictions on Colombian Government Officials and
their Immediate Family Members (Jan. 26, 2025), <a href="https://www.state.gov/secretary-rubio-authorizes-visa-restrictions-on-colombian-government-officials-and-their-immediate-family-members/">https://www.state.gov/secretary-rubio-authorizes-visa-restrictions-on-colombian-government-officials-and-their-immediate-family-members/</a>
[<a href="https://perma.cc/V2QU-M7XQ">https://perma.cc/V2QU-M7XQ</a>]; U.S. Department of State, Ending
Illegal Immigration in the United States (Jan. 26, 2025), <a href="https://www.state.gov/ending-illegal-immigration-in-the-united-states/">https://www.state.gov/ending-illegal-immigration-in-the-united-states/</a>
[<a href="https://perma.cc/7L3M-TDTJ">https://perma.cc/7L3M-TDTJ</a>].
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These efforts also include coordination with other countries to
support the Administration's efforts to encourage aliens to depart the
United States voluntarily and return to their home countries,
consistent with Presidential Proclamation 10935, 90 FR 20357 (May 9,
2025) (``Establishing Project Homecoming'').\25\ In sum, these actions
indicate that the removal of aliens with no legal right to remain in
the United States is a critical foreign policy objective of the United
States.
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\25\ For example, on May 19, 2025, DHS conducted a voluntary
charter flight from the United States to Honduras and Colombia, in
coordination with those governments, for aliens who opted to self-
deport. See DHS, Project Homecoming Charter Flight Brings Self-
Deporters to Honduras, Colombia (May 19, 2025), <a href="https://www.dhs.gov/news/2025/05/19/project-homecoming-charter-flight-brings-self-deporters-honduras-colombia/">https://www.dhs.gov/news/2025/05/19/project-homecoming-charter-flight-brings-self-deporters-honduras-colombia/</a> [<a href="https://perma.cc/VXP9-6DSF">https://perma.cc/VXP9-6DSF</a>]. The
participants were welcomed by representatives from their home
governments, who also provided benefits and services to those
aliens. See id.
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Here too, for these foreign policy efforts to succeed, the United
States must demonstrate that it is ensuring the continued usability of
all the tools it has available to help achieve the purpose of these
international efforts and negotiations: to encourage other countries to
cooperate with the United States' efforts to remove illegal aliens.
Delaying this rule's withdrawal of the identified amendatory
instructions could have undesirable consequences on the United States'
ongoing foreign policy goals, including efforts to encourage other
countries to issue travel documents. Quite simply, if the United States
is unable to demonstrate its continuous, effective commitment to taking
quick and robust action to remove aliens, which depends on
international cooperation, countries may be less inclined to engage
with the
[[Page 61047]]
United States on these ongoing efforts in the future.
In addition, the Department of State recently described the foreign
affairs aspect of immigration in its determination that ``efforts . . .
to control the status, entry, and exit of people . . . across the
borders of the United States'' constitute a foreign affairs function of
the United States under the APA. See Determination: Foreign Affairs
Functions of the United States, 90 FR 12200, 12200 (Mar. 14, 2025). In
making this determination, the Department of State explained that
``[s]ecuring America's borders and protecting its citizens from
external threats is the first priority foreign affairs function of the
United States'' and noted that an unsecured border presents a range of
threats to U.S. citizens, which can be eliminated or mitigated through
the execution of the foreign affairs functions. 90 FR 12200. This rule
will remove the potential for interruption of U.S. efforts to achieve
the total and efficient enforcement of U.S. immigration law and,
accordingly, champions a core American interest in accordance with
American foreign policy. See id.
B. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits. Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. Executive Order 14192
(``Unleashing Prosperity Through Deregulation'') directs agencies to
significantly reduce the private expenditures required to comply with
Federal regulations and provides that ``any new incremental costs
associated with new regulations shall, to the extent permitted by law,
be offset by the elimination of existing costs associated with at least
10 prior regulations.''
Although this rule is not economically significant under section
3(f)(1) of Executive Order 12866, the Office of Management and Budget
(``OMB'') has designated this rule a ``significant regulatory action''
under section 3(f) of that order. Accordingly, the rule has been
reviewed by OMB.
This rule is not a regulatory action subject to Executive Order
14192 because it is being issued with respect to an immigration-related
function of the United States. The rule's primary direct purpose is to
implement or interpret the immigration laws of the United States or any
other function performed by the Federal Government with respect to
aliens. See OMB, Memorandum M-25-20, Guidance Implementing Section 3 of
Executive Order 14192, titled ``Unleashing Prosperity Through
Deregulation'' at 5 (Mar. 26, 2025).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). The Departments have reviewed this
rule in accordance with the RFA's requirements and have determined that
this rule will not have a significant economic impact on a substantial
number of small entities. This rule does not regulate ``small
entit[ies]'' as that term is defined in 5 U.S.C. 601(6). Only
individuals, rather than entities, may seek asylum or withholding or
deferral of removal, and only individual aliens are otherwise placed in
immigration proceedings. Further, the RFA's regulatory flexibility
analysis requirements apply only to those rules for which an agency is
required to publish a general notice of proposed rulemaking pursuant to
5 U.S.C. 553 or any other law. See 5 U.S.C. 604(a). Because the
Departments were permitted to forgo notice-and-comment procedures for
the reasons explained in Section V.A of this preamble, a regulatory
flexibility analysis is not required for this rule.
