Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 55934-55953 [2018-24594]

Agencies

• Executive Office for Immigration Review
• DEPARTMENT OF HOMELAND SECURITY
• Department of Justice

[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Rules and Regulations]
[Pages 55934-55953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24594]



[[Page 55934]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

RIN 1615-AC34

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1208

[EOIR Docket No. 18-0501; A.G. Order No. 4327-2018]
RIN 1125-AA89


Aliens Subject to a Bar on Entry Under Certain Presidential 
Proclamations; Procedures for Protection Claims

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; Executive Office for Immigration Review, Department 
of Justice.

ACTION: Interim final rule; request for comment.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice and the Department of Homeland 
Security (``DOJ,'' ``DHS,'' or, collectively, ``the Departments'') are 
adopting an interim final rule governing asylum claims in the context 
of aliens who are subject to, but contravene, a suspension or 
limitation on entry into the United States through the southern border 
with Mexico that is imposed by a presidential proclamation or other 
presidential order (``a proclamation'') under section 212(f) or 
215(a)(1) of the Immigration and Nationality Act (``INA''). Pursuant to 
statutory authority, the Departments are amending their respective 
existing regulations to provide that aliens subject to such a 
proclamation concerning the southern border, but who contravene such a 
proclamation by entering the United States after the effective date of 
such a proclamation, are ineligible for asylum. The interim rule, if 
applied to a proclamation suspending the entry of aliens who cross the 
southern border unlawfully, would bar such aliens from eligibility for 
asylum and thereby channel inadmissible aliens to ports of entry, where 
they would be processed in a controlled, orderly, and lawful manner. 
This rule would apply only prospectively to a proclamation issued after 
the effective date of this rule. It would not apply to a proclamation 
that specifically includes an exception for aliens applying for asylum, 
nor would it apply to aliens subject to a waiver or exception provided 
by the proclamation. DHS is amending its regulations to specify a 
screening process for aliens who are subject to this specific bar to 
asylum eligibility. DOJ is amending its regulations with respect to 
such aliens. The regulations would ensure that aliens in this category 
who establish a reasonable fear of persecution or torture could seek 
withholding of removal under the INA or protection from removal under 
regulations implementing U.S. obligations under Article 3 of the 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment (``CAT'').

DATES: 
    Effective date: This rule is effective November 9, 2018.
    Submission of public comments: Written or electronic comments must 
be submitted on or before January 8, 2019. Written comments postmarked 
on or before that date will be considered timely. The electronic 
Federal Docket Management System will accept comments prior to midnight 
eastern standard time at the end of that day.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0501, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Lauren Alder Reid, Assistant Director, Office of 
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please 
reference EOIR Docket No. 18-0501 on your correspondence. This mailing 
address may be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Lauren Alder Reid, Assistant 
Director, Office of Policy, Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact 
Telephone Number (703) 305-0289 (not a toll-free call).

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone 
Number (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. The Departments also invite comments that relate to the economic 
or federalism effects that might result from this rule. To provide the 
most assistance to the Departments, comments should reference a 
specific portion of the rule; explain the reason for any recommended 
change; and include data, information, or authority that supports the 
recommended change.
    All comments submitted for this rulemaking should include the 
agency name and EOIR Docket No. 18-0501. Please note that all comments 
received are considered part of the public record and made available 
for public inspection at www.regulations.gov. Such information includes 
personally identifiable information (such as a person's name, address, 
or any other data that might personally identify that individual) that 
the commenter voluntarily submits.
    If you want to submit personally identifiable information as part 
of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first 
paragraph of your comment and precisely and prominently identify the 
information of which you seek redaction.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment and precisely and prominently identify the confidential 
business information of which you seek redaction. If a comment has so 
much confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on 
www.regulations.gov. Personally identifiable information and 
confidential business information provided as set forth above will be 
placed in the public docket file of DOJ's Executive Office of 
Immigration Review (``EOIR''), but not posted online. To inspect the 
public docket file in person, you must make an appointment with EOIR. 
Please see the FOR FURTHER INFORMATION CONTACT paragraph above for the 
contact information specific to this rule.

II. Purpose of This Interim Final Rule

    This interim final rule (``interim rule'' or ``rule'') governs 
eligibility for asylum and screening procedures for aliens subject to a 
presidential proclamation or order restricting entry issued pursuant to 
section 212(f) of the INA, 8 U.S.C. 1182(f), or section 215(a)(1) of 
the INA, 8 U.S.C. 1185(a)(1), that concerns entry to the United States 
along the southern border with Mexico and is issued on or after the 
effective date of this rule. Pursuant to statutory authority, the 
interim rule renders such aliens ineligible for asylum if they enter 
the United States after the effective date of

[[Page 55935]]

such a proclamation, become subject to the proclamation, and enter the 
United States in violation of the suspension or limitation of entry 
established by the proclamation. The interim rule, if applied to a 
proclamation suspending the entry of aliens who cross the southern 
border unlawfully, would bar such aliens from eligibility for asylum 
and thereby channel inadmissible aliens to ports of entry, where such 
aliens could seek to enter and would be processed in an orderly and 
controlled manner. Aliens who enter prior to the effective date of an 
applicable proclamation will not be subject to this asylum eligibility 
bar unless they depart and reenter while the proclamation remains in 
effect. Aliens also will not be subject to this eligibility bar if they 
fall within an exception or waiver within the proclamation that makes 
the suspension or limitation of entry in the proclamation inapplicable 
to them, or if the proclamation provides that it does not affect 
eligibility for asylum.
    As discussed further below, asylum is a discretionary immigration 
benefit. In general, aliens may apply for asylum if they are physically 
present or arrive in the United States, irrespective of their status 
and irrespective of whether or not they arrive at a port of entry, as 
provided in section 208(a) of the INA, 8 U.S.C. 1158(a). Congress, 
however, provided that certain categories of aliens could not receive 
asylum and further delegated to the Attorney General and the Secretary 
of Homeland Security (``Secretary'') the authority to promulgate 
regulations establishing additional bars on eligibility that are 
consistent with the asylum statute and ``any other conditions or 
limitations on the consideration of an application for asylum'' that 
are consistent with the INA. See INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 
1158(b)(2)(C), (d)(5)(B).
    In the Illegal Immigration Reform and Immigration Responsibility 
Act of 1996 (``IIRIRA''), Public Law 104-208, Congress, concerned with 
rampant delays in proceedings to remove illegal aliens, created 
expedited procedures for removing inadmissible aliens, and authorized 
the extension of such procedures to aliens who entered illegally and 
were apprehended within two years of their entry. See generally INA 
235(b), 8 U.S.C. 1225(b). Those procedures were aimed at facilitating 
the swift removal of inadmissible aliens, including those who had 
entered illegally, while also expeditiously resolving any asylum 
claims. For instance, Congress provided that any alien who asserted a 
fear of persecution would appear before an asylum officer, and that any 
alien who is determined to have established a ``credible fear''--
meaning a ``significant possibility . . . that the alien could 
establish eligibility for asylum'' under the asylum statute--would be 
detained for further consideration of an asylum claim. See INA 
235(b)(1), (b)(1)(B)(v), 8 U.S.C. 1225(b)(1), (b)(1)(B)(v).
    When the expedited procedures were first implemented approximately 
two decades ago, relatively few aliens within those proceedings 
asserted an intent to apply for asylum or a fear of persecution. 
Rather, most aliens found inadmissible at the southern border were 
single adults who were immediately repatriated to Mexico. Thus, while 
the overall number of illegal aliens apprehended was far higher than it 
is today (around 1.6 million in 2000), aliens could be processed and 
removed more quickly, without requiring detention or lengthy court 
proceedings.
    In recent years, the United States has seen a large increase in the 
number and proportion of inadmissible aliens subject to expedited 
removal who assert an intent to apply for asylum or a fear of 
persecution during that process and are subsequently placed into 
removal proceedings in immigration court. Most of those aliens 
unlawfully enter the country between ports of entry along the southern 
border. Over the past decade, the overall percentage of aliens subject 
to expedited removal and referred, as part of the initial screening 
process, for a credible-fear interview jumped from approximately 5% to 
above 40%, and the total number of credible-fear referrals for 
interviews increased from about 5,000 a year in Fiscal Year (``FY'') 
2008 to about 97,000 in FY 2018. Furthermore, the percentage of cases 
in which asylum officers found that the alien had established a 
credible fear--leading to the alien's placement in full immigration 
proceedings under section 240 of the INA, 8 U.S.C. 1229a--has also 
increased in recent years. In FY 2008, when asylum officers resolved a 
referred case with a credible-fear determination, they made a positive 
finding about 77% of the time. That percentage rose to 80% by FY 2014. 
In FY 2018, that percentage of positive credible-fear determinations 
has climbed to about 89% of all cases. After this initial screening 
process, however, significant proportions of aliens who receive a 
positive credible-fear determination never file an application for 
asylum or are ordered removed in absentia. In FY 2018, a total of about 
6,000 aliens who passed through credible-fear screening (17% of all 
completed cases, 27% of all completed cases in which an asylum 
application was filed, and about 36% of cases where the asylum claim 
was adjudicated on the merits) established that they should be granted 
asylum.
    Apprehending and processing this growing number of aliens who cross 
illegally into the United States and invoke asylum procedures thus 
consumes an ever increasing amount of resources of DHS, which must 
surveil, apprehend, and process the aliens who enter the country. 
Congress has also required DHS to detain all aliens during the pendency 
of their credible-fear proceedings, which can take days or weeks. And 
DOJ must also dedicate substantial resources: Its immigration judges 
adjudicate aliens' claims, and its officials are responsible for 
prosecuting and maintaining custody over those who violate the criminal 
law. The strains on the Departments are particularly acute with respect 
to the rising numbers of family units, who generally cannot be detained 
if they are found to have a credible fear, due to a combination of 
resource constraints and the manner in which the terms of the 
Settlement Agreement in Flores v. Reno have been interpreted by courts. 
See Stipulated Settlement Agreement, Flores v. Reno, No. 85-cv-4544 
(N.D. Cal. Jan. 17, 1997).
    In recent weeks, United States officials have each day encountered 
an average of approximately 2,000 inadmissible aliens at the southern 
border. At the same time, large caravans of thousands of aliens, 
primarily from Central America, are attempting to make their way to the 
United States, with the apparent intent of seeking asylum after 
entering the United States unlawfully or without proper documentation. 
Central American nationals represent a majority of aliens who enter the 
United States unlawfully, and are also disproportionately likely to 
choose to enter illegally between ports of entry rather than presenting 
themselves at a port of entry. As discussed below, aliens who enter 
unlawfully between ports of entry along the southern border, as opposed 
to at a port of entry, pose a greater strain on DHS's already stretched 
detention and processing resources and also engage in conduct that 
seriously endangers themselves, any children traveling with them, and 
the U.S. Customs and Border Protection (``CBP'') agents who seek to 
apprehend them.
    The United States has been engaged in sustained diplomatic 
negotiations with Mexico and the Northern Triangle countries (Honduras, 
El Salvador, and Guatemala) regarding the situation on the southern 
border, but those negotiations have, to date, proved

[[Page 55936]]

unable to meaningfully improve the situation.
    The purpose of this rule is to limit aliens' eligibility for asylum 
if they enter in contravention of a proclamation suspending or 
restricting their entry along the southern border. Such aliens would 
contravene a measure that the President has determined to be in the 
national interest. For instance, a proclamation restricting the entry 
of inadmissible aliens who enter unlawfully between ports of entry 
would reflect a determination that this particular category of aliens 
necessitates a response that would supplement existing prohibitions on 
entry for all inadmissible aliens. Such a proclamation would encourage 
such aliens to seek admission and indicate an intention to apply for 
asylum at ports of entry. Aliens who enter in violation of that 
proclamation would not be eligible for asylum. They would, however, 
remain eligible for statutory withholding of removal under section 
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or for protections under the 
regulations issued under the authority of the implementing legislation 
regarding Article 3 of the CAT.
    The Departments anticipate that a large number of aliens who would 
be subject to a proclamation-based ineligibility bar would be subject 
to expedited-removal proceedings. Accordingly, this rule ensures that 
asylum officers and immigration judges account for such aliens' 
ineligibility for asylum within the expedited-removal process, so that 
aliens subject to such a bar will be processed swiftly. Furthermore, 
the rule continues to afford protection from removal for individuals 
who establish that they are more likely than not to be persecuted or 
tortured in the country of removal. Aliens rendered ineligible for 
asylum by this interim rule and who are referred for an interview in 
the expedited-removal process are still eligible to seek withholding of 
removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or 
protections under the regulations issued under the authority of the 
implementing legislation regarding Article 3 of the CAT. Such aliens 
could pursue such claims in proceedings before an immigration judge 
under section 240 of the INA, 8 U.S.C. 1229a, if they establish a 
reasonable fear of persecution or torture.

III. Background

A. Joint Interim Rule

    The Attorney General and the Secretary of Homeland Security publish 
this joint interim rule pursuant to their respective authorities 
concerning asylum determinations.
    The Homeland Security Act of 2002, Public Law 107-296, as amended, 
transferred many functions related to the execution of federal 
immigration law to the newly created Department of Homeland Security. 
The Homeland Security Act of 2002 charges the Secretary ``with the 
administration and enforcement of this chapter and all other laws 
relating to the immigration and naturalization of aliens,'' 8 U.S.C. 
1103(a)(1), and grants the Secretary the power to take all actions 
``necessary for carrying out'' the provisions of the INA, id. 
1103(a)(3). The Homeland Security Act of 2002 also transferred to DHS 
some responsibility for affirmative asylum applications, i.e., 
applications for asylum made outside the removal context. See 6 U.S.C. 
271(b)(3). Those authorities have been delegated to U.S. Citizenship 
and Immigration Services (``USCIS''). USCIS asylum officers determine 
in the first instance whether an alien's affirmative asylum application 
should be granted. See 8 CFR 208.9.
    But the Homeland Security Act of 2002 retained authority over 
certain individual immigration adjudications (including those related 
to defensive asylum applications) in DOJ, under the Executive Office 
for Immigration Review (``EOIR'') and subject to the direction and 
regulation of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). 
Thus, immigration judges within DOJ continue to adjudicate all asylum 
applications made by aliens during the removal process (defensive 
asylum applications), and they also review affirmative asylum 
applications referred by USCIS to the immigration court. See INA 
101(b)(4), 8 U.S.C. 1101(b)(4); 8 CFR 1208.2; 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, in turn hears appeals from immigration 
judges' decisions. 8 CFR 1003.1. 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). This broad division of functions and authorities informs 
the background of this interim rule.

