Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 46906-46950 [2021-17779]

Download as PDF 46906 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 208 and 235 [CIS No. 2692–21; DHS Docket No. USCIS– 2021–0012] RIN 1615–AC67 DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003, 1208, and 1235 [A.G. Order No. 5116–2021] RIN 1125–AB20 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers Executive Office for Immigration Review, Department of Justice; U.S. Citizenship and Immigration Services, Department of Homeland Security. ACTION: Notice of proposed rulemaking. AGENCY: The Department of Justice (‘‘DOJ’’) and the Department of Homeland Security (‘‘DHS’’) (collectively, ‘‘the Departments’’) are proposing to amend the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. Under the proposed rule, such individuals could have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (‘‘INA’’ or ‘‘the Act’’) (‘‘statutory withholding of removal’’), or protection under the regulations issued pursuant to the legislation implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘‘CAT’’) initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services (‘‘USCIS’’). Such individuals who are granted relief by the asylum officer would be entitled to asylum, withholding of removal, or protection under CAT, as appropriate. Such individuals who are denied protection would be able to seek prompt, de novo review with an immigration judge (‘‘IJ’’) in the DOJ Executive Office for Immigration Review (‘‘EOIR’’), with appeal available to the Board of Immigration Appeals (‘‘BIA’’). These changes are intended to improve the Departments’ ability to khammond on DSKJM1Z7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 consider the asylum claims of individuals encountered at or near the border more promptly while ensuring fundamental fairness. In addition, among other changes to the asylum process, the Departments are proposing to return to the regulatory framework governing the credible fear screening process in place before various regulatory changes made from the end of 2018 through the end of 2020, so as to apply once more the longstanding ‘‘significant possibility’’ screening standard to all protection claims, but not to apply the mandatory bars to asylum and withholding of removal (with limited exception) at this initial screening stage. DATES: Submission of public comments: Written comments and related material must be submitted on or October 19, 2021. 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 on the entirety of this rulemaking package, identified by DHS Docket No. USCIS–2021–0012, through the Federal eRulemaking Portal: https:// www.regulations.gov. Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS, USCIS, DOJ, or EOIR officials, will not be considered comments on the proposed rule and may not receive a response from the Departments. Please note that the Departments cannot accept any comments that are hand-delivered or couriered. In addition, the Departments cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. The Departments also are not accepting mailed comments at this time. If you cannot submit your comment by using https:// www.regulations.gov, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721–3000 for alternate instructions. FOR FURTHER INFORMATION CONTACT: For USCIS: Andria Strano, Acting Chief, Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588–0009; telephone (240) 721– 3000 (not a toll-free call). PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Background A. Improving the Expedited Removal Process B. DOJ and DHS Authority To Propose This Rule C. The Current Asylum and Expedited Removal Process III. Discussion of the Proposed Rule A. Parole—Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) B. Credible Fear Screening Process— Proposed 8 CFR 208.30 C. Applications for Asylum—Proposed 8 CFR 208.3(a) and 208.9(a) D. Proceedings for Further Consideration of the Application for Asylum by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for Noncitizens With Credible Fear— Proposed 8 CFR 208.2(a) and (c); 208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 235.6(a)(1); 1003.42; and 1208.30(g) E. Application Review Proceedings Before the IJ—Proposed 8 CFR 1208.2(c), 1003.48 F. Severability G. Discretion/Phased Implementation Statutory and Regulatory Requirements H. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) I. Regulatory Flexibility Act J. Unfunded Mandates Reform Act of 1995 K. Congressional Review Act L. Executive Order 13132 (Federalism) M. Executive Order 12988 (Civil Justice Reform) N. Family Assessment O. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) P. National Environmental Policy Act Q. Paperwork Reduction Act I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this rule by the deadline stated above. The Departments also invite comments that relate to the economic, environmental, or federalism effects that might result from this rule. All comments must be submitted in English or accompanied by an English translation. Comments that will provide the most assistance to the Departments in developing these changes will reference a specific portion of the rule; explain the reason for any E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules recommended change; and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to departmental officials, will not be considered comments on the proposed rule and may not receive a response from the Departments. Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS–2021–0012 for this rulemaking. All submissions will be posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to the Departments. The Departments may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at https:// www.regulations.gov. Docket: For access to the docket and to read background documents or comments received, go to https:// www.regulations.gov, referencing DHS Docket No. USCIS–2021–0012. You also may sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published. II. Background There is wide agreement that the system for dealing with asylum and related protection claims at the southwest border has long been ‘‘overwhelmed’’ and in desperate need of repair.1 As the number of such claims khammond on DSKJM1Z7X2PROD with PROPOSALS2 1 See DHS, Homeland Security Advisory Council, Final Emergency Interim Report: CBP Families and Children Care Panel, at 1 (Apr. 16, 2019), https:// www.dhs.gov/sites/default/files/publications/19_ 0416_hsac-emergency-interim-report.pdf; Randy Capps et al., From Control to Crisis: Changing Trends and Policies Reshaping U.S.-Mexico Border Enforcement 7, Migration Policy Institute (MPI) (Aug. 2019), https://www.migrationpolicy.org/sites/ default/files/publications/BorderSecurityControltoCrisis-Report-Final.pdf (‘‘as arrivals have surged to levels unseen in years, border enforcement and asylum systems have been overwhelmed’’); Lora Ries, Securing the Border and Fixing Our Broken Immigration System, Heritage Foundation (Sept. 21, 2020), https:// www.heritage.org/immigration/commentary/ securing-the-border-and-fixing-our-brokenimmigration-system (‘‘our immigration court system is so overwhelmed, [asylum] cases of merit are combined with meritless cases, each of which can take years to resolve’’); Greg Chen & Peter VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 has skyrocketed over the years, the system has proven unable to keep pace, resulting in large backlogs and lengthy adjudication delays. A system that takes years to reach a result is simply not a functional one. It delays justice and certainty for those who need protection, and it encourages abuse by those who will not qualify for protection and smugglers who exploit the delay for profit. The aim of this rule is to begin replacing the current system, within the confines of the law, with a better and more efficient one that will adjudicate protection claims fairly and expeditiously. The proposed rule would accomplish this goal by transferring the initial responsibility for adjudicating asylum and related protection claims 2 made by noncitizens encountered at or near the border from IJs in EOIR to asylum officers in USCIS. The proposed rule would also provide for the prompt filing of asylum applications by such individuals, while also providing ample procedural safeguards designed to ensure due process, respect human dignity, and promote equity. The current U.S. protection system at the border was initially designed in the mid-1990s.3 Congress established an expedited removal process for noncitizens who present themselves at a port of entry for inspection or are encountered at or near the border and who are found to be inadmissible because they lack valid entry documents or because they sought to enter the United States by fraud or misrepresentation. INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); INA 212(a)(6)(C), (7), 8 U.S.C. 1182(a)(6)(C), (7). Congress authorized DHS to extend the expedited removal process to certain noncitizens apprehended shortly after crossing the border unlawfully, and DHS has exercised that authority. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).4 Markowitz, Recommendations for DOJ and EOIR Leadership To Systematically Remove Non-Priority Cases from the Immigration Court Backlog 1, Am. Immigr. Law. Ass’n (Feb. 11, 2021), https:// www.aila.org/infonet/remove-non-priority-cases (‘‘The bottleneck for the entire removal system caused by the court backlog, if not addressed quickly, presents a serious obstacle to the Biden administration’s goal of ensuring the fair and efficient processing of all removal cases.’’). 2 The generic term ‘‘protection claims’’ is used here to refer to all three forms of protection addressed in this proposed rule (asylum, statutory withholding of removal, and protection from removal under the regulations implementing U.S. obligations under Article 3 of the CAT). 3 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104–208, div. C, 110 Stat. 3009, 3009–546 (1996) (‘‘IIRIRA’’). 4 The former Immigration and Naturalization Service (‘‘INS’’) initially implemented expedited removal only against noncitizens arriving at ports of entry. In 2002, DHS expanded the application of PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 46907 A DHS immigration officer who encounters a noncitizen subject to expedited removal may order the noncitizen to be ‘‘removed from the United States without further hearing or review’’ unless the noncitizen indicates either ‘‘an intention to apply for asylum’’ or ‘‘a fear of persecution.’’ INA 235 (b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If the noncitizen indicates such an intention or fear, the immigration officer must refer the noncitizen for an interview by an asylum officer to determine whether the noncitizen has a ‘‘credible fear of persecution.’’ INA 235(b)(1)(A)(ii), (B)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (B)(ii). A credible fear is defined by statute as a ‘‘significant possibility’’ that the noncitizen could establish eligibility for asylum. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Before various regulatory changes published between 2018 and 2020, explained in greater detail below, the ‘‘significant possibility’’ standard also was applied to screening for eligibility for statutory withholding of removal and CAT protection.5 Because those recent regulatory changes have been vacated or enjoined, the ‘‘significant possibility’’ standard presently applies to all three forms of protection claims.6 If the asylum officer determines that the noncitizen lacks a credible fear, that determination is subject to expedited review by an IJ, but not by the BIA or an Article III court. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); see INA expedited removal to noncitizens who (1) entered the United States by sea, either by boat or other means, (2) were not admitted or paroled into the United States, and (3) have not been continuously present in the United States for at least 2 years. Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (Nov. 13, 2002). In 2004, DHS published an immediately effective notice in the Federal Register to expand the application of expedited removal to noncitizens encountered within 100 miles of the border and to noncitizens who entered the United States without inspection fewer than 14 days before they were encountered. Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004). In 2019, DHS expanded the process to the full extent authorized by statute to reach noncitizens who entered the country without inspection less than 2 years before being apprehended and who were encountered anywhere in the United States. Designating Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). President Biden has directed DHS to consider whether to modify, revoke, or rescind that 2019 expansion. E.O. 14010, Ensuring a Timely and Fair Expedited Removal Process, 86 FR 8267, 8270–71 (Feb. 2, 2021). 5 See generally Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100– 20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). 6 See infra note 24. E:\FR\FM\20AUP2.SGM 20AUP2 46908 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 242(a)(2)(A)(iii), (e)(2), 8 U.S.C. 1252(a)(2)(A)(iii), (e)(2). Noncitizens placed into expedited removal and determined to have a credible fear of persecution or torture by an asylum officer or an IJ must be referred for ‘‘further consideration of the application for asylum.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The INA is silent as to the procedures by which this ‘‘further consideration’’ should occur. Under regulations in place before December 2020,7 such individuals are currently referred to IJs for removal proceedings under section 240 of the INA, 8 U.S.C. 1229a, (‘‘section 240 removal proceedings’’) and its implementing regulations, 8 CFR 208.30(f), 235.6(a)(1)(ii)–(iii), 1208.30(g)(2)(iv)(B). In those proceedings, IJs conduct adversarial hearings to determine removability and adjudicate applications for asylum, withholding or deferral of removal, and any other forms of relief or protection. The process put into place in 1997, under which noncitizens who establish credible fear generally must have their asylum claims decided through an adversarial removal proceeding before an IJ, is no longer fit for its intended purpose. It does not adequately address the need to adjudicate in a timely manner the rapidly increasing number of asylum claims raised by individuals arriving in the United States. This system was designed at a time when the vast majority of southwest border encounters involved single adults from Mexico and relatively few asylum claims were filed. This system has proven unable to manage the increasing numbers and changing demographics of noncitizens 8 with asylum claims arriving in recent years at the southwest border. Since the mid2010s, the demographic characteristics of noncitizens encountered at the border with Mexico have been utterly transformed from being dominated by Mexican nationals to consisting mainly of nationals from the Northern Triangle countries of Central America (El Salvador, Guatemala, and Honduras) along with other Western Hemisphere states; from consisting almost entirely of 7 See infra note 24 discussing recent regulations and their current status. The final rule entitled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274, 80276 (Dec. 11, 2020) (‘‘Global Asylum’’ rule), revised the process used to hear the asylum claim, placing noncitizens into asylum/withholding-only proceedings instead of removal proceedings under section 240 of the INA. 8 For purposes of this discussion, the Departments use the term ‘‘noncitizen’’ synonymously with the term ‘‘alien’’ in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)(3). VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 adults traveling without children to including large numbers of families and unaccompanied children; and from including very few asylum seekers to asylum seekers making up a large share of southwest border encounters.9 As a result, even as overall encounters at the southwest border have been lower in recent years than in the 1990s and 2000s, the demands on the U.S. asylum system have increased sharply. Recent demographic changes in southwest border encounters have been dramatic. As recently as 2009, Mexican nationals accounted for 92 percent of southwest border apprehensions.10 Their share fell below 50 percent for the first time ever in 2014, remained below 50 percent between 2016 and 2019, and fell to an all-time low of 20 percent in 2019, the last full year before the COVID–19 pandemic disrupted ongoing migration trends.11 Single adults accounted for about 89 percent of southwest border encounters in 2013— a number that was likely near an alltime low at the time—and fell to just 38 percent in 2019.12 Over much of this period, U.S. Border Patrol (‘‘USBP’’) agents have apprehended an increasing number of families and children from Northern Triangle countries. Individuals from Northern Triangle countries accounted for 71 percent of USBP apprehensions in 2019, a record high, and families from all countries accounted for 56 percent of the total, also an all-time high.13 9 Office of Immigration Statistics, Fiscal Year 2020 Enforcement Lifecycle Report 1, Dep’t of Homeland Security (Dec. 2020) (‘‘OIS FY 2020 Lifecycle Report’’), https://www.dhs.gov/sites/ default/files/publications/immigration-statistics/ Special_Reports/Enforcement_Lifecycle/2020_ enforcement_lifecycle_report.pdf. 10 Dep’t of Homeland Security, Fiscal Year 2019 Border Security Metrics Report 52 (Aug. 5, 2020), https://www.dhs.gov/sites/default/files/ publications/immigration-statistics/BSMR/ndaa_ border_security_metrics_report_fy_2019_0.pdf.pdf. 11 U.S. Customs and Border Protection, Southwest Land Border Encounters, https://www.cbp.gov/ newsroom/stats/southwest-land-border-encounters (last visited Aug. 4, 2021); see also OIS FY 2020 Lifecycle Report, supra note 9, at 7. Mexico’s share of southwest border encounters returned to 65 percent during the first year of the COVID–19 pandemic, but preliminary data indicate that Mexican nationals accounted for fewer than half of southwest border encounters during the first eight months of Fiscal Year 2021 and only about onethird of unique individuals when controlling for higher than usual repeat encounters due to border COVID–19 protocols. 12 Id. The phenomenon of families being encountered at the border was sufficiently rare that U.S. Border Patrol only began recording data on family unit apprehensions in 2013, and the Office of Field Operations did so beginning in 2016. 13 Mike Guo, Immigration Enforcement Actions: 2019 at 4, Dep’t of Homeland Security (Sept. 2020), https://www.dhs.gov/sites/default/files/ publications/immigration-statistics/yearbook/2019/ enforcement_actions_2019.pdf. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 These demographic changes have coincided with—and contributed to the reversal of—what had been a long-term trend in declining border encounters. Moreover, as the population of individuals encountered at or near the southwest border has changed, the number of people making fear claims after being placed in expedited removal has increased sharply. Southwest border apprehensions by the U.S. Border Patrol fell from over 1.6 million in 2000 to under 330,000 in 2011 before rising back to over 850,000 in 2019.14 During the same period, however, credible fear referrals to USCIS initially decreased from just over 10,000 in 2000, to just under 5000 in 2008, before increasing back over 11,000 in 2011, to over 105,000 in 2019.15 Thus, even as overall border encounters fell 48 percent between 2000 and 2019, the number of individuals making fear claims increased over 900 percent. These changing demographics have had an equally dramatic impact on the immigration courts responsible for determining removability. EOIR now faces a pending caseload of approximately 1.3 million cases,16 with approximately 610,000 pending asylum applications.17 While the corps of IJs has more than doubled since 2014, going from 249 at the end of FY 2014 to 539 as of April 2021,18 the number of pending cases has more than tripled in that same period, growing by nearly 500,000 cases since the end of Fiscal Year (‘‘FY’’) 2018.19 This surge in 14 United States Border Patrol, Southwest Border Sectors, Total Illegal Alien Apprehensions by Fiscal Year, https://www.cbp.gov/sites/default/files/ assets/documents/2020-Jan/ U.S.%20Border%20Patrol%20 Fiscal%20Year%20Southwest %20Border%20Sector%20 Apprehensions%20%28FY%201960%20%20FY%202019%29_0.pdf (last visited Aug. 4, 2021). 15 Bruno, Andorra, Immigration: U.S. Asylum Policy (CRS Report No. R45539), at 37 (Feb. 19, 2019) (data through 2018), https:// crsreports.congress.gov/product/pdf/R/R45539; see also U.S. Citizenship and Immigration Services, Credible Fear Workload Report Summary—FY2019 Total Caseload (2019 data), https://www.uscis.gov/ sites/default/files/document/data/Credible_Fear_ Stats_FY19.pdf (last visited Aug. 4, 2021). 16 EOIR, Executive Office for Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions (Apr. 19, 2021), https:// www.justice.gov/eoir/page/file/1242166/download. 17 EOIR, Executive Office for Immigration Review Adjudication Statistics: Total Asylum Applications (Apr. 19, 2021), https://www.justice.gov/eoir/page/ file/1106366/download. 18 EOIR, Executive Office for Immigration Review Adjudication Statistics: Immigration Judge (IJ) Hiring (Apr. 2021), https://www.justice.gov/eoir/ page/file/1242156/download. 19 EOIR, Executive Office for Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions (Apr. 19, 2021), https:// www.justice.gov/eoir/page/file/1242166/download. E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules pending and new cases, along with the temporary, partial closure of the immigration courts to in-person hearings in 2020 and 2021 because of the COVID–19 pandemic, has resulted in significantly increased adjudication times. While the median completion time for cases involving individuals who are detained through the 2nd quarter of FY 2021 was 43 days, for nondetained individuals in removal proceedings, including arriving asylum seekers initially screened into expedited removal who establish a credible fear of persecution, the recent average case completion time in immigration court has been 3.75 years.20 Most asylum seekers arriving at the southwest border in recent years must therefore often wait several years to have their claims adjudicated in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a. Absent changes to the current system, the continuing arrival of large numbers of noncitizens at the southwest border with protection claims is likely to lengthen adjudication times further. In 2020 and 2021, the situation at the southwest border was complicated further by the COVID–19 pandemic. Pursuant to sections 362 and 365 of the Public Health Service Act, Public Law 78–410, 58 Stat. 682 (1944), 42 U.S.C. 265 and 268 (‘‘Title 42’’), the Centers for Disease Control and Prevention (‘‘CDC’’) determined in March 2020 that it was necessary to prohibit the introduction of certain persons from Mexico and Canada to protect the public health by preventing the further introduction of the virus that causes COVID–19 into the United States.21 To mitigate the risks presented by COVID–19, the CDC Order requires returning all covered noncitizens as rapidly as possible—and with the least amount of time spent in congregate settings as is feasible—to the country from which they entered the United States, to their country of origin, or to another location as practicable and appropriate.22 Covered noncitizens are those persons traveling from Canada or Mexico (regardless of their country of origin) who otherwise would be introduced into a congregate setting in khammond on DSKJM1Z7X2PROD with PROPOSALS2 20 According to a review of data collected as part of the FY 2020 Lifecycle Report by DHS OIS, 39% of cases of noncitizens encountered at the southwest border in 2013 through 2019 who made fear claims remain in EOIR proceedings as of this date. As those cases are eventually completed, the median and average completion time for cases could be further impacted. 21 See Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 85 FR 65806, 65807 (Oct. 16, 2020) (‘‘CDC Order’’ or ‘‘Title 42 order’’) (extending March 20, 2020 order, 85 FR 16559). 22 Id. at 65812. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 a land (and, as amended, coastal) port of entry or USBP station at or near the U.S. borders with Canada and Mexico. The CDC Order does not apply to, among others, U.S. citizens, lawful permanent residents, and those who arrive at a port of entry with valid travel documents.23 Border encounters in FY 2021 remain high. To date, the data does suggest that single adults make up a greater percentage of apprehensions than in FY 2019 and, controlling for repeat encounters, the actual number of unique encounters (the number of unique individuals encountered irrespective of potential repeated attempts to enter) has been lower to date in FY 2021 than in FY 2019 (given the continuing use of Title 42 authority to expel many adults and families soon after they are apprehended). But total encounters at or near the southwest border through April for FY 2021 has surpassed the FY 2019 highs over the same period. The high number of southwest border apprehensions is presenting serious challenges for an already overwhelmed U.S. asylum system at the border. A. Improving the Expedited Removal Process The principal purpose of this proposed rule is to simultaneously increase both the efficiency and the procedural fairness of the expedited removal process for individuals who have been found to have a credible fear of persecution or torture. When individuals who have been placed into the expedited removal process make a fear claim, they are referred to a USCIS asylum officer, who interviews them to determine whether they have a credible fear of persecution or torture. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). Under current procedures, individuals who receive a positive credible fear determination are referred to an immigration court for removal proceedings, in the course of which they have the opportunity to apply for asylum and other forms of relief or protection from removal. See 8 CFR 208.30(f) (2018) (providing that if a noncitizen, other than a stowaway, ‘‘is found to have a credible fear of persecution or torture, the asylum officer will so inform the [noncitizen] and issue a Form I–862, Notice to Appear, for full consideration of the asylum and withholding of removal claim in proceedings under section 240 of the Act’’). As explained above, it may take years before the individual’s protection claim is first adjudicated by an IJ. The ability to stay in the United 23 Id. PO 00000 States for years waiting for an initial decision may motivate unauthorized border crossings by individuals who otherwise would not have sought to enter the United States and who lack a meritorious protection claim. This delay creates additional stress for those ultimately determined to merit asylum and other forms of humanitarian protection, as they are left in limbo as to whether they might still be removed and unable to petition for qualified family members, some of whom may still be at risk of harm. To respond to this problem, this rule proposes at 8 CFR 208.2(a)(1)(ii) and 208.9 to provide USCIS asylum officers the authority to adjudicate in the first instance the protection claims of individuals who receive a positive credible fear determination, and that they do so in a nonadversarial hearing. The rule also proposes at 8 CFR 208.3(a)(2) that the record of a credible fear interview may serve as an asylum application for those noncitizens whose cases are retained by or referred to USCIS for adjudication after a positive credible fear determination, thereby helping to ensure that asylum seekers meet the statutory requirement to apply for asylum within one year of arrival. These steps are meant to ensure greater efficiency in the system, which was initially designed for protection claims to be the exception, not the rule, among those encountered at or near the border. The proposed rule will also stem the rapid growth of the EOIR caseload, described in greater detail above. As noted earlier, the current system for processing protection claims made by individuals encountered at or near the border and who establish credible fear was originally adopted in 1997. Within the last 3 years, however, several attempts have been made to issue new rules to change the credible fear screening process. Many of these attempts have been vacated or enjoined, and the implementation of others has been delayed pending consideration of whether they should be revised or rescinded.24 24 On November 9, 2018, the Departments issued an interim final rule (‘‘IFR’’) that barred noncitizens who entered the United States in contravention of a covered Presidential proclamation or order from eligibility for asylum, required that they receive a negative credible fear finding on their asylum claims, and required that their statutory withholding and CAT claims be considered under the higher reasonable fear screening standard. See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934, 55939, 55943 (Nov. 9, 2018). A month later, the U.S. District Court for the Northern District of California preliminarily enjoined the Departments from implementing the rule, E. Bay Sanctuary Covenant v. Trump, 354 F. at 65808. Frm 00005 46909 Continued Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 46910 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 This proposed rule offers another approach. It would establish a streamlined and simplified adjudication process for individuals encountered at or near the border, placed into expedited removal, and determined to have a credible fear of persecution or torture, with the aim of deciding protection claims in a more timely fashion while ensuring procedural protections against erroneous denials of relief.25 The proposed rule would Supp. 3d 1094, 1121 (N.D. Cal. 2018), and the Ninth Circuit affirmed, E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021). On July 16, 2019, the Departments published another IFR, entitled Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July 16, 2019), which generally barred noncitizens from asylum eligibility if they entered or attempted to enter the United States across the southwest border after failing to apply for protection from persecution or torture while in any one of the third countries through which they transited, required a negative credible fear finding for such noncitizens’ asylum claims, and required their withholding and CAT claims be considered under the higher reasonable fear screening standard. Id. at 33837–38. The U.S. District Court for the District of Columbia vacated that IFR after concluding that the Departments violated the Administrative Procedure Act by forgoing notice-and-comment rulemaking. Capital Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25, 45–57 (D.D.C. 2020). The Departments issued a final rule on December 17, 2020, entitled Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 2020), which again attempted to bar from asylum eligibility those noncitizens who transited a third country before arriving at the border. The U.S. District Court for the Northern District of California subsequently issued a preliminary injunction against implementation of that rule, which remains in place as of this writing. E. Bay Sanctuary Covenant v. Barr, No. 19–cv– 04073–JST, 2021 WL 607869, at *5 (N.D. Cal. Feb. 16, 2021). Around the same time, the Departments also issued the final rule entitled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274 (Dec. 11, 2020) (‘‘Global Asylum’’ rule). That rule revised the credible fear screening process to require that all the mandatory bars to asylum and withholding be considered during the credible fear screening process and established a new screening standard for withholding of removal and CAT protection. On January 8, 2021, the U.S. District Court for the Northern District of California preliminarily enjoined the Departments from implementing the rule. Pangea Legal Servs. v. DHS, No. 20–cv–09253 JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 2021). That preliminary injunction remains in place. Finally, the Departments also published a final rule entitled Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020) (‘‘Security Bars’’ rule), which added an additional bar to asylum and withholding that would be applied to the credible fear screening process. The Departments have delayed the rule’s effective date to December 31, 2021, see Security Bars and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021), as the Departments consider possible action to rescind or revise the rule. 25 Section 4(b)(i) of E.O. 14010 instructed the Secretary of Homeland Security to review the procedures for individuals placed into expedited removal at or near the border and issue a report with recommendations ‘‘for creating a more efficient and orderly process that facilitates timely adjudications [of asylum/protection claims] and adherence to standards of fairness and due process.’’ 86 FR at 8270. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 authorize USCIS asylum officers to adjudicate in the first instance the protection claims of individuals who receive positive credible fear determinations under the expedited removal framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). The procedures that USCIS asylum officers would use to adjudicate these claims would be nonadversarial, and the decisions would be made within timeframes more in line with those established by Congress in section 208(d)(5) of the INA.26 To ensure effective implementation of the expedited removal system, this rule also proposes to revise the parole considerations prior to a positive credible fear determination in 8 CFR 235.3. The current rule limits parole consideration before the credible fear determination to situations in which parole ‘‘is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.’’ 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). Under this proposed rule, DHS also would be able to consider whether parole is required ‘‘because detention is unavailable or impracticable.’’ The current narrower parole standards effectively prevent DHS from placing into expedited removal many noncitizens who would otherwise be eligible for this process, especially families, given the requirements of the Flores Settlement Agreement (‘‘FSA’’).27 These restrictions 26 See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (specifying that an initial hearing on an asylum application should generally occur within 45 days after the filing of the application and that an initial administrative decision should generally be made within 180 days). 27 In 1985, a class-action suit challenged the policies of the former INS relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. See Reno v. Flores, 507 U.S. 292, 315 (1993). In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement. See Flores v. Rosen, 984 F.3d 720, 727 (9th Cir. 2020) (describing litigation history). The FSA was to terminate 5 years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until 45 days after publication of regulations implementing the agreement. Id. In August 2019, DHS and HHS jointly issued a final rule entitled Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 FR 44392 (Aug. 23, 2019). In September 2019, about a month before the Final Rule was to take effect, a Federal district court granted the plaintiff class’s motion to enforce the FSA and denied the government’s motion to terminate it, because the final rule was inconsistent with the FSA and thus did not ‘‘implement[ ]’’ it as required by the FSA’s termination provisions. See Flores v. Barr, 407 F. Supp. 3d 909, 914 (C.D. Cal. 2019). The Ninth Circuit affirmed in part, and the provisions of the FSA that are relevant here thus generally remain in effect. See Flores v. Rosen, 984 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 on DHS’s ability to detain families, coupled with capacity constraints imposed by the COVID–19 pandemic, have effectively prevented the Government from using the third option to detain families subject to expedited removal for more than a very limited number of families and for more than a very limited period of time. This proposed rule would, when finalized, eliminate that barrier to placing families into expedited removal. The proposed parole provision would allow more noncitizens arriving at the U.S. border without proper documents for entry into the country to be placed into expedited removal and allow for them to have their fear claims heard and considered outside the detention setting when space is unavailable or impracticable to use. This proposed rule would apply prospectively and only to adults and families who are placed into expedited removal.28 The proposed rule would not apply to unaccompanied children, see 6 U.S.C. 279(g)(2) (defining ‘‘unaccompanied alien child’’), as they are statutorily exempt from expedited removal proceedings. 8 U.S.C. 1232(a)(5)(D)(i) (providing that ‘‘any unaccompanied alien child’’ ‘‘shall be— (i) placed in removal proceedings under section 240’’ of the INA).29 The F.3d at 737, 744. Under the requirements of the FSA, when DHS apprehends an alien parent or legal guardian with their child(ren) either illegally entering the United States between the ports of entry or found inadmissible at a port of entry, it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Parole all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer them to HHS to be treated as an unaccompanied child; or (3) detain family members together by placing them at an appropriate DHS Family Residential Center (‘‘FRC’’) during their immigration proceedings. See, e.g., id. at 737–38 (discussing ‘‘transfer of unaccompanied minors from DHS to HHS,’’ ‘‘DHS custodial care immediately following apprehension,’’ and parole). 28 According to EOIR data, as of April 2021, over 220,000 of EOIR’s pending removal cases originated with a credible fear claim. EOIR, Executive Office for Immigration Review Adjudication Statistics: Pending I–862 Proceedings Originating With a Credible Fear Claim and All Pending I–862s (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/ 1112996/download. These cases are in various stages of the removal process, and hearings may have already been scheduled or held. Moving these cases to a new process at this stage would risk further delaying adjudication of their protection claims and create an immediate backlog of tens of thousands of cases for USCIS as it prepares to implement this proposed process for future border arrivals. 29 The statute provides that any unaccompanied child whom DHS seeks to remove shall be placed in removal proceedings under section 240 of the INA. In lieu of being placed in removal proceedings, unaccompanied children from contiguous countries who meet special criteria may be permitted to withdraw their applications for E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules proposed rule also would not apply to individuals already residing in the United States who are not designated by the Secretary as subject to expedited removal.30 Such individuals would continue to have their asylum claims heard in removal proceedings under section 240 of the INA, or through an affirmative asylum application under section 208 of the INA if they have not yet been placed into removal proceedings. The proposed rule also would not apply to (1) stowaways or (2) noncitizens who are present in or arriving in the Commonwealth of the Northern Mariana Islands who are determined to have a credible fear. Such individuals would continue to be referred to asylum/withholding-only proceedings before an IJ under 8 CFR 208.2(c). Finally, the Departments clarify that nothing in this proposed rule, if finalized, is intended to displace DHS’s (and, in particular, USCIS’s) prosecutorial discretion to place a covered noncitizen in, or to withdraw a covered noncitizen from, expedited removal proceedings and issue a Notice to Appear (‘‘NTA’’) to place the noncitizen in section 240 removal proceedings at any time after they are referred to USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011). The credible fear screening regulations proposed under this rule generally would recodify the current screening process, returning the regulatory language, in large part, to what was in place prior to the various regulatory changes made from the end of 2018 through the end of 2020. Noncitizens encountered at or near the border or ports of entry can be placed into expedited removal and provided a credible fear screening if they indicate an intention to apply for asylum, a fear of persecution or torture, or a fear of return to their home countries. See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR 235.3(b)(4), 1235.3(b)(4)(i). Individuals claiming a fear or an intention to apply for protection are referred to USCIS asylum officers for an interview and consideration of their fear claims under the credible fear screening standard, which applies to all relevant protection claims. If an asylum officer determines that an individual does not have a admission and be voluntarily returned to their country of nationality or country of last habitual residence. Actual removal proceedings for unaccompanied children, whether from contiguous countries or not, however, must be under section 240 of the INA. 30 See supra note 4. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 credible fear of persecution or torture, the individual can request that an IJ review the asylum officer’s negative credible fear determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). If the IJ concurs with the asylum officer’s negative credible fear determination, no administrative appeal is available, 8 CFR 1208.30(g)(2)(iv)(A), and DHS can execute the individual’s expedited removal order, promptly removing the individual from the United States. If the noncitizen is found to have a credible fear, however, the proposed rule would change the procedures in place prior to this rulemaking that are described above. Under this proposed rule, rather than referring the individual to an IJ for an adversarial removal proceeding under section 240 of the INA, or, as provided for in a presentlyenjoined regulation, an asylum/ withholding-only hearing, the individual’s asylum application instead could be retained by USCIS for a nonadversarial hearing before an asylum officer. See 8 CFR 208.30(f) (proposed). Similarly, if, upon review of an asylum officer’s negative credible fear determination, an IJ finds that an individual does have a credible fear of persecution or torture, the individual also could be referred back to an asylum officer for proceedings on the individual’s protection claims. Id. §§ 1003.42, 1208.30(g). The Departments plan to implement these procedures by having asylum hearings conducted for those individuals who are referred to or retained by USCIS after the positive credible fear determination would be adjudicated in a separate queue, apart from adjudications made with respect to affirmative asylum applications filed directly with USCIS. The individual would have the right to representation during this proceeding. Id. § 208.9(b). If, at the conclusion of an asylum hearing described in this proposed rule, the asylum officer grants asylum, the individual would be allowed to remain in the United States indefinitely with the status of ‘‘asylee’’ and eventually may apply for lawful permanent residence. Id.; see also INA 208(c)(1), 209(b), 8 U.S.C. 1158(c)(1), 1159(b). If the asylum officer denies asylum and orders the individual removed based on the immigration officer’s initial inadmissibility determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 1225(b)(1)(A)(i), the asylum officer will also issue a decision regarding withholding or deferral of removal. 8 CFR 208.14(c)(5) (proposed). An individual who is denied asylum PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 46911 may request review by an IJ of the asylum decision, as well as any denial of withholding or deferral of removal. Id. §§ 208.14(c)(5)(i), 1003.48(a). In cases in which a noncitizen seeks review of an asylum officer’s adverse decision, the Departments propose that the IJ would make an independent de novo determination based on the record of the hearing before the Asylum Office plus any additional, non-duplicative evidence presented to the court that is necessary to reach a reasoned decision. Id. § 1003.48(e) (proposed). The individual would also have the right, consistent with the INA, to representation during this review. See 8 CFR 1003.12 (proposed) (providing that the rules in this subpart apply to the proposed proceedings under 8 CFR 1003.48); 8 CFR 1003.16(b) (providing that a noncitizen ‘‘may be represented in proceedings before an Immigration Judge by an attorney or other representative’’). The IJ also would be authorized to vacate proceedings when the judge finds the individual is prima facie eligible for other forms of relief from removal, so that DHS, in the exercise of DHS’s discretion, could place the noncitizen into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR 1003.48(d) (proposed). Finally, the rule proposes that both parties would be able to appeal the IJ’s decision to the BIA under procedures similar to those used in section 240 removal proceedings and asylum/ withholding-only proceedings under 8 CFR 208.2(c), 1208.2(c). See 8 CFR 1003.1(b)(15) (proposed). In addition, the individual would be able to petition for review of the BIA decision with the Federal courts. See infra note 59. B. DOJ and DHS Authority To Propose This Rule The Attorney General and the Secretary jointly propose this rule pursuant to their respective authorities concerning asylum determinations. The Homeland Security Act of 2002 (‘‘HSA’’), Public Law 107–296, 116 Stat. 2135, as amended, created DHS and transferred to it many functions related to the execution of Federal immigration law. The HSA charged the Secretary ‘‘with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,’’ INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the power to take all actions ‘‘necessary for carrying out’’ the Secretary’s authority under the immigration laws, INA 103(a)(3), 8 U.S.C. 1103(a)(3). The Secretary’s authority also includes the authority to E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 46912 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules publish regulatory amendments governing the apprehension, inspection and admission, detention and removal, withholding of removal, and release of noncitizens encountered in the interior of the United States or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231. The HSA thus transferred to DHS authority to adjudicate asylum applications, as well as the authority to conduct credible fear interviews and make credible fear determinations in the context of expedited removal. INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also HSA 451(b), 6 U.S.C. 271(b) (providing for the transfer of adjudication of asylum and refugee applications from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration Services, now USCIS). By operation of the HSA, the reference to ‘‘Attorney General’’ in the INA is understood also to encompass the Secretary in matters with respect to immigration proceedings before DHS. That authority has been delegated within DHS to the Director of USCIS. See 8 CFR 208.2(a), 208.30. In addition, under the HSA, the Attorney General retained authority over individual immigration adjudications (including section 240 removal proceedings and certain adjudications related to asylum applications) conducted within EOIR. See HSA 1101(a), 6 U.S.C. 521(a); INA 103(g), 8 U.S.C. 1103(g). IJs within DOJ continue to adjudicate all asylum applications filed by noncitizens during the pendency of removal proceedings, and they also review asylum applications referred by USCIS to the immigration court. See INA 101(b)(4), 240(a)(1), 8 U.S.C. 1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b), 1240.1(a). Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), provides that if a noncitizen in expedited removal proceedings is determined to have a credible fear of persecution by an asylum officer, the noncitizen is entitled to ‘‘further consideration of the application for asylum.’’ This proposed rule addresses how that further consideration will occur. Section 208(d)(1) of the INA, 8 U.S.C. 1158(d)(1), provides the Attorney General with the authority to establish procedures for the consideration of asylum applications, including those filed in accordance with section 235(b) of the INA, 8 U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a). Section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), authorizes the Secretary to establish rules and regulations governing parole. Section VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), vests in the Secretary the discretionary authority to grant parole to applicants for admission on a case-bycase basis. C. The Current Asylum and Expedited Removal Process 1. Asylum The Refugee Act of 1980, Public Law 96–212, 94 Stat. 102, was the first comprehensive legislation to establish the modern refugee and asylum system in the United States. Asylum is a discretionary benefit that can be granted by the Attorney General or the Secretary if a noncitizen establishes, among other things, that they have experienced past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General ‘‘may’’ grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining ‘‘refugee’’). As long as they retain their asylee status, noncitizens who are granted asylum (1) cannot be removed or returned to their country of nationality or last habitual residence, (2) receive employment authorization incident to their status, and (3) may be permitted to apply for readmission after travel outside of the United States with prior consent from the Secretary. INA 208(c)(1), 8 U.S.C. 1158(c)(1); see Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2286 (2021) (‘‘[A] grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year[.]’’ (internal quotation marks and citation omitted) (emphases omitted)); 8 CFR 274a.12(a)(5) (employment authorization incident to asylum status); id. § 223.1(b) (readmission after travel for a ‘‘person who holds . . . asylum status pursuant to section 208 of the Act’’). Asylum applications are presently classified based on the agency with jurisdiction over the noncitizen’s case. If a noncitizen is physically present in the United States, not detained, and not in removal proceedings, the noncitizen may file an asylum application with USCIS. These applications are known as ‘‘affirmative’’ filings. If the noncitizen is in removal proceedings before an IJ, the noncitizen instead may file an application for asylum with the IJ as a defense to removal. Such ‘‘defensive’’ filings are currently the only route by which noncitizens referred to an IJ by a USCIS asylum officer after receiving a positive credible fear determination can PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 obtain an adjudication of the merits of their asylum claims. Noncitizens who are ineligible for a grant of asylum, or who are denied asylum based on the Attorney General’s or the Secretary’s discretion, nonetheless may qualify for other forms of protection. An application for asylum submitted by a noncitizen in removal proceedings is also considered 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 1208.3(b), 1208.13(c)(1). An IJ also may consider a noncitizen’s eligibility for withholding and deferral of removal under regulations issued pursuant to the implementing legislation regarding U.S. obligations under Article 3 of the CAT. Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105–277, div. G, sec. 2242(b), 112 Stat. 2681–761, 2681–822 (codified at 8 U.S.C. 1231 note (1999)); 8 CFR 1208.3(b), 1208.13(c)(1); see also id. §§ 1208.16(c), 1208.17. Withholding and deferral of removal bar a noncitizen’s removal to any country where the noncitizen would ‘‘more likely than not’’ face persecution or torture, meaning that the noncitizen would face a clear probability that their life or freedom would be threatened because of a protected ground or a clear probability of torture. 8 CFR 1208.16(b)(2), (c)(2). Thus, if a noncitizen proves that it is more likely than not that the noncitizen’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 noncitizen nonetheless may be entitled to statutory withholding of removal if not otherwise barred from that form of protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 1208.16. Likewise, a noncitizen who establishes that he or she more likely than not will face torture in the country of removal will qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c), 1208.17(a). In contrast to the more generous benefits available through asylum, statutory withholding and CAT protection do not: (1) Prohibit the Government from removing the noncitizen to a third country where the noncitizen would not face the requisite likelihood of persecution or torture (even in the absence of an agreement with that third country); (2) create a path to lawful permanent resident status; or (3) afford the same ancillary benefits, such as derivative protection for family members. See, e.g., Guzman E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 Chavez, 141 S. Ct. at 2286 (‘‘distinguish[ing] withholding-only relief from asylum’’ on the ground that withholding does not preclude the Government from removing the noncitizen to a third country and does not provide the noncitizen any permanent right to remain in the United States); Matter of A–K–, 24 I&N Dec. 275, 279 (BIA 2007) (stating that ‘‘the Act does not permit derivative withholding of removal under any circumstances’’); INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory provision allowing asylum status to be granted to accompanying or following-to-join spouse or children of a noncitizen granted asylum; no equivalent statutory or regulatory provision for individuals granted withholding or deferral of removal). 2. Expedited Removal and Screenings in the Credible Fear Process In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (‘‘IIRIRA’’), Public Law 104–208, div. C, 110 Stat. 3009, 3009–546, Congress established the expedited removal process. The process is applicable to noncitizens arriving in the United States (and, in the discretion of the Secretary, certain other designated classes of noncitizens) who are found to be inadmissible under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), regarding documentation requirements for admission. Under expedited removal, such noncitizens may be ‘‘removed from the United States without further hearing or review unless the [noncitizen] indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.’’ INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). The former INS and, later, DHS implemented a screening process, known as the ‘‘credible fear’’ screening, to identify potentially valid claims for asylum, statutory withholding of removal, and CAT protection, or, more specifically, to prevent noncitizens placed in expedited removal from being removed to a country in which they would face persecution or torture. Currently, with regulatory changes made from 2018 through 2020 either vacated, enjoined, or delayed, any noncitizen who expresses a fear of persecution or torture, a fear of return, or an intention to apply for asylum during the course of the expedited removal process is referred to a USCIS asylum officer for an interview to determine whether the noncitizen has a VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 credible fear of persecution or torture in the country of return. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4), 1235.3(b)(4)(i). If the asylum officer determines that the noncitizen does not have a credible fear of persecution or torture, the noncitizen may request that an IJ review that determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). Under the regulatory framework prior to November 2018 and currently in effect,31 if the asylum officer determines that a noncitizen subject to expedited removal has a credible fear of persecution or torture, DHS refers the noncitizen to an immigration court for adjudication of the noncitizen’s claims by initiating section 240 removal proceedings through service of an NTA on the noncitizen and with the court. See 8 CFR 208.30(f), 235.6(a)(1)(ii), 1235.6(a)(1)(ii) (2018). Similarly, if an IJ, upon review of the asylum officer’s negative credible fear determination, finds that the noncitizen possesses a credible fear of persecution or torture, the IJ vacates the expedited removal order and DHS initiates section 240 removal proceedings. See id. 1208.30(g)(2)(iv)(B). If the noncitizen subsequently decides to file for asylum, the asylum application is filed with the court during the section 240 removal proceedings, is considered a ‘‘defensively filed’’ application, and is subject to the one-year filing deadline. See INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). There is no requirement that the noncitizen file an asylum application, however, once placed into section 240 removal proceedings. III. Discussion of the Proposed Rule As noted in the summary above, this proposed rule would make several changes to the adjudication process of protection claims presented by noncitizens in expedited removal who both make fear claims and are determined to have a credible fear of persecution or torture. A more detailed explanation of the proposed changes, the reasons for these changes, and their alignment with the relevant statutes, as well as a brief outline of certain other changes proposed by this rule, follows. A. Parole—Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) The expedited removal statute provides for detention throughout the expedited removal process, including 31 See supra note 24 (discussing the status of more recent regulatory changes). PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 46913 during the credible fear screening process and during the process for further consideration of the protection claims on their merits. The statute does not, however, limit DHS’s general parole authority under section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), and 8 CFR 212.5(b), and the Departments have not understood the language providing for detention in expedited removal to limit this parole authority. Instead, parole authority in the context of expedited removal has been specifically provided for in the relevant regulations covering expedited removal and the credible fear screening process since they were first implemented in 1997. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10356 (Mar. 6, 1997) (interim final rule). And the U.S. Supreme Court recently acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that DHS may exercise its authority to temporarily parole persons subject to expedited removal, while also acknowledging that the relevant statutory language in section 235(b)(1) and (b)(2) of the INA, 8 U.S.C. 1225(b)(1), (b)(2), ‘‘unequivocally mandate that aliens falling within their scope ‘shall’ be detained,’’ id. at 844. Since expedited removal’s implementation regulations were first promulgated, parole consideration has been limited to a narrow category of circumstances for individuals awaiting a credible fear determination—when necessary ‘‘to meet a medical emergency or . . . for a legitimate law enforcement objective.’’ See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (current). This proposed rule change would add to those grounds, allowing parole when ‘‘detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities).’’ 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (proposed). This change would allow DHS to prioritize use of its limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety, while avoiding unnecessary operational limitations on DHS’s authority to place noncitizens into expedited removal. Under the proposed rule, when detention space is unavailable or its use is otherwise impracticable, DHS would have the option of using parole rather than placing nearly all families arriving at the border directly into section 240 removal proceedings. The proposed rule also makes clear that a grant of parole only E:\FR\FM\20AUP2.SGM 20AUP2 46914 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules authorizes release from custody and cannot serve as an independent basis for employment authorization under 8 CFR 274a.12(c)(11).32 See 8 CFR 235.3(b)(4)(ii) (proposed). The Departments are seeking public comment on this change in the circumstances under which parole may be considered in the expedited removal context, as well as the use of (c)(11) employment authorization documents (‘‘EADs’’) for those in expedited removal who have been paroled from custody. khammond on DSKJM1Z7X2PROD with PROPOSALS2 B. Credible Fear Screening Process— Proposed 8 CFR 208.30 As noted earlier, there were several rules published by the Departments from the end of 2018 through the end of 2020 that attempted to change the credible fear screening process that had been in place for approximately 20 years, but these rules are not in effect.33 The Global Asylum rule, which, as explained above, has been enjoined, attempted to change the pre-2018 practice of not applying the mandatory bars to asylum and statutory withholding in the credible fear screening process, instead requiring a final determination on the applicability of a significantly expanded list of mandatory bars during credible fear screenings and mandating a negative credible fear finding should any of the bars be determined to apply to the noncitizen at that initial stage. 85 FR at 80278. In addition, the Global Asylum rule attempted to alter the longstanding practice for screening claims for statutory withholding of removal and CAT protection. Prior to the rule, the statutory standard for screening asylum claims (i.e., a ‘‘significant possibility’’ of establishing eligibility for asylum) was also used to screen withholding of removal and CAT claims. The Global 32 As noted elsewhere in this preamble, this proposed rule is not intended to rescind previously enjoined or vacated rules. Accordingly, the Departments are proposing that those in the credible fear process who have been paroled from custody would be ineligible for a (c)(11) employment authorization document (‘‘EAD’’), similar to what was implemented with the final rule entitled Asylum Application, Interview, and Employment Authorization for Applicants, 85 FR 38532, 38582 (June 26, 2020). A Federal district court preliminarily enjoined certain provisions of the rule but only as applied to the plaintiffs in that case, and the EAD-parole provision similar to the one proposed here was not challenged in that litigation. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020) (‘‘preliminarily enjoin[ing] Defendants from enforcing a subset of the rule changes as applied to the individual members of Plaintiffs Casa de Maryland, Inc. (‘CASA’) and Asylum Seeker Advocacy Project (‘ASAP’)’’). The Departments are seeking public comment on the use of (c)(11) EADs for those in expedited removal who have been paroled from custody. 33 See supra note 24. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 Asylum rule attempted to create a more complicated two-step, two-standard screening by requiring a higher screening standard for such claims (i.e., a ‘‘reasonable possibility’’ of persecution or torture). Id. The Security Bars rule, issued less than 2 weeks after the Global Asylum rule, further expanded the list of mandatory bars to asylum that would apply in the credible fear screening process, 85 FR at 84160, but its implementation has been delayed until the end of 2021, 86 FR at 15069. With this proposed rule, the Departments generally seek to return the credible fear screening process regulations to the simpler screening process that was in place for expedited removal’s first two decades of implementation. Given the injunctions, delays, and vacaturs referenced above, this rule proposes to recodify in the Code of Federal Regulations the standard of ‘‘significant possibility’’ that has remained in effect since the rule changing that standard has been enjoined. Pangea Legal Servs. v. DHS, No. 20–cv–09253, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 2021) (preliminarily enjoining the Global Asylum rule). The Departments believe that this change will make for a more efficient and effective credible fear screening process and is also necessary to make that screening process consistent with congressional intent. The 104th Congress chose a screening standard ‘‘intended to be a low screening standard for admission into the usual full asylum process.’’ 34 Originally, the Senate bill had proposed a ‘‘determination of whether the asylum claim was ‘manifestly unfounded,’ while the House bill applied a ‘significant possibility’ standard coupled with an inquiry into whether there was a substantial likelihood that the alien’s statements were true.’’ 35 In IIRIRA, Congress then ‘‘struck a compromise by rejecting the higher standard of credibility included in the House bill.’’ 36 This proposed regulation would now return the screening standard to the ‘‘low screening standard’’ intended by the compromise reflected in the text that Congress ultimately passed. Rather than creating a complicated screening process that requires full evidence gathering and determinations to be made on possible bars to eligibility, this proposed rule aims to return to allowing protection claims with a ‘‘significant possibility’’ of success to be fully heard and adjudicated, but in a process that more quickly reaches a final decision on the merits than the current process. To accomplish this, the proposed rule would replace all the references throughout 8 CFR 208.30 to a ‘‘credible fear of persecution, reasonable possibility of persecution, or a reasonable possibility of torture’’ with ‘‘credible fear,’’ acknowledging that the statutory ‘‘significant possibility’’ standard, INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), would be applied in considering all three types of protection claims—asylum, statutory withholding, and protection under the CAT.37 Consistent with that change, the proposed rule would revise 8 CFR 208.30 to return the definition of the ‘‘credible fear’’ standard to the ‘‘significant possibility’’ definition provided in the statute (paragraph (e)(2)), replace the ‘‘reasonable possibility’’ standard with the same ‘‘significant possibility’’ screening standard for statutory withholding of removal and CAT withholding or deferral of removal (paragraphs (e)(2) and (3)), return the language in the regulation to reflect the existing and two-decade long practice of not applying the mandatory bars to the credible fear screening determination (paragraph (e)(5)),38 maintain the 34 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement of Senate Judiciary Committee Chairman Orrin Hatch). 35 Id. The chairman of the conference committee assigned to reconcile the two bills, Rep. Henry Hyde, stated that ‘‘[t]he credible fear standard is redrafted in the conference document to address fully concerns that the ‘more probable than not’ language in the original House version was too restrictive.’’ 142 Cong. Rec. H11081 (daily ed. Sept. 25, 1996) (statement of House Judiciary Committee Chairman Henry Hyde). The exact language in section 302 of the House bill, H.R. 2202, 104th Cong. (1995), was as follows: ‘‘the term ‘credible fear of persecution’ means (I) that it is more probable than not that the statements made by the alien in support of the alien’s claim are true, and (II) that there is a significant possibility, in light of such statements and of such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.’’ The conference committee compromise stuck subsection (I) from the definition of credible fear. 36 142 Cong. Rec. S11491 (statement of Sen. Hatch). 37 These proposed changes would not alter reasonable fear of persecution or torture determinations involving noncitizens ordered removed under section 238(b) of the INA, 8 U.S.C. 1228(b), and noncitizens whose removal is reinstated under section 241(a)(5) of the INA, 8 U.S.C. 1251(a)(5), pursuant to 8 CFR 208.31. 38 This proposed rule does not, and is not intended to, rescind prior rulemakings, including Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act, 84 FR 63994 (Nov. 19, 2019); Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 2018); and Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 2020). To that end, the Departments have proposed to change 8 CFR 208.30 only to the extent necessary to implement the changes proposed in this rule and left the remaining provisions of the aforementioned rules to be PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 threshold screening under the safe third country agreement with Canada (paragraph (e)(6)), and continue to require supervisory review of all credible fear determinations before they can become final (paragraph (e)(8)). The Departments seek comment on these changes and also request comment on whether any additional changes to the provisions of the Global Asylum and Security Bar rules are necessary or appropriate to accomplish the objectives outlined in this section. As part of the proposed restructuring of the credible fear determination framework, the proposed rule would also remove the current language at 8 CFR 208.30(g)(2)(i) providing that DHS may reconsider a negative credible fear finding that has been reviewed and upheld by an IJ.39 Section 208.30(g)(1)(i) would be revised to provide that once the asylum officer has made a negative credible fear determination, the individual either requests IJ review or declines to request review and that declination is treated as a request for review and the individual is served with a Form I–863. At that point, under the proposed rule, the IJ has sole jurisdiction to review whether the individual has established a credible fear of persecution or torture, and an asylum officer may not reconsider or reopen the determination. These proposed changes reflect an intention to return to the statutory scheme of INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), under which it is the IJ review of the credible fear determination that serves as the check to ensure that individuals who have a credible fear are not returned based on an erroneous screening determination by USCIS. Section 208.30(g)(1)(i) is amended to provide that, when DHS inquires whether an individual wishes to have an IJ review a negative credible modified or rescinded by the Departments at a later date. See, e.g., OMB, Agenda Rule List—Spring 2021: Department of Homeland Security, https:// www.reginfo.gov/public/do/ eAgendaMain?operation=OPERATION_GET_ AGENCY_RULE_LIST&currentPub=true&agency Code=&showStage=active&agencyCd=1600. The Departments, however, do seek comment on whether the changes proposed in this rule would require any other rescissions or modifications of the provisions adopted in recent prior rulemakings. 39 The proposed versions of the Global Asylum rule and the Security Bars rule both dropped the regulatory provision previously in 8 CFR 1208.30(g)(2) that acknowledged USCIS’s ability to reconsider a negative credible fear finding that had already received IJ concurrence, but the Departments responded to comments received about this change by reinserting the provision into 8 CFR 208.30(g) in the final rules, stating that the provision had been omitted from the proposed rule inadvertently. 85 FR at 80275, 84181. This proposed rule again proposes this change but does so for the reasons provided herein. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 fear determination, DHS will inform the individual that the IJ review will include an opportunity for the individual to be heard and questioned by the IJ. See 8 CFR 208.30(g)(1) (proposed). This opportunity will allow such individuals to present any additional evidence or arguments they may wish to make to the IJ, who will consider them in making a de novo determination about whether the individual has a credible fear of persecution or torture. The clarification that the IJ has sole jurisdiction to review the individual’s negative credible fear determination and that asylum officers may not reconsider or reopen a determination that already has passed to the jurisdiction of the IJ is necessary to ensure that requests for reconsideration to USCIS do not obstruct the streamlined process that Congress intended in creating expedited removal. Further, this clarification ensures that the necessary efficiencies implemented in this proposed rule are not undermined. The expedited removal statute and its implementing regulations generally prohibit any further administrative review or appeal of an IJ’s decision made after review of a negative credible fear determination. See INA 235(b)(1)(B)(iii)(III), (C), 8 U.S.C. 1225(b)(1)(B)(iii)(III), (C); 8 CFR 1003.42(f)(2), 1208.30(g)(2)(iv)(A). Congress similarly has made clear its intent that expedited removal should remain a streamlined, efficient process by limiting judicial review of many determinations in expedited removal. See INA 242(a)(2)(A), (e), 8 U.S.C. 1252(a)(2)(A), (e). These provisions limiting administrative and judicial review and directing expeditious determinations reflect clear congressional intent that expedited removal be a truly expedited process. Removal of the current language at 8 CFR 208.30(g)(2)(i) allowing DHS to reconsider negative credible fear determinations after the IJ concurs is consistent with that congressional intent and with the purpose of the current regulation. In recent years, USCIS has received growing numbers of meritless reconsideration requests, which have strained agency resources and resulted in significant delays to the expedited removal process. The total time to review a reconsideration request varies widely, but if an office recommends a follow-up interview, then the complete review process could take more than 5 hours per request. The Departments believe that these resources could be far better spent, including in training and supervisory efforts, to ensure the high PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 46915 quality of USCIS initial screening determinations. In many cases, reconsideration requests that previously were considered are resubmitted numerous times without additional information, resulting in additional delays in removal processes that Congress explicitly intended to be conducted through streamlined, efficient procedures. These developments have highlighted the need to ensure that the IJ review process, rather than reconsideration by USCIS, serves as the safeguard against erroneous negative screening determinations by an asylum officer. These changes will ensure that DOJ and DHS implementation of the expedited removal provisions is consistent with statutory intent. The Departments believe these changes will help accomplish the purpose of the present rule to make the framework of the screening process, including the process following USCIS’s fear determination, more efficient and streamlined, while ensuring due process is accorded to all individuals in expedited removal. The Departments seek comments on these proposed changes, including on other options short of eliminating reconsideration entirely—such as imposing restrictions on, or modifications to, reconsideration requests made to USCIS—to address the problems outlined above, while also ensuring efficiency and the opportunity to have one’s protection claim properly screened. C. Applications for Asylum—Proposed 8 CFR 208.3(a) and 208.9(a) The expedited removal statute specifically provides for an exception to the mandate that a noncitizen be ‘‘removed from the United States without further hearing or review’’ when the noncitizen expresses an intention to apply for asylum, a fear of persecution or torture, or a fear of return to the country of removal. Such a person instead is referred to USCIS for a credible fear screening. INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If the noncitizen is found to have a credible fear of removal, the noncitizen’s claim is referred for ‘‘further consideration of the application for asylum.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This statutory language, however, does not specify the nature of such ‘‘further consideration.’’ Under current regulations, an individual who establishes a credible fear is placed into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. Under this process, the individual is not required to officially request asylum or file the Form I–589, E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 46916 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Application for Asylum and for Withholding of Removal (‘‘Form I– 589’’), until after being placed into removal proceedings. In many cases, the application may be filed many months after removal proceedings are initiated, thus potentially delaying adjudication. In many other cases, an application is never filed. EOIR has reported that, for individuals who were referred to USCIS for the credible fear screening process and then placed into proceedings before EOIR between FY 2008 and the third quarter of FY 2020, only 62 percent have filed an asylum application with EOIR as of July 2020.40 Under this proposed rule, an individual who passes the initial credible fear screening would have his claim reviewed by an asylum officer in USCIS in the first instance, rather than by an IJ in a removal hearing under section 240 of the INA. As part of this new procedure for ‘‘further consideration,’’ and to eliminate delays between a positive credible fear determination and the filing of an application for asylum, the Departments propose that the written record of the credible fear determination created by USCIS during the credible fear process, and subsequently served on the individual together with the service of the credible fear decision itself, would be treated as an ‘‘application for asylum,’’ with the date of service on the individual considered the date of filing. 8 CFR 208.3(a)(2) (proposed). Every individual who receives a positive credible fear determination would be considered to have filed an application for asylum at the time the determination is served on him or her. The application would be considered filed or received as of the service date for purposes of the 1-year filing deadline for asylum, see INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), and for starting the clock for eligibility to file for work authorization on the basis of a pending asylum application, 8 CFR 208.3(c)(3) (current). The Departments propose that this application for asylum would not be subject to the completeness requirement of 8 CFR 208.3(c) and 208.9(a) in order to qualify for hearing and adjudication, but it would be subject to the other conditions and consequences provided for in 8 CFR 208.3(c) once the noncitizen signs the documentation under penalty of perjury and with notice of the consequences of the filing 40 EOIR, Executive Office for Immigration Review Adjudication Statistics: Rates of Asylum Filings in Cases Originating with a Credible Fear Claim (July 2020), https://www.justice.gov/eoir/page/file/ 1062971/download. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 of a frivolous asylum application at the time of the asylum officer hearing.41 The Departments plan to implement these changes to the credible fear process by having the trained USCIS asylum officer conducting the credible fear interview advise the noncitizen of the consequences of filing a frivolous asylum application and capture the noncitizen’s relevant information through testimony provided under oath. During this process, the asylum officer would ‘‘elicit all relevant and useful information’’ for the credible fear determination, id. § 208.30(d), create a summary of the material facts presented by the noncitizen during the interview, read the summary back to the noncitizen, and allow the noncitizen to correct any errors, id. § 208.30(d)(6). The record created would contain the necessary biographical information and sufficient information related to the noncitizen’s fear claim to be considered an application. The information captured by the asylum officer during the credible fear interview will contain information about the noncitizen’s spouse and children, including those who were not part of the credible fear determination—but under this proposed rule only a spouse or children who were included in the credible fear determination issued pursuant to proposed 8 CFR 208.30(c) or have a pending asylum application with USCIS pursuant to § 208.2(a)(1)(ii) can be included on the request for asylum.42 See id. § 208.3(a)(2). A copy of 41 In addition, the Departments are proposing to amend 8 CFR 1208.3 and 1208.4 to account for changes made by this proposed rule, including the proposed provisions that would treat the credible fear interviews as an application for asylum in the circumstances addressed by the proposed rule. The amendment at 8 CFR 1208.3(c)(3) affects language that was enacted by DOJ in 2020. See Procedures for Asylum and Withholding of Removal, 85 FR 81698 (Dec. 16, 2020). The December 16, 2020 rulemaking made various changes to DOJ regulations, including 8 CFR 1208.3(c)(3). Id. Those changes remain enjoined. See National Immigrant Justice Center, et. al., v. Exec. Office for Immigration Review, et. al., No. 21–CV–00056 (D.D.C.). As noted above, the proposed rule would make changes to the regulations only as necessary to effectuate its goals. The Departments anticipate that additional changes to the relevant regulations, including rescission of or revision to the language added by the enjoined regulation, will be made through later rulemakings. 42 While only a spouse or dependent included on the credible fear determination or who presently has an asylum application pending with USCIS after a positive credible fear determination can be included on the subsequent asylum application under this proposed process, the noncitizen granted asylum remains eligible to apply for accompanying or follow-to-join benefits for any qualified spouse or child not included on the asylum application, as provided for in 8 CFR 208.21. The Departments believe that it is procedurally impractical to attempt to include a spouse or child on the application when the spouse or child has not previously been PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 this application for asylum, including the officer’s notes from the interview and basis for the determination, would be provided to the noncitizen at the time that the credible fear determination is served. See id. § 208.30(f), (g)(1). As proposed in this rule, the noncitizen would be allowed to supplement or request modifications or corrections to this application up until 7 days prior to the scheduled asylum hearing before a USCIS asylum officer, or for documents submitted by mail, postmarked no later than 10 days before the scheduled asylum hearing. Id. § 208.3(a)(2). The information required to be gathered during the credible fear screening process is based on the noncitizen’s own testimony under oath in response to questions from a trained USCIS asylum officer. Thus, the Departments believe that the screening would provide sufficient information upon which to conduct a full asylum interview. Under this proposed rule, all noncitizens who receive a positive credible fear determination would have an asylum application on file with the Government within days of their credible fear screenings, thereby meeting the one-year asylum filing deadline, avoiding the risk of filing delays, and immediately beginning the waiting period for work authorization eligibility. Understanding that noncitizens may want to modify, correct, or supplement the initial presentation of their protection claims, this proposed rule would allow the noncitizen to do so in advance of the hearing before the asylum officer. The Departments seek comments on all aspects of this proposed change. D. Proceedings for Further Consideration of the Application for Asylum by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for Noncitizens With Credible Fear— Proposed 8 CFR 208.2(a) and (c); 208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 235.6(a)(1); 1003.42; and 1208.30(g) As noted earlier in the preamble, under the current regulatory framework, if an asylum officer determines that a noncitizen subject to expedited removal has a credible fear of persecution or placed into expedited removal and subsequently referred to USCIS after a positive credible fear determination. This is similar to the inability to include a spouse or child not in removal proceedings under section 240 of the INA on the asylum application of a principal asylum application who is in such removal proceedings. Under such circumstances, there is no clear basis for issuing a final order of removal against such an individual spouse or child should the asylum application be denied. The Departments seek comments on this proposed approach. E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 torture, DHS places the noncitizen before an immigration court for adjudication of the noncitizen’s claims by initiating section 240 removal proceedings.43 Similarly, if an IJ, upon review of the asylum officer’s negative credible fear determination, finds that the noncitizen possesses a credible fear of persecution or torture, the IJ vacates the expedited removal order, and DHS initiates section 240 removal proceedings. 8 CFR 1208.30(g)(2)(iv)(B). Section 240 removal proceedings, which are used to determine removability as well as eligibility for any relief or protection from removal, currently provide additional procedural protections, including greater administrative and judicial review, than expedited removal proceedings under section 235 of the Act. Compare INA 235(b)(1), 8 U.S.C. 1225(b)(1), with INA 240, 8 U.S.C. 1229a. As noted previously, however, the expedited removal statute provides only that a noncitizen who is found to have a credible fear ‘‘shall be detained for further consideration of the application for asylum.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The statute mandates neither that the noncitizen be placed in removal proceedings generally nor placed in section 240 removal proceedings specifically. Id. The regulations regarding the credible fear process, and the interplay between expedited removal and section 240 removal proceedings, were first adopted in 1997.44 At the time, the former INS explicitly recognized that ‘‘the statute is silent as to the procedures for those who do demonstrate a credible fear of persecution.’’ 45 Faced with this ambiguity, the INS opted at the time to have the further consideration take place in pre-existing section 240 removal proceedings rather than create new proceedings for this purpose.46 But the INS’s contemporaneous analysis was very limited. The Departments believe that section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), authorizes a procedure for ‘‘further consideration of [an] application for 43 See 8 CFR 208.30(f) (2018); supra note 24 (explaining that various changes to these procedures have been enjoined). 44 Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312 (Mar. 6, 1997) (interim final rule). 45 Id. at 10320; see Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997) (proposed rule) (noting that although the statute calls for further consideration of the noncitizen’s asylum application, it ‘‘does not specify how or by whom this further consideration should be conducted’’). 46 62 FR at 10320. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 asylum’’ that is separate from section 240 removal proceedings. By its terms, the phrase ‘‘further consideration’’ is open-ended and does not mandate any particular procedure. It is thus naturally read as giving DHS flexibility to determine the appropriate procedure for consideration of noncitizens’ asylum claims after establishing a credible fear in the expedited removal process. Moreover, while section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), mandates that a noncitizen with a positive credible fear determination receive ‘‘further consideration of [the noncitizen’s] application for asylum,’’ section 235(b)(2) of the INA, 8 U.S.C. 1225(b)(2), mandates that other classes of noncitizens receive ‘‘a proceeding under section 1229a of this title,’’ i.e., section 240 of the INA. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). The difference in language suggests that section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), does not require use of section 240 removal proceedings, in contrast to section 235(b)(2), 8 U.S.C. 1225(b)(2), which does. The Supreme Court has observed that ‘‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’ Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks and citation omitted). More recently, the D.C. Circuit stated that it has ‘‘consistently recognized that a congressional mandate in one section and silence in another often suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion.’’ Catawba Cty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009) (emphasis in original) (internal quotation marks and citation omitted).47 The inference that Congress’s silence intentionally permits agency discretion is reinforced by the fact that the noncitizens whom DHS has elected to process into the United States using the expedited removal procedure are expressly excluded from the class of noncitizens who are statutorily guaranteed section 240 removal proceedings under section 235(b)(2)(A) of the INA, 8 U.S.C. 1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii). 47 See also Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718, 1723 (2017) (‘‘[U]sually at least, . . . we presume differences in language . . . convey differences in meaning.’’). PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 46917 Second, a noncitizen with a positive credible fear determination is entitled only to a further proceeding related to their ‘‘application for asylum,’’ or for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1251(b)(3), or withholding or deferral of removal under the regulations implementing U.S. obligations under Article 3 of the CAT. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii); 8 CFR 208.30(e). An asylum application’s purpose is to determine whether the noncitizen is entitled to relief or protection from removal, not whether the noncitizen should be admitted or granted other immigration benefits. See Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021) (‘‘[A] foreign national can be in lawful status but not admitted—think of someone who entered the country unlawfully, but then received asylum.’’); Matter of V–X–, 26 I&N Dec. 147, 150 (BIA 2013) (holding that, ‘‘although [a noncitizen’s] grant of asylum confer[s] a lawful status upon him, it [does] not entail an ‘admission’ ’’). By contrast, the purpose of a section 240 removal proceeding is to ‘‘determin[e] whether [a noncitizen] may be admitted to the United States.’’ INA 240(a)(3), 8 U.S.C. 1229a(a)(3). In section 240 removal proceedings, both removability and entitlement to various forms of relief or protection are determined. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 240(c)(2)–(4), 8 U.S.C. 1229a(c)(2)–(4).48 Moreover, the Departments believe that it is better policy to place noncitizens with a positive credible fear determination initially in nonadversarial proceedings in which their asylum claims can be adjudicated by asylum officers. The idea of allowing USCIS asylum officers to fully adjudicate the 48 The Departments acknowledge that there is some legislative history suggesting that some Members of Congress believed that individuals found to have a credible fear would be referred to section 240 removal proceedings. See, e.g., H.R. Rep. No. 104–828, at 209 (1996) (suggesting that noncitizens who received positive credible fear determinations would be placed in ‘‘normal nonexpedited removal proceedings’’). But the Departments are not convinced that the legislative history is sufficiently clear to foreclose an option the text itself does not ‘‘unambiguously forbid.’’ Barnhart v. Walton, 535 U.S. 212, 218 (2002). Indeed, other Members of Congress took a different view. See Letter for Richard A. Sloan, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, from Lamar Smith, Chairman, Subcommittee on Immigration and Claims, Re: INS 1788–96, RIN 1115–AE47 (Feb. 3, 1997), in Implementation to Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 21– 22 (1997) (‘‘Section 235(b)(1)(B)(ii) [was] drafted deliberately to leave flexibility regarding how the asylum adjudication would take place.’’). E:\FR\FM\20AUP2.SGM 20AUP2 46918 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules protection claims made by noncitizens who receive a positive credible fear determination is not new. In its congressionally mandated 2005 report on the expedited removal process, the U.S. Commission on International Religious Freedom (‘‘USCIRF’’) recommended that asylum officers be allowed to grant asylum to ease ‘‘the burden on the detention system, the immigration courts, and bona fide asylum seekers in Expedited Removal.’’ 49 The USCIRF repeated this recommendation when it conducted a follow-up study and issued an updated report in 2016, stating as follows: One solution to reduce the immigration courts’ caseload and backlog is to allow asylum officers to adjudicate defensive asylum claims, as USCIRF recommended in the 2005 Study. Asylum officers have the legal background and training to adjudicate asylum claims, and do so for affirmative asylum cases. Further, having an asylum officer review a credible fear claim and then having an immigration judge review an asylum claim creates significant redundancy without necessarily adding value.50 In 2012, the Administrative Conference of the United States studied the removal process and also issued recommendations that regulations be changed to allow for asylum officers to adjudicate protection claims for noncitizens determined to have a credible fear as part of a package of proposals to improve the operations of the immigration courts.51 More recently, experts from the Migration Policy Institute (‘‘MPI’’) reached a similar conclusion in a 2018 report on the state of the U.S. asylum system. MPI concluded as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS2 Allowing cases with positive credible-fear findings to instead remain with the Asylum Division for the full asylum merits adjudication would capitalize on the investment of time and expertise the division has already made. It would also enable meritorious cases to be resolved more quickly, reducing the overall asylum system backlogs and using limited asylum officer and IJ resources more efficiently.52 49 USCIRF, Report on Asylum Seekers in Expedited Removal, Volume I: Findings & Recommendations 66 (Feb. 2005), https:// www.uscirf.gov/sites/default/files/resources/stories/ pdf/asylum_seekers/Volume_I.pdf. 50 USCIRF, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal 54 (Aug. 2016), https://www.uscirf.gov/sites/default/files/ Barriers%20To%20Protection.pdf. 51 Administrative Conference of the United States, Administrative Conference Recommendation 2012–3: Immigration Removal Adjudication 15 (June 15, 2012), https://www.acus.gov/sites/default/ files/documents/2012-3.pdf. 52 Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward 3, Migration Policy Institute (Sept. 2018), https:// www.migrationpolicy.org/sites/default/files/ publications/MPI-AsylumSystemInCrisis-Final.pdf. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 In reaching this conclusion, these experts noted that moving the cases to the USCIS Asylum Division for adjudication plays to its strengths, including its experience in handling asylum and asylum-related adjudications; its regular trainings on asylum-related country conditions and legal issues, as well as nonadversarial interviewing techniques; and its ready access to country conditions experts. Additionally, the MPI experts concluded that nonadversarial proceedings are well suited for this process because they are ‘‘considerably less resource-intensive than immigration court proceedings’’ and ‘‘lend themselves to a fuller understanding of the strengths and weaknesses of an applicant’s case.’’ 53 The DHS Homeland Security Advisory Council’s (‘‘HSAC’’) bipartisan CBP Families and Children Care Panel also included this recommendation in its final report to the Secretary.54 This panel of the HSAC was created at the request of the Secretary in October 2018 to study ‘‘the burgeoning humanitarian crisis resulting from a surge in migration of families, primarily from Guatemala and Honduras, overwhelming the DHS resources at the border to address the crisis.’’ 55 The Departments acknowledge that the above recommendations assumed that individuals denied asylum by a USCIS asylum officer would be issued an NTA and placed into section 240 removal proceedings before an IJ, where the noncitizen would have a second, full evidentiary hearing on the asylum application with a different decisionmaker. This proposed rule would not adopt that approach, as the Departments determined it was unnecessary, duplicative, and inefficient. Instead, as noted in the previous section, this proposed rule would establish a new process that would require the IJ to conduct a de novo review of a denied application for protection when such review is requested, but it would not provide the noncitizen with a second full evidentiary hearing to present the claim. The Departments believe that an approach requiring a full evidentiary hearing before an IJ after an asylum officer’s denial would lead to inefficiencies without adding additional value or procedural protections. Under this proposal, the asylum officer will have developed and considered the 53 Id. at 26. CBP Families and Children Care Panel Final Report 24 (Nov. 14, 2019), https:// www.dhs.gov/sites/default/files/publications/fccp_ final_report_1.pdf. 55 Id. at 4. 54 HSAC, PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 noncitizen’s claim fully, including by taking testimony and accepting evidence, during the nonadversarial proceeding. If a noncitizen seeks review of an asylum officer’s denial, the IJ would have a complete record for review developed by the asylum officer (including a transcript of the hearing and any evidence offered by the applicant or otherwise considered by the officer) and the written decision of the asylum officer. The noncitizen would have a full opportunity to challenge the asylum officer’s denial during this review process and would not need to present their claim at a second full hearing. Instead, to the extent that a noncitizen seeks to introduce additional non-duplicative testimony or evidence, a provision of the proposed rule would allow them to do so if certain requirements are met. See 8 CFR 1003.48(e) (proposed). Accordingly, the Departments believe that a second full evidentiary hearing before an IJ is unnecessary and inefficient. A further description of the proposed review process follows in the next section. This proposed rule would change current procedures to allow a noncitizen who is found to have a credible fear to have a full adjudication of the noncitizen’s protection claims by an asylum officer. 8 CFR 208.2(a) (proposed) (revising jurisdiction over asylum applications in order to provide USCIS jurisdiction to hear asylum claims after a positive credible fear determination), id. § 208.30(f) (retention of a positive credible fear determination with USCIS for an asylum hearing); id. §§ 1003.42, 1208.30(g) (referral of negative credible fear determinations vacated by an IJ to USCIS for an asylum hearing). This would supplant the process in place prior to this proposed rule whereby DHS referred such an individual directly to an IJ for an adversarial hearing in a section 240 removal proceeding. Proposed 8 CFR 1003.42 and 1208.30(g) of the EOIR regulations reflect similar changes, enabling an IJ who vacates an asylum officer’s negative credible fear determination to refer the case back to USCIS for an asylum hearing. The Departments propose to make corresponding amendments to 8 CFR 208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR 235.6(a)(1) to provide that the cases of individuals who receive a positive credible fear determination may be retained by USCIS for a nonadversarial hearing before a USCIS asylum officer under the jurisdiction of 8 CFR 208.2(a)(1)(ii) to determine eligibility for asylum, statutory withholding of removal, and E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules withholding of deferral or removal under CAT. The Departments also propose to amend 8 CFR 1003.1, 8 CFR 1003.12, 8 CFR 1208.2, and 8 CFR 1208.30 of the EOIR regulations, and to add a new section 8 CFR 1003.48, to make corresponding changes regarding how and when cases involving individuals found to have a credible fear would be referred by DHS to EOIR. The proposed nonadversarial proceedings for further consideration of asylum applications by asylum officers would provide protections similar to those provided in section 240 removal proceedings. The asylum officer’s consideration under this proposal, however, would be limited solely to claims for asylum, statutory withholding of removal, and withholding or deferral of removal under the CAT regulations. 8 CFR 208.2(a)(2) (proposed). Under this proposed rule, if the asylum officer denies the noncitizen asylum, statutory withholding of removal, and protection under the CAT regulations, the noncitizen would be ordered removed based upon the immigration officer’s earlier inadmissibility determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 1225(b)(1)(A)(i). The noncitizen, may, however appeal an adverse decision to an IJ, and if necessary, to the BIA. 8 CFR 208.14(c)(5), 1003.1(b)(15), 1208.2(b). To allow asylum officers to carry out this new responsibility fully, additional changes to the regulations have been proposed. First, the Departments propose that under 8 CFR 208.9(f), asylum officers would be required to record the asylum hearing and that a transcript of that recording would be made part of the record whenever a noncitizen denied protection seeks review of a denial. USCIS would transcribe the asylum hearing recording and a copy of the transcript and the record developed at the hearing would be served on the applicant and filed with the immigration court. The hearing would be transcribed prior to the record being referred for review. Second, the Departments propose that USCIS be required to provide an interpreter for any hearing, just as EOIR is required to do for a removal hearing. 