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. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or a final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in an expenditure of $100 million or
more (adjusted annually for inflation) in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. See
2 U.S.C. 1532(a). This final rule does not contain a Federal mandate as
the term is defined under UMRA: It does not impose any enforceable duty
upon any State, local, or Tribal government or any private sector
entity. Any downstream effects on such entities would arise solely due
to the entity's voluntary choices, and the voluntary choices of others,
and would not be a consequence of an enforceable duty imposed by this
rule. 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 Departments have not prepared a statement under
UMRA.
E. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
The Office of Information and Regulatory Affairs has determined
that this rule is not a major rule as defined by section 804 of the
Congressional Review Act. 5 U.S.C. 804(2). This rule will not result in
an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
F. Executive Order 13132 (Federalism)
This final rule does 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, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule does not have Tribal implications under Executive Order
13175 because it would not have a substantial direct effect on one or
more
[[Page 61048]]
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.
I. National Environmental Policy Act
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C.
4321 et seq., applies to them and, if so, what degree of analysis is
required. DHS established the policies and procedures that DHS and its
components use to comply with NEPA in Directive 023-01 Rev. 01,
Implementing the National Environmental Policy Act (Oct. 31, 2014),
<a href="https://www.dhs.gov/sites/default/files/publications/mgmt/environmental-management/mgmt-dir_023-01-implementation-national-environmental-policy-act_revision-01.pdf">https://www.dhs.gov/sites/default/files/publications/mgmt/environmental-management/mgmt-dir_023-01-implementation-national-environmental-policy-act_revision-01.pdf</a>, and Instruction Manual 023-
01-001-01 Rev. 01, Implementation of the National Environmental Policy
Act (NEPA) (Nov. 6, 2014) (``Instruction Manual'').\26\
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\26\ The Instruction Manual contains DHS's procedures for
implementing NEPA, and copies are available upon request. See DHS,
National Environmental Policy Act Compliance (July 29, 2025),
<a href="https://www.dhs.gov/ocrso/eed/epb/nepa">https://www.dhs.gov/ocrso/eed/epb/nepa</a>.
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NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement.\27\ The Instruction Manual, Appendix A, lists the DHS
Categorical Exclusions.\28\
---------------------------------------------------------------------------
\27\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\28\ See Instruction Manual, Appendix A, Table 1.
---------------------------------------------------------------------------
Under DHS 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.\29\
---------------------------------------------------------------------------
\29\ Instruction Manual at V.B(2)(a) through (c).
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This rule amends a not-yet-effective final rule in ways that will
not change the current status quo and thus will not result in a change
in the final rule's environmental effect. This rule is strictly
administrative; it amends DHS's existing regulations governing credible
fear procedures and protection eligibility to avoid confusion and
conflicting regulatory text, rather than to change the substance of the
Security Bars Final Rule. DHS has reviewed this partial withdrawal rule
and finds that no significant impact on the environment, nor any change
in environmental effect, will result from the amendments being
promulgated in this partial withdrawal rule.
Accordingly, DHS finds that the promulgation of this rule clearly
fits within categorical exclusion A3 established in DHS's NEPA
implementing procedures because it is as an administrative change with
no change in environmental effect, is not part of a larger Federal
action, and does not present extraordinary circumstances that create
the potential for a significant environmental effect. Therefore, this
rule is categorically excluded from further NEPA review. DOJ is
adopting the DHS determination that this rule is categorically excluded
under exclusion A3 of DHS's Instruction Manual because the rule makes
changes to DOJ's provisions of the Security Bars Final Rule that are
similar to those made to DHS's provisions. See 42 U.S.C. 4336c
(allowing an agency to adopt another agency's categorical exclusion
determination).
J. Paperwork Reduction Act
This rule does not adopt new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its
implementing regulations, 5 CFR part 1320.
List of Subjects 8 CFR Parts 208 and 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, in FR Doc.
2020-28436 appearing on page 84160 in the Federal Register of
Wednesday, December 23, 2020, the following corrections are made:
0
1. On page 84193, starting in the third column, in part 208, amendment
3 and the accompanying regulatory text are corrected to read as
follows:
0
3. Amend Sec. 208.16 by revising paragraph (d)(2) to read as follows:
Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the
Act and withholding of removal under the Convention Against Torture.