B. Legal Framework for Asylum

    Asylum is a form of discretionary relief under section 208 of the 
INA, 8 U.S.C. 1158, that precludes an alien from being subject to 
removal, creates a path to lawful permanent resident status and 
citizenship, and affords a variety of other benefits, such as allowing 
certain alien family members to obtain lawful immigration status 
derivatively. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 
2017); see also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C. 1158(c)(1)(A), 
(C) (asylees cannot be removed and can travel abroad with prior 
consent); INA 208(b)(3), 8 U.S.C. 1158(b)(3) (allowing derivative 
asylum for asylee's spouse and unmarried children); INA 209(b), 8 
U.S.C. 1159(b) (allowing the Attorney General or Secretary to adjust 
the status of an asylee to that of a lawful permanent resident); INA 
316(a), 8 U.S.C. 1427(a) (describing requirements for naturalization of 
lawful permanent residents). Aliens who are granted asylum are 
authorized to work in the United States and may receive certain 
financial assistance from the federal government. See INA 208(c)(1)(B), 
(d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8 U.S.C. 1612(a)(2)(A), 
(b)(2)(A); 8 U.S.C. 1613(b)(1); 8 CFR 274a.12(a)(5); see also 8 CFR 
274a.12(c)(8) (providing that asylum applicants may seek employment 
authorization 150 days after filing a complete application for asylum).
    Aliens applying for asylum must establish that they meet the 
definition of a ``refugee,'' that they are not subject to a bar to the 
granting of asylum, and that they merit a favorable exercise of 
discretion. INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 1158(b)(1), 
1229a(c)(4)(A); see Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) 
(describing asylum as a form of ``discretionary relief from removal''); 
Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (``Asylum is a 
discretionary form of relief . . . . Once an applicant has established 
eligibility . . . it remains within the Attorney General's discretion 
to deny asylum.''). Because asylum is a discretionary form of relief 
from removal, the alien bears the burden of showing both eligibility 
for asylum and why the Attorney General or Secretary should exercise 
discretion to grant relief. See INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 
1158(b)(1), 1229a(c)(4)(A); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st 
Cir. 2004).
    Section 208 of the INA provides that, in order to apply for asylum, 
an applicant must be ``physically present'' or ``arriv[e]'' in the 
United States, ``whether or not at a designated port of arrival'' and 
``irrespective of such alien's status''--but the applicant must also 
``apply for asylum in accordance with'' the rest of section 208 or with 
the expedited-removal process in section 235 of the INA. INA 208(a)(1), 
8 U.S.C. 1158(a)(1). Furthermore, to be granted asylum, the alien must 
demonstrate that he or she meets the statutory definition

[[Page 55937]]

of a ``refugee,'' INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), and is not 
subject to an exception or bar, INA 208(b)(2), 8 U.S.C. 1158(b)(2). The 
alien bears the burden of proof to establish that he or she meets these 
criteria. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); 8 CFR 
1240.8(d).
    For an alien to establish that he or she is a ``refugee,'' the 
alien generally must be someone who is outside of his or her country of 
nationality and ``is unable or unwilling to return to . . . that 
country because of persecution or a well-founded fear of persecution on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion.'' INA 101(a)(42)(A), 8 U.S.C. 
1101(a)(42)(A).
    In addition, if evidence indicates that one or more of the grounds 
for mandatory denial may apply, an alien must show that he or she does 
not fit within one of the statutory bars to granting asylum and is not 
subject to any ``additional limitations and conditions . . . under 
which an alien shall be ineligible for asylum'' established by a 
regulation that is ``consistent with'' section 208 of the INA. INA 
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see 8 CFR 1240.8(d). The INA 
currently bars a grant of asylum to any alien: (1) Who ``ordered, 
incited, assisted, or otherwise participated in the persecution of any 
person on account of'' a protected ground; (2) who, ``having been 
convicted by a final judgment of a particularly serious crime, 
constitutes a danger to the community of the United States''; (3) for 
whom there are serious reasons to believe the alien ``has committed a 
serious nonpolitical crime outside the United States'' prior to arrival 
in the United States; (4) for whom ``there are reasonable grounds for 
regarding the alien as a danger to the security of the United States''; 
(5) who is described in the terrorism-related inadmissibility grounds, 
with limited exceptions; or (6) who ``was firmly resettled in another 
country prior to arriving in the United States.'' INA 208(b)(2)(A)(i)-
(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi).
    An alien who falls within any of those bars is subject to mandatory 
denial of asylum. Where there is evidence that ``one or more of the 
grounds for mandatory denial of the application for relief may apply,'' 
the applicant in immigration court proceedings bears the burden of 
establishing that the bar at issue does not apply. 8 CFR 1240.8(d); see 
also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) 
(applying 8 CFR 1240.8(d) in the context of the aggravated felony bar 
to asylum); Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d Cir. 2007) 
(applying 8 CFR 1240.8(d) in the context of the persecutor bar); Chen 
v. U.S. Att'y Gen., 513 F.3d 1255, 1257 (11th Cir. 2008) (same).
    Because asylum is a discretionary benefit, aliens who are eligible 
for asylum are not automatically entitled to it. After demonstrating 
eligibility, aliens must further meet their burden of showing that the 
Attorney General or Secretary should exercise his or her discretion to 
grant asylum. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (the 
``Secretary of Homeland Security or the Attorney General may grant 
asylum to an alien'' who applies in accordance with the required 
procedures and meets the definition of a ``refugee''). The asylum 
statute's grant of discretion ``is a broad delegation of power, which 
restricts the Attorney General's discretion to grant asylum only by 
requiring the Attorney General to first determine that the asylum 
applicant is a `refugee.''' Komarenko v. INS, 35 F.3d 432, 436 (9th 
Cir. 1994), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 
1203 (9th Cir. 2009) (en banc) (per curiam). Immigration judges and 
asylum officers exercise that delegated discretion on a case-by-case 
basis. Under the Board's decision in Matter of Pula, 19 I&N Dec. 467 
(BIA 1987), and its progeny, ``an alien's manner of entry or attempted 
entry is a proper and relevant discretionary factor'' and 
``circumvention of orderly refugee procedures'' can be a ``serious 
adverse factor'' against exercising discretion to grant asylum, id. at 
473, but ``[t]he danger of persecution will outweigh all but the most 
egregious adverse factors,'' Matter of Kasinga, 21 I&N Dec. 357, 367 
(BIA 1996).

C. Establishing Bars to Asylum

    The availability of asylum has long been qualified both by 
statutory bars and by administrative discretion to create additional 
bars. Those bars have developed over time in a back-and-forth process 
between Congress and the Attorney General. The original asylum 
provisions, as set out in the Refugee Act of 1980, Public Law 96-212, 
simply directed the Attorney General to ``establish a procedure for an 
alien physically present in the United States or at a land border or 
port of entry, irrespective of such alien's status, to apply for 
asylum, and the alien may be granted asylum in the discretion of the 
Attorney General if the Attorney General determines that such alien is 
a refugee'' within the meaning of the title. See 8 U.S.C. 1158(a) 
(1982); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-29 (1987) 
(describing the 1980 provisions).
    In the 1980 implementing regulations, the Attorney General, in his 
discretion, established several mandatory bars to granting asylum that 
were modeled on the mandatory bars to eligibility for withholding of 
deportation under the existing section 243(h) of the INA. See Refugee 
and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980) (``The 
application will be denied if the alien does not come within the 
definition of refugee under the Act, is firmly resettled in a third 
country, or is within one of the undesirable groups described in 
section 243(h) of the Act, e.g., having been convicted of a serious 
crime, constitutes a danger to the United States.''). Those regulations 
required denial of an asylum application if it was determined that (1) 
the alien was ``not a refugee within the meaning of section 
101(a)(42)'' of the INA, 8 U.S.C. 1101(a)(42); (2) the alien had been 
``firmly resettled in a foreign country'' before arriving in the United 
States; (3) the alien ``ordered, incited, assisted, or otherwise 
participated in the persecution of any person on account of race, 
religion, nationality, membership in a particular group, or political 
opinion''; (4) the alien had ``been convicted by a final judgment of a 
particularly serious crime'' and therefore constituted ``a danger to 
the community of the United States''; (5) there were ``serious reasons 
for considering that the alien ha[d] committed a serious non-political 
crime outside the United States prior to the arrival of the alien in 
the United States''; or (6) there were ``reasonable grounds for 
regarding the alien as a danger to the security of the United States.'' 
See id. at 37394-95.
    In 1990, the Attorney General substantially amended the asylum 
regulations while retaining the mandatory bars for aliens who 
persecuted others on account of a protected ground, were convicted of a 
particularly serious crime in the United States, firmly resettled in 
another country, or presented reasonable grounds to be regarded as a 
danger to the security of the United States. See Asylum and Withholding 
of Deportation Procedures, 55 FR 30674, 30683 (July 27, 1990); see also 
Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996) (upholding firm-
resettlement bar); Komarenko, 35 F.3d at 436 (upholding particularly-
serious-crime bar). In the Immigration Act of 1990, Public Law 101-649, 
Congress added an additional mandatory bar to applying for or being 
granted asylum for ``[a]n[y] alien who has been convicted of an 
aggravated felony.'' Public Law 101-649, sec. 515.

[[Page 55938]]

    In IIRIRA and the Antiterrorism and Effective Death Penalty Act of 
1996, Public Law 104-132, Congress amended the asylum provisions in 
section 208 of the INA, 8 U.S.C. 1158. Among other amendments, Congress 
created three exceptions to section 208(a)(1)'s provision that an alien 
may apply for asylum, for (1) aliens who can be removed to a safe third 
country pursuant to bilateral or multilateral agreement; (2) aliens who 
failed to apply for asylum within one year of arriving in the United 
States; and (3) aliens who have previously applied for asylum and had 
the application denied. Public Law 104-208, div. C, sec. 604(a); see 
INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C).
    Congress also adopted six mandatory exceptions to the authority of 
the Attorney General or Secretary to grant asylum that largely reflect 
pre-existing bars set forth in the Attorney General's asylum 
regulations. These exceptions cover (1) aliens who ``ordered, incited, 
or otherwise participated'' in the persecution of others on account of 
a protected ground; (2) aliens convicted of a ``particularly serious 
crime''; (3) aliens who committed a ``serious nonpolitical crime 
outside the United States'' before arriving in the United States; (4) 
aliens who are a ``danger to the security of the United States''; (5) 
aliens who are inadmissible or removable under a set of specified 
grounds relating to terrorist activity; and (6) aliens who have 
``firmly resettled in another country prior to arriving in the United 
States.'' Public Law 104-208, div. C, sec. 604(a); see INA 
208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi). Congress further 
added that aggravated felonies, defined in 8 U.S.C. 1101(a)(43), would 
be considered ``particularly serious crime[s].'' Public Law 104-208, 
div. C, sec. 604(a); see INA 201(a)(43), 8 U.S.C. 1101(a)(43).
    Although Congress enacted specific exceptions, that statutory list 
is not exhaustive. Congress, in IIRIRA, expressly authorized the 
Attorney General to expand upon two of those exceptions--the bars for 
``particularly serious crimes'' and ``serious nonpolitical offenses.'' 
While Congress prescribed that all aggravated felonies constitute 
particularly serious crimes, Congress further provided that the 
Attorney General may ``designate by regulation offenses that will be 
considered'' a ``particularly serious crime'' that ``constitutes a 
danger to the community of the United States.'' INA 208(b)(2)(A)(ii), 
(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii). Courts and the Board have 
long held that this grant of authority also authorizes the Board to 
identify additional particularly serious crimes (beyond aggravated 
felonies) through case-by-case adjudication. See, e.g., Ali v. Achim, 
468 F.3d 462, 468-69 (7th Cir. 2006); Delgado v. Holder, 648 F.3d 1095, 
1106 (9th Cir. 2011) (en banc). Congress likewise authorized the 
Attorney General to designate by regulation offenses that constitute 
``a serious nonpolitical crime outside the United States prior to the 
arrival of the alien in the United States.'' INA 208(b)(2)(A)(iii), 
(B)(ii), 8 U.S.C. 1158(b)(2)(A)(iii), (B)(ii). Although these 
provisions continue to refer only to the Attorney General, the 
Departments interpret these provisions to also apply to the Secretary 
of Homeland Security by operation of the Homeland Security Act of 2002. 
See 6 U.S.C. 552; 8 U.S.C. 1103(a)(1).
    Congress further provided the Attorney General with the authority, 
by regulation, to ``establish additional limitations and conditions, 
consistent with [section 208 of the INA], under which an alien shall be 
ineligible for asylum under paragraph (1).'' INA 208(b)(2)(C), 8 U.S.C. 
1158(b)(2)(C). As the Tenth Circuit has recognized, ``the statute 
clearly empowers'' the Attorney General to ``adopt[] further 
limitations'' on asylum eligibility. R-S-C, 869 F.3d at 1187 & n.9. By 
allowing the imposition by regulation of ``additional limitations and 
conditions,'' the statute gives the Attorney General and the Secretary 
broad authority in determining what the ``limitations and conditions'' 
should be. The additional limitations on eligibility must be 
established ``by regulation,'' and must be ``consistent with'' the rest 
of section 208 of the INA. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
    Thus, the Attorney General in the past has invoked section 
208(b)(2)(C) of the INA to limit eligibility for asylum based on a 
``fundamental change in circumstances'' and on the ability of an 
applicant to safely relocate internally within the alien's country of 
nationality or of last habitual residence. See Asylum Procedures, 65 FR 
76121, 76126 (Dec. 6, 2000). The courts have also viewed section 
208(b)(2)(C) as conferring broad discretion, including to render aliens 
ineligible for asylum based on fraud. See R-S-C, 869 F.3d at 1187; 
Nijjar v. Holder, 689 F.3d 1077, 1082 (9th Cir. 2012) (noting that 
fraud can be ``one of the `additional limitations . . . under which an 
alien shall be ineligible for asylum' that the Attorney General is 
authorized to establish by regulation'').
    Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), also establishes 
certain procedures for consideration of asylum applications. But 
Congress specified that the Attorney General ``may provide by 
regulation for any other conditions or limitations on the consideration 
of an application for asylum,'' so long as those limitations are ``not 
inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C. 
1158(d)(5)(B).
    In sum, the current statutory framework leaves the Attorney General 
(and, after the Homeland Security Act, the Secretary) significant 
discretion to adopt additional bars to asylum eligibility. Beyond 
providing discretion to further define particularly serious crimes and 
serious nonpolitical offenses, Congress has provided the Attorney 
General and Secretary with discretion to establish by regulation any 
additional limitations or conditions on eligibility for asylum or on 
the consideration of applications for asylum, so long as these 
limitations are consistent with the asylum statute.

D. Other Forms of Protection

    Aliens who are not eligible to apply for or be granted asylum, or 
who are denied asylum on the basis of the Attorney General's or the 
Secretary's discretion, may nonetheless qualify for protection from 
removal under other provisions of the immigration laws. A defensive 
application for asylum that is submitted by an alien in removal 
proceedings is also deemed an application for statutory withholding of 
removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8 
CFR 208.30(e)(2)-(4), 1208.3(b), 1208.16(a). An immigration judge may 
also consider an alien's eligibility for withholding and deferral of 
removal under regulations issued pursuant to the authority of the 
implementing legislation regarding Article 3 of the CAT. See Foreign 
Affairs Reform and Restructuring Act of 1998, Public Law 105-277, div. 
G, sec. 2242(b); 8 CFR 1208.3(b); see also 8 CFR 1208.16-1208.17.
    These forms of protection bar an alien's removal to any 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 1208.16(b)(2), (c)(2); 
see Kouljinski v. Keisler, 505 F.3d 534, 544-45 (6th Cir. 2007); 
Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005). Thus, if an 
alien proves that it is more likely than not that the alien's life or 
freedom would be threatened on account of a protected ground, but is 
denied asylum for some other reason--for instance, because of a 
statutory exception, an eligibility bar adopted by regulation, or a 
discretionary denial of asylum--the alien may be entitled to

[[Page 55939]]

statutory withholding of removal if not otherwise barred for that form 
of protection. INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 
1208.16; see also Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017) 
(``[W]ithholding of removal has long been understood to be a mandatory 
protection that must be given to certain qualifying aliens, while 
asylum has never been so understood.''). Likewise, an alien who 
establishes that he or she will more likely than not face torture in 
the country of removal will qualify for CAT protection. See 8 CFR 
208.16(c), 1208.16(c). But, unlike asylum, statutory withholding and 
CAT protection do not: (1) Prohibit the Government from removing the 
alien to a third country where the alien would not face the requisite 
probability of persecution or torture; (2) create a path to lawful 
permanent resident status and citizenship; or (3) afford the same 
ancillary benefits (such as protection for derivative family members). 
See R-S-C, 869 F.3d at 1180.