8 CFR 208.9(g) (proposed). Third, as in section 240 removal proceedings, the Departments propose that the noncitizen would be entitled to be represented, at no expense to the Government, by counsel of the noncitizen’s choosing who is authorized to practice in such proceedings. See id. § 1003.12 (proposed), 1003.16 (current); cf. 8 U.S.C. 1229a(b)(4). The Departments propose that the ‘‘failure to appear’’ rule at 8 CFR 208.10 VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 be revised to allow for an order of removal to be issued when the noncitizen fails to appear for the scheduled hearing with the asylum officer. Changes to 8 CFR 208.16 through 208.19 also are proposed in order to provide asylum officers authority to adjudicate claims for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and withholding and deferral of removal under the regulations implementing the CAT. Existing 8 CFR 208.14(b) already provides USCIS the authority to grant an asylum application properly within USCIS’s jurisdiction, including the jurisdiction given USCIS by this proposed rule over asylum applications from noncitizens determined to have a credible fear. Similar authority is provided for immigration judges in existing 8 CFR 1208.14. Finally, the Departments propose that 8 CFR 208.14(c)(5) be added to provide the process for USCIS to deny an application for asylum, including the issuance of a decision on withholding and deferral of removal if asylum is denied; the issuance of an order of removal by the asylum officer after the merits hearing; and the process for the applicant to seek review of an asylum denial before an IJ. Review of these decisions would be governed by proposed 8 CFR 1003.48. The Departments also propose technical edits to 8 CFR 208.22 to include references to corresponding sections of both 8 CFR part 208 and 8 CFR part 1208. The Departments seek comments on all aspects of these proposed changes, including whether different or additional decision and review procedures should apply to applications considered under this proposed process. The authority of asylum officers to enter an order of removal after denying a noncitizen’s asylum claim follows from the relevant provisions of the INA. By definition, noncitizens who are placed into expedited removal already have been determined to be inadmissible and are protected from immediate removal only because their credible fear of persecution entitled them to further consideration of their asylum claim. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). If, after that further consideration, an asylum officer concludes that a noncitizen is not entitled to asylum, that determination removes the only remaining legal barrier to removal. That determination qualifies as an order of removal under the relevant statutory definition, which provides that an ‘‘order of deportation’’ includes not only an order ‘‘ordering deportation,’’ but also an order PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 46919 ‘‘concluding that [a noncitizen] is deportable.’’ INA 101(a)(47)(A), 8 U.S.C. 1101(47)(A). The Seventh Circuit reached the same conclusion in addressing another class of noncitizens whose only defense to removal is a potential asylum claim: Those who entered under the visa-waiver program, INA 217(b)(2), 8 U.S.C. 1187(b)(2). The court explained that an order denying such a noncitizen’s asylum claim is an order of removal because ‘‘an order that is proper only if the [noncitizen] is removable implies an order of removal.’’ Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). This proposed rule therefore would provide that if the noncitizen is not granted asylum at the conclusion of the asylum hearing, the asylum officer is authorized to issue an order of removal. E. Application Review Proceedings Before the Immigration Judge— Proposed 8 CFR 1208.2(c), 1003.48 The Departments propose to amend 8 CFR 1208.2(c) and add 8 CFR 1003.48 to establish new IJ review proceedings for those noncitizens who establish a credible fear of persecution or torture but (1) were found by USCIS not to merit asylum, statutory withholding of removal, or protection under the CAT and its implementing regulations; and (2) affirmatively request further review of their applications by an IJ. The Departments propose that upon a referral of the case from USCIS, the IJ would conduct a de novo review of USCIS’s denial of the claims. Under these proposed limited review proceedings, unlike under section 240 of the INA, 8 U.S.C. 1229a, the IJ would not have authority to consider issues related to a noncitizen’s removability or a noncitizen’s eligibility for any other relief from removal. Moreover, an IJ ordinarily would not conduct an evidentiary hearing on the noncitizen’s asylum application. Rather, the IJ would determine, after de novo review of the full record of proceedings created during asylum officer hearings and consideration of any additional testimony or evidence permitted under the proposed process described below, whether a noncitizen is eligible for asylum or withholding of removal under the Act or withholding or deferral of removal under the CAT. Although the Departments intend these proceedings to be more streamlined than section 240 removal proceedings, asylum officer and IJ review, together, would provide significant protections to ensure that these noncitizens continue to receive full and fair adjudication of their applications. E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 46920 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules For noncitizens who affirmatively request further review by an IJ, the Departments propose that DHS would initiate the review proceedings through the service of a Form I–863, Notice of Referral to Immigration Judge, on the noncitizen. As proposed in 8 CFR 1003.48(b), DHS would file the following items with the immigration court: (1) A copy of the Notice of Referral; (2) a copy of the record of proceedings before the asylum officer, as outlined in 8 CFR 208.9(f); (3) the asylum officer’s written decision, including the removal order issued under 8 CFR 208.14(c)(5) by the asylum officer; and (4) proof that DHS served the Notice of Referral, the record of proceedings, and the asylum officer’s written decision, including the removal order, on the noncitizen. Unlike in credible fear determination reviews, where the IJ is provided only asylum officers’ notes from the interview, the summary of the material facts, and other limited records, see, e.g., 8 CFR 208.30(e)(4), the proposed requirements in 8 CFR 1003.48(b) would ensure that cases would only be referred to the immigration courts following asylum officers’ full nonadversarial adjudication of the noncitizens’ applications, and that IJs and noncitizens would have asylum officers’ decisions and complete records of the hearings in advance of the IJ review. This would allow the noncitizen to have notice of the reasons for the asylum officer’s denial in advance of the immigration court review process, and it would allow the IJ to conduct a thorough review of the asylum officer’s decision based on the application and complete record developed before the asylum officer. Accordingly, because the IJ would be provided the complete record of proceedings from the asylum officer hearing, the Departments expect that the IJ generally would be able to complete the de novo review solely on the basis of the record before the asylum officer, taking into consideration any arguments raised by the noncitizen, or the noncitizen’s counsel, and DHS. That said, the proposed rule recognizes that the factual record as elicited by the asylum officer sometimes will need to be further developed before the IJ. The rule proposes at 8 CFR 1003.48(e) that an IJ does not have the authority to remand a case to an asylum officer because the Departments believe that this would be unnecessary and inefficient. Instead, the rule proposes that a party may seek to introduce additional testimony or documentation so long as the party demonstrates to the IJ that the testimony or documentation VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 is not duplicative of the testimony or documentation considered by the asylum officer and that it is necessary to develop the factual record to allow the IJ to issue a reasoned decision in the case. The Departments expect that an IJ may, in appropriate cases, require parties to submit prehearing statements or briefs concerning whether they will seek to introduce additional testimony or documentation and, if so, explaining why this testimony or documentation meets the standard at 8 CFR 1003.48(e). The Departments further expect that, where necessary, for example in cases involving pro se applicants, IJs will, before proceeding with the case, explain in court the standards for submitting additional testimony and documentation. This proposed provision would ensure a full and fair evaluation of the applicant’s application for asylum, withholding of removal under the Act, or withholding or deferral of removal under the CAT. The Departments believe that this proposed regulatory scheme—under which IJs typically would rely on the record created at the asylum officer hearing but could allow additional testimony and evidence if a party establishes that doing so is necessary— is the best way to balance efficiency and fairness considerations appropriately.56 The Departments believe that these proceedings, as proposed, will be more streamlined than removal proceedings but will still provide the parties with a fair opportunity to present their cases. Nevertheless, the Departments understand that there are alternative threshold standards for the introduction of evidence or the reopening of proceedings.57 Accordingly, the Departments request the public’s comments on the proposed evidentiary threshold requirements, including any suggestions for alternatives that balance efficiency and fairness considerations, particularly taking into account challenges pro se applicants for asylum and related protection sometimes face in developing their claims. To ensure that noncitizens have a full and fair opportunity to prepare for and receive review of their claims, the Departments propose that many of the procedural safeguards that apply in 56 See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) (‘‘There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.’’). 57 See, e.g., Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (providing that the moving party generally must demonstrate that ‘‘new evidence offered would likely change the result in the case’’ in order for the BIA to consider granting a discretionary motion to remand). PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 section 240 removal proceedings would apply to the IJ review proceedings as well. Unless specifically indicated in 8 CFR 1003.48 of the EOIR proposed rules, the general rules of procedure that apply in removal proceedings before the immigration courts also would apply to these proceedings. This would include a noncitizen’s rights (1) to obtain representation by an attorney or other representative authorized to appear before the immigration court, at no cost to the Government, see 8 CFR 1003.16(b); (2) to seek a change of venue, see id. § 1003.20(b); and (3) to seek a continuance for good cause shown, see id. § 1003.29. Moreover, the provisions of 8 CFR 1003.2 and 1003.23 governing motions to reopen and reconsider generally would be applicable to decisions rendered by IJs or the BIA in these proceedings. The Departments also propose to add a cross-reference in 8 CFR 1003.12 to the new proceedings under 8 CFR 1003.48 to codify these procedural protections. The rule further proposes at 8 CFR 1003.48(d) that the IJ would have the discretion, pursuant to a motion filed by an applicant, to vacate the asylum officer’s order of removal. For the motion to be granted, the applicant would have to show that he or she is prima facie eligible for a form of relief that cannot be granted in proceedings under 8 CFR 1003.48. With the motion granted, DHS would have the discretion to place the applicant in removal proceedings. An applicant would be permitted to file only one such motion, the motion would have to be filed before the IJ issues a decision on the applications for asylum and related protection, and motions to apply for voluntary departure would not be granted. The Departments believe these limitations are appropriate given the goal of meaningfully streamlining these proceedings as compared with removal proceedings. That said, the Departments seek the public’s comments on whether the provisions relating to motions to vacate removal orders appropriately balance fairness and efficiency considerations. In these proposed proceedings, the IJ would have the authority to review all decisions issued by the asylum officer, upon request by the applicant. See 8 CFR 1003.48(a) (proposed). For example, if the asylum officer denies an applicant’s application for asylum but grants the applicant’s application for withholding of removal under the Act, and the applicant requests review by an IJ, the IJ would have the authority to review not only the denial of asylum but also the grant of withholding of removal as well. In these mixed cases, the E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 Departments believe it is appropriate, where the applicant has requested review of an asylum officer’s decision, to permit IJs to review not only the denial but also the grant, because DHS could present documentation or testimony before the IJ that is admissible under 8 CFR 1003.48(e) and that indicates that the applicant does not qualify for any of the relief or protection at issue. The Departments seek comment on whether the IJ should have the authority to review all decisions of the asylum officer in this manner. As proposed at 8 CFR 1003.48(e), if the IJ determines that the noncitizen is eligible for and merits asylum as a matter of discretion, the IJ would issue a decision vacating the order of removal issued by the asylum officer based upon the immigration officer’s initial inadmissibility determination under section 235(b)(1)(A)(i) of the Act, 8 U.S.C. 1225(b)(1)(A)(i), and granting the noncitizen asylum. If the IJ determines that the noncitizen is eligible for withholding of removal under the Act or withholding or deferral of removal under the CAT, the IJ would issue a decision granting the appropriate protection, but the IJ would not vacate the removal order issued by the asylum officer.58 The Departments propose that either party may appeal the IJ’s decision rendered in the new proceedings under 8 CFR 1003.48 to the BIA in accordance with the standard EOIR appeal procedures that currently apply to removal proceedings, including the submission of a Form EOIR–26, Notice of Appeal from a Decision of an Immigration Judge. See generally 8 CFR 1003.3, 1003.38. The Departments also propose to amend 8 CFR 1003.1(b) to make clear that a noncitizen may appeal the IJ’s decision to the BIA and that the review of these decisions is within the BIA’s jurisdiction. And, as with BIA decisions in removal proceedings, the noncitizen may seek judicial review before the appropriate circuit court of appeals. See INA 242, 8 U.S.C. 1252(a)(1).59 Accordingly, noncitizens 58 A grant of withholding of removal ‘‘does not afford [a noncitizen] any permanent right to remain in the United States’’ and ‘‘does not prevent the DHS from removing [a noncitizen] to a country other than the one to which removal has been withheld.’’ Guzman Chavez, 141 S. Ct. at 2286 (quoting Matter of I-S- & C-S-, 24 I&N Dec. 432, 434 (BIA 2008)). That presupposes the issuance of a removal order to preserve DHS’s discretion to remove the noncitizen to a third country. See id. at 2287–88 (noting that ‘‘it is axiomatic that in order to withhold removal there must first be an order of removal that can be withheld’’ (internal quotation marks and citation omitted)). 59 The courts of appeals have jurisdiction to review ‘‘a final order of removal.’’ INA 242(a)(1), 8 U.S.C. 1252(a)(1). As several courts of appeals have VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 under the proposed regulations would have opportunities at four levels to have their claims for asylum, withholding of removal, or deferral of removal considered: First during a nonadversarial hearing before an asylum officer and then, if necessary, on review by an IJ, the BIA, and the appropriate circuit court of appeals. F. Severability Upon the completion of the notice and comment period provided for herein and subsequent issuance of a final rule, to the extent that any portion of the resulting final rule is stayed, enjoined, not implemented, or otherwise held invalid by a court, the Departments intend for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a judicial decision invalidating a portion of the final rule results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the final rule continue to operate in tandem with the reverted provisions, if at all possible. The Departments seek comment on whether (and which of) the regulatory provisions proposed herein should be severable from one another. G. Discretion/Phased Implementation The Departments believe that the proposed changes in this rule are necessary to establish a more held, that grant of jurisdiction includes the authority to review a conclusion that an otherwiseremovable noncitizen is ineligible for asylum, even where—unlike under the present rule—‘‘no formal order of removal has been entered.’’ Mitondo, 523 F.3d at 787; see Shehu v. Att’y Gen., 482 F.3d 652, 656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134–35 (2d Cir. 2006); Nreka v. Att’y Gen., 408 F.3d 1361, 1366–67 (11th Cir. 2005). The courts of appeals do not have jurisdiction to review ‘‘an order of removal without a hearing pursuant to [8 U.S.C.] 1225(b)(1).’’ INA 242(a)(1), 8 U.S.C. 1252(a)(1); see INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A) (additional limits on review of matters related to removal orders issued pursuant to INA 235(b)(1), 8 U.S.C. 1225(b)(1)). That limitation does not apply here. An order of removal entered after an asylum officer conducts a full hearing on a noncitizen’s asylum application is not ‘‘an order or removal without a hearing.’’ And, in the context of INA 242’s limits on judicial review, the references to an order of removal issued ‘‘pursuant to’’ INA 242(b)(1), 8 U.S.C. 1225(b)(1), most naturally is read to encompass only the orders expressly described in that provision: An order issued when a noncitizen subject to expedited removal does not indicate an intention to apply for asylum or a fear of persecution, INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), or an order issued when a noncitizen is found not to have a credible fear of persecution, INA 235(b)(1)(B)(iii)(I),8 U.S.C. 1225(b)(1)(B)(iii)(I). Cf. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020) (applying ‘‘the presumption favoring judicial review of administrative action’’ in construing another limit on judicial review in INA 242, 8 U.S.C. 1252). PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 46921 streamlined and timely adjudication process for individuals who establish a credible fear of persecution or torture, while simultaneously ensuring fundamental fairness. The Departments emphasize, however, that this proposed rule would provide DHS the discretion to continue placing such individuals directly into section 240 removal proceedings before an IJ. This discretion may be exercised, for example, when a noncitizen with a positive credible fear determination may have committed significant criminal activity, have engaged in past acts of harm to others, or pose a public safety or national security threat. In some cases, DHS may determine that it is more appropriate for such noncitizens’ protection claims to be heard and considered in the adversarial process before an IJ. Additionally, if the Departments decide to issue a final rule implementing this new process during FY 2022, DHS would also need to continue to place many noncitizens receiving a positive credible fear determination into section 240 removal proceedings, while USCIS takes the steps needed to allow it to fully implement this new process for all cases. As discussed below in greater detail in the costs and benefits analysis of this proposal and its impacts on USCIS, as required under Executive Orders 12866 and 13563, USCIS has estimated that it will need to hire approximately 800 new employees and spend approximately $180 million to fully implement the proposed asylum officer hearing and adjudication process to handle approximately 75,000 cases annually. If the number of noncitizens placed into expedited removal and making successful fear claims increases significantly above that estimate, the cost to implement this proposed rule with staffing levels sufficient to handle the additional cases in a timely fashion would be substantially higher.60 Until USCIS is able to support full implementation, USCIS would need to continue to place a large percentage of individuals receiving a positive credible fear determination into section 240 removal proceedings. This exercise of discretion is similar to and in line with DHS’s recognized prosecutorial discretion to issue an NTA to a covered 60 USCIS presently has over 400,000 pending affirmative asylum applications awaiting interview or adjudication. In proposing this rule, the Departments seek to avoid simply shifting work from a resource-challenged EOIR to a similarly resource-challenged USCIS Asylum Division. DHS seeks to fully resource the USCIS Asylum Division to handle their present workloads and this new workload prior to the USCIS full takeover of the adjudication of protection claims that follow a positive credible fear determination. E:\FR\FM\20AUP2.SGM 20AUP2 46922 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 noncitizen in expedited removal proceedings at any time after the covered citizen is referred to USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523. USCIS is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (‘‘IEFA’’). These fee collections fund the costs of adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants. The authority for establishing fees is found in section 286(m) of the INA, 8 U.S.C. 1356(m), which authorizes DHS to charge fees for adjudication and naturalization services at a level to ‘‘ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.’’ The Chief Financial Officers Act of 1990 (‘‘CFO Act’’), 31 U.S.C. 901–03, requires each agency’s chief financial officer to ‘‘review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value.’’ 31 U.S.C. 902(a)(8). USCIS conducted a FY 2019 and 2020 IEFA fee review, as required under the CFO Act, and, as a result of that review, DHS published an updated final fee rule on August 3, 2020, with an effective date of October 2, 2020. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020). Implementation of that new fee rule was enjoined before its effective date, and USCIS has notified the public that it intends to continue to comply with the court injunctions.61 DHS intends to rescind and replace the changes made by the August 3, 2020 fee 61 See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 526 (N.D. Cal. 2020) (enjoining the rule); Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 41 (D.D.C. 2020) (same). On January 29, 2021, USCIS published a Federal Register notice indicating that the agency was continuing to comply with these court orders. U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 86 FR 7493, 7493 (Jan. 29, 2021). VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 rule and establish new USCIS fees to recover USCIS operating costs.62 Current resource constraints would prevent the Departments from immediately achieving their ultimate goal of having the protection claims of nearly all individuals who receive a positive credible fear determination adjudicated by an asylum officer. The Departments believe that to fully implement the proposed rule, additional resources would be required. The Departments therefore propose that the new process be implemented in phases, as the necessary staffing and resources are put into place. A phased implementation would allow the Departments to begin employing the proposed process in an orderly and controlled manner and for a limited number of cases, giving USCIS the opportunity to work through operational challenges and ensure that each noncitizen placed into the process is given a full and fair opportunity to have any protection claim presented, heard, and properly adjudicated in full conformance with the law. Phased implementation would also have an immediately positive impact in reducing the number of individuals arriving at the southwest border who are placed into backlogged immigration court dockets, thus allowing the Departments to more quickly adjudicate some cases. Given limited agency resources, the Departments anticipate first implementing this new process for certain non-detained family units. The Departments believe this is necessary as USCIS capacity is currently insufficient to handle all family unit referrals under this new proposed process. The Departments also anticipate limiting referrals under the initial implementation of this proposed rule to families apprehended in certain southwest border sectors or stations, as well as based on the family unit’s final intended destination (e.g., if the family unit is within a predetermined distance from the potential interview location). As the USCIS Asylum Division gains resources and builds capacity, the Departments anticipate that additional family unit cases and then single adult cases could be considered for processing pursuant to this phased implementation. Under this approach, it is likely that single adult cases would not be handled under the new process 62 DHS lists a notice of proposed rulemaking for new fees on the Spring 2021 Unified Regulatory Agenda with a proposed publication date of November 2021. Office of Management and Budget, Spring 2021 Unified Regulatory Agenda (June 11, 2021), https://www.reginfo.gov/public/do/eAgenda ViewRule?pubId=202104&RIN=1615-AC68. PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 until a later phase of implementation. The Departments are seeking comments on what might be the appropriate factors for DHS to consider when determining which individuals to place into the new process during this period prior to full implementation. Statutory and Regulatory Requirements H. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives. If a regulation is necessary, these Executive orders direct that, to the extent permitted by law, agencies ensure that the benefits of a regulation justify its costs and select the regulatory approach that maximizes net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It explicitly draws attention to ‘‘equity, human dignity, fairness, and distributive impacts,’’ values that are difficult or impossible to quantify. All of these considerations are relevant here. This proposed rule has been designated as a ‘‘significant regulatory action,’’ and it is economically significant since it meets the $100 million threshold under section 3(f)(1) of Executive Order 12866. Accordingly, the Office of Management and Budget (‘‘OMB’’) has reviewed this regulation. 1. Summary This proposed rule would change and streamline the overall adjudicatory process for asylum applications arising out of the expedited removal process. By reducing undue delays in the system, and by providing a variety of procedural safeguards, the rule protects equity, human dignity, and fairness. A central feature of the regulation changes the respective roles of an IJ and an asylum officer during proceedings for consideration of asylum applications after a positive credible fear determination. Notably, IJs will retain their existing authority to review de novo the negative determinations made by asylum officers in a credible fear proceeding. In making credible fear determinations, asylum officers will return to evaluating whether there is a significant possibility that the noncitizen could establish eligibility for asylum, withholding of removal, or CAT E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules protection for possible referral to a full hearing of the claim and the noncitizen will still be able to seek review of that negative credible fear determination before the IJ. Asylum officers will take on a new role of fully adjudicating all protection claims made by some noncitizens who have received a positive credible fear determination, a role previously carried out only by IJs as part of a proceeding under section 240 of the INA. Under the rule, IJs will take on a new authority to review de novo an asylum officer’s denial of these claims. The population of individuals likely to be affected by this proposed rule’s provisions are individuals for whom USCIS completes a credible fear screening. The average annual number of credible fear screenings for FY 2016 through 2020 completed by USCIS is broken out as 59,280 positive credible fear determinations and 12,083 negative credible fear determinations, for a total of 71,363 individuals with credible fear determinations. DHS expects that this population will be affected by the rule in a number of ways, which may vary from person to person depending on (1) whether the individual receives a positive credible fear determination, and (2) whether the individual’s asylum claim is granted or denied by the asylum officer. In addition, because of data constraints and conceptual and empirical challenges, we can provide only a partial monetization of the impacts to individuals. For example, asylum seekers who establish credible fear may benefit from having their asylum claims adjudicated potentially much sooner than they otherwise would. Those who are granted asylum sooner may have a possible path to citizenship in the United States. This is obviously a benefit in terms of human dignity and equity, but it is a benefit that is not readily monetized. Asylum seekers who establish credible fear may also benefit from filing cost savings and earlier labor force entry. DHS has estimated this impact on a per-person workday basis. As it relates to the Government and USCIS costs, the planned human resource and information-related expenditures required to implement this proposed rule are monetized as real resource costs. These estimates are developed along three population bounds, ranging from 75,000 to 300,000 credible fear screenings to account for possible variations in future years. Furthermore, the possibility of parole for more individuals—applied on a case-by-case basis—could lower the cost to the Government per person processed. DHS has also estimated potential employment tax impacts germane to earlier labor force entry, likewise on a per-person workday basis. Such estimates made on a per-person basis reflect a range of wages that the impacted individuals could earn. The per-person, per-work day estimates are not extended to broader monetized impacts due to data constraints. An important caveat to the possible benefits to asylum applicants who establish a credible fear introduced above and discussed more thoroughly in the analysis is that it is expected to take time to implement this rule. Foremost, DHS expects the resourcing of this proposed rule to be implemented in a 46923 phased approach. Further, while upfront expenditures to support the changes from this proposed rule based on planning models are high, the logistical and operational requirements of this proposed rule may take time to fully implement. For instance, once USCIS meets its staffing requirements, time will be required for the new asylum staff to be trained for their positions, which may occur over several months. As a result, the benefits to applicants and the Government may not be realized immediately. To develop the monetized costs of the proposed rule, DHS relied on a low, midrange, and high population bound to reflect future uncertainty in the population. In addition, resources are partially phased in over FYs 2022 and 2023, as a full phasing in of resources, potentially up to 2026, is not possible at this time. The average annualized cost of this proposed rule ranges from $180.4 million to $1.0 billion, at a 3 percent discount rate, and from $179.5 million to $995.8 million, at a 7 percent discount rate. At a 3 percent discount rate the total 10-year costs could range from $1.5 billion to $8.6 billion, with a midpoint of $3.9 billion. At a 7 percent discount rate, the total 10-year costs could range from $1.3 billion to $7.0 billion, with a midpoint of $3.2 billion. A summary of the potential impacts of this proposed rule are presented in Table 1 and are detailed more in the ensuing analysis. Where quantitative estimates are provided, they apply to the midpoint figure (applicable to the wage range or the population range). TABLE 1—SUMMARY OF THE POTENTIAL IMPACTS OF THIS PROPOSED RULE Entities impacted khammond on DSKJM1Z7X2PROD with PROPOSALS2 Individuals who receive a positive credible fear determination. Annual population estimate USCIS provides a range from 75,000 to 300,000 total individuals who receive credible fear determinations. In recent years (see Table 3), approximately 83.1% of individuals screened have received a positive credible fear determination. Potential impacts • Maximum potential cost-savings to applicants of Form I–589 of $364.86 per person. • Potential cost-savings to applicants of Form I–765 of $370.28 per person. • Potential early labor earnings to asylum applicants who obtain an employment authorization document (‘‘EAD’’) of $225.44 per person per workday; this impact could potentially constitute a transfer from workers in the U.S. labor force to certain asylum applicants. We identified three factors that could drive this impact of early entry to the labor force: (i) More expeditious grants of asylum, thereby authorizing work incident to status; and (ii) a change in timing apropos to the ‘‘start’’ time for filing for work authorization—the ‘‘EAD-clock’’ duration is not impacted, but it ‘‘shifts’’ to an earlier starting point. On the other hand, some individuals who would have reached the ‘‘EAD-clock’’ duration for a pending asylum application and obtained work authorization under the current regulations may not obtain work authorization if their asylum claim is promptly denied. • Individuals could not have to wait lengthy times for a decision on their protection claims. This is a benefit in terms of equity, human dignity, and fairness. • Some individuals could benefit from de novo review by an IJ of the asylum officer’s denial of their asylum claim. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 46924 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules TABLE 1—SUMMARY OF THE POTENTIAL IMPACTS OF THIS PROPOSED RULE—Continued Entities impacted Annual population estimate Potential impacts Individuals who receive a negative credible fear determination. USCIS provides a range from 75,000 to 300,000 total individuals who receive credible fear determinations. In recent years (see Table 3), approximately 16.9% of individuals screened have received a negative credible fear determination. • Beneficiaries of the new process may benefit in terms of human dignity if paroled from detention while awaiting their credible fear interview and determination. DHS–USCIS .............................. EOIR .......................................... Support networks for asylum applicants who receive a positive credible fear determination. Other .......................................... • Parole may result in more individuals failing to appear for hearings. • At a 7 percent discount rate, the resource costs could be $451.2 million annually, based on up-front and continuing expenditures. • It is reasonable to assume that there could be a reduction in Form I–765 filings due to more expeditious adjudication of asylum claims, but there could also be countervailing influences; hence, the volume of Form I–765 filings (writ large or for specific classes related to asylum) could decrease, remain the same, or increase—these reasons are elucidated in the analysis. • A net change in Form I–765 volumes overall could impact the incumbent volume of biometrics and biometrics services fees collected; however, based on the structure of the USCIS Application Support Center (‘‘ASC’’) biometrics processing contract, it would take a significant change in such volumes for a particular service district to generate marginal cost increases or savings per biometrics submission. 555 current IJs as well as sup- • EOIR only reviews on appeal and will no longer adjudicate asylum claims raised in expedited port staff and other personnel. removal in the first instance. • Allows EOIR to focus efforts on other priority work and reduce its substantial current backlog. • There could be non-budget related cost-savings if the actual time worked on a credible fear case decreases in the transfer of credible fear cases to USCIS. Unknown ................................... • To the extent that some applicants may be able to earn income earlier than they otherwise could currently, burdens to the support network of the applicant may be lessened. This network could include public and private entities and family and personal friends, legal services providers and advisors, religious and charity organizations, State and local public institutions, educational providers, and non-governmental organizations (‘‘NGOs’’). Unknown ................................... • There could be familiarization costs associated with this proposed rule; for example, if attorneys representing the asylum client reviewed the rule, the cost would be about $69.05 per hour. • There may be some labor market impacts as some asylum seekers that currently enter the labor market with a pending asylum application would no longer be entering the labor market under this proposed rule if they get a negative decision on their asylum claim sooner. Applicants with a positive credible fear determination may enter the labor market sooner under this proposed rule than they would currently. • Tax impacts could accrue to the earlier entry of some individuals into the labor market; we estimate employment tax impacts could be $34.49 per person on a workday basis. N/A ............................................ In addition to the impacts summarized above, and as required by OMB Circular A–4, Table 2 presents the prepared accounting statement showing the costs and benefits associated with this regulation.63 TABLE 2—OMB A–4 ACCOUNTING STATEMENT [$ millions, 2020] Time Period: 2022–2031 Primary estimate Category Minimum estimate Maximum estimate Source citation Benefits Monetized benefits ................................................................................ Not estimated Not estimated Not estimated Annualized quantified, but un-monetized, benefits ............................... N/A N/A N/A khammond on DSKJM1Z7X2PROD with PROPOSALS2 Unquantified benefits ............................................................................. 63 OMB, Circular A–4 (2003), https:// www.whitehouse.gov/sites/whitehouse.gov/files/ VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 Some individuals may benefit from filing cost-savings related to Forms I–589 and I–765. Early labor market entry would be beneficial in terms of labor earnings to the applicant, but also because it could reduce burdens on the applicants’ support networks. Benefits driven by increased efficiency would enable some asylum-seeking individuals to move through the asylum process more expeditiously than through the current process, with timelines potentially decreasing significantly, thus promoting both human dignity and equity. Adjudicative efficiency gains and expanded parole could lead to individuals spending less time in detention, which would benefit the Government and the affected individuals. omb/circulars/A4/a-4.pdf (last viewed June 1, 2021). PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 Regulatory (‘‘RIA’’). Impact Analysis 46925 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued [$ millions, 2020] Time Period: 2022–2031 Primary estimate Category I Minimum estimate I Maximum estimate Source citation Another benefit is that EOIR would not see the cases in which USCIS grants asylum, which we estimate as at least a 15 percent reduction in their overall credible fear workload. This stands to mitigate the backlog of cases pending in immigration courts. Additionally, this benefit would extend to individuals granted or denied asylum faster than if they were to go through the current process with EOIR. Depending on the individual case circumstances, this proposed rule would mean that such noncitizens would likely not remain in the United States—for years, potentially—pending resolution of their claims, and those who qualify for asylum would be granted asylum several years earlier than they are under the present process. The anticipated operational efficiencies from this proposed rule may provide for prompt grant of relief or protection to qualifying noncitizens and ensure that those who do not qualify for relief or protection are removed more efficiently than they are under current rules. Costs Annualized monetized costs for 10-year period between 2021 and 2030 (discount rate in parenthesis). (3%) $453.8 $180.4 $1,002.4 RIA. (7%) $451.2 179.5 995.8 RIA. Annualized quantified, but un-monetized, costs .................................... • Potential cost-savings applicable to Form I–589 of $338.86 per person. • Potential cost-savings applicable to Form I–765 of $377.32 per person. • Potential early labor earnings of $225.44 per person per workday. • The transfer of cases from EOIR to USCIS would allow resources at EOIR to be directed to other work, and there is a potential for cost-savings to be realized as it relates to credible fear processing specifically, if the average cost of work-time spent on cases by USCIS asylum officers would be lower than at EOIR currently. These would not be budgetary cost-savings, and USCIS has not made a one-to-one time- and cost-specific comparison between worktime actually spent on a case at EOIR and USCIS. Qualitative (unquantified) costs ............................................................. N/A Annualized transfers: ............................................................................. Potential labor earnings that would accrue to credible fear asylum applicants that enter the labor market earlier than they would currently. From whom to whom? ........................................................................... Potentially a distributional economic impact in the form of a transfer to asylum applicants who enter earlier than they would currently from others in the U.S. workforce. Miscellaneous analyses/category .......................................................... N/A Effects on State, local, or Tribal governments ...................................... N/A RIA. Transfers khammond on DSKJM1Z7X2PROD with PROPOSALS2 Effects on small businesses .................................................................. This proposed rule does not directly regulate small entities, but rather individuals. Effects on wages ................................................................................... None Effects on growth ................................................................................... None 2. Background and Purpose of the Rule The purpose of this proposed rule is to address the rising number of apprehensions at or near the southwest VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 border and the ability of the U.S. asylum system to fairly and efficiently handle protection claims made by those encountered. The proposed rule PO 00000 Frm 00021 RIA. Fmt 4701 Sfmt 4702 RFA. streamlines and simplifies the adjudication process for certain individuals who are encountered at or near the border, placed into expedited E:\FR\FM\20AUP2.SGM 20AUP2 46926 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules removal, and determined to have a credible fear of persecution or torture, with the aim of adjudicating applications for asylum, statutory withholding of removal, and CAT protection in a timelier fashion and in conformity with procedural protections against erroneous denial of relief or protection. The principal facet of the rule is to transfer the initial responsibility for adjudicating asylum, statutory withholding of removal, and CAT protection applications from IJs to USCIS asylum officers for individuals within expedited removal proceedings who receive a positive credible fear determination. The proposed rule also would broaden the circumstances in which individuals making a fear claim during the expedited removal process could be considered for parole on a case-by-case basis prior to a positive credible fear determination being made. For such individuals, parole could be granted as an exercise of discretion not only where required to meet a medical emergency or for a legitimate law enforcement objective, but also where detention is unavailable or impracticable. DHS intends to apply this proposed rule only to recently-arrived individuals who are subject to expedited removal— i.e., adults and families. The proposed rule does not apply to unaccompanied children, as they are statutorily exempt from being placed into expedited removal. It also does not apply to individuals already residing in the United States and whose presence in the United States is outside the coverage of noncitizens designated by the Secretary as subject to expedited removal. The proposed rule also does not apply to (1) stowaways or (2) noncitizens who are present in or arriving in the Commonwealth of the Northern Mariana Islands who are determined to have a credible fear. They will continue to be referred to asylum/withholding-only hearings before an IJ under 8 CFR 208.2(c). Finally, it is not legally required that a noncitizen amenable to expedited removal after the effective date of the rule be placed in the nonadversarial review process described in this proposed rule. Rather, DHS generally, and USCIS in particular, retains discretion to issue an NTA to a covered noncitizen in expedited removal proceedings to instead place them in section 240 removal proceedings at any time after they are referred to USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523; see also 8 CFR 1208.2(c). In this section we provide some data and information relevant to the ensuing discussion and analysis of the potential impacts of the rule. We first present USCIS data followed by EOIR data. Table 3 shows USCIS data for the Form I–589 and credible fear cases for the five-year span from FY 2016 through FY 2020. TABLE 3—USCIS FORM I–589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL, AND CREDIBLE FEAR DATA [FY 2016–2020] 64 Form I–589 receipts FY 2016 2017 2018 2019 2020 Initial receipts Pending receipts Credible fear completions Positive screen Negative screen All completions Total credible fear cases 65 ......................................................................... ......................................................................... ......................................................................... ......................................................................... ......................................................................... 115,888 142,760 106,041 96,861 93,134 194,986 289,835 319,202 349,158 386,014 73,081 60,566 74,677 75,252 12,824 9,697 8,245 9,659 16,679 16,134 82,778 68,811 84,336 91,931 28,958 94,048 79,842 99,035 102,204 30,839 Total .................................................................. 554,684 N/A 296,400 60,414 356,814 405,968 5-year Average .......................................... 110,937 307,839 59,280 12,083 71,363 81,194 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Source: USCIS Office of Performance and Quality (OPQ), and USCIS Refugee, Asylum, and International Operations (RAIO) Directorate, CLAIMS 3 database, Global received May 11, 2021. 64 In FY 2020, the credible fear filings are captured in the Form I–870, ‘‘Record of Determination/Credible Fear Worksheet.’’ As part of the credible fear screening adjudication, USCIS Asylum Officers prepare Form I–870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about the applicant, including the applicant’s name, date of birth, gender, country of birth, nationality, ethnicity, religion, language, and information about the applicant’s entry into the United States and place of detention. Additionally, Form I–870 collects sufficient information about the applicant’s marital status, spouse, and children to determine whether they may be included in the determination. Form I–870 also documents the interpreter identification number of the interpreter used during the credible fear interview and collects information about a relative or sponsor in the United States, including their relationship to the applicant and contact information. In previous years credible fear filings included the Form I–867, ‘‘Credible Fear Referral.’’ Prior to FY 2020, the USCIS Asylum Division electronically received information about credible fear determinations through referral documentation provided by U.S. Customs and Border Protection. The referral documentation includes a form containing information about the applicant: Form I–867, Credible Fear Referral. 65 The credible fear total receipts are larger than the sum of positive and negative determinations because the latter apply to ‘‘completions,’’ referring to cases forwarded to EOIR, and thus exclude cases that were administratively closed. As can be seen from Table 3, the Form I–589 pending case number has grown steadily since 2016, and as of May 11, 2021, was 400,200, which is well above the five-year average of 307,839. Over that same period, the majority, 83.1 percent, of completed credible fear screenings were positive, while 16.9 percent were negative.66 66 Calculation: Positive completions total 296,400/total completions (296,400 + 60,414) = VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 In addition to the credible fear case data presented in Table 3, USCIS data and analysis can provide some insight concerning how long it has taken for the credible fear screening process to be completed. As detailed in this preamble, while this proposed rule’s primary 296,400/356,814 = 0.831 × 100 = 83.1 percent (rounded); negative completions total 60,414/total completions (356,814) = 0.169 × 100 = 16.9 percent (rounded). PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 concern is the length of time before incoming asylum claims are expected to be adjudicated by EOIR, changes to USCIS processes enabled by this proposed rule (including, for example, improved systems for conducting credible fear interviews for individuals who are not in detention facilities) are also expected to reduce processing times for credible fear cases. Table 4 E:\FR\FM\20AUP2.SGM 20AUP2 46927 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules provides credible fear processing durations at USCIS. TABLE 4—CREDIBLE FEAR TIME DURATIONS FOR DETAINED AND NON-DETAINED CASES [In average and median days, FY 2016–2021] Detained FY Non-detained Screen Average 2016 .................................................. 2017 .................................................. 2018 .................................................. 2019 .................................................. 2020 .................................................. 2021 .................................................. Positive ............................................. Negative ........................................... Positive ............................................. Negative ........................................... Positive ............................................. Negative ........................................... Positive ............................................. Negative ........................................... Positive ............................................. Negative ........................................... Positive ............................................. Negative ........................................... Median 23.3 34 23.3 34.2 22.6 32.3 35.6 44.7 37.2 30.3 25.6 29.8 Average 13 26 13 25 16 25 24 33 20 16 15 17 Median 290.6 197.1 570.1 496.1 816.2 811.7 1230.9 1067.3 1252.7 1311.2 955.3 1174.0 163.0 80.5 407.0 354.0 671.0 668.0 1082.0 959.0 1065.0 1247.0 919.0 1109.0 Source: Data and analysis provided by USCIS, RAIO Directorate, SAS PME and data-bricks databases, received May 11, 2021. * FY 2021 includes partial fiscal year data as of May 2021. Table 4 reports the ‘‘durations,’’ defined as the elapsed days from date of apprehension to forwarding of the credible fear screening process at USCIS, in both averages and medians. USCIS has included the most recent figure, which is applicable to May 11, 2021. The total time for cases from apprehension to adjudication by EOIR can be found by summing the times in Table 4 with the times in Table 6, below. The data in Table 4 are not utilized to develop quantitative impacts, but rather are intended to build context and situational awareness. There are several key observations from the information presented. Foremost, there is a substantial difference between durations for the detained and the non-detained populations. The existence of a gap is expected because USCIS can interface with detained individuals rapidly. However, the gap has grown over time; in 2016 the duration for positivescreened processing was 12.5 times greater, but by 2021 it had grown to a factor of nearly 40.67 Second, and relatedly, there was a substantial duration rise through 2019 for both detained and non-detained screenings, although there has been a recent pullback. Furthermore, the duration for negative screenings is lower across the board than for positive screenings—as of the most recent data point the duration was about 19 percent lower for negative screened cases.68 It is also seen that the 2021 average durations for detained cases are relatively close to 2016–2018 levels, with this series witnessing a spike in 2019. Since some of the EOIR data are presented in medians, we note that the median durations are lower than the means for both screened types. This indicates that a small number of cases take an exceptionally long time to resolve, resulting in large outlier data points that skew the mean upwards. It is noted that for non-detained cases, the gap between median and mean duration is relatively consistent up to 2021, but the mean and median converge toward the end of the period; this feature of the data could indicate that fewer outlier durations were represented in the data. It is possible that the proposed rule may impact employment authorization applications and approvals in terms of volume and timing. While we cannot predict the net change in filings for the Form I–765 categories, we present data on initial filings and approvals for three asylum-related categories (Table 5). As a result of the rule, there could be substitutions in Form I–765 categories from the (c)(8), Applicant for Asylum/ Pending Asylum, into the (a)(5), Granted Asylum Under Section 208, and (a)(10) Granted Withholding of Removal/243 (H) categories, in Table 5. TABLE 5—USCIS FORM I–765 APPLICATION FOR EMPLOYMENT AUTHORIZATION INITIAL RECEIPTS AND APPROVALS RELATED TO ASYLEE CATEGORIES [FY 2016–2020] EAD category (a)(5) Granted Asylum Under Section 208 EAD category (c)(8) Applicant for Asylum/Pending Asylum FY khammond on DSKJM1Z7X2PROD with PROPOSALS2 Initial receipts 2016 2017 2018 2019 ................................................................................. ................................................................................. ................................................................................. ................................................................................. 67 Calculations: For 2016, 290.6 average days/23.3 average days = 12.5; for 2021, 1174.0 average days/ 25.6 average days = 39.4. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 29,887 32,673 38,743 47,761 Approvals 27,139 29,648 39,598 41,288 Initial receipts 169,970 261,782 262,965 216,038 Approvals 152,269 234,053 246,525 177,520 68 Calculation: [1¥(955.3 days/1174.0 days)] = .186, rounded to .19. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 EAD category (a)(10) Granted Withholding of Removal/243 (H) Initial receipts 2,008 1,936 1,733 2,402 Approvals 1,621 1,076 1,556 2,101 46928 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules TABLE 5—USCIS FORM I–765 APPLICATION FOR EMPLOYMENT AUTHORIZATION INITIAL RECEIPTS AND APPROVALS RELATED TO ASYLEE CATEGORIES—Continued [FY 2016–2020] EAD category (a)(5) Granted Asylum Under Section 208 EAD category (c)(8) Applicant for Asylum/Pending Asylum FY Initial receipts Approvals Initial receipts Approvals EAD category (a)(10) Granted Withholding of Removal/243 (H) Initial receipts Approvals 2020 ................................................................................. 31,931 36,334 233,864 183,820 3,318 2,554 5-year total ................................................................ 180,995 174,007 1,144,619 994,187 11,397 8,908 Average ............................................................. 36,199 34,801 228,924 198,837 2,279 1,782 Source: USCIS, Office of Performance and Quality (OPQ), CLAIMS 3, data obtained May 11, 2021, https://www.uscis.gov/sites/default/files/ document/reports/I-765_Application_for_Employment_FY03-20.pdf (last visited August 9, 2021). Across the three relevant employment authorization categories, the total of the averages is 267,402 initial EADs, with a total of 235,420 approved EADs. Having presented information and data applicable to USCIS specifically, we now turn to EOIR data and information. Table 6 presents average and median processing times for EOIR to complete credible fear cases originating from the credible fear screening process, positive and negative, and detained and nondetained (the processing time represents that time between when a case is lodged in EOIR systems and a final decision). Note that the ‘‘initial case completions’’ are not directly comparable to USCIS completions (Table 3) in terms of annual volumes for two primary reasons. First, there can be timing differences in terms of when a credible fear case is sent to EOIR and when it is lodged in their processing systems. Second, not all individuals determined to have a credible fear follow up with their case with EOIR, and some cases filed are administratively closed. Therefore, as a general rule, case completions by EOIR would be necessarily lower than ‘‘completions’’ at USCIS. TABLE 6—EOIR TIME DURATION METRICS, DAYS, AND COMPLETIONS FOR CASES WITH A CREDIBLE FEAR ORIGIN Average processing time FY Median processing time Initial case completions 6A. Average and Median Processing Times (in Days) for Form I–862 Initial Case Completions With a Credible Fear Origin 2016 ..................................................................................................................................... 2017 ..................................................................................................................................... 2018 ..................................................................................................................................... 2019 ..................................................................................................................................... 2020 ..................................................................................................................................... 2021–March 31, 2021 (years) * ........................................................................................... 413 447 648 669 712 1,078 (2.95) 214 252 512 455 502 857 (2.35) 16,794 26,531 33,634 55,404 33,517 6,646 6B. Average and Median Processing Times (in Days) for Form I–862 Initial Case Completions With a Credible Fear Origin and Only an Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of Removal Under the CAT 2016 ..................................................................................................................................... 2017 ..................................................................................................................................... 2018 ..................................................................................................................................... 2019 ..................................................................................................................................... 2020 ..................................................................................................................................... 2021–March 31, 2021 (years) * ........................................................................................... 514 551 787 822 828 1,283 (3.52) 300 378 690 792 678 1,316 (3.61) 7,519 13,463 19,293 30,052 21,058 3,730 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Source: EOIR, Planning, Analysis, and Statistics Division (‘‘PASD’’), data obtained April 19, 2021. * Current through March 31, 2021. The FY 2021 data point reflects data through the start of FY 2021 to March 31, 2021, and we have included the current processing times in years for situational awareness. As Table 6 shows, there was an across-the-board jump in processing times in 2018, followed by a leveling off until 2021, when the processing times surged again. VerDate Sep<11>2014 19:05 Aug 19, 2021 Jkt 253001 3. Population The population expected to be affected by this rule is the total number of credible fear completions processed annually by USCIS (71,363, see Table 3), split between an average of 59,280 positive-screen cases and 12,083 negative-screen cases. This can be considered the maximum, ‘‘encompassing,’’ population that could be impacted. However, we take into consideration larger populations to PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 account for variations and uncertainty in the future population. 4. Impacts of the Rule This section is divided into three modules. The first (A) focuses on impacts to asylum seekers, presented on a per-person basis. The second (B) discusses costs to the Federal Government, and the third (C) discusses other, possible impacts, including benefits. E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 i. Impacts to the Credible Fear Asylum Population Under the change in procedures of this proposed rule, asylum applicants who have established a credible fear of persecution or torture would not be required to file Form I–589 with USCIS. Individuals in this population could accrue cost-savings relevant to this change. There is no filing fee for Form I–589, and the time burden is currently estimated at 12.0 hours per response, including the time for reviewing instructions, and completing and submitting the form.69 With regard to cost-savings, DHS believes the minimum wage is appropriate to rely on as a lower bound, as the applicants would be new to the U.S. labor market. The Federal minimum wage is $7.25 per hour; however, in this proposed rule, we rely on the ‘‘effective’’ minimum wage of $11.80. As The New York Times reported, ‘‘[t]wenty-nine states and the District of Columbia have state-level minimum hourly wages higher than the federal [minimum wage],’’ as do many city and county governments. This New York Times report estimates that ‘‘the effective minimum wage in the United States [was] $11.80 an hour in 2019.’’ 70 Therefore, USCIS uses the ‘‘effective’’ minimum hourly wage rate of $11.80 to estimate a lower bound. USCIS uses a national average wage rate across occupations of $27.07 71 to take into consideration the variance in average wages across States as an upper bound. DHS accounts for worker benefits by calculating a benefits-to-wage multiplier using the most recent Bureau of Labor Statistics (‘‘BLS’’) report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS relies on a benefits-towage multiplier of 1.45 and, therefore, is able to estimate the full opportunity cost per applicant, including employee wages and salaries and the full cost of 69 See Instructions for Form I–589, Application for Asylum and for Withholding of Removal, OMB No.1615–0067 (expires July 31, 2022), https:// www.uscis.gov/sites/default/files/document/forms/ i-589instr.pdf (last visited May 12, 2021). 70 Ernie Tedeschi, Americans Are Seeing Highest Minimum Wage in History (Without Federal Help), The New York Times (Apr. 24, 2019), https:// www.nytimes.com/2019/04/24/upshot/whyamerica-may-already-have-its-highest-minimumwage.html. We note that with the wage level dated to 2019, we do not make an inflationary adjustment because the Federal minimum wage has not changed since then. 71 For the average wage for all occupations, the Departments rely on statistics of the U.S. Department of Labor. See U.S. Dep’t of Labor, Bureau of Labor Statistics (‘‘BLS’’), May 2020 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_ nat.htm#00-0000 (last visited May 13, 2021). VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 benefits such as paid leave, insurance, retirement, and other benefits.72 The total rate of compensation for the effective minimum hourly wage is $17.11 ($11.80 × benefits burden of 1.45), which is 62.8 percent higher than the Federal minimum wage.73 The total rate of compensation for the average wage is $39.25 ($27.07 × benefits burden of 1.45). For applicants who have established a credible fear, the opportunity cost of 12 hours to file Form I–589 at the lower and upper bound wage rates is $205.32 (12 hours × $17.11) and $471.00 (12 hours × $39.25), respectively, with a midrange average of $338.16. In addition, form instructions require a passport-style photograph for each family member associated with the Form I–589 filing. The Departments obtain an estimate of the number of additional family members applicable via data on biometrics collections for the Form I–589. Biometrics information is collected on every individual associated with a Form I–589 filing, and the tracking of collections is captured in the USCIS Customer Profile Management System (‘‘CPMS’’) database. A query of this system reveals that for the five-year period of FY 2016 through FY 2020, an average of 296,072 biometrics collections accrued for the Form I–589 annually. Dividing this figure by the same five-year period average of 110,937 initial filings (Table 3) yields a multiplier of 2.67 (rounded).74 Under the supposition that each photo incurs costs to applicants of $10,75 there could be $26.70 in additional cost-savings at either wage 72 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour)/ (Wages and Salaries per hour) ($38.60 Total Employee Compensation per hour)/($26.53 Wages and Salaries per hour) = 1.454957 = 1.45 (rounded). See U.S. Department of Labor, BLS, Economic News Release, Employer Cost for Employee Compensation (December 2020), Table 1. Employer Costs for Employee Compensation by Ownership (Dec. 2020), https://www.bls.gov/news.release/archives/ecec_ 03182021.pdf. (last visited Mar. 31, 2021). 73 The Federal minimum wage is $7.25 hourly, which burdened at 1.45 yields $10.51. It follows that: (($17.11 wage¥$10.51 wage)/$10.51)) wage = 0.628, which rounded and multiplied by 100 = 62.8 percent. 74 Calculation: Average I–589 biometrics collections 296,072/110,937 average initial I–589 filings = 2.67 (rounded). Data were obtained from the USCIS Immigration Records and Identity Services (‘‘IRIS’’) Directorate, via the CPMS database (data obtained May 7, 2021). 75 The U.S. Department of State estimates an average cost of $10 per passport photo in their supporting statement for their Paperwork Reduction Act (PRA) submission for the Application for a U.S. Passport, OMB #1405–0004 (DS–11) (Feb. 8, 2011), http://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the Supporting Statement). PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 46929 bound.76 The resulting cost savings per applicant from no longer having to file Form I–589 could range from $232.02 to $497.70, with a midrange of $364.86.77 Though these applicants would no longer be required to file Form I–589, DHS recognizes that applicants would likely expend some time and effort to prepare for their asylum interviews and provide documentation for their asylum claim under this rule as well. DHS does not know exactly how long, on average, an individual may spend preparing for their credible fear interviews under the proposed rule, and how that amount of time and effort would compare to the time individuals currently spend preparing for the credible fear interview. If the increased time were substantial— i.e., above and beyond that currently earmarked for the asylum application process—lower cost-savings could result. Additionally, asylum applicants with a positive credible fear determination would still submit biometrics to USCIS. Hence, for applicants that file a Form I– 589, photos would be collected via this biometrics process for the credible fear determination as well as for the Form I– 589 application. Under this proposed rule, there would be a change in process such that applicants would submit biometrics at an asylum office as opposed to an USCIS Application Support Center (‘‘ASC’’). As a result, there could be time- and travelassociated impacts driven by this change, but because the requirements remain largely the same, we do not attempt to quantify them. Specifically, the average distance and travel time is likely to differ between asylum offices and ASCs, thereby possibly impacting the direct travel (mileage) cost as well as the travel-time related opportunity costs. However, the Departments assume these differences would be negligible, and therefore we do not quantify them. Under the proposed rule, asylum applicants who established a credible fear would be able to file for work authorization via the Form I–765, Application for Employment Authorization (‘‘EAD’’), while their asylum application is being adjudicated. We cannot say, however, whether the volume of Form I–765 EADs filed would increase or decrease in upcoming years due to this proposed rule. Currently, asylum applicants can file for an EAD under the asylum (c)(8) category while 76 Calculation: $10 per photo cost × 2.67 photos per I–589 application = $26.70. 77 Calculation: $205.32 + $26.70 = $232.02; $338.16 + $26.70 = $364.86; $471.00 + $26.70 = $497.70. E:\FR\FM\20AUP2.SGM 20AUP2 46930 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 their asylum application is pending. Such applications are subject to a 365day waiting period that commences when their completed Form I–589 is filed. Asylum applicants who establish a credible fear would still be subject to the 365-day waiting period.78 Applicants would still be able to file for their EADs under the (c)(8) category. We analyze the impacts regarding the EAD filing in two steps, explaining first why filing volumes might decline and related impacts, and then why countervailing factors might mitigate such a decline. A result of this proposed rule is that asylum applications for some individuals pursuant to this proposed rule could be granted asylum earlier than they would be under current conditions. Since an asylum approval grants work authorization incident to status and USCIS automatically provides an asylum-granted EAD ((a)(5)) after a grant of asylum by USCIS, some applicants may choose not to file for an EAD based on the pending asylum application under the expectation that asylum would be granted earlier than the EAD approval. This could result in cost savings to some applicants. There is currently no filing fee for the initial (c)(8) EAD Form I–765 application, and the time burden is currently estimated at 4.75 hours, which includes the time associated with submitting two passport-style photos along with the application.79 As stated earlier, the Department of State estimates that each passport photo costs about $10 each. Submitting two passport photos resulting in an estimated cost of $20 per Form I–765 application. Because the (c)(8) EAD does not include or require, at the initial or renewal stage, any data on employment, and since it does not involve an associated labor condition application, we have no information on wages, occupations, industries, or businesses that may employ such workers. Hence, we continue to rely on the wage bounds (effective minimum and national average) developed earlier. At the wage bounds relied upon, the opportunity cost-savings are $81.27 (4.75 hours × $17.11 per hour), and $186.44 (4.75 hours × $39.25). When the $20 photo cost is included, the cost-savings would 78 A preliminary injunction in Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts members of certain organizations from this 365-day waiting period. Such members are subject to the 180-day Asylum EAD Clock. 79 See Instructions for Form I–765, Application for Employment Authorization, OMB No. 1615– 0040 (expires July 31, 2022), https://www.uscis.gov/ i-765 (last visited May 12, 2021). VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 be $101.27 and $206.44 per applicant, respectively. However, some might choose to file for an EAD after being granted asylum, or even if they expect asylum to be granted earlier than the EAD approval, they may want to have documentation that reflects that they are employment authorized. In the discussion of the possible file volume decline for the Form I–589, above, we noted that applicants and family members would continue to submit biometrics as part of their asylum claim, and that, as a result, there would not be costs or cost-savings changes germane to biometrics. For the Form I–765(c)(8) category, USCIS started collecting biometrics, and the associated $85 biometrics service fee, in October 2020.80 The submission of biometrics involves travel to an ASC for the biometric services appointment. In past rulemakings, DHS estimated that the average round-trip distance to an ASC is 50 miles, and that the average travel time for the trip is 2.5 hours.81 The cost of travel also includes a mileage charge based on the estimated 50-mile round trip at the 2021 General Services Administration (‘‘GSA’’) rate of $0.56 per mile.82 Because an individual would spend an average of 1 hour and 10 minutes (1.17 hours) at an ASC to submit biometrics,83 summing the ASC time and travel time yields 3.67 hours. At the low- and high-wage bounds, the opportunity costs of time are $62.79 and $144.05.84 The travel cost is $28, which is the per mileage reimbursement rate of 0.56 multiplied by 50-mile travel distance. Summing the time-related and travel costs generates a per-person biometrics submission cost of $90.79, at the low-wage bound and $172.05 at the high-wage bound.85 While the 80 USCIS collects biometrics for Form I–765 (c)(8) submissions, but a preliminary injunction in Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts members of certain organizations from this biometrics collection. 81 See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 2013). 82 GSA mileage rate of $0.56. See GSA, Privately Owned Vehicle Mileage Reimbursement Rates (effective January 1, 2021), https://www.gsa.gov/ travel/plan-book/transportation-airfare-rates-povrates/privately-owned-vehicle-pov-mileagereimbursement-rates (last visited Aug. 4, 2021). 83 See Instructions for Form I–765, Application for Employment Authorization, OMB No. 1615– 0040 (expires July 31, 2022), https://www.uscis.gov/ i-765 (last visited May 12, 2021). 84 Calculations: Total time burden 3.67 hours × total rate of compensation for the effective wage $17.11 = $62.79; total time burden 3.67 hours × total rate of compensation for the average wage $39.25 = $144.05. 85 Calculations: Opportunity cost of time, effective wage $62.79 + travel cost $28 = $90.79; PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 biometrics collection includes the $85 service fee, fee waivers and exemptions are granted on a case-by-case basis (across all forms) that are immaterial to this proposed rule. Accordingly, not all individuals pay the fee. When the opportunity costs of time for filing Form I–765 ($101.27 and $206.44, respectively) are added to the opportunity costs of time and travel for biometrics submissions ($90.79 and 172.05), the total opportunity cost of time to file Form I–765 and submitting biometrics are $192.07 and $378.49, respectively. For those who pay the biometrics service fee, the total costs are $277.07 and $463.49, respectively, with a midpoint of $370.28.86 These figures represent the maximum per-person cost savings for those who choose not to file for an EAD.87 Having developed the cost-savings for applicants who do not file for an EAD, we now turn to countervailing factors against the potential decline in Form I– 765 volumes. First, applicants will benefit from a timing change relevant to the EAD waiting period as it relates to the ‘‘filing date’’ of their asylum application that will allow an EAD to be filed earlier than it could be currently. USCIS allows for an EAD to be filed under 8 CFR 208.7 when an asylum application is pending and certain other conditions are met. Here, an asylum application would be pending when the credible fear determination is served on the individual as opposed to current practice under which the asylum application is lodged in immigration court. This change in timing could allow some EADs to be approved earlier for those who file for an EAD with a pending asylum application. In this Opportunity cost of time, average wage $144.05 + travel cost $28 = $172.05. 86 Calculations: $192.07 + biometrics services fee $85 = $277.07; $378.49 + biometrics services fee $85 = $463.49. While we have the overall count for biometrics for the period from October 1, 2020 through May 1, 2021, we do not know how many biometrics service fees were collected with these biometrics submissions; the fee data are retained by the USCIS Office of the Chief Financial Officer (‘‘OCFO’’), but the Form I–765 fee payments are not captured by eligibility class. 87 There is a scenario that the Departments account for, though it is not likely to occur often. Currently, an asylum applicant might file for an EAD and have the EAD approved prior to the grant of asylum. It is possible that, under this proposed rule, asylum may be approved more expeditiously. At the time of the asylum grant, the individual will automatically receive a category (a)(5) EAD based on the grant of asylum; if they did file for an EAD, technically the filing costs associated with the EAD would be accounted for as sunk costs, since the (c)(8) EAD does not actually provide any benefit over the (a)(5) EAD. This would only apply if the proposed rule itself was responsible for the more expeditious asylum grant, and again, we only account for this possibility since it cannot be ruled out. E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules sense, the EAD remains the same in duration, but the starting point shifts to an earlier position for asylum applicants who will file for an initial EAD under the (c)(8) category. DHS would begin to consider for parole on a case-by-case basis all noncitizens who have been referred to USCIS for a credible fear screening under the slightly expanded set of factors provided for in the proposed rule during the relatively short period between being referred to USCIS for a credible fear screening interview and the issuance of a credible fear determination. A parole grant does not constitute work authorization, however, and currently there are two Form I–765 classes, (a)(5), ‘‘Granted Asylum Sec. 208,’’ and (a)(10), ‘‘Granted Withholding of Removal/243 (H),’’ that could apply to applicants filing for asylum pursuant to the parole process under this proposed rule. In the past, some parolees under these categories have been able to obtain EADs sooner than they would if they were explicitly subject to the filing clock that applies to a pending Form I–589 application. Given the two changes discussed above related to the EAD filings—(i) the change in timing under when an EAD can be filed; and (ii) the somewhat expanded set of circumstances under which certain credible fear cases may be considered for parole—some applicants may file for an EAD, even under the expectation that their asylum could be granted earlier, if they expect to receive an (a)(5) asylum granted EAD even sooner. In this sense, the potential for more rapid approvals of an EAD claim may be expected to provide a net pecuniary benefit even in light of a more expeditious asylum claim. Coupled with the expectation that some individuals may seek an EAD for the non-pecuniary benefit associated with its documentary value, we cannot determine if these countervailing influences might limit, or even completely absorb, any reductions in EAD filing for credible fear asylum applicants. Regardless of whether, under the proposed rule, it is the more expeditious asylum or EAD approval that is binding for purposes of work authorization, individuals who enter the labor force earlier are able to earn income earlier. The assessments of possible impacts rely on the implicit assumption that credible fear asylum seekers who receive employment authorization will enter and be embedded in the U.S. labor force at the time of the proposed rule being effective. This assumption is justifiable for those whose labor force entry was effectuated by the EAD approval, as opposed to the grant of VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 asylum. We believe this assumption is justifiable because applicants would generally not have expended the direct and opportunity costs of applying for an EAD if they did not expect to recoup an economic benefit. We also take the extra step of assuming these entrants to the labor force are employed. It is possible that some applicants who are eventually denied asylum are currently able to obtain work authorizations—approved while their asylum application was pending. We do not know what the annual or current scale of this population is, but it is an expected consequence of this proposed rule that such individuals would not obtain work authorizations in the future. The impact is attributable to the difference in days between when asylum would be granted under the proposed rule and the current baseline. USCIS describes this distributional impact in more detail. Since a typical workweek is 5 days, the total day difference (‘‘D’’) can be scaled by 0.714 (5 days/7 days) and then multiplied by the average wage (‘‘W’’) and the number of hours in a typical work day (8) to obtain the impact, as in the formula: D × 0.714 × W × 8. In terms of each actual workday, the daily distributional impact at the wage bounds are $136.88 ($17.11 × 8 hours) and $314.00 ($39.25 × 8 hours), respectively, on a per-person basis, with a midrange average of $225.44. USCIS cannot expand the per-person per-day quantified impacts to a broader monetized estimate. Foremost, while Table 5 provides filing volumes for the asylum relevant EADs, we cannot determine how many individuals within this population would be affected. In addition, we cannot determine what the average day difference would be for any individual that could be impacted. To quantify the day difference, the Departments would need to simultaneously analyze the current and future interaction between the asylum grant and EAD approvals. Doing so for the current system is conceptually possible with a significant devotion of time and resources, but it is not possible to conduct a similar analysis for future cases without relying on a number of assumptions that may not be tractable. As a result, we cannot extend the perperson cost (in terms of earnings) basis to an aggregate monetized cost, even if USCIS knew either the population impacted or the day-difference average because an estimate of the costs would require both data points. The impact accruing to labor earnings developed above has the potential to include both distributional effects (which are transfers) and indirect benefits to PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 46931 employers.88 The distributional impacts would accrue to asylum applicants who enter the U.S. labor force earlier than under current regulations, in the form of increased compensation (wages and benefits). A portion of this compensation gain might be transferred to asylum applicants from others that are currently in the U.S. labor force or eligible to work lawfully. Alternatively, employers that need workers in the U.S. labor market may benefit from those asylum applicants that receive their employment authorization earlier as a result of the proposed rule, gaining productivity and potential profits that the asylum applicant’s earlier start would provide. Companies may also benefit by not incurring opportunity costs associated with the next-best alternative to the immediate labor the asylum applicant would provide, such as having to pay existing workers to work overtime hours, if in fact it was necessary or they were requested to work overtime. We do not know what this next-best alternative may be for those companies. As a result, the Departments do not know the portion of overall impacts of this proposed rule that are transfers or benefits, but the Departments estimate the maximum monetized impact of this proposed rule in terms of a daily, perperson basis compensation. The extent to which the portion of impacts would accrue to benefits or transfers is difficult to discern and would depend on multiple labor market factors. However, we think it is reasonable to posit that the portion of impacts attributable to transfers would mainly be benefits, for the following reason: If there are both workers who obtain employment authorization under this rule and other workers who are available for a specific position, an employer would be expected to consider any two candidates to be substitutable to a high degree. There is an important caveat, however. There could be costs involved in hiring asylum seekers that are not captured in this discussion. As the U.S. economy recovers from the effects of the COVID– 19 pandemic, there may be structural changes to the general labor market and to specific job positions that could impact the next-best alternatives that employers face. The Departments cannot speculate on how such changes in relation to the earlier labor market entry of some asylum applicants could 88 Transfer payments are monetary payments from one group to another that do not affect total resources available to society. See OMB, Circular A–4 at 14, 38 (Sept. 17, 2003), https:// www.whitehouse.gov/sites/whitehouse.gov/files/ omb/circulars/A4/a-4.pdf (further discussion of transfer payments and distributional effects). E:\FR\FM\20AUP2.SGM 20AUP2 46932 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules mitigate the beneficial impacts to employers. The early possible entry into the labor force of some positive-screened credible fear asylum applicants is not expected to change the composition of the labor market, as it would affect only the timing, not the scale of the labor force. However, there may be some labor market impacts from asylum seekers who currently enter the labor market with a pending asylum application and who may no longer be entering the labor market under this proposed rule if they get a decision sooner on their asylum claim. As we cannot predict how many people would be impacted in such a way, we are not able to quantify this impact. Furthermore, there may be tax impacts for the Government. It is difficult to quantify income tax impacts of earlier employment in the tight labor market scenario because individual tax situations vary widely, but the Departments estimate the potential contributory effects on employment taxes, namely Medicare and Social Security, which have a combined tax rate of 7.65 percent (6.2 percent and 1.45 percent, respectively).89 With both the employee and employer paying their respective portion of Medicare and Social Security taxes, the total estimated accretion in tax transfer payments from employees and employers to Medicare and Social Security is 15.3 percent.90 The Departments will rely on this total tax rate where applicable. The Departments are unable to quantify other tax transfer payments, such as for Federal income taxes and State and local taxes. As noted above, the Departments do not know how many individuals with a positive credible fear determination will be affected, and what the average day-difference would be, and therefore the Departments cannot make an informed monetized estimate of the potential impact. It therefore follows that the Departments cannot monetize the potential tax impacts of the proposed rule. However, the Departments can provide partial quantitative information by focusing on the workday earnings presented earlier. At the wage bounds, the workday khammond on DSKJM1Z7X2PROD with PROPOSALS2 89 See Internal Revenue Service Publication 15, Circular E, Employer’s Tax Guide for Specific Information on Employment Tax Rates (Feb. 4, 2021), https://www.irs.gov/pub/irs-pdf/p15.pdf; see also Market Watch, More Than 44 Percent of Americans Pay No Federal Income Tax (Sept. 16, 2018), https://www.marketwatch.com/story/81million-americans-wont-pay-any-federal-incometaxes-this-year-heres-why-2018-04-16. 90 Calculation: (6.2 percent Social Security + 1.45 percent Medicare) × 2 employee and employer losses = 15.3 percent total estimated tax loss to Government. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 earnings, at $136.88 and $314.00, are multiplied by 0.153 to obtain $20.94 and $48.04, respectively, with a midpoint of $34.49, which are the daily employment tax impacts per individual. The tax impacts per person would accrue to the total day-difference in earnings scaled by 0.714, to reflect a five-day workweek. Having developed partial (based on an individual basis) monetized impacts of this proposed rule, there are two important caveats applicable to the population of asylum applicants who have received a positive credible fear determination. Foremost, as we detail extensively in the following module, there will be resource requirements and associated costs needed to make this proposed rule operational and effective. These changes will not occur instantaneously and may require months or even a year or more to fully implement. While existing USCIS resources will be able to effectuate changes for some individuals rather quickly, others (and thus the entire population from an average perspective) will face a time horizon in realizing the impacts—generally the impacts are beneficial as they include earlier asylum determinations, income gains, and possible filing cost-savings. While the time horizon would not be accounted as a cost to applicants, some may face a delay in realizing such benefits. Second, despite the possibility that some baseline EAD filers may choose not to file in the future, there could be mitigating effects to concomitant volume declines for Form I–765(c)(8) submissions. In closing, we have noted that the impacts developed in this section apply to the population that receives a positive credible fear determination. Additionally, for the subset of this population that receives a negative asylum determination from USCIS, the possibility of de novo review of their claim by an IJ may benefit some applicants by affording another opportunity for review and approval of their asylum claims. ii. Impacts to USCIS a. Total Quantified Estimated Costs of Regulatory Changes In this section, DHS discusses impacts to the Federal Government. Where possible, cost estimates have been quantified, otherwise they are discussed qualitatively. The total annual costs are provided only for those quantified costs that can be applied to a population. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 Costs of Staffing to USCIS USCIS will need additional staffing to implement the provisions presented in this proposed rule. The staffing requirement will largely depend on the anticipated volume of credible fear referrals. In addition to asylum officers, USCIS will require additional supervisory staff, operational personnel, and organizational structures commensurate with the number of asylum officers needed. USCIS anticipates an increased need for highergraded field adjudicators and supervisors to implement the provisions of this proposed rule. Approximately 92 percent of the field asylum officers are currently employed at the GS–12 pay level or lower.91 Under this model, USCIS will be assuming work normally performed by an IJ. EOIR data indicate the weighted average salary of $155,089 in FY 2021 for IJs, $71,925 for Judicial Law Clerks (‘‘JLC’’s), $58,394 for Legal Assistants, $132,132 for DHS Attorneys, and $98.51 per hour for interpreters.92 Notably, entry-level IJs are required to adjudicate a wider array of immigration applications than asylum officers, and their decisions are not subject to 100 percent supervisory review, unlike current USCIS asylum officers. As such, under this proposed rule, USCIS asylum officers making final decisions on statutory withholding of removal and CAT protection cases would be at a GS– 13 minimum, considering they will be conducting adjudications traditionally performed only by IJs.93 In addition, first-line Supervisory Asylum Officers (‘‘SAO’’s) reviewing these decisions would be graded at a GS–14.94 Currently, not all SAOs are at a grade GS–14. However, aligning all first-line SAOs to a GS–14 ensures operational flexibility and makes this position consistent with the similar work processes and functions performed by the first-line Supervisory Refugee Officer position. Currently, USCIS refers all credible fear determinations to IJs at EOIR. This 91 In 2021, the base salary for a GS–12 ranges from $66,829, at step 1, up to $86,881, at step 10. See Office of Personnel Mgmt., Salary Table 2021–GS Incorporating the 1% General Schedule Increase Effective January 2021, https://www.opm.gov/ policy-data-oversight/pay-leave/salaries-wages/ salary-tables/pdf/2021/GS.pdf (last visited May 17, 2021). 92 Weighted average base salaries across position, FY, and location are drawn from DOJ EOIR PASD analysis. Interpreter wages are presented hourly here, as these positions are paid differently and not always on an annual basis. In 2021, the base salary for a GS–15 step 3 is $117,824 and step 4 is $121,506. See id. 93 In 2021, the base salary for a GS–13 step 1 is $79,468. See id. 94 In 2021, the base salary for a GS–14 step 1 is $93,907. See id. E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules proposed rule continues to provide for the possibility that individuals who receive a negative credible fear determination may request review of the negative determination by an IJ at EOIR. Reviewing historical EOIR data on the amount of time required to complete a typical hearing with a credible fear origin and only an application for asylum, the median duration for credible fear merit plus master hearings from FY 2016 through FY 2020 is about 97 minutes, or 1.6 hours. Factoring in the EOIR weighted average salaries for the IJs, JLCs, DHS Attorneys, and interpreters required for EOIR to complete these hearings, we estimate the median cost to be $470.62 95 per hearing over the same time period. USCIS analyzes a range of credible fear cases to estimate staffing requirement costs. At a lower bound volume of 75,000 credible fear cases, USCIS assumes it would receive fewer credible fear cases compared to prior years (with the exception of FY 2020, which had a lower number of credible fear cases due to the COVID–19 pandemic and resulting border closures). A volume of 300,000 credible fear cases is an upper bound, based on the assumption that nearly all individuals apprehended will be placed into expedited removal for USCIS to process. As shown in Table 3, the lowest number of credible fear cases received within the last five years was 79,842 in FY 2017, while the highest was 102,204 in FY 2019. DHS recognizes that the estimated volume of 300,000 is nearly three times the highest annual number of credible fear cases received, but DHS presents this as an upper bound estimate to reflect the uncertainty concerning an operational limit to how many credible fear cases could be handled by the agency in the future. Inclusion of this unlikely upper bound scenario is intended only to present information concerning the potential costs should the agency consider an intervention at the highest end of the range. USCIS expects volumes to fall within the lower and upper bounds and therefore we also provide a primary estimate of 150,000 credible fear cases.96 USCIS has estimated the staffing resources it will need to implement this proposed rule. At the three volume levels of credible fear cases, USCIS plans to hire between 794 and 4,647 total new positions, with a primary estimate of 2,035 total new positions.97 The estimated costs associated with payroll, non-payroll, and other general expenses including interpreter services, transcription services, facilities, physical security, information technology (‘‘IT’’) case management, and other contract, supplies, and equipment are anticipated to begin in FY 2022. In developing the quantified costs of this proposed rule, there are likely to be initial costs associated with the hiring and training of staff, and those payroll and other costs associated with the additional personnel would continue in future years. Additionally, as was explained in Section G of this preamble, DHS expects a phased approach to implementation due to budgetary and logistical factors. The cost estimates developed below focus on three volume bands and are based on initial data and staffing models that captured initial implementation costs accruing to FY 2022 and FY 2023. It therefore partially captures the likely phasing of resourcing and costs, but not the full phasing that 46933 could extend into further years. As of the final drafting of this proposed rule, DHS does not have the appropriate data to integrate a full phasing of the implementation in terms of quantified resource costs. However, we do not believe a partial implementation significantly skews the expected costs of this proposed rule. We offer some additional comments concerning this phasing of implementation as it relates to costs at the conclusion of this analysis. The Departments recognize that initial costs are likely to spill into future years depending on the pace of hiring, employee retention, obtaining and signing contracts (for interpreters, transcription, facilities), training, etc. For the remainder of FY 2021, DHS will finalize job descriptions, post new positions, and begin the hiring process to onboard some new Federal employees, and DHS will work to procure new contracts for interpreters, transcription, facilities, and security staff as its current fiscal situation allows. In FY 2022, the implementation costs are expected to range between $179.8 million and $952.4 million with a primary cost estimate of $438.2 million, assuming all staff is hired and corresponding equipment needs are purchased in the fiscal year. DHS recognizes that, operationally, it may take more time to attain the staffing postures described. However, we are not able to reliably predict those timelines due to the uncertain nature of the recruitment and onboarding processes. Any delay in hiring would reduce the first-year costs of implementation, as explained further below. The itemized planned resources are presented in Table 7. TABLE 7—ESTIMATED USCIS FY 2022 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS [$ in thousands] 75k cases khammond on DSKJM1Z7X2PROD with PROPOSALS2 (A) Staffing ................................................................................................................................... Payroll ................................................................................................................................... Non-Payroll ........................................................................................................................... (B) General Expenses ................................................................................................................. Interpreter Services .............................................................................................................. Transcription Services .......................................................................................................... 95 Estimate based on analysis provided by EOIR on May 19, 2021, of median digital audio recording (‘‘DAR’’) length data from all merit and master asylum hearings between FY 2016 and FY 2020. The five-year average estimated cost of hearings is based on 2,087 assumed hours per year for the IJ, JLC, and DHS attorneys’ at the annual salaries shown, plus the hourly cost per interpreter. These annual values were multiplied by the respective sums of the annual median lengths of master and merit hearings for corresponding years to produce the five-year average cost per hearing of $470.62. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 96 Note that the primary estimate of 150,000 is not equal to the average of the lower volume of 75,000 credible fear cases and the upper volume of 300,000 credible fear cases. Rather, this primary estimate, based on OCFO modeling, represents the number of cases that the agency may reasonably expect. The OCFO volume levels were developed as a guide for several possible ranges that could be realized in the future, taking into account variations in the populations. The actual volume levels could be above or below these levels. 97 Note that the primary estimate of 2,035 total new positions is not equal to the average of the PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 $140,507 113,602 26,905 39,313 6,615 9,366 150k cases $355,175 285,983 69,192 83,025 19,136 26,697 300k cases $806,697 648,257 158,440 145,682 44,179 37,362 lower 794 and upper bound 4,647 estimates. Rather, this primary estimate, based on a staffing allocation model, represents the number of staff in a mix of occupations at a mix of grade levels that the agency may need to hire to handle the volume of credible fear cases. The staffing is commensurate with OCFO model volume levels, which were developed as a guide for several possible ranges that could be realized in the future, taking into account variations in the populations. The actual volume levels and hence staffing could be above or below these levels. E:\FR\FM\20AUP2.SGM 20AUP2 46934 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules TABLE 7—ESTIMATED USCIS FY 2022 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS— Continued [$ in thousands] 75k cases 150k cases 300k cases Facilities ................................................................................................................................ Physical Security .................................................................................................................. IT Case Management ........................................................................................................... Other Contract/Supplies/Equipment ..................................................................................... 6,635 623 12,500 3,574 17,606 1,654 12,500 5,432 40,865 3,839 12,500 6,937 Total ............................................................................................................................... 