* * * * *
(d) * * *
(2) Mandatory denials--(i) In general. Except as provided in
paragraph (d)(3) of this section, an application for withholding of
removal under section 241(b)(3) of the Act or under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture shall be denied if the applicant falls within section
241(b)(3)(B) of the Act or, for applications for withholding of
deportation adjudicated in proceedings commenced prior to April 1,
1997, within section 243(h)(2) of the Act as it appeared prior to that
date. For purposes of section 241(b)(3)(B)(ii) of the Act, or section
243(h)(2)(B) of the Act as it appeared prior to April 1, 1997, an alien
who has been convicted of a particularly serious crime shall be
considered to constitute a danger to the community. If the evidence
indicates the applicability of one or more of the grounds for denial of
withholding enumerated in the Act, the applicant shall have the burden
of proving by a preponderance of the evidence that such grounds do not
apply.
(ii) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as under section 319 of the Public Health Service
Act, 42 U.S.C. 247d, or section 564 of the Food, Drug, and Cosmetic
Act, 21 U.S.C. 360bbb-3, then an alien is ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien as a danger to the security of the United States under
section 241(b)(3)(B)(iv) of the Act if the alien:
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate; or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(iii) Danger to the public health caused by an epidemic outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly:
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is
[[Page 61049]]
prevalent or epidemic (or had come from that country or countries (or
one or more subdivisions or regions thereof), or had embarked at that
place or places, during a period in which the disease was prevalent or
epidemic there) would cause a danger to the public health in the United
States; and
(B) Designated the foreign country or countries (or one or more
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (d)(2)(ii)(A) of this section who are still within the number
of days equivalent to the longest known incubation and contagion period
for the disease be regarded as a danger to the security of the United
States under section 241(b)(3)(B)(iv) of the Act, including any
relevant exceptions as appropriate, then--
(C) An alien or class of aliens are ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States under section 241(b)(3)(B)(iv) of the Act if the alien or class
of aliens are described in paragraph (d)(2)(ii)(A) of this section and
are regarded as a danger to the security of the United States as
provided for in paragraph (d)(2)(ii)(B) of this section.
(iv) The grounds for mandatory denial described in paragraphs
(d)(2)(ii) and (iii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries.
* * * * *
0
2. On page 84197, starting in the first column, in part 1208, amendment
11 and the accompanying regulatory text are corrected to read as
follows:
0
11. Amend Sec. 1208.16 by revising paragraph (d)(2) to read as
follows:
Sec. 1208.16 Withholding of removal under section 241(b)(3)(B) of
the Act and withholding of removal under the Convention Against
Torture.
* * * * *
(d) * * *
(2) Mandatory denials--(i) In general. Except as provided in
paragraph (d)(3) of this section, an application for withholding of
removal under section 241(b)(3) of the Act or under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture shall be denied if the applicant falls within section
241(b)(3)(B) of the Act or, for applications for withholding of
deportation adjudicated in proceedings commenced prior to April 1,
1997, within section 243(h)(2) of the Act as it appeared prior to that
date. For purposes of section 241(b)(3)(B)(ii) of the Act, or section
243(h)(2)(B) of the Act as it appeared prior to April 1, 1997, an alien
who has been convicted of a particularly serious crime shall be
considered to constitute a danger to the community. If the evidence
indicates the applicability of one or more of the grounds for denial of
withholding enumerated in the Act, the applicant shall have the burden
of proving by a preponderance of the evidence that such grounds do not
apply.
(ii) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as under section 319 of the Public Health Service
Act, 42 U.S.C. 247d, or section 564 of the Food, Drug, and Cosmetic
Act, 21 U.S.C. 360bbb-3, then an alien is ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien as a danger to the security of the United States under
section 241(b)(3)(B)(iv) of the Act if the alien--
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate; or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(iii) Danger to the public health caused by an epidemic outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly--
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (or had come from
that country or countries (or one or more subdivisions or regions
thereof), or had embarked at that place or places, during a period in
which the disease was prevalent or epidemic there) would cause a danger
to the public health in the United States; and
(B) Designated the foreign country or countries (or one or more
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (d)(2)(iii)(A) of this section who are still within the
number of days equivalent to the longest known incubation and contagion
period for the disease be regarded as a danger to the security of the
United States under section 241(b)(3)(B)(iv) of the Act, including any
relevant exceptions as appropriate, then--
(C) An alien or class of aliens are ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States under section 241(b)(3)(B)(iv) of the Act if the alien or class
of aliens are described in paragraph (d)(2)(iii)(A) of this section and
are regarded as a danger to the security of the United States as
provided for in paragraph (d)(2)(iii)(B) of this section.
(iv) The grounds for mandatory denial described in paragraphs
(d)(2)(ii) and (iii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries).
* * * * *
Kristi Noem,
Secretary of Homeland Security.
Daren K. Margolin,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2025-23970 Filed 12-29-25; 8:45 am]
BILLING CODE 4410-10-P; 9111-979111-97-P
</pre></body>
</html>Indexed from Federal Register on December 30, 2025.
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.