E. Implementation of Treaty Obligations

    The framework described above is consistent with certain U.S. 
obligations under the 1967 Protocol Relating to the Status of Refugees 
(``Refugee Protocol''), which incorporates Articles 2 to 34 of the 1951 
Convention Relating to the Status of Refugees (``Refugee Convention''), 
as well as U.S. obligations under Article 3 of the CAT. Neither the 
Refugee Protocol nor the CAT is self-executing in the United States. 
See Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009) (`[T]he [Refugee] 
Protocol is not self-executing.''); Auguste v. Ridge, 395 F.3d 123, 132 
(3d Cir. 2005) (the CAT ``was not self-executing''). These treaties are 
not directly enforceable in U.S. law, but some of the obligations they 
contain have been implemented through domestic implementing 
legislation. For example, the United States has implemented the non-
refoulement provisions of these treaties--i.e., provisions prohibiting 
the return of an individual to a country where he or she would face 
persecution or torture--through the withholding of removal provisions 
at section 241(b)(3) of the INA and the CAT regulations, not through 
the asylum provisions at section 208 of the INA. See Cardoza-Fonseca, 
480 U.S. at 440-41; Foreign Affairs Reform and Restructuring Act of 
1998, Public Law 105-277, div. G, sec. 2242(b); 8 CFR 208.16(c), 
208.17-208.18; 1208.16(c), 1208.17-1208.18. Limitations on the 
availability of asylum that do not affect the statutory withholding of 
removal or protection under the CAT regulations are consistent with 
these provisions. See R-S-C, 869 F.3d at 1188 & n.11; Cazun v. Att'y 
Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 
813 F.3d 240, 241 (5th Cir. 2016).
    Limitations on eligibility for asylum are also consistent with 
Article 34 of the Refugee Convention, concerning assimilation of 
refugees, as implemented by section 208 of the INA, 8 U.S.C. 1158. 
Section 208 of the INA reflects that Article 34 is precatory and not 
mandatory, and accordingly does not provide that all refugees shall 
receive asylum. See Cardoza-Fonseca, 480 U.S. at 441; Garcia, 856 F.3d 
at 42; Cazun, 856 F.3d at 257 & n. 16; Mejia v. Sessions, 866 F.3d 573, 
588 (4th Cir. 2017); R-S-C, 869 F.3d at 1188; Ramirez-Mejia, 813 F.3d 
at 241. As noted above, Congress has long recognized the precatory 
nature of Article 34 by imposing various statutory exceptions and by 
authorizing the creation of new bars to asylum eligibility through 
regulation.
    Courts have likewise rejected arguments that other provisions of 
the Refugee Convention require every refugee to receive asylum. Courts 
have held, in the context of upholding the bar on eligibility for 
asylum in reinstatement proceedings under section 241(a)(5) of the INA, 
8 U.S.C. 1231(a)(5), that limiting the ability to apply for asylum does 
not constitute a prohibited ``penalty'' under Article 31(1) of the 
Refugee Convention. Cazun, 856 F.3d at 257 & n.16; Mejia, 866 F.3d at 
588. Courts have also rejected the argument that Article 28 of the 
Refugee Convention, governing the issuance of international travel 
documents for refugees ``lawfully staying'' in a country's territory, 
mandates that every person who might qualify for statutory withholding 
must also be granted asylum. Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 
1188.

IV. Regulatory Changes

A. Limitation on Eligibility for Asylum for Aliens Who Contravene a 
Presidential Proclamation Under Section 212(f) or 215(a)(1) of the INA 
Concerning the Southern Border

    Pursuant to section 208(b)(2)(C) of the INA, 8 U.S.C. 
1158(b)(2)(C), the Departments are revising 8 CFR 208.13(c) and 8 CFR 
1208.13(c) to add a new mandatory bar on eligibility for asylum for 
certain aliens who are subject to a presidential proclamation 
suspending or imposing limitations on their entry into the United 
States pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), or 
section 215(a)(1) of the INA, 8 U.S.C. 1185(a)(1), and who enter the 
United States in contravention of such a proclamation after the 
effective date of this rule. The bar would be subject to several 
further limitations: (1) The bar would apply only prospectively, to 
aliens who enter the United States after the effective date of such a 
proclamation; (2) the proclamation must concern entry at the southern 
border; and (3) the bar on asylum eligibility would not apply if the 
proclamation expressly disclaims affecting asylum eligibility for 
aliens within its scope, or expressly provides for a waiver or 
exception that entitles the alien to relief from the limitation on 
entry imposed by the proclamation.
    The President has both statutory and inherent constitutional 
authority to suspend the entry of aliens into the United States when it 
is in the national interest. See United States ex rel. Knauff v. 
Shaughnessy, 338 U.S. 537, 542 (1950) (``The exclusion of aliens is a 
fundamental act of sovereignty'' that derives from ``legislative 
power'' and also ``is inherent in the executive power to control the 
foreign affairs of the nation.''); see also Proposed Interdiction of 
Haitian Flag Vessels, 5 Op. O.L.C. 242, 244-45 (1981) (``[T]he 
sovereignty of the Nation, which is the basis of our ability to exclude 
all aliens, is lodged in both political branches of the government,'' 
and even without congressional action, the President may ``act[ ] to 
protect the United States from massive illegal immigration.'').
    Congress, in the INA, has expressly vested the President with broad 
authority to restrict the ability of aliens to enter the United States. 
Section 212(f) states: ``Whenever the President finds that the entry of 
any aliens or of any class of aliens into the United States would be 
detrimental to the interests of the United States, he may by 
proclamation, and for such period as he shall deem necessary, suspend 
the entry of all aliens or any class of aliens as immigrants or 
nonimmigrants, or impose on the entry of aliens any restrictions he may 
deem to be appropriate.'' 8 U.S.C. 1182(f). ``By its plain language, [8 
U.S.C.] Sec.  1182(f) grants the President broad discretion to suspend 
the entry of aliens into the United States,'' including the authority 
``to impose additional limitations on entry beyond the grounds for 
exclusion set forth in the INA.'' Trump v. Hawaii, 138 S. Ct. 2392, 
2408-12 (2018). For instance, the Supreme Court considered it 
``perfectly clear that 8 U.S.C. 1182(f) . . . grants the President 
ample power to establish a naval blockade that would simply deny 
illegal Haitian immigrants the ability to disembark on our shores,'' 
thereby preventing them from entering

[[Page 55940]]

the United States and applying for asylum. Sale v. Haitian Ctrs. 
Council, Inc., 509 U.S. 155, 187 (1993).
    The President's broad authority under section 212(f) is buttressed 
by section 215(a)(1), which states it shall be unlawful ``for any alien 
to depart from or enter or attempt to depart from or enter the United 
States except under such reasonable rules, regulations, and orders, and 
subject to such limitations and exceptions as the President may 
prescribe.'' 8 U.S.C. 1185(a)(1). The presidential orders that the 
Supreme Court upheld in Sale were promulgated pursuant to both sections 
212(f) and 215(a)(1)--see 509 U.S. at 172 & n.27; see also Exec. Order 
12807 (May 24, 1992) (``Interdiction of Illegal Aliens''); Exec. Order 
12324 (Sept. 29, 1981) (``Interdiction of Illegal Aliens'') (revoked 
and replaced by Exec. Order 12807)--as was the proclamation upheld in 
Trump v. Hawaii, see 138 S. Ct. at 2405. Other presidential orders have 
solely cited section 215(a)(1) as authority. See, e.g., Exec. Order 
12172 (Nov. 26, 1979) (``Delegation of Authority With Respect to Entry 
of Certain Aliens Into the United States'') (invoking section 215(a)(1) 
with respect to certain Iranian visa holders).
    An alien whose entry is suspended or limited by a proclamation is 
one whom the President has determined should not enter the United 
States, or only should do so under certain conditions. Such an order 
authorizes measures designed to prevent such aliens from arriving in 
the United States as a result of the President's determination that it 
would be against the national interest for them to do so. For example, 
the proclamation and order that the Supreme Court upheld in Sale, Proc. 
4865 (Sept. 29, 1981) (``High Seas Interdiction of Illegal Aliens''); 
Exec. Order 12324, directed the Coast Guard to interdict the boats of 
tens of thousands of migrants fleeing Haiti to prevent them from 
reaching U.S. shores, where they could make claims for asylum. The 
order further authorized the Coast Guard to intercept any vessel 
believed to be transporting undocumented aliens to the United States, 
``[t]o make inquiries of those on board, examine documents, and take 
such actions as are necessary to carry out this order,'' and ``[t]o 
return the vessel and its passengers to the country from which it came, 
or to another country, when there is reason to believe that an offense 
is being committed against the United States immigration laws.'' Exec. 
Order 12807, sec. 2(c).
    An alien whose entry is suspended or restricted under such a 
proclamation, but who nonetheless reaches U.S. soil contrary to the 
President's determination that the alien should not be in the United 
States, would remain subject to various procedures under immigration 
laws. For instance, an alien subject to a proclamation who nevertheless 
entered the country in contravention of its terms generally would be 
placed in expedited-removal proceedings under section 235 of the INA, 8 
U.S.C. 1225, and those proceedings would allow the alien to raise any 
claims for protection before being removed from the United States, if 
appropriate. Furthermore, the asylum statute provides that ``[a]ny 
alien who is physically present in the United States or who arrives in 
the United States (whether or not at a designated port of arrival),'' 
and ``irrespective of such alien's status, may apply for asylum in 
accordance with this section or, where applicable, [8 U.S.C.] 
1225(b).'' INA 208(a)(1), 8 U.S.C. 1158(a)(1). Some past proclamations 
have accordingly made clear that aliens subject to an entry bar may 
still apply for asylum if they have nonetheless entered the United 
States. See, e.g., Proc. 9645, sec. 6(e) (Sept. 24, 2017) (``Enhancing 
Vetting Capabilities and Processes for Detecting Attempted Entry Into 
the United States by Terrorists or Other Public-Safety Threats'') 
(``Nothing in this proclamation shall be construed to limit the ability 
of an individual to seek asylum, refugee status, withholding of 
removal, or protection under the Convention Against Torture, consistent 
with the laws of the United States.'').
    As noted above, however, the asylum statute also authorizes the 
Attorney General and Secretary ``by regulation'' to ``establish 
additional limitations and conditions, consistent with [section 208 of 
the INA], under which an alien shall be ineligible for asylum,'' INA 
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), and to set conditions or 
limitations on the consideration of an application for asylum, INA 
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). The Attorney General and the 
Secretary have determined that this authority should be exercised to 
render ineligible for a grant of asylum any alien who is subject to a 
proclamation suspending or restricting entry along the southern border 
with Mexico, but who nonetheless enters the United States after such a 
proclamation goes into effect. Such an alien would have engaged in 
actions that undermine a particularized determination in a proclamation 
that the President judged as being required by the national interest: 
That the alien should not enter the United States.
    The basis for ineligibility in these circumstances would be the 
Departments' conclusion that aliens who contravene such proclamations 
should not be eligible for asylum. Such proclamations generally reflect 
sensitive determinations regarding foreign relations and national 
security that Congress recognized should be entrusted to the President. 
See Trump v. Hawaii, 138 S. Ct. at 2411. Aliens who contravene such a 
measure have not merely violated the immigration laws, but have also 
undercut the efficacy of a measure adopted by the President based upon 
his determination of the national interest in matters that could have 
significant implications for the foreign affairs of the United States. 
For instance, previous proclamations were directed solely at Haitian 
migrants, nearly all of whom were already inadmissible by virtue of 
other provisions of the INA, but the proclamation suspended entry and 
authorized further measures to ensure that such migrants did not enter 
the United States contrary to the President's determination. See, e.g., 
Proc. 4865; Exec. Order 12807.
    In the case of the southern border, a proclamation that suspended 
the entry of aliens who crossed between the ports of entry would 
address a pressing national problem concerning the immigration system 
and our foreign relations with neighboring countries. Even if most of 
those aliens would already be inadmissible under our laws, the 
proclamation would impose limitations on entry for the period of the 
suspension against a particular class of aliens defined by the 
President. That judgment would reflect a determination that certain 
illegal entrants--namely, those crossing between the ports of entry on 
the southern border during the duration of the proclamation--were a 
source of particular concern to the national interest. Furthermore, 
such a proclamation could authorize additional measures to prevent the 
entry of such inadmissible aliens, again reflecting the national 
concern with this subset of inadmissible aliens. The interim final rule 
reflects the Departments' judgment that, under the extraordinary 
circumstances presented here, aliens crossing the southern border in 
contravention of such a proclamation should not be eligible for a grant 
of asylum during the period of suspension or limitation on entry. The 
result would be to channel to ports of entry aliens who seek to enter 
the United States and assert an intention to apply for asylum or a fear 
of persecution, and to provide for consideration of those statements 
there.
    Significantly, this bar to eligibility for a grant of asylum would 
be limited in scope. This bar would apply only prospectively. This bar 
would further

[[Page 55941]]

apply only to a proclamation concerning entry along the southern 
border, because this interim rule reflects the need to facilitate 
urgent action to address current conditions at that border. This bar 
would not apply to any proclamation that expressly disclaimed an effect 
on eligibility for asylum. And this bar would not affect an applicant 
who is granted a waiver or is excepted from the suspension under the 
relevant proclamation, or an alien who did not at any time enter the 
United States after the effective date of such proclamation.
    Aliens who enter in contravention of a proclamation will not, 
however, overcome the eligibility bar merely because a proclamation has 
subsequently ceased to have effect. The alien still would have entered 
notwithstanding a proclamation at the time the alien entered the United 
States, which would result in ineligibility for asylum (but not for 
statutory withholding or for CAT protection). Retaining eligibility for 
asylum for aliens who entered the United States in contravention of the 
proclamation, but evaded detection until it had ceased, could encourage 
aliens to take riskier measures to evade detection between ports of 
entry, and would continue to stretch government resources dedicated to 
apprehension efforts.
    This restriction on eligibility to asylum is consistent with 
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). The regulation 
establishes a condition on asylum eligibility, not on the ability to 
apply for asylum. Compare INA 208(a), 8 U.S.C. 1158(a) (describing 
conditions for applying for asylum), with INA 208(b), 8 U.S.C. 1158(b) 
(identifying exceptions and bars to granting asylum). And, as applied 
to a proclamation that suspends the entry of aliens who crossed between 
the ports of entry at the southern border, the restriction would not 
preclude an alien physically present in the United States from being 
granted asylum if the alien arrives in the United States through any 
border other than the southern land border with Mexico or at any time 
other than during the pendency of a proclamation suspending or limiting 
entry.