179,820 438,200 952,379 Source: USCIS Analysis from RAIO and OCFO, May 19, 2021. In FY 2023, USCIS estimates costs between $164.7 million and $907.4 million, with a primary estimate of $413.6 million, as shown in Table 8. The reductions are mostly attributable to non-recurring, one-time costs for new staff and upgrades to IT case management systems, although a decline in costs pertaining to other contracts/supplies/equipment is also expected. The largest expected cost decrease is for IT case management, which is estimated to decline from $12.5 million in FY 2022 down to $4.375 million in FY 2023. Meanwhile, costs for interpreter and transcription services, facilities, and physical security are expected to rise in FY 2023 to factor in resource cost increases. For FY 2024 through FY 2031 of implementation, DHS expects resource costs to stabilize. TABLE 8—ESTIMATED USCIS FY 2023 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS [$ in thousands] 75k cases 150k cases 300k cases (A) Staffing ................................................................................................................................... Payroll ................................................................................................................................... Non-Payroll ........................................................................................................................... (B) General Expenses ................................................................................................................. Interpreter Services .............................................................................................................. Transcription Services .......................................................................................................... Facilities ................................................................................................................................ Physical Security .................................................................................................................. IT Case Management ........................................................................................................... Other Contract/Supplies/Equipment ..................................................................................... $133,427 122,753 10,674 31,267 6,813 9,647 6,834 642 4,375 2,956 $337,047 309,758 27,289 76,554 19,710 27,498 18,134 1,704 4,375 5,133 $766,159 703,852 62,307 141,249 45,504 38,483 42,091 3,954 4,375 6,842 Total ............................................................................................................................... 164,694 413,601 907,408 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Source: USCIS Analysis from RAIO and OCFO, May 19, 2021. To estimate the costs for each category itemized in Tables 7 and 8, USCIS considered the inputs for each. On average, USCIS expects to hire the majority of new staff at the GS–13, step 1 level, and most of those hired will serve as asylum officers. As stated, these officers will be adjudicating statutory withholding of removal and withholding and deferral of removal under the CAT, so their pay will be higher than the current asylum officer pay, which is at a GS–12 level. Additionally, USCIS assumes step 1 because these employees are expected to be new to the position. Payroll costs also include Government contributions to non-pay benefits, such as healthcare and retirement. While payroll is the greatest estimated cost to hiring staff, non-payroll costs include training, equipping, and setting staff up with resources such as laptops, cell phones, office supplies, etc. For example, asylum officers are required to attend and successfully complete a multi-week residential training at a Federal Law VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 Enforcement Training Center (‘‘FLETC’’) as a condition of their continued employment. The estimated cost per student (including FLETC enrollment costs, travel, etc.) is approximately $7,000. The cost of training would apply to any new asylum staff with ‘‘officer’’ in their title. To fully furnish and equip new employees, USCIS estimates a cost of $3,319 per asylum employee. Costs for new equipment would be largely commensurate with the increase in staffing levels. In addition to costs associated with hiring new staff, DHS anticipates that it will need to both increase funding on existing contracts and procure new ones. As a result of this proposed rule, the need for interpretation services will increase as the number of asylum interviews USCIS performs rises. Current interpreter contracts cannot absorb this expected increase. Using current contracts, USCIS applied the current cost model to the estimated increase in case volumes in order to estimate costs. The facilities and PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 physical security estimates were similarly based on current cost models that were expanded to account for additional employees. Additional contract support will also be needed for transcription services to create a written record of the asylum hearing, which staff are not currently employed by USCIS. To create transcription service estimates, USCIS applied EOIR’s current cost model to the estimated increase in case volumes. DHS also anticipates costs associated with general expenses associated with miscellaneous contract, supplies, equipment, etc. commensurate with the increase in staff. The timing of these costs will depend on the hiring timeline but are expected to commence in the first year. DHS recognizes that if it takes more than one year to hire and equip asylum employees, costs may instead be experienced in later years. E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Costs to Information Technology Typology to USCIS DHS is planning upgrades to internal management systems and databases as a requirement to implement this proposed rule. The estimated cost of these upgrades in FY 2022 is a one-time cost of $12.5 million that will impact virtually all processing and recordkeeping systems at USCIS. The cost embodies funds for enhancements and refurbishment to the USCIS Global case management system that would support features such as: Ensuring transition of positive credible fear screening cases to the hearing process currently provided for affirmative asylum cases, support for withholding of removal and CAT adjudication features, non-detained scheduling enhancements, and capabilities to accept and provide review for electronic documents. The one-time cost also includes funds earmarked for teams that support integrations with other internal and external-facing systems, such as recordkeeping, identity management and matching, reporting and analytics, applicant-facing interfaces, and other key USCIS systems, as well as external systems at Immigration and Customs Enforcement (‘‘ICE’’), CBP, or DOJ.98 Included in these $12.5 million costs are the costs to pay staff to make these upgrades. DHS estimates between 30 and 40 individuals, with a little over half contract personnel and the rest being Federal employees, would be involved (either part- or full-time) in the implementation of these enhancements through FY 2022. The Federal personnel would mainly comprise GS–14 and GS– 15 level personnel and supervisory and management staff. IT costs are expected to decline in FY 2023 and remain flat into the future at $4.375 million, which accounts for ongoing operations and maintenance costs. New features or upgrades are not expected at this time, but if they were to be needed in the future, those enhancements would result in additional costs not included here. At present, DHS does not envision new facilities or additional structures being required from an IT perspective to implement this rule. Importantly, this effort is expected to coincide with the first electronic processing of the Form I–589. Since this will be a significant change for processing asylum applications, unexpected errors or system changes could have impacts on this project as well. Additional dependencies rely on the availability of ICE, CBP, and DOJ systems to integrate with USCIS systems to provide for streamlined implementation. However, since this trajectory was enabled outside the scope of this rule, we do not attribute costs to it. As described earlier in this analysis, we expect no net change regarding biometrics collection germane to asylum applications for individuals with a positive credible fear determination. We also detailed how factors concomitant to more expeditious EAD approvals make it impossible to estimate the magnitude or even direction in the net change in Form I–765 filing volumes (related to asylum or withholding of removal), and hence, commensurate biometrics collections (and fee payments). However, given the parameters of this proposed rule, any net change in biometrics would not impose new costs to the Federal Government. The 46935 maximum monthly volume of biometrics submissions allowed by the current ASC contract is 1,633,968 and the maximum annual volume is 19,607,616.99 The average number of individuals that submitted biometrics annually across all USCIS forms for the period FY 2016 through FY 2020 was 3,911,857.100 Given that the average positive-screened credible fear population is 59,280 (Table 3), which is 1.52 percent of the biometrics volume, a volume change would not encroach on these bounds. One scenario that we do account for relates to costs for a particular USCIS– ASC district. The DHS–ASC contract was designed to be flexible to reflect variations in benefit request volumes. The pricing mechanism within this contract embodies such flexibility. Specifically, the ASC contract is aggregated by USCIS district, and each district has five volume bands with its pricing mechanism. The incumbent pricing strategy takes advantage of economies of scale because larger biometrics processing volumes have smaller corresponding biometrics processing prices.101 For example, Table 9 provides an example of the pricing mechanism for a particular USCIS district. This district incurs a monthly fixed cost of $25,477.79, which will cover all biometrics submissions under a volume of 8,564. However, the price per biometrics submission decreases from an average cost of $6.66 for volumes between a range of 8,565 and 20,524 to an average of $5.19 once the total monthly volume exceeds 63,503. In other words, the average cost decreases when the biometrics submissions volume increases (jumps to a higher volume band). TABLE 9—EXAMPLE OF PRICING MECHANISM FOR A USCIS DISTRICT PROCESSING BIOMETRICS APPOINTMENTS, FY 2021 District X Volume band Baseline: Fixed price per month ................................................................... Fixed price per person processed ................................................................ Fixed price per person processed ................................................................ Fixed price per person processed ................................................................ Fixed price per person processed ................................................................ AA AB AC AD AE ..................... ..................... .................... .................... ..................... Minimum volume 0 8,565 20,525 31,753 63,505 Maximum volume 8,564 20,524 31,752 63,504 95,256 Costs $25,477.79 6.66 5.94 5.53 5.19 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Source: USCIS, IRIS Directorate, received May 10, 2021. At the district level, since there are small marginal changes to costs in terms of volumes, it would take a substantial change in volumes for a particular district to mount a significant change in costs for that district. If biometrics 98 While this plan tracks the FY 2022 time frame, variations in the pace of Federal and contractor hiring and retention during the performance period, unforeseen legal or other policy challenges to any electronic process, and the ability of relevant offices to truly operationalize minimal functionality give their own staffing constraints to handle manually any additional process automations, could delay some implementation into FY 2023. 99 Data and information provided by the USCIS IRIS Directorate. The average annual biometrics volumes were obtained through the CPMS database. The cost contract reflects the most recent contract update, dated June 18, 2020. 100 Data and information provided by USCIS IRIS Directorate, utilizing the CPMS database. 101 Economies of scale is a technical term that is used to describe the process whereby the greater the quantity of output produced (in this case more biometric service appointments), the lower the perunit fixed cost or per-unit variable costs to produce that output. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 46936 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules volumes increase on net, there could be small marginal, and hence, average, cost declines; in contrast, if volumes decline, some of those marginal costs could not be realized. Having developed the costs to USCIS to implement the proposed rule, this section brings the total costs together as annual inputs that are discounted over a 10-year horizon. At the three resource cost increases (FYs 2026, 2028 and 2030). The general non-IT cost increases account for expected contract pricing increases. Finally, IT costs are expected to remain flat at $4.375 million into the future, which accounts for ongoing operations and maintenance costs. population bounds, the inputs are captured in Table 10. The FY 2022 and FY 2023 costs are from Tables 7 and 8. For FY 2024 through FY 2031, human resources cost increases. As stated earlier, USCIS expects positions to be filled at step 1 for each GS level, so in years where employees remain at the same step for more than one year, these estimates account only for human TABLE 10—MONETIZED COSTS OF THE PROPOSED RULE TO USCIS [In undiscounted 2020 dollars] Time Period: FYs 2022–2031 Human resources FY General (non-IT) cost IT expenditure Annual total 10A. Lower Population Bound (75k Annual Cases) 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... $140,507,000 133,427,000 137,429,810 141,552,704 142,968,231 147,257,278 148,729,851 153,191,747 154,723,664 159,365,374 $26,813,000 26,892,000 27,698,760 28,529,723 29,385,614 30,267,183 31,175,198 32,110,454 33,073,768 34,065,981 $12,500,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 $179,820,000 164,694,000 169,503,570 174,457,427 176,728,846 181,899,461 184,280,049 189,677,201 192,172,432 197,806,355 10-year total .................................................................................... 1,459,152,660 300,011,682 51,875,000 1,811,039,342 10B. Primary Population Bound (150k Annual Cases) 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... 355,175,000 337,047,000 347,832,504 358,963,144 362,552,776 374,154,464 377,896,009 389,988,681 393,888,568 406,493,002 70,525,000 72,179,000 74,344,370 76,574,701 78,871,942 81,238,100 83,675,243 86,185,501 88,771,066 91,434,198 12,500,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 438,200,000 413,601,000 426,551,874 439,912,845 445,799,718 459,767,565 465,946,252 480,549,182 487,034,634 502,302,200 10-year total .................................................................................... 3,703,991,149 803,799,121 51,875,000 4,559,665,270 10C. High Population Bound (300k Annual Cases) khammond on DSKJM1Z7X2PROD with PROPOSALS2 . 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... 806,697,000 766,159,000 793,740,724 822,315,390 830,538,544 860,437,932 869,042,311 900,327,834 909,331,112 942,067,032 133,182,000 136,874,000 140,980,220 145,209,627 149,565,915 154,052,893 158,674,480 163,434,714 168,337,755 173,387,888 12,500,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 952,379,000 907,408,000 939,095,944 971,900,017 984,479,459 1,018,865,824 1,032,091,791 1,068,137,548 1,082,043,868 1,119,829,921 10-year total .................................................................................... 8,500,656,879 1,523,699,492 51,875,000 10,076,231,371 The totals reported in Table 10 are collated in Table 11, with the 10-year discounted present values, each at a 3 VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 percent and 7 percent discount rate. It is noted that since the cost inputs differ yearly, the average annualized PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 equivalence costs are not uniform across discount rates. E:\FR\FM\20AUP2.SGM 20AUP2 46937 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules TABLE 11—MONETIZED COSTS OF THE PROPOSED RULE [In millions, 2020 dollars] Undiscounted 3-Percent 7-Percent Population Level 10-Year cost khammond on DSKJM1Z7X2PROD with PROPOSALS2 Low ........................................................................... Primary ..................................................................... High .......................................................................... As discussed in Section G of this preamble, and alluded to above, DHS expects this proposed rule to be implemented in phases. Our quantitative cost estimates are based on the assumption that the funding for the proposed rule is essentially available when the proposed rule takes effect, and that implementation costs are spread out over several years due to timing effects related to operational and hiring impacts. In reality, the effect of budgeting constraints and variations is expected to play a prominent role in the phasing in of the program. Our estimates thus account partially but not fully for such phasing. Incorporating additional phasing into resource allocation models is complex because of the interaction between initial and recurring costs, and DHS is not prepared at this time to attempt to fully phase in the costs quantitatively. Despite this limitation, we do not believe that the true costs would be significantly different than those presented above. A phased implementation would not skew the actual costs, but rather allocate them to different timing sequences. In fact, from a discounting perspective the present value of the costs would actually be lower if they were allocated to future years. DHS will continue to evaluate all pertinent data and information related to the phasing approach, and if tractable, may include refined estimates of the resource-related costs in the final rule. DHS welcomes public comment on the phasing of costs and provides some additional, preliminary information here to supplement the cost data presented above. As of the final drafting of this proposed rule, DHS believes that through FY 2022 new staff positions can be funded with existing resources, which would support a minimum processing level of 50,000 annual family-unit cases. For the medium and high-volume bands of 150,000 and 300,000 annual cases, respectfully, DHS does not believe it can meet the full staffing requirements with current funding. Based on preliminary modelling, it could take up to three years to fully staff the medium-volume VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 10-Year cost $1,811.0 4,559.7 10,076.2 Annualized cost $1,538.8 3,871.3 8,550.3 band and up to five years to staff the high-volume band. If the medium- and high-volume bands of 150,000 and 300,000 were to be funded through a future fee rule, it would increase fees by an estimated weighted average of 13 percent and 26 percent respectively. This estimated increase would be attributable to the implementation of the asylum officer portions of the proposed rule only, and it is provided to show the magnitude of the impact that implementation of this proposed rule would have in addition to other increases in a future fee rule. The 13 percent or 26 percent estimated weighted average increase would be in addition to any changes in the IEFA non-premium budget. b. Intra-Federal Government Sector Impacts This proposed rule is expected to shift the initial case processing of some asylum and protection claims from EOIR to USCIS. We present this shift in case processing as new resource costs to USCIS since new staff would be employed, new IT expenditures acquired, etc. There will be new resource costs to the economy. The IJs at EOIR will continue to remain at DOJ and work on other priority matters not related to the high volume of asylum and protection claims processed through expedited removal. Some IJs are expected to continue to work on these claims through the do novo review process for appeals from the denial of asylum claims. Cases in which USCIS grants all relief under the proposed rule, however, would not receive further administrative review. Accordingly, every case granted relief or protection by USCIS would constitute a direct reduction in new cases that EOIR would have to adjudicate. Given EOIR’s significant pending caseload of approximately 1.3 million cases, reducing the number of cases referred to EOIR by 11,250 to 45,000 will enable EOIR to focus its resources on addressing existing pending cases and reducing the growth of the overall pending caseload. A reduction in the pending case load may reduce the overall time required for adjudications PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 10-Year cost $180.4 453.8 1,002.4 $1,260.8 3,168.9 6,993.7 Annualized cost $179.5 451.2 995.8 since dockets would not have to be set as far into the future. This in turn will better enable EOIR to meet its mission of fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws, including granting relief or protection to noncitizens who qualify. iii. Familiarization Costs, Benefits, and Transfers of Possible Early Labor Market Entry It is likely that there will be familiarization costs associated with this proposed rule. It is expected that applicants and their support network will incur costs to read and develop an understanding of this proposed rule and the associated changes in process. If, for example, attorneys are utilized, the cost could be $101.07 102 per hour, which is the average hourly wage for lawyers including the full cost of benefits. The proposed rule offers other benefits to asylum applicants and the Government. Although we cannot parse out the transfer and costs portions explicitly, we believe that most of the distributional effects will comprise transfers that are beneficial to the asylum seekers (which we calculated on a per-person, workday basis), as opposed to costs. These transfers may impact the support network of the applicants. This network could include public and private entities, and it may comprise family and personal friends, legal services providers and advisors, religious and charity organizations, State and local public institutions, educational providers, and nongovernmental organizations. To the extent that some applicants may be able to earn income earlier, burdens to this support network may be lessened. However, as described above, it will take time for USCIS to make the requisite resourcing and staffing changes needed to fully effectuate the changes under which the impacts could 102 The average wage for lawyers is provided by the Department of Labor. See U.S. Dep’t of Labor BLS, May 2021 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/ may/oes_nat.htm#00-0000 (last visited May 13, 2021). Calculation: Average hourly wage for lawyers $69.70 × benefits burden of 1.45 = $101.07 (rounded). E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 46938 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules be realized. In other words, there is likely to be a time horizon ranging from several months to more than a year for a sizeable portion of the impacts to begin to be realized. As a result, resources and efforts related to the applicants’ support network can be expected to be maintained in the short to medium term. In addition to the likely pecuniary benefits associated with early labor force entry, there could be other benefits as well. As a result of this proposed rule, DHS will begin to consider parole on a case-by-case basis for noncitizens who have been referred to USCIS for a credible fear screening under an expanded set of factors. Allowing for parole to be considered for more individuals in government custody could also provide resource redistribution to DHS in terms of shifting resources otherwise dedicated to the transportation and detention of these individuals and families. This will allow DHS to prioritize use of its limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety, while facilitating the expanded use of the expedited removal process to order the removal of those who make no fear claim or who express a fear but subsequently fail to meet the credible fear screening standard after interview by an asylum officer (or, if applicable, by an IJ). However, DHS does not know how many future referrals for a credible fear screening will be eligible for parole; therefore, DHS cannot make an informed monetized estimate of the potential impact. This proposed rule presents substantial costs for USCIS, especially as costs are expended to upgrade IT systems and begin hiring and training new staff. However, there are several expected qualitative benefits associated with the increased efficiency that would enable some asylum-seeking individuals claiming credible fear to move through the asylum process more expeditiously than through the current process. Under current timelines, it takes anywhere from eight months to five years for individuals claiming credible fear to reach a final asylum determination, whereas this proposed rule is expected to take 90 days in most cases for the initial determination, assuming no further review is sought. Greater efficiencies in the adjudicative process could lead to individuals spending less time in detention, which is a benefit to both the individuals and the Federal Government. Another benefit is that EOIR will not see the cases in which USCIS grants asylum, which we estimate as at least a 15 percent VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 reduction in their overall credible fear workload.103 DHS anticipates this will help to mitigate the number of cases pending in immigration court. Additionally, this benefit will extend to individuals granted or denied asylum faster than if they were to go through the current process with EOIR. For those credible fear cases that receive a positive screen but a denial of their asylum claim, USCIS recognizes that only certain cases seeking further review will reach EOIR. Therefore, the benefit to EOIR through this process could be greater than we are able to currently quantify. Given EOIR’s significant pending caseload, the reduction of credible fear cases it would process would enable EOIR to focus its resources on addressing existing pending cases and reducing the growth of the overall pending caseload. It would also allow EOIR to shift some resources to other work. We cannot currently make a oneto-one comparison between the worktime actually spent on a credible fear case between EOIR judges and USCIS asylum officers, but if there is a reduction in average work-times spent on cases, there could be cost savings to EOIR, though it is emphasized that these cost-savings would not be budgetary. The Departments welcome public comment on this topic and will integrate additional information into the final rule, as appropriate. Further, this proposed rule may stop adding to the existing volumes for Form I–765 for pending asylum applicants. As explained above, if some individuals are granted asylum earlier than they would under current conditions, some applicants in this process may choose not to file for an EAD. This could result in cost savings to applicants, as discussed, and it would also reduce USCIS’s adjudication burden. Assuming DHS places those noncitizens into expedited removal proceedings, the Departments assess that it will be more likely that they would receive a more prompt adjudication of their claims for asylum, withholding of removal, or CAT protection than they would under the existing regulations. Depending on the individual circumstances of each case, this proposed rule could mean that such noncitizens would likely not remain in 103 Based on the five-year (FY 2016 through FY 2020) average, an estimated 15 percent of EOIR asylum claims were granted asylum in cases originating with a credible fear claim. See EOIR Adjudications Statistics: Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim (Apr. 19, 2021), https://www.justice.gov/ eoir/page/file/1062976/download (last visited Aug. 4, 2021). PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 the United States—for years, potentially—pending resolution of their claims, and those who qualify for asylum will be granted asylum several years earlier than they are under the present process. Overall, the anticipated operational efficiencies from this proposed rule may provide for a more prompt grant of protection to qualifying noncitizens and ensure that those who do not qualify for relief or protection are removed more efficiently than they are under current rules. Considering both quantifiable and unquantifiable benefits and costs, the Departments believe that the aggregate benefits of the rule would amply justify the aggregate costs. I. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (‘‘RFA’’), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term ‘‘small entities’’ comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The proposed rule does not directly regulate small entities and is not expected to have a direct effect on small entities. Rather, this proposed rule regulates individuals, and individuals are not defined as ‘‘small entities’’ by the RFA.104 While some employers could experience costs or transfer effects, these impacts would be indirect. Based on the evidence presented in this analysis and throughout this preamble, DHS certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. DHS nonetheless welcomes comments regarding potential impacts on small entities, which DHS may consider as appropriate in a final rule. J. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (‘‘UMRA’’) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments. Title II of UMRA requires each Federal 104 See Public Law 104–121, tit. II, 110 Stat. 847 (5 U.S.C. 601 note). A small business is defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act. See 15 U.S.C. 632(a)(1). E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules agency to prepare a written statement assessing the effects of any Federal mandate in a proposed rule, or final rule for which the agency published a proposed rule that includes any Federal mandate that may result in $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. While this proposed rule is expected to exceed the $100 million expenditure in any 1 year when adjusted for inflation ($169.8 million in 2020 dollars based on the Consumer Price Index for All Urban Consumers (‘‘CPI–U’’)),105 the Departments do not believe this proposed rule would impose any unfunded Federal mandates on State, local, and Tribal governments, in the aggregate, or on the private sector. The impacts are likely to apply to individuals, potentially in the form of beneficial distributional effects and cost savings. There could be tax impacts related to the distributional effects. However, these do not constitute mandates. Further, the real resource costs quantified in this analysis apply to the Federal Government and also are not mandates. Therefore, the Departments have not prepared a written statement. K. Congressional Review Act The Administrator of the Office of Information and Regulatory Affairs has determined that this proposed rule is a ‘‘major rule’’ within the meaning of Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act), 5 U.S.C. 804(2). Accordingly, it is expected that this rule, if enacted as a final rule, would be effective 60 days after the final rule’s publication. khammond on DSKJM1Z7X2PROD with PROPOSALS2 L. Executive Order 13132 (Federalism) This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or 105 See BLS, Historical Consumer Price Index for All Urban Consumers (CPI–U): U.S. City Average, All Items, https://www.bls.gov/cpi/tables/ supplemental-files/historical-cpi-u-202103.pdf (last visited May 5, 2021). Calculation of inflation: (1) Calculate the average monthly CPI–U for the reference year (1995) and the most recent current year available (2020); (2) Subtract reference year CPI–U from current year CPI–U; (3) Divide the difference of the reference year CPI–U and current year CPI–U by the reference year CPI–U; (4) Multiply by 100 = [(Average monthly CPI–U for 2020¥Average monthly CPI–U for 1995)/(Average monthly CPI–U for 1995)] * 100 = [(258.811¥152.383)/152.383] * 100 = (106.428/ 152.383) *100 = 0.6984 * 100 = 69.84 percent = 69.8 percent (rounded). Calculation of inflation-adjusted value: $100 million in 1995 dollars * 1.698 = $169.8 million in 2020 dollars. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 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 proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. M. Executive Order 12988 (Civil Justice Reform) This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. N. Family Assessment The Departments have assessed this proposed action in accordance with section 654 of the Treasury General Appropriations Act, 1999, Public Law 105–277, Div. A. With respect to the criteria specified in section 654(c), the Departments determined that the proposed rule would not have any adverse impacts on family safety or stability. The proposed rule would allow families seeking asylum the possibility of parole from custody, thereby helping preserve family unity and safety given the COVID–19 pandemic. Additionally, this proposed rule would result in greater efficiencies in the expedited removal and asylum processes, providing speedier resolution of meritorious cases, and reducing the overall asylum system backlogs. O. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This proposed rule would not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. P. National Environmental Policy Act The Departments analyze actions to determine whether the National Environmental Policy Act, Public Law 91–190, 42 U.S.C. 4321 through 4347 (‘‘NEPA’’), applies to them and, if so, what degree of analysis is required. See DHS, Implementing the National Environmental Policy Act (Directive 023–01, issued Oct. 31, 2014, and Instruction Manual, issued Nov. 6, 2014), https://www.dhs.gov/publication/ directive-023-01-rev-01-and-instructionmanual-023-01-001-01-rev-01-andcatex. Both the DHS Directive 023–01 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 46939 and the Instruction Manual establish the policies and procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (‘‘CEQ’’) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (‘‘categorical exclusions’’) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1501.4, 1507.3(e)(2)(ii). The DHS categorical exclusions are listed in Appendix A of the Instruction Manual. For an action to be categorically excluded, it must satisfy each of the following three conditions: (1) The entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.106 As discussed in more detail throughout this proposed rule, the Departments are proposing to modify the expedited removal process, specifically for those who are found to have a positive credible fear. The proposed rule could result in an increase in the number of noncitizens in expedited removal paroled out of custody, thereby possibly allowing for efficient processing or prioritizing use of DHS’s limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety. Generally, the Departments believe NEPA does not apply to a rule intended to change a discrete aspect of an immigration program because any attempt to analyze its potential impacts would be largely, if not completely, speculative. This proposed rule would not alter any eligibility criteria, but rather would change certain procedures, specifically, which Federal agency adjudicates certain asylum claims. The proposed rule also would not make any changes to detention facilities. Rather, the detention facilities are already in existence and to attempt to calculate how many noncitizens would be paroled—a highly discretionary benefit—and how many would proceed to the detention centers would be near impossible to determine. The Departments have no reason to believe that these amendments would change 106 Instruction E:\FR\FM\20AUP2.SGM 20AUP2 Manual section V.B(2)(a)–(c). 46940 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules the environmental effect, if any, of the existing regulations. Therefore, the Departments have determined that, even if NEPA applied to this action, this proposed rule clearly fits within categorical exclusion A3(d) in the Instruction Manual, which provides an exclusion for ‘‘promulgation of rules . . . that amend an existing regulation without changing its environmental effect.’’ Furthermore, the Departments have determined that this proposed rule clearly fits within the categorical exclusion A3(a) in the Instruction Manual because the proposed rule is of a strictly administrative or procedural nature. This proposed rule is not a part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded and no further NEPA analysis is required. Q. Paperwork Reduction Act khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–765 Under the Paperwork Reduction Act (‘‘PRA’’), Public Law 104–13, 109 Stat. 163 (1995), all agencies are required to submit to OMB, for review and approval, any reporting requirements inherent in a rule. DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615–0040 in the body of the letter and the agency name. To avoid duplicate submissions, please use only one of the methods under the ADDRESSES and I. Public Participation section of this rule to submit comments. Comments on this information collection should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of IT (e.g., permitting electronic submission of responses). hour burden associated with this collection of information is 11,881,713 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $400,895,820. Overview of Information Collection (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: Application for Employment Authorization. (3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I–765; I– 765WS; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS uses Form I–765 to collect information needed to determine if a noncitizen is eligible for an initial EAD, a new replacement EAD, or a subsequent EAD upon the expiration of a previous EAD under the same eligibility category. Noncitizens in many immigration statuses are required to possess an EAD as evidence of employment authorization. USCIS is proposing to revise the form instructions to correspond with revisions related to information about the asylum application and USCIS grants of withholding of removal. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection I–765 paper filing is 2,179,494, and the estimated hour burden per response is 4.5 hours; the estimated total number of respondents for the information collection I–765 online filing is 106,506, and the estimated hour burden per response is 4 hours; the estimated total number of respondents for the information collection I–765WS is 302,000, and the estimated hour burden per response is 0.5 hours; the estimated total number of respondents for the information collection biometrics submission is 302,535, and the estimated hour burden per response is 1.17 hours; the estimated total number of respondents for the information collection passport photos is 2,286,000, and the estimated hour burden per response is 0.5 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual 8 CFR Part 208 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 List of Subjects Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 235 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. 8 CFR Part 1235 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 proposes to amend 8 CFR parts 208 and 235 as follows: PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 1. The authority citation for part 208 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110– 229; 8 CFR part 2; Pub. L. 115–218. 2. Amend § 208.2 by: a. Revising paragraphs (a) and (b); b. Removing the word ‘‘or’’ at the end of paragraph (c)(1)(vii); ■ c. Removing the period at the end of paragraph (c)(1)(viii) and adding ‘‘; or’’ in its place; ■ d. Removing and reserving paragraph (c)(1)(ix); ■ e. Adding paragraph (c)(1)(x); and ■ ■ ■ E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules f. In paragraph (c)(3)(i): i. Adding the words ‘‘and in 8 CFR 1003.48’’ after the words ‘‘Except as provided in this section’’; and ■ ii. Removing ‘‘paragraph (c)(1) or (c)(2)’’ and adding ‘‘paragraph (c)(1) or (2)’’ in its place. The revisions and addition read as follows: ■ ■ khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 208.2 Jurisdiction. (a) Jurisdiction of U.S. Citizenship and Immigration Services (USCIS). (1) Except as provided in paragraph (b) or (c) of this section, USCIS shall have initial jurisdiction over: (i) An asylum application filed by an alien physically present in the United States or seeking admission at a port-ofentry; and (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii) of the Act to further consider the application for asylum of an alien, other than a stowaway, found to have a credible fear of persecution or torture in accordance with § 208.30(f) and retained by USCIS, or referred to USCIS by an immigration judge pursuant to 8 CFR 1003.42 and 1208.30 after the immigration judge has vacated a negative credible fear determination. Hearings to further consider applications for asylum under this paragraph (a)(1)(ii) are governed by the procedures provided for under § 208.9. Further consideration of an asylum application filed by a stowaway who has received a positive credible fear determination will be under the jurisdiction of an immigration judge pursuant to paragraph (c) of this section. (2) USCIS shall also have initial jurisdiction over credible fear determinations under § 208.30 and reasonable fear determinations under § 208.31. (b) Jurisdiction of Immigration Court in general. Immigration judges shall have exclusive jurisdiction over asylum applications filed by aliens who have been served a Form I–221, Order to Show Cause; Form I–122, Notice to Applicant for Admission Detained for a Hearing before an Immigration Judge; or Form I–862, Notice to Appear, after the charging document has been filed with the Immigration Court. Immigration judges shall also have jurisdiction over any asylum applications filed prior to April 1, 1997, by alien crewmembers who have remained in the United States longer than authorized, by applicants for admission under the Visa Waiver Pilot Program, and by aliens who have been admitted to the United States under the Visa Waiver Pilot Program. Immigration judges shall also have the authority to review credible fear determinations referred to the VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 Immigration Court under § 208.30, reasonable fear determinations referred to the Immigration Court under § 208.31, and asylum officers’ denials of applications, under § 208.14(c)(5), referred to the Immigration Court for review under 8 CFR 1003.48. (c) * * * (1) * * * (x) An alien referred for proceedings under 8 CFR 1003.48 on or after [effective date of final rule]. * * * * * ■ 3. Amend § 208.3 by revising paragraphs (a) and (c)(3) to read as follows: § 208.3 Form of application. (a)(1) Except for applicants described in paragraph (a)(2) of this section, an asylum applicant must file Form I–589, Application for Asylum and for Withholding of Removal, together with any additional supporting evidence in accordance with the instructions on the form. The applicant’s spouse and children shall be listed on the application and may be included in the request for asylum if they are in the United States. One additional copy of the principal applicant’s Form I–589 must be submitted for each dependent included in the principal’s application. (2) For asylum applicants, other than stowaways, who are awaiting further consideration of an asylum application pursuant to section 235(b)(1)(B)(ii) of the Act following a positive credible fear determination, the written record of a positive credible fear finding issued in accordance with § 208.30(f) or 8 CFR 1003.42 or 1208.30 satisfies the application filing requirements in paragraph (a)(1) of this section and § 208.4(b) for purposes of consideration by USCIS pursuant to the jurisdiction provided at § 208.2(a)(1)(ii). The written record of the positive credible fear determination shall be considered a complete asylum application for purposes of §§ 208.4(a), 208.7, and 208.9(a); shall not be subject to the requirements of 8 CFR 103.2; and shall be subject to the conditions and consequences in paragraph (c) of this section upon signature at the asylum hearing. The date that the positive credible fear determination is served on the alien shall be considered the date of filing and receipt. Application information collected electronically will be preserved in its native format. The applicant’s spouse and children may be included in the request for asylum only if they were included in the credible fear determination pursuant to § 208.30(c), or also presently have an application for asylum pending adjudication with USCIS pursuant to PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 46941 § 208.2(a)(1)(ii). The asylum applicant may subsequently amend, correct, or supplement the information collected during the expedited removal process, including the process that concluded with a positive credible fear determination, provided the information is submitted directly to the asylum office no later than 7 calendar days prior to the scheduled asylum hearing, or for documents submitted by mail, postmarked no later than 10 days prior to the scheduled asylum hearing. As a matter of discretion, the asylum officer may consider amendments or supplements submitted after the 7- or 10-day (depending on the method of submission) deadline or may grant the applicant a brief extension of time during which the applicant may submit additional evidence. The biometrics captured during expedited removal for the principal applicant and any dependents may be used to verify identity and for criminal and other background checks for purposes of an asylum application under the jurisdiction of USCIS pursuant to § 208.2(a)(1) and any subsequent immigration benefit. * * * * * (c) * * * (3) An asylum application under paragraph (a)(1) of this section must be properly filed in accordance with 8 CFR part 103 and the filing instructions. Receipt of a properly filed asylum application under paragraph (a) of this section will commence the period after which the applicant may file an application for employment authorization in accordance with § 208.7 and 8 CFR 274a.12 and 274a.13. * * * * * ■ 4. Amend § 208.4 by revising paragraph (c) to read as follows: § 208.4 Filing the application. * * * * * (c) Amending an application after filing. Upon the request of the alien, and as a matter of discretion, the asylum officer or immigration judge with jurisdiction may permit an asylum applicant to amend or supplement the application filed under § 208.3(a)(1). Any delay in adjudication or in proceedings caused by a request to amend or supplement the application will be treated as a delay caused by the applicant for purposes of § 208.7 and 8 CFR 274a.12(c)(8). ■ 5. Amend § 208.9 by revising and republishing the section heading and paragraphs (a) through (g) to read as follows: E:\FR\FM\20AUP2.SGM 20AUP2 46942 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 208.9 Procedure for interview or hearing before an asylum officer. (a) Claims adjudicated. USCIS shall adjudicate the claim of each asylum applicant whose application is complete within the meaning of § 208.3(a)(2) or (c)(3), when applicable, and is within the jurisdiction of USCIS pursuant to § 208.2(a). (b) Conduct and purpose of interview or hearing. The asylum officer shall conduct the interview or hearing in a nonadversarial manner and, except at the request of the applicant, separate and apart from the general public. The purpose of the interview or hearing shall be to elicit all relevant and useful information bearing on the applicant’s eligibility for asylum. At the time of the interview or hearing, the applicant must provide complete information regarding his or her identity, including name, date and place of birth, and nationality, and may be required to register this identity. The applicant may have counsel or a representative present, may present witnesses, and may submit affidavits of witnesses and other evidence. (c) Authority of asylum officer. The asylum officer shall have authority to administer oaths, verify the identity of the applicant (including through the use of electronic means), verify the identity of any interpreter, present evidence, receive evidence, and question the applicant and any witnesses. (d) Completion of the interview or hearing. Upon completion of the interview or hearing before an asylum officer: (1) The applicant or the applicant’s representative will have an opportunity to make a statement or comment on the evidence presented. The representative will also have the opportunity to ask follow-up questions. (2) USCIS will inform the applicant that he or she must appear in person to receive and to acknowledge receipt of the decision of the asylum officer and any other accompanying material at a time and place designated by the asylum officer, except as otherwise provided by the asylum officer. An applicant’s failure to appear to receive and acknowledge receipt of the decision will be treated as delay caused by the applicant for purposes of § 208.7. (e) Extensions. The asylum officer will consider evidence submitted by the applicant together with his or her asylum application. For applications being considered under § 208.2(a)(1)(i), the applicant must submit any documentary evidence at least 14 calendar days in advance of the interview date. As a matter of discretion, the asylum officer may consider evidence submitted within the VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 14-day period prior to the interview date or may grant the applicant a brief extension of time during which the applicant may submit additional evidence. Any such extension will be treated as a delay caused by the applicant for purposes of § 208.7. (f) Record. (1) The asylum application, all supporting information provided by the applicant, any comments submitted by the Department of State or by DHS, and any other information considered by the asylum officer in the written decision shall comprise the record. (2) For hearings on asylum applications within the jurisdiction of USCIS pursuant to § 208.2(a)(1)(ii), the record shall also include a verbatim audio or video recording of the hearing, except for statements made off the record with the permission of the asylum officer. A transcript of the interview will be included in the referral package to the immigration judge as described in § 208.14(c)(5). (g) Interpreters. (1) Except as provided in paragraph (g)(2) of this section, an applicant unable to proceed with the interview in English must provide, at no expense to USCIS, a competent interpreter fluent in both English and the applicant’s native language or any other language in which the applicant is fluent. The interpreter must be at least 18 years of age. Neither the applicant’s attorney or representative of record, a witness testifying on the applicant’s behalf, nor a representative or employee of the applicant’s country of nationality, or if stateless, country of last habitual residence, may serve as the applicant’s interpreter. Failure without good cause to comply with this paragraph may be considered a failure to appear for the interview for purposes of § 208.10. (2) Notwithstanding paragraph (h) of this section, for asylum applications retained by USCIS for further consideration pursuant to § 208.30(f) or 8 CFR 1003.42 or 1208.30, if the applicant is unable to proceed effectively in English, the asylum officer shall arrange for the assistance of an interpreter in conducting the hearing. The interpreter must be at least 18 years of age. Neither the applicant’s attorney or representative of record, a witness testifying on the applicant’s behalf, nor a representative or employee of the applicant’s country of nationality, or if stateless, country of last habitual residence, may serve as the applicant’s interpreter. * * * * * ■ 6. Revise § 208.10 to read as follows: PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 § 208.10 Failure to appear for an interview or hearing before an asylum officer or for a biometrics services appointment for the asylum application. (a) Failure to appear for an asylum interview or hearing, or for a biometrics services appointment. (1) The failure to appear for an asylum interview or hearing, or for a biometrics services appointment, may result in one or more of the following actions: (i) Waiver of the right to an interview or adjudication by an asylum officer; (ii) Dismissal of the application for asylum; (iii) Referral of the applicant to the Immigration Court; (iv) Denial of employment authorization; or (v) For individuals whose case is retained by USCIS for consideration of their application for asylum after a positive credible fear determination pursuant to § 208.30(f) or 8 CFR 1003.42 or 1208.30, issuance of an order of removal based on the inadmissibility determination of the immigration officer under section 235(b)(1)(A)(i) of the Act. (2) There is no requirement for USCIS to send a notice to an applicant that he or she failed to appear for his or her asylum interview or hearing, or for a biometrics services appointment prior to issuing a decision on the application. Any rescheduling request for the asylum interview or hearing that has not yet been fulfilled on the date the application for employment authorization is filed under 8 CFR 274a.12(c)(8) will be treated as an applicant-caused delay for purposes of § 208.7. (b) Rescheduling missed appointments. USCIS, in its sole discretion, may excuse the failure to appear for an asylum interview or hearing, or biometrics services appointment and reschedule the missed appointment as follows: (1) Asylum interview or hearing. If the applicant demonstrates that he or she was unable to make the appointment due to exceptional circumstances. (2) Biometrics services appointment. USCIS may reschedule the biometrics services appointment as provided in 8 CFR part 103. ■ 7. Amend § 208.14 by: ■ a. Removing ‘‘RAIO’’ and adding in its place ‘‘USCIS’’ in paragraph (b); ■ b. Revising paragraphs (c) introductory text and (c)(1); and ■ c. Adding paragraph (c)(5). The revisions and addition read as follows: § 208.14 Approval, denial, referral, or dismissal of application. * E:\FR\FM\20AUP2.SGM * * 20AUP2 * * khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules (c) Denial, referral, or dismissal by an asylum officer. If the asylum officer does not grant asylum to an applicant after an interview or hearing conducted in accordance with § 208.9, or if, as provided in § 208.10, the applicant is deemed to have waived his or her right to an interview, a hearing, or an adjudication by an asylum officer, the asylum officer shall deny, refer, or dismiss the application as follows: (1) Inadmissible or deportable aliens. Except as provided in paragraph (c)(4) or (5) of this section, in the case of an applicant who appears to be inadmissible or deportable under section 212(a) or 237(a) of the Act, the asylum officer shall refer the application to an immigration judge, together with the appropriate charging document, for adjudication in removal proceedings (or, where charging documents may not be issued, shall dismiss the application). * * * * * (5) Alien referred for consideration of asylum application in a hearing before an asylum officer after positive credible fear finding. In the case of an application within the jurisdiction of USCIS pursuant to § 208.2(a)(1)(ii), the asylum officer shall deny the application for asylum. The applicant will be provided a written notice of the decision. The decision will also include an order of removal based on the immigration officer’s inadmissibility determination under section 235(b)(1)(A)(i) of the Act and a decision on any request for withholding of removal under § 208.16(d) and deferral of removal under § 208.17, where applicable. The notice shall explain that the alien may seek to have an immigration judge review the decision, in accordance with 8 CFR 1003.48. The alien shall have 30 days to affirmatively request such review as directed on the decision notice. The failure to timely request further review will be processed as the alien’s decision not to request review. (i) If the alien requests such immigration judge review, USCIS will serve the alien with a notice of referral to an immigration judge for review of the asylum application. USCIS shall provide the record of the proceedings before the asylum officer, as outlined in § 208.9(f), to the immigration judge and the alien, along with the written notice of decision, including the order of removal issued by the asylum officer, and the alien’s request for review. (ii) If the alien does not request a review by an immigration judge, the decision and order of removal will be final and the alien shall be subject to removal from the United States. VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 (iii) Once USCIS has commenced proceedings under 8 CFR 1003.48 by filing the notice of referral, the immigration judge has sole jurisdiction to review the application and an asylum officer may not reopen or reconsider the application once it has been referred to the immigration judge. * * * * * 8. Amend § 208.16 by revising paragraphs (a) and (c)(4) to read as follows: § 208.16 Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture. (a) Consideration of application for withholding of removal. An asylum officer shall not decide whether the exclusion, deportation, or removal of an alien to a country where the alien’s life or freedom would be threatened must be withheld, except in the case of an alien who is determined to be an applicant for admission under section 235(b)(1) of the Act, is found to have a credible fear of persecution or torture, and whose case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at § 208.2(a)(1)(ii) to consider the application for asylum, and that application for asylum is denied. * * * * * (c) * * * (4) In considering an application for withholding of removal under the Convention Against Torture, the asylum officer shall first determine whether the alien is more likely than not to be tortured in the country of removal. If the asylum officer determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. An alien entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial of withholding of removal under paragraph (d)(2) or (3) of this section. If an alien entitled to such protection is subject to mandatory denial of withholding of removal under paragraph (d)(2) or (3) of this section, the alien’s removal shall be deferred under § 208.17(a). * * * * * ■ 9. Amend § 208.17 by revising paragraph (b), (d), and (e) to read as follows: § 208.17 Deferral of removal under the Convention Against Torture. * PO 00000 * * Frm 00039 * Fmt 4701 * Sfmt 4702 46943 (b) Notice to alien. (1) After an asylum officer orders an alien described in paragraph (a) of this section removed, the asylum officer shall inform the alien that his or her removal to the country where he or she is more likely than not to be tortured shall be deferred until such time as the deferral is terminated under this section or under 8 CFR 1208.17. The asylum officer shall inform the alien that deferral of removal: (i) Does not confer upon the alien any lawful or permanent immigration status in the United States; (ii) Will not necessarily result in the alien being released from the custody of DHS if the alien is subject to such custody; (iii) Is effective only until terminated; and (iv) Is subject to review and termination pursuant to this section or 8 CFR 1208.17 if the asylum officer determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated. (2) The asylum officer shall also inform the alien that removal has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured. * * * * * (d) Termination of deferral of removal. (1) At any time while deferral of removal is in effect, the Asylum Office with jurisdiction over an alien whose removal has been deferred under paragraph (a) of this section may schedule a hearing to consider whether deferral of removal should be terminated. (2) The Asylum Office shall provide notice to the alien of the time, place, and date of the termination hearing. Such notice shall inform the alien that the alien may supplement the information in his or her initial application for withholding of removal under the Convention Against Torture and shall provide that the alien must submit any such supplemental information within 10 calendar days of service of such notice (or 13 calendar days if service of such notice was by mail). (3) The asylum officer shall conduct a hearing and make a de novo determination, based on the record of proceeding and initial application in addition to any new evidence submitted by the alien, as to whether the alien is more likely than not to be tortured in the country to which removal has been E:\FR\FM\20AUP2.SGM 20AUP2 46944 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules deferred. This determination shall be made under the standards for eligibility set out in § 208.16(c). The burden is on the alien to establish that it is more likely than not that he or she would be tortured in the country to which removal has been deferred. (4) If the asylum officer determines that the alien is more likely than not to be tortured in the country to which removal has been deferred, the order of deferral shall remain in place. If the asylum officer determines that the alien has not established that he or she is more likely than not to be tortured in the country to which removal has been deferred, the deferral of removal shall be terminated and the alien may be removed to that country. Appeal of the asylum officer’s decision shall lie to the immigration judge under the process provided for at § 208.14(c)(5) and 8 CFR 1003.48. (e) Termination at the request of the alien. (1) At any time while deferral of removal is in effect, the alien may make a written request to the Asylum Office with jurisdiction over the initial determination to terminate the deferral order. If satisfied on the basis of the written submission that the alien’s request is knowing and voluntary, the asylum officer shall terminate the order of deferral and the alien may be removed. (2) If necessary, the Asylum Office may calendar a hearing for the sole purpose of determining whether the alien’s request is knowing and voluntary. If the asylum officer determines that the alien’s request is knowing and voluntary, the order of deferral shall be terminated. If the asylum officer determines that the alien’s request is not knowing and voluntary, the alien’s request shall not serve as the basis for terminating the order of deferral. * * * * * ■ 10. Amend § 208.18 by revising paragraph (b)(1) to read as follows: § 208.18 Implementation of the Convention Against Torture. khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (b) * * * (1) Aliens in proceedings on or after March 22, 1999. (i) An alien who is in exclusion, deportation, or removal proceedings on or after March 22, 1999, may apply for withholding of removal under 8 CFR 1208.16(c), and, if applicable, may be considered for deferral of removal under 8 CFR 1208.17(a). (ii) In addition, an alien may apply for withholding of removal under § 208.16(c), and, if applicable, may be considered for deferral of removal under VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 § 208.17(a), in the following situation: the alien is determined to be an applicant for admission under section 235(b)(1) of the Act, the alien is found to have a credible fear of persecution or torture and the alien’s case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at § 208.2(a)(1)(ii) for consideration of the application for asylum, and that application is denied. * * * * * ■ 11. Revise § 208.19 to read as follows: § 208.19 Decisions. The decision of an asylum officer issued in accordance with § 208.14(b) or (c) shall be communicated in writing to the applicant in-person, by mail, or electronically. Pursuant to § 208.9(d), an applicant must appear in person to receive and to acknowledge receipt of the decision unless, in the discretion of the asylum office director, service by mail or electronic service is appropriate. A letter communicating denial or referral of the application shall state the basis for denial or referral and include an assessment of the applicant’s credibility. ■ 12. Revise § 208.22 to read as follows: § 208.22 Effect on exclusion, deportation, and removal proceedings. An alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated pursuant to § 208.24 or 8 CFR 1208.24. An alien who is granted withholding of removal or deportation, or deferral of removal, may not be deported or removed to the country to which his or her deportation or removal is ordered withheld or deferred unless the withholding order is terminated pursuant to § 208.24 or 8 CFR 1208.24, or deferral is terminated pursuant to § 208.17(d) or (e) or 8 CFR 1208.17. ■ 13. Amend § 208.30 by: ■ a. Revising the section heading and paragraphs (b), (c), and (d) introductory text; ■ b. Adding a heading for paragraph (e); ■ c. Removing the introductory text of paragraph (e); and ■ d. Revising paragraphs (e)(1) through (4), (e)(5)(i)(A), (e)(6) introductory text, (e)(6)(ii), (f), and (g). The revisions and addition read as follows: § 208.30 Credible fear determinations involving stowaways and applicants for admission found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act. * * * * * (b) Process and authority. If an alien subject to section 235(a)(2) or 235(b)(1) of the Act indicates an intention to PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by a USCIS asylum officer in accordance with this section. A USCIS asylum officer shall then screen the alien for a credible fear of persecution or torture. An asylum officer, as defined in section 235(b)(1)(E) of the Act, has the authorities described in § 208.9(c). If the asylum officer in his or her discretion determines that circumstances so warrant, the asylum officer, after supervisory concurrence, may refer the alien for proceedings under section 240 of the Act without making a credible fear determination. (c) Treatment of family units.(1) A spouse or child of a principal alien who arrived in the United States concurrently with the principal alien shall be included in that alien’s positive fear evaluation and determination, unless the principal alien declines such inclusion. However, any alien may have his or her evaluation and determination made separately, if he or she expresses such a desire. (2) The asylum officer in his or her discretion may also include other accompanying family members who arrived in the United States concurrently with a principal alien in that alien’s positive fear evaluation and determination for purposes of family unity. (3) For purposes of family units in credible fear determinations, the definition of ‘‘child’’ means an unmarried person under 21 years of age. (d) Interview. A USCIS asylum officer will conduct the credible fear interview in a nonadversarial manner, separate and apart from the general public. The purpose of the interview shall be to elicit all relevant and useful information bearing on whether the alien can establish a credible fear of persecution or torture. The information provided during the interview may form the basis of an asylum application pursuant to paragraph (f) of this section and § 208.3(a)(2). The asylum officer shall conduct the interview as follows: * * * * * (e) Determination. (1) The asylum officer shall create a written record of his or her determination, including a summary of the material facts as stated by the applicant, any additional facts relied on by the officer, and the officer’s determination of whether, in light of such facts, the alien has established a credible fear of persecution or torture. (2) An alien will be found to have a credible fear of persecution if there is a E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 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, the alien can establish eligibility for asylum under section 208 of the Act or for withholding of removal under section 241(b)(3) of the Act. However, prior to January 1, 2030, in the case of an alien physically present in or arriving in the Commonwealth of the Northern Mariana Islands, the officer may only find a credible fear of persecution if there is a significant possibility that the alien can establish eligibility for withholding of removal pursuant to section 241(b)(3) of the Act. (3) An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to § 208.16 or § 208.17. (4) In determining whether the alien has a credible fear of persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a credible fear of torture, the asylum officer shall consider whether the alien’s case presents novel or unique issues that merit a positive credible fear finding pursuant to paragraph (f) of this section in order to receive further consideration of the application for asylum and withholding of removal. (5)(i)(A) Except as provided in paragraphs (e)(5)(ii) through (iv) or paragraph (e)(6) or (7) of this section, 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 (b)(2) of the Act, or to withholding of removal contained in section 241(b)(3)(B) of the Act, the Department of Homeland Security shall nonetheless retain or refer the alien for further consideration of the alien’s claim pursuant to paragraph (f) of this section, if the alien is not a stowaway. If the alien is a stowaway, the Department shall place the alien in proceedings for consideration of the alien’s claim pursuant to § 208.2(c)(3). * * * * * (6) Prior to any determination concerning whether an alien arriving in the United States at a U.S.-Canada land border port-of-entry or in transit through the United States during removal by Canada has a credible fear of persecution or torture, the asylum officer shall conduct a threshold screening interview to determine whether such an alien is ineligible to apply for asylum pursuant to section VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 208(a)(2)(A) of the Act and subject to removal to Canada by operation of the Agreement Between the Government of the United States and the Government of Canada For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (‘‘Agreement’’). In conducting this threshold screening interview, the asylum officer shall apply all relevant interview procedures outlined in paragraph (d) of this section, provided, however, that paragraph (d)(2) of this section shall not apply to aliens described in this paragraph (e)(6). The asylum officer shall advise the alien of the Agreement’s exceptions and question the alien as to applicability of any of these exceptions to the alien’s case. * * * * * (ii) If the alien establishes by a preponderance of the evidence that he or she qualifies for an exception under the terms of the Agreement, the asylum officer shall make a written notation of the basis of the exception, and then proceed immediately to a determination concerning whether the alien has a credible fear of persecution or torture under paragraph (d) of this section. * * * * * (f) Procedures for a positive credible fear finding. If an alien, other than an alien stowaway, is found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue the alien a record of the positive credible fear determination, including copies of the asylum officer’s notes, the summary of the material facts, and other materials upon which the determination was based. The documents may be served in-person, by mail, or electronically. USCIS will retain jurisdiction over the application for asylum pursuant to § 208.2(a)(1)(ii) for further consideration in a hearing pursuant to § 208.9 or refer for consideration of the asylum and withholding of removal claim in proceedings under section 240 of the Act. If an alien stowaway is found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue a Form I–863, Notice of Referral to Immigration Judge, for full consideration of the asylum claim, or the withholding of removal claim, in proceedings under § 208.2(c). Parole of the alien may be considered only in accordance with section 212(d)(5) of the Act and 8 CFR 212.5. (g) Procedures for a negative credible fear finding. (1) If an alien is found not to have a credible fear of persecution or torture, the asylum officer shall provide the alien with a written notice of PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 46945 decision and issue the alien a record of the credible fear determination, including copies of the asylum officer’s notes, the summary of the material facts, and other materials upon which the determination was based. The documents may be served in-person, by mail, or electronically. The asylum officer shall inquire whether the alien wishes to have an immigration judge review the negative decision, which shall include an opportunity for the alien to be heard and questioned by the immigration judge as provided for under section 235(b)(1)(B)(iii)(III) of the Act, using Form I–869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. The alien shall indicate whether he or she desires such review on Form I–869. A refusal by the alien to make such indication shall be considered a request for review. (i) If the alien requests such review, or refuses to either request or decline such review, the asylum officer shall serve him or her with a Form I–863, Notice of Referral to Immigration Judge, for review of the credible fear determination in accordance with paragraph (g)(2) of this section. Once the asylum officer has served the alien with Form I–863, the immigration judge shall have sole jurisdiction to review whether the alien has established a credible fear of persecution or torture, and an asylum officer may not reconsider or reopen the determination. (ii) If the alien is not a stowaway and does not request a review by an immigration judge, the officer shall order the alien removed and issue a Form I–860, Notice and Order of Expedited Removal, after review by a supervisory asylum officer. (iii) If the alien is a stowaway and the alien does not request a review by an immigration judge, the asylum officer shall refer the alien to the district director for completion of removal proceedings in accordance with section 235(a)(2) of the Act. (2)(i) Immigration judges will review negative credible fear findings as provided in 8 CFR 1003.42 and 1208.30(g). (ii) The record of the negative credible fear determination, including copies of the Form I–863, the asylum officer’s notes, the summary of the material facts, and other materials upon which the determination was based shall be provided to the immigration judge with the negative determination. PART 235—INSPECTION OF PERSONS APPLYING FOR ADMISSION 14. The authority citation for part 235 is revised to read as follows: ■ E:\FR\FM\20AUP2.SGM 20AUP2 46946 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225, 1226, 1228, 1365a note, 1365b, 1379, 1731–32; 48 U.S.C. 1806, 1807, and 1808 and 48 U.S.C. 1806 notes (Title VII of Pub. L. 110–229, 122 Stat. 754); 8 U.S.C. 1185 note (section 7209 of Pub. L. 108–458, 118 Stat. 3638 and Pub. L. 112–54, 125 Stat. 550). 15. Amend § 235.3 by revising paragraphs (b)(2)(iii) and (b)(4)(ii) to read as follows: ■ § 235.3 Inadmissible aliens and expedited removal. khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (b) * * * (2) * * * (iii) Detention and parole of alien in expedited removal. An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal. Parole of such alien, in accordance with section 212(d)(5) of the Act and § 212.5 of this chapter, may be permitted only when DHS determines, in the exercise of discretion, that parole is required to meet a medical emergency, for a legitimate law enforcement objective, or because detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities). * * * * * (4) * * * (ii) Detention pending credible fear interview. Pending the credible fear determination by an asylum officer and any review of that determination by an immigration judge, the alien shall be detained. Parole of such alien, in accordance with section 212(d)(5) of the Act and § 212.5 of this chapter, may be permitted only when DHS determines, in the exercise of discretion, that parole is required to meet a medical emergency, for a legitimate law enforcement objective, or because detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities). A grant of parole would be for the limited purpose of parole out of custody and cannot serve as an independent basis for employment authorization under § 274a.12(c)(11) of this chapter. Prior to the interview, the alien shall be given time to contact and consult with any person or persons of his or her choosing. If the alien is detained, such consultation shall be made available in accordance with the VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 policies and procedures of the detention facility where the alien is detained, shall be at no expense to the Government, and shall not unreasonably delay the process. * * * * * ■ 16. Amend § 235.6 by: ■ a. Removing and reserving paragraphs (a)(1)(iii) and (iv); and ■ b. Revising paragraph (a)(2)(i); ■ c. Removing the period at the end of paragraph (c)(2)(ii) and adding ‘‘; or’’ in its place; and ■ d. Revising paragraph (a)(2)(iii). The revisions read as follows: § 235.6 Referral to immigration judge. (a) * * * (2) * * * (i) If an asylum officer determines that the alien does not have a credible fear of persecution or torture, and the alien requests a review of that determination by an immigration judge; * * * * * (iii) If an immigration officer refers an applicant in accordance with the provisions of § 208.2(c)(1) or (2) of this chapter to an immigration judge for an asylum- or withholding-only hearing. * * * * * DEPARTMENT OF JUSTICE Accordingly, for the reasons set forth in the preamble, the Attorney General proposes to amend 8 CFR parts 1003, 1208, and 1235 as follows: PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 17. 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. 18. Amend § 1003.1 by adding paragraph (b)(15) to read as follows: ■ § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. * * * * * (b) * * * (15) Decisions of immigration judges in proceedings pursuant to § 1003.48, including immigration judges’ decisions on motions under § 1003.48(d) to vacate removal orders. Immigration judges’ decisions denying applications because the applicant failed to appear cannot be appealed, but immigration judges’ PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 decisions on motions to reopen and motions to reconsider can be appealed. * * * * * ■ 19. Amend § 1003.12 by revising the second sentence to read as follows: § 1003. 12 Scope of rules. * * * Except where specifically stated, the rules in this subpart apply to matters before immigration judges, including, but not limited to: Deportation, exclusion, removal, bond, rescission, departure control, asylum proceedings (including application review proceedings under § 1003.48), and disciplinary proceedings. * * * ■ 20. Add § 1003.48 to read as follows: § 1003.48 Review of applications denied after a positive credible fear determination. (a) Scope. In proceedings conducted under this section, immigration judges shall have the authority, upon the request of an applicant under 8 CFR 208.14(c)(5), to review asylum officers’ decisions on applications for asylum under section 208 of the Act, withholding of removal under section 241(b)(3) of the Act, and withholding or deferral of removal under the Convention Against Torture. Where an asylum officer grants one application but denies another, the immigration judge has the authority to review both the denial and the grant. An immigration judge shall not have the authority in these proceedings to consider an application for a form of relief and protection other than those listed in the first sentence of this paragraph (a), or to review an asylum officer’s inadmissibility determination under section 235(b)(1)(A)(i) of the Act. However, an applicant can file a motion to vacate a removal order as specified in paragraph (d) of this section. (b) Commencement of proceedings. Proceedings under this section shall commence when DHS files with the Immigration Court the documents identified in paragraphs (b)(1) through (4) of this section: (1) A Notice of Referral to the immigration judge; (2) A copy of the record of proceedings before the asylum officer, as outlined in 8 CFR 208.9(f); (3) The asylum officer’s written decision, including the removal order issued under 8 CFR 208.14(c)(5) by the asylum officer; and (4) Proof that the Notice of Referral, the record of proceedings, and the written decision, including the removal order, have been served on the applicant, which may consist of service via mail. (c) Proceedings before the immigration judge. After a Notice of E:\FR\FM\20AUP2.SGM 20AUP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Referral is filed with the immigration court, the case shall be scheduled for a hearing, and a hearing notice shall be served on the parties. (d) Motion to vacate removal order. The applicant may file a motion with the immigration judge to vacate the asylum officer’s order of removal. For the motion to be granted, the applicant must show that he or she is prima facie eligible for a form of relief or protection under the Act that cannot be considered in proceedings under this section. If the applicant makes such a showing, the immigration judge may, in the exercise of his or her discretion, grant the motion. If the immigration judge grants the motion, DHS may, in the exercise of its discretion, place the applicant in removal proceedings, by issuing a Notice to Appear and filing it with the immigration court. An applicant may file only one such a motion, and the motion must be filed before the immigration judge issues a decision under paragraph (e) of this section. A motion to vacate to apply for voluntary departure under section 240B of the Act shall be denied. (e) Immigration judge review. (1) The immigration judge shall determine, de novo, whether the applicant qualifies for the relief or protection at issue and, if applicable, whether the applicant merits relief in the exercise of discretion. In reaching a decision in proceedings under this section, the immigration judge shall review the record created before the asylum officer, as well as the asylum officer’s decision. Either party may provide additional testimony and documentation, but the party must establish that the testimony or documentation is not duplicative of testimony or documentation already presented to the asylum officer, and that the testimony or documentation is necessary to ensure a sufficient factual record upon which to base a reasoned decision on the application or applications. The immigration judge shall not have the authority to remand the case to the asylum officer. (2) If the immigration judge grants the applicant asylum under section 208 of the Act, the immigration judge shall issue orders granting the application and vacating the removal order issued by an asylum officer under 8 CFR 208.14(c)(5). If the immigration judge grants the application for withholding of removal under section 241(b)(3) of the Act, or withholding or deferral of removal under the Convention Against Torture, the immigration judge shall issue an order granting the application at issue, but shall not vacate the removal order issued by the asylum officer under 8 CFR 208.14(c)(5). VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 (f) Failure to appear. (1) If the applicant fails to appear at a hearing in proceedings conducted under this section, and DHS establishes by clear, unequivocal, and convincing evidence that written notice of the hearing was served on the applicant, the immigration judge shall deny the application or applications under review. There is no appeal from an immigration judge’s decision denying an application or applications for failure to appear. However, following such a decision, the applicant may file a motion to reopen with the immigration judge. In the motion, the applicant must establish that: (i) The failure to appear was because of exceptional circumstances (such as battery or extreme cruelty to the applicant or any child or parent of the applicant, serious illness of the applicant, or serious illness or death of the spouse, child, or parent of the applicant, but not including less compelling circumstances) beyond the control of the applicant; (ii) The applicant did not receive notice of the hearing; or (iii) The applicant was in Federal or State custody at the time of the hearing, and the failure to appear was through no fault of the applicant. (2) A motion filed under paragraph (f)(1)(i) of this section must be filed within 180 days of the hearing. A motion filed under paragraph (f)(1)(ii) or (iii) of this section may be filed at any time. When a motion under this paragraph (f) is granted, the applicant’s proceedings under this section are reopened. The granting of such a motion does not entitle the applicant to be placed in removal proceedings. PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 21. The authority section for part 1208 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110– 229; Pub. L. 115–218. 22. Amend § 1208.2 by: a. Revising paragraph (a); ■ b. Revising the last sentence of paragraph (b); ■ c. Removing the word ‘‘or’’ at the end of paragraph (c)(1)(vii); ■ d. Removing the period at the end of paragraph (c)(1)(viii) and adding ‘‘; or’’ in its place; ■ e. Removing and reserving paragraph (c)(1)(ix); ■ f. Adding paragraph (c)(1)(x); and ■ g. In paragraph (c)(3)(i): ■ ■ PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 46947 i. Adding the words ‘‘and in 8 CFR 1003.48’’ after the words ‘‘Except as provided in this section’’; and ■ ii. Removing ‘‘paragraph (c)(1) or (c)(2)’’ and adding ‘‘paragraph (c)(1) or (2)’’ in its place. The revisions and addition read as follows: ■ § 1208.2 Jurisdiction. (a) U.S. Citizenship and Immigration Services (USCIS). (1) Except as provided in paragraph (b) or (c) of this section, USCIS shall have initial jurisdiction over: (i) An asylum application filed by an alien physically present in the United States or seeking admission at a port-ofentry; and (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii) of the Act to further consider the application for asylum of an alien, other than a stowaway, found to have a credible fear of persecution or torture in accordance with 8 CFR 208.30(f) and retained by USCIS, or referred to USCIS by an immigration judge pursuant to §§ 1003.42 of this chapter and 1208.30 after the immigration judge has vacated a negative credible fear determination. Hearings to further consider applications for asylum under this paragraph (a)(1)(ii) are governed by the procedures provided for under 8 CFR 208.9. Further consideration of an asylum application filed by a stowaway who has received a positive credible fear determination will be under the jurisdiction of an immigration judge pursuant to paragraph (c) of this section. (2) USCIS shall also have initial jurisdiction over credible fear determinations under 8 CFR 208.30 and reasonable fear determinations under 8 CFR 208.31. (b) * * * Immigration judges shall also have the authority to review credible fear determinations referred to the Immigration Court under § 1208.30, reasonable fear determinations referred to the Immigration Court under § 1208.31, and asylum officers’ decisions on applications, under 8 CFR 208.14(c)(5), referred to the Immigration Court for review under § 1003.48 of this chapter. (c) * * * (1) * * * (x) An alien referred for proceedings under § 1003.48 of this chapter on or after [effective date of the final rule]. * * * * * ■ 23. Amend § 1208.3 by revising paragraphs (a) and (c)(3) to read as follows: E:\FR\FM\20AUP2.SGM 20AUP2 46948 khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 1208.3 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Form of application. (a)(1) Except for applicants described in paragraph (a)(2) of this section, an asylum applicant must file Form I–589, Application for Asylum and for Withholding of Removal, together with any additional supporting evidence in accordance with the instructions on the form. The applicant’s spouse and children shall be listed on the application and may be included in the request for asylum if they are in the United States. One additional copy of the principal applicant’s Form I–589 must be submitted for each dependent included in the principal’s application. (2) In proceedings under § 1003.48 of this chapter, the written record of a positive credible fear finding issued in accordance with 8 CFR 208.30(f), § 1003.42 of this chapter, or § 1208.30 shall be construed as the asylum application and satisfies the application filing requirements in paragraph (a)(1) of this section and § 1208.4(b). The written record of the positive credible fear determination shall be considered a complete asylum application for purposes of § 1208.4(a), with the date of service of the positive credible fear determination on the alien considered the date of filing and receipt, and shall be subject to the conditions and consequences provided for in paragraph (c) of this section following the applicant’s signature at the asylum hearing before the USCIS asylum officer. The applicant’s spouse and children may be included in the request for asylum only if they were included in the credible fear determination pursuant to 8 CFR 208.30(c). The asylum applicant may subsequently seek to amend, correct, or supplement the record of proceedings created before the asylum officer or during the credible fear review process, but must otherwise meet the requirements of § 1003.48(e) of this chapter concerning new documentation or testimony. * * * * * (c) * * * (3) An asylum application under paragraph (a)(1) of this section must be properly filed in accordance with the form instructions and with §§ 1003.24, 1003.31(b), and 1103.7(a)(3) of this chapter, including payment of a fee, if any, as explained in the instructions to the application. For purposes of filing with an immigration court, an asylum application is incomplete if it does not include a response to each of the required questions contained in the form, is unsigned, is unaccompanied by the required materials specified in paragraph (a) of this section, is not completed and submitted in accordance VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 with the form instructions, or is unaccompanied by any required fee receipt or other proof of payment as provided in § 1208.4(d)(3). The filing of an incomplete application shall not commence the period after which the applicant may file an application for employment authorization. An application that is incomplete shall be rejected by the Immigration Court. If an applicant wishes to have his or her application for asylum considered, he or she shall correct the deficiencies in the incomplete application and refile it within 30 days of rejection. Failure to correct the deficiencies in an incomplete application or failure to timely refile the application with the deficiencies corrected, absent exceptional circumstances as defined in § 1003.10(b) of this chapter, shall result in a finding that the alien has abandoned that application and waived the opportunity to file such an application; * * * * * asylum officer shall refer the application to an immigration judge, together with the appropriate charging document, for adjudication in removal proceedings (or, where charging documents may not be issued, shall dismiss the application). * * * * * (5) Alien referred for consideration of asylum application in a hearing before an asylum officer after positive credible fear finding. In the case of an application within the jurisdiction of USCIS pursuant to 8 CFR 208.2(a)(1)(ii), the asylum officer shall deny the application for asylum. The applicant will be provided a written notice of the decision. The decision will also include an order of removal based on the immigration officer’s inadmissibility determination under section 235(b)(1)(A)(i) of the Act and a decision on any request for withholding of removal under 8 CFR 208.16(d) and deferral of removal under 8 CFR 208.17, where applicable. The notice shall explain that the alien may seek to have an immigration judge review the § 1208.4 [Amended] decision, in accordance with § 1003.48 of this chapter. The alien shall have 30 ■ 24. Amend § 1208.4 by adding the words ‘‘, except that an alien in a review days to affirmatively request such review as directed on the decision proceeding under § 1003.48 of this notice. The failure to timely request chapter is not required to file the Form further review will be processed as the I–589’’ after the word ‘‘case’’ in alien’s decision not to request review. paragraph (b)(3)(iii). (i) If the alien requests such § 1208.5 [Amended] immigration judge review, USCIS will ■ 25. Amend § 1208.5(b)(2) by removing serve the alien with a notice of referral the reference ‘‘§ 1212.5 of this chapter’’ to an immigration judge for review of and adding ‘‘8 CFR 212.5’’ in its place. the asylum application. USCIS shall ■ 26. Amend § 1208.14 by: provide the record of the proceedings ■ a. Removing ‘‘the Office of before the asylum officer, as outlined in International Affairs’’ and adding in its 8 CFR 208.9(f), to the immigration judge place ‘‘USCIS’’ in paragraph (b); and the alien, along with the written ■ b. Revising paragraphs (c) notice of decision, including the order introductory text and (c)(1); and of removal issued by the asylum officer, ■ c. Adding paragraph (c)(5). and the alien’s request for review. The revisions and addition read as (ii) If the alien does not request a follows: review by an immigration judge, the decision and order of removal will be § 1208.14 Approval, denial, referral, or final and the alien shall be subject to dismissal of application. removal from the United States. * * * * * (iii) Once USCIS has commenced (c) Denial, referral, or dismissal by an proceedings under § 1003.48 of this asylum officer. If the asylum officer does chapter by filing the notice of referral on not grant asylum to an applicant after an the alien, the immigration judge has sole interview or hearing conducted in jurisdiction to review the application, accordance with 8 CFR 208.9, or if, as and an asylum officer may not reopen provided in 8 CFR 208.10, the applicant or reconsider the application once it has is deemed to have waived his or her been referred to the immigration judge. right to an interview, a hearing, or an * * * * * adjudication by an asylum officer, the ■ 27. Amend § 1208.16 by revising asylum officer shall deny, refer, or paragraph (a) to read as follows: dismiss the application, as follows: (1) Inadmissible or deportable aliens. § 1208.16 Withholding of removal under Except as provided in paragraph (c)(4) section 241(b)(3)(B) of the Act and withholding of removal under the or (5) of this section, in the case of an Convention Against Torture. applicant who appears to be inadmissible or deportable under (a) Consideration of application for section 212(a) or 237(a) of the Act, the withholding of removal. An asylum PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\20AUP2.SGM 20AUP2 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules officer shall not decide whether the exclusion, deportation, or removal of an alien to a country where the alien’s life or freedom would be threatened must be withheld, except in the case of an alien who is determined to be an applicant for admission under section 235(b)(1) of the Act, is found to have a credible fear of persecution or torture, and whose case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at 8 CFR 208.2(a)(1)(ii) to consider the application for asylum, and that application for asylum is denied. In exclusion, deportation, or removal proceedings, an immigration judge may adjudicate both an asylum claim and a request for withholding of removal, whether or not asylum is granted. * * * * * ■ 28. Amend § 1208.18 by revising paragraph (b)(1) to read as follows: § 1208.18 Implementation of the Convention Against Torture. * * * * * (b) * * * (1) Aliens in proceedings on or after March 22, 1999. (i) An alien who is in exclusion, deportation, or removal proceedings on or after March 22, 1999, may apply for withholding of removal under § 1208.16(c), and, if applicable, may be considered for deferral of removal under § 1208.17(a). (ii) In addition, an alien may apply for withholding of removal under 8 CFR 208.16(c), and, if applicable, may be considered for deferral of removal under 8 CFR 208.17(a), in the following situation: the alien is determined to be an applicant for admission under section 235(b)(1) of the Act, the alien is found to have a credible fear of persecution or torture, and the alien’s case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at 8 CFR 208.2(a)(1)(ii) to consider the application for asylum, and that application for asylum is denied. * * * * * § 1208.19 [Removed and Reserved] 29. Remove and reserve § 1208.19. 30. Revise § 1208.22 to read as follows: ■ ■ khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 1208.22 Effect on exclusion, deportation, and removal proceedings. An alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated pursuant to 8 CFR 208.24 or § 1208.24. An alien who is granted withholding of removal or deportation, or deferral of removal, may not be deported or removed to the country to which his or her deportation or removal VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 is ordered withheld or deferred unless the withholding order is terminated pursuant to 8 CFR 208.24 or § 1208.24 or deferral is terminated pursuant to 8 CFR 208.17 or § 1208.17(d) or (e). ■ 31. Amend § 1208.30 by revising the section heading and paragraphs (a), (e), and (g)(2) to read as follows: § 1208.30 Credible fear of persecution or torture 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. (a) Jurisdiction. The provisions of this subpart apply to aliens subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make the determinations described in this subpart. Except as otherwise provided in this subpart, paragraphs (b) through (g) of this section are the exclusive procedures applicable to stowaways and applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act and who receive fear interviews, determinations, and reviews under section 235(b)(1)(B) of the Act. Prior to January 1, 2030, an alien physically present in or arriving in the Commonwealth of the Northern Mariana Islands is ineligible to apply for asylum and may only establish eligibility for withholding of removal pursuant to section 241(b)(3) of the Act or withholding or deferral of removal under the regulations in §§ 1208.16(c) through (f), 1208.17, and 1208.18 issued pursuant to the Convention Against Torture’s implementing legislation. * * * * * (e) Determination. For the standards and procedures for asylum officers in conducting credible fear interviews and hearings, and in making positive and negative credible fear determinations, see 8 CFR 208.30. The immigration judges will review such determinations as provided in paragraph (g) of this section and 8 CFR 1003.42 and 1003.48. * * * * * (g) * * * (2) Review by immigration judge of a negative credible fear finding. (i) The asylum officer’s negative decision regarding credible fear shall be subject to review by an immigration judge upon the applicant’s request, or upon the applicant’s refusal either to request or to decline the review after being given such opportunity, in accordance with section 235(b)(1)(B)(iii)(III) of the Act. The immigration judge shall not have the authority to remand the case to the asylum officer. (ii) The record of the negative credible fear determination, including copies of PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 46949 the Form I–863, the asylum officer’s notes, the summary of the material facts, and other materials upon which the determination was based shall be provided to the immigration judge with the negative determination. (iii) A credible fear hearing shall be closed to the public unless the alien states for the record or submits a written statement that the alien is waiving that requirement; in that event the hearing shall be open to the public, subject to the immigration judge’s discretion as provided in 8 CFR 1003.27. (iv) Upon review of the asylum officer’s negative credible fear determination: (A) If the immigration judge concurs with the determination of the asylum officer that the alien does not have a credible fear of persecution or torture, the case shall be returned to DHS for removal of the alien. The immigration judge’s decision is final and may not be appealed. (B) If the immigration judge finds that the alien, other than an alien stowaway, possesses a credible fear of persecution or torture, the immigration judge shall vacate the Notice and Order of Expedited Removal and refer the case back to DHS for further proceedings consistent with § 1208.2(a)(1)(ii). Alternatively, DHS may commence removal proceedings under section 240 of the Act, during which time the alien may file an application for asylum and withholding of removal in accordance with § 1208.4(b)(3)(i). (C) If the immigration judge finds that an alien stowaway possesses a credible fear of persecution or torture, the alien shall be allowed to file an application for asylum and withholding of removal before the immigration judge in accordance with § 1208.4(b)(3)(iii). The immigration judge shall decide the application as provided in that section. Such decision may be appealed by either the stowaway or DHS to the Board of Immigration Appeals. If a denial of the application for asylum and for withholding of removal becomes final, the alien shall be removed from the United States in accordance with section 235(a)(2) of the Act. If an approval of the application for asylum or for withholding of removal becomes final, DHS shall terminate removal proceedings under section 235(a)(2) of the Act. PART 1235—INSPECTION OF PERSONS APPLYING FOR ADMISSION 32. The authority citation for part 1235 continues to read as follows: ■ Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to E.O. 13323, 69 FR E:\FR\FM\20AUP2.SGM 20AUP2 46950 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225, 1226, 1228, 1365a note, 1379, 1731–32; Title VII of Pub. L. 110–229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108–458); Public Law 115–218. 33. Amend § 1235.6 by: a. Revising paragraph (a)(2)(i); b. Removing the period at the end of paragraph (a)(2)(ii) and adding ‘‘; or’’ in its place; and ■ c. Revising paragraph (a)(2)(iii). The revisions read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS2 ■ ■ ■ VerDate Sep<11>2014 17:46 Aug 19, 2021 Jkt 253001 § 1235.6 Referral to immigration judge. (a) * * * (2) * * * (i) If an asylum officer determines that the alien does not have a credible fear of persecution or torture, and the alien requests a review of that determination by an immigration judge; * * * * * (iii) If an immigration officer refers an applicant in accordance with the PO 00000 Frm 00046 Fmt 4701 Sfmt 9990 provisions of 8 CFR 208.2(b) to an immigration judge. * * * * * Alejandro N. Mayorkas, Secretary of Homeland Security. Dated: August 13, 2021. Merrick B. Garland, Attorney General. [FR Doc. 2021–17779 Filed 8–18–21; 8:45 am] BILLING CODE 9111–97–P E:\FR\FM\20AUP2.SGM 20AUP2