B. Screening Procedures in Expedited Removal for Aliens Subject to 
Proclamations

    The rule would also modify certain aspects of the process for 
screening claims for protection asserted by aliens who have entered in 
contravention of a proclamation and who are subject to expedited 
removal under INA 235(b)(1), 8 U.S.C. 1225(b)(1). Under current 
procedures, aliens who unlawfully enter the United States may avoid 
being removed on an expedited basis by making a threshold showing of a 
credible fear of persecution at a initial screening interview. At 
present, those aliens are often released into the interior of the 
United States pending adjudication of such claims by an immigration 
court in section 240 proceedings especially if those aliens travel as 
family units. Once an alien is released, adjudications can take months 
or years to complete because of the increasing volume of claims and the 
need to expedite cases in which aliens have been detained. The 
Departments expect that a substantial proportion of aliens subject to 
an entry proclamation concerning the southern border would be subject 
to expedited removal, since approximately 234,534 aliens in FY 2018 who 
presented at a port of entry or were apprehended at the border were 
referred to expedited-removal proceedings.\1\ The procedural changes 
within expedited removal would be confined to aliens who are ineligible 
for asylum because they are subject to a regulatory bar for 
contravening an entry proclamation.
---------------------------------------------------------------------------

    \1\ As noted below, in FY 2018, approximately 171,511 aliens 
entered illegally between ports of entry, were apprehended by CBP, 
and were placed in expedited removal. Approximately 59,921 
inadmissible aliens arrived at ports of entry and were placed in 
expedited removal. Furthermore, ICE arrested some 3,102 aliens and 
placed them in expedited removal.
---------------------------------------------------------------------------

    1. Under existing law, expedited-removal procedures--streamlined 
procedures for expeditiously reviewing claims and removing certain 
aliens--apply to those individuals who arrive at a port of entry or 
those who have entered illegally and are encountered by an immigration 
officer within 100 miles of the border and within 14 days of entering. 
See INA 235(b), 8 U.S.C. 1225(b); Designating Aliens For Expedited 
Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be subject to expedited 
removal, an alien must also be inadmissible under INA 212(a)(6)(C) or 
(a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), meaning that the alien has 
either tried to procure documentation through misrepresentation or 
lacks such documentation altogether. Thus, an alien encountered in the 
interior of the United States who entered in contravention of a 
proclamation and who is not otherwise amenable to expedited removal 
would be placed in proceedings under section 240 of the INA. The 
interim rule does not invite comment on existing regulations 
implementing the present scope of expedited removal.
    Section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), prescribes 
procedures in the expedited-removal context for screening an alien's 
eligibility for asylum. When these provisions were being debated in 
1996, legislators expressed particular concern that ``[e]xisting 
procedures to deny entry to and to remove illegal aliens from the 
United States are cumbersome and duplicative,'' and that ``[t]he asylum 
system has been abused by those who seek to use it as a means of 
`backdoor' immigration.'' See H.R. Rep. No. 104-469, pt. 1, at 107 
(1996). Members of Congress accordingly described the purpose of 
expedited removal and related procedures as ``streamlin[ing] rules and 
procedures in the Immigration and Nationality Act to make it easier to 
deny admission to inadmissible aliens and easier to remove deportable 
aliens from the United States.'' Id. at 157; see Am. Immigration 
Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C. 1998), aff'd, 199 
F.3d 1352 (DC Cir. 2000) (rejecting several constitutional challenges 
to IIRIRA and describing the expedited-removal process as a ``summary 
removal process for adjudicating the claims of aliens who arrive in the 
United States without proper documentation'').
    Congress thus provided that aliens ``inadmissible under [8 U.S.C.] 
1182(a)(6)(C) or 1182(a)(7)'' shall be ``removed from the United States 
without further hearing or review unless the alien indicates either an 
intention to apply for asylum under [8 U.S.C. 1158] or a fear of 
persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); see INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii) (such aliens shall be 
referred ``for an interview by an asylum officer''). On its face, the 
statute refers only to proceedings to establish eligibility for an 
affirmative grant of asylum and its attendant benefits, not to 
statutory withholding of removal or CAT protection against removal to a 
particular country.
    An alien referred for a credible-fear interview must demonstrate a 
``credible fear,'' defined as 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 under [8 U.S.C. 
1158].'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). According to 
the House report, ``[t]he credible-fear standard [wa]s designed to weed 
out non-meritorious cases so that only applicants with a likelihood of 
success will proceed to the regular asylum process.'' H.R. Rep. No. 
104-69, at 158.

[[Page 55942]]

    If the asylum officer determines that the alien lacks a credible 
fear, then the alien may request review by an immigration judge. INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). If the 
immigration judge concurs with the asylum officer's negative credible-
fear determination, then the alien shall be removed from the United 
States without further review by either the Board or the courts. INA 
235(b)(1)(B)(iii)(I), (b)(1)(C), 8 U.S.C. 1225(b)(1)(B)(iii)(I), 
(b)(1)(C); INA 242(a)(2)(A)(iii), (e)(5), 8 U.S.C. 1252(a)(2)(A)(iii), 
(e)(5); Pena v. Lynch, 815 F.3d 452, 457 (9th Cir. 2016). By contrast, 
if the asylum officer or immigration judge determines that the alien 
has a credible fear--i.e., ``a significant possibility . . . that the 
alien could establish eligibility for asylum,'' INA 235(b)(1)(B)(v), 8 
U.S.C. 1225(b)(1)(B)(v)--then the alien, under current regulations, is 
placed in section 240 proceedings for a full hearing before an 
immigration judge, with appeal available to the Board and review in the 
federal courts of appeals, see INA 235(b)(1)(B)(ii), (b)(2)(A), 8 
U.S.C. 1225(b)(1)(B)(ii), (b)(2)(A); INA 242(a), 8 U.S.C. 1252(a); 8 
CFR 208.30(e)(5), 1003.1. The interim rule does not invite comment on 
existing regulations implementing this framework.
    By contrast, section 235 of the INA is silent regarding procedures 
for the granting of statutory withholding of removal and CAT 
protection; indeed, section 235 predates the legislation directing 
implementation of U.S. obligations under Article 3 of the CAT. See 
Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-
277, sec. 2242(b) (requiring implementation of CAT); IIRIRA, Public Law 
104-208, sec. 302 (revising section 235 of the INA to include 
procedures for dealing with inadmissible aliens who intend to apply for 
asylum). The legal standards for ultimately granting asylum on the 
merits versus statutory withholding or CAT protection are also 
different. Asylum requires an applicant to ultimately establish a 
``well-founded fear'' of persecution, which has been interpreted to 
mean a ``reasonable possibility'' of persecution--a ``more generous'' 
standard than the ``clear probability'' of persecution or torture 
standard that applies to statutory withholding or CAT protection. See 
INS v. Stevic, 467 U.S. 407, 425, 429-30 (1984); Santosa v. Mukasey, 
528 F.3d 88, 92 & n.1 (1st Cir. 2008); compare 8 CFR 
1208.13(b)(2)(i)(B) with 8 CFR 1208.16(b)(2), (c)(2). As a result, 
applicants who establish eligibility for asylum are not necessarily 
eligible for statutory withholding or CAT protection.
    Current regulations instruct USCIS adjudicators and immigration 
judges to treat an alien's request for asylum in expedited-removal 
proceedings under section 1225(b) as a request for statutory 
withholding and CAT protection as well. See 8 CFR 208.3(b), 
208.30(e)(2)-(4), 1208.3(b), 1208.16(a). In the context of expedited-
removal proceedings, ``credible fear of persecution'' is defined to 
mean a ``significant possibility'' that the alien ``could establish 
eligibility for asylum under section 1158,'' not CAT or statutory 
withholding. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). 
Regulations nevertheless have generally provided that aliens in 
expedited removal should be subject to the same process for considering 
statutory withholding of removal claims under INA 241(b)(3), 8 U.S.C. 
1231(b)(3), and claims for protection under the CAT, as they are for 
asylum claims. See 8 CFR 208.30(e)(2)-(4).
    Thus, when the Immigration and Naturalization Service provided for 
claims for statutory withholding of removal and CAT protection to be 
considered in the same expedited-removal proceedings as asylum, the 
result was that if an alien showed that there was a significant 
possibility of establishing eligibility for asylum and was therefore 
referred for removal proceedings under section 240 of the INA, any 
potential statutory withholding and CAT claims the alien might have 
were referred as well. This was done on the assumption that that it 
would not ``disrupt[ ] the streamlined process established by Congress 
to circumvent meritless claims.'' Regulations Concerning the Convention 
Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). But while the INA 
authorizes the Attorney General and Secretary to provide for 
consideration of statutory withholding and CAT claims together with 
asylum claims or other matters that may be considered in removal 
proceedings, the INA does not require that approach, see Foti v. INS, 
375 U.S. 217, 229-30 & n.16 (1963), or that they be considered in the 
same way.
    Since 1999, regulations also have provided for a distinct 
``reasonable fear'' screening process for certain aliens who are 
categorically ineligible for asylum and can thus make claims only for 
statutory withholding or CAT protections. See 8 CFR 208.31. 
Specifically, if an alien is subject to having a previous order of 
removal reinstated or is a non-permanent resident alien subject to an 
administrative order of removal resulting from an aggravated felony 
conviction, then he is categorically ineligible for asylum. See id. 
Sec.  208.31(a), (e). Such an alien can be placed in withholding-only 
proceedings to adjudicate his statutory withholding or CAT claims, but 
only if he first establishes a ``reasonable fear'' of persecution or 
torture through a screening process that tracks the credible-fear 
process. See id. Sec.  208.31(c), (e). Reasonable fear is defined by 
regulation to mean a ``reasonable possibility that [the alien] would be 
persecuted on account of his or her race, religion, nationality, 
membership in a particular social group or political opinion, or a 
reasonable possibility that he or she would be tortured in the country 
of removal.'' Id. Sec.  208.31(c). ``This . . . screening process is 
modeled on the credible-fear screening process, but requires the alien 
to meet a higher screening standard.'' Regulations Concerning the 
Convention Against Torture, 64 FR at 8485; see also Garcia v. Johnson, 
No. 14-CV-01775, 2014 WL 6657591, at *2 (N.D. Cal. Nov. 21, 2014) 
(describing the aim of the regulations as providing ``fair and 
efficient procedures'' in reasonable-fear screening that would comport 
with U.S. international obligations).
    Significantly, when establishing the reasonable-fear screening 
process, DOJ explained that the two affected categories of aliens 
should be screened based on the higher reasonable-fear standard 
because, ``[u]nlike the broad class of arriving aliens who are subject 
to expedited removal, these two classes of aliens are ineligible for 
asylum,'' and may be entitled only to statutory withholding of removal 
or CAT protection. Regulations Concerning the Convention Against 
Torture, 64 FR at 8485. ``Because the standard for showing entitlement 
to these forms of protection (a probability of persecution or torture) 
is significantly higher than the standard for asylum (a well-founded 
fear of persecution), the screening standard adopted for initial 
consideration of withholding and deferral requests in these contexts is 
also higher.'' Id.
    2. Drawing on the established framework for considering whether to 
grant withholding of removal or CAT protection in the reasonable-fear 
context, this interim rule establishes a bifurcated screening process 
for aliens subject to expedited removal who are ineligible for asylum 
by virtue of entering in contravention of a proclamation, but who 
express a fear of return or seek statutory withholding or CAT 
protection. The Attorney General and Secretary have broad authority to

[[Page 55943]]

implement the immigration laws, see INA 103, 8 U.S.C. 1103, including 
by establishing regulations, see INA 103, 8 U.S.C. 1103(a)(3), and to 
regulate ``conditions or limitations on the consideration of an 
application for asylum,'' id. 1158(d)(5)(B). Furthermore, the Secretary 
has the authority--in her ``sole and unreviewable discretion,'' the 
exercise of which may be ``modified at any time''--to designate 
additional categories of aliens that will be subject to expedited-
removal procedures, so long as the designated aliens have not been 
admitted or paroled nor continuously present in the United States for 
two years. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). The 
Departments have frequently invoked these authorities to establish or 
modify procedures affecting aliens in expedited-removal proceedings, as 
well as to adjust the categories of aliens subject to particular 
procedures within the expedited-removal framework.\2\
---------------------------------------------------------------------------

    \2\ See, e.g., Eliminating Exception to Expedited Removal 
Authority for Cuban Nationals Arriving by Air, 82 FR 4769 (Jan. 17, 
2017); Designating Aliens For Expedited Removal, 69 FR 48877; 
Implementation of the Agreement Between the Government of the United 
States of America and the Government of Canada Regarding Asylum 
Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR 
10620 (March 8, 2004); New Rules Regarding Procedures for Asylum and 
Withholding of Removal, 63 FR 31945 (June 11, 1998); Asylum 
Procedures, 65 FR 76121; Regulations Concerning the Convention 
Against Torture, 64 FR 8478 (Feb. 19, 1999).
---------------------------------------------------------------------------

    This rule does not change the credible-fear standard for asylum 
claims, although the regulation would expand the scope of the inquiry 
in the process. An alien who is subject to a relevant proclamation and 
nonetheless has entered the United States after the effective date of 
such a proclamation in contravention of that proclamation would be 
ineligible for asylum and would thus not be able to establish a 
``significant possibility . . . [of] eligibility for asylum under 
section 1158.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). As 
current USCIS guidance explains, under the credible-fear standard, 
``[a] claim that has no possibility, or only a minimal or mere 
possibility, of success, would not meet the `significant possibility' 
standard.'' USCIS, Office of Refugee, Asylum, & Int'l Operations, 
Asylum Div., Asylum Officer Basic Training Course, Lesson Plan on 
Credible Fear at 15 (Feb. 13, 2017). Consistent with section 
235(b)(1)(B)(iii)(III) of the INA, the alien could still obtain review 
from an immigration judge regarding whether the asylum officer 
correctly determined that the alien was subject to a limitation or 
suspension on entry imposed by a proclamation. Further, consistent with 
section 235(b)(1)(B) of the INA, if the immigration judge reversed the 
asylum officer's determination, the alien could assert the asylum claim 
in section 240 proceedings.
    Aliens determined to be ineligible for asylum by virtue of 
contravening a proclamation, however, would still be screened, but in a 
manner that reflects that their only viable claims would be for 
statutory withholding or CAT protection pursuant to 8 CFR 208.30(e)(2)-
(4) and 1208.16(a). After determining the alien's ineligibility for 
asylum under the credible-fear standard, the asylum officer would apply 
the long-established reasonable-fear standard to assess whether further 
proceedings on a possible statutory withholding or CAT protection claim 
are warranted. If the asylum officer determined that the alien had not 
established the requisite reasonable fear, the alien then could seek 
review of that decision from an immigration judge (just as the alien 
may under existing 8 CFR 208.30 and 208.31), and would be subject to 
removal only if the immigration judge agreed with the negative 
reasonable-fear finding. Conversely, if either the asylum officer or 
the immigration judge determined that the alien cleared the reasonable-
fear threshold, the alien would be put in section 240 proceedings, just 
like aliens who receive a positive credible-fear determination for 
asylum. Employing a reasonable-fear standard in this context, for this 
category of ineligible aliens, would be consistent with the Department 
of Justice's longstanding rationale that ``aliens ineligible for 
asylum,'' who could only be granted statutory withholding of removal or 
CAT protection, should be subject to a different screening standard 
that would correspond to the higher bar for actually obtaining these 
forms of protection. See Regulations Concerning the Convention Against 
Torture, 64 FR at 8485 (``Because the standard for showing entitlement 
to these forms of protection . . . is significantly higher than the 
standard for asylum . . . the screening standard adopted for initial 
consideration of withholding and deferral requests in these contexts is 
also higher.'').
    The screening process established by the interim rule will 
accordingly proceed as follows. For an alien subject to expedited 
removal, DHS will ascertain whether the alien seeks protection, 
consistent with INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). All 
aliens seeking asylum, statutory withholding of removal, or CAT 
protection will continue to go before an asylum officer for screening, 
consistent with INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The asylum 
officer will ask threshold questions to elicit whether an alien is 
ineligible for a grant of asylum pursuant to a proclamation entry bar. 
If there is a significant possibility that the alien is not subject to 
the eligibility bar (and the alien otherwise demonstrates sufficient 
facts pertaining to asylum eligibility), then the alien will have 
established a credible fear.
    If, however, an alien lacks a significant possibility of 
eligibility for asylum because of the proclamation bar, then the asylum 
officer will make a negative credible-fear finding. The asylum officer 
will then apply the reasonable-fear standard to assess the alien's 
claims for statutory withholding of removal or CAT protection.
    An alien subject to the proclamation-based asylum bar who clears 
the reasonable-fear screening standard will be placed in section 240 
proceedings, just as an alien who clears the credible-fear standard 
will be. In those proceedings, the alien will also have an opportunity 
to raise whether the alien was correctly identified as subject to the 
proclamation ineligibility bar to asylum, as well as other claims. If 
an immigration judge determines that the alien was incorrectly 
identified as subject to the proclamation, the alien will be able to 
apply for asylum. Such aliens can appeal the immigration judge's 
decision in these proceedings to the BIA and then seek review from a 
federal court of appeals.
    Conversely, an alien who is found to be subject to the proclamation 
asylum bar and who does not clear the reasonable-fear screening 
standard can obtain review of both of those determinations before an 
immigration judge, just as immigration judges currently review negative 
credible-fear and reasonable-fear determinations. If the immigration 
judge finds that either determination was incorrect, then the alien 
will be placed into section 240 proceedings. In reviewing the 
determinations, the immigration judge will decide de novo whether the 
alien is subject to the proclamation asylum bar. If, however, the 
immigration judge affirms both determinations, then the alien will be 
subject to removal without further appeal, consistent with the existing 
process under section 235 of the INA. In short, aliens subject to the 
proclamation eligibility bar to asylum will be processed through 
existing procedures by DHS and EOIR in accordance with 8 CFR 208.30 and 
1208.30, but will be subject to the

[[Page 55944]]

reasonable-fear standard as part of those procedures with respect to 
their statutory withholding and CAT protection claims.\3\
---------------------------------------------------------------------------

    \3\ Nothing about this screening process or in this interim rule 
would alter the existing procedures for processing alien stowaways 
under the INA and associated regulations. An alien stowaway is 
unlikely to be subject to 8 CFR 208.13(c)(3) and 1208.13(c)(3) 
unless a proclamation specifically applies to stowaways or to entry 
by vessels or aircraft. INA 101(a)(49), 8 U.S.C. 1101(a)(49). 
Moreover, an alien stowaway is barred from being placed into section 
240 proceedings regardless of the level of fear of persecution he 
establishes. INA 235(a)(2), 8 U.S.C. 1225(a)(2). Similarly, despite 
the incorporation of a reasonable-fear standard into the evaluation 
of certain cases under credible-fear procedures, nothing about this 
screening process or in this interim rule implicates existing 
reasonable-fear procedures in 8 CFR 208.31 and 1208.31.
---------------------------------------------------------------------------

    2. The above process will not affect the process in 8 CFR 
208.30(e)(5) for certain existing statutory bars to asylum eligibility. 
Under that regulatory provision, many aliens who appear to fall within 
an existing statutory bar, and thus appear to be ineligible for asylum, 
can nonetheless be placed in section 240 proceedings if they are 
otherwise eligible for asylum and obtain immigration judge review of 
their asylum claims, followed by further review before the BIA and the 
courts of appeals. Specifically, with the exceptions of stowaways and 
aliens entering from Canada at a port of entry (who are generally 
ineligible to apply for asylum by virtue of a safe-third-country 
agreement), 8 CFR 208.30(e)(5) provides that ``if an alien is able to 
establish a credible fear of persecution or torture but appears to be 
subject to one or more of the mandatory bars to applying for, or being 
granted, asylum contained in section 208(a)(2) and 208(b)(2) of the 
[INA] . . . [DHS] shall nonetheless place the alien in proceedings 
under section 240 of the [INA] for full consideration of the alien's 
claim.''
    The language providing that the agency ``shall nonetheless place 
the alien in proceedings under section 240 of the [INA]'' was 
promulgated in 2000 in a final rule implementing asylum procedures 
after the 1996 enactment of IIRIRA. See Asylum Procedures, 65 FR at 
76137. The explanation for this change was that some commenters 
suggested that aliens should be referred to section 240 proceedings 
``regardless of any apparent statutory ineligibility under section 
208(a)(2) or 208(b)(2)(A) of the [INA]. The Department has adopted that 
suggestion and has so amended the regulation.'' Id. at 76129.
    This rule will avoid a textual ambiguity in 8 CFR 208.30(e)(5), 
which is unclear regarding its scope, by adding a new sentence 
clarifying the process applicable to an alien barred under a covered 
proclamation. See 8 CFR 208.30(e)(5) (referring to an alien who 
``appears to be subject to one or more of the mandatory bars to . . . 
asylum contained in section 208(a)(2) and 208(b)(2) of the [INA]''). By 
using a definite article (``the mandatory bars to . . . asylum'') and 
the phrase ``contained in,'' 8 CFR 208.30(e)(5) may refer only to 
aliens who are subject to the defined mandatory bars ``contained in'' 
specific parts of section 208 of the INA, such as the bar for 
aggravated felons, INA 208(b)(2)(B)(i), 8 U.S.C. 1558(b)(2)(B)(i), or 
the bar for aliens reasonably believed to be a danger to U.S. security, 
INA 208(b)(2)(A)(iv), 8 U.S.C. 1158(b)(2)(A)(iv). It is thus not clear 
whether an alien subject to a further limitation or condition on asylum 
eligibility adopted pursuant to section 208(b)(2)(C) of the INA would 
also be subject to the procedures set forth in 8 CFR 208.30(e)(5). 
Notably, the preamble to the final rule adopting 8 CFR 208.30(e)(5) 
indicated that it was intended to apply to ``any apparent statutory 
ineligibility under section 208(a)(2) or 208(b)(2)(A) of the [INA],'' 
and did not address future regulatory ineligibility under section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Asylum Procedures, 65 
FR at 76129. This rule does not resolve that question, however, but 
instead establishes an express regulatory provision dealing 
specifically with aliens subject to a limitation under section 212(f) 
or 215(a)(1) of the INA.

C. Anticipated Effects of the Rule

    1. The interim rule aims to address an urgent situation at the 
southern border. In recent years, there has been a significant increase 
in the number and percentage of aliens who seek admission or unlawfully 
enter the United States and then assert an intent to apply for asylum 
or a fear of persecution. The vast majority of such assertions for 
protection occur in the expedited-removal context, and the rates at 
which such aliens receive a positive credible-fear determination have 
increased in the last five years. Having passed through the credible-
fear screening process, many of these aliens are released into the 
interior to await further section 240 removal proceedings. But many 
aliens who pass through the credible-fear screening thereafter do not 
pursue their claims for asylum. Moreover, a substantial number fail to 
appear for a section 240 proceeding. And even aliens who passed through 
credible-fear screening and apply for asylum are granted it at a low 
rate.
    Recent numbers illustrate the scope and scale of the problems 
caused by the disconnect between the number of aliens asserting a 
credible fear and the number of aliens who ultimately are deemed 
eligible for, and granted, asylum. In FY 2018, DHS identified some 
612,183 inadmissible aliens who entered the United States, of whom 
404,142 entered unlawfully between ports of entry and were apprehended 
by CBP, and 208,041 presented themselves at ports of entry. Those 
numbers exclude the inadmissible aliens who crossed but evaded 
detection, and interior enforcement operations conducted by U.S. 
Immigration and Customs Enforcement (``ICE''). The vast majority of 
those inadmissible aliens--521,090--crossed the southern border. 
Approximately 98% (396,579) of all aliens apprehended after illegally 
crossing between ports of entry made their crossings at the southern 
border, and 76% of all encounters at the southern border reflect such 
apprehensions. By contrast, 124,511 inadmissible aliens presented 
themselves at ports of entry along the southern border, representing 
60% of all port traffic for inadmissible aliens and 24% of encounters 
with inadmissible aliens at the southern border.
    Nationwide, DHS has preliminarily calculated that throughout FY 
2018, approximately 234,534 aliens who presented at a port of entry or 
were apprehended at the border were referred to expedited-removal 
proceedings. Of that total, approximately 171,511 aliens were 
apprehended crossing between ports of entry; approximately 59,921 were 
inadmissible aliens who presented at ports of entry; and approximately 
3,102 were arrested by ICE and referred to expedited removal.\4\ The 
total number of aliens of all nationalities referred to expedited-
removal proceedings has significantly increased over the last decade, 
from 161,516 aliens in 2008 to approximately 234,534 in FY 2018 (an 
overall increase of about 45%). Of those totals, the number of aliens 
from the Northern Triangle referred to expedited-removal proceedings 
has increased from 29,206 in FY 2008 (18% of the total

[[Page 55945]]

161,516 aliens referred) to approximately 103,752 in FY 2018 (44% of 
the total approximately 234,534 aliens referred, an increase of over 
300%). In FY 2018, nationals of the Northern Triangle represented 
approximately 103,752 (44%) of the aliens referred to expedited-removal 
proceedings; approximately 91,235 (39%) were Mexican; and nationals 
from other countries made up the remaining balance (17%). As of the 
date of this rule, final expedited-removal statistics for FY 2018 
specific to the southern border are not available. But the Departments' 
experience with immigration enforcement has demonstrated that the vast 
majority of expedited-removal actions have also occurred along the 
southern border.
---------------------------------------------------------------------------

    \4\ All references to the number of aliens subject to expedited 
removal in FY 2018 reflect data for the first three quarters of the 
year and projections for the fourth quarter of FY 2018. It is 
unclear whether the ICE arrests reflect additional numbers of aliens 
processed at ports of entry. Another approximately 130,211 aliens 
were subject to reinstatement, meaning that the alien had previously 
been removed and then unlawfully entered the United States again. 
The vast majority of reinstatements involved Mexican nationals. 
Aliens subject to reinstatement who express a fear of persecution or 
torture receive reasonable-fear determinations under 8 CFR 208.31.
---------------------------------------------------------------------------

    Once in expedited removal, some 97,192 (approximately 41% of all 
aliens in expedited removal) were referred for a credible-fear 
interview with an asylum officer, either because they expressed a fear 
of persecution or torture or an intent to apply for protection. Of that 
number, 6,867 (7%) were Mexican nationals, 25,673 (26%) were Honduran, 
13,433 (14%) were Salvadoran, 24,456 (25%) were Guatemalan, and other 
nationalities made up the remaining 28% (the largest proportion of 
which were 7,761 Indian nationals).
    In other words: Approximately 61% of aliens from Northern Triangle 
countries placed in expedited removal expressed the intent to apply for 
asylum or a fear of persecution and triggered credible-fear proceedings 
in FY 2018 (approximately 69% of Hondurans, 79% of Salvadorans, and 49% 
of Guatemalans). These aliens represented 65% of all credible-fear 
referrals in FY 2018. By contrast, only 8% of aliens from Mexico 
trigger credible-fear proceedings when they are placed in expedited 
removal, and Mexicans represented 7% of all credible-fear referrals. 
Other nationalities compose the remaining 26,763 (28%) referred for 
credible-fear interviews.
    Once these 97,192 aliens were interviewed by an asylum officer, 
83,862 cases were decided on the merits (asylum officers closed the 
others).\5\ Those asylum officers found a credible fear in 89% (74,574) 
of decided cases--meaning that almost all of those aliens' cases were 
referred on for further immigration proceedings under section 240, and 
many of the aliens were released into the interior while awaiting those 
proceedings.\6\ As noted, nationals of Northern Triangle countries 
represent the bulk of credible-fear referrals (65%, or 63,562 cases 
where the alien expressed an intent to apply for asylum or asserted a 
fear). In cases where asylum officers decided whether nationals of 
these countries had a credible fear, they received a positive credible-
fear finding 88% of the time.\7\ Moreover, when aliens from those 
countries sought review of negative findings by an immigration judge, 
they obtained reversals approximately 18% of the time, resulting in 
some 47,507 cases in which nationals of Northern Triangle countries 
received positive credible-fear determinations.\8\ In other words: 
Aliens from Northern Triangle countries ultimately received a positive 
credible-fear determination 89% of the time. Some 6,867 Mexican 
nationals were interviewed; asylum officers gave them a positive 
credible-fear determination in 81% of decided cases (4,261), and 
immigration judges reversed an additional 91 negative credible-fear 
determinations, resulting in some 4,352 cases (83% of cases decided on 
the merits) in which Mexican nationals were referred to section 240 
proceedings after receiving a positive credible-fear determination.
---------------------------------------------------------------------------

    \5\ DHS sometimes calculates credible-fear grant rates as a 
proportion of all cases (positive, negative, and closed cases). 
Because this rule concerns the merits of the screening process and 
closed cases are not affected by that process, this preamble 
discusses the proportions of determinations on the merits when 
describing the credible-fear screening process. This preamble does, 
however, account for the fact that some proportion of closed cases 
are also sent to section 240 proceedings when discussing the number 
of cases that immigration judges completed involving aliens referred 
for a credible-fear interview while in expedited-removal 
proceedings.
    \6\ Stowaways are the only category of aliens who would receive 
a positive credible-fear determination and go to asylum-only 
proceedings, as opposed to section 240 proceedings, but the number 
of stowaways is very small. Between FY 2013 and FY 2017, an average 
of roughly 300 aliens per year were placed in asylum-only 
proceedings, and that number includes not only stowaways but all 
classes of aliens subject to asylum-only proceedings. 8 CFR 
1208.2(c)(1) (describing 10 categories of aliens, including 
stowaways found to have a credible fear, who are subject to asylum-
only proceedings).
    \7\ Asylum officers decided 53,205 of these cases on the merits 
and closed the remaining 10,357 (but sent many of the latter to 
section 240 proceedings). Specifically, 25,673 Honduran nationals 
were interviewed; 21,476 of those resulted in a positive screening 
on the merits, 2,436 received a negative finding, and 1,761 were 
closed--meaning that 90% of all Honduran cases involving a merits 
determination resulted in a positive finding, and 10% were denied. 
Some 13,433 Salvadoran nationals were interviewed; 11,034 of those 
resulted in a positive screening on the merits 1,717 were denied, 
and 682 were closed--meaning that 86% of all Salvadoran cases 
involving a merits determination resulted in a positive finding, and 
14% were denied. Some 24,456 Guatemalan nationals were interviewed; 
14,183 of those resulted in a positive screening on the merits, 
2,359 were denied, and 7,914 were closed--meaning that 86% of all 
Guatemalan cases involving a merits determination resulted in a 
positive finding, and 14% were denied. Again, the percentages 
exclude closed cases so as to describe how asylum officers make 
decisions on the merits.
    \8\ Immigration judges in 2018 reversed 18% (288) of negative 
credible-fear determinations involving Hondurans, 19% (241) of 
negative credible-fear determinations involving Salvadorans, and 17% 
(285) of negative credible-fear determinations involving 
Guatemalans.
---------------------------------------------------------------------------