Agencies

[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Proposed Rules]
[Pages 46906-46950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17779]



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Vol. 86

Friday,

No. 159

August 20, 2021

Part II





Department of Homeland Security





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8 CFR Parts 208 and 235





Department of Justice





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 Executive Office for Immigration Review





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8 CFR Parts 1003, 1208, and 1235





Procedures for Credible Fear Screening and Consideration of Asylum, 
Withholding of Removal, and CAT Protection Claims by Asylum Officers; 
Proposed Rule

Federal Register / Vol. 86 , No. 159 / Friday, August 20, 2021 / 
Proposed Rules

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 235

[CIS No. 2692-21; DHS Docket No. USCIS-2021-0012]
RIN 1615-AC67

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1208, and 1235

[A.G. Order No. 5116-2021]
RIN 1125-AB20


Procedures for Credible Fear Screening and Consideration of 
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum 
Officers

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (``DOJ'') and the Department of 
Homeland Security (``DHS'') (collectively, ``the Departments'') are 
proposing to amend the regulations governing the determination of 
certain protection claims raised by individuals subject to expedited 
removal and found to have a credible fear of persecution or torture. 
Under the proposed rule, such individuals could have their claims for 
asylum, withholding of removal under section 241(b)(3) of the 
Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory 
withholding of removal''), or protection under the regulations issued 
pursuant to the legislation implementing U.S. obligations under Article 
3 of the Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment (``CAT'') initially adjudicated by an 
asylum officer within U.S. Citizenship and Immigration Services 
(``USCIS''). Such individuals who are granted relief by the asylum 
officer would be entitled to asylum, withholding of removal, or 
protection under CAT, as appropriate. Such individuals who are denied 
protection would be able to seek prompt, de novo review with an 
immigration judge (``IJ'') in the DOJ Executive Office for Immigration 
Review (``EOIR''), with appeal available to the Board of Immigration 
Appeals (``BIA''). These changes are intended to improve the 
Departments' ability to consider the asylum claims of individuals 
encountered at or near the border more promptly while ensuring 
fundamental fairness. In addition, among other changes to the asylum 
process, the Departments are proposing to return to the regulatory 
framework governing the credible fear screening process in place before 
various regulatory changes made from the end of 2018 through the end of 
2020, so as to apply once more the longstanding ``significant 
possibility'' screening standard to all protection claims, but not to 
apply the mandatory bars to asylum and withholding of removal (with 
limited exception) at this initial screening stage.

DATES: Submission of public comments: Written comments and related 
material must be submitted on or October 19, 2021. 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 on the entirety of this rulemaking 
package, identified by DHS Docket No. USCIS-2021-0012, through the 
Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
website instructions for submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS, USCIS, DOJ, or EOIR officials, 
will not be considered comments on the proposed rule and may not 
receive a response from the Departments. Please note that the 
Departments cannot accept any comments that are hand-delivered or 
couriered. In addition, the Departments cannot accept comments 
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. The Departments also are not accepting mailed 
comments at this time. If you cannot submit your comment by using 
https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 
    For USCIS: Andria Strano, Acting Chief, Division of Humanitarian 
Affairs, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 5900 Capital 
Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000 
(not a toll-free call).
    For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Falls 
Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
    A. Improving the Expedited Removal Process
    B. DOJ and DHS Authority To Propose This Rule
    C. The Current Asylum and Expedited Removal Process
III. Discussion of the Proposed Rule
    A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)
    B. Credible Fear Screening Process--Proposed 8 CFR 208.30
    C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)
    D. Proceedings for Further Consideration of the Application for 
Asylum by USCIS Asylum Officer in Asylum and Withholding Merits 
Hearing for Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a) 
and (c); 208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 
235.6(a)(1); 1003.42; and 1208.30(g)
    E. Application Review Proceedings Before the IJ--Proposed 8 CFR 
1208.2(c), 1003.48
    F. Severability
    G. Discretion/Phased Implementation
    Statutory and Regulatory Requirements
    H. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    I. Regulatory Flexibility Act
    J. Unfunded Mandates Reform Act of 1995
    K. Congressional Review Act
    L. Executive Order 13132 (Federalism)
    M. Executive Order 12988 (Civil Justice Reform)
    N. Family Assessment
    O. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    P. National Environmental Policy Act
    Q. Paperwork Reduction Act

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, comments, and arguments on all aspects 
of this rule by the deadline stated above. The Departments also invite 
comments that relate to the economic, environmental, or federalism 
effects that might result from this rule. All comments must be 
submitted in English or accompanied by an English translation. Comments 
that will provide the most assistance to the Departments in developing 
these changes will reference a specific portion of the rule; explain 
the reason for any

[[Page 46907]]

recommended change; and include data, information, or authority that 
support such recommended change. Comments submitted in a manner other 
than the one listed above, including emails or letters sent to 
departmental officials, will not be considered comments on the proposed 
rule and may not receive a response from the Departments.
    Instructions: If you submit a comment, you must include the agency 
name (U.S. Citizenship and Immigration Services) and the DHS Docket No. 
USCIS-2021-0012 for this rulemaking. All submissions will be posted, 
without change, to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to the 
Departments. The Departments may withhold from public viewing 
information provided in comments that they determine may impact the 
privacy of an individual or is offensive. For additional information, 
please read the Privacy and Security Notice available at https://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing 
DHS Docket No. USCIS-2021-0012. You also may sign up for email alerts 
on the online docket to be notified when comments are posted or a final 
rule is published.