    These figures have enormous consequences for the asylum system writ 
large. Asylum officers and immigration judges devote significant 
resources to these screening interviews, which the INA requires to 
happen within a fixed statutory timeframe. These aliens must also be 
detained during the pendency of expedited-removal proceedings. See INA 
235(b), 8 U.S.C. 1225(b); Jennings v. Rodriguez, 138 S. Ct. 830, 834 
(2018). And assertions of credible fear in expedited removal have 
rapidly grown in the last decade--especially in the last five years. In 
FY 2008, for example, fewer than 5,000 aliens were in expedited removal 
(5%) and were thus referred for a credible-fear interview. In FY 2014, 
51,001 referrals occurred (representing 21% of aliens in expedited 
removal). The credible-fear referral numbers today reflect a 190% 
increase from FY 2014 and a nearly 2000% increase from FY 2008. 
Furthermore, the percentage of cases in which asylum officers found 
that aliens had established a credible fear--leading to the aliens 
being placed in section 240 removal proceedings--has also increased in 
recent years. In FY 2008, asylum officers found a credible fear in 
about 3,200 (or 77%) of all cases. In FY 2014, asylum officers found a 
credible fear in about 35,000 (or 80%) of all cases in which they made 
a determination. And in FY 2018, asylum officers found a credible fear 
in nearly 89% of all such cases.
    Once aliens are referred for section 240 proceedings, their cases 
may take months or years to adjudicate due to backlogs in the system. 
As of November 2, 2018, there were approximately 203,569 total cases 
pending in the immigration courts that originated with a credible-fear 
referral--or 26% of the total backlog of 791,821 removal cases. Of that 
number, 136,554 involved nationals of Northern Triangle countries 
(39,940 cases involving Hondurans; 59,702 involving Salvadoran 
nationals; 36,912 involving Guatemalan nationals). Another 10,736 cases 
involved Mexican nationals.
    In FY 2018, immigration judges completed 34,158 total cases that 
originated with a credible-fear referral.\9\

[[Page 55946]]

Those aliens were likely referred for credible-fear screening between 
2015 and 2018; the vast majority of these cases arose from positive 
credible-fear determinations as opposed to the subset of cases that 
were closed in expedited removal and referred for section 240 
proceedings. In a significant proportion of these cases, the aliens did 
not appear for section 240 proceedings or did not file an application 
for asylum in connection with those proceedings. In FY 2018, of the 
34,158 completions that originated with a credible-fear referral, 
24,361 (71%) were completed by an immigration judge with the issuance 
of an order of removal. Of those completed cases, 10,534 involved in 
absentia removal orders, meaning that in approximately 31% of all 
initial completions in FY 2018 that originated from a credible-fear 
referral, the alien failed to appear at a hearing. Moreover, of those 
10,534 cases, there were 1,981 cases where an asylum application was 
filed, meaning 8,553 did not file an asylum application and failed to 
appear at a hearing. Further, 40% of all initial completions 
originating with a credible-fear referral (or 13,595 cases, including 
the 8,553 aliens just discussed) were completed in FY 2018 without an 
alien filing an application for asylum. In short, in nearly half of the 
cases completed by an immigration judge in FY 2018 involving aliens who 
passed through a credible-fear referral, the alien failed to appear at 
a hearing or failed to file an asylum application.
---------------------------------------------------------------------------

    \9\ All descriptions of case outcomes before immigration judges 
reflect initial case completions by an immigration judge during the 
fiscal year unless otherwise noted. All references to applications 
for asylum generally involve applications for asylum, as opposed to 
some other form of protection, but EOIR statistics do not 
distinguish between, for instance, the filing of an application for 
asylum or the filing of an application for statutory withholding. As 
noted, an application for asylum is also deemed an application for 
other forms of protection, and whether an application will be for 
asylum or only for some other form of protection is often a post-
filing determination made by the immigration judge (for instance, 
because the one-year filing bar for asylum applies).
---------------------------------------------------------------------------

    Those figures are consistent with trends from FY 2008 through FY 
2018, during which time DHS pursued some 354,356 cases in the 
immigration courts that involved aliens who had gone through a 
credible-fear review (i.e., the aliens received a positive credible-
fear determination or their closed case was referred for further 
proceedings). During this period, however, only about 53% (189,127) of 
those aliens filed an asylum application, despite the fact that they 
were placed into further immigration proceedings under section 240 
because they alleged a fear during expedited-removal proceedings.
    Even among those aliens who received a credible-fear interview, 
filed for asylum, and appeared in section 240 proceedings to resolve 
their asylum claims--a category that would logically include the aliens 
with the greatest confidence in the merits of their claims--only a very 
small percentage received asylum. In FY 2018 immigration judges 
completed 34,158 cases that originated with a credible-fear referral; 
only 20,563 of those cases involved an application for asylum, and 
immigration judges granted only 5,639 aliens asylum. In other words, in 
FY 2018, less than about 6,000 aliens who passed through credible-fear 
screening (17% of all completed cases, 27% of all completed cases in 
which an asylum application was filed, and about 36% of cases where the 
asylum claim was adjudicated on the merits) established that they 
should be granted asylum. (An additional 322 aliens received either 
statutory withholding or CAT protection.) Because there may be multiple 
bases for denying an asylum application and immigration judges often 
make alternative findings for consideration of issues on appeal, EOIR 
does not track reasons for asylum denials by immigration judges at a 
granular level. Nevertheless, experience indicates that the vast 
majority of those asylum denials reflect a conclusion that the alien 
failed to establish a significant possibility of persecution, rather 
than the effect of a bar to asylum eligibility or a discretionary 
decision by an immigration judge to deny asylum to an alien who 
qualifies as a refugee.
    The statistics for nationals of Northern Triangle countries are 
particularly illuminating. In FY 2018, immigration judges in section 
240 proceedings adjudicated 20,784 cases involving nationals of 
Northern Triangle countries who were referred for credible-fear 
interviews and then referred to section 240 proceedings (i.e., they 
expressed a fear and either received a positive credible-fear 
determination or had their case closed and referred to section 240 
proceedings for an unspecified reason). Given that those aliens 
asserted a fear of persecution and progressed through credible-fear 
screening, those aliens presumably would have had the greatest reason 
to then pursue an asylum application. Yet in only about 54% of those 
cases did the alien file an asylum application. Furthermore, about 38% 
of aliens from Northern Triangle countries who were referred for 
credible-fear interviews and passed to section 240 proceedings did not 
appear, and were ordered removed in absentia. Put differently: Only a 
little over half of aliens from Northern Triangle countries who claimed 
a fear of persecution and passed threshold screening submitted an 
application for asylum, and over a third did not appear at section 240 
proceedings.\10\ And only 1,889 aliens from Northern Triangle countries 
were granted asylum, or approximately 9% of completed cases for aliens 
from Northern Triangle countries who received a credible-fear referral, 
17% of the cases where such aliens filed asylum applications in their 
removal proceedings, and about 23% of cases where such aliens' asylum 
claims were adjudicated on the merits. Specifically, in FY 2018, 536 
Hondurans, 408 Guatemalans, and 945 Salvadorans who initially were 
referred for a credible-fear interview (whether in FY 2018 or earlier) 
and progressed to section 240 proceedings were granted asylum.
---------------------------------------------------------------------------

    \10\ These percentages are even higher for particular 
nationalities. In FY 2018, immigration judges adjudicated 7,151 
cases involving Hondurans whose cases originated with a credible-
fear referral in expedited-removal proceedings. Of that 7,151, only 
49% (3,509) filed an application for asylum, and 44% (3,167) had 
their cases completed with an in absentia removal order because they 
failed to appear. Similarly, immigration judges adjudicated 5,382 
cases involving Guatemalans whose cases originated with a credible-
fear referral; only 46% (2,457) filed an asylum application, and 41% 
(2,218) received in absentia removal orders. The 8,251 Salvadoran 
cases had the highest rate of asylum applications (filed in 65% of 
cases, or 5,341), and 31% of the total cases (2,534) involved in 
absentia removal orders. Numbers for Mexican nationals reflected 
similar trends. In FY 2018, immigration judges adjudicated 3,307 
cases involving Mexican nationals who progressed to section 240 
proceedings after being referred for a credible-fear interview; 49% 
of them filed applications for asylum in these proceedings, and 25% 
of the total cases resulted in an in absentia removal order.
---------------------------------------------------------------------------

    The Departments thus believe that these numbers underscore the 
major costs and inefficiencies of the current asylum system. Again, 
numbers for Northern Triangle nationals--who represent the vast 
majority of aliens who claim a credible fear--illuminate the scale of 
the problem. Out of the 63,562 Northern Triangle nationals who 
expressed an intent to apply for asylum or a fear of persecution and 
received credible-fear screening interviews in FY 2018, 47,507 received 
a positive credible-fear finding from the asylum officer or immigration 
judge. (Another 10,357 cases were administratively closed, some of 
which also may have been referred to section 240 proceedings.) Those 
aliens will remain in the United States to await section 240 
proceedings while immigration judges work through the current backlog 
of nearly 800,000 cases--136,554 of which involve nationals of Northern 
Triangle countries who passed through credible-

[[Page 55947]]

fear screening interviews. Immigration judges adjudicated 20,784 cases 
involving such nationals of Northern Triangle countries in FY 2018; 
slightly under half of those aliens did not file an application for 
asylum, and over a third were screened through expedited removal but 
did not appear for a section 240 proceeding. Even when nationals of 
Northern Triangle countries who passed through credible-fear screening 
applied for asylum (as 11,307 did in cases completed in FY 2018), 
immigration judges granted asylum to only 1,889, or 17% of the cases 
where such aliens filed asylum applications in their removal 
proceedings. Immigration judges found in the overwhelming majority of 
cases that the aliens had no significant possibility of persecution.
    These existing burdens suggest an unsustainably inefficient 
process, and those pressures are now coupled with the prospect that 
large caravans of thousands of aliens, primarily from Central America, 
will seek to enter the United States unlawfully or without proper 
documentation and thereafter trigger credible-fear screening procedures 
and obtain release into the interior. The United States has been 
engaged in ongoing diplomatic negotiations with Mexico and the Northern 
Triangle countries (Guatemala, El Salvador, and Honduras) about the 
problems on the southern border, but those negotiations have, to date, 
proved unable to meaningfully improve the situation.
    2. In combination with a presidential proclamation directed at the 
crisis on the southern border, the rule would help ameliorate the 
pressures on the present system. Aliens who could not establish a 
credible fear for asylum purposes due to the proclamation-based 
eligibility bar could nonetheless seek statutory withholding of removal 
or CAT protection, but would receive a positive finding only by 
establishing a reasonable fear of persecution or torture. In FY 2018, 
USCIS issued nearly 7,000 reasonable-fear determinations (i.e., made a 
positive or negative determination)--a smaller number because the 
current determinations are limited to the narrow categories of aliens 
described above. Of those determinations, USCIS found a reasonable fear 
in 45% of cases in 2018, and 48% of cases in 2017. Negative reasonable-
fear determinations were then subject to further review, and 
immigration judges reversed approximately 18%.
    Even if rates of positive reasonable-fear findings increased when a 
more general population of aliens became subject to the reasonable-fear 
screening process, this process would better filter those aliens 
eligible for that form of protection. Even assuming that grant rates 
for statutory withholding in the reasonable-fear screening process (a 
higher standard) would be the same as grant rates for asylum, this 
screening mechanism would likely still allow through a significantly 
higher percentage of cases than would likely be granted. And the 
reasonable-fear screening rates would also still allow a far greater 
percentage of claimants through than would ultimately receive CAT 
protection. Fewer than 1,000 aliens per year, of any nationality, 
receive CAT protection.
    To the extent that aliens continued to enter the United States in 
violation of a relevant proclamation, the application of the rule's bar 
to eligibility for asylum in the credible-fear screening process 
(combined with the application of the reasonable-fear standard to 
statutory withholding and CAT claims) would reduce the number of cases 
referred to section 240 proceedings. Finally, the Departments emphasize 
that this rule would not prevent aliens with claims for statutory 
withholding or CAT protection from having their claims adjudicated in 
section 240 proceedings after satisfying the reasonable-fear standard.
    Further, determining whether an alien is subject to a suspension of 
entry proclamation would ordinarily be straightforward, because such 
orders specify the class of aliens whose entry is restricted. Likewise, 
adding questions designed to elicit whether an alien is subject to an 
entry proclamation, and employing a bifurcated credible-fear analysis 
for the asylum claim and reasonable-fear review of the statutory 
withholding and CAT claims, will likely not be unduly burdensome. 
Although DHS has generally not applied existing mandatory bars to 
asylum in credible-fear determinations, asylum officers currently probe 
for this information and note in the record where the possibility 
exists that a mandatory bar may apply. Though screening for 
proclamation-based ineligibility for asylum may in some cases entail 
some additional work, USCIS will account for it under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., as needed, following issuance of 
a covered proclamation. USCIS asylum officers and EOIR immigration 
judges have almost two decades of experience applying the reasonable-
fear standard to statutory withholding and CAT claims, and do so in 
thousands of cases per year already (13,732 in FY 2018 for both EOIR 
and USCIS). See, e.g., Memorandum for All Immigration Judges, et al., 
from The Office of the Chief Immigration Judge, Executive Office for 
Immigration Review at 6 (May 14, 1999) (explaining similarities between 
credible-fear and reasonable-fear proceedings for immigration judges).
    That said, USCIS estimates that asylum officers have historically 
averaged four to five credible-fear interviews and completions per day, 
but only two to three reasonable-fear case completions per day. 
Comparing this against current case processing targets, and depending 
on the number of aliens who contravene a presidential proclamation, 
such a change might result in the need to increase the number of 
officers required to conduct credible-fear or reasonable-fear 
screenings to maintain current case completion goals. However, current 
reasonable-fear interviews are for types of aliens (aggravated felons 
and aliens subject to reinstatement) for whom relevant criminal and 
immigration records take time to obtain, and for whom additional 
interviewing and administrative processing time is typically required. 
The population of aliens who would be subject to this rule would 
generally not have the same type of criminal and immigration records in 
the United States, but additional interviewing time might be necessary. 
Therefore, it is unclear whether these averages would hold once the 
rule is implemented.
    If an asylum officer determines that credible fear has been 
established but for the existence of the proclamation bar, and the 
alien seeks review of such determination before an immigration judge, 
DHS may need to shift additional resources towards facilitating such 
review in immigration court in order to provide records of the negative 
credible-fear determination to the immigration court. However, ICE 
attorneys, while sometimes present, generally do not advocate for DHS 
in negative credible-fear or reasonable-fear reviews before an 
immigration judge.
    DHS would, however, also expend additional resources detaining 
aliens who would have previously received a positive credible-fear 
determination and who now receive, and challenge, a negative credible-
fear and reasonable-fear determination. Aliens are generally detained 
during the credible-fear screening, but may be eligible for parole or 
release on bond if they establish a credible fear. To the extent that 
the rule may result in lengthier interviews for each case, aliens' 
length of stay in detention would increase. Furthermore, DHS 
anticipates that more negative determinations would increase the number 
of aliens who would be

[[Page 55948]]

detained and the length of time they would be detained, since fewer 
aliens would be eligible for parole or release on bond. Also, to the 
extent this rule would increase the number of aliens who receive both 
negative credible-fear and reasonable-fear determinations, and would 
thus be subject to immediate removal, DHS will incur increased and more 
immediate costs for enforcement and removal of these aliens. That cost 
would be counterbalanced by the fact that it would be considerably more 
costly and resource-intensive to ultimately remove such an alien after 
the end of section 240 proceedings, and the desirability of promoting 
greater enforcement of the immigration laws.
    Attorneys from ICE represent DHS in full immigration proceedings, 
and immigration judges (who are part of DOJ) adjudicate those 
proceedings. If fewer aliens are found to have credible fear or 
reasonable fear and referred to full immigration proceedings, such a 
development will allow DOJ and ICE attorney resources to be reallocated 
to other immigration proceedings. The additional bars to asylum are 
unlikely to result in immigration judges spending much additional time 
on each case where the nature of the proclamation bar is 
straightforward to apply. Further, there will likely be a decrease in 
the number of asylum hearings before immigration judges because certain 
respondents will no longer be eligible for asylum and DHS will likely 
refer fewer cases to full immigration proceedings. If DHS officers 
identify the proclamation-based bar to asylum (before EOIR has acquired 
jurisdiction over the case), EOIR anticipates a reduction in both in-
court and out-of-court time for immigration judges.
    A decrease in the number of credible-fear findings and, thus, 
asylum grants would also decrease the number of employment 
authorization documents processed by DHS. Aliens are generally eligible 
to apply for and receive employment authorization and an Employment 
Authorization Document (Form I-766) after their asylum claim has been 
pending for more than 180 days. See INA 208(d)(5)(A)(iii), 8 U.S.C. 
1158(d)(5)(A)(iii); 8 CFR 1208.7(a)(1)(2). This rule and any associated 
future presidential proclamations would also be expected to have a 
deterrent effect that could lessen future flows of illegal immigration.
    3. The Departments are not in a position to determine how all entry 
proclamations involving the southern border could affect the decision 
calculus for various categories of aliens planning to enter the United 
States through the southern border in the near future. The focus of 
this rule is on the tens of thousands of aliens each year (97,192 in FY 
2018) who assert a credible fear in expedited-removal proceedings and 
may thereby be placed on a path to release into the interior of the 
United States. The President has announced his intention to take 
executive action to suspend the entry of aliens between ports of entry 
and instead to channel such aliens to ports of entry, where they may 
seek to enter and assert an intent to apply for asylum in a controlled, 
orderly, and lawful manner. The Departments have accordingly assessed 
the anticipated effects of such a presidential action so as to 
illuminate how the rule would be applied in those circumstances.
    a. Effects on Aliens. Such a proclamation, coupled with this rule, 
would have the most direct effect on the more than approximately 70,000 
aliens a year (as of FY 2018) estimated to enter between the ports of 
entry and then assert a credible fear in expedited-removal 
proceedings.\11\ If such aliens contravened a proclamation suspending 
their entry unless they entered at a port of entry, they would become 
ineligible for asylum, but would remain eligible for statutory 
withholding or CAT protection. And for the reasons discussed above, 
their claims would be processed more expeditiously. Conversely, if such 
aliens decided to instead arrive at ports of entry, they would remain 
eligible for asylum and would proceed through the existing credible-
fear screening process.
---------------------------------------------------------------------------

    \11\ The Departments estimated this number by using the 
approximately 171,511 aliens in FY 2018 who were referred to 
expedited removal after crossing illegally between ports of entry 
and being apprehended by CBP. That number excludes the approximately 
3,102 additional aliens who were arrested by ICE, because it is not 
clear at this time whether such aliens were ultimately processed at 
a port of entry. The Departments also relied on the fact that 
approximately 41% of aliens in expedited removal in FY 2018 
triggered credible-fear screening.
---------------------------------------------------------------------------

    Such an application of this rule could also affect the decision 
calculus for the estimated 24,000 or so aliens a year (as of FY 2018) 
who arrive at ports of entry along the southern border and assert a 
credible fear in expedited-removal proceedings.\12\ Such aliens would 
likely face increased wait times at a U.S. port of entry, meaning that 
they would spend more time in Mexico. Third-country nationals in this 
category would have added incentives to take advantage of Mexican 
asylum procedures and to make decisions about travel to a U.S. port of 
entry based on information about which ports were most capable of swift 
processing.
---------------------------------------------------------------------------

    \12\ The Departments estimated this number by using the 
approximately 59,921 aliens in FY 2018 who were referred to 
expedited removal after presenting at a port of entry. That number 
excludes the approximately 3,102 additional aliens who were arrested 
by ICE, because it is not clear at this time whether such aliens 
were ultimately processed at a port of entry. The Departments also 
relied on the fact that approximately 41% of aliens in expedited 
removal in FY 2018 triggered credible-fear screening.
---------------------------------------------------------------------------

    Such an application of this rule could also affect aliens who apply 
for asylum affirmatively or in removal proceedings after entering 
through the southern border. Some of those asylum grants would become 
denials for aliens who became ineligible for asylum because they 
crossed illegally in contravention of a proclamation effective before 
they entered. Such aliens could, however, still obtain statutory 
withholding of removal or CAT protection in section 240 proceedings.
    Finally, such a proclamation could also affect the thousands of 
aliens who are granted asylum each year. Those aliens' cases are 
equally subject to existing backlogs in immigration courts, and could 
be adjudicated more swiftly if the number of non-meritorious cases 
declined. Aliens with meritorious claims could thus more expeditiously 
receive the benefits associated with asylum.
    b. Effects on the Departments' Operations. Applying this rule in 
conjunction with a proclamation that channeled aliens seeking asylum to 
ports of entry would likely create significant overall efficiencies in 
the Departments' operations beyond the general efficiencies discussed 
above. Channeling even some proportion of aliens who currently enter 
illegally and assert a credible fear to ports of entry would, on 
balance, be expected to help the Departments more effectively leverage 
their resources to promote orderly and efficient processing of 
inadmissible aliens.
    At present, CBP dedicates enormous resources to attempting to 
apprehend aliens who cross the southern border illegally. As noted, CBP 
apprehended 396,579 such aliens in FY 2018. Such crossings often occur 
in remote locations, and over 16,000 CBP officers are responsible for 
patrolling hundreds of thousands of square miles of territory, ranging 
from deserts to mountainous terrain to cities. When a United States 
Border Patrol (``Border Patrol'' or ``USBP'') agent apprehends an alien 
who enters unlawfully, the USBP agent takes the alien into custody and 
transports the alien to a Border Patrol station for processing--which 
could be hours away. Family units apprehended after crossing illegally 
present additional logistical challenges, and may require additional 
agents to assist

[[Page 55949]]

with the transport of the illegal aliens from the point of apprehension 
to the station for processing. And apprehending one alien or group of 
aliens may come at the expense of apprehending others while agents are 
dedicating resources to transportation instead of patrolling.
    At the Border Patrol station, a CBP agent obtains an alien's 
fingerprints, photographs, and biometric data, and begins asking 
background questions about the alien's nationality and purpose in 
crossing. At the same time, agents must make swift decisions, in 
coordination with DOJ, as to whether to charge the alien with an 
immigration-related criminal offense. Further, agents must decide 
whether to apply expedited-removal procedures, to pursue reinstatement 
proceedings if the alien already has a removal order in effect, to 
authorize voluntary return, or to pursue some other lawful course of 
action. Once the processing of the alien is completed, the USBP 
temporarily detains any alien who is referred for removal proceedings. 
Once the USBP determines that an alien should be placed in expedited-
removal proceedings, the alien is expeditiously transferred to ICE 
custody in compliance with federal law. The distance between ICE 
detention facilities and USBP stations, however, varies. Asylum 
officers and immigration judges review negative credible-fear findings 
during expedited-removal proceedings while the alien is in ICE custody.
    By contrast, CBP officers are able to employ a more orderly and 
streamlined process for inadmissible aliens who present at one of the 
ports of entry along the southern border--even if they claim a credible 
fear. Because such aliens have typically sought admission without 
violating the law, CBP generally does not need to dedicate resources to 
apprehending or considering whether to charge such aliens. And while 
aliens who present at a port of entry undergo threshold screening to 
determine their admissibility, see INA 235(b)(2), 8 U.S.C. 1225(b)(2), 
that process takes approximately the same amount of time as CBP's 
process for obtaining details from aliens apprehended between ports of 
entry. Just as for illegal entrants, CBP officers at ports of entry 
must decide whether inadmissible aliens at ports of entry are subject 
to expedited removal. Aliens subject to such proceedings are then 
generally transferred to ICE custody so that DHS can implement 
Congress's statutory mandate to detain such aliens during the pendency 
of expedited-removal proceedings. As with stations, ports of entry vary 
in their proximity to ICE detention facilities.
    The Departments acknowledge that in the event all of the 
approximately 70,000 aliens per year who cross illegally and assert a 
credible fear instead decide to present at a port of entry, processing 
times at ports of entry would be slower in the absence of additional 
resources or policies that would encourage aliens to enter at less busy 
ports. Using FY 2018 figures, the number of aliens presenting at a port 
of entry would rise from about 124,511 to about 200,000 aliens if all 
illegal aliens who assert a credible fear went to ports of entry. That 
would likely create longer lines at U.S. ports of entry, although the 
Departments note that such ports have variable capacities and that wait 
times vary considerably between them. The Departments nonetheless 
believe such a policy would be preferable to the status quo. Nearly 40% 
of inadmissible aliens who present at ports of entry today are Mexican 
nationals, who rarely claim a credible fear and who accordingly can be 
processed and admitted or removed quickly.
    Furthermore, the overwhelming number of aliens who would have an 
incentive under the rule and a proclamation to arrive at a port of 
entry rather than to cross illegally are from third countries, not from 
Mexico. In FY 2018, CBP apprehended and referred to expedited removal 
an estimated 87,544 Northern Triangle nationals and an estimated 66,826 
Mexican nationals, but Northern Triangle nationals assert a credible 
fear over 60% of the time, whereas Mexican nationals assert a credible 
fear less than 10% of the time. The Departments believe that it is 
reasonable for third-country aliens, who appear highly unlikely to be 
persecuted on account of a protected ground or tortured in Mexico, to 
be subject to orderly processing at ports of entry that takes into 
account resource constraints at ports of entry and in U.S. detention 
facilities. Such orderly processing would be impossible if large 
proportions of third-country nationals continue to cross the southern 
border illegally.
    To be sure, some Mexican nationals who would assert a credible fear 
may also have to spend more time waiting for processing in Mexico. Such 
nationals, however, could still obtain statutory withholding of removal 
or CAT protection if they crossed illegally, which would allow them a 
safeguard against persecution. Moreover, only 178 Mexican nationals 
received asylum in FY 2018 after initially asserting a credible fear of 
persecution in expedited-removal proceedings, indicating that the 
category of Mexican nationals most likely to be affected by the rule 
and a proclamation would also be highly unlikely to establish 
eligibility for asylum.

Regulatory Requirements

A. Administrative Procedure Act

    While the Administrative Procedure Act (``APA'') generally requires 
agencies to publish notice of a proposed rulemaking in the Federal 
Register for a period of public comment, it provides an exception 
``when the agency for good cause finds . . . that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest.'' 5 U.S.C. 553(b)(B). This exception relieves agencies 
of the notice-and-comment requirement in emergency situations, or in 
circumstances where ``the delay created by the notice and comment 
requirements would result in serious damage to important interests.'' 
Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990), 
aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also Nat'l Fed'n of Federal 
Emps. v. Nat'l Treasury Emps. Union, 671 F.2d 607, 611 (D.C. Cir. 
1982); United States v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010). 
Agencies have previously relied on this exception in promulgating a 
host of immigration-related interim rules.\13\ Furthermore, DHS has 
invoked this exception in promulgating rules related to expedited 
removal--a context in which Congress recognized the need for dispatch 
in addressing large volumes of aliens by giving the Secretary 
significant discretion to ``modify at any time'' the classes of aliens 
who would be subject to such procedures. See INA 235(b)(1)(A)(iii)(I), 
8 U.S.C. 1225(b)(1)(A)(iii)(I).\14\
---------------------------------------------------------------------------

    \13\ See, e.g., Visas: Documentation of Nonimmigrants Under the 
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 
4, 2016) (interim rule citing good cause to immediately require 
additional documentation from certain Caribbean agricultural workers 
to avoid ``an increase in applications for admission in bad faith by 
persons who would otherwise have been denied visas and are seeking 
to avoid the visa requirement and consular screening process during 
the period between the publication of a proposed and a final 
rule''); Suspending the 30-Day and Annual Interview Requirements 
From the Special Registration Process for Certain Nonimmigrants, 68 
FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming good cause 
exception for suspending certain automatic registration requirements 
for nonimmigrants because ``without [the] regulation approximately 
82,532 aliens would be subject to 30-day or annual re-registration 
interviews'' over six months).
    \14\ See, e.g., Eliminating Exception to Expedited Removal 
Authority for Cuban Nationals Arriving by Air, 82 FR at 4770 
(claiming good cause exception because the ability to detain certain 
Cuban nationals ``while admissibility and identity are determined 
and protection claims are adjudicated, as well as to quickly remove 
those without protection claims or claims to lawful status, is a 
necessity for national security and public safety''); Designating 
Aliens For Expedited Removal, 69 FR at 48880 (claiming good cause 
exception for expansion of expedited-removal program due to ``[t]he 
large volume of illegal entries, and attempted illegal entries, and 
the attendant risks to national security presented by these illegal 
entries,'' as well as ``the need to deter foreign nationals from 
undertaking dangerous border crossings, and thereby prevent the 
needless deaths and crimes associated with human trafficking and 
alien smuggling operations'').