II. Background

    There is wide agreement that the system for dealing with asylum and 
related protection claims at the southwest border has long been 
``overwhelmed'' and in desperate need of repair.\1\ As the number of 
such claims has skyrocketed over the years, the system has proven 
unable to keep pace, resulting in large backlogs and lengthy 
adjudication delays. A system that takes years to reach a result is 
simply not a functional one. It delays justice and certainty for those 
who need protection, and it encourages abuse by those who will not 
qualify for protection and smugglers who exploit the delay for profit. 
The aim of this rule is to begin replacing the current system, within 
the confines of the law, with a better and more efficient one that will 
adjudicate protection claims fairly and expeditiously. The proposed 
rule would accomplish this goal by transferring the initial 
responsibility for adjudicating asylum and related protection claims 
\2\ made by noncitizens encountered at or near the border from IJs in 
EOIR to asylum officers in USCIS. The proposed rule would also provide 
for the prompt filing of asylum applications by such individuals, while 
also providing ample procedural safeguards designed to ensure due 
process, respect human dignity, and promote equity.
---------------------------------------------------------------------------

    \1\ See DHS, Homeland Security Advisory Council, Final Emergency 
Interim Report: CBP Families and Children Care Panel, at 1 (Apr. 16, 
2019), https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emergency-interim-report.pdf; Randy Capps et al., From 
Control to Crisis: Changing Trends and Policies Reshaping U.S.-
Mexico Border Enforcement 7, Migration Policy Institute (MPI) (Aug. 
2019), https://www.migrationpolicy.org/sites/default/files/publications/BorderSecurity-ControltoCrisis-Report-Final.pdf (``as 
arrivals have surged to levels unseen in years, border enforcement 
and asylum systems have been overwhelmed''); Lora Ries, Securing the 
Border and Fixing Our Broken Immigration System, Heritage Foundation 
(Sept. 21, 2020), https://www.heritage.org/immigration/commentary/securing-the-border-and-fixing-our-broken-immigration-system (``our 
immigration court system is so overwhelmed, [asylum] cases of merit 
are combined with meritless cases, each of which can take years to 
resolve''); Greg Chen & Peter Markowitz, Recommendations for DOJ and 
EOIR Leadership To Systematically Remove Non-Priority Cases from the 
Immigration Court Backlog 1, Am. Immigr. Law. Ass'n (Feb. 11, 2021), 
https://www.aila.org/infonet/remove-non-priority-cases (``The 
bottleneck for the entire removal system caused by the court 
backlog, if not addressed quickly, presents a serious obstacle to 
the Biden administration's goal of ensuring the fair and efficient 
processing of all removal cases.'').
    \2\ The generic term ``protection claims'' is used here to refer 
to all three forms of protection addressed in this proposed rule 
(asylum, statutory withholding of removal, and protection from 
removal under the regulations implementing U.S. obligations under 
Article 3 of the CAT).
---------------------------------------------------------------------------

    The current U.S. protection system at the border was initially 
designed in the mid-1990s.\3\ Congress established an expedited removal 
process for noncitizens who present themselves at a port of entry for 
inspection or are encountered at or near the border and who are found 
to be inadmissible because they lack valid entry documents or because 
they sought to enter the United States by fraud or misrepresentation. 
INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); INA 212(a)(6)(C), (7), 
8 U.S.C. 1182(a)(6)(C), (7). Congress authorized DHS to extend the 
expedited removal process to certain noncitizens apprehended shortly 
after crossing the border unlawfully, and DHS has exercised that 
authority. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).\4\
---------------------------------------------------------------------------

    \3\ See Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546 
(1996) (``IIRIRA'').
    \4\ The former Immigration and Naturalization Service (``INS'') 
initially implemented expedited removal only against noncitizens 
arriving at ports of entry. In 2002, DHS expanded the application of 
expedited removal to noncitizens who (1) entered the United States 
by sea, either by boat or other means, (2) were not admitted or 
paroled into the United States, and (3) have not been continuously 
present in the United States for at least 2 years. Notice 
Designating Aliens Subject to Expedited Removal Under Section 
235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 
68924 (Nov. 13, 2002). In 2004, DHS published an immediately 
effective notice in the Federal Register to expand the application 
of expedited removal to noncitizens encountered within 100 miles of 
the border and to noncitizens who entered the United States without 
inspection fewer than 14 days before they were encountered. 
Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 
2004). In 2019, DHS expanded the process to the full extent 
authorized by statute to reach noncitizens who entered the country 
without inspection less than 2 years before being apprehended and 
who were encountered anywhere in the United States. Designating 
Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). President 
Biden has directed DHS to consider whether to modify, revoke, or 
rescind that 2019 expansion. E.O. 14010, Ensuring a Timely and Fair 
Expedited Removal Process, 86 FR 8267, 8270-71 (Feb. 2, 2021).
---------------------------------------------------------------------------

    A DHS immigration officer who encounters a noncitizen subject to 
expedited removal may order the noncitizen to be ``removed from the 
United States without further hearing or review'' unless the noncitizen 
indicates either ``an intention to apply for asylum'' or ``a fear of 
persecution.'' INA 235 (b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If the 
noncitizen indicates such an intention or fear, the immigration officer 
must refer the noncitizen for an interview by an asylum officer to 
determine whether the noncitizen has a ``credible fear of 
persecution.'' INA 235(b)(1)(A)(ii), (B)(ii), 8 U.S.C. 
1225(b)(1)(A)(ii), (B)(ii). A credible fear is defined by statute as a 
``significant possibility'' that the noncitizen could establish 
eligibility for asylum. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). 
Before various regulatory changes published between 2018 and 2020, 
explained in greater detail below, the ``significant possibility'' 
standard also was applied to screening for eligibility for statutory 
withholding of removal and CAT protection.\5\ Because those recent 
regulatory changes have been vacated or enjoined, the ``significant 
possibility'' standard presently applies to all three forms of 
protection claims.\6\ If the asylum officer determines that the 
noncitizen lacks a credible fear, that determination is subject to 
expedited review by an IJ, but not by the BIA or an Article III court. 
INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); see INA

[[Page 46908]]

242(a)(2)(A)(iii), (e)(2), 8 U.S.C. 1252(a)(2)(A)(iii), (e)(2).
---------------------------------------------------------------------------

    \5\ See generally Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. 
Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for 
United States Nov. 20, 1994).
    \6\ See infra note 24.
---------------------------------------------------------------------------

    Noncitizens placed into expedited removal and determined to have a 
credible fear of persecution or torture by an asylum officer or an IJ 
must be referred for ``further consideration of the application for 
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The INA is 
silent as to the procedures by which this ``further consideration'' 
should occur. Under regulations in place before December 2020,\7\ such 
individuals are currently referred to IJs for removal proceedings under 
section 240 of the INA, 8 U.S.C. 1229a, (``section 240 removal 
proceedings'') and its implementing regulations, 8 CFR 208.30(f), 
235.6(a)(1)(ii)-(iii), 1208.30(g)(2)(iv)(B). In those proceedings, IJs 
conduct adversarial hearings to determine removability and adjudicate 
applications for asylum, withholding or deferral of removal, and any 
other forms of relief or protection.
---------------------------------------------------------------------------

    \7\ See infra note 24 discussing recent regulations and their 
current status. The final rule entitled Procedures for Asylum and 
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 
FR 80274, 80276 (Dec. 11, 2020) (``Global Asylum'' rule), revised 
the process used to hear the asylum claim, placing noncitizens into 
asylum/withholding-only proceedings instead of removal proceedings 
under section 240 of the INA.
---------------------------------------------------------------------------

    The process put into place in 1997, under which noncitizens who 
establish credible fear generally must have their asylum claims decided 
through an adversarial removal proceeding before an IJ, is no longer 
fit for its intended purpose. It does not adequately address the need 
to adjudicate in a timely manner the rapidly increasing number of 
asylum claims raised by individuals arriving in the United States.
    This system was designed at a time when the vast majority of 
southwest border encounters involved single adults from Mexico and 
relatively few asylum claims were filed. This system has proven unable 
to manage the increasing numbers and changing demographics of 
noncitizens \8\ with asylum claims arriving in recent years at the 
southwest border. Since the mid-2010s, the demographic characteristics 
of noncitizens encountered at the border with Mexico have been utterly 
transformed from being dominated by Mexican nationals to consisting 
mainly of nationals from the Northern Triangle countries of Central 
America (El Salvador, Guatemala, and Honduras) along with other Western 
Hemisphere states; from consisting almost entirely of adults traveling 
without children to including large numbers of families and 
unaccompanied children; and from including very few asylum seekers to 
asylum seekers making up a large share of southwest border 
encounters.\9\ As a result, even as overall encounters at the southwest 
border have been lower in recent years than in the 1990s and 2000s, the 
demands on the U.S. asylum system have increased sharply.
---------------------------------------------------------------------------

    \8\ For purposes of this discussion, the Departments use the 
term ``noncitizen'' synonymously with the term ``alien'' in the INA. 
See INA 101(a)(3), 8 U.S.C. 1101(a)(3).
    \9\ Office of Immigration Statistics, Fiscal Year 2020 
Enforcement Lifecycle Report 1, Dep't of Homeland Security (Dec. 
2020) (``OIS FY 2020 Lifecycle Report''), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Special_Reports/Enforcement_Lifecycle/2020_enforcement_lifecycle_report.pdf.
---------------------------------------------------------------------------

    Recent demographic changes in southwest border encounters have been 
dramatic. As recently as 2009, Mexican nationals accounted for 92 
percent of southwest border apprehensions.\10\ Their share fell below 
50 percent for the first time ever in 2014, remained below 50 percent 
between 2016 and 2019, and fell to an all-time low of 20 percent in 
2019, the last full year before the COVID-19 pandemic disrupted ongoing 
migration trends.\11\ Single adults accounted for about 89 percent of 
southwest border encounters in 2013--a number that was likely near an 
all-time low at the time--and fell to just 38 percent in 2019.\12\ Over 
much of this period, U.S. Border Patrol (``USBP'') agents have 
apprehended an increasing number of families and children from Northern 
Triangle countries. Individuals from Northern Triangle countries 
accounted for 71 percent of USBP apprehensions in 2019, a record high, 
and families from all countries accounted for 56 percent of the total, 
also an all-time high.\13\
---------------------------------------------------------------------------

    \10\ Dep't of Homeland Security, Fiscal Year 2019 Border 
Security Metrics Report 52 (Aug. 5, 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/BSMR/ndaa_border_security_metrics_report_fy_2019_0.pdf.pdf.
    \11\ U.S. Customs and Border Protection, Southwest Land Border 
Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-
border-encounters (last visited Aug. 4, 2021); see also OIS FY 2020 
Lifecycle Report, supra note 9, at 7. Mexico's share of southwest 
border encounters returned to 65 percent during the first year of 
the COVID-19 pandemic, but preliminary data indicate that Mexican 
nationals accounted for fewer than half of southwest border 
encounters during the first eight months of Fiscal Year 2021 and 
only about one-third of unique individuals when controlling for 
higher than usual repeat encounters due to border COVID-19 
protocols.
    \12\ Id. The phenomenon of families being encountered at the 
border was sufficiently rare that U.S. Border Patrol only began 
recording data on family unit apprehensions in 2013, and the Office 
of Field Operations did so beginning in 2016.
    \13\ Mike Guo, Immigration Enforcement Actions: 2019 at 4, Dep't 
of Homeland Security (Sept. 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf.
---------------------------------------------------------------------------

    These demographic changes have coincided with--and contributed to 
the reversal of--what had been a long-term trend in declining border 
encounters. Moreover, as the population of individuals encountered at 
or near the southwest border has changed, the number of people making 
fear claims after being placed in expedited removal has increased 
sharply. Southwest border apprehensions by the U.S. Border Patrol fell 
from over 1.6 million in 2000 to under 330,000 in 2011 before rising 
back to over 850,000 in 2019.\14\ During the same period, however, 
credible fear referrals to USCIS initially decreased from just over 
10,000 in 2000, to just under 5000 in 2008, before increasing back over 
11,000 in 2011, to over 105,000 in 2019.\15\ Thus, even as overall 
border encounters fell 48 percent between 2000 and 2019, the number of 
individuals making fear claims increased over 900 percent. These 
changing demographics have had an equally dramatic impact on the 
immigration courts responsible for determining removability. EOIR now 
faces a pending caseload of approximately 1.3 million cases,\16\ with 
approximately 610,000 pending asylum applications.\17\ While the corps 
of IJs has more than doubled since 2014, going from 249 at the end of 
FY 2014 to 539 as of April 2021,\18\ the number of pending cases has 
more than tripled in that same period, growing by nearly 500,000 cases 
since the end of Fiscal Year (``FY'') 2018.\19\ This surge in

[[Page 46909]]

pending and new cases, along with the temporary, partial closure of the 
immigration courts to in-person hearings in 2020 and 2021 because of 
the COVID-19 pandemic, has resulted in significantly increased 
adjudication times. While the median completion time for cases 
involving individuals who are detained through the 2nd quarter of FY 
2021 was 43 days, for non-detained individuals in removal proceedings, 
including arriving asylum seekers initially screened into expedited 
removal who establish a credible fear of persecution, the recent 
average case completion time in immigration court has been 3.75 
years.\20\ Most asylum seekers arriving at the southwest border in 
recent years must therefore often wait several years to have their 
claims adjudicated in removal proceedings under section 240 of the Act, 
8 U.S.C. 1229a. Absent changes to the current system, the continuing 
arrival of large numbers of noncitizens at the southwest border with 
protection claims is likely to lengthen adjudication times further.
---------------------------------------------------------------------------

    \14\ United States Border Patrol, Southwest Border Sectors, 
Total Illegal Alien Apprehensions by Fiscal Year, https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Fiscal%20Year%20Southwest%20Border%20Sector%20Apprehensions%20%28FY%201960%20-%20FY%202019%29_0.pdf (last 
visited Aug. 4, 2021).
    \15\ Bruno, Andorra, Immigration: U.S. Asylum Policy (CRS Report 
No. R45539), at 37 (Feb. 19, 2019) (data through 2018), https://crsreports.congress.gov/product/pdf/R/R45539; see also U.S. 
Citizenship and Immigration Services, Credible Fear Workload Report 
Summary--FY2019 Total Caseload (2019 data), https://www.uscis.gov/sites/default/files/document/data/Credible_Fear_Stats_FY19.pdf (last 
visited Aug. 4, 2021).
    \16\ EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Pending Cases, New Cases, and Total Completions (Apr. 
19, 2021), https://www.justice.gov/eoir/page/file/1242166/download.
    \17\ EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Total Asylum Applications (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1106366/download.
    \18\ EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Immigration Judge (IJ) Hiring (Apr. 2021), https://www.justice.gov/eoir/page/file/1242156/download.
    \19\ EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Pending Cases, New Cases, and Total Completions (Apr. 
19, 2021), https://www.justice.gov/eoir/page/file/1242166/download.
    \20\ According to a review of data collected as part of the FY 
2020 Lifecycle Report by DHS OIS, 39% of cases of noncitizens 
encountered at the southwest border in 2013 through 2019 who made 
fear claims remain in EOIR proceedings as of this date. As those 
cases are eventually completed, the median and average completion 
time for cases could be further impacted.
---------------------------------------------------------------------------

    In 2020 and 2021, the situation at the southwest border was 
complicated further by the COVID-19 pandemic. Pursuant to sections 362 
and 365 of the Public Health Service Act, Public Law 78-410, 58 Stat. 
682 (1944), 42 U.S.C. 265 and 268 (``Title 42''), the Centers for 
Disease Control and Prevention (``CDC'') determined in March 2020 that 
it was necessary to prohibit the introduction of certain persons from 
Mexico and Canada to protect the public health by preventing the 
further introduction of the virus that causes COVID-19 into the United 
States.\21\ To mitigate the risks presented by COVID-19, the CDC Order 
requires returning all covered noncitizens as rapidly as possible--and 
with the least amount of time spent in congregate settings as is 
feasible--to the country from which they entered the United States, to 
their country of origin, or to another location as practicable and 
appropriate.\22\ Covered noncitizens are those persons traveling from 
Canada or Mexico (regardless of their country of origin) who otherwise 
would be introduced into a congregate setting in a land (and, as 
amended, coastal) port of entry or USBP station at or near the U.S. 
borders with Canada and Mexico. The CDC Order does not apply to, among 
others, U.S. citizens, lawful permanent residents, and those who arrive 
at a port of entry with valid travel documents.\23\
---------------------------------------------------------------------------

    \21\ See Order Suspending the Right to Introduce Certain Persons 
from Countries Where a Quarantinable Communicable Disease Exists, 85 
FR 65806, 65807 (Oct. 16, 2020) (``CDC Order'' or ``Title 42 
order'') (extending March 20, 2020 order, 85 FR 16559).
    \22\ Id. at 65812.
    \23\ Id. at 65808.
---------------------------------------------------------------------------

    Border encounters in FY 2021 remain high. To date, the data does 
suggest that single adults make up a greater percentage of 
apprehensions than in FY 2019 and, controlling for repeat encounters, 
the actual number of unique encounters (the number of unique 
individuals encountered irrespective of potential repeated attempts to 
enter) has been lower to date in FY 2021 than in FY 2019 (given the 
continuing use of Title 42 authority to expel many adults and families 
soon after they are apprehended). But total encounters at or near the 
southwest border through April for FY 2021 has surpassed the FY 2019 
highs over the same period. The high number of southwest border 
apprehensions is presenting serious challenges for an already 
overwhelmed U.S. asylum system at the border.

A. Improving the Expedited Removal Process

    The principal purpose of this proposed rule is to simultaneously 
increase both the efficiency and the procedural fairness of the 
expedited removal process for individuals who have been found to have a 
credible fear of persecution or torture. When individuals who have been 
placed into the expedited removal process make a fear claim, they are 
referred to a USCIS asylum officer, who interviews them to determine 
whether they have a credible fear of persecution or torture. See INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). Under current procedures, 
individuals who receive a positive credible fear determination are 
referred to an immigration court for removal proceedings, in the course 
of which they have the opportunity to apply for asylum and other forms 
of relief or protection from removal. See 8 CFR 208.30(f) (2018) 
(providing that if a noncitizen, other than a stowaway, ``is found to 
have a credible fear of persecution or torture, the asylum officer will 
so inform the [noncitizen] and issue a Form I-862, Notice to Appear, 
for full consideration of the asylum and withholding of removal claim 
in proceedings under section 240 of the Act''). As explained above, it 
may take years before the individual's protection claim is first 
adjudicated by an IJ. The ability to stay in the United States for 
years waiting for an initial decision may motivate unauthorized border 
crossings by individuals who otherwise would not have sought to enter 
the United States and who lack a meritorious protection claim. This 
delay creates additional stress for those ultimately determined to 
merit asylum and other forms of humanitarian protection, as they are 
left in limbo as to whether they might still be removed and unable to 
petition for qualified family members, some of whom may still be at 
risk of harm.
    To respond to this problem, this rule proposes at 8 CFR 
208.2(a)(1)(ii) and 208.9 to provide USCIS asylum officers the 
authority to adjudicate in the first instance the protection claims of 
individuals who receive a positive credible fear determination, and 
that they do so in a nonadversarial hearing. The rule also proposes at 
8 CFR 208.3(a)(2) that the record of a credible fear interview may 
serve as an asylum application for those noncitizens whose cases are 
retained by or referred to USCIS for adjudication after a positive 
credible fear determination, thereby helping to ensure that asylum 
seekers meet the statutory requirement to apply for asylum within one 
year of arrival. These steps are meant to ensure greater efficiency in 
the system, which was initially designed for protection claims to be 
the exception, not the rule, among those encountered at or near the 
border. The proposed rule will also stem the rapid growth of the EOIR 
caseload, described in greater detail above.
    As noted earlier, the current system for processing protection 
claims made by individuals encountered at or near the border and who 
establish credible fear was originally adopted in 1997. Within the last 
3 years, however, several attempts have been made to issue new rules to 
change the credible fear screening process. Many of these attempts have 
been vacated or enjoined, and the implementation of others has been 
delayed pending consideration of whether they should be revised or 
rescinded.\24\
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    \24\ On November 9, 2018, the Departments issued an interim 
final rule (``IFR'') that barred noncitizens who entered the United 
States in contravention of a covered Presidential proclamation or 
order from eligibility for asylum, required that they receive a 
negative credible fear finding on their asylum claims, and required 
that their statutory withholding and CAT claims be considered under 
the higher reasonable fear screening standard. See Aliens Subject to 
a Bar on Entry Under Certain Presidential Proclamations; Procedures 
for Protection Claims, 83 FR 55934, 55939, 55943 (Nov. 9, 2018). A 
month later, the U.S. District Court for the Northern District of 
California preliminarily enjoined the Departments from implementing 
the rule, E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 
1121 (N.D. Cal. 2018), and the Ninth Circuit affirmed, E. Bay 
Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021).
    On July 16, 2019, the Departments published another IFR, 
entitled Asylum Eligibility and Procedural Modifications, 84 FR 
33829 (July 16, 2019), which generally barred noncitizens from 
asylum eligibility if they entered or attempted to enter the United 
States across the southwest border after failing to apply for 
protection from persecution or torture while in any one of the third 
countries through which they transited, required a negative credible 
fear finding for such noncitizens' asylum claims, and required their 
withholding and CAT claims be considered under the higher reasonable 
fear screening standard. Id. at 33837-38. The U.S. District Court 
for the District of Columbia vacated that IFR after concluding that 
the Departments violated the Administrative Procedure Act by 
forgoing notice-and-comment rulemaking. Capital Area Immigrants' 
Rights Coal. v. Trump, 471 F. Supp. 3d 25, 45-57 (D.D.C. 2020). The 
Departments issued a final rule on December 17, 2020, entitled 
Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 
17, 2020), which again attempted to bar from asylum eligibility 
those noncitizens who transited a third country before arriving at 
the border. The U.S. District Court for the Northern District of 
California subsequently issued a preliminary injunction against 
implementation of that rule, which remains in place as of this 
writing. E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 
2021 WL 607869, at *5 (N.D. Cal. Feb. 16, 2021).
    Around the same time, the Departments also issued the final rule 
entitled Procedures for Asylum and Withholding of Removal; Credible 
Fear and Reasonable Fear Review, 85 FR 80274 (Dec. 11, 2020) 
(``Global Asylum'' rule). That rule revised the credible fear 
screening process to require that all the mandatory bars to asylum 
and withholding be considered during the credible fear screening 
process and established a new screening standard for withholding of 
removal and CAT protection. On January 8, 2021, the U.S. District 
Court for the Northern District of California preliminarily enjoined 
the Departments from implementing the rule. Pangea Legal Servs. v. 
DHS, No. 20-cv-09253 JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 
2021). That preliminary injunction remains in place.
    Finally, the Departments also published a final rule entitled 
Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020) 
(``Security Bars'' rule), which added an additional bar to asylum 
and withholding that would be applied to the credible fear screening 
process. The Departments have delayed the rule's effective date to 
December 31, 2021, see Security Bars and Processing; Delay of 
Effective Date, 86 FR 15069 (Mar. 22, 2021), as the Departments 
consider possible action to rescind or revise the rule.

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[[Page 46910]]

    This proposed rule offers another approach. It would establish a 
streamlined and simplified adjudication process for individuals 
encountered at or near the border, placed into expedited removal, and 
determined to have a credible fear of persecution or torture, with the 
aim of deciding protection claims in a more timely fashion while 
ensuring procedural protections against erroneous denials of 
relief.\25\ The proposed rule would authorize USCIS asylum officers to 
adjudicate in the first instance the protection claims of individuals 
who receive positive credible fear determinations under the expedited 
removal framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). 
The procedures that USCIS asylum officers would use to adjudicate these 
claims would be nonadversarial, and the decisions would be made within 
timeframes more in line with those established by Congress in section 
208(d)(5) of the INA.\26\
---------------------------------------------------------------------------

    \25\ Section 4(b)(i) of E.O. 14010 instructed the Secretary of 
Homeland Security to review the procedures for individuals placed 
into expedited removal at or near the border and issue a report with 
recommendations ``for creating a more efficient and orderly process 
that facilitates timely adjudications [of asylum/protection claims] 
and adherence to standards of fairness and due process.'' 86 FR at 
8270.
    \26\ See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (specifying that an 
initial hearing on an asylum application should generally occur 
within 45 days after the filing of the application and that an 
initial administrative decision should generally be made within 180 
days).
---------------------------------------------------------------------------

    To ensure effective implementation of the expedited removal system, 
this rule also proposes to revise the parole considerations prior to a 
positive credible fear determination in 8 CFR 235.3. The current rule 
limits parole consideration before the credible fear determination to 
situations in which parole ``is required to meet a medical emergency or 
is necessary for a legitimate law enforcement objective.'' 8 CFR 
235.3(b)(2)(iii), (b)(4)(ii). Under this proposed rule, DHS also would 
be able to consider whether parole is required ``because detention is 
unavailable or impracticable.'' The current narrower parole standards 
effectively prevent DHS from placing into expedited removal many 
noncitizens who would otherwise be eligible for this process, 
especially families, given the requirements of the Flores Settlement 
Agreement (``FSA'').\27\ These restrictions on DHS's ability to detain 
families, coupled with capacity constraints imposed by the COVID-19 
pandemic, have effectively prevented the Government from using the 
third option to detain families subject to expedited removal for more 
than a very limited number of families and for more than a very limited 
period of time. This proposed rule would, when finalized, eliminate 
that barrier to placing families into expedited removal. The proposed 
parole provision would allow more noncitizens arriving at the U.S. 
border without proper documents for entry into the country to be placed 
into expedited removal and allow for them to have their fear claims 
heard and considered outside the detention setting when space is 
unavailable or impracticable to use.
---------------------------------------------------------------------------

    \27\ In 1985, a class-action suit challenged the policies of the 
former INS relating to the detention, processing, and release of 
alien children; the case eventually reached the U.S. Supreme Court. 
The Court upheld the constitutionality of the challenged INS 
regulations on their face and remanded the case for further 
proceedings consistent with its opinion. See Reno v. Flores, 507 
U.S. 292, 315 (1993). In January 1997, the parties reached a 
comprehensive settlement agreement, referred to as the Flores 
Settlement Agreement. See Flores v. Rosen, 984 F.3d 720, 727 (9th 
Cir. 2020) (describing litigation history). The FSA was to terminate 
5 years after the date of final court approval; however, the 
termination provisions were modified in 2001, such that the FSA does 
not terminate until 45 days after publication of regulations 
implementing the agreement. Id. In August 2019, DHS and HHS jointly 
issued a final rule entitled Apprehension, Processing, Care, and 
Custody of Alien Minors and Unaccompanied Alien Children, 84 FR 
44392 (Aug. 23, 2019). In September 2019, about a month before the 
Final Rule was to take effect, a Federal district court granted the 
plaintiff class's motion to enforce the FSA and denied the 
government's motion to terminate it, because the final rule was 
inconsistent with the FSA and thus did not ``implement[ ]'' it as 
required by the FSA's termination provisions. See Flores v. Barr, 
407 F. Supp. 3d 909, 914 (C.D. Cal. 2019). The Ninth Circuit 
affirmed in part, and the provisions of the FSA that are relevant 
here thus generally remain in effect. See Flores v. Rosen, 984 F.3d 
at 737, 744. Under the requirements of the FSA, when DHS apprehends 
an alien parent or legal guardian with their child(ren) either 
illegally entering the United States between the ports of entry or 
found inadmissible at a port of entry, it has, following initiation 
of removal proceedings, three primary options for purposes of 
immigration custody: (1) Parole all family members into the United 
States; (2) detain the parent(s) or legal guardian(s) and either 
release the juvenile to another parent or legal guardian or transfer 
them to HHS to be treated as an unaccompanied child; or (3) detain 
family members together by placing them at an appropriate DHS Family 
Residential Center (``FRC'') during their immigration proceedings. 
See, e.g., id. at 737-38 (discussing ``transfer of unaccompanied 
minors from DHS to HHS,'' ``DHS custodial care immediately following 
apprehension,'' and parole).
---------------------------------------------------------------------------

    This proposed rule would apply prospectively and only to adults and 
families who are placed into expedited removal.\28\ The proposed rule 
would not apply to unaccompanied children, see 6 U.S.C. 279(g)(2) 
(defining ``unaccompanied alien child''), as they are statutorily 
exempt from expedited removal proceedings. 8 U.S.C. 1232(a)(5)(D)(i) 
(providing that ``any unaccompanied alien child'' ``shall be--(i) 
placed in removal proceedings under section 240'' of the INA).\29\ The

[[Page 46911]]

proposed rule also would not apply to individuals already residing in 
the United States who are not designated by the Secretary as subject to 
expedited removal.\30\ Such individuals would continue to have their 
asylum claims heard in removal proceedings under section 240 of the 
INA, or through an affirmative asylum application under section 208 of 
the INA if they have not yet been placed into removal proceedings. The 
proposed rule also would not apply to (1) stowaways or (2) noncitizens 
who are present in or arriving in the Commonwealth of the Northern 
Mariana Islands who are determined to have a credible fear. Such 
individuals would continue to be referred to asylum/withholding-only 
proceedings before an IJ under 8 CFR 208.2(c).
---------------------------------------------------------------------------

    \28\ According to EOIR data, as of April 2021, over 220,000 of 
EOIR's pending removal cases originated with a credible fear claim. 
EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Pending I-862 Proceedings Originating With a Credible 
Fear Claim and All Pending I-862s (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1112996/download. These cases are in 
various stages of the removal process, and hearings may have already 
been scheduled or held. Moving these cases to a new process at this 
stage would risk further delaying adjudication of their protection 
claims and create an immediate backlog of tens of thousands of cases 
for USCIS as it prepares to implement this proposed process for 
future border arrivals.
    \29\ The statute provides that any unaccompanied child whom DHS 
seeks to remove shall be placed in removal proceedings under section 
240 of the INA. In lieu of being placed in removal proceedings, 
unaccompanied children from contiguous countries who meet special 
criteria may be permitted to withdraw their applications for 
admission and be voluntarily returned to their country of 
nationality or country of last habitual residence. Actual removal 
proceedings for unaccompanied children, whether from contiguous 
countries or not, however, must be under section 240 of the INA.
    \30\ See supra note 4.
---------------------------------------------------------------------------

    Finally, the Departments clarify that nothing in this proposed 
rule, if finalized, is intended to displace DHS's (and, in particular, 
USCIS's) prosecutorial discretion to place a covered noncitizen in, or 
to withdraw a covered noncitizen from, expedited removal proceedings 
and issue a Notice to Appear (``NTA'') to place the noncitizen in 
section 240 removal proceedings at any time after they are referred to 
USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-, 
25 I&N Dec. 520, 523 (BIA 2011).
    The credible fear screening regulations proposed under this rule 
generally would recodify the current screening process, returning the 
regulatory language, in large part, to what was in place prior to the 
various regulatory changes made from the end of 2018 through the end of 
2020. Noncitizens encountered at or near the border or ports of entry 
can be placed into expedited removal and provided a credible fear 
screening if they indicate an intention to apply for asylum, a fear of 
persecution or torture, or a fear of return to their home countries. 
See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR 
235.3(b)(4), 1235.3(b)(4)(i). Individuals claiming a fear or an 
intention to apply for protection are referred to USCIS asylum officers 
for an interview and consideration of their fear claims under the 
credible fear screening standard, which applies to all relevant 
protection claims. If an asylum officer determines that an individual 
does not have a credible fear of persecution or torture, the individual 
can request that an IJ review the asylum officer's negative credible 
fear determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). If the IJ concurs 
with the asylum officer's negative credible fear determination, no 
administrative appeal is available, 8 CFR 1208.30(g)(2)(iv)(A), and DHS 
can execute the individual's expedited removal order, promptly removing 
the individual from the United States.
    If the noncitizen is found to have a credible fear, however, the 
proposed rule would change the procedures in place prior to this 
rulemaking that are described above. Under this proposed rule, rather 
than referring the individual to an IJ for an adversarial removal 
proceeding under section 240 of the INA, or, as provided for in a 
presently-enjoined regulation, an asylum/withholding-only hearing, the 
individual's asylum application instead could be retained by USCIS for 
a nonadversarial hearing before an asylum officer. See 8 CFR 208.30(f) 
(proposed). Similarly, if, upon review of an asylum officer's negative 
credible fear determination, an IJ finds that an individual does have a 
credible fear of persecution or torture, the individual also could be 
referred back to an asylum officer for proceedings on the individual's 
protection claims. Id. Sec. Sec.  1003.42, 1208.30(g). The Departments 
plan to implement these procedures by having asylum hearings conducted 
for those individuals who are referred to or retained by USCIS after 
the positive credible fear determination would be adjudicated in a 
separate queue, apart from adjudications made with respect to 
affirmative asylum applications filed directly with USCIS. The 
individual would have the right to representation during this 
proceeding. Id. Sec.  208.9(b). If, at the conclusion of an asylum 
hearing described in this proposed rule, the asylum officer grants 
asylum, the individual would be allowed to remain in the United States 
indefinitely with the status of ``asylee'' and eventually may apply for 
lawful permanent residence. Id.; see also INA 208(c)(1), 209(b), 8 
U.S.C. 1158(c)(1), 1159(b). If the asylum officer denies asylum and 
orders the individual removed based on the immigration officer's 
initial inadmissibility determination under section 235(b)(1)(A)(i) of 
the INA, 8 U.S.C. 1225(b)(1)(A)(i), the asylum officer will also issue 
a decision regarding withholding or deferral of removal. 8 CFR 
208.14(c)(5) (proposed). An individual who is denied asylum may request 
review by an IJ of the asylum decision, as well as any denial of 
withholding or deferral of removal. Id. Sec. Sec.  208.14(c)(5)(i), 
1003.48(a).
    In cases in which a noncitizen seeks review of an asylum officer's 
adverse decision, the Departments propose that the IJ would make an 
independent de novo determination based on the record of the hearing 
before the Asylum Office plus any additional, non-duplicative evidence 
presented to the court that is necessary to reach a reasoned decision. 
Id. Sec.  1003.48(e) (proposed). The individual would also have the 
right, consistent with the INA, to representation during this review. 
See 8 CFR 1003.12 (proposed) (providing that the rules in this subpart 
apply to the proposed proceedings under 8 CFR 1003.48); 8 CFR 
1003.16(b) (providing that a noncitizen ``may be represented in 
proceedings before an Immigration Judge by an attorney or other 
representative''). The IJ also would be authorized to vacate 
proceedings when the judge finds the individual is prima facie eligible 
for other forms of relief from removal, so that DHS, in the exercise of 
DHS's discretion, could place the noncitizen into removal proceedings 
under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR 1003.48(d) 
(proposed).
    Finally, the rule proposes that both parties would be able to 
appeal the IJ's decision to the BIA under procedures similar to those 
used in section 240 removal proceedings and asylum/withholding-only 
proceedings under 8 CFR 208.2(c), 1208.2(c). See 8 CFR 1003.1(b)(15) 
(proposed). In addition, the individual would be able to petition for 
review of the BIA decision with the Federal courts. See infra note 59.

B. DOJ and DHS Authority To Propose This Rule

    The Attorney General and the Secretary jointly propose this rule 
pursuant to their respective authorities concerning asylum 
determinations. The Homeland Security Act of 2002 (``HSA''), Public Law 
107-296, 116 Stat. 2135, as amended, created DHS and transferred to it 
many functions related to the execution of Federal immigration law. The 
HSA charged the Secretary ``with the administration and enforcement of 
this chapter and all other laws relating to the immigration and 
naturalization of aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and 
granted the power to take all actions ``necessary for carrying out'' 
the Secretary's authority under the immigration laws, INA 103(a)(3), 8 
U.S.C. 1103(a)(3). The Secretary's authority also includes the 
authority to

[[Page 46912]]

publish regulatory amendments governing the apprehension, inspection 
and admission, detention and removal, withholding of removal, and 
release of noncitizens encountered in the interior of the United States 
or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C. 
1225, 1226, 1231.
    The HSA thus transferred to DHS authority to adjudicate asylum 
applications, as well as the authority to conduct credible fear 
interviews and make credible fear determinations in the context of 
expedited removal. INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also 
HSA 451(b), 6 U.S.C. 271(b) (providing for the transfer of adjudication 
of asylum and refugee applications from the Commissioner of Immigration 
and Naturalization to the Director of the Bureau of Citizenship and 
Immigration Services, now USCIS). By operation of the HSA, the 
reference to ``Attorney General'' in the INA is understood also to 
encompass the Secretary in matters with respect to immigration 
proceedings before DHS. That authority has been delegated within DHS to 
the Director of USCIS. See 8 CFR 208.2(a), 208.30.
    In addition, under the HSA, the Attorney General retained authority 
over individual immigration adjudications (including section 240 
removal proceedings and certain adjudications related to asylum 
applications) conducted within EOIR. See HSA 1101(a), 6 U.S.C. 521(a); 
INA 103(g), 8 U.S.C. 1103(g). IJs within DOJ continue to adjudicate all 
asylum applications filed by noncitizens during the pendency of removal 
proceedings, and they also review asylum applications referred by USCIS 
to the immigration court. See INA 101(b)(4), 240(a)(1), 8 U.S.C. 
1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b), 1240.1(a).
    Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), 
provides that if a noncitizen in expedited removal proceedings is 
determined to have a credible fear of persecution by an asylum officer, 
the noncitizen is entitled to ``further consideration of the 
application for asylum.'' This proposed rule addresses how that further 
consideration will occur. Section 208(d)(1) of the INA, 8 U.S.C. 
1158(d)(1), provides the Attorney General with the authority to 
establish procedures for the consideration of asylum applications, 
including those filed in accordance with section 235(b) of the INA, 8 
U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a).
    Section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), 
authorizes the Secretary to establish rules and regulations governing 
parole. Section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), vests in the 
Secretary the discretionary authority to grant parole to applicants for 
admission on a case-by-case basis.

C. The Current Asylum and Expedited Removal Process

1. Asylum
    The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the 
first comprehensive legislation to establish the modern refugee and 
asylum system in the United States. Asylum is a discretionary benefit 
that can be granted by the Attorney General or the Secretary if a 
noncitizen establishes, among other things, that they have experienced 
past persecution or have a well-founded fear of future persecution on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) 
(providing that the Attorney General ``may'' grant asylum to refugees); 
INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining ``refugee''). As 
long as they retain their asylee status, noncitizens who are granted 
asylum (1) cannot be removed or returned to their country of 
nationality or last habitual residence, (2) receive employment 
authorization incident to their status, and (3) may be permitted to 
apply for readmission after travel outside of the United States with 
prior consent from the Secretary. INA 208(c)(1), 8 U.S.C. 1158(c)(1); 
see Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2286 (2021) (``[A] grant 
of asylum permits an alien to remain in the United States and to apply 
for permanent residency after one year[.]'' (internal quotation marks 
and citation omitted) (emphases omitted)); 8 CFR 274a.12(a)(5) 
(employment authorization incident to asylum status); id. Sec.  
223.1(b) (readmission after travel for a ``person who holds . . . 
asylum status pursuant to section 208 of the Act'').
    Asylum applications are presently classified based on the agency 
with jurisdiction over the noncitizen's case. If a noncitizen is 
physically present in the United States, not detained, and not in 
removal proceedings, the noncitizen may file an asylum application with 
USCIS. These applications are known as ``affirmative'' filings. If the 
noncitizen is in removal proceedings before an IJ, the noncitizen 
instead may file an application for asylum with the IJ as a defense to 
removal. Such ``defensive'' filings are currently the only route by 
which noncitizens referred to an IJ by a USCIS asylum officer after 
receiving a positive credible fear determination can obtain an 
adjudication of the merits of their asylum claims.
    Noncitizens who are ineligible for a grant of asylum, or who are 
denied asylum based on the Attorney General's or the Secretary's 
discretion, nonetheless may qualify for other forms of protection. An 
application for asylum submitted by a noncitizen in removal proceedings 
is also considered 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 
1208.3(b), 1208.13(c)(1). An IJ also may consider a noncitizen's 
eligibility for withholding and deferral of removal under regulations 
issued pursuant to the implementing legislation regarding U.S. 
obligations under Article 3 of the CAT. Foreign Affairs Reform and 
Restructuring Act of 1998, Public Law 105-277, div. G, sec. 2242(b), 
112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. 1231 note (1999)); 8 
CFR 1208.3(b), 1208.13(c)(1); see also id. Sec. Sec.  1208.16(c), 
1208.17.
    Withholding and deferral of removal bar a noncitizen's removal to 
any country where the noncitizen would ``more likely than not'' face 
persecution or torture, meaning that the noncitizen would face a clear 
probability that their life or freedom would be threatened because of a 
protected ground or a clear probability of torture. 8 CFR 
1208.16(b)(2), (c)(2). Thus, if a noncitizen proves that it is more 
likely than not that the noncitizen'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 noncitizen nonetheless may be entitled to statutory 
withholding of removal if not otherwise barred from that form of 
protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 
1208.16. Likewise, a noncitizen who establishes that he or she more 
likely than not will face torture in the country of removal will 
qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c), 
1208.17(a). In contrast to the more generous benefits available through 
asylum, statutory withholding and CAT protection do not: (1) Prohibit 
the Government from removing the noncitizen to a third country where 
the noncitizen would not face the requisite likelihood of persecution 
or torture (even in the absence of an agreement with that third 
country); (2) create a path to lawful permanent resident status; or (3) 
afford the same ancillary benefits, such as derivative protection for 
family members. See, e.g., Guzman

[[Page 46913]]

Chavez, 141 S. Ct. at 2286 (``distinguish[ing] withholding-only relief 
from asylum'' on the ground that withholding does not preclude the 
Government from removing the noncitizen to a third country and does not 
provide the noncitizen any permanent right to remain in the United 
States); Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that 
``the Act does not permit derivative withholding of removal under any 
circumstances''); INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory 
provision allowing asylum status to be granted to accompanying or 
following-to-join spouse or children of a noncitizen granted asylum; no 
equivalent statutory or regulatory provision for individuals granted 
withholding or deferral of removal).
2. Expedited Removal and Screenings in the Credible Fear Process
    In the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. The process is 
applicable to noncitizens arriving in the United States (and, in the 
discretion of the Secretary, certain other designated classes of 
noncitizens) who are found to be inadmissible under either section 
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material 
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 
1182(a)(7), regarding documentation requirements for admission. Under 
expedited removal, such noncitizens may be ``removed from the United 
States without further hearing or review unless the [noncitizen] 
indicates either an intention to apply for asylum under section 1158 of 
this title or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i).
    The former INS and, later, DHS implemented a screening process, 
known as the ``credible fear'' screening, to identify potentially valid 
claims for asylum, statutory withholding of removal, and CAT 
protection, or, more specifically, to prevent noncitizens placed in 
expedited removal from being removed to a country in which they would 
face persecution or torture. Currently, with regulatory changes made 
from 2018 through 2020 either vacated, enjoined, or delayed, any 
noncitizen who expresses a fear of persecution or torture, a fear of 
return, or an intention to apply for asylum during the course of the 
expedited removal process is referred to a USCIS asylum officer for an 
interview to determine whether the noncitizen has a credible fear of 
persecution or torture in the country of return. INA 235(b)(1)(A)(ii), 
(B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4), 
1235.3(b)(4)(i). If the asylum officer determines that the noncitizen 
does not have a credible fear of persecution or torture, the noncitizen 
may request that an IJ review that determination. See INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 
208.30(g), 1208.30(g).
    Under the regulatory framework prior to November 2018 and currently 
in effect,\31\ if the asylum officer determines that a noncitizen 
subject to expedited removal has a credible fear of persecution or 
torture, DHS refers the noncitizen to an immigration court for 
adjudication of the noncitizen's claims by initiating section 240 
removal proceedings through service of an NTA on the noncitizen and 
with the court. See 8 CFR 208.30(f), 235.6(a)(1)(ii), 1235.6(a)(1)(ii) 
(2018). Similarly, if an IJ, upon review of the asylum officer's 
negative credible fear determination, finds that the noncitizen 
possesses a credible fear of persecution or torture, the IJ vacates the 
expedited removal order and DHS initiates section 240 removal 
proceedings. See id. 1208.30(g)(2)(iv)(B). If the noncitizen 
subsequently decides to file for asylum, the asylum application is 
filed with the court during the section 240 removal proceedings, is 
considered a ``defensively filed'' application, and is subject to the 
one-year filing deadline. See INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). 
There is no requirement that the noncitizen file an asylum application, 
however, once placed into section 240 removal proceedings.
---------------------------------------------------------------------------

    \31\ See supra note 24 (discussing the status of more recent 
regulatory changes).
---------------------------------------------------------------------------

III. Discussion of the Proposed Rule

    As noted in the summary above, this proposed rule would make 
several changes to the adjudication process of protection claims 
presented by noncitizens in expedited removal who both make fear claims 
and are determined to have a credible fear of persecution or torture. A 
more detailed explanation of the proposed changes, the reasons for 
these changes, and their alignment with the relevant statutes, as well 
as a brief outline of certain other changes proposed by this rule, 
follows.

A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)

    The expedited removal statute provides for detention throughout the 
expedited removal process, including during the credible fear screening 
process and during the process for further consideration of the 
protection claims on their merits. The statute does not, however, limit 
DHS's general parole authority under section 212(d)(5) of the INA, 8 
U.S.C. 1182(d)(5), and 8 CFR 212.5(b), and the Departments have not 
understood the language providing for detention in expedited removal to 
limit this parole authority. Instead, parole authority in the context 
of expedited removal has been specifically provided for in the relevant 
regulations covering expedited removal and the credible fear screening 
process since they were first implemented in 1997. See Inspection and 
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct 
of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10356 (Mar. 6, 
1997) (interim final rule). And the U.S. Supreme Court recently 
acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that 
DHS may exercise its authority to temporarily parole persons subject to 
expedited removal, while also acknowledging that the relevant statutory 
language in section 235(b)(1) and (b)(2) of the INA, 8 U.S.C. 
1225(b)(1), (b)(2), ``unequivocally mandate that aliens falling within 
their scope `shall' be detained,'' id. at 844.
    Since expedited removal's implementation regulations were first 
promulgated, parole consideration has been limited to a narrow category 
of circumstances for individuals awaiting a credible fear 
determination--when necessary ``to meet a medical emergency or . . . 
for a legitimate law enforcement objective.'' See 8 CFR 
235.3(b)(2)(iii), (b)(4)(ii) (current). This proposed rule change would 
add to those grounds, allowing parole when ``detention is unavailable 
or impracticable (including situations in which continued detention 
would unduly impact the health or safety of individuals with special 
vulnerabilities).'' 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (proposed). This 
change would allow DHS to prioritize use of its limited detention bed 
space to detain those noncitizens who pose the greatest threats to 
national security and public safety, while avoiding unnecessary 
operational limitations on DHS's authority to place noncitizens into 
expedited removal. Under the proposed rule, when detention space is 
unavailable or its use is otherwise impracticable, DHS would have the 
option of using parole rather than placing nearly all families arriving 
at the border directly into section 240 removal proceedings. The 
proposed rule also makes clear that a grant of parole only

[[Page 46914]]

authorizes release from custody and cannot serve as an independent 
basis for employment authorization under 8 CFR 274a.12(c)(11).\32\ See 
8 CFR 235.3(b)(4)(ii) (proposed). The Departments are seeking public 
comment on this change in the circumstances under which parole may be 
considered in the expedited removal context, as well as the use of 
(c)(11) employment authorization documents (``EADs'') for those in 
expedited removal who have been paroled from custody.
---------------------------------------------------------------------------

    \32\ As noted elsewhere in this preamble, this proposed rule is 
not intended to rescind previously enjoined or vacated rules. 
Accordingly, the Departments are proposing that those in the 
credible fear process who have been paroled from custody would be 
ineligible for a (c)(11) employment authorization document 
(``EAD''), similar to what was implemented with the final rule 
entitled Asylum Application, Interview, and Employment Authorization 
for Applicants, 85 FR 38532, 38582 (June 26, 2020). A Federal 
district court preliminarily enjoined certain provisions of the rule 
but only as applied to the plaintiffs in that case, and the EAD-
parole provision similar to the one proposed here was not challenged 
in that litigation. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 
3d 928, 935 (D. Md. 2020) (``preliminarily enjoin[ing] Defendants 
from enforcing a subset of the rule changes as applied to the 
individual members of Plaintiffs Casa de Maryland, Inc. (`CASA') and 
Asylum Seeker Advocacy Project (`ASAP')''). The Departments are 
seeking public comment on the use of (c)(11) EADs for those in 
expedited removal who have been paroled from custody.
---------------------------------------------------------------------------

B. Credible Fear Screening Process--Proposed 8 CFR 208.30

    As noted earlier, there were several rules published by the 
Departments from the end of 2018 through the end of 2020 that attempted 
to change the credible fear screening process that had been in place 
for approximately 20 years, but these rules are not in effect.\33\ The 
Global Asylum rule, which, as explained above, has been enjoined, 
attempted to change the pre-2018 practice of not applying the mandatory 
bars to asylum and statutory withholding in the credible fear screening 
process, instead requiring a final determination on the applicability 
of a significantly expanded list of mandatory bars during credible fear 
screenings and mandating a negative credible fear finding should any of 
the bars be determined to apply to the noncitizen at that initial 
stage. 85 FR at 80278. In addition, the Global Asylum rule attempted to 
alter the longstanding practice for screening claims for statutory 
withholding of removal and CAT protection. Prior to the rule, the 
statutory standard for screening asylum claims (i.e., a ``significant 
possibility'' of establishing eligibility for asylum) was also used to 
screen withholding of removal and CAT claims. The Global Asylum rule 
attempted to create a more complicated two-step, two-standard screening 
by requiring a higher screening standard for such claims (i.e., a 
``reasonable possibility'' of persecution or torture). Id. The Security 
Bars rule, issued less than 2 weeks after the Global Asylum rule, 
further expanded the list of mandatory bars to asylum that would apply 
in the credible fear screening process, 85 FR at 84160, but its 
implementation has been delayed until the end of 2021, 86 FR at 15069.
---------------------------------------------------------------------------

    \33\ See supra note 24.
---------------------------------------------------------------------------

    With this proposed rule, the Departments generally seek to return 
the credible fear screening process regulations to the simpler 
screening process that was in place for expedited removal's first two 
decades of implementation. Given the injunctions, delays, and vacaturs 
referenced above, this rule proposes to recodify in the Code of Federal 
Regulations the standard of ``significant possibility'' that has 
remained in effect since the rule changing that standard has been 
enjoined. Pangea Legal Servs. v. DHS, No. 20-cv-09253, 2021 WL 75756, 
at *7 (N.D. Cal. Jan. 8, 2021) (preliminarily enjoining the Global 
Asylum rule). The Departments believe that this change will make for a 
more efficient and effective credible fear screening process and is 
also necessary to make that screening process consistent with 
congressional intent.
    The 104th Congress chose a screening standard ``intended to be a 
low screening standard for admission into the usual full asylum 
process.'' \34\ Originally, the Senate bill had proposed a 
``determination of whether the asylum claim was `manifestly unfounded,' 
while the House bill applied a `significant possibility' standard 
coupled with an inquiry into whether there was a substantial likelihood 
that the alien's statements were true.'' \35\ In IIRIRA, Congress then 
``struck a compromise by rejecting the higher standard of credibility 
included in the House bill.'' \36\ This proposed regulation would now 
return the screening standard to the ``low screening standard'' 
intended by the compromise reflected in the text that Congress 
ultimately passed. Rather than creating a complicated screening process 
that requires full evidence gathering and determinations to be made on 
possible bars to eligibility, this proposed rule aims to return to 
allowing protection claims with a ``significant possibility'' of 
success to be fully heard and adjudicated, but in a process that more 
quickly reaches a final decision on the merits than the current 
process.
---------------------------------------------------------------------------

    \34\ 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement 
of Senate Judiciary Committee Chairman Orrin Hatch).
    \35\ Id. The chairman of the conference committee assigned to 
reconcile the two bills, Rep. Henry Hyde, stated that ``[t]he 
credible fear standard is redrafted in the conference document to 
address fully concerns that the `more probable than not' language in 
the original House version was too restrictive.'' 142 Cong. Rec. 
H11081 (daily ed. Sept. 25, 1996) (statement of House Judiciary 
Committee Chairman Henry Hyde). The exact language in section 302 of 
the House bill, H.R. 2202, 104th Cong. (1995), was as follows: ``the 
term `credible fear of persecution' means (I) that it is more 
probable than not that the statements made by the alien in support 
of the alien's claim are true, and (II) that there is a significant 
possibility, in light of such statements and of such other facts as 
are known to the officer, that the alien could establish eligibility 
for asylum under section 208.'' The conference committee compromise 
stuck subsection (I) from the definition of credible fear.
    \36\ 142 Cong. Rec. S11491 (statement of Sen. Hatch).
---------------------------------------------------------------------------

    To accomplish this, the proposed rule would replace all the 
references throughout 8 CFR 208.30 to a ``credible fear of persecution, 
reasonable possibility of persecution, or a reasonable possibility of 
torture'' with ``credible fear,'' acknowledging that the statutory 
``significant possibility'' standard, INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), would be applied in considering all three types of 
protection claims--asylum, statutory withholding, and protection under 
the CAT.\37\ Consistent with that change, the proposed rule would 
revise 8 CFR 208.30 to return the definition of the ``credible fear'' 
standard to the ``significant possibility'' definition provided in the 
statute (paragraph (e)(2)), replace the ``reasonable possibility'' 
standard with the same ``significant possibility'' screening standard 
for statutory withholding of removal and CAT withholding or deferral of 
removal (paragraphs (e)(2) and (3)), return the language in the 
regulation to reflect the existing and two-decade long practice of not 
applying the mandatory bars to the credible fear screening 
determination (paragraph (e)(5)),\38\ maintain the

[[Page 46915]]

threshold screening under the safe third country agreement with Canada 
(paragraph (e)(6)), and continue to require supervisory review of all 
credible fear determinations before they can become final (paragraph 
(e)(8)). The Departments seek comment on these changes and also request 
comment on whether any additional changes to the provisions of the 
Global Asylum and Security Bar rules are necessary or appropriate to 
accomplish the objectives outlined in this section.
---------------------------------------------------------------------------

    \37\ These proposed changes would not alter reasonable fear of 
persecution or torture determinations involving noncitizens ordered 
removed under section 238(b) of the INA, 8 U.S.C. 1228(b), and 
noncitizens whose removal is reinstated under section 241(a)(5) of 
the INA, 8 U.S.C. 1251(a)(5), pursuant to 8 CFR 208.31.
    \38\ This proposed rule does not, and is not intended to, 
rescind prior rulemakings, including Implementing Bilateral and 
Multilateral Asylum Cooperative Agreements Under the Immigration and 
Nationality Act, 84 FR 63994 (Nov. 19, 2019); Aliens Subject to a 
Bar on Entry Under Certain Presidential Proclamations; Procedures 
for Protection Claims, 83 FR 55934 (Nov. 9, 2018); and Asylum 
Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 
2020). To that end, the Departments have proposed to change 8 CFR 
208.30 only to the extent necessary to implement the changes 
proposed in this rule and left the remaining provisions of the 
aforementioned rules to be modified or rescinded by the Departments 
at a later date. See, e.g., OMB, Agenda Rule List--Spring 2021: 
Department of Homeland Security, https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600. The Departments, 
however, do seek comment on whether the changes proposed in this 
rule would require any other rescissions or modifications of the 
provisions adopted in recent prior rulemakings.
---------------------------------------------------------------------------

    As part of the proposed restructuring of the credible fear 
determination framework, the proposed rule would also remove the 
current language at 8 CFR 208.30(g)(2)(i) providing that DHS may 
reconsider a negative credible fear finding that has been reviewed and 
upheld by an IJ.\39\ Section 208.30(g)(1)(i) would be revised to 
provide that once the asylum officer has made a negative credible fear 
determination, the individual either requests IJ review or declines to 
request review and that declination is treated as a request for review 
and the individual is served with a Form I-863. At that point, under 
the proposed rule, the IJ has sole jurisdiction to review whether the 
individual has established a credible fear of persecution or torture, 
and an asylum officer may not reconsider or reopen the determination.
---------------------------------------------------------------------------

    \39\ The proposed versions of the Global Asylum rule and the 
Security Bars rule both dropped the regulatory provision previously 
in 8 CFR 1208.30(g)(2) that acknowledged USCIS's ability to 
reconsider a negative credible fear finding that had already 
received IJ concurrence, but the Departments responded to comments 
received about this change by reinserting the provision into 8 CFR 
208.30(g) in the final rules, stating that the provision had been 
omitted from the proposed rule inadvertently. 85 FR at 80275, 84181. 
This proposed rule again proposes this change but does so for the 
reasons provided herein.
---------------------------------------------------------------------------

    These proposed changes reflect an intention to return to the 
statutory scheme of INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), under 
which it is the IJ review of the credible fear determination that 
serves as the check to ensure that individuals who have a credible fear 
are not returned based on an erroneous screening determination by 
USCIS. Section 208.30(g)(1)(i) is amended to provide that, when DHS 
inquires whether an individual wishes to have an IJ review a negative 
credible fear determination, DHS will inform the individual that the IJ 
review will include an opportunity for the individual to be heard and 
questioned by the IJ. See 8 CFR 208.30(g)(1) (proposed). This 
opportunity will allow such individuals to present any additional 
evidence or arguments they may wish to make to the IJ, who will 
consider them in making a de novo determination about whether the 
individual has a credible fear of persecution or torture.
    The clarification that the IJ has sole jurisdiction to review the 
individual's negative credible fear determination and that asylum 
officers may not reconsider or reopen a determination that already has 
passed to the jurisdiction of the IJ is necessary to ensure that 
requests for reconsideration to USCIS do not obstruct the streamlined 
process that Congress intended in creating expedited removal. Further, 
this clarification ensures that the necessary efficiencies implemented 
in this proposed rule are not undermined.
    The expedited removal statute and its implementing regulations 
generally prohibit any further administrative review or appeal of an 
IJ's decision made after review of a negative credible fear 
determination. See INA 235(b)(1)(B)(iii)(III), (C), 8 U.S.C. 
1225(b)(1)(B)(iii)(III), (C); 8 CFR 1003.42(f)(2), 
1208.30(g)(2)(iv)(A). Congress similarly has made clear its intent that 
expedited removal should remain a streamlined, efficient process by 
limiting judicial review of many determinations in expedited removal. 
See INA 242(a)(2)(A), (e), 8 U.S.C. 1252(a)(2)(A), (e). These 
provisions limiting administrative and judicial review and directing 
expeditious determinations reflect clear congressional intent that 
expedited removal be a truly expedited process. Removal of the current 
language at 8 CFR 208.30(g)(2)(i) allowing DHS to reconsider negative 
credible fear determinations after the IJ concurs is consistent with 
that congressional intent and with the purpose of the current 
regulation.
    In recent years, USCIS has received growing numbers of meritless 
reconsideration requests, which have strained agency resources and 
resulted in significant delays to the expedited removal process. The 
total time to review a reconsideration request varies widely, but if an 
office recommends a follow-up interview, then the complete review 
process could take more than 5 hours per request. The Departments 
believe that these resources could be far better spent, including in 
training and supervisory efforts, to ensure the high quality of USCIS 
initial screening determinations. In many cases, reconsideration 
requests that previously were considered are resubmitted numerous times 
without additional information, resulting in additional delays in 
removal processes that Congress explicitly intended to be conducted 
through streamlined, efficient procedures.
    These developments have highlighted the need to ensure that the IJ 
review process, rather than reconsideration by USCIS, serves as the 
safeguard against erroneous negative screening determinations by an 
asylum officer. These changes will ensure that DOJ and DHS 
implementation of the expedited removal provisions is consistent with 
statutory intent. The Departments believe these changes will help 
accomplish the purpose of the present rule to make the framework of the 
screening process, including the process following USCIS's fear 
determination, more efficient and streamlined, while ensuring due 
process is accorded to all individuals in expedited removal. The 
Departments seek comments on these proposed changes, including on other 
options short of eliminating reconsideration entirely--such as imposing 
restrictions on, or modifications to, reconsideration requests made to 
USCIS--to address the problems outlined above, while also ensuring 
efficiency and the opportunity to have one's protection claim properly 
screened.

C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)

    The expedited removal statute specifically provides for an 
exception to the mandate that a noncitizen be ``removed from the United 
States without further hearing or review'' when the noncitizen 
expresses an intention to apply for asylum, a fear of persecution or 
torture, or a fear of return to the country of removal. Such a person 
instead is referred to USCIS for a credible fear screening. INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If the noncitizen is 
found to have a credible fear of removal, the noncitizen's claim is 
referred for ``further consideration of the application for asylum.'' 
INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This statutory 
language, however, does not specify the nature of such ``further 
consideration.''
    Under current regulations, an individual who establishes a credible 
fear is placed into removal proceedings under section 240 of the INA, 8 
U.S.C. 1229a. Under this process, the individual is not required to 
officially request asylum or file the Form I-589,

[[Page 46916]]

Application for Asylum and for Withholding of Removal (``Form I-589''), 
until after being placed into removal proceedings. In many cases, the 
application may be filed many months after removal proceedings are 
initiated, thus potentially delaying adjudication. In many other cases, 
an application is never filed. EOIR has reported that, for individuals 
who were referred to USCIS for the credible fear screening process and 
then placed into proceedings before EOIR between FY 2008 and the third 
quarter of FY 2020, only 62 percent have filed an asylum application 
with EOIR as of July 2020.\40\
---------------------------------------------------------------------------

    \40\ EOIR, Executive Office for Immigration Review Adjudication 
Statistics: Rates of Asylum Filings in Cases Originating with a 
Credible Fear Claim (July 2020), https://www.justice.gov/eoir/page/file/1062971/download.
---------------------------------------------------------------------------

    Under this proposed rule, an individual who passes the initial 
credible fear screening would have his claim reviewed by an asylum 
officer in USCIS in the first instance, rather than by an IJ in a 
removal hearing under section 240 of the INA. As part of this new 
procedure for ``further consideration,'' and to eliminate delays 
between a positive credible fear determination and the filing of an 
application for asylum, the Departments propose that the written record 
of the credible fear determination created by USCIS during the credible 
fear process, and subsequently served on the individual together with 
the service of the credible fear decision itself, would be treated as 
an ``application for asylum,'' with the date of service on the 
individual considered the date of filing. 8 CFR 208.3(a)(2) (proposed). 
Every individual who receives a positive credible fear determination 
would be considered to have filed an application for asylum at the time 
the determination is served on him or her. The application would be 
considered filed or received as of the service date for purposes of the 
1-year filing deadline for asylum, see INA 208(a)(2)(B), 8 U.S.C. 
1158(a)(2)(B), and for starting the clock for eligibility to file for 
work authorization on the basis of a pending asylum application, 8 CFR 
208.3(c)(3) (current). The Departments propose that this application 
for asylum would not be subject to the completeness requirement of 8 
CFR 208.3(c) and 208.9(a) in order to qualify for hearing and 
adjudication, but it would be subject to the other conditions and 
consequences provided for in 8 CFR 208.3(c) once the noncitizen signs 
the documentation under penalty of perjury and with notice of the 
consequences of the filing of a frivolous asylum application at the 
time of the asylum officer hearing.\41\
---------------------------------------------------------------------------

    \41\ In addition, the Departments are proposing to amend 8 CFR 
1208.3 and 1208.4 to account for changes made by this proposed rule, 
including the proposed provisions that would treat the credible fear 
interviews as an application for asylum in the circumstances 
addressed by the proposed rule. The amendment at 8 CFR 1208.3(c)(3) 
affects language that was enacted by DOJ in 2020. See Procedures for 
Asylum and Withholding of Removal, 85 FR 81698 (Dec. 16, 2020). The 
December 16, 2020 rulemaking made various changes to DOJ 
regulations, including 8 CFR 1208.3(c)(3). Id. Those changes remain 
enjoined. See National Immigrant Justice Center, et. al., v. Exec. 
Office for Immigration Review, et. al., No. 21-CV-00056 (D.D.C.). As 
noted above, the proposed rule would make changes to the regulations 
only as necessary to effectuate its goals. The Departments 
anticipate that additional changes to the relevant regulations, 
including rescission of or revision to the language added by the 
enjoined regulation, will be made through later rulemakings.
---------------------------------------------------------------------------

    The Departments plan to implement these changes to the credible 
fear process by having the trained USCIS asylum officer conducting the 
credible fear interview advise the noncitizen of the consequences of 
filing a frivolous asylum application and capture the noncitizen's 
relevant information through testimony provided under oath. During this 
process, the asylum officer would ``elicit all relevant and useful 
information'' for the credible fear determination, id. Sec.  208.30(d), 
create a summary of the material facts presented by the noncitizen 
during the interview, read the summary back to the noncitizen, and 
allow the noncitizen to correct any errors, id. Sec.  208.30(d)(6). The 
record created would contain the necessary biographical information and 
sufficient information related to the noncitizen's fear claim to be 
considered an application. The information captured by the asylum 
officer during the credible fear interview will contain information 
about the noncitizen's spouse and children, including those who were 
not part of the credible fear determination--but under this proposed 
rule only a spouse or children who were included in the credible fear 
determination issued pursuant to proposed 8 CFR 208.30(c) or have a 
pending asylum application with USCIS pursuant to Sec.  208.2(a)(1)(ii) 
can be included on the request for asylum.\42\ See id. Sec.  
208.3(a)(2). A copy of this application for asylum, including the 
officer's notes from the interview and basis for the determination, 
would be provided to the noncitizen at the time that the credible fear 
determination is served. See id. Sec.  208.30(f), (g)(1). As proposed 
in this rule, the noncitizen would be allowed to supplement or request 
modifications or corrections to this application up until 7 days prior 
to the scheduled asylum hearing before a USCIS asylum officer, or for 
documents submitted by mail, postmarked no later than 10 days before 
the scheduled asylum hearing. Id. Sec.  208.3(a)(2).
---------------------------------------------------------------------------

    \42\ While only a spouse or dependent included on the credible 
fear determination or who presently has an asylum application 
pending with USCIS after a positive credible fear determination can 
be included on the subsequent asylum application under this proposed 
process, the noncitizen granted asylum remains eligible to apply for 
accompanying or follow-to-join benefits for any qualified spouse or 
child not included on the asylum application, as provided for in 8 
CFR 208.21. The Departments believe that it is procedurally 
impractical to attempt to include a spouse or child on the 
application when the spouse or child has not previously been placed 
into expedited removal and subsequently referred to USCIS after a 
positive credible fear determination. This is similar to the 
inability to include a spouse or child not in removal proceedings 
under section 240 of the INA on the asylum application of a 
principal asylum application who is in such removal proceedings. 
Under such circumstances, there is no clear basis for issuing a 
final order of removal against such an individual spouse or child 
should the asylum application be denied. The Departments seek 
comments on this proposed approach.
---------------------------------------------------------------------------

    The information required to be gathered during the credible fear 
screening process is based on the noncitizen's own testimony under oath 
in response to questions from a trained USCIS asylum officer. Thus, the 
Departments believe that the screening would provide sufficient 
information upon which to conduct a full asylum interview. Under this 
proposed rule, all noncitizens who receive a positive credible fear 
determination would have an asylum application on file with the 
Government within days of their credible fear screenings, thereby 
meeting the one-year asylum filing deadline, avoiding the risk of 
filing delays, and immediately beginning the waiting period for work 
authorization eligibility. Understanding that noncitizens may want to 
modify, correct, or supplement the initial presentation of their 
protection claims, this proposed rule would allow the noncitizen to do 
so in advance of the hearing before the asylum officer. The Departments 
seek comments on all aspects of this proposed change.

D. Proceedings for Further Consideration of the Application for Asylum 
by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for 
Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a) and (c); 
208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 235.6(a)(1); 
1003.42; and 1208.30(g)

    As noted earlier in the preamble, under the current regulatory 
framework, if an asylum officer determines that a noncitizen subject to 
expedited removal has a credible fear of persecution or

[[Page 46917]]

torture, DHS places the noncitizen before an immigration court for 
adjudication of the noncitizen's claims by initiating section 240 
removal proceedings.\43\ Similarly, if an IJ, upon review of the asylum 
officer's negative credible fear determination, finds that the 
noncitizen possesses a credible fear of persecution or torture, the IJ 
vacates the expedited removal order, and DHS initiates section 240 
removal proceedings. 8 CFR 1208.30(g)(2)(iv)(B). Section 240 removal 
proceedings, which are used to determine removability as well as 
eligibility for any relief or protection from removal, currently 
provide additional procedural protections, including greater 
administrative and judicial review, than expedited removal proceedings 
under section 235 of the Act. Compare INA 235(b)(1), 8 U.S.C. 
1225(b)(1), with INA 240, 8 U.S.C. 1229a.
---------------------------------------------------------------------------

    \43\ See 8 CFR 208.30(f) (2018); supra note 24 (explaining that 
various changes to these procedures have been enjoined).
---------------------------------------------------------------------------

    As noted previously, however, the expedited removal statute 
provides only that a noncitizen who is found to have a credible fear 
``shall be detained for further consideration of the application for 
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The statute 
mandates neither that the noncitizen be placed in removal proceedings 
generally nor placed in section 240 removal proceedings specifically. 
Id.
    The regulations regarding the credible fear process, and the 
interplay between expedited removal and section 240 removal 
proceedings, were first adopted in 1997.\44\ At the time, the former 
INS explicitly recognized that ``the statute is silent as to the 
procedures for those who do demonstrate a credible fear of 
persecution.'' \45\ Faced with this ambiguity, the INS opted at the 
time to have the further consideration take place in pre-existing 
section 240 removal proceedings rather than create new proceedings for 
this purpose.\46\ But the INS's contemporaneous analysis was very 
limited.
---------------------------------------------------------------------------

    \44\ Inspection and Expedited Removal of Aliens; Detention and 
Removal of Aliens; Conduct of Removal Proceedings; Asylum 
Procedures, 62 FR 10312 (Mar. 6, 1997) (interim final rule).
    \45\ Id. at 10320; see Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997) 
(proposed rule) (noting that although the statute calls for further 
consideration of the noncitizen's asylum application, it ``does not 
specify how or by whom this further consideration should be 
conducted'').
    \46\ 62 FR at 10320.
---------------------------------------------------------------------------

    The Departments believe that section 235(b)(1) of the INA, 8 U.S.C. 
1225(b)(1), authorizes a procedure for ``further consideration of [an] 
application for asylum'' that is separate from section 240 removal 
proceedings. By its terms, the phrase ``further consideration'' is 
open-ended and does not mandate any particular procedure. It is thus 
naturally read as giving DHS flexibility to determine the appropriate 
procedure for consideration of noncitizens' asylum claims after 
establishing a credible fear in the expedited removal process. 
Moreover, while section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), 
mandates that a noncitizen with a positive credible fear determination 
receive ``further consideration of [the noncitizen's] application for 
asylum,'' section 235(b)(2) of the INA, 8 U.S.C. 1225(b)(2), mandates 
that other classes of noncitizens receive ``a proceeding under section 
1229a of this title,'' i.e., section 240 of the INA. Compare INA 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 8 
U.S.C. 1225(b)(2)(A). The difference in language suggests that section 
235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), does not require use of 
section 240 removal proceedings, in contrast to section 235(b)(2), 8 
U.S.C. 1225(b)(2), which does. The Supreme Court has observed that 
``[w]here Congress includes particular language in one section of a 
statute but omits it in another section of the same act, it is 
generally presumed that Congress acts intentionally and purposely in 
the disparate inclusion or exclusion.'' Russello v. United States, 464 
U.S. 16, 23 (1983) (internal quotation marks and citation omitted). 
More recently, the D.C. Circuit stated that it has ``consistently 
recognized that a congressional mandate in one section and silence in 
another often suggests not a prohibition but simply a decision not to 
mandate any solution in the second context, i.e., to leave the question 
to agency discretion.'' Catawba Cty., N.C. v. EPA, 571 F.3d 20, 36 
(D.C. Cir. 2009) (emphasis in original) (internal quotation marks and 
citation omitted).\47\ The inference that Congress's silence 
intentionally permits agency discretion is reinforced by the fact that 
the noncitizens whom DHS has elected to process into the United States 
using the expedited removal procedure are expressly excluded from the 
class of noncitizens who are statutorily guaranteed section 240 removal 
proceedings under section 235(b)(2)(A) of the INA, 8 U.S.C. 
1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
---------------------------------------------------------------------------

    \47\ See also Henson v. Santander Consumer USA, Inc., 137 S. Ct. 
1718, 1723 (2017) (``[U]sually at least, . . . we presume 
differences in language . . . convey differences in meaning.'').
---------------------------------------------------------------------------

    Second, a noncitizen with a positive credible fear determination is 
entitled only to a further proceeding related to their ``application 
for asylum,'' or for withholding of removal under section 241(b)(3) of 
the INA, 8 U.S.C. 1251(b)(3), or withholding or deferral of removal 
under the regulations implementing U.S. obligations under Article 3 of 
the CAT. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii); 8 CFR 
208.30(e). An asylum application's purpose is to determine whether the 
noncitizen is entitled to relief or protection from removal, not 
whether the noncitizen should be admitted or granted other immigration 
benefits. See Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021) (``[A] 
foreign national can be in lawful status but not admitted--think of 
someone who entered the country unlawfully, but then received 
asylum.''); Matter of V-X-, 26 I&N Dec. 147, 150 (BIA 2013) (holding 
that, ``although [a noncitizen's] grant of asylum confer[s] a lawful 
status upon him, it [does] not entail an `admission' ''). By contrast, 
the purpose of a section 240 removal proceeding is to ``determin[e] 
whether [a noncitizen] may be admitted to the United States.'' INA 
240(a)(3), 8 U.S.C. 1229a(a)(3). In section 240 removal proceedings, 
both removability and entitlement to various forms of relief or 
protection are determined. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 
1225(b)(1)(B)(ii), with INA 240(c)(2)-(4), 8 U.S.C. 1229a(c)(2)-
(4).\48\ Moreover, the Departments believe that it is better policy to 
place noncitizens with a positive credible fear determination initially 
in nonadversarial proceedings in which their asylum claims can be 
adjudicated by asylum officers.
---------------------------------------------------------------------------

    \48\ The Departments acknowledge that there is some legislative 
history suggesting that some Members of Congress believed that 
individuals found to have a credible fear would be referred to 
section 240 removal proceedings. See, e.g., H.R. Rep. No. 104-828, 
at 209 (1996) (suggesting that noncitizens who received positive 
credible fear determinations would be placed in ``normal non-
expedited removal proceedings''). But the Departments are not 
convinced that the legislative history is sufficiently clear to 
foreclose an option the text itself does not ``unambiguously 
forbid.'' Barnhart v. Walton, 535 U.S. 212, 218 (2002). Indeed, 
other Members of Congress took a different view. See Letter for 
Richard A. Sloan, Director, Policy Directives and Instructions 
Branch, Immigration and Naturalization Service, from Lamar Smith, 
Chairman, Subcommittee on Immigration and Claims, Re: INS 1788-96, 
RIN 1115-AE47 (Feb. 3, 1997), in Implementation to Title III of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996: 
Hearing Before the Subcomm. on Immigration and Claims of the H. 
Comm. on the Judiciary, 105th Cong. 21-22 (1997) (``Section 
235(b)(1)(B)(ii) [was] drafted deliberately to leave flexibility 
regarding how the asylum adjudication would take place.'').
---------------------------------------------------------------------------

    The idea of allowing USCIS asylum officers to fully adjudicate the

[[Page 46918]]

protection claims made by noncitizens who receive a positive credible 
fear determination is not new. In its congressionally mandated 2005 
report on the expedited removal process, the U.S. Commission on 
International Religious Freedom (``USCIRF'') recommended that asylum 
officers be allowed to grant asylum to ease ``the burden on the 
detention system, the immigration courts, and bona fide asylum seekers 
in Expedited Removal.'' \49\ The USCIRF repeated this recommendation 
when it conducted a follow-up study and issued an updated report in 
2016, stating as follows:
---------------------------------------------------------------------------

    \49\ USCIRF, Report on Asylum Seekers in Expedited Removal, 
Volume I: Findings & Recommendations 66 (Feb. 2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/Volume_I.pdf.

    One solution to reduce the immigration courts' caseload and 
backlog is to allow asylum officers to adjudicate defensive asylum 
claims, as USCIRF recommended in the 2005 Study. Asylum officers 
have the legal background and training to adjudicate asylum claims, 
and do so for affirmative asylum cases. Further, having an asylum 
officer review a credible fear claim and then having an immigration 
judge review an asylum claim creates significant redundancy without 
necessarily adding value.\50\
---------------------------------------------------------------------------

    \50\ USCIRF, Barriers to Protection: The Treatment of Asylum 
Seekers in Expedited Removal 54 (Aug. 2016), https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf.

    In 2012, the Administrative Conference of the United States studied 
the removal process and also issued recommendations that regulations be 
changed to allow for asylum officers to adjudicate protection claims 
for noncitizens determined to have a credible fear as part of a package 
of proposals to improve the operations of the immigration courts.\51\ 
More recently, experts from the Migration Policy Institute (``MPI'') 
reached a similar conclusion in a 2018 report on the state of the U.S. 
asylum system. MPI concluded as follows:
---------------------------------------------------------------------------

    \51\ Administrative Conference of the United States, 
Administrative Conference Recommendation 2012-3: Immigration Removal 
Adjudication 15 (June 15, 2012), https://www.acus.gov/sites/default/files/documents/2012-3.pdf.

    Allowing cases with positive credible-fear findings to instead 
remain with the Asylum Division for the full asylum merits 
adjudication would capitalize on the investment of time and 
expertise the division has already made. It would also enable 
meritorious cases to be resolved more quickly, reducing the overall 
asylum system backlogs and using limited asylum officer and IJ 
resources more efficiently.\52\
---------------------------------------------------------------------------

    \52\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff, 
The U.S. Asylum System in Crisis: Charting a Way Forward 3, 
Migration Policy Institute (Sept. 2018), https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf.

In reaching this conclusion, these experts noted that moving the cases 
to the USCIS Asylum Division for adjudication plays to its strengths, 
including its experience in handling asylum and asylum-related 
adjudications; its regular trainings on asylum-related country 
conditions and legal issues, as well as nonadversarial interviewing 
techniques; and its ready access to country conditions experts. 
Additionally, the MPI experts concluded that nonadversarial proceedings 
are well suited for this process because they are ``considerably less 
resource-intensive than immigration court proceedings'' and ``lend 
themselves to a fuller understanding of the strengths and weaknesses of 
an applicant's case.'' \53\ The DHS Homeland Security Advisory 
Council's (``HSAC'') bipartisan CBP Families and Children Care Panel 
also included this recommendation in its final report to the 
Secretary.\54\ This panel of the HSAC was created at the request of the 
Secretary in October 2018 to study ``the burgeoning humanitarian crisis 
resulting from a surge in migration of families, primarily from 
Guatemala and Honduras, overwhelming the DHS resources at the border to 
address the crisis.'' \55\
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    \53\ Id. at 26.
    \54\ HSAC, CBP Families and Children Care Panel Final Report 24 
(Nov. 14, 2019), https://www.dhs.gov/sites/default/files/publications/fccp_final_report_1.pdf.
    \55\ Id. at 4.
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    The Departments acknowledge that the above recommendations assumed 
that individuals denied asylum by a USCIS asylum officer would be 
issued an NTA and placed into section 240 removal proceedings before an 
IJ, where the noncitizen would have a second, full evidentiary hearing 
on the asylum application with a different decision-maker. This 
proposed rule would not adopt that approach, as the Departments 
determined it was unnecessary, duplicative, and inefficient. Instead, 
as noted in the previous section, this proposed rule would establish a 
new process that would require the IJ to conduct a de novo review of a 
denied application for protection when such review is requested, but it 
would not provide the noncitizen with a second full evidentiary hearing 
to present the claim. The Departments believe that an approach 
requiring a full evidentiary hearing before an IJ after an asylum 
officer's denial would lead to inefficiencies without adding additional 
value or procedural protections. Under this proposal, the asylum 
officer will have developed and considered the noncitizen's claim 
fully, including by taking testimony and accepting evidence, during the 
nonadversarial proceeding. If a noncitizen seeks review of an asylum 
officer's denial, the IJ would have a complete record for review 
developed by the asylum officer (including a transcript of the hearing 
and any evidence offered by the applicant or otherwise considered by 
the officer) and the written decision of the asylum officer. The 
noncitizen would have a full opportunity to challenge the asylum 
officer's denial during this review process and would not need to 
present their claim at a second full hearing. Instead, to the extent 
that a noncitizen seeks to introduce additional non-duplicative 
testimony or evidence, a provision of the proposed rule would allow 
them to do so if certain requirements are met. See 8 CFR 1003.48(e) 
(proposed). Accordingly, the Departments believe that a second full 
evidentiary hearing before an IJ is unnecessary and inefficient. A 
further description of the proposed review process follows in the next 
section.
    This proposed rule would change current procedures to allow a 
noncitizen who is found to have a credible fear to have a full 
adjudication of the noncitizen's protection claims by an asylum 
officer. 8 CFR 208.2(a) (proposed) (revising jurisdiction over asylum 
applications in order to provide USCIS jurisdiction to hear asylum 
claims after a positive credible fear determination), id. Sec.  
208.30(f) (retention of a positive credible fear determination with 
USCIS for an asylum hearing); id. Sec. Sec.  1003.42, 1208.30(g) 
(referral of negative credible fear determinations vacated by an IJ to 
USCIS for an asylum hearing). This would supplant the process in place 
prior to this proposed rule whereby DHS referred such an individual 
directly to an IJ for an adversarial hearing in a section 240 removal 
proceeding. Proposed 8 CFR 1003.42 and 1208.30(g) of the EOIR 
regulations reflect similar changes, enabling an IJ who vacates an 
asylum officer's negative credible fear determination to refer the case 
back to USCIS for an asylum hearing.
    The Departments propose to make corresponding amendments to 8 CFR 
208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR 235.6(a)(1) to provide 
that the cases of individuals who receive a positive credible fear 
determination may be retained by USCIS for a nonadversarial hearing 
before a USCIS asylum officer under the jurisdiction of 8 CFR 
208.2(a)(1)(ii) to determine eligibility for asylum, statutory 
withholding of removal, and

[[Page 46919]]

withholding of deferral or removal under CAT. The Departments also 
propose to amend 8 CFR 1003.1, 8 CFR 1003.12, 8 CFR 1208.2, and 8 CFR 
1208.30 of the EOIR regulations, and to add a new section 8 CFR 
1003.48, to make corresponding changes regarding how and when cases 
involving individuals found to have a credible fear would be referred 
by DHS to EOIR.
    The proposed nonadversarial proceedings for further consideration 
of asylum applications by asylum officers would provide protections 
similar to those provided in section 240 removal proceedings. The 
asylum officer's consideration under this proposal, however, would be 
limited solely to claims for asylum, statutory withholding of removal, 
and withholding or deferral of removal under the CAT regulations. 8 CFR 
208.2(a)(2) (proposed). Under this proposed rule, if the asylum officer 
denies the noncitizen asylum, statutory withholding of removal, and 
protection under the CAT regulations, the noncitizen would be ordered 
removed based upon the immigration officer's earlier inadmissibility 
determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 
1225(b)(1)(A)(i). The noncitizen, may, however appeal an adverse 
decision to an IJ, and if necessary, to the BIA. 8 CFR 208.14(c)(5), 
1003.1(b)(15), 1208.2(b).
    To allow asylum officers to carry out this new responsibility 
fully, additional changes to the regulations have been proposed. First, 
the Departments propose that under 8 CFR 208.9(f), asylum officers 
would be required to record the asylum hearing and that a transcript of 
that recording would be made part of the record whenever a noncitizen 
denied protection seeks review of a denial. USCIS would transcribe the 
asylum hearing recording and a copy of the transcript and the record 
developed at the hearing would be served on the applicant and filed 
with the immigration court. The hearing would be transcribed prior to 
the record being referred for review. Second, the Departments propose 
that USCIS be required to provide an interpreter for any hearing, just 
as EOIR is required to do for a removal hearing. 8 CFR 208.9(g) 
(proposed). Third, as in section 240 removal proceedings, the 
Departments propose that the noncitizen would be entitled to be 
represented, at no expense to the Government, by counsel of the 
noncitizen's choosing who is authorized to practice in such 
proceedings. See id. Sec.  1003.12 (proposed), 1003.16 (current); cf. 8 
U.S.C. 1229a(b)(4).
    The Departments propose that the ``failure to appear'' rule at 8 
CFR 208.10 be revised to allow for an order of removal to be issued 
when the noncitizen fails to appear for the scheduled hearing with the 
asylum officer. Changes to 8 CFR 208.16 through 208.19 also are 
proposed in order to provide asylum officers authority to adjudicate 
claims for withholding of removal under section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3), and withholding and deferral of removal under the 
regulations implementing the CAT. Existing 8 CFR 208.14(b) already 
provides USCIS the authority to grant an asylum application properly 
within USCIS's jurisdiction, including the jurisdiction given USCIS by 
this proposed rule over asylum applications from noncitizens determined 
to have a credible fear. Similar authority is provided for immigration 
judges in existing 8 CFR 1208.14. Finally, the Departments propose that 
8 CFR 208.14(c)(5) be added to provide the process for USCIS to deny an 
application for asylum, including the issuance of a decision on 
withholding and deferral of removal if asylum is denied; the issuance 
of an order of removal by the asylum officer after the merits hearing; 
and the process for the applicant to seek review of an asylum denial 
before an IJ. Review of these decisions would be governed by proposed 8 
CFR 1003.48. The Departments also propose technical edits to 8 CFR 
208.22 to include references to corresponding sections of both 8 CFR 
part 208 and 8 CFR part 1208. The Departments seek comments on all 
aspects of these proposed changes, including whether different or 
additional decision and review procedures should apply to applications 
considered under this proposed process.
    The authority of asylum officers to enter an order of removal after 
denying a noncitizen's asylum claim follows from the relevant 
provisions of the INA. By definition, noncitizens who are placed into 
expedited removal already have been determined to be inadmissible and 
are protected from immediate removal only because their credible fear 
of persecution entitled them to further consideration of their asylum 
claim. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). If, after that further 
consideration, an asylum officer concludes that a noncitizen is not 
entitled to asylum, that determination removes the only remaining legal 
barrier to removal. That determination qualifies as an order of removal 
under the relevant statutory definition, which provides that an ``order 
of deportation'' includes not only an order ``ordering deportation,'' 
but also an order ``concluding that [a noncitizen] is deportable.'' INA 
101(a)(47)(A), 8 U.S.C. 1101(47)(A). The Seventh Circuit reached the 
same conclusion in addressing another class of noncitizens whose only 
defense to removal is a potential asylum claim: Those who entered under 
the visa-waiver program, INA 217(b)(2), 8 U.S.C. 1187(b)(2). The court 
explained that an order denying such a noncitizen's asylum claim is an 
order of removal because ``an order that is proper only if the 
[noncitizen] is removable implies an order of removal.'' Mitondo v. 
Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). This proposed rule 
therefore would provide that if the noncitizen is not granted asylum at 
the conclusion of the asylum hearing, the asylum officer is authorized 
to issue an order of removal.

E. Application Review Proceedings Before the Immigration Judge--
Proposed 8 CFR 1208.2(c), 1003.48

    The Departments propose to amend 8 CFR 1208.2(c) and add 8 CFR 
1003.48 to establish new IJ review proceedings for those noncitizens 
who establish a credible fear of persecution or torture but (1) were 
found by USCIS not to merit asylum, statutory withholding of removal, 
or protection under the CAT and its implementing regulations; and (2) 
affirmatively request further review of their applications by an IJ. 
The Departments propose that upon a referral of the case from USCIS, 
the IJ would conduct a de novo review of USCIS's denial of the claims.
    Under these proposed limited review proceedings, unlike under 
section 240 of the INA, 8 U.S.C. 1229a, the IJ would not have authority 
to consider issues related to a noncitizen's removability or a 
noncitizen's eligibility for any other relief from removal. Moreover, 
an IJ ordinarily would not conduct an evidentiary hearing on the 
noncitizen's asylum application. Rather, the IJ would determine, after 
de novo review of the full record of proceedings created during asylum 
officer hearings and consideration of any additional testimony or 
evidence permitted under the proposed process described below, whether 
a noncitizen is eligible for asylum or withholding of removal under the 
Act or withholding or deferral of removal under the CAT. Although the 
Departments intend these proceedings to be more streamlined than 
section 240 removal proceedings, asylum officer and IJ review, 
together, would provide significant protections to ensure that these 
noncitizens continue to receive full and fair adjudication of their 
applications.

[[Page 46920]]

    For noncitizens who affirmatively request further review by an IJ, 
the Departments propose that DHS would initiate the review proceedings 
through the service of a Form I-863, Notice of Referral to Immigration 
Judge, on the noncitizen. As proposed in 8 CFR 1003.48(b), DHS would 
file the following items with the immigration court: (1) A copy of the 
Notice of Referral; (2) a copy of the record of proceedings before the 
asylum officer, as outlined in 8 CFR 208.9(f); (3) the asylum officer's 
written decision, including the removal order issued under 8 CFR 
208.14(c)(5) by the asylum officer; and (4) proof that DHS served the 
Notice of Referral, the record of proceedings, and the asylum officer's 
written decision, including the removal order, on the noncitizen. 
Unlike in credible fear determination reviews, where the IJ is provided 
only asylum officers' notes from the interview, the summary of the 
material facts, and other limited records, see, e.g., 8 CFR 
208.30(e)(4), the proposed requirements in 8 CFR 1003.48(b) would 
ensure that cases would only be referred to the immigration courts 
following asylum officers' full nonadversarial adjudication of the 
noncitizens' applications, and that IJs and noncitizens would have 
asylum officers' decisions and complete records of the hearings in 
advance of the IJ review. This would allow the noncitizen to have 
notice of the reasons for the asylum officer's denial in advance of the 
immigration court review process, and it would allow the IJ to conduct 
a thorough review of the asylum officer's decision based on the 
application and complete record developed before the asylum officer. 
Accordingly, because the IJ would be provided the complete record of 
proceedings from the asylum officer hearing, the Departments expect 
that the IJ generally would be able to complete the de novo review 
solely on the basis of the record before the asylum officer, taking 
into consideration any arguments raised by the noncitizen, or the 
noncitizen's counsel, and DHS.
    That said, the proposed rule recognizes that the factual record as 
elicited by the asylum officer sometimes will need to be further 
developed before the IJ. The rule proposes at 8 CFR 1003.48(e) that an 
IJ does not have the authority to remand a case to an asylum officer 
because the Departments believe that this would be unnecessary and 
inefficient. Instead, the rule proposes that a party may seek to 
introduce additional testimony or documentation so long as the party 
demonstrates to the IJ that the testimony or documentation is not 
duplicative of the testimony or documentation considered by the asylum 
officer and that it is necessary to develop the factual record to allow 
the IJ to issue a reasoned decision in the case. The Departments expect 
that an IJ may, in appropriate cases, require parties to submit 
prehearing statements or briefs concerning whether they will seek to 
introduce additional testimony or documentation and, if so, explaining 
why this testimony or documentation meets the standard at 8 CFR 
1003.48(e). The Departments further expect that, where necessary, for 
example in cases involving pro se applicants, IJs will, before 
proceeding with the case, explain in court the standards for submitting 
additional testimony and documentation. This proposed provision would 
ensure a full and fair evaluation of the applicant's application for 
asylum, withholding of removal under the Act, or withholding or 
deferral of removal under the CAT.
    The Departments believe that this proposed regulatory scheme--under 
which IJs typically would rely on the record created at the asylum 
officer hearing but could allow additional testimony and evidence if a 
party establishes that doing so is necessary--is the best way to 
balance efficiency and fairness considerations appropriately.\56\ The 
Departments believe that these proceedings, as proposed, will be more 
streamlined than removal proceedings but will still provide the parties 
with a fair opportunity to present their cases. Nevertheless, the 
Departments understand that there are alternative threshold standards 
for the introduction of evidence or the reopening of proceedings.\57\ 
Accordingly, the Departments request the public's comments on the 
proposed evidentiary threshold requirements, including any suggestions 
for alternatives that balance efficiency and fairness considerations, 
particularly taking into account challenges pro se applicants for 
asylum and related protection sometimes face in developing their 
claims.
---------------------------------------------------------------------------

    \56\ See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) (``There 
is a strong public interest in bringing litigation to a close as 
promptly as is consistent with the interest in giving the 
adversaries a fair opportunity to develop and present their 
respective cases.'').
    \57\ See, e.g., Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 
1992) (providing that the moving party generally must demonstrate 
that ``new evidence offered would likely change the result in the 
case'' in order for the BIA to consider granting a discretionary 
motion to remand).
---------------------------------------------------------------------------

    To ensure that noncitizens have a full and fair opportunity to 
prepare for and receive review of their claims, the Departments propose 
that many of the procedural safeguards that apply in section 240 
removal proceedings would apply to the IJ review proceedings as well. 
Unless specifically indicated in 8 CFR 1003.48 of the EOIR proposed 
rules, the general rules of procedure that apply in removal proceedings 
before the immigration courts also would apply to these proceedings. 
This would include a noncitizen's rights (1) to obtain representation 
by an attorney or other representative authorized to appear before the 
immigration court, at no cost to the Government, see 8 CFR 1003.16(b); 
(2) to seek a change of venue, see id. Sec.  1003.20(b); and (3) to 
seek a continuance for good cause shown, see id. Sec.  1003.29. 
Moreover, the provisions of 8 CFR 1003.2 and 1003.23 governing motions 
to reopen and reconsider generally would be applicable to decisions 
rendered by IJs or the BIA in these proceedings. The Departments also 
propose to add a cross-reference in 8 CFR 1003.12 to the new 
proceedings under 8 CFR 1003.48 to codify these procedural protections.
    The rule further proposes at 8 CFR 1003.48(d) that the IJ would 
have the discretion, pursuant to a motion filed by an applicant, to 
vacate the asylum officer's order of removal. For the motion to be 
granted, the applicant would have to show that he or she is prima facie 
eligible for a form of relief that cannot be granted in proceedings 
under 8 CFR 1003.48. With the motion granted, DHS would have the 
discretion to place the applicant in removal proceedings. An applicant 
would be permitted to file only one such motion, the motion would have 
to be filed before the IJ issues a decision on the applications for 
asylum and related protection, and motions to apply for voluntary 
departure would not be granted. The Departments believe these 
limitations are appropriate given the goal of meaningfully streamlining 
these proceedings as compared with removal proceedings. That said, the 
Departments seek the public's comments on whether the provisions 
relating to motions to vacate removal orders appropriately balance 
fairness and efficiency considerations.
    In these proposed proceedings, the IJ would have the authority to 
review all decisions issued by the asylum officer, upon request by the 
applicant. See 8 CFR 1003.48(a) (proposed). For example, if the asylum 
officer denies an applicant's application for asylum but grants the 
applicant's application for withholding of removal under the Act, and 
the applicant requests review by an IJ, the IJ would have the authority 
to review not only the denial of asylum but also the grant of 
withholding of removal as well. In these mixed cases, the

[[Page 46921]]

Departments believe it is appropriate, where the applicant has 
requested review of an asylum officer's decision, to permit IJs to 
review not only the denial but also the grant, because DHS could 
present documentation or testimony before the IJ that is admissible 
under 8 CFR 1003.48(e) and that indicates that the applicant does not 
qualify for any of the relief or protection at issue. The Departments 
seek comment on whether the IJ should have the authority to review all 
decisions of the asylum officer in this manner.
    As proposed at 8 CFR 1003.48(e), if the IJ determines that the 
noncitizen is eligible for and merits asylum as a matter of discretion, 
the IJ would issue a decision vacating the order of removal issued by 
the asylum officer based upon the immigration officer's initial 
inadmissibility determination under section 235(b)(1)(A)(i) of the Act, 
8 U.S.C. 1225(b)(1)(A)(i), and granting the noncitizen asylum. If the 
IJ determines that the noncitizen is eligible for withholding of 
removal under the Act or withholding or deferral of removal under the 
CAT, the IJ would issue a decision granting the appropriate protection, 
but the IJ would not vacate the removal order issued by the asylum 
officer.\58\
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    \58\ A grant of withholding of removal ``does not afford [a 
noncitizen] any permanent right to remain in the United States'' and 
``does not prevent the DHS from removing [a noncitizen] to a country 
other than the one to which removal has been withheld.'' Guzman 
Chavez, 141 S. Ct. at 2286 (quoting Matter of I-S- & C-S-, 24 I&N 
Dec. 432, 434 (BIA 2008)). That presupposes the issuance of a 
removal order to preserve DHS's discretion to remove the noncitizen 
to a third country. See id. at 2287-88 (noting that ``it is 
axiomatic that in order to withhold removal there must first be an 
order of removal that can be withheld'' (internal quotation marks 
and citation omitted)).
---------------------------------------------------------------------------

    The Departments propose that either party may appeal the IJ's 
decision rendered in the new proceedings under 8 CFR 1003.48 to the BIA 
in accordance with the standard EOIR appeal procedures that currently 
apply to removal proceedings, including the submission of a Form EOIR-
26, Notice of Appeal from a Decision of an Immigration Judge. See 
generally 8 CFR 1003.3, 1003.38. The Departments also propose to amend 
8 CFR 1003.1(b) to make clear that a noncitizen may appeal the IJ's 
decision to the BIA and that the review of these decisions is within 
the BIA's jurisdiction. And, as with BIA decisions in removal 
proceedings, the noncitizen may seek judicial review before the 
appropriate circuit court of appeals. See INA 242, 8 U.S.C. 
1252(a)(1).\59\ Accordingly, noncitizens under the proposed regulations 
would have opportunities at four levels to have their claims for 
asylum, withholding of removal, or deferral of removal considered: 
First during a nonadversarial hearing before an asylum officer and 
then, if necessary, on review by an IJ, the BIA, and the appropriate 
circuit court of appeals.
---------------------------------------------------------------------------

    \59\ The courts of appeals have jurisdiction to review ``a final 
order of removal.'' INA 242(a)(1), 8 U.S.C. 1252(a)(1). As several 
courts of appeals have held, that grant of jurisdiction includes the 
authority to review a conclusion that an otherwise-removable 
noncitizen is ineligible for asylum, even where--unlike under the 
present rule--``no formal order of removal has been entered.'' 
Mitondo, 523 F.3d at 787; see Shehu v. Att'y Gen., 482 F.3d 652, 656 
(3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir. 
2006); Nreka v. Att'y Gen., 408 F.3d 1361, 1366-67 (11th Cir. 2005). 
The courts of appeals do not have jurisdiction to review ``an order 
of removal without a hearing pursuant to [8 U.S.C.] 1225(b)(1).'' 
INA 242(a)(1), 8 U.S.C. 1252(a)(1); see INA 242(a)(2)(A), 8 U.S.C. 
1252(a)(2)(A) (additional limits on review of matters related to 
removal orders issued pursuant to INA 235(b)(1), 8 U.S.C. 
1225(b)(1)). That limitation does not apply here. An order of 
removal entered after an asylum officer conducts a full hearing on a 
noncitizen's asylum application is not ``an order or removal without 
a hearing.'' And, in the context of INA 242's limits on judicial 
review, the references to an order of removal issued ``pursuant to'' 
INA 242(b)(1), 8 U.S.C. 1225(b)(1), most naturally is read to 
encompass only the orders expressly described in that provision: An 
order issued when a noncitizen subject to expedited removal does not 
indicate an intention to apply for asylum or a fear of persecution, 
INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), or an order issued 
when a noncitizen is found not to have a credible fear of 
persecution, INA 235(b)(1)(B)(iii)(I),8 U.S.C. 
1225(b)(1)(B)(iii)(I). Cf. Guerrero-Lasprilla v. Barr, 140 S. Ct. 
1062, 1069 (2020) (applying ``the presumption favoring judicial 
review of administrative action'' in construing another limit on 
judicial review in INA 242, 8 U.S.C. 1252).
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F. Severability

    Upon the completion of the notice and comment period provided for 
herein and subsequent issuance of a final rule, to the extent that any 
portion of the resulting final rule is stayed, enjoined, not 
implemented, or otherwise held invalid by a court, the Departments 
intend for all other parts of the final rule that are capable of 
operating in the absence of the specific portion that has been 
invalidated to remain in effect. Thus, even if a judicial decision 
invalidating a portion of the final rule results in a partial reversion 
to the current regulations or to the statutory language itself, the 
Departments intend that the rest of the final rule continue to operate 
in tandem with the reverted provisions, if at all possible. The 
Departments seek comment on whether (and which of) the regulatory 
provisions proposed herein should be severable from one another.

G. Discretion/Phased Implementation

    The Departments believe that the proposed changes in this rule are 
necessary to establish a more streamlined and timely adjudication 
process for individuals who establish a credible fear of persecution or 
torture, while simultaneously ensuring fundamental fairness. The 
Departments emphasize, however, that this proposed rule would provide 
DHS the discretion to continue placing such individuals directly into 
section 240 removal proceedings before an IJ. This discretion may be 
exercised, for example, when a noncitizen with a positive credible fear 
determination may have committed significant criminal activity, have 
engaged in past acts of harm to others, or pose a public safety or 
national security threat. In some cases, DHS may determine that it is 
more appropriate for such noncitizens' protection claims to be heard 
and considered in the adversarial process before an IJ.
    Additionally, if the Departments decide to issue a final rule 
implementing this new process during FY 2022, DHS would also need to 
continue to place many noncitizens receiving a positive credible fear 
determination into section 240 removal proceedings, while USCIS takes 
the steps needed to allow it to fully implement this new process for 
all cases. As discussed below in greater detail in the costs and 
benefits analysis of this proposal and its impacts on USCIS, as 
required under Executive Orders 12866 and 13563, USCIS has estimated 
that it will need to hire approximately 800 new employees and spend 
approximately $180 million to fully implement the proposed asylum 
officer hearing and adjudication process to handle approximately 75,000 
cases annually. If the number of noncitizens placed into expedited 
removal and making successful fear claims increases significantly above 
that estimate, the cost to implement this proposed rule with staffing 
levels sufficient to handle the additional cases in a timely fashion 
would be substantially higher.\60\ Until USCIS is able to support full 
implementation, USCIS would need to continue to place a large 
percentage of individuals receiving a positive credible fear 
determination into section 240 removal proceedings. This exercise of 
discretion is similar to and in line with DHS's recognized 
prosecutorial discretion to issue an NTA to a covered

[[Page 46922]]

noncitizen in expedited removal proceedings at any time after the 
covered citizen is referred to USCIS for a credible fear determination. 
See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523.
---------------------------------------------------------------------------

    \60\ USCIS presently has over 400,000 pending affirmative asylum 
applications awaiting interview or adjudication. In proposing this 
rule, the Departments seek to avoid simply shifting work from a 
resource-challenged EOIR to a similarly resource-challenged USCIS 
Asylum Division. DHS seeks to fully resource the USCIS Asylum 
Division to handle their present workloads and this new workload 
prior to the USCIS full takeover of the adjudication of protection 
claims that follow a positive credible fear determination.
---------------------------------------------------------------------------

    USCIS is primarily funded by immigration and naturalization benefit 
request fees charged to applicants and petitioners. Fees collected from 
individuals and entities filing immigration benefit requests are 
deposited into the Immigration Examinations Fee Account (``IEFA''). 
These fee collections fund the costs of adjudicating immigration 
benefit requests, including those provided without charge to refugee, 
asylum, and certain other applicants. The authority for establishing 
fees is found in section 286(m) of the INA, 8 U.S.C. 1356(m), which 
authorizes DHS to charge fees for adjudication and naturalization 
services at a level to ``ensure recovery of the full costs of providing 
all such services, including the costs of similar services provided 
without charge to asylum applicants or other immigrants.''
    The Chief Financial Officers Act of 1990 (``CFO Act''), 31 U.S.C. 
901-03, requires each agency's chief financial officer to ``review, on 
a biennial basis, the fees, royalties, rents, and other charges imposed 
by the agency for services and things of value it provides, and make 
recommendations on revising those charges to reflect costs incurred by 
it in providing those services and things of value.'' 31 U.S.C. 
902(a)(8). USCIS conducted a FY 2019 and 2020 IEFA fee review, as 
required under the CFO Act, and, as a result of that review, DHS 
published an updated final fee rule on August 3, 2020, with an 
effective date of October 2, 2020. See U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, 85 FR 46788 (Aug. 3, 2020). Implementation of 
that new fee rule was enjoined before its effective date, and USCIS has 
notified the public that it intends to continue to comply with the 
court injunctions.\61\ DHS intends to rescind and replace the changes 
made by the August 3, 2020 fee rule and establish new USCIS fees to 
recover USCIS operating costs.\62\
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    \61\ See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 
526 (N.D. Cal. 2020) (enjoining the rule); Nw. Immigrant Rts. 
Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 41 
(D.D.C. 2020) (same). On January 29, 2021, USCIS published a Federal 
Register notice indicating that the agency was continuing to comply 
with these court orders. U.S. Citizenship and Immigration Services 
Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, 86 FR 7493, 7493 (Jan. 29, 2021).
    \62\ DHS lists a notice of proposed rulemaking for new fees on 
the Spring 2021 Unified Regulatory Agenda with a proposed 
publication date of November 2021. Office of Management and Budget, 
Spring 2021 Unified Regulatory Agenda (June 11, 2021), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68.
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    Current resource constraints would prevent the Departments from 
immediately achieving their ultimate goal of having the protection 
claims of nearly all individuals who receive a positive credible fear 
determination adjudicated by an asylum officer. The Departments believe 
that to fully implement the proposed rule, additional resources would 
be required. The Departments therefore propose that the new process be 
implemented in phases, as the necessary staffing and resources are put 
into place.
    A phased implementation would allow the Departments to begin 
employing the proposed process in an orderly and controlled manner and 
for a limited number of cases, giving USCIS the opportunity to work 
through operational challenges and ensure that each noncitizen placed 
into the process is given a full and fair opportunity to have any 
protection claim presented, heard, and properly adjudicated in full 
conformance with the law. Phased implementation would also have an 
immediately positive impact in reducing the number of individuals 
arriving at the southwest border who are placed into backlogged 
immigration court dockets, thus allowing the Departments to more 
quickly adjudicate some cases.
    Given limited agency resources, the Departments anticipate first 
implementing this new process for certain non-detained family units. 
The Departments believe this is necessary as USCIS capacity is 
currently insufficient to handle all family unit referrals under this 
new proposed process. The Departments also anticipate limiting 
referrals under the initial implementation of this proposed rule to 
families apprehended in certain southwest border sectors or stations, 
as well as based on the family unit's final intended destination (e.g., 
if the family unit is within a predetermined distance from the 
potential interview location). As the USCIS Asylum Division gains 
resources and builds capacity, the Departments anticipate that 
additional family unit cases and then single adult cases could be 
considered for processing pursuant to this phased implementation. Under 
this approach, it is likely that single adult cases would not be 
handled under the new process until a later phase of implementation. 
The Departments are seeking comments on what might be the appropriate 
factors for DHS to consider when determining which individuals to place 
into the new process during this period prior to full implementation.

Statutory and Regulatory Requirements

H. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives. If a 
regulation is necessary, these Executive orders direct that, to the 
extent permitted by law, agencies ensure that the benefits of a 
regulation justify its costs and select the regulatory approach that 
maximizes net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. It explicitly draws attention to ``equity, human 
dignity, fairness, and distributive impacts,'' values that are 
difficult or impossible to quantify. All of these considerations are 
relevant here. This proposed rule has been designated as a 
``significant regulatory action,'' and it is economically significant 
since it meets the $100 million threshold under section 3(f)(1) of 
Executive Order 12866. Accordingly, the Office of Management and Budget 
(``OMB'') has reviewed this regulation.
1. Summary
    This proposed rule would change and streamline the overall 
adjudicatory process for asylum applications arising out of the 
expedited removal process. By reducing undue delays in the system, and 
by providing a variety of procedural safeguards, the rule protects 
equity, human dignity, and fairness.
    A central feature of the regulation changes the respective roles of 
an IJ and an asylum officer during proceedings for consideration of 
asylum applications after a positive credible fear determination. 
Notably, IJs will retain their existing authority to review de novo the 
negative determinations made by asylum officers in a credible fear 
proceeding. In making credible fear determinations, asylum officers 
will return to evaluating whether there is a significant possibility 
that the noncitizen could establish eligibility for asylum, withholding 
of removal, or CAT

[[Page 46923]]

protection for possible referral to a full hearing of the claim and the 
noncitizen will still be able to seek review of that negative credible 
fear determination before the IJ.
    Asylum officers will take on a new role of fully adjudicating all 
protection claims made by some noncitizens who have received a positive 
credible fear determination, a role previously carried out only by IJs 
as part of a proceeding under section 240 of the INA. Under the rule, 
IJs will take on a new authority to review de novo an asylum officer's 
denial of these claims.
    The population of individuals likely to be affected by this 
proposed rule's provisions are individuals for whom USCIS completes a 
credible fear screening. The average annual number of credible fear 
screenings for FY 2016 through 2020 completed by USCIS is broken out as 
59,280 positive credible fear determinations and 12,083 negative 
credible fear determinations, for a total of 71,363 individuals with 
credible fear determinations. DHS expects that this population will be 
affected by the rule in a number of ways, which may vary from person to 
person depending on (1) whether the individual receives a positive 
credible fear determination, and (2) whether the individual's asylum 
claim is granted or denied by the asylum officer. In addition, because 
of data constraints and conceptual and empirical challenges, we can 
provide only a partial monetization of the impacts to individuals. For 
example, asylum seekers who establish credible fear may benefit from 
having their asylum claims adjudicated potentially much sooner than 
they otherwise would. Those who are granted asylum sooner may have a 
possible path to citizenship in the United States. This is obviously a 
benefit in terms of human dignity and equity, but it is a benefit that 
is not readily monetized. Asylum seekers who establish credible fear 
may also benefit from filing cost savings and earlier labor force 
entry. DHS has estimated this impact on a per-person workday basis.
    As it relates to the Government and USCIS costs, the planned human 
resource and information-related expenditures required to implement 
this proposed rule are monetized as real resource costs. These 
estimates are developed along three population bounds, ranging from 
75,000 to 300,000 credible fear screenings to account for possible 
variations in future years. Furthermore, the possibility of parole for 
more individuals--applied on a case-by-case basis--could lower the cost 
to the Government per person processed. DHS has also estimated 
potential employment tax impacts germane to earlier labor force entry, 
likewise on a per-person workday basis. Such estimates made on a per-
person basis reflect a range of wages that the impacted individuals 
could earn. The per-person, per-work day estimates are not extended to 
broader monetized impacts due to data constraints.
    An important caveat to the possible benefits to asylum applicants 
who establish a credible fear introduced above and discussed more 
thoroughly in the analysis is that it is expected to take time to 
implement this rule. Foremost, DHS expects the resourcing of this 
proposed rule to be implemented in a phased approach. Further, while 
up-front expenditures to support the changes from this proposed rule 
based on planning models are high, the logistical and operational 
requirements of this proposed rule may take time to fully implement. 
For instance, once USCIS meets its staffing requirements, time will be 
required for the new asylum staff to be trained for their positions, 
which may occur over several months. As a result, the benefits to 
applicants and the Government may not be realized immediately.
    To develop the monetized costs of the proposed rule, DHS relied on 
a low, midrange, and high population bound to reflect future 
uncertainty in the population. In addition, resources are partially 
phased in over FYs 2022 and 2023, as a full phasing in of resources, 
potentially up to 2026, is not possible at this time. The average 
annualized cost of this proposed rule ranges from $180.4 million to 
$1.0 billion, at a 3 percent discount rate, and from $179.5 million to 
$995.8 million, at a 7 percent discount rate. At a 3 percent discount 
rate the total 10-year costs could range from $1.5 billion to $8.6 
billion, with a midpoint of $3.9 billion. At a 7 percent discount rate, 
the total 10-year costs could range from $1.3 billion to $7.0 billion, 
with a midpoint of $3.2 billion.
    A summary of the potential impacts of this proposed rule are 
presented in Table 1 and are detailed more in the ensuing analysis. 
Where quantitative estimates are provided, they apply to the midpoint 
figure (applicable to the wage range or the population range).

                         Table 1--Summary of the Potential Impacts of This Proposed Rule
----------------------------------------------------------------------------------------------------------------
            Entities impacted              Annual population estimate              Potential impacts
----------------------------------------------------------------------------------------------------------------
Individuals who receive a positive        USCIS provides a range from   Maximum potential cost-savings
 credible fear determination.              75,000 to 300,000 total      to applicants of Form I-589 of $364.86
                                           individuals who receive      per person.
                                           credible fear
                                           determinations. In recent
                                           years (see Table 3),
                                           approximately 83.1% of
                                           individuals screened have
                                           received a positive
                                           credible fear
                                           determination.
                                                                        Potential cost-savings to
                                                                        applicants of Form I-765 of $370.28 per
                                                                        person.
                                                                        Potential early labor earnings
                                                                        to asylum applicants who obtain an
                                                                        employment authorization document
                                                                        (``EAD'') of $225.44 per person per
                                                                        workday; this impact could potentially
                                                                        constitute a transfer from workers in
                                                                        the U.S. labor force to certain asylum
                                                                        applicants. We identified three factors
                                                                        that could drive this impact of early
                                                                        entry to the labor force: (i) More
                                                                        expeditious grants of asylum, thereby
                                                                        authorizing work incident to status; and
                                                                        (ii) a change in timing apropos to the
                                                                        ``start'' time for filing for work
                                                                        authorization--the ``EAD-clock''
                                                                        duration is not impacted, but it
                                                                        ``shifts'' to an earlier starting point.
                                                                        On the other hand, some individuals who
                                                                        would have reached the ``EAD-clock''
                                                                        duration for a pending asylum
                                                                        application and obtained work
                                                                        authorization under the current
                                                                        regulations may not obtain work
                                                                        authorization if their asylum claim is
                                                                        promptly denied.
                                                                        Individuals could not have to
                                                                        wait lengthy times for a decision on
                                                                        their protection claims. This is a
                                                                        benefit in terms of equity, human
                                                                        dignity, and fairness.
                                                                        Some individuals could benefit
                                                                        from de novo review by an IJ of the
                                                                        asylum officer's denial of their asylum
                                                                        claim.

[[Page 46924]]

 
Individuals who receive a negative        USCIS provides a range from   Beneficiaries of the new process
 credible fear determination.              75,000 to 300,000 total      may benefit in terms of human dignity if
                                           individuals who receive      paroled from detention while awaiting
                                           credible fear                their credible fear interview and
                                           determinations. In recent    determination.
                                           years (see Table 3),
                                           approximately 16.9% of
                                           individuals screened have
                                           received a negative
                                           credible fear
                                           determination.
                                                                        Parole may result in more
                                                                        individuals failing to appear for
                                                                        hearings.
DHS-USCIS...............................  N/A........................   At a 7 percent discount rate,
                                                                        the resource costs could be $451.2
                                                                        million annually, based on up-front and
                                                                        continuing expenditures.
                                                                        It is reasonable to assume that
                                                                        there could be a reduction in Form I-765
                                                                        filings due to more expeditious
                                                                        adjudication of asylum claims, but there
                                                                        could also be countervailing influences;
                                                                        hence, the volume of Form I-765 filings
                                                                        (writ large or for specific classes
                                                                        related to asylum) could decrease,
                                                                        remain the same, or increase--these
                                                                        reasons are elucidated in the analysis.
                                                                        A net change in Form I-765
                                                                        volumes overall could impact the
                                                                        incumbent volume of biometrics and
                                                                        biometrics services fees collected;
                                                                        however, based on the structure of the
                                                                        USCIS Application Support Center
                                                                        (``ASC'') biometrics processing
                                                                        contract, it would take a significant
                                                                        change in such volumes for a particular
                                                                        service district to generate marginal
                                                                        cost increases or savings per biometrics
                                                                        submission.
EOIR....................................  555 current IJs as well as    EOIR only reviews on appeal and
                                           support staff and other      will no longer adjudicate asylum claims
                                           personnel.                   raised in expedited removal in the first
                                                                        instance.
                                                                        Allows EOIR to focus efforts on
                                                                        other priority work and reduce its
                                                                        substantial current backlog.
                                                                        There could be non-budget
                                                                        related cost-savings if the actual time
                                                                        worked on a credible fear case decreases
                                                                        in the transfer of credible fear cases
                                                                        to USCIS.
Support networks for asylum applicants    Unknown....................   To the extent that some
 who receive a positive credible fear                                   applicants may be able to earn income
 determination.                                                         earlier than they otherwise could
                                                                        currently, burdens to the support
                                                                        network of the applicant may be
                                                                        lessened. This network could include
                                                                        public and private entities and family
                                                                        and personal friends, legal services
                                                                        providers and advisors, religious and
                                                                        charity organizations, State and local
                                                                        public institutions, educational
                                                                        providers, and non-governmental
                                                                        organizations (``NGOs'').
Other...................................  Unknown....................   There could be familiarization
                                                                        costs associated with this proposed
                                                                        rule; for example, if attorneys
                                                                        representing the asylum client reviewed
                                                                        the rule, the cost would be about $69.05
                                                                        per hour.
                                                                        There may be some labor market
                                                                        impacts as some asylum seekers that
                                                                        currently enter the labor market with a
                                                                        pending asylum application would no
                                                                        longer be entering the labor market
                                                                        under this proposed rule if they get a
                                                                        negative decision on their asylum claim
                                                                        sooner. Applicants with a positive
                                                                        credible fear determination may enter
                                                                        the labor market sooner under this
                                                                        proposed rule than they would currently.
                                                                        Tax impacts could accrue to the
                                                                        earlier entry of some individuals into
                                                                        the labor market; we estimate employment
                                                                        tax impacts could be $34.49 per person
                                                                        on a workday basis.
----------------------------------------------------------------------------------------------------------------

    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 2 presents the prepared accounting statement 
showing the costs and benefits associated with this regulation.\63\
---------------------------------------------------------------------------

    \63\ OMB, Circular A-4 (2003), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last viewed June 1, 
2021).

                                      Table 2--OMB A-4 Accounting Statement
                                               [$ millions, 2020]
----------------------------------------------------------------------------------------------------------------
                                             Time Period: 2022-2031
-----------------------------------------------------------------------------------------------------------------
             Category               Primary estimate   Minimum estimate   Maximum estimate     Source citation
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Monetized benefits...............     Not estimated      Not estimated      Not estimated
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-                  N/A                N/A                N/A
 monetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified benefits............   Some individuals may benefit from filing cost-savings   Regulatory Impact
                                     related to Forms I-589 and I-765. Early labor market    Analysis (``RIA'').
                                   entry would be beneficial in terms of labor earnings to
                                   the applicant, but also because it could reduce burdens
                                             on the applicants' support networks.
                                     Benefits driven by increased efficiency would enable
                                     some asylum-seeking individuals to move through the
                                      asylum process more expeditiously than through the
                                    current process, with timelines potentially decreasing
                                     significantly, thus promoting both human dignity and
                                      equity. Adjudicative efficiency gains and expanded
                                    parole could lead to individuals spending less time in
                                    detention, which would benefit the Government and the
                                                    affected individuals.

[[Page 46925]]

 
                                   Another benefit is that EOIR would not see the cases in
                                      which USCIS grants asylum, which we estimate as at
                                    least a 15 percent reduction in their overall credible
                                    fear workload. This stands to mitigate the backlog of
                                   cases pending in immigration courts. Additionally, this
                                    benefit would extend to individuals granted or denied
                                      asylum faster than if they were to go through the
                                                  current process with EOIR.
                                     Depending on the individual case circumstances, this
                                     proposed rule would mean that such noncitizens would
                                      likely not remain in the United States--for years,
                                     potentially--pending resolution of their claims, and
                                     those who qualify for asylum would be granted asylum
                                    several years earlier than they are under the present
                                                           process.
                                      The anticipated operational efficiencies from this
                                   proposed rule may provide for prompt grant of relief or
                                     protection to qualifying noncitizens and ensure that
                                    those who do not qualify for relief or protection are
                                     removed more efficiently than they are under current
                                                            rules.
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for 10-             (3%)   .................  .................  RIA.
 year period between 2021 and                $453.8             $180.4           $1,002.4
 2030 (discount rate in
 parenthesis).
                                  ------------------------------------------------------------------------------
                                               (7%)   .................  .................  RIA.
                                             $451.2              179.5              995.8
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-      Potential cost-savings applicable to Form I-    RIA.
 monetized, costs.                 589 of $338.86 per person.
                                    Potential cost-savings applicable to Form I-
                                   765 of $377.32 per person.
                                    Potential early labor earnings of $225.44 per
                                   person per workday.
                                    The transfer of cases from EOIR to USCIS would
                                   allow resources at EOIR to be directed to other work,
                                   and there is a potential for cost-savings to be
                                   realized as it relates to credible fear processing
                                   specifically, if the average cost of work-time spent on
                                   cases by USCIS asylum officers would be lower than at
                                   EOIR currently. These would not be budgetary cost-
                                   savings, and USCIS has not made a one-to-one time- and
                                   cost-specific comparison between worktime actually
                                   spent on a case at EOIR and USCIS.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs.                            N/A
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Annualized transfers:............   Potential labor earnings that would accrue to credible
                                      fear asylum applicants that enter the labor market
                                              earlier than they would currently.
----------------------------------------------------------------------------------------------------------------
From whom to whom?...............    Potentially a distributional economic impact in the
                                      form of a transfer to asylum applicants who enter
                                     earlier than they would currently from others in the
                                                       U.S. workforce.
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category..                            N/A                            RIA.
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or                                  N/A
 Tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses......  This proposed rule does not directly regulate small      RFA.
                                   entities, but rather individuals.
----------------------------------------------------------------------------------------------------------------
Effects on wages.................                            None
----------------------------------------------------------------------------------------------------------------
Effects on growth................                            None
----------------------------------------------------------------------------------------------------------------

2. Background and Purpose of the Rule
    The purpose of this proposed rule is to address the rising number 
of apprehensions at or near the southwest border and the ability of the 
U.S. asylum system to fairly and efficiently handle protection claims 
made by those encountered. The proposed rule streamlines and simplifies 
the adjudication process for certain individuals who are encountered at 
or near the border, placed into expedited

[[Page 46926]]

removal, and determined to have a credible fear of persecution or 
torture, with the aim of adjudicating applications for asylum, 
statutory withholding of removal, and CAT protection in a timelier 
fashion and in conformity with procedural protections against erroneous 
denial of relief or protection. The principal facet of the rule is to 
transfer the initial responsibility for adjudicating asylum, statutory 
withholding of removal, and CAT protection applications from IJs to 
USCIS asylum officers for individuals within expedited removal 
proceedings who receive a positive credible fear determination.
    The proposed rule also would broaden the circumstances in which 
individuals making a fear claim during the expedited removal process 
could be considered for parole on a case-by-case basis prior to a 
positive credible fear determination being made. For such individuals, 
parole could be granted as an exercise of discretion not only where 
required to meet a medical emergency or for a legitimate law 
enforcement objective, but also where detention is unavailable or 
impracticable.
    DHS intends to apply this proposed rule only to recently-arrived 
individuals who are subject to expedited removal--i.e., adults and 
families. The proposed rule does not apply to unaccompanied children, 
as they are statutorily exempt from being placed into expedited 
removal. It also does not apply to individuals already residing in the 
United States and whose presence in the United States is outside the 
coverage of noncitizens designated by the Secretary as subject to 
expedited removal. The proposed rule also does not apply to (1) 
stowaways or (2) noncitizens who are present in or arriving in the 
Commonwealth of the Northern Mariana Islands who are determined to have 
a credible fear. They will continue to be referred to asylum/
withholding-only hearings before an IJ under 8 CFR 208.2(c). Finally, 
it is not legally required that a noncitizen amenable to expedited 
removal after the effective date of the rule be placed in the non-
adversarial review process described in this proposed rule. Rather, DHS 
generally, and USCIS in particular, retains discretion to issue an NTA 
to a covered noncitizen in expedited removal proceedings to instead 
place them in section 240 removal proceedings at any time after they 
are referred to USCIS for a credible fear determination. See Matter of 
E-R-M- & L-R-M-, 25 I&N Dec. at 523; see also 8 CFR 1208.2(c).
    In this section we provide some data and information relevant to 
the ensuing discussion and analysis of the potential impacts of the 
rule. We first present USCIS data followed by EOIR data. Table 3 shows 
USCIS data for the Form I-589 and credible fear cases for the five-year 
span from FY 2016 through FY 2020.

    Table 3--USCIS Form I-589, Application for Asylum and for Withholding of Removal, and Credible Fear Data
                                               [FY 2016-2020] \64\
----------------------------------------------------------------------------------------------------------------
                                  Form I-589 receipts           Credible fear completions
                              ------------------------------------------------------------------  Total credible
              FY                 Initial      Pending      Positive     Negative        All      fear cases \65\
                                 receipts     receipts      screen       screen     completions
----------------------------------------------------------------------------------------------------------------
2016.........................      115,888      194,986       73,081        9,697        82,778           94,048
2017.........................      142,760      289,835       60,566        8,245        68,811           79,842
2018.........................      106,041      319,202       74,677        9,659        84,336           99,035
2019.........................       96,861      349,158       75,252       16,679        91,931          102,204
2020.........................       93,134      386,014       12,824       16,134        28,958           30,839
                              ----------------------------------------------------------------------------------
    Total....................      554,684          N/A      296,400       60,414       356,814          405,968
                              ----------------------------------------------------------------------------------
        5-year Average.......      110,937      307,839       59,280       12,083        71,363           81,194
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Quality (OPQ), and USCIS Refugee, Asylum, and International Operations
  (RAIO) Directorate, CLAIMS 3 database, Global received May 11, 2021.
\64\ In FY 2020, the credible fear filings are captured in the Form I-870, ``Record of Determination/Credible
  Fear Worksheet.'' As part of the credible fear screening adjudication, USCIS Asylum Officers prepare Form I-
  870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about
  the applicant, including the applicant's name, date of birth, gender, country of birth, nationality,
  ethnicity, religion, language, and information about the applicant's entry into the United States and place of
  detention. Additionally, Form I-870 collects sufficient information about the applicant's marital status,
  spouse, and children to determine whether they may be included in the determination. Form I-870 also documents
  the interpreter identification number of the interpreter used during the credible fear interview and collects
  information about a relative or sponsor in the United States, including their relationship to the applicant
  and contact information. In previous years credible fear filings included the Form I-867, ``Credible Fear
  Referral.'' Prior to FY 2020, the USCIS Asylum Division electronically received information about credible
  fear determinations through referral documentation provided by U.S. Customs and Border Protection. The
  referral documentation includes a form containing information about the applicant: Form I-867, Credible Fear
  Referral.
\65\ The credible fear total receipts are larger than the sum of positive and negative determinations because
  the latter apply to ``completions,'' referring to cases forwarded to EOIR, and thus exclude cases that were
  administratively closed.

    As can be seen from Table 3, the Form I-589 pending case number has 
grown steadily since 2016, and as of May 11, 2021, was 400,200, which 
is well above the five-year average of 307,839. Over that same period, 
the majority, 83.1 percent, of completed credible fear screenings were 
positive, while 16.9 percent were negative.\66\
---------------------------------------------------------------------------

    \66\ Calculation: Positive completions total 296,400/total 
completions (296,400 + 60,414) = 296,400/356,814 = 0.831 x 100 = 
83.1 percent (rounded); negative completions total 60,414/total 
completions (356,814) = 0.169 x 100 = 16.9 percent (rounded).
---------------------------------------------------------------------------

    In addition to the credible fear case data presented in Table 3, 
USCIS data and analysis can provide some insight concerning how long it 
has taken for the credible fear screening process to be completed. As 
detailed in this preamble, while this proposed rule's primary concern 
is the length of time before incoming asylum claims are expected to be 
adjudicated by EOIR, changes to USCIS processes enabled by this 
proposed rule (including, for example, improved systems for conducting 
credible fear interviews for individuals who are not in detention 
facilities) are also expected to reduce processing times for credible 
fear cases. Table 4

[[Page 46927]]

provides credible fear processing durations at USCIS.

                    Table 4--Credible Fear Time Durations for Detained and Non-Detained Cases
                                   [In average and median days, FY 2016-2021]
----------------------------------------------------------------------------------------------------------------
                                                             Detained                      Non-detained
              FY                     Screen      ---------------------------------------------------------------
                                                      Average         Median          Average         Median
----------------------------------------------------------------------------------------------------------------
2016..........................  Positive........            23.3              13           290.6           163.0
                                Negative........              34              26           197.1            80.5
2017..........................  Positive........            23.3              13           570.1           407.0
                                Negative........            34.2              25           496.1           354.0
2018..........................  Positive........            22.6              16           816.2           671.0
                                Negative........            32.3              25           811.7           668.0
2019..........................  Positive........            35.6              24          1230.9          1082.0
                                Negative........            44.7              33          1067.3           959.0
2020..........................  Positive........            37.2              20          1252.7          1065.0
                                Negative........            30.3              16          1311.2          1247.0
2021..........................  Positive........            25.6              15           955.3           919.0
                                Negative........            29.8              17          1174.0          1109.0
----------------------------------------------------------------------------------------------------------------
Source: Data and analysis provided by USCIS, RAIO Directorate, SAS PME and data-bricks databases, received May
  11, 2021.
* FY 2021 includes partial fiscal year data as of May 2021.

    Table 4 reports the ``durations,'' defined as the elapsed days from 
date of apprehension to forwarding of the credible fear screening 
process at USCIS, in both averages and medians. USCIS has included the 
most recent figure, which is applicable to May 11, 2021. The total time 
for cases from apprehension to adjudication by EOIR can be found by 
summing the times in Table 4 with the times in Table 6, below.
    The data in Table 4 are not utilized to develop quantitative 
impacts, but rather are intended to build context and situational 
awareness. There are several key observations from the information 
presented. Foremost, there is a substantial difference between 
durations for the detained and the non-detained populations. The 
existence of a gap is expected because USCIS can interface with 
detained individuals rapidly. However, the gap has grown over time; in 
2016 the duration for positive-screened processing was 12.5 times 
greater, but by 2021 it had grown to a factor of nearly 40.\67\ Second, 
and relatedly, there was a substantial duration rise through 2019 for 
both detained and non-detained screenings, although there has been a 
recent pullback. Furthermore, the duration for negative screenings is 
lower across the board than for positive screenings--as of the most 
recent data point the duration was about 19 percent lower for negative 
screened cases.\68\ It is also seen that the 2021 average durations for 
detained cases are relatively close to 2016-2018 levels, with this 
series witnessing a spike in 2019.
---------------------------------------------------------------------------

    \67\ Calculations: For 2016, 290.6 average days/23.3 average 
days = 12.5; for 2021, 1174.0 average days/25.6 average days = 39.4.
    \68\ Calculation: [1-(955.3 days/1174.0 days)] = .186, rounded 
to .19.
---------------------------------------------------------------------------

    Since some of the EOIR data are presented in medians, we note that 
the median durations are lower than the means for both screened types. 
This indicates that a small number of cases take an exceptionally long 
time to resolve, resulting in large outlier data points that skew the 
mean upwards. It is noted that for non-detained cases, the gap between 
median and mean duration is relatively consistent up to 2021, but the 
mean and median converge toward the end of the period; this feature of 
the data could indicate that fewer outlier durations were represented 
in the data.
    It is possible that the proposed rule may impact employment 
authorization applications and approvals in terms of volume and timing. 
While we cannot predict the net change in filings for the Form I-765 
categories, we present data on initial filings and approvals for three 
asylum-related categories (Table 5). As a result of the rule, there 
could be substitutions in Form I-765 categories from the (c)(8), 
Applicant for Asylum/Pending Asylum, into the (a)(5), Granted Asylum 
Under Section 208, and (a)(10) Granted Withholding of Removal/243 (H) 
categories, in Table 5.