---------------------------------------------------------------------------

[[Page 55950]]

    The Departments have concluded that the good-cause exceptions in 5 
U.S.C. 553(b)(B) and (d)(3) apply to this rule. Notice and comment on 
this rule, along with a 30-day delay in its effective date, would be 
impracticable and contrary to the public interest. The Departments have 
determined that immediate implementation of this rule is essential to 
avoid creating an incentive for aliens to seek to cross the border 
during pre-promulgation notice and comment under 5 U.S.C. 553(b) or 
during the 30-day delay in the effective date under 5 U.S.C. 553(d).
    DHS concluded in January 2017 that it was imperative to give 
immediate effect to a rule designating Cuban nationals arriving by air 
as eligible for expedited removal because ``pre-promulgation notice and 
comment would . . . endanger[] human life and hav[e] a potential 
destabilizing effect in the region.'' Eliminating Exception to 
Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 FR 
at 4770. DHS in particular cited the prospect that ``publication of the 
rule as a proposed rule, which would signal a significant change in 
policy while permitting continuation of the exception for Cuban 
nationals, could lead to a surge in migration of Cuban nationals 
seeking to travel to and enter the United States during the period 
between the publication of a proposed and a final rule.'' Id. DHS found 
that ``[s]uch a surge would threaten national security and public 
safety by diverting valuable Government resources from counterterrorism 
and homeland security responsibilities. A surge could also have a 
destabilizing effect on the region, thus weakening the security of the 
United States and threatening its international relations.'' Id. DHS 
concluded: ``[A] surge could result in significant loss of human 
life.'' Id.; accord, e.g., Designating Aliens For Expedited Removal, 69 
FR 48877 (noting similar destabilizing incentives for a surge during a 
delay in the effective date); Visas: Documentation of Nonimmigrants 
Under the Immigration and Nationality Act, as Amended, 81 FR at 5907 
(finding the good-cause exception applicable because of similar short-
run incentive concerns).
    These same concerns would apply here as well. Pre-promulgation 
notice and comment, or a delay in the effective date, could lead to an 
increase in migration to the southern border to enter the United States 
before the rule took effect. For instance, the thousands of aliens who 
presently enter illegally and make claims of credible fear if and when 
they are apprehended would have an added incentive to cross illegally 
during the comment period. They have an incentive to cross illegally in 
the hopes of evading detection entirely. Even once apprehended, at 
present, they are able to take advantage of a second opportunity to 
remain in the United States by making credible-fear claims in 
expedited-removal proceedings. Even if their statements are ultimately 
not found to be genuine, they are likely to be released into the 
interior pending section 240 proceedings that may not occur for months 
or years. Based on the available statistics, the Departments believe 
that a large proportion of aliens who enter illegally and assert a fear 
could be released while awaiting section 240 proceedings. There 
continues to be an ``urgent need to deter foreign nationals from 
undertaking dangerous border crossings, and thereby prevent the 
needless deaths and crimes associated with human trafficking and alien 
smuggling operations.'' Designating Aliens For Expedited Removal, 69 FR 
at 48878.
    Furthermore, there are already large numbers of migrants--including 
thousands of aliens traveling in groups, primarily from Central 
America--expected to attempt entry at the southern border in the coming 
weeks. Some are traveling in large, organized groups through Mexico 
and, by reports, intend to come to the United States unlawfully or 
without proper documentation and to express an intent to seek asylum. 
Creating an incentive for members of those groups to attempt to enter 
the United States unlawfully before this rule took effect would make 
more dangerous their already perilous journeys, and would further 
strain CBP's apprehension operations. This interim rule is thus a 
practical means to address these developments and avoid creating an 
even larger short-term influx; an extended notice-and-comment 
rulemaking process would be impracticable.
    Alternatively, the Departments may forgo notice-and-comment 
procedures and a delay in the effective date because this rule involves 
a ``foreign affairs function of the United States.'' 5 U.S.C. 
553(a)(1). The flow of aliens across the southern border, unlawfully or 
without appropriate travel documents, directly implicates the foreign 
policy interests of the United States. See, e.g., Exec. Order 13767 
(Jan. 25, 2017). Presidential proclamations invoking section 212(f) or 
215(a)(1) of the INA at the southern border necessarily implicate our 
relations with Mexico and the President's foreign policy, including 
sensitive and ongoing negotiations with Mexico about how to manage our 
shared border.\15\ A proclamation under section 212(f) of the INA would 
reflect a presidential determination that some or all entries along the 
border ``would [be] detrimental to the interests of the United 
States.'' And the structure of the rule, under which the Attorney 
General and the Secretary are exercising their statutory authority to 
establish a mandatory bar to asylum eligibility resting squarely on a 
proclamation issued by the President, confirms the direct relationship 
between the President's foreign policy decisions in this area and the 
rule.
---------------------------------------------------------------------------

    \15\ For instance, since 2004, the United States and Mexico have 
been operating under a memorandum of understanding concerning the 
repatriation of Mexican nationals. Memorandum of Understanding 
Between the Department of Homeland Security of the United States of 
America and the Secretariat of Governance and the Secretariat of 
Foreign Affairs of the United Mexican States, on the Safe, Orderly, 
Dignified and Humane Repatriation of Mexican Nationals (Feb. 20, 
2004). Article 6 of that memorandum reserves the movement of third-
country nationals through Mexico and the United States for further 
bilateral negotiations.
---------------------------------------------------------------------------

    For instance, a proclamation aimed at channeling aliens who wish to 
make a claim for asylum to ports of entry at the southern border would 
be inextricably related to any negotiations over a safe-third-country 
agreement (as defined in INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), or 
any similar arrangements. As noted, the vast majority of aliens who 
enter illegally today come from the Northern Triangle countries, and 
large portions of those aliens assert a credible fear. Channeling those 
aliens to ports of entry would encourage these aliens to first avail 
themselves of offers of asylum from Mexico.
    Moreover, this rule would be an integral part of ongoing 
negotiations with Mexico and Northern Triangle countries over how to 
address the influx of tens of thousands of migrants from Central 
America through Mexico and into the United States. For instance, over 
the past few weeks, the United States has consistently engaged with the 
Security and Foreign Ministries of El Salvador, Guatemala, and 
Honduras, as well as the Ministries of Governance and Foreign Affairs 
of Mexico, to

[[Page 55951]]

discuss how to address the mass influx of aliens traveling together 
from Central America who plan to seek to enter at the southern border. 
Those ongoing discussions involve negotiations over issues such as how 
these other countries will develop a process to provide this influx 
with the opportunity to seek protection at the safest and earliest 
point of transit possible, and how to establish compliance and 
enforcement mechanisms for those who seek to enter the United States 
illegally, including for those who do not avail themselves of earlier 
offers of protection. Furthermore, the United States and Mexico have 
been engaged in ongoing discussions of a safe-third-country agreement, 
and this rule will strengthen the ability of the United States to 
address the crisis at the southern border and therefore facilitate the 
likelihood of success in future negotiations.
    This rule thus supports the President's foreign policy with respect 
to Mexico and the Northern Triangle countries in this area and is 
exempt from the notice-and-comment and delayed-effective-date 
requirements in 5 U.S.C. 553. See Am. Ass'n of Exporters & Importers-
Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 
1985) (noting that foreign affairs exception covers agency actions 
``linked intimately with the Government's overall political agenda 
concerning relations with another country''); Yassini v. Crosland, 618 
F.2d 1356, 1361 (9th Cir. 1980) (because an immigration directive ``was 
implementing the President's foreign policy,'' the action ``fell within 
the foreign affairs function and good cause exceptions to the notice 
and comment requirements of the APA'').
    Invoking the APA's foreign affairs exception is also consistent 
with past rulemakings. In 2016, for example, in response to diplomatic 
developments between the United States and Cuba, DHS changed its 
regulations concerning flights to and from the island via an 
immediately effective interim final rule. This rulemaking explained 
that it was covered by the foreign affairs exception because it was 
``consistent with U.S. foreign policy goals''--specifically, the 
``continued effort to normalize relations between the two countries.'' 
Flights to and From Cuba, 81 FR 14948, 14952 (Mar. 21, 2016). In a 
similar vein, DHS and the State Department recently provided notice 
that they were eliminating an exception to expedited removal for 
certain Cuban nationals. The notice explained that the change in policy 
was subject to the foreign affairs exception because it was ``part of a 
major foreign policy initiative announced by the President, and is 
central to ongoing diplomatic discussions between the United States and 
Cuba with respect to travel and migration between the two countries.'' 
Eliminating Exception To Expedited Removal Authority for Cuban 
Nationals Encountered in the United States or Arriving by Sea, 82 FR at 
4904-05.
    For the foregoing reasons, taken together, the Departments have 
concluded that the foreign affairs exemption to notice-and-comment 
rulemaking applies.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 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). A regulatory flexibility analysis is 
not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

    This interim final rule will not result in the expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year, and it will 
not significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

D. Congressional Review Act

    This interim final rule is not a major rule as defined by section 
804 of the Congressional Review Act. 5 U.S.C. 804. 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.

E. Executive Order 12866, Executive Order 13563, and Executive Order 
13771 (Regulatory Planning and Review)

    This interim final rule is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866 because the rule is exempt 
under the foreign-affairs exemption in section 3(d)(2) as part of the 
actual exercise of diplomacy. The rule is consequently also exempt from 
Executive Order 13771 because it is not a significant regulatory action 
under Executive Order 12866. Though the potential costs, benefits, and 
transfers associated with some proclamations may have any of a range of 
economic impacts, this rule itself does not have an impact aside from 
enabling future action. The Departments have discussed what some of the 
potential impacts associated with a proclamation may be, but these 
impacts do not stem directly from this rule and, as such, they do not 
consider them to be costs, benefits, or transfers of this rule.
    This rule amends existing regulations to provide that aliens 
subject to restrictions on entry under certain proclamations are 
ineligible for asylum. The expected effects of this rule for aliens and 
on the Departments' operations are discussed above. As noted, this rule 
will result in the application of an additional mandatory bar to 
asylum, but the scope of that bar will depend on the substance of 
relevant triggering proclamations. In addition, this rule requires DHS 
to consider and apply the proclamation bar in the credible-fear 
screening analysis, which DHS does not currently do. Application of the 
new bar to asylum will likely decrease the number of asylum grants. By 
applying the bar earlier in the process, it will lessen the time that 
aliens who are ineligible for asylum and who lack a reasonable fear of 
persecution or torture will be present in the United States. Finally, 
DOJ is amending its regulations with respect to aliens who are subject 
to the proclamation bar to asylum eligibility to ensure that aliens who 
establish a reasonable fear of persecution or torture may still seek, 
in proceedings before immigration judges, statutory withholding of 
removal under the INA or CAT protection.

Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. 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.

[[Page 55952]]

G. Paperwork Reduction Act

    This rule does not propose new or revisions to existing 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as fol1ows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Public Law 110-229, 8 CFR part 2.


0
2. In Sec.  208.13, add paragraph (c)(3) to read as follows:


Sec.  208.13   Establishing asylum eligibility.

* * * * *
    (c) * * *
    (3) Additional limitation on eligibility for asylum. For 
applications filed after November 9, 2018, an alien shall be ineligible 
for asylum if the alien is subject to a presidential proclamation or 
other presidential order suspending or limiting the entry of aliens 
along the southern border with Mexico that is issued pursuant to 
subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 
and the alien enters the United States after the effective date of the 
proclamation or order contrary to the terms of the proclamation or 
order. This limitation on eligibility does not apply if the 
proclamation or order expressly provides that it does not affect 
eligibility for asylum, or expressly provides for a waiver or exception 
that makes the suspension or limitation inapplicable to the alien.

0
3. In Sec.  208.30, revise the section heading and add a sentence at 
the end of paragraph (e)(5) to read as follows:


Sec.  208.30   Credible fear determinations involving stowaways and 
applicants for admission who are found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or 
suspended under section 212(f) or 215(a)(1) of the Act.

* * * * *
    (e) * * *
    (5) * * * If the alien is found to be an alien described in 8 CFR 
208.13(c)(3), then the asylum officer shall enter a negative credible 
fear determination with respect to the alien's application for asylum. 
The Department shall nonetheless place the alien in proceedings under 
section 240 of the Act for full consideration of the alien's claim for 
withholding of removal under section 241(b)(3) of the Act, or for 
withholding or deferral of removal under the Convention Against Torture 
if the alien establishes a reasonable fear of persecution or torture. 
However, if an alien fails to establish, during the interview with the 
asylum officer, a reasonable fear of either persecution or torture, the 
asylum officer will provide the alien with a written notice of 
decision, which will be subject to immigration judge review consistent 
with paragraph (g) of this section, except that the immigration judge 
will review the reasonable fear findings under the reasonable fear 
standard instead of the credible fear standard described in paragraph 
(g) and in 8 CFR 1208.30(g).
* * * * *

    Approved:

    Dated: November 5, 2018.
Kirstjen M. Nielsen,
Secretary of Homeland Security.

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in the preamble, the 
Attorney General amends 8 CFR parts 1003 and 1208 as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
4. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103, 1154, 
1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 
1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 
Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 
203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 
of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. 
L. 106-554, 114 Stat. 2763A-326 to -328.


0
5. In Sec.  1003.42, add a sentence at the end of paragraph (d) to read 
as follows:


Sec.  1003.42   Review of credible fear determination.

* * * * *
    (d) * * * If the alien is determined to be an alien described in 8 
CFR 208.13(c)(3) or 1208.13(c)(3) and is determined to lack a 
reasonable fear under 8 CFR 208.30(e)(5), the immigration judge shall 
first review de novo the determination that the alien is described in 8 
CFR 208.13(c)(3) or 1208.13(c)(3) prior to any further review of the 
asylum officer's negative determination.
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
6. The authority citation for part 1208 continues to read as fol1ows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Public Law 110-229.


0
7. In Sec.  1208.13, add paragraph (c)(3) to read as follows:


Sec.  1208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (3) Additional limitation on eligibility for asylum. For 
applications filed after November 9, 2018, an alien shall be ineligible 
for asylum if the alien is subject to a presidential proclamation or 
other presidential order suspending or limiting the entry of aliens 
along the southern border with Mexico that is issued pursuant to 
subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 
and the alien enters the United States after the effective date of the 
proclamation or order contrary to the terms of the proclamation or 
order. This limitation on eligibility does not apply if the 
proclamation or order expressly provides that it does not affect 
eligibility for asylum, or expressly provides for a waiver or exception 
that makes the suspension or limitation inapplicable to the alien.

0
8. In Sec.  1208.30, revise the section heading and add paragraph 
(g)(1) to read as follows:

[[Page 55953]]

Sec.  1208.30   Credible fear determinations involving stowaways and 
applicants for admission who are found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or 
suspended under section 212(f) or 215(a)(1) of the Act.

* * * * *
    (g) * * *
    (1) Review by immigration judge of a mandatory bar finding. If the 
alien is determined to be an alien described in 8 CFR 208.13(c)(3) or 
1208.13(c)(3) and is determined to lack a reasonable fear under 8 CFR 
208.30(e)(5), the immigration judge shall first review de novo the 
determination that the alien is described in 8 CFR 208.13(c)(3) or 
1208.13(c)(3). If the immigration judge finds that the alien is not 
described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), then the immigration 
judge shall vacate the order of the asylum officer, and DHS may 
commence removal proceedings under section 240 of the Act. If the 
immigration judge concurs with the credible fear determination that the 
alien is an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), the 
immigration judge will then review the asylum officer's negative 
decision regarding reasonable fear made under 8 CFR 208.30(e)(5) 
consistent with paragraph (g)(2) of this section, except that the 
immigration judge will review the findings under the reasonable fear 
standard instead of the credible fear standard described in paragraph 
(g)(2).
* * * * *

    Dated: November 6, 2018.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2018-24594 Filed 11-8-18; 4:15 pm]
BILLING CODE 4410-30-P; 9111-97-P