  Table 5--USCIS Form I-765 Application for Employment Authorization Initial Receipts and Approvals Related to
                                                Asylee Categories
                                                 [FY 2016-2020]
----------------------------------------------------------------------------------------------------------------
                                       EAD category (a)(5)       EAD category (c)(8)      EAD category (a)(10)
                                      Granted Asylum Under      Applicant for Asylum/    Granted Withholding of
                                           Section 208             Pending Asylum            Removal/243 (H)
                FY                 -----------------------------------------------------------------------------
                                      Initial                   Initial                   Initial
                                      receipts    Approvals     receipts    Approvals     receipts    Approvals
----------------------------------------------------------------------------------------------------------------
2016..............................       29,887       27,139      169,970      152,269        2,008        1,621
2017..............................       32,673       29,648      261,782      234,053        1,936        1,076
2018..............................       38,743       39,598      262,965      246,525        1,733        1,556
2019..............................       47,761       41,288      216,038      177,520        2,402        2,101

[[Page 46928]]

 
2020..............................       31,931       36,334      233,864      183,820        3,318        2,554
                                   -----------------------------------------------------------------------------
    5-year total..................      180,995      174,007    1,144,619      994,187       11,397        8,908
                                   -----------------------------------------------------------------------------
        Average...................       36,199       34,801      228,924      198,837        2,279        1,782
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality (OPQ), CLAIMS 3, data obtained May 11, 2021, https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf (last visited
  August 9, 2021).

    Across the three relevant employment authorization categories, the 
total of the averages is 267,402 initial EADs, with a total of 235,420 
approved EADs.
    Having presented information and data applicable to USCIS 
specifically, we now turn to EOIR data and information. Table 6 
presents average and median processing times for EOIR to complete 
credible fear cases originating from the credible fear screening 
process, positive and negative, and detained and non-detained (the 
processing time represents that time between when a case is lodged in 
EOIR systems and a final decision). Note that the ``initial case 
completions'' are not directly comparable to USCIS completions (Table 
3) in terms of annual volumes for two primary reasons. First, there can 
be timing differences in terms of when a credible fear case is sent to 
EOIR and when it is lodged in their processing systems. Second, not all 
individuals determined to have a credible fear follow up with their 
case with EOIR, and some cases filed are administratively closed. 
Therefore, as a general rule, case completions by EOIR would be 
necessarily lower than ``completions'' at USCIS.

        Table 6--EOIR Time Duration Metrics, Days, and Completions for Cases With a Credible Fear Origin
----------------------------------------------------------------------------------------------------------------
                                                                   Average           Median        Initial case
                             FY                                processing time   processing time    completions
----------------------------------------------------------------------------------------------------------------
 6A. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
                                                     Origin
----------------------------------------------------------------------------------------------------------------
2016........................................................               413               214          16,794
2017........................................................               447               252          26,531
2018........................................................               648               512          33,634
2019........................................................               669               455          55,404
2020........................................................               712               502          33,517
2021-March 31, 2021 (years) *...............................      1,078 (2.95)        857 (2.35)           6,646
----------------------------------------------------------------------------------------------------------------
 6B. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
  Origin and Only an Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of
                                              Removal Under the CAT
----------------------------------------------------------------------------------------------------------------
2016........................................................               514               300           7,519
2017........................................................               551               378          13,463
2018........................................................               787               690          19,293
2019........................................................               822               792          30,052
2020........................................................               828               678          21,058
2021-March 31, 2021 (years) *...............................      1,283 (3.52)      1,316 (3.61)           3,730
----------------------------------------------------------------------------------------------------------------
Source: EOIR, Planning, Analysis, and Statistics Division (``PASD''), data obtained April 19, 2021.
* Current through March 31, 2021.

    The FY 2021 data point reflects data through the start of FY 2021 
to March 31, 2021, and we have included the current processing times in 
years for situational awareness. As Table 6 shows, there was an across-
the-board jump in processing times in 2018, followed by a leveling off 
until 2021, when the processing times surged again.
3. Population
    The population expected to be affected by this rule is the total 
number of credible fear completions processed annually by USCIS 
(71,363, see Table 3), split between an average of 59,280 positive-
screen cases and 12,083 negative-screen cases. This can be considered 
the maximum, ``encompassing,'' population that could be impacted. 
However, we take into consideration larger populations to account for 
variations and uncertainty in the future population.
4. Impacts of the Rule
    This section is divided into three modules. The first (A) focuses 
on impacts to asylum seekers, presented on a per-person basis. The 
second (B) discusses costs to the Federal Government, and the third (C) 
discusses other, possible impacts, including benefits.

[[Page 46929]]

i. Impacts to the Credible Fear Asylum Population
    Under the change in procedures of this proposed rule, asylum 
applicants who have established a credible fear of persecution or 
torture would not be required to file Form I-589 with USCIS. 
Individuals in this population could accrue cost-savings relevant to 
this change. There is no filing fee for Form I-589, and the time burden 
is currently estimated at 12.0 hours per response, including the time 
for reviewing instructions, and completing and submitting the form.\69\ 
With regard to cost-savings, DHS believes the minimum wage is 
appropriate to rely on as a lower bound, as the applicants would be new 
to the U.S. labor market. The Federal minimum wage is $7.25 per hour; 
however, in this proposed rule, we rely on the ``effective'' minimum 
wage of $11.80. As The New York Times reported, ``[t]wenty-nine states 
and the District of Columbia have state-level minimum hourly wages 
higher than the federal [minimum wage],'' as do many city and county 
governments. This New York Times report estimates that ``the effective 
minimum wage in the United States [was] $11.80 an hour in 2019.'' \70\ 
Therefore, USCIS uses the ``effective'' minimum hourly wage rate of 
$11.80 to estimate a lower bound. USCIS uses a national average wage 
rate across occupations of $27.07 \71\ to take into consideration the 
variance in average wages across States as an upper bound.
---------------------------------------------------------------------------

    \69\ See Instructions for Form I-589, Application for Asylum and 
for Withholding of Removal, OMB No.1615-0067 (expires July 31, 
2022), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (last visited May 12, 2021).
    \70\ Ernie Tedeschi, Americans Are Seeing Highest Minimum Wage 
in History (Without Federal Help), The New York Times (Apr. 24, 
2019), https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html. We note that with the 
wage level dated to 2019, we do not make an inflationary adjustment 
because the Federal minimum wage has not changed since then.
    \71\ For the average wage for all occupations, the Departments 
rely on statistics of the U.S. Department of Labor. See U.S. Dep't 
of Labor, Bureau of Labor Statistics (``BLS''), May 2020 National 
Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited May 13, 2021).
---------------------------------------------------------------------------

    DHS accounts for worker benefits by calculating a benefits-to-wage 
multiplier using the most recent Bureau of Labor Statistics (``BLS'') 
report detailing the average employer costs for employee compensation 
for all civilian workers in major occupational groups and industries. 
DHS relies on a benefits-to-wage multiplier of 1.45 and, therefore, is 
able to estimate the full opportunity cost per applicant, including 
employee wages and salaries and the full cost of benefits such as paid 
leave, insurance, retirement, and other benefits.\72\ The total rate of 
compensation for the effective minimum hourly wage is $17.11 ($11.80 x 
benefits burden of 1.45), which is 62.8 percent higher than the Federal 
minimum wage.\73\ The total rate of compensation for the average wage 
is $39.25 ($27.07 x benefits burden of 1.45).
---------------------------------------------------------------------------

    \72\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
($38.60 Total Employee Compensation per hour)/($26.53 Wages and 
Salaries per hour) = 1.454957 = 1.45 (rounded). See U.S. Department 
of Labor, BLS, Economic News Release, Employer Cost for Employee 
Compensation (December 2020), Table 1. Employer Costs for Employee 
Compensation by Ownership (Dec. 2020), https://www.bls.gov/news.release/archives/ecec_03182021.pdf. (last visited Mar. 31, 
2021).
    \73\ The Federal minimum wage is $7.25 hourly, which burdened at 
1.45 yields $10.51. It follows that: (($17.11 wage-$10.51 wage)/
$10.51)) wage = 0.628, which rounded and multiplied by 100 = 62.8 
percent.
---------------------------------------------------------------------------

    For applicants who have established a credible fear, the 
opportunity cost of 12 hours to file Form I-589 at the lower and upper 
bound wage rates is $205.32 (12 hours x $17.11) and $471.00 (12 hours x 
$39.25), respectively, with a midrange average of $338.16. In addition, 
form instructions require a passport-style photograph for each family 
member associated with the Form I-589 filing. The Departments obtain an 
estimate of the number of additional family members applicable via data 
on biometrics collections for the Form I-589. Biometrics information is 
collected on every individual associated with a Form I-589 filing, and 
the tracking of collections is captured in the USCIS Customer Profile 
Management System (``CPMS'') database. A query of this system reveals 
that for the five-year period of FY 2016 through FY 2020, an average of 
296,072 biometrics collections accrued for the Form I-589 annually. 
Dividing this figure by the same five-year period average of 110,937 
initial filings (Table 3) yields a multiplier of 2.67 (rounded).\74\ 
Under the supposition that each photo incurs costs to applicants of 
$10,\75\ there could be $26.70 in additional cost-savings at either 
wage bound.\76\ The resulting cost savings per applicant from no longer 
having to file Form I-589 could range from $232.02 to $497.70, with a 
midrange of $364.86.\77\
---------------------------------------------------------------------------

    \74\ Calculation: Average I-589 biometrics collections 296,072/
110,937 average initial I-589 filings = 2.67 (rounded). Data were 
obtained from the USCIS Immigration Records and Identity Services 
(``IRIS'') Directorate, via the CPMS database (data obtained May 7, 
2021).
    \75\ The U.S. Department of State estimates an average cost of 
$10 per passport photo in their supporting statement for their 
Paperwork Reduction Act (PRA) submission for the Application for a 
U.S. Passport, OMB #1405-0004 (DS-11) (Feb. 8, 2011), http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 
(see question #13 of the Supporting Statement).
    \76\ Calculation: $10 per photo cost x 2.67 photos per I-589 
application = $26.70.
    \77\ Calculation: $205.32 + $26.70 = $232.02; $338.16 + $26.70 = 
$364.86; $471.00 + $26.70 = $497.70.
---------------------------------------------------------------------------

    Though these applicants would no longer be required to file Form I-
589, DHS recognizes that applicants would likely expend some time and 
effort to prepare for their asylum interviews and provide documentation 
for their asylum claim under this rule as well. DHS does not know 
exactly how long, on average, an individual may spend preparing for 
their credible fear interviews under the proposed rule, and how that 
amount of time and effort would compare to the time individuals 
currently spend preparing for the credible fear interview. If the 
increased time were substantial--i.e., above and beyond that currently 
earmarked for the asylum application process--lower cost-savings could 
result.
    Additionally, asylum applicants with a positive credible fear 
determination would still submit biometrics to USCIS. Hence, for 
applicants that file a Form I-589, photos would be collected via this 
biometrics process for the credible fear determination as well as for 
the Form I-589 application. Under this proposed rule, there would be a 
change in process such that applicants would submit biometrics at an 
asylum office as opposed to an USCIS Application Support Center 
(``ASC''). As a result, there could be time- and travel-associated 
impacts driven by this change, but because the requirements remain 
largely the same, we do not attempt to quantify them. Specifically, the 
average distance and travel time is likely to differ between asylum 
offices and ASCs, thereby possibly impacting the direct travel 
(mileage) cost as well as the travel-time related opportunity costs. 
However, the Departments assume these differences would be negligible, 
and therefore we do not quantify them.
    Under the proposed rule, asylum applicants who established a 
credible fear would be able to file for work authorization via the Form 
I-765, Application for Employment Authorization (``EAD''), while their 
asylum application is being adjudicated. We cannot say, however, 
whether the volume of Form I-765 EADs filed would increase or decrease 
in upcoming years due to this proposed rule. Currently, asylum 
applicants can file for an EAD under the asylum (c)(8) category while

[[Page 46930]]

their asylum application is pending. Such applications are subject to a 
365-day waiting period that commences when their completed Form I-589 
is filed. Asylum applicants who establish a credible fear would still 
be subject to the 365-day waiting period.\78\ Applicants would still be 
able to file for their EADs under the (c)(8) category. We analyze the 
impacts regarding the EAD filing in two steps, explaining first why 
filing volumes might decline and related impacts, and then why 
countervailing factors might mitigate such a decline.
---------------------------------------------------------------------------

    \78\ A preliminary injunction in Casa de Maryland, Inc. v. Wolf, 
486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts members of 
certain organizations from this 365-day waiting period. Such members 
are subject to the 180-day Asylum EAD Clock.
---------------------------------------------------------------------------

    A result of this proposed rule is that asylum applications for some 
individuals pursuant to this proposed rule could be granted asylum 
earlier than they would be under current conditions. Since an asylum 
approval grants work authorization incident to status and USCIS 
automatically provides an asylum-granted EAD ((a)(5)) after a grant of 
asylum by USCIS, some applicants may choose not to file for an EAD 
based on the pending asylum application under the expectation that 
asylum would be granted earlier than the EAD approval. This could 
result in cost savings to some applicants.
    There is currently no filing fee for the initial (c)(8) EAD Form I-
765 application, and the time burden is currently estimated at 4.75 
hours, which includes the time associated with submitting two passport-
style photos along with the application.\79\ As stated earlier, the 
Department of State estimates that each passport photo costs about $10 
each. Submitting two passport photos resulting in an estimated cost of 
$20 per Form I-765 application.
---------------------------------------------------------------------------

    \79\ See Instructions for Form I-765, Application for Employment 
Authorization, OMB No. 1615-0040 (expires July 31, 2022), https://www.uscis.gov/i-765 (last visited May 12, 2021).
---------------------------------------------------------------------------

    Because the (c)(8) EAD does not include or require, at the initial 
or renewal stage, any data on employment, and since it does not involve 
an associated labor condition application, we have no information on 
wages, occupations, industries, or businesses that may employ such 
workers. Hence, we continue to rely on the wage bounds (effective 
minimum and national average) developed earlier. At the wage bounds 
relied upon, the opportunity cost-savings are $81.27 (4.75 hours x 
$17.11 per hour), and $186.44 (4.75 hours x $39.25). When the $20 photo 
cost is included, the cost-savings would be $101.27 and $206.44 per 
applicant, respectively. However, some might choose to file for an EAD 
after being granted asylum, or even if they expect asylum to be granted 
earlier than the EAD approval, they may want to have documentation that 
reflects that they are employment authorized.
    In the discussion of the possible file volume decline for the Form 
I-589, above, we noted that applicants and family members would 
continue to submit biometrics as part of their asylum claim, and that, 
as a result, there would not be costs or cost-savings changes germane 
to biometrics. For the Form I-765(c)(8) category, USCIS started 
collecting biometrics, and the associated $85 biometrics service fee, 
in October 2020.\80\
---------------------------------------------------------------------------

    \80\ USCIS collects biometrics for Form I-765 (c)(8) 
submissions, but a preliminary injunction in Casa de Maryland, Inc. 
v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts 
members of certain organizations from this biometrics collection.
---------------------------------------------------------------------------

    The submission of biometrics involves travel to an ASC for the 
biometric services appointment. In past rulemakings, DHS estimated that 
the average round-trip distance to an ASC is 50 miles, and that the 
average travel time for the trip is 2.5 hours.\81\ The cost of travel 
also includes a mileage charge based on the estimated 50-mile round 
trip at the 2021 General Services Administration (``GSA'') rate of 
$0.56 per mile.\82\ Because an individual would spend an average of 1 
hour and 10 minutes (1.17 hours) at an ASC to submit biometrics,\83\ 
summing the ASC time and travel time yields 3.67 hours. At the low- and 
high-wage bounds, the opportunity costs of time are $62.79 and 
$144.05.\84\ The travel cost is $28, which is the per mileage 
reimbursement rate of 0.56 multiplied by 50-mile travel distance. 
Summing the time-related and travel costs generates a per-person 
biometrics submission cost of $90.79, at the low-wage bound and $172.05 
at the high-wage bound.\85\ While the biometrics collection includes 
the $85 service fee, fee waivers and exemptions are granted on a case-
by-case basis (across all forms) that are immaterial to this proposed 
rule. Accordingly, not all individuals pay the fee. When the 
opportunity costs of time for filing Form I-765 ($101.27 and $206.44, 
respectively) are added to the opportunity costs of time and travel for 
biometrics submissions ($90.79 and 172.05), the total opportunity cost 
of time to file Form I-765 and submitting biometrics are $192.07 and 
$378.49, respectively. For those who pay the biometrics service fee, 
the total costs are $277.07 and $463.49, respectively, with a midpoint 
of $370.28.\86\ These figures represent the maximum per-person cost 
savings for those who choose not to file for an EAD.\87\
---------------------------------------------------------------------------

    \81\ See Provisional Unlawful Presence Waivers of 
Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 
2013).
    \82\ GSA mileage rate of $0.56. See GSA, Privately Owned Vehicle 
Mileage Reimbursement Rates (effective January 1, 2021), https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last 
visited Aug. 4, 2021).
    \83\ See Instructions for Form I-765, Application for Employment 
Authorization, OMB No. 1615-0040 (expires July 31, 2022), https://www.uscis.gov/i-765 (last visited May 12, 2021).
    \84\ Calculations: Total time burden 3.67 hours x total rate of 
compensation for the effective wage $17.11 = $62.79; total time 
burden 3.67 hours x total rate of compensation for the average wage 
$39.25 = $144.05.
    \85\ Calculations: Opportunity cost of time, effective wage 
$62.79 + travel cost $28 = $90.79; Opportunity cost of time, average 
wage $144.05 + travel cost $28 = $172.05.
    \86\ Calculations: $192.07 + biometrics services fee $85 = 
$277.07; $378.49 + biometrics services fee $85 = $463.49. While we 
have the overall count for biometrics for the period from October 1, 
2020 through May 1, 2021, we do not know how many biometrics service 
fees were collected with these biometrics submissions; the fee data 
are retained by the USCIS Office of the Chief Financial Officer 
(``OCFO''), but the Form I-765 fee payments are not captured by 
eligibility class.
    \87\ There is a scenario that the Departments account for, 
though it is not likely to occur often. Currently, an asylum 
applicant might file for an EAD and have the EAD approved prior to 
the grant of asylum. It is possible that, under this proposed rule, 
asylum may be approved more expeditiously. At the time of the asylum 
grant, the individual will automatically receive a category (a)(5) 
EAD based on the grant of asylum; if they did file for an EAD, 
technically the filing costs associated with the EAD would be 
accounted for as sunk costs, since the (c)(8) EAD does not actually 
provide any benefit over the (a)(5) EAD. This would only apply if 
the proposed rule itself was responsible for the more expeditious 
asylum grant, and again, we only account for this possibility since 
it cannot be ruled out.
---------------------------------------------------------------------------

    Having developed the cost-savings for applicants who do not file 
for an EAD, we now turn to countervailing factors against the potential 
decline in Form I-765 volumes. First, applicants will benefit from a 
timing change relevant to the EAD waiting period as it relates to the 
``filing date'' of their asylum application that will allow an EAD to 
be filed earlier than it could be currently. USCIS allows for an EAD to 
be filed under 8 CFR 208.7 when an asylum application is pending and 
certain other conditions are met. Here, an asylum application would be 
pending when the credible fear determination is served on the 
individual as opposed to current practice under which the asylum 
application is lodged in immigration court. This change in timing could 
allow some EADs to be approved earlier for those who file for an EAD 
with a pending asylum application. In this

[[Page 46931]]

sense, the EAD remains the same in duration, but the starting point 
shifts to an earlier position for asylum applicants who will file for 
an initial EAD under the (c)(8) category.
    DHS would begin to consider for parole on a case-by-case basis all 
noncitizens who have been referred to USCIS for a credible fear 
screening under the slightly expanded set of factors provided for in 
the proposed rule during the relatively short period between being 
referred to USCIS for a credible fear screening interview and the 
issuance of a credible fear determination. A parole grant does not 
constitute work authorization, however, and currently there are two 
Form I-765 classes, (a)(5), ``Granted Asylum Sec. 208,'' and (a)(10), 
``Granted Withholding of Removal/243 (H),'' that could apply to 
applicants filing for asylum pursuant to the parole process under this 
proposed rule. In the past, some parolees under these categories have 
been able to obtain EADs sooner than they would if they were explicitly 
subject to the filing clock that applies to a pending Form I-589 
application.
    Given the two changes discussed above related to the EAD filings--
(i) the change in timing under when an EAD can be filed; and (ii) the 
somewhat expanded set of circumstances under which certain credible 
fear cases may be considered for parole--some applicants may file for 
an EAD, even under the expectation that their asylum could be granted 
earlier, if they expect to receive an (a)(5) asylum granted EAD even 
sooner. In this sense, the potential for more rapid approvals of an EAD 
claim may be expected to provide a net pecuniary benefit even in light 
of a more expeditious asylum claim. Coupled with the expectation that 
some individuals may seek an EAD for the non-pecuniary benefit 
associated with its documentary value, we cannot determine if these 
countervailing influences might limit, or even completely absorb, any 
reductions in EAD filing for credible fear asylum applicants.
    Regardless of whether, under the proposed rule, it is the more 
expeditious asylum or EAD approval that is binding for purposes of work 
authorization, individuals who enter the labor force earlier are able 
to earn income earlier. The assessments of possible impacts rely on the 
implicit assumption that credible fear asylum seekers who receive 
employment authorization will enter and be embedded in the U.S. labor 
force at the time of the proposed rule being effective. This assumption 
is justifiable for those whose labor force entry was effectuated by the 
EAD approval, as opposed to the grant of asylum. We believe this 
assumption is justifiable because applicants would generally not have 
expended the direct and opportunity costs of applying for an EAD if 
they did not expect to recoup an economic benefit. We also take the 
extra step of assuming these entrants to the labor force are employed. 
It is possible that some applicants who are eventually denied asylum 
are currently able to obtain work authorizations--approved while their 
asylum application was pending. We do not know what the annual or 
current scale of this population is, but it is an expected consequence 
of this proposed rule that such individuals would not obtain work 
authorizations in the future.
    The impact is attributable to the difference in days between when 
asylum would be granted under the proposed rule and the current 
baseline. USCIS describes this distributional impact in more detail. 
Since a typical workweek is 5 days, the total day difference (``D'') 
can be scaled by 0.714 (5 days/7 days) and then multiplied by the 
average wage (``W'') and the number of hours in a typical work day (8) 
to obtain the impact, as in the formula: D x 0.714 x W x 8. In terms of 
each actual workday, the daily distributional impact at the wage bounds 
are $136.88 ($17.11 x 8 hours) and $314.00 ($39.25 x 8 hours), 
respectively, on a per-person basis, with a midrange average of 
$225.44.
    USCIS cannot expand the per-person per-day quantified impacts to a 
broader monetized estimate. Foremost, while Table 5 provides filing 
volumes for the asylum relevant EADs, we cannot determine how many 
individuals within this population would be affected. In addition, we 
cannot determine what the average day difference would be for any 
individual that could be impacted. To quantify the day difference, the 
Departments would need to simultaneously analyze the current and future 
interaction between the asylum grant and EAD approvals. Doing so for 
the current system is conceptually possible with a significant devotion 
of time and resources, but it is not possible to conduct a similar 
analysis for future cases without relying on a number of assumptions 
that may not be tractable. As a result, we cannot extend the per-person 
cost (in terms of earnings) basis to an aggregate monetized cost, even 
if USCIS knew either the population impacted or the day-difference 
average because an estimate of the costs would require both data 
points. The impact accruing to labor earnings developed above has the 
potential to include both distributional effects (which are transfers) 
and indirect benefits to employers.\88\ The distributional impacts 
would accrue to asylum applicants who enter the U.S. labor force 
earlier than under current regulations, in the form of increased 
compensation (wages and benefits). A portion of this compensation gain 
might be transferred to asylum applicants from others that are 
currently in the U.S. labor force or eligible to work lawfully. 
Alternatively, employers that need workers in the U.S. labor market may 
benefit from those asylum applicants that receive their employment 
authorization earlier as a result of the proposed rule, gaining 
productivity and potential profits that the asylum applicant's earlier 
start would provide. Companies may also benefit by not incurring 
opportunity costs associated with the next-best alternative to the 
immediate labor the asylum applicant would provide, such as having to 
pay existing workers to work overtime hours, if in fact it was 
necessary or they were requested to work overtime.
---------------------------------------------------------------------------

    \88\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB, Circular A-4 at 14, 38 (Sept. 17, 2003), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (further discussion of transfer payments and distributional 
effects).
---------------------------------------------------------------------------

    We do not know what this next-best alternative may be for those 
companies. As a result, the Departments do not know the portion of 
overall impacts of this proposed rule that are transfers or benefits, 
but the Departments estimate the maximum monetized impact of this 
proposed rule in terms of a daily, per-person basis compensation. The 
extent to which the portion of impacts would accrue to benefits or 
transfers is difficult to discern and would depend on multiple labor 
market factors. However, we think it is reasonable to posit that the 
portion of impacts attributable to transfers would mainly be benefits, 
for the following reason: If there are both workers who obtain 
employment authorization under this rule and other workers who are 
available for a specific position, an employer would be expected to 
consider any two candidates to be substitutable to a high degree. There 
is an important caveat, however. There could be costs involved in 
hiring asylum seekers that are not captured in this discussion. As the 
U.S. economy recovers from the effects of the COVID-19 pandemic, there 
may be structural changes to the general labor market and to specific 
job positions that could impact the next-best alternatives that 
employers face. The Departments cannot speculate on how such changes in 
relation to the earlier labor market entry of some asylum applicants 
could

[[Page 46932]]

mitigate the beneficial impacts to employers.
    The early possible entry into the labor force of some positive-
screened credible fear asylum applicants is not expected to change the 
composition of the labor market, as it would affect only the timing, 
not the scale of the labor force. However, there may be some labor 
market impacts from asylum seekers who currently enter the labor market 
with a pending asylum application and who may no longer be entering the 
labor market under this proposed rule if they get a decision sooner on 
their asylum claim. As we cannot predict how many people would be 
impacted in such a way, we are not able to quantify this impact.
    Furthermore, there may be tax impacts for the Government. It is 
difficult to quantify income tax impacts of earlier employment in the 
tight labor market scenario because individual tax situations vary 
widely, but the Departments estimate the potential contributory effects 
on employment taxes, namely Medicare and Social Security, which have a 
combined tax rate of 7.65 percent (6.2 percent and 1.45 percent, 
respectively).\89\ With both the employee and employer paying their 
respective portion of Medicare and Social Security taxes, the total 
estimated accretion in tax transfer payments from employees and 
employers to Medicare and Social Security is 15.3 percent.\90\ The 
Departments will rely on this total tax rate where applicable. The 
Departments are unable to quantify other tax transfer payments, such as 
for Federal income taxes and State and local taxes. As noted above, the 
Departments do not know how many individuals with a positive credible 
fear determination will be affected, and what the average day-
difference would be, and therefore the Departments cannot make an 
informed monetized estimate of the potential impact. It therefore 
follows that the Departments cannot monetize the potential tax impacts 
of the proposed rule. However, the Departments can provide partial 
quantitative information by focusing on the workday earnings presented 
earlier. At the wage bounds, the workday earnings, at $136.88 and 
$314.00, are multiplied by 0.153 to obtain $20.94 and $48.04, 
respectively, with a midpoint of $34.49, which are the daily employment 
tax impacts per individual. The tax impacts per person would accrue to 
the total day-difference in earnings scaled by 0.714, to reflect a 
five-day workweek.
---------------------------------------------------------------------------

    \89\ See Internal Revenue Service Publication 15, Circular E, 
Employer's Tax Guide for Specific Information on Employment Tax 
Rates (Feb. 4, 2021), https://www.irs.gov/pub/irs-pdf/p15.pdf; see 
also Market Watch, More Than 44 Percent of Americans Pay No Federal 
Income Tax (Sept. 16, 2018), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \90\ Calculation: (6.2 percent Social Security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to Government.
---------------------------------------------------------------------------

    Having developed partial (based on an individual basis) monetized 
impacts of this proposed rule, there are two important caveats 
applicable to the population of asylum applicants who have received a 
positive credible fear determination. Foremost, as we detail 
extensively in the following module, there will be resource 
requirements and associated costs needed to make this proposed rule 
operational and effective. These changes will not occur instantaneously 
and may require months or even a year or more to fully implement. While 
existing USCIS resources will be able to effectuate changes for some 
individuals rather quickly, others (and thus the entire population from 
an average perspective) will face a time horizon in realizing the 
impacts--generally the impacts are beneficial as they include earlier 
asylum determinations, income gains, and possible filing cost-savings. 
While the time horizon would not be accounted as a cost to applicants, 
some may face a delay in realizing such benefits. Second, despite the 
possibility that some baseline EAD filers may choose not to file in the 
future, there could be mitigating effects to concomitant volume 
declines for Form I-765(c)(8) submissions.
    In closing, we have noted that the impacts developed in this 
section apply to the population that receives a positive credible fear 
determination. Additionally, for the subset of this population that 
receives a negative asylum determination from USCIS, the possibility of 
de novo review of their claim by an IJ may benefit some applicants by 
affording another opportunity for review and approval of their asylum 
claims.
ii. Impacts to USCIS
a. Total Quantified Estimated Costs of Regulatory Changes
    In this section, DHS discusses impacts to the Federal Government. 
Where possible, cost estimates have been quantified, otherwise they are 
discussed qualitatively. The total annual costs are provided only for 
those quantified costs that can be applied to a population.
Costs of Staffing to USCIS
    USCIS will need additional staffing to implement the provisions 
presented in this proposed rule. The staffing requirement will largely 
depend on the anticipated volume of credible fear referrals. In 
addition to asylum officers, USCIS will require additional supervisory 
staff, operational personnel, and organizational structures 
commensurate with the number of asylum officers needed. USCIS 
anticipates an increased need for higher-graded field adjudicators and 
supervisors to implement the provisions of this proposed rule. 
Approximately 92 percent of the field asylum officers are currently 
employed at the GS-12 pay level or lower.\91\ Under this model, USCIS 
will be assuming work normally performed by an IJ. EOIR data indicate 
the weighted average salary of $155,089 in FY 2021 for IJs, $71,925 for 
Judicial Law Clerks (``JLC''s), $58,394 for Legal Assistants, $132,132 
for DHS Attorneys, and $98.51 per hour for interpreters.\92\ Notably, 
entry-level IJs are required to adjudicate a wider array of immigration 
applications than asylum officers, and their decisions are not subject 
to 100 percent supervisory review, unlike current USCIS asylum 
officers. As such, under this proposed rule, USCIS asylum officers 
making final decisions on statutory withholding of removal and CAT 
protection cases would be at a GS-13 minimum, considering they will be 
conducting adjudications traditionally performed only by IJs.\93\ In 
addition, first-line Supervisory Asylum Officers (``SAO''s) reviewing 
these decisions would be graded at a GS-14.\94\ Currently, not all SAOs 
are at a grade GS-14. However, aligning all first-line SAOs to a GS-14 
ensures operational flexibility and makes this position consistent with 
the similar work processes and functions performed by the first-line 
Supervisory Refugee Officer position.
---------------------------------------------------------------------------

    \91\ In 2021, the base salary for a GS-12 ranges from $66,829, 
at step 1, up to $86,881, at step 10. See Office of Personnel Mgmt., 
Salary Table 2021-GS Incorporating the 1% General Schedule Increase 
Effective January 2021, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/GS.pdf (last visited 
May 17, 2021).
    \92\ Weighted average base salaries across position, FY, and 
location are drawn from DOJ EOIR PASD analysis. Interpreter wages 
are presented hourly here, as these positions are paid differently 
and not always on an annual basis. In 2021, the base salary for a 
GS-15 step 3 is $117,824 and step 4 is $121,506. See id.
    \93\ In 2021, the base salary for a GS-13 step 1 is $79,468. See 
id.
    \94\ In 2021, the base salary for a GS-14 step 1 is $93,907. See 
id.
---------------------------------------------------------------------------

    Currently, USCIS refers all credible fear determinations to IJs at 
EOIR. This

[[Page 46933]]

proposed rule continues to provide for the possibility that individuals 
who receive a negative credible fear determination may request review 
of the negative determination by an IJ at EOIR. Reviewing historical 
EOIR data on the amount of time required to complete a typical hearing 
with a credible fear origin and only an application for asylum, the 
median duration for credible fear merit plus master hearings from FY 
2016 through FY 2020 is about 97 minutes, or 1.6 hours. Factoring in 
the EOIR weighted average salaries for the IJs, JLCs, DHS Attorneys, 
and interpreters required for EOIR to complete these hearings, we 
estimate the median cost to be $470.62 \95\ per hearing over the same 
time period.
---------------------------------------------------------------------------

    \95\ Estimate based on analysis provided by EOIR on May 19, 
2021, of median digital audio recording (``DAR'') length data from 
all merit and master asylum hearings between FY 2016 and FY 2020. 
The five-year average estimated cost of hearings is based on 2,087 
assumed hours per year for the IJ, JLC, and DHS attorneys' at the 
annual salaries shown, plus the hourly cost per interpreter. These 
annual values were multiplied by the respective sums of the annual 
median lengths of master and merit hearings for corresponding years 
to produce the five-year average cost per hearing of $470.62.
---------------------------------------------------------------------------

    USCIS analyzes a range of credible fear cases to estimate staffing 
requirement costs. At a lower bound volume of 75,000 credible fear 
cases, USCIS assumes it would receive fewer credible fear cases 
compared to prior years (with the exception of FY 2020, which had a 
lower number of credible fear cases due to the COVID-19 pandemic and 
resulting border closures). A volume of 300,000 credible fear cases is 
an upper bound, based on the assumption that nearly all individuals 
apprehended will be placed into expedited removal for USCIS to process. 
As shown in Table 3, the lowest number of credible fear cases received 
within the last five years was 79,842 in FY 2017, while the highest was 
102,204 in FY 2019. DHS recognizes that the estimated volume of 300,000 
is nearly three times the highest annual number of credible fear cases 
received, but DHS presents this as an upper bound estimate to reflect 
the uncertainty concerning an operational limit to how many credible 
fear cases could be handled by the agency in the future. Inclusion of 
this unlikely upper bound scenario is intended only to present 
information concerning the potential costs should the agency consider 
an intervention at the highest end of the range. USCIS expects volumes 
to fall within the lower and upper bounds and therefore we also provide 
a primary estimate of 150,000 credible fear cases.\96\
---------------------------------------------------------------------------

    \96\ Note that the primary estimate of 150,000 is not equal to 
the average of the lower volume of 75,000 credible fear cases and 
the upper volume of 300,000 credible fear cases. Rather, this 
primary estimate, based on OCFO modeling, represents the number of 
cases that the agency may reasonably expect. The OCFO volume levels 
were developed as a guide for several possible ranges that could be 
realized in the future, taking into account variations in the 
populations. The actual volume levels could be above or below these 
levels.
---------------------------------------------------------------------------

    USCIS has estimated the staffing resources it will need to 
implement this proposed rule. At the three volume levels of credible 
fear cases, USCIS plans to hire between 794 and 4,647 total new 
positions, with a primary estimate of 2,035 total new positions.\97\ 
The estimated costs associated with payroll, non-payroll, and other 
general expenses including interpreter services, transcription 
services, facilities, physical security, information technology 
(``IT'') case management, and other contract, supplies, and equipment 
are anticipated to begin in FY 2022.
---------------------------------------------------------------------------

    \97\ Note that the primary estimate of 2,035 total new positions 
is not equal to the average of the lower 794 and upper bound 4,647 
estimates. Rather, this primary estimate, based on a staffing 
allocation model, represents the number of staff in a mix of 
occupations at a mix of grade levels that the agency may need to 
hire to handle the volume of credible fear cases. The staffing is 
commensurate with OCFO model volume levels, which were developed as 
a guide for several possible ranges that could be realized in the 
future, taking into account variations in the populations. The 
actual volume levels and hence staffing could be above or below 
these levels.
---------------------------------------------------------------------------

    In developing the quantified costs of this proposed rule, there are 
likely to be initial costs associated with the hiring and training of 
staff, and those payroll and other costs associated with the additional 
personnel would continue in future years. Additionally, as was 
explained in Section G of this preamble, DHS expects a phased approach 
to implementation due to budgetary and logistical factors. The cost 
estimates developed below focus on three volume bands and are based on 
initial data and staffing models that captured initial implementation 
costs accruing to FY 2022 and FY 2023. It therefore partially captures 
the likely phasing of resourcing and costs, but not the full phasing 
that could extend into further years. As of the final drafting of this 
proposed rule, DHS does not have the appropriate data to integrate a 
full phasing of the implementation in terms of quantified resource 
costs. However, we do not believe a partial implementation 
significantly skews the expected costs of this proposed rule. We offer 
some additional comments concerning this phasing of implementation as 
it relates to costs at the conclusion of this analysis.
    The Departments recognize that initial costs are likely to spill 
into future years depending on the pace of hiring, employee retention, 
obtaining and signing contracts (for interpreters, transcription, 
facilities), training, etc. For the remainder of FY 2021, DHS will 
finalize job descriptions, post new positions, and begin the hiring 
process to onboard some new Federal employees, and DHS will work to 
procure new contracts for interpreters, transcription, facilities, and 
security staff as its current fiscal situation allows. In FY 2022, the 
implementation costs are expected to range between $179.8 million and 
$952.4 million with a primary cost estimate of $438.2 million, assuming 
all staff is hired and corresponding equipment needs are purchased in 
the fiscal year. DHS recognizes that, operationally, it may take more 
time to attain the staffing postures described. However, we are not 
able to reliably predict those timelines due to the uncertain nature of 
the recruitment and onboarding processes. Any delay in hiring would 
reduce the first-year costs of implementation, as explained further 
below. The itemized planned resources are presented in Table 7.

           Table 7--Estimated USCIS FY 2022 Funding Requirements by Volume of Credible Fear Referrals
                                                [$ in thousands]
----------------------------------------------------------------------------------------------------------------
                                                                     75k cases      150k cases      300k cases
----------------------------------------------------------------------------------------------------------------
(A) Staffing....................................................        $140,507        $355,175        $806,697
    Payroll.....................................................         113,602         285,983         648,257
    Non-Payroll.................................................          26,905          69,192         158,440
(B) General Expenses............................................          39,313          83,025         145,682
    Interpreter Services........................................           6,615          19,136          44,179
    Transcription Services......................................           9,366          26,697          37,362

[[Page 46934]]

 
    Facilities..................................................           6,635          17,606          40,865
    Physical Security...........................................             623           1,654           3,839
    IT Case Management..........................................          12,500          12,500          12,500
    Other Contract/Supplies/Equipment...........................           3,574           5,432           6,937
                                                                 -----------------------------------------------
        Total...................................................         179,820         438,200         952,379
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis from RAIO and OCFO, May 19, 2021.

    In FY 2023, USCIS estimates costs between $164.7 million and $907.4 
million, with a primary estimate of $413.6 million, as shown in Table 
8. The reductions are mostly attributable to non-recurring, one-time 
costs for new staff and upgrades to IT case management systems, 
although a decline in costs pertaining to other contracts/supplies/
equipment is also expected. The largest expected cost decrease is for 
IT case management, which is estimated to decline from $12.5 million in 
FY 2022 down to $4.375 million in FY 2023. Meanwhile, costs for 
interpreter and transcription services, facilities, and physical 
security are expected to rise in FY 2023 to factor in resource cost 
increases. For FY 2024 through FY 2031 of implementation, DHS expects 
resource costs to stabilize.

           Table 8--Estimated USCIS FY 2023 Funding Requirements by Volume of Credible Fear Referrals
                                                [$ in thousands]
----------------------------------------------------------------------------------------------------------------
                                                                     75k cases      150k cases      300k cases
----------------------------------------------------------------------------------------------------------------
(A) Staffing....................................................        $133,427        $337,047        $766,159
    Payroll.....................................................         122,753         309,758         703,852
    Non-Payroll.................................................          10,674          27,289          62,307
(B) General Expenses............................................          31,267          76,554         141,249
    Interpreter Services........................................           6,813          19,710          45,504
    Transcription Services......................................           9,647          27,498          38,483
    Facilities..................................................           6,834          18,134          42,091
    Physical Security...........................................             642           1,704           3,954
    IT Case Management..........................................           4,375           4,375           4,375
    Other Contract/Supplies/Equipment...........................           2,956           5,133           6,842
                                                                 -----------------------------------------------
        Total...................................................         164,694         413,601         907,408
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis from RAIO and OCFO, May 19, 2021.

    To estimate the costs for each category itemized in Tables 7 and 8, 
USCIS considered the inputs for each. On average, USCIS expects to hire 
the majority of new staff at the GS-13, step 1 level, and most of those 
hired will serve as asylum officers. As stated, these officers will be 
adjudicating statutory withholding of removal and withholding and 
deferral of removal under the CAT, so their pay will be higher than the 
current asylum officer pay, which is at a GS-12 level. Additionally, 
USCIS assumes step 1 because these employees are expected to be new to 
the position. Payroll costs also include Government contributions to 
non-pay benefits, such as healthcare and retirement. While payroll is 
the greatest estimated cost to hiring staff, non-payroll costs include 
training, equipping, and setting staff up with resources such as 
laptops, cell phones, office supplies, etc. For example, asylum 
officers are required to attend and successfully complete a multi-week 
residential training at a Federal Law Enforcement Training Center 
(``FLETC'') as a condition of their continued employment. The estimated 
cost per student (including FLETC enrollment costs, travel, etc.) is 
approximately $7,000. The cost of training would apply to any new 
asylum staff with ``officer'' in their title. To fully furnish and 
equip new employees, USCIS estimates a cost of $3,319 per asylum 
employee. Costs for new equipment would be largely commensurate with 
the increase in staffing levels.
    In addition to costs associated with hiring new staff, DHS 
anticipates that it will need to both increase funding on existing 
contracts and procure new ones. As a result of this proposed rule, the 
need for interpretation services will increase as the number of asylum 
interviews USCIS performs rises. Current interpreter contracts cannot 
absorb this expected increase. Using current contracts, USCIS applied 
the current cost model to the estimated increase in case volumes in 
order to estimate costs. The facilities and physical security estimates 
were similarly based on current cost models that were expanded to 
account for additional employees. Additional contract support will also 
be needed for transcription services to create a written record of the 
asylum hearing, which staff are not currently employed by USCIS. To 
create transcription service estimates, USCIS applied EOIR's current 
cost model to the estimated increase in case volumes. DHS also 
anticipates costs associated with general expenses associated with 
miscellaneous contract, supplies, equipment, etc. commensurate with the 
increase in staff.
    The timing of these costs will depend on the hiring timeline but 
are expected to commence in the first year. DHS recognizes that if it 
takes more than one year to hire and equip asylum employees, costs may 
instead be experienced in later years.

[[Page 46935]]

Costs to Information Technology Typology to USCIS
    DHS is planning upgrades to internal management systems and 
databases as a requirement to implement this proposed rule. The 
estimated cost of these upgrades in FY 2022 is a one-time cost of $12.5 
million that will impact virtually all processing and record-keeping 
systems at USCIS. The cost embodies funds for enhancements and 
refurbishment to the USCIS Global case management system that would 
support features such as: Ensuring transition of positive credible fear 
screening cases to the hearing process currently provided for 
affirmative asylum cases, support for withholding of removal and CAT 
adjudication features, non-detained scheduling enhancements, and 
capabilities to accept and provide review for electronic documents. The 
one-time cost also includes funds earmarked for teams that support 
integrations with other internal and external-facing systems, such as 
record-keeping, identity management and matching, reporting and 
analytics, applicant-facing interfaces, and other key USCIS systems, as 
well as external systems at Immigration and Customs Enforcement 
(``ICE''), CBP, or DOJ.\98\
---------------------------------------------------------------------------

    \98\ While this plan tracks the FY 2022 time frame, variations 
in the pace of Federal and contractor hiring and retention during 
the performance period, unforeseen legal or other policy challenges 
to any electronic process, and the ability of relevant offices to 
truly operationalize minimal functionality give their own staffing 
constraints to handle manually any additional process automations, 
could delay some implementation into FY 2023.
---------------------------------------------------------------------------

    Included in these $12.5 million costs are the costs to pay staff to 
make these upgrades. DHS estimates between 30 and 40 individuals, with 
a little over half contract personnel and the rest being Federal 
employees, would be involved (either part- or full-time) in the 
implementation of these enhancements through FY 2022. The Federal 
personnel would mainly comprise GS-14 and GS-15 level personnel and 
supervisory and management staff.
    IT costs are expected to decline in FY 2023 and remain flat into 
the future at $4.375 million, which accounts for ongoing operations and 
maintenance costs. New features or upgrades are not expected at this 
time, but if they were to be needed in the future, those enhancements 
would result in additional costs not included here.
    At present, DHS does not envision new facilities or additional 
structures being required from an IT perspective to implement this 
rule.
    Importantly, this effort is expected to coincide with the first 
electronic processing of the Form I-589. Since this will be a 
significant change for processing asylum applications, unexpected 
errors or system changes could have impacts on this project as well. 
Additional dependencies rely on the availability of ICE, CBP, and DOJ 
systems to integrate with USCIS systems to provide for streamlined 
implementation. However, since this trajectory was enabled outside the 
scope of this rule, we do not attribute costs to it.
    As described earlier in this analysis, we expect no net change 
regarding biometrics collection germane to asylum applications for 
individuals with a positive credible fear determination. We also 
detailed how factors concomitant to more expeditious EAD approvals make 
it impossible to estimate the magnitude or even direction in the net 
change in Form I-765 filing volumes (related to asylum or withholding 
of removal), and hence, commensurate biometrics collections (and fee 
payments).
    However, given the parameters of this proposed rule, any net change 
in biometrics would not impose new costs to the Federal Government. The 
maximum monthly volume of biometrics submissions allowed by the current 
ASC contract is 1,633,968 and the maximum annual volume is 
19,607,616.\99\ The average number of individuals that submitted 
biometrics annually across all USCIS forms for the period FY 2016 
through FY 2020 was 3,911,857.\100\ Given that the average positive-
screened credible fear population is 59,280 (Table 3), which is 1.52 
percent of the biometrics volume, a volume change would not encroach on 
these bounds.
---------------------------------------------------------------------------

    \99\ Data and information provided by the USCIS IRIS 
Directorate. The average annual biometrics volumes were obtained 
through the CPMS database. The cost contract reflects the most 
recent contract update, dated June 18, 2020.
    \100\ Data and information provided by USCIS IRIS Directorate, 
utilizing the CPMS database.
---------------------------------------------------------------------------

    One scenario that we do account for relates to costs for a 
particular USCIS-ASC district. The DHS-ASC contract was designed to be 
flexible to reflect variations in benefit request volumes. The pricing 
mechanism within this contract embodies such flexibility. Specifically, 
the ASC contract is aggregated by USCIS district, and each district has 
five volume bands with its pricing mechanism. The incumbent pricing 
strategy takes advantage of economies of scale because larger 
biometrics processing volumes have smaller corresponding biometrics 
processing prices.\101\ For example, Table 9 provides an example of the 
pricing mechanism for a particular USCIS district. This district incurs 
a monthly fixed cost of $25,477.79, which will cover all biometrics 
submissions under a volume of 8,564. However, the price per biometrics 
submission decreases from an average cost of $6.66 for volumes between 
a range of 8,565 and 20,524 to an average of $5.19 once the total 
monthly volume exceeds 63,503. In other words, the average cost 
decreases when the biometrics submissions volume increases (jumps to a 
higher volume band).
---------------------------------------------------------------------------

    \101\ Economies of scale is a technical term that is used to 
describe the process whereby the greater the quantity of output 
produced (in this case more biometric service appointments), the 
lower the per-unit fixed cost or per-unit variable costs to produce 
that output.

      Table 9--Example of Pricing Mechanism for a USCIS District Processing Biometrics Appointments, FY 2021
----------------------------------------------------------------------------------------------------------------
             District X                      Volume band          Minimum volume  Maximum volume       Costs
----------------------------------------------------------------------------------------------------------------
Baseline: Fixed price per month....  AA.........................               0           8,564      $25,477.79
Fixed price per person processed...  AB.........................           8,565          20,524            6.66
Fixed price per person processed...  AC.........................          20,525          31,752            5.94
Fixed price per person processed...  AD.........................          31,753          63,504            5.53
Fixed price per person processed...  AE.........................          63,505          95,256            5.19
----------------------------------------------------------------------------------------------------------------
Source: USCIS, IRIS Directorate, received May 10, 2021.

    At the district level, since there are small marginal changes to 
costs in terms of volumes, it would take a substantial change in 
volumes for a particular district to mount a significant change in 
costs for that district. If biometrics

[[Page 46936]]

volumes increase on net, there could be small marginal, and hence, 
average, cost declines; in contrast, if volumes decline, some of those 
marginal costs could not be realized.
    Having developed the costs to USCIS to implement the proposed rule, 
this section brings the total costs together as annual inputs that are 
discounted over a 10-year horizon. At the three population bounds, the 
inputs are captured in Table 10. The FY 2022 and FY 2023 costs are from 
Tables 7 and 8. For FY 2024 through FY 2031, human resources cost 
increases. As stated earlier, USCIS expects positions to be filled at 
step 1 for each GS level, so in years where employees remain at the 
same step for more than one year, these estimates account only for 
human resource cost increases (FYs 2026, 2028 and 2030). The general 
non-IT cost increases account for expected contract pricing increases. 
Finally, IT costs are expected to remain flat at $4.375 million into 
the future, which accounts for ongoing operations and maintenance 
costs.

                             Table 10--Monetized Costs of the Proposed Rule to USCIS
                                         [In undiscounted 2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                           Time Period: FYs 2022-2031
-----------------------------------------------------------------------------------------------------------------
                                                               General (non-
                     FY                      Human resources      IT) cost      IT expenditure    Annual total
----------------------------------------------------------------------------------------------------------------
                                 10A. Lower Population Bound (75k Annual Cases)
----------------------------------------------------------------------------------------------------------------
2022.......................................     $140,507,000      $26,813,000      $12,500,000      $179,820,000
2023.......................................      133,427,000       26,892,000        4,375,000       164,694,000
2024.......................................      137,429,810       27,698,760        4,375,000       169,503,570
2025.......................................      141,552,704       28,529,723        4,375,000       174,457,427
2026.......................................      142,968,231       29,385,614        4,375,000       176,728,846
2027.......................................      147,257,278       30,267,183        4,375,000       181,899,461
2028.......................................      148,729,851       31,175,198        4,375,000       184,280,049
2029.......................................      153,191,747       32,110,454        4,375,000       189,677,201
2030.......................................      154,723,664       33,073,768        4,375,000       192,172,432
2031.......................................      159,365,374       34,065,981        4,375,000       197,806,355
                                            --------------------------------------------------------------------
    10-year total..........................    1,459,152,660      300,011,682       51,875,000     1,811,039,342
----------------------------------------------------------------------------------------------------------------
                                10B. Primary Population Bound (150k Annual Cases)
----------------------------------------------------------------------------------------------------------------
2022.......................................      355,175,000       70,525,000       12,500,000       438,200,000
2023.......................................      337,047,000       72,179,000        4,375,000       413,601,000
2024.......................................      347,832,504       74,344,370        4,375,000       426,551,874
2025.......................................      358,963,144       76,574,701        4,375,000       439,912,845
2026.......................................      362,552,776       78,871,942        4,375,000       445,799,718
2027.......................................      374,154,464       81,238,100        4,375,000       459,767,565
2028.......................................      377,896,009       83,675,243        4,375,000       465,946,252
2029.......................................      389,988,681       86,185,501        4,375,000       480,549,182
2030.......................................      393,888,568       88,771,066        4,375,000       487,034,634
2031.......................................      406,493,002       91,434,198        4,375,000       502,302,200
                                            --------------------------------------------------------------------
    10-year total..........................    3,703,991,149      803,799,121       51,875,000     4,559,665,270
----------------------------------------------------------------------------------------------------------------
                                 10C. High Population Bound (300k Annual Cases)
----------------------------------------------------------------------------------------------------------------
 
2022.......................................      806,697,000      133,182,000       12,500,000       952,379,000
2023.......................................      766,159,000      136,874,000        4,375,000       907,408,000
2024.......................................      793,740,724      140,980,220        4,375,000       939,095,944
2025.......................................      822,315,390      145,209,627        4,375,000       971,900,017
2026.......................................      830,538,544      149,565,915        4,375,000       984,479,459
2027.......................................      860,437,932      154,052,893        4,375,000     1,018,865,824
2028.......................................      869,042,311      158,674,480        4,375,000     1,032,091,791
2029.......................................      900,327,834      163,434,714        4,375,000     1,068,137,548
2030.......................................      909,331,112      168,337,755        4,375,000     1,082,043,868
2031.......................................      942,067,032      173,387,888        4,375,000     1,119,829,921
                                            --------------------------------------------------------------------
    10-year total..........................    8,500,656,879    1,523,699,492       51,875,000    10,076,231,371
----------------------------------------------------------------------------------------------------------------

    The totals reported in Table 10 are collated in Table 11, with the 
10-year discounted present values, each at a 3 percent and 7 percent 
discount rate. It is noted that since the cost inputs differ yearly, 
the average annualized equivalence costs are not uniform across 
discount rates.

[[Page 46937]]



                                                     Table 11--Monetized Costs of the Proposed Rule
                                                               [In millions, 2020 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Undiscounted               3-Percent                          7-Percent
                         Population Level                          -------------------------------------------------------------------------------------
                                                                     10-Year cost    10-Year cost    Annualized cost    10-Year cost    Annualized cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low...............................................................        $1,811.0        $1,538.8             $180.4        $1,260.8             $179.5
Primary...........................................................         4,559.7         3,871.3              453.8         3,168.9              451.2
High..............................................................        10,076.2         8,550.3            1,002.4         6,993.7              995.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As discussed in Section G of this preamble, and alluded to above, 
DHS expects this proposed rule to be implemented in phases. Our 
quantitative cost estimates are based on the assumption that the 
funding for the proposed rule is essentially available when the 
proposed rule takes effect, and that implementation costs are spread 
out over several years due to timing effects related to operational and 
hiring impacts. In reality, the effect of budgeting constraints and 
variations is expected to play a prominent role in the phasing in of 
the program. Our estimates thus account partially but not fully for 
such phasing. Incorporating additional phasing into resource allocation 
models is complex because of the interaction between initial and 
recurring costs, and DHS is not prepared at this time to attempt to 
fully phase in the costs quantitatively. Despite this limitation, we do 
not believe that the true costs would be significantly different than 
those presented above. A phased implementation would not skew the 
actual costs, but rather allocate them to different timing sequences. 
In fact, from a discounting perspective the present value of the costs 
would actually be lower if they were allocated to future years. DHS 
will continue to evaluate all pertinent data and information related to 
the phasing approach, and if tractable, may include refined estimates 
of the resource-related costs in the final rule.
    DHS welcomes public comment on the phasing of costs and provides 
some additional, preliminary information here to supplement the cost 
data presented above. As of the final drafting of this proposed rule, 
DHS believes that through FY 2022 new staff positions can be funded 
with existing resources, which would support a minimum processing level 
of 50,000 annual family-unit cases. For the medium and high-volume 
bands of 150,000 and 300,000 annual cases, respectfully, DHS does not 
believe it can meet the full staffing requirements with current 
funding. Based on preliminary modelling, it could take up to three 
years to fully staff the medium-volume band and up to five years to 
staff the high-volume band.
    If the medium- and high-volume bands of 150,000 and 300,000 were to 
be funded through a future fee rule, it would increase fees by an 
estimated weighted average of 13 percent and 26 percent respectively. 
This estimated increase would be attributable to the implementation of 
the asylum officer portions of the proposed rule only, and it is 
provided to show the magnitude of the impact that implementation of 
this proposed rule would have in addition to other increases in a 
future fee rule. The 13 percent or 26 percent estimated weighted 
average increase would be in addition to any changes in the IEFA non-
premium budget.
b. Intra-Federal Government Sector Impacts
    This proposed rule is expected to shift the initial case processing 
of some asylum and protection claims from EOIR to USCIS. We present 
this shift in case processing as new resource costs to USCIS since new 
staff would be employed, new IT expenditures acquired, etc. There will 
be new resource costs to the economy. The IJs at EOIR will continue to 
remain at DOJ and work on other priority matters not related to the 
high volume of asylum and protection claims processed through expedited 
removal. Some IJs are expected to continue to work on these claims 
through the do novo review process for appeals from the denial of 
asylum claims. Cases in which USCIS grants all relief under the 
proposed rule, however, would not receive further administrative 
review. Accordingly, every case granted relief or protection by USCIS 
would constitute a direct reduction in new cases that EOIR would have 
to adjudicate. Given EOIR's significant pending caseload of 
approximately 1.3 million cases, reducing the number of cases referred 
to EOIR by 11,250 to 45,000 will enable EOIR to focus its resources on 
addressing existing pending cases and reducing the growth of the 
overall pending caseload. A reduction in the pending case load may 
reduce the overall time required for adjudications since dockets would 
not have to be set as far into the future. This in turn will better 
enable EOIR to meet its mission of fairly, expeditiously, and uniformly 
interpreting and administering the Nation's immigration laws, including 
granting relief or protection to noncitizens who qualify.
iii. Familiarization Costs, Benefits, and Transfers of Possible Early 
Labor Market Entry
    It is likely that there will be familiarization costs associated 
with this proposed rule. It is expected that applicants and their 
support network will incur costs to read and develop an understanding 
of this proposed rule and the associated changes in process. If, for 
example, attorneys are utilized, the cost could be $101.07 \102\ per 
hour, which is the average hourly wage for lawyers including the full 
cost of benefits.
---------------------------------------------------------------------------

    \102\ The average wage for lawyers is provided by the Department 
of Labor. See U.S. Dep't of Labor BLS, May 2021 National 
Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited May 13, 2021). 
Calculation: Average hourly wage for lawyers $69.70 x benefits 
burden of 1.45 = $101.07 (rounded).
---------------------------------------------------------------------------

    The proposed rule offers other benefits to asylum applicants and 
the Government. Although we cannot parse out the transfer and costs 
portions explicitly, we believe that most of the distributional effects 
will comprise transfers that are beneficial to the asylum seekers 
(which we calculated on a per-person, workday basis), as opposed to 
costs. These transfers may impact the support network of the 
applicants. This network could include public and private entities, and 
it may comprise family and personal friends, legal services providers 
and advisors, religious and charity organizations, State and local 
public institutions, educational providers, and non-governmental 
organizations. To the extent that some applicants may be able to earn 
income earlier, burdens to this support network may be lessened. 
However, as described above, it will take time for USCIS to make the 
requisite resourcing and staffing changes needed to fully effectuate 
the changes under which the impacts could

[[Page 46938]]

be realized. In other words, there is likely to be a time horizon 
ranging from several months to more than a year for a sizeable portion 
of the impacts to begin to be realized. As a result, resources and 
efforts related to the applicants' support network can be expected to 
be maintained in the short to medium term.
    In addition to the likely pecuniary benefits associated with early 
labor force entry, there could be other benefits as well. As a result 
of this proposed rule, DHS will begin to consider parole on a case-by-
case basis for noncitizens who have been referred to USCIS for a 
credible fear screening under an expanded set of factors. Allowing for 
parole to be considered for more individuals in government custody 
could also provide resource redistribution to DHS in terms of shifting 
resources otherwise dedicated to the transportation and detention of 
these individuals and families. This will allow DHS to prioritize use 
of its limited detention bed space to detain those noncitizens who pose 
the greatest threats to national security and public safety, while 
facilitating the expanded use of the expedited removal process to order 
the removal of those who make no fear claim or who express a fear but 
subsequently fail to meet the credible fear screening standard after 
interview by an asylum officer (or, if applicable, by an IJ). However, 
DHS does not know how many future referrals for a credible fear 
screening will be eligible for parole; therefore, DHS cannot make an 
informed monetized estimate of the potential impact.
    This proposed rule presents substantial costs for USCIS, especially 
as costs are expended to upgrade IT systems and begin hiring and 
training new staff. However, there are several expected qualitative 
benefits associated with the increased efficiency that would enable 
some asylum-seeking individuals claiming credible fear to move through 
the asylum process more expeditiously than through the current process. 
Under current timelines, it takes anywhere from eight months to five 
years for individuals claiming credible fear to reach a final asylum 
determination, whereas this proposed rule is expected to take 90 days 
in most cases for the initial determination, assuming no further review 
is sought. Greater efficiencies in the adjudicative process could lead 
to individuals spending less time in detention, which is a benefit to 
both the individuals and the Federal Government. Another benefit is 
that EOIR will not see the cases in which USCIS grants asylum, which we 
estimate as at least a 15 percent reduction in their overall credible 
fear workload.\103\ DHS anticipates this will help to mitigate the 
number of cases pending in immigration court. Additionally, this 
benefit will extend to individuals granted or denied asylum faster than 
if they were to go through the current process with EOIR. For those 
credible fear cases that receive a positive screen but a denial of 
their asylum claim, USCIS recognizes that only certain cases seeking 
further review will reach EOIR. Therefore, the benefit to EOIR through 
this process could be greater than we are able to currently quantify.
---------------------------------------------------------------------------

    \103\ Based on the five-year (FY 2016 through FY 2020) average, 
an estimated 15 percent of EOIR asylum claims were granted asylum in 
cases originating with a credible fear claim. See EOIR Adjudications 
Statistics: Asylum Decision and Filing Rates in Cases Originating 
with a Credible Fear Claim (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1062976/download (last visited Aug. 4, 2021).
---------------------------------------------------------------------------

    Given EOIR's significant pending caseload, the reduction of 
credible fear cases it would process would enable EOIR to focus its 
resources on addressing existing pending cases and reducing the growth 
of the overall pending caseload. It would also allow EOIR to shift some 
resources to other work. We cannot currently make a one-to-one 
comparison between the work-time actually spent on a credible fear case 
between EOIR judges and USCIS asylum officers, but if there is a 
reduction in average work-times spent on cases, there could be cost 
savings to EOIR, though it is emphasized that these cost-savings would 
not be budgetary. The Departments welcome public comment on this topic 
and will integrate additional information into the final rule, as 
appropriate.
    Further, this proposed rule may stop adding to the existing volumes 
for Form I-765 for pending asylum applicants. As explained above, if 
some individuals are granted asylum earlier than they would under 
current conditions, some applicants in this process may choose not to 
file for an EAD. This could result in cost savings to applicants, as 
discussed, and it would also reduce USCIS's adjudication burden.
    Assuming DHS places those noncitizens into expedited removal 
proceedings, the Departments assess that it will be more likely that 
they would receive a more prompt adjudication of their claims for 
asylum, withholding of removal, or CAT protection than they would under 
the existing regulations. Depending on the individual circumstances of 
each case, this proposed rule could mean that such noncitizens would 
likely not remain in the United States--for years, potentially--pending 
resolution of their claims, and those who qualify for asylum will be 
granted asylum several years earlier than they are under the present 
process.
    Overall, the anticipated operational efficiencies from this 
proposed rule may provide for a more prompt grant of protection to 
qualifying noncitizens and ensure that those who do not qualify for 
relief or protection are removed more efficiently than they are under 
current rules. Considering both quantifiable and unquantifiable 
benefits and costs, the Departments believe that the aggregate benefits 
of the rule would amply justify the aggregate costs.

I. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (``RFA''), as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996, requires 
Federal agencies to consider the potential impact of regulations on 
small businesses, small governmental jurisdictions, and small 
organizations during the development of their rules. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The proposed rule does not directly regulate small entities and is 
not expected to have a direct effect on small entities. Rather, this 
proposed rule regulates individuals, and individuals are not defined as 
``small entities'' by the RFA.\104\ While some employers could 
experience costs or transfer effects, these impacts would be indirect. 
Based on the evidence presented in this analysis and throughout this 
preamble, DHS certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
DHS nonetheless welcomes comments regarding potential impacts on small 
entities, which DHS may consider as appropriate in a final rule.
---------------------------------------------------------------------------

    \104\ See Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 
601 note). A small business is defined as any independently owned 
and operated business not dominant in its field that qualifies as a 
small business per the Small Business Act. See 15 U.S.C. 632(a)(1).
---------------------------------------------------------------------------

J. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal

[[Page 46939]]

agency to prepare a written statement assessing the effects of any 
Federal mandate in a proposed rule, or final rule for which the agency 
published a proposed rule that includes any Federal mandate that may 
result in $100 million or more expenditure (adjusted annually for 
inflation) in any one year by State, local, and Tribal governments, in 
the aggregate, or by the private sector.
    While this proposed rule is expected to exceed the $100 million 
expenditure in any 1 year when adjusted for inflation ($169.8 million 
in 2020 dollars based on the Consumer Price Index for All Urban 
Consumers (``CPI-U'')),\105\ the Departments do not believe this 
proposed rule would impose any unfunded Federal mandates on State, 
local, and Tribal governments, in the aggregate, or on the private 
sector. The impacts are likely to apply to individuals, potentially in 
the form of beneficial distributional effects and cost savings. There 
could be tax impacts related to the distributional effects. However, 
these do not constitute mandates. Further, the real resource costs 
quantified in this analysis apply to the Federal Government and also 
are not mandates. Therefore, the Departments have not prepared a 
written statement.
---------------------------------------------------------------------------

    \105\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf (last visited May 5, 2021).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the most recent current year 
available (2020); (2) Subtract reference year CPI-U from current 
year CPI-U; (3) Divide the difference of the reference year CPI-U 
and current year CPI-U by the reference year CPI-U; (4) Multiply by 
100 = [(Average monthly CPI-U for 2020-Average monthly CPI-U for 
1995)/(Average monthly CPI-U for 1995)] * 100 = [(258.811-152.383)/
152.383] * 100 = (106.428/152.383) *100 = 0.6984 * 100 = 69.84 
percent = 69.8 percent (rounded).
    Calculation of inflation-adjusted value: $100 million in 1995 
dollars * 1.698 = $169.8 million in 2020 dollars.
---------------------------------------------------------------------------

K. Congressional Review Act

    The Administrator of the Office of Information and Regulatory 
Affairs has determined that this proposed rule is a ``major rule'' 
within the meaning of Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (also known as the Congressional 
Review Act), 5 U.S.C. 804(2). Accordingly, it is expected that this 
rule, if enacted as a final rule, would be effective 60 days after the 
final rule's publication.

L. Executive Order 13132 (Federalism)

    This proposed rule would 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 proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

M. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

N. Family Assessment

    The Departments have assessed this proposed action in accordance 
with section 654 of the Treasury General Appropriations Act, 1999, 
Public Law 105-277, Div. A. With respect to the criteria specified in 
section 654(c), the Departments determined that the proposed rule would 
not have any adverse impacts on family safety or stability. The 
proposed rule would allow families seeking asylum the possibility of 
parole from custody, thereby helping preserve family unity and safety 
given the COVID-19 pandemic. Additionally, this proposed rule would 
result in greater efficiencies in the expedited removal and asylum 
processes, providing speedier resolution of meritorious cases, and 
reducing the overall asylum system backlogs.

O. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This proposed rule would not have Tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

P. National Environmental Policy Act

    The Departments analyze actions to determine whether the National 
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4321 through 
4347 (``NEPA''), applies to them and, if so, what degree of analysis is 
required. See DHS, Implementing the National Environmental Policy Act 
(Directive 023-01, issued Oct. 31, 2014, and Instruction Manual, issued 
Nov. 6, 2014), https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex. Both the DHS 
Directive 023-01 and the Instruction Manual establish the policies and 
procedures that DHS and its components use to comply with NEPA and the 
Council on Environmental Quality (``CEQ'') regulations for implementing 
NEPA, 40 CFR parts 1500 through 1508.
    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement. 40 CFR 
1501.4, 1507.3(e)(2)(ii). The DHS categorical exclusions are listed in 
Appendix A of the Instruction Manual. For an action to be categorically 
excluded, it must satisfy each of the following three conditions: (1) 
The entire action clearly fits within one or more of the categorical 
exclusions; (2) the action is not a piece of a larger action; and (3) 
no extraordinary circumstances exist that create the potential for a 
significant environmental effect.\106\
---------------------------------------------------------------------------

    \106\ Instruction Manual section V.B(2)(a)-(c).
---------------------------------------------------------------------------

    As discussed in more detail throughout this proposed rule, the 
Departments are proposing to modify the expedited removal process, 
specifically for those who are found to have a positive credible fear. 
The proposed rule could result in an increase in the number of 
noncitizens in expedited removal paroled out of custody, thereby 
possibly allowing for efficient processing or prioritizing use of DHS's 
limited detention bed space to detain those noncitizens who pose the 
greatest threats to national security and public safety.
    Generally, the Departments believe NEPA does not apply to a rule 
intended to change a discrete aspect of an immigration program because 
any attempt to analyze its potential impacts would be largely, if not 
completely, speculative. This proposed rule would not alter any 
eligibility criteria, but rather would change certain procedures, 
specifically, which Federal agency adjudicates certain asylum claims. 
The proposed rule also would not make any changes to detention 
facilities. Rather, the detention facilities are already in existence 
and to attempt to calculate how many noncitizens would be paroled--a 
highly discretionary benefit--and how many would proceed to the 
detention centers would be near impossible to determine. The 
Departments have no reason to believe that these amendments would 
change

[[Page 46940]]

the environmental effect, if any, of the existing regulations.
    Therefore, the Departments have determined that, even if NEPA 
applied to this action, this proposed rule clearly fits within 
categorical exclusion A3(d) in the Instruction Manual, which provides 
an exclusion for ``promulgation of rules . . . that amend an existing 
regulation without changing its environmental effect.'' Furthermore, 
the Departments have determined that this proposed rule clearly fits 
within the categorical exclusion A3(a) in the Instruction Manual 
because the proposed rule is of a strictly administrative or procedural 
nature. This proposed rule is not a part of a larger action and 
presents no extraordinary circumstances creating the potential for 
significant environmental effects. Therefore, this proposed rule is 
categorically excluded and no further NEPA analysis is required.

Q. Paperwork Reduction Act

USCIS Form I-765
    Under the Paperwork Reduction Act (``PRA''), Public Law 104-13, 109 
Stat. 163 (1995), all agencies are required to submit to OMB, for 
review and approval, any reporting requirements inherent in a rule.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0040 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of IT (e.g., permitting electronic submission of 
responses).
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-765; I-765WS; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. USCIS 
uses Form I-765 to collect information needed to determine if a 
noncitizen is eligible for an initial EAD, a new replacement EAD, or a 
subsequent EAD upon the expiration of a previous EAD under the same 
eligibility category. Noncitizens in many immigration statuses are 
required to possess an EAD as evidence of employment authorization. 
USCIS is proposing to revise the form instructions to correspond with 
revisions related to information about the asylum application and USCIS 
grants of withholding of removal.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-765 paper 
filing is 2,179,494, and the estimated hour burden per response is 4.5 
hours; the estimated total number of respondents for the information 
collection I-765 online filing is 106,506, and the estimated hour 
burden per response is 4 hours; the estimated total number of 
respondents for the information collection I-765WS is 302,000, and the 
estimated hour burden per response is 0.5 hours; the estimated total 
number of respondents for the information collection biometrics 
submission is 302,535, and the estimated hour burden per response is 
1.17 hours; the estimated total number of respondents for the 
information collection passport photos is 2,286,000, and the estimated 
hour burden per response is 0.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 11,881,713 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $400,895,820.

List of Subjects

8 CFR Part 208

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

8 CFR Part 235

    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.

8 CFR Part 1235

    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 proposes to amend 8 CFR parts 208 and 
235 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.

0
2. Amend Sec.  208.2 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing the word ``or'' at the end of paragraph (c)(1)(vii);
0
c. Removing the period at the end of paragraph (c)(1)(viii) and adding 
``; or'' in its place;
0
d. Removing and reserving paragraph (c)(1)(ix);
0
e. Adding paragraph (c)(1)(x); and

[[Page 46941]]

0
f. In paragraph (c)(3)(i):
0
i. Adding the words ``and in 8 CFR 1003.48'' after the words ``Except 
as provided in this section''; and
0
ii. Removing ``paragraph (c)(1) or (c)(2)'' and adding ``paragraph 
(c)(1) or (2)'' in its place.
    The revisions and addition read as follows:


Sec.  208.2  Jurisdiction.

    (a) Jurisdiction of U.S. Citizenship and Immigration Services 
(USCIS). (1) Except as provided in paragraph (b) or (c) of this 
section, USCIS shall have initial jurisdiction over:
    (i) An asylum application filed by an alien physically present in 
the United States or seeking admission at a port-of-entry; and
    (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii) 
of the Act to further consider the application for asylum of an alien, 
other than a stowaway, found to have a credible fear of persecution or 
torture in accordance with Sec.  208.30(f) and retained by USCIS, or 
referred to USCIS by an immigration judge pursuant to 8 CFR 1003.42 and 
1208.30 after the immigration judge has vacated a negative credible 
fear determination. Hearings to further consider applications for 
asylum under this paragraph (a)(1)(ii) are governed by the procedures 
provided for under Sec.  208.9. Further consideration of an asylum 
application filed by a stowaway who has received a positive credible 
fear determination will be under the jurisdiction of an immigration 
judge pursuant to paragraph (c) of this section.
    (2) USCIS shall also have initial jurisdiction over credible fear 
determinations under Sec.  208.30 and reasonable fear determinations 
under Sec.  208.31.
    (b) Jurisdiction of Immigration Court in general. Immigration 
judges shall have exclusive jurisdiction over asylum applications filed 
by aliens who have been served a Form I-221, Order to Show Cause; Form 
I-122, Notice to Applicant for Admission Detained for a Hearing before 
an Immigration Judge; or Form I-862, Notice to Appear, after the 
charging document has been filed with the Immigration Court. 
Immigration judges shall also have jurisdiction over any asylum 
applications filed prior to April 1, 1997, by alien crewmembers who 
have remained in the United States longer than authorized, by 
applicants for admission under the Visa Waiver Pilot Program, and by 
aliens who have been admitted to the United States under the Visa 
Waiver Pilot Program. Immigration judges shall also have the authority 
to review credible fear determinations referred to the Immigration 
Court under Sec.  208.30, reasonable fear determinations referred to 
the Immigration Court under Sec.  208.31, and asylum officers' denials 
of applications, under Sec.  208.14(c)(5), referred to the Immigration 
Court for review under 8 CFR 1003.48.
    (c) * * *
    (1) * * *
    (x) An alien referred for proceedings under 8 CFR 1003.48 on or 
after [effective date of final rule].
* * * * *
0
3. Amend Sec.  208.3 by revising paragraphs (a) and (c)(3) to read as 
follows:


Sec.  208.3  Form of application.

    (a)(1) Except for applicants described in paragraph (a)(2) of this 
section, an asylum applicant must file Form I-589, Application for 
Asylum and for Withholding of Removal, together with any additional 
supporting evidence in accordance with the instructions on the form. 
The applicant's spouse and children shall be listed on the application 
and may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 
must be submitted for each dependent included in the principal's 
application.
    (2) For asylum applicants, other than stowaways, who are awaiting 
further consideration of an asylum application pursuant to section 
235(b)(1)(B)(ii) of the Act following a positive credible fear 
determination, the written record of a positive credible fear finding 
issued in accordance with Sec.  208.30(f) or 8 CFR 1003.42 or 1208.30 
satisfies the application filing requirements in paragraph (a)(1) of 
this section and Sec.  208.4(b) for purposes of consideration by USCIS 
pursuant to the jurisdiction provided at Sec.  208.2(a)(1)(ii). The 
written record of the positive credible fear determination shall be 
considered a complete asylum application for purposes of Sec. Sec.  
208.4(a), 208.7, and 208.9(a); shall not be subject to the requirements 
of 8 CFR 103.2; and shall be subject to the conditions and consequences 
in paragraph (c) of this section upon signature at the asylum hearing. 
The date that the positive credible fear determination is served on the 
alien shall be considered the date of filing and receipt. Application 
information collected electronically will be preserved in its native 
format. The applicant's spouse and children may be included in the 
request for asylum only if they were included in the credible fear 
determination pursuant to Sec.  208.30(c), or also presently have an 
application for asylum pending adjudication with USCIS pursuant to 
Sec.  208.2(a)(1)(ii). The asylum applicant may subsequently amend, 
correct, or supplement the information collected during the expedited 
removal process, including the process that concluded with a positive 
credible fear determination, provided the information is submitted 
directly to the asylum office no later than 7 calendar days prior to 
the scheduled asylum hearing, or for documents submitted by mail, 
postmarked no later than 10 days prior to the scheduled asylum hearing. 
As a matter of discretion, the asylum officer may consider amendments 
or supplements submitted after the 7- or 10-day (depending on the 
method of submission) deadline or may grant the applicant a brief 
extension of time during which the applicant may submit additional 
evidence. The biometrics captured during expedited removal for the 
principal applicant and any dependents may be used to verify identity 
and for criminal and other background checks for purposes of an asylum 
application under the jurisdiction of USCIS pursuant to Sec.  
208.2(a)(1) and any subsequent immigration benefit.
* * * * *
    (c) * * *
    (3) An asylum application under paragraph (a)(1) of this section 
must be properly filed in accordance with 8 CFR part 103 and the filing 
instructions. Receipt of a properly filed asylum application under 
paragraph (a) of this section will commence the period after which the 
applicant may file an application for employment authorization in 
accordance with Sec.  208.7 and 8 CFR 274a.12 and 274a.13.
* * * * *
0
4. Amend Sec.  208.4 by revising paragraph (c) to read as follows:


Sec.  208.4  Filing the application.

* * * * *
    (c) Amending an application after filing. Upon the request of the 
alien, and as a matter of discretion, the asylum officer or immigration 
judge with jurisdiction may permit an asylum applicant to amend or 
supplement the application filed under Sec.  208.3(a)(1). Any delay in 
adjudication or in proceedings caused by a request to amend or 
supplement the application will be treated as a delay caused by the 
applicant for purposes of Sec.  208.7 and 8 CFR 274a.12(c)(8).
0
5. Amend Sec.  208.9 by revising and republishing the section heading 
and paragraphs (a) through (g) to read as follows:

[[Page 46942]]

Sec.  208.9  Procedure for interview or hearing before an asylum 
officer.

    (a) Claims adjudicated. USCIS shall adjudicate the claim of each 
asylum applicant whose application is complete within the meaning of 
Sec.  208.3(a)(2) or (c)(3), when applicable, and is within the 
jurisdiction of USCIS pursuant to Sec.  208.2(a).
    (b) Conduct and purpose of interview or hearing. The asylum officer 
shall conduct the interview or hearing in a nonadversarial manner and, 
except at the request of the applicant, separate and apart from the 
general public. The purpose of the interview or hearing shall be to 
elicit all relevant and useful information bearing on the applicant's 
eligibility for asylum. At the time of the interview or hearing, the 
applicant must provide complete information regarding his or her 
identity, including name, date and place of birth, and nationality, and 
may be required to register this identity. The applicant may have 
counsel or a representative present, may present witnesses, and may 
submit affidavits of witnesses and other evidence.
    (c) Authority of asylum officer. The asylum officer shall have 
authority to administer oaths, verify the identity of the applicant 
(including through the use of electronic means), verify the identity of 
any interpreter, present evidence, receive evidence, and question the 
applicant and any witnesses.
    (d) Completion of the interview or hearing. Upon completion of the 
interview or hearing before an asylum officer:
    (1) The applicant or the applicant's representative will have an 
opportunity to make a statement or comment on the evidence presented. 
The representative will also have the opportunity to ask follow-up 
questions.
    (2) USCIS will inform the applicant that he or she must appear in 
person to receive and to acknowledge receipt of the decision of the 
asylum officer and any other accompanying material at a time and place 
designated by the asylum officer, except as otherwise provided by the 
asylum officer. An applicant's failure to appear to receive and 
acknowledge receipt of the decision will be treated as delay caused by 
the applicant for purposes of Sec.  208.7.
    (e) Extensions. The asylum officer will consider evidence submitted 
by the applicant together with his or her asylum application. For 
applications being considered under Sec.  208.2(a)(1)(i), the applicant 
must submit any documentary evidence at least 14 calendar days in 
advance of the interview date. As a matter of discretion, the asylum 
officer may consider evidence submitted within the 14-day period prior 
to the interview date or may grant the applicant a brief extension of 
time during which the applicant may submit additional evidence. Any 
such extension will be treated as a delay caused by the applicant for 
purposes of Sec.  208.7.
    (f) Record. (1) The asylum application, all supporting information 
provided by the applicant, any comments submitted by the Department of 
State or by DHS, and any other information considered by the asylum 
officer in the written decision shall comprise the record.
    (2) For hearings on asylum applications within the jurisdiction of 
USCIS pursuant to Sec.  208.2(a)(1)(ii), the record shall also include 
a verbatim audio or video recording of the hearing, except for 
statements made off the record with the permission of the asylum 
officer. A transcript of the interview will be included in the referral 
package to the immigration judge as described in Sec.  208.14(c)(5).
    (g) Interpreters. (1) Except as provided in paragraph (g)(2) of 
this section, an applicant unable to proceed with the interview in 
English must provide, at no expense to USCIS, a competent interpreter 
fluent in both English and the applicant's native language or any other 
language in which the applicant is fluent. The interpreter must be at 
least 18 years of age. Neither the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, nor a representative or employee of the applicant's country of 
nationality, or if stateless, country of last habitual residence, may 
serve as the applicant's interpreter. Failure without good cause to 
comply with this paragraph may be considered a failure to appear for 
the interview for purposes of Sec.  208.10.
    (2) Notwithstanding paragraph (h) of this section, for asylum 
applications retained by USCIS for further consideration pursuant to 
Sec.  208.30(f) or 8 CFR 1003.42 or 1208.30, if the applicant is unable 
to proceed effectively in English, the asylum officer shall arrange for 
the assistance of an interpreter in conducting the hearing. The 
interpreter must be at least 18 years of age. Neither the applicant's 
attorney or representative of record, a witness testifying on the 
applicant's behalf, nor a representative or employee of the applicant's 
country of nationality, or if stateless, country of last habitual 
residence, may serve as the applicant's interpreter.
* * * * *
0
6. Revise Sec.  208.10 to read as follows:


Sec.  208.10  Failure to appear for an interview or hearing before an 
asylum officer or for a biometrics services appointment for the asylum 
application.

    (a) Failure to appear for an asylum interview or hearing, or for a 
biometrics services appointment. (1) The failure to appear for an 
asylum interview or hearing, or for a biometrics services appointment, 
may result in one or more of the following actions:
    (i) Waiver of the right to an interview or adjudication by an 
asylum officer;
    (ii) Dismissal of the application for asylum;
    (iii) Referral of the applicant to the Immigration Court;
    (iv) Denial of employment authorization; or
    (v) For individuals whose case is retained by USCIS for 
consideration of their application for asylum after a positive credible 
fear determination pursuant to Sec.  208.30(f) or 8 CFR 1003.42 or 
1208.30, issuance of an order of removal based on the inadmissibility 
determination of the immigration officer under section 235(b)(1)(A)(i) 
of the Act.
    (2) There is no requirement for USCIS to send a notice to an 
applicant that he or she failed to appear for his or her asylum 
interview or hearing, or for a biometrics services appointment prior to 
issuing a decision on the application. Any rescheduling request for the 
asylum interview or hearing that has not yet been fulfilled on the date 
the application for employment authorization is filed under 8 CFR 
274a.12(c)(8) will be treated as an applicant-caused delay for purposes 
of Sec.  208.7.
    (b) Rescheduling missed appointments. USCIS, in its sole 
discretion, may excuse the failure to appear for an asylum interview or 
hearing, or biometrics services appointment and reschedule the missed 
appointment as follows:
    (1) Asylum interview or hearing. If the applicant demonstrates that 
he or she was unable to make the appointment due to exceptional 
circumstances.
    (2) Biometrics services appointment. USCIS may reschedule the 
biometrics services appointment as provided in 8 CFR part 103.
0
7. Amend Sec.  208.14 by:
0
a. Removing ``RAIO'' and adding in its place ``USCIS'' in paragraph 
(b);
0
b. Revising paragraphs (c) introductory text and (c)(1); and
0
c. Adding paragraph (c)(5).
    The revisions and addition read as follows:


Sec.  208.14  Approval, denial, referral, or dismissal of application.

* * * * *

[[Page 46943]]

    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer does not grant asylum to an applicant after an interview 
or hearing conducted in accordance with Sec.  208.9, or if, as provided 
in Sec.  208.10, the applicant is deemed to have waived his or her 
right to an interview, a hearing, or an adjudication by an asylum 
officer, the asylum officer shall deny, refer, or dismiss the 
application as follows:
    (1) Inadmissible or deportable aliens. Except as provided in 
paragraph (c)(4) or (5) of this section, in the case of an applicant 
who appears to be inadmissible or deportable under section 212(a) or 
237(a) of the Act, the asylum officer shall refer the application to an 
immigration judge, together with the appropriate charging document, for 
adjudication in removal proceedings (or, where charging documents may 
not be issued, shall dismiss the application).
* * * * *
    (5) Alien referred for consideration of asylum application in a 
hearing before an asylum officer after positive credible fear finding. 
In the case of an application within the jurisdiction of USCIS pursuant 
to Sec.  208.2(a)(1)(ii), the asylum officer shall deny the application 
for asylum. The applicant will be provided a written notice of the 
decision. The decision will also include an order of removal based on 
the immigration officer's inadmissibility determination under section 
235(b)(1)(A)(i) of the Act and a decision on any request for 
withholding of removal under Sec.  208.16(d) and deferral of removal 
under Sec.  208.17, where applicable. The notice shall explain that the 
alien may seek to have an immigration judge review the decision, in 
accordance with 8 CFR 1003.48. The alien shall have 30 days to 
affirmatively request such review as directed on the decision notice. 
The failure to timely request further review will be processed as the 
alien's decision not to request review.
    (i) If the alien requests such immigration judge review, USCIS will 
serve the alien with a notice of referral to an immigration judge for 
review of the asylum application. USCIS shall provide the record of the 
proceedings before the asylum officer, as outlined in Sec.  208.9(f), 
to the immigration judge and the alien, along with the written notice 
of decision, including the order of removal issued by the asylum 
officer, and the alien's request for review.
    (ii) If the alien does not request a review by an immigration 
judge, the decision and order of removal will be final and the alien 
shall be subject to removal from the United States.
    (iii) Once USCIS has commenced proceedings under 8 CFR 1003.48 by 
filing the notice of referral, the immigration judge has sole 
jurisdiction to review the application and an asylum officer may not 
reopen or reconsider the application once it has been referred to the 
immigration judge.
* * * * *
    8. Amend Sec.  208.16 by revising paragraphs (a) and (c)(4) to read 
as follows:


Sec.  208.16  Withholding of removal under section 241(b)(3)(B) of the 
Act and withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom 
would be threatened must be withheld, except in the case of an alien 
who is determined to be an applicant for admission under section 
235(b)(1) of the Act, is found to have a credible fear of persecution 
or torture, and whose case is subsequently retained by or referred to 
USCIS pursuant to the jurisdiction provided at Sec.  208.2(a)(1)(ii) to 
consider the application for asylum, and that application for asylum is 
denied.
* * * * *
    (c) * * *
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the asylum officer shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the asylum officer determines that the alien 
is more likely than not to be tortured in the country of removal, the 
alien is entitled to protection under the Convention Against Torture. 
Protection under the Convention Against Torture will be granted either 
in the form of withholding of removal or in the form of deferral of 
removal. An alien entitled to such protection shall be granted 
withholding of removal unless the alien is subject to mandatory denial 
of withholding of removal under paragraph (d)(2) or (3) of this 
section. If an alien entitled to such protection is subject to 
mandatory denial of withholding of removal under paragraph (d)(2) or 
(3) of this section, the alien's removal shall be deferred under Sec.  
208.17(a).
* * * * *
0
9. Amend Sec.  208.17 by revising paragraph (b), (d), and (e) to read 
as follows:


Sec.  208.17  Deferral of removal under the Convention Against Torture.

* * * * *
    (b) Notice to alien. (1) After an asylum officer orders an alien 
described in paragraph (a) of this section removed, the asylum officer 
shall inform the alien that his or her removal to the country where he 
or she is more likely than not to be tortured shall be deferred until 
such time as the deferral is terminated under this section or under 8 
CFR 1208.17. The asylum officer shall inform the alien that deferral of 
removal:
    (i) Does not confer upon the alien any lawful or permanent 
immigration status in the United States;
    (ii) Will not necessarily result in the alien being released from 
the custody of DHS if the alien is subject to such custody;
    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination pursuant to this section 
or 8 CFR 1208.17 if the asylum officer determines that it is not likely 
that the alien would be tortured in the country to which removal has 
been deferred, or if the alien requests that deferral be terminated.
    (2) The asylum officer shall also inform the alien that removal has 
been deferred only to the country in which it has been determined that 
the alien is likely to be tortured, and that the alien may be removed 
at any time to another country where he or she is not likely to be 
tortured.
* * * * *
    (d) Termination of deferral of removal. (1) At any time while 
deferral of removal is in effect, the Asylum Office with jurisdiction 
over an alien whose removal has been deferred under paragraph (a) of 
this section may schedule a hearing to consider whether deferral of 
removal should be terminated.
    (2) The Asylum Office shall provide notice to the alien of the 
time, place, and date of the termination hearing. Such notice shall 
inform the alien that the alien may supplement the information in his 
or her initial application for withholding of removal under the 
Convention Against Torture and shall provide that the alien must submit 
any such supplemental information within 10 calendar days of service of 
such notice (or 13 calendar days if service of such notice was by 
mail).
    (3) The asylum officer shall conduct a hearing and make a de novo 
determination, based on the record of proceeding and initial 
application in addition to any new evidence submitted by the alien, as 
to whether the alien is more likely than not to be tortured in the 
country to which removal has been

[[Page 46944]]

deferred. This determination shall be made under the standards for 
eligibility set out in Sec.  208.16(c). The burden is on the alien to 
establish that it is more likely than not that he or she would be 
tortured in the country to which removal has been deferred.
    (4) If the asylum officer determines that the alien is more likely 
than not to be tortured in the country to which removal has been 
deferred, the order of deferral shall remain in place. If the asylum 
officer determines that the alien has not established that he or she is 
more likely than not to be tortured in the country to which removal has 
been deferred, the deferral of removal shall be terminated and the 
alien may be removed to that country. Appeal of the asylum officer's 
decision shall lie to the immigration judge under the process provided 
for at Sec.  208.14(c)(5) and 8 CFR 1003.48.
    (e) Termination at the request of the alien. (1) At any time while 
deferral of removal is in effect, the alien may make a written request 
to the Asylum Office with jurisdiction over the initial determination 
to terminate the deferral order. If satisfied on the basis of the 
written submission that the alien's request is knowing and voluntary, 
the asylum officer shall terminate the order of deferral and the alien 
may be removed.
    (2) If necessary, the Asylum Office may calendar a hearing for the 
sole purpose of determining whether the alien's request is knowing and 
voluntary. If the asylum officer determines that the alien's request is 
knowing and voluntary, the order of deferral shall be terminated. If 
the asylum officer determines that the alien's request is not knowing 
and voluntary, the alien's request shall not serve as the basis for 
terminating the order of deferral.
* * * * *
0
10. Amend Sec.  208.18 by revising paragraph (b)(1) to read as follows:


Sec.  208.18  Implementation of the Convention Against Torture.

* * * * *
    (b) * * *
    (1) Aliens in proceedings on or after March 22, 1999. (i) An alien 
who is in exclusion, deportation, or removal proceedings on or after 
March 22, 1999, may apply for withholding of removal under 8 CFR 
1208.16(c), and, if applicable, may be considered for deferral of 
removal under 8 CFR 1208.17(a).
    (ii) In addition, an alien may apply for withholding of removal 
under Sec.  208.16(c), and, if applicable, may be considered for 
deferral of removal under Sec.  208.17(a), in the following situation: 
the alien is determined to be an applicant for admission under section 
235(b)(1) of the Act, the alien is found to have a credible fear of 
persecution or torture and the alien's case is subsequently retained by 
or referred to USCIS pursuant to the jurisdiction provided at Sec.  
208.2(a)(1)(ii) for consideration of the application for asylum, and 
that application is denied.
* * * * *
0
11. Revise Sec.  208.19 to read as follows:


Sec.  208.19  Decisions.

    The decision of an asylum officer issued in accordance with Sec.  
208.14(b) or (c) shall be communicated in writing to the applicant in-
person, by mail, or electronically. Pursuant to Sec.  208.9(d), an 
applicant must appear in person to receive and to acknowledge receipt 
of the decision unless, in the discretion of the asylum office 
director, service by mail or electronic service is appropriate. A 
letter communicating denial or referral of the application shall state 
the basis for denial or referral and include an assessment of the 
applicant's credibility.
0
12. Revise Sec.  208.22 to read as follows:


Sec.  208.22  Effect on exclusion, deportation, and removal 
proceedings.

    An alien who has been granted asylum may not be deported or removed 
unless his or her asylum status is terminated pursuant to Sec.  208.24 
or 8 CFR 1208.24. An alien who is granted withholding of removal or 
deportation, or deferral of removal, may not be deported or removed to 
the country to which his or her deportation or removal is ordered 
withheld or deferred unless the withholding order is terminated 
pursuant to Sec.  208.24 or 8 CFR 1208.24, or deferral is terminated 
pursuant to Sec.  208.17(d) or (e) or 8 CFR 1208.17.
0
13. Amend Sec.  208.30 by:
0
a. Revising the section heading and paragraphs (b), (c), and (d) 
introductory text;
0
b. Adding a heading for paragraph (e);
0
c. Removing the introductory text of paragraph (e); and
0
d. Revising paragraphs (e)(1) through (4), (e)(5)(i)(A), (e)(6) 
introductory text, (e)(6)(ii), (f), and (g).
    The revisions and addition read as follows:


Sec.  208.30  Credible fear determinations involving stowaways and 
applicants for admission found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act.

* * * * *
    (b) Process and authority. If an alien subject to section 235(a)(2) 
or 235(b)(1) of the Act indicates an intention to apply for asylum, or 
expresses a fear of persecution or torture, or a fear of return to his 
or her country, the inspecting officer shall not proceed further with 
removal of the alien until the alien has been referred for an interview 
by a USCIS asylum officer in accordance with this section. A USCIS 
asylum officer shall then screen the alien for a credible fear of 
persecution or torture. An asylum officer, as defined in section 
235(b)(1)(E) of the Act, has the authorities described in Sec.  
208.9(c). If the asylum officer in his or her discretion determines 
that circumstances so warrant, the asylum officer, after supervisory 
concurrence, may refer the alien for proceedings under section 240 of 
the Act without making a credible fear determination.
    (c) Treatment of family units.(1) A spouse or child of a principal 
alien who arrived in the United States concurrently with the principal 
alien shall be included in that alien's positive fear evaluation and 
determination, unless the principal alien declines such inclusion. 
However, any alien may have his or her evaluation and determination 
made separately, if he or she expresses such a desire.
    (2) The asylum officer in his or her discretion may also include 
other accompanying family members who arrived in the United States 
concurrently with a principal alien in that alien's positive fear 
evaluation and determination for purposes of family unity.
    (3) For purposes of family units in credible fear determinations, 
the definition of ``child'' means an unmarried person under 21 years of 
age.
    (d) Interview. A USCIS asylum officer will conduct the credible 
fear interview in a nonadversarial manner, separate and apart from the 
general public. The purpose of the interview shall be to elicit all 
relevant and useful information bearing on whether the alien can 
establish a credible fear of persecution or torture. The information 
provided during the interview may form the basis of an asylum 
application pursuant to paragraph (f) of this section and Sec.  
208.3(a)(2). The asylum officer shall conduct the interview as follows:
* * * * *
    (e) Determination. (1) The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officer, and the officer's determination of whether, in light of such 
facts, the alien has established a credible fear of persecution or 
torture.
    (2) An alien will be found to have a credible fear of persecution 
if there is a

[[Page 46945]]

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, the alien can establish 
eligibility for asylum under section 208 of the Act or for withholding 
of removal under section 241(b)(3) of the Act. However, prior to 
January 1, 2030, in the case of an alien physically present in or 
arriving in the Commonwealth of the Northern Mariana Islands, the 
officer may only find a credible fear of persecution if there is a 
significant possibility that the alien can establish eligibility for 
withholding of removal pursuant to section 241(b)(3) of the Act.
    (3) An alien will be found to have a credible fear of torture if 
the alien shows that there is a significant possibility that he or she 
is eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to Sec.  208.16 or Sec.  208.17.
    (4) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer shall consider whether the 
alien's case presents novel or unique issues that merit a positive 
credible fear finding pursuant to paragraph (f) of this section in 
order to receive further consideration of the application for asylum 
and withholding of removal.
    (5)(i)(A) Except as provided in paragraphs (e)(5)(ii) through (iv) 
or paragraph (e)(6) or (7) of this section, 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 (b)(2) of the Act, 
or to withholding of removal contained in section 241(b)(3)(B) of the 
Act, the Department of Homeland Security shall nonetheless retain or 
refer the alien for further consideration of the alien's claim pursuant 
to paragraph (f) of this section, if the alien is not a stowaway. If 
the alien is a stowaway, the Department shall place the alien in 
proceedings for consideration of the alien's claim pursuant to Sec.  
208.2(c)(3).
* * * * *
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the United States during removal by Canada has a 
credible fear of persecution or torture, the asylum officer shall 
conduct a threshold screening interview to determine whether such an 
alien is ineligible to apply for asylum pursuant to section 
208(a)(2)(A) of the Act and subject to removal to Canada by operation 
of the Agreement Between the Government of the United States and the 
Government of Canada For Cooperation in the Examination of Refugee 
Status Claims from Nationals of Third Countries (``Agreement''). In 
conducting this threshold screening interview, the asylum officer shall 
apply all relevant interview procedures outlined in paragraph (d) of 
this section, provided, however, that paragraph (d)(2) of this section 
shall not apply to aliens described in this paragraph (e)(6). The 
asylum officer shall advise the alien of the Agreement's exceptions and 
question the alien as to applicability of any of these exceptions to 
the alien's case.
* * * * *
    (ii) If the alien establishes by a preponderance of the evidence 
that he or she qualifies for an exception under the terms of the 
Agreement, the asylum officer shall make a written notation of the 
basis of the exception, and then proceed immediately to a determination 
concerning whether the alien has a credible fear of persecution or 
torture under paragraph (d) of this section.
* * * * *
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue the alien a record of the positive credible fear determination, 
including copies of the asylum officer's notes, the summary of the 
material facts, and other materials upon which the determination was 
based. The documents may be served in-person, by mail, or 
electronically. USCIS will retain jurisdiction over the application for 
asylum pursuant to Sec.  208.2(a)(1)(ii) for further consideration in a 
hearing pursuant to Sec.  208.9 or refer for consideration of the 
asylum and withholding of removal claim in proceedings under section 
240 of the Act. If an alien stowaway is found to have a credible fear 
of persecution or torture, the asylum officer will so inform the alien 
and issue a Form I-863, Notice of Referral to Immigration Judge, for 
full consideration of the asylum claim, or the withholding of removal 
claim, in proceedings under Sec.  208.2(c). Parole of the alien may be 
considered only in accordance with section 212(d)(5) of the Act and 8 
CFR 212.5.
    (g) Procedures for a negative credible fear finding. (1) If an 
alien is found not to have a credible fear of persecution or torture, 
the asylum officer shall provide the alien with a written notice of 
decision and issue the alien a record of the credible fear 
determination, including copies of the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based. The documents may be served in-person, by 
mail, or electronically. The asylum officer shall inquire whether the 
alien wishes to have an immigration judge review the negative decision, 
which shall include an opportunity for the alien to be heard and 
questioned by the immigration judge as provided for under section 
235(b)(1)(B)(iii)(III) of the Act, using Form I-869, Record of Negative 
Credible Fear Finding and Request for Review by Immigration Judge. The 
alien shall indicate whether he or she desires such review on Form I-
869. A refusal by the alien to make such indication shall be considered 
a request for review.
    (i) If the alien requests such review, or refuses to either request 
or decline such review, the asylum officer shall serve him or her with 
a Form I-863, Notice of Referral to Immigration Judge, for review of 
the credible fear determination in accordance with paragraph (g)(2) of 
this section. Once the asylum officer has served the alien with Form I-
863, the immigration judge shall have sole jurisdiction to review 
whether the alien has established a credible fear of persecution or 
torture, and an asylum officer may not reconsider or reopen the 
determination.
    (ii) If the alien is not a stowaway and does not request a review 
by an immigration judge, the officer shall order the alien removed and 
issue a Form I-860, Notice and Order of Expedited Removal, after review 
by a supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the 
alien to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2)(i) Immigration judges will review negative credible fear 
findings as provided in 8 CFR 1003.42 and 1208.30(g).
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based shall be provided to the immigration judge with 
the negative determination.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
14. The authority citation for part 235 is revised to read as follows:


[[Page 46946]]


    Authority:  8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant 
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 
1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; 48 U.S.C. 1806, 
1807, and 1808 and 48 U.S.C. 1806 notes (Title VII of Pub. L. 110-
229, 122 Stat. 754); 8 U.S.C. 1185 note (section 7209 of Pub. L. 
108-458, 118 Stat. 3638 and Pub. L. 112-54, 125 Stat. 550).

0
15. Amend Sec.  235.3 by revising paragraphs (b)(2)(iii) and (b)(4)(ii) 
to read as follows:


Sec.  235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Detention and parole of alien in expedited removal. An alien 
whose inadmissibility is being considered under this section or who has 
been ordered removed pursuant to this section shall be detained pending 
determination and removal. Parole of such alien, in accordance with 
section 212(d)(5) of the Act and Sec.  212.5 of this chapter, may be 
permitted only when DHS determines, in the exercise of discretion, that 
parole is required to meet a medical emergency, for a legitimate law 
enforcement objective, or because detention is unavailable or 
impracticable (including situations in which continued detention would 
unduly impact the health or safety of individuals with special 
vulnerabilities).
* * * * *
    (4) * * *
    (ii) Detention pending credible fear interview. Pending the 
credible fear determination by an asylum officer and any review of that 
determination by an immigration judge, the alien shall be detained. 
Parole of such alien, in accordance with section 212(d)(5) of the Act 
and Sec.  212.5 of this chapter, may be permitted only when DHS 
determines, in the exercise of discretion, that parole is required to 
meet a medical emergency, for a legitimate law enforcement objective, 
or because detention is unavailable or impracticable (including 
situations in which continued detention would unduly impact the health 
or safety of individuals with special vulnerabilities). A grant of 
parole would be for the limited purpose of parole out of custody and 
cannot serve as an independent basis for employment authorization under 
Sec.  274a.12(c)(11) of this chapter. Prior to the interview, the alien 
shall be given time to contact and consult with any person or persons 
of his or her choosing. If the alien is detained, such consultation 
shall be made available in accordance with the policies and procedures 
of the detention facility where the alien is detained, shall be at no 
expense to the Government, and shall not unreasonably delay the 
process.
* * * * *
0
16. Amend Sec.  235.6 by:
0
a. Removing and reserving paragraphs (a)(1)(iii) and (iv); and
0
b. Revising paragraph (a)(2)(i);
0
c. Removing the period at the end of paragraph (c)(2)(ii) and adding 
``; or'' in its place; and
0
d. Revising paragraph (a)(2)(iii).
    The revisions read as follows:


Sec.  235.6  Referral to immigration judge.

    (a) * * *
    (2) * * *
    (i) If an asylum officer determines that the alien does not have a 
credible fear of persecution or torture, and the alien requests a 
review of that determination by an immigration judge;
* * * * *
    (iii) If an immigration officer refers an applicant in accordance 
with the provisions of Sec.  208.2(c)(1) or (2) of this chapter to an 
immigration judge for an asylum- or withholding-only hearing.
* * * * *

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in the preamble, the 
Attorney General proposes to amend 8 CFR parts 1003, 1208, and 1235 as 
follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
17. 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
18. Amend Sec.  1003.1 by adding paragraph (b)(15) to read as follows:


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

* * * * *
    (b) * * *
    (15) Decisions of immigration judges in proceedings pursuant to 
Sec.  1003.48, including immigration judges' decisions on motions under 
Sec.  1003.48(d) to vacate removal orders. Immigration judges' 
decisions denying applications because the applicant failed to appear 
cannot be appealed, but immigration judges' decisions on motions to 
reopen and motions to reconsider can be appealed.
* * * * *
0
19. Amend Sec.  1003.12 by revising the second sentence to read as 
follows:


Sec.  1003.  12 Scope of rules.

    * * * Except where specifically stated, the rules in this subpart 
apply to matters before immigration judges, including, but not limited 
to: Deportation, exclusion, removal, bond, rescission, departure 
control, asylum proceedings (including application review proceedings 
under Sec.  1003.48), and disciplinary proceedings. * * *

0
20. Add Sec.  1003.48 to read as follows:


Sec.  1003.48  Review of applications denied after a positive credible 
fear determination.

    (a) Scope. In proceedings conducted under this section, immigration 
judges shall have the authority, upon the request of an applicant under 
8 CFR 208.14(c)(5), to review asylum officers' decisions on 
applications for asylum under section 208 of the Act, withholding of 
removal under section 241(b)(3) of the Act, and withholding or deferral 
of removal under the Convention Against Torture. Where an asylum 
officer grants one application but denies another, the immigration 
judge has the authority to review both the denial and the grant. An 
immigration judge shall not have the authority in these proceedings to 
consider an application for a form of relief and protection other than 
those listed in the first sentence of this paragraph (a), or to review 
an asylum officer's inadmissibility determination under section 
235(b)(1)(A)(i) of the Act. However, an applicant can file a motion to 
vacate a removal order as specified in paragraph (d) of this section.
    (b) Commencement of proceedings. Proceedings under this section 
shall commence when DHS files with the Immigration Court the documents 
identified in paragraphs (b)(1) through (4) of this section:
    (1) A Notice of Referral to the immigration judge;
    (2) A copy of the record of proceedings before the asylum officer, 
as outlined in 8 CFR 208.9(f);
    (3) The asylum officer's written decision, including the removal 
order issued under 8 CFR 208.14(c)(5) by the asylum officer; and
    (4) Proof that the Notice of Referral, the record of proceedings, 
and the written decision, including the removal order, have been served 
on the applicant, which may consist of service via mail.
    (c) Proceedings before the immigration judge. After a Notice of

[[Page 46947]]

Referral is filed with the immigration court, the case shall be 
scheduled for a hearing, and a hearing notice shall be served on the 
parties.
    (d) Motion to vacate removal order. The applicant may file a motion 
with the immigration judge to vacate the asylum officer's order of 
removal. For the motion to be granted, the applicant must show that he 
or she is prima facie eligible for a form of relief or protection under 
the Act that cannot be considered in proceedings under this section. If 
the applicant makes such a showing, the immigration judge may, in the 
exercise of his or her discretion, grant the motion. If the immigration 
judge grants the motion, DHS may, in the exercise of its discretion, 
place the applicant in removal proceedings, by issuing a Notice to 
Appear and filing it with the immigration court. An applicant may file 
only one such a motion, and the motion must be filed before the 
immigration judge issues a decision under paragraph (e) of this 
section. A motion to vacate to apply for voluntary departure under 
section 240B of the Act shall be denied.
    (e) Immigration judge review. (1) The immigration judge shall 
determine, de novo, whether the applicant qualifies for the relief or 
protection at issue and, if applicable, whether the applicant merits 
relief in the exercise of discretion. In reaching a decision in 
proceedings under this section, the immigration judge shall review the 
record created before the asylum officer, as well as the asylum 
officer's decision. Either party may provide additional testimony and 
documentation, but the party must establish that the testimony or 
documentation is not duplicative of testimony or documentation already 
presented to the asylum officer, and that the testimony or 
documentation is necessary to ensure a sufficient factual record upon 
which to base a reasoned decision on the application or applications. 
The immigration judge shall not have the authority to remand the case 
to the asylum officer.
    (2) If the immigration judge grants the applicant asylum under 
section 208 of the Act, the immigration judge shall issue orders 
granting the application and vacating the removal order issued by an 
asylum officer under 8 CFR 208.14(c)(5). If the immigration judge 
grants the application for withholding of removal under section 
241(b)(3) of the Act, or withholding or deferral of removal under the 
Convention Against Torture, the immigration judge shall issue an order 
granting the application at issue, but shall not vacate the removal 
order issued by the asylum officer under 8 CFR 208.14(c)(5).
    (f) Failure to appear. (1) If the applicant fails to appear at a 
hearing in proceedings conducted under this section, and DHS 
establishes by clear, unequivocal, and convincing evidence that written 
notice of the hearing was served on the applicant, the immigration 
judge shall deny the application or applications under review. There is 
no appeal from an immigration judge's decision denying an application 
or applications for failure to appear. However, following such a 
decision, the applicant may file a motion to reopen with the 
immigration judge. In the motion, the applicant must establish that:
    (i) The failure to appear was because of exceptional circumstances 
(such as battery or extreme cruelty to the applicant or any child or 
parent of the applicant, serious illness of the applicant, or serious 
illness or death of the spouse, child, or parent of the applicant, but 
not including less compelling circumstances) beyond the control of the 
applicant;
    (ii) The applicant did not receive notice of the hearing; or
    (iii) The applicant was in Federal or State custody at the time of 
the hearing, and the failure to appear was through no fault of the 
applicant.
    (2) A motion filed under paragraph (f)(1)(i) of this section must 
be filed within 180 days of the hearing. A motion filed under paragraph 
(f)(1)(ii) or (iii) of this section may be filed at any time. When a 
motion under this paragraph (f) is granted, the applicant's proceedings 
under this section are reopened. The granting of such a motion does not 
entitle the applicant to be placed in removal proceedings.

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
21. The authority section for part 1208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; Pub. L. 115-218.

0
22. Amend Sec.  1208.2 by:
0
a. Revising paragraph (a);
0
b. Revising the last sentence of paragraph (b);
0
c. Removing the word ``or'' at the end of paragraph (c)(1)(vii);
0
d. Removing the period at the end of paragraph (c)(1)(viii) and adding 
``; or'' in its place;
0
e. Removing and reserving paragraph (c)(1)(ix);
0
f. Adding paragraph (c)(1)(x); and
0
g. In paragraph (c)(3)(i):
0
i. Adding the words ``and in 8 CFR 1003.48'' after the words ``Except 
as provided in this section''; and
0
ii. Removing ``paragraph (c)(1) or (c)(2)'' and adding ``paragraph 
(c)(1) or (2)'' in its place.
    The revisions and addition read as follows:


Sec.  1208.2  Jurisdiction.

    (a) U.S. Citizenship and Immigration Services (USCIS). (1) Except 
as provided in paragraph (b) or (c) of this section, USCIS shall have 
initial jurisdiction over:
    (i) An asylum application filed by an alien physically present in 
the United States or seeking admission at a port-of-entry; and
    (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii) 
of the Act to further consider the application for asylum of an alien, 
other than a stowaway, found to have a credible fear of persecution or 
torture in accordance with 8 CFR 208.30(f) and retained by USCIS, or 
referred to USCIS by an immigration judge pursuant to Sec. Sec.  
1003.42 of this chapter and 1208.30 after the immigration judge has 
vacated a negative credible fear determination. Hearings to further 
consider applications for asylum under this paragraph (a)(1)(ii) are 
governed by the procedures provided for under 8 CFR 208.9. Further 
consideration of an asylum application filed by a stowaway who has 
received a positive credible fear determination will be under the 
jurisdiction of an immigration judge pursuant to paragraph (c) of this 
section.
    (2) USCIS shall also have initial jurisdiction over credible fear 
determinations under 8 CFR 208.30 and reasonable fear determinations 
under 8 CFR 208.31.
    (b) * * * Immigration judges shall also have the authority to 
review credible fear determinations referred to the Immigration Court 
under Sec.  1208.30, reasonable fear determinations referred to the 
Immigration Court under Sec.  1208.31, and asylum officers' decisions 
on applications, under 8 CFR 208.14(c)(5), referred to the Immigration 
Court for review under Sec.  1003.48 of this chapter.
    (c) * * *
    (1) * * *
    (x) An alien referred for proceedings under Sec.  1003.48 of this 
chapter on or after [effective date of the final rule].
* * * * *
0
23. Amend Sec.  1208.3 by revising paragraphs (a) and (c)(3) to read as 
follows:

[[Page 46948]]

Sec.  1208.3  Form of application.

    (a)(1) Except for applicants described in paragraph (a)(2) of this 
section, an asylum applicant must file Form I-589, Application for 
Asylum and for Withholding of Removal, together with any additional 
supporting evidence in accordance with the instructions on the form. 
The applicant's spouse and children shall be listed on the application 
and may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 
must be submitted for each dependent included in the principal's 
application.
    (2) In proceedings under Sec.  1003.48 of this chapter, the written 
record of a positive credible fear finding issued in accordance with 8 
CFR 208.30(f), Sec.  1003.42 of this chapter, or Sec.  1208.30 shall be 
construed as the asylum application and satisfies the application 
filing requirements in paragraph (a)(1) of this section and Sec.  
1208.4(b). The written record of the positive credible fear 
determination shall be considered a complete asylum application for 
purposes of Sec.  1208.4(a), with the date of service of the positive 
credible fear determination on the alien considered the date of filing 
and receipt, and shall be subject to the conditions and consequences 
provided for in paragraph (c) of this section following the applicant's 
signature at the asylum hearing before the USCIS asylum officer. The 
applicant's spouse and children may be included in the request for 
asylum only if they were included in the credible fear determination 
pursuant to 8 CFR 208.30(c). The asylum applicant may subsequently seek 
to amend, correct, or supplement the record of proceedings created 
before the asylum officer or during the credible fear review process, 
but must otherwise meet the requirements of Sec.  1003.48(e) of this 
chapter concerning new documentation or testimony.
* * * * *
    (c) * * *
    (3) An asylum application under paragraph (a)(1) of this section 
must be properly filed in accordance with the form instructions and 
with Sec. Sec.  1003.24, 1003.31(b), and 1103.7(a)(3) of this chapter, 
including payment of a fee, if any, as explained in the instructions to 
the application. For purposes of filing with an immigration court, an 
asylum application is incomplete if it does not include a response to 
each of the required questions contained in the form, is unsigned, is 
unaccompanied by the required materials specified in paragraph (a) of 
this section, is not completed and submitted in accordance with the 
form instructions, or is unaccompanied by any required fee receipt or 
other proof of payment as provided in Sec.  1208.4(d)(3). The filing of 
an incomplete application shall not commence the period after which the 
applicant may file an application for employment authorization. An 
application that is incomplete shall be rejected by the Immigration 
Court. If an applicant wishes to have his or her application for asylum 
considered, he or she shall correct the deficiencies in the incomplete 
application and refile it within 30 days of rejection. Failure to 
correct the deficiencies in an incomplete application or failure to 
timely refile the application with the deficiencies corrected, absent 
exceptional circumstances as defined in Sec.  1003.10(b) of this 
chapter, shall result in a finding that the alien has abandoned that 
application and waived the opportunity to file such an application;
* * * * *


Sec.  1208.4  [Amended]

0
24. Amend Sec.  1208.4 by adding the words ``, except that an alien in 
a review proceeding under Sec.  1003.48 of this chapter is not required 
to file the Form I-589'' after the word ``case'' in paragraph 
(b)(3)(iii).


Sec.  1208.5  [Amended]

0
25. Amend Sec.  1208.5(b)(2) by removing the reference ``Sec.  1212.5 
of this chapter'' and adding ``8 CFR 212.5'' in its place.
0
26. Amend Sec.  1208.14 by:
0
a. Removing ``the Office of International Affairs'' and adding in its 
place ``USCIS'' in paragraph (b);
0
b. Revising paragraphs (c) introductory text and (c)(1); and
0
c. Adding paragraph (c)(5).
    The revisions and addition read as follows:


Sec.  1208.14  Approval, denial, referral, or dismissal of application.

* * * * *
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer does not grant asylum to an applicant after an interview 
or hearing conducted in accordance with 8 CFR 208.9, or if, as provided 
in 8 CFR 208.10, the applicant is deemed to have waived his or her 
right to an interview, a hearing, or an adjudication by an asylum 
officer, the asylum officer shall deny, refer, or dismiss the 
application, as follows:
    (1) Inadmissible or deportable aliens. Except as provided in 
paragraph (c)(4) or (5) of this section, in the case of an applicant 
who appears to be inadmissible or deportable under section 212(a) or 
237(a) of the Act, the asylum officer shall refer the application to an 
immigration judge, together with the appropriate charging document, for 
adjudication in removal proceedings (or, where charging documents may 
not be issued, shall dismiss the application).
* * * * *
    (5) Alien referred for consideration of asylum application in a 
hearing before an asylum officer after positive credible fear finding. 
In the case of an application within the jurisdiction of USCIS pursuant 
to 8 CFR 208.2(a)(1)(ii), the asylum officer shall deny the application 
for asylum. The applicant will be provided a written notice of the 
decision. The decision will also include an order of removal based on 
the immigration officer's inadmissibility determination under section 
235(b)(1)(A)(i) of the Act and a decision on any request for 
withholding of removal under 8 CFR 208.16(d) and deferral of removal 
under 8 CFR 208.17, where applicable. The notice shall explain that the 
alien may seek to have an immigration judge review the decision, in 
accordance with Sec.  1003.48 of this chapter. The alien shall have 30 
days to affirmatively request such review as directed on the decision 
notice. The failure to timely request further review will be processed 
as the alien's decision not to request review.
    (i) If the alien requests such immigration judge review, USCIS will 
serve the alien with a notice of referral to an immigration judge for 
review of the asylum application. USCIS shall provide the record of the 
proceedings before the asylum officer, as outlined in 8 CFR 208.9(f), 
to the immigration judge and the alien, along with the written notice 
of decision, including the order of removal issued by the asylum 
officer, and the alien's request for review.
    (ii) If the alien does not request a review by an immigration 
judge, the decision and order of removal will be final and the alien 
shall be subject to removal from the United States.
    (iii) Once USCIS has commenced proceedings under Sec.  1003.48 of 
this chapter by filing the notice of referral on the alien, the 
immigration judge has sole jurisdiction to review the application, and 
an asylum officer may not reopen or reconsider the application once it 
has been referred to the immigration judge.
* * * * *
0
27. Amend Sec.  1208.16 by revising paragraph (a) to read as follows:


Sec.  1208.16  Withholding of removal under section 241(b)(3)(B) of the 
Act and withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum

[[Page 46949]]

officer shall not decide whether the exclusion, deportation, or removal 
of an alien to a country where the alien's life or freedom would be 
threatened must be withheld, except in the case of an alien who is 
determined to be an applicant for admission under section 235(b)(1) of 
the Act, is found to have a credible fear of persecution or torture, 
and whose case is subsequently retained by or referred to USCIS 
pursuant to the jurisdiction provided at 8 CFR 208.2(a)(1)(ii) to 
consider the application for asylum, and that application for asylum is 
denied. In exclusion, deportation, or removal proceedings, an 
immigration judge may adjudicate both an asylum claim and a request for 
withholding of removal, whether or not asylum is granted.
* * * * *
0
28. Amend Sec.  1208.18 by revising paragraph (b)(1) to read as 
follows:


Sec.  1208.18  Implementation of the Convention Against Torture.

* * * * *
    (b) * * *
    (1) Aliens in proceedings on or after March 22, 1999. (i) An alien 
who is in exclusion, deportation, or removal proceedings on or after 
March 22, 1999, may apply for withholding of removal under Sec.  
1208.16(c), and, if applicable, may be considered for deferral of 
removal under Sec.  1208.17(a).
    (ii) In addition, an alien may apply for withholding of removal 
under 8 CFR 208.16(c), and, if applicable, may be considered for 
deferral of removal under 8 CFR 208.17(a), in the following situation: 
the alien is determined to be an applicant for admission under section 
235(b)(1) of the Act, the alien is found to have a credible fear of 
persecution or torture, and the alien's case is subsequently retained 
by or referred to USCIS pursuant to the jurisdiction provided at 8 CFR 
208.2(a)(1)(ii) to consider the application for asylum, and that 
application for asylum is denied.
* * * * *


Sec.  1208.19  [Removed and Reserved]

0
29. Remove and reserve Sec.  1208.19.
0
30. Revise Sec.  1208.22 to read as follows:


Sec.  1208.22  Effect on exclusion, deportation, and removal 
proceedings.

    An alien who has been granted asylum may not be deported or removed 
unless his or her asylum status is terminated pursuant to 8 CFR 208.24 
or Sec.  1208.24. An alien who is granted withholding of removal or 
deportation, or deferral of removal, may not be deported or removed to 
the country to which his or her deportation or removal is ordered 
withheld or deferred unless the withholding order is terminated 
pursuant to 8 CFR 208.24 or Sec.  1208.24 or deferral is terminated 
pursuant to 8 CFR 208.17 or Sec.  1208.17(d) or (e).
0
31. Amend Sec.  1208.30 by revising the section heading and paragraphs 
(a), (e), and (g)(2) to read as follows:


Sec.  1208.30  Credible fear of persecution or torture 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.

    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make 
the determinations described in this subpart. Except as otherwise 
provided in this subpart, paragraphs (b) through (g) of this section 
are the exclusive procedures applicable to stowaways and applicants for 
admission who are found inadmissible pursuant to section 212(a)(6)(C) 
or 212(a)(7) of the Act and who receive fear interviews, 
determinations, and reviews under section 235(b)(1)(B) of the Act. 
Prior to January 1, 2030, an alien physically present in or arriving in 
the Commonwealth of the Northern Mariana Islands is ineligible to apply 
for asylum and may only establish eligibility for withholding of 
removal pursuant to section 241(b)(3) of the Act or withholding or 
deferral of removal under the regulations in Sec. Sec.  1208.16(c) 
through (f), 1208.17, and 1208.18 issued pursuant to the Convention 
Against Torture's implementing legislation.
* * * * *
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and hearings, and in 
making positive and negative credible fear determinations, see 8 CFR 
208.30. The immigration judges will review such determinations as 
provided in paragraph (g) of this section and 8 CFR 1003.42 and 
1003.48.
* * * * *
    (g) * * *
    (2) Review by immigration judge of a negative credible fear 
finding. (i) The asylum officer's negative decision regarding credible 
fear shall be subject to review by an immigration judge upon the 
applicant's request, or upon the applicant's refusal either to request 
or to decline the review after being given such opportunity, in 
accordance with section 235(b)(1)(B)(iii)(III) of the Act. The 
immigration judge shall not have the authority to remand the case to 
the asylum officer.
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based shall be provided to the immigration judge with 
the negative determination.
    (iii) A credible fear hearing shall be closed to the public unless 
the alien states for the record or submits a written statement that the 
alien is waiving that requirement; in that event the hearing shall be 
open to the public, subject to the immigration judge's discretion as 
provided in 8 CFR 1003.27.
    (iv) Upon review of the asylum officer's negative credible fear 
determination:
    (A) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to DHS for removal 
of the alien. The immigration judge's decision is final and may not be 
appealed.
    (B) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, 
the immigration judge shall vacate the Notice and Order of Expedited 
Removal and refer the case back to DHS for further proceedings 
consistent with Sec.  1208.2(a)(1)(ii). Alternatively, DHS may commence 
removal proceedings under section 240 of the Act, during which time the 
alien may file an application for asylum and withholding of removal in 
accordance with Sec.  1208.4(b)(3)(i).
    (C) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed 
to file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec.  1208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or DHS to 
the Board of Immigration Appeals. If a denial of the application for 
asylum and for withholding of removal becomes final, the alien shall be 
removed from the United States in accordance with section 235(a)(2) of 
the Act. If an approval of the application for asylum or for 
withholding of removal becomes final, DHS shall terminate removal 
proceedings under section 235(a)(2) of the Act.

PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
32. The authority citation for part 1235 continues to read as follows:

    Authority:  8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant 
to E.O. 13323, 69 FR

[[Page 46950]]

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225, 1226, 1228, 1365a 
note, 1379, 1731-32; Title VII of Pub. L. 110-229; 8 U.S.C. 1185 
note (section 7209 of Pub. L. 108-458); Public Law 115-218.

0
33. Amend Sec.  1235.6 by:
0
a. Revising paragraph (a)(2)(i);
0
b. Removing the period at the end of paragraph (a)(2)(ii) and adding 
``; or'' in its place; and
0
c. Revising paragraph (a)(2)(iii).
    The revisions read as follows:


Sec.  1235.6  Referral to immigration judge.

    (a) * * *
    (2) * * *
    (i) If an asylum officer determines that the alien does not have a 
credible fear of persecution or torture, and the alien requests a 
review of that determination by an immigration judge;
* * * * *
    (iii) If an immigration officer refers an applicant in accordance 
with the provisions of 8 CFR 208.2(b) to an immigration judge.
* * * * *

Alejandro N. Mayorkas,
Secretary of Homeland Security.
    Dated: August 13, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-17779 Filed 8-18-21; 8:45 am]
BILLING CODE 9111-97-P