Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 18078-18226 [2022-06148]

Download as PDF 18078 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 8 CFR Parts 208, 212, 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, 1235, and 1240 [A.G. Order No. 5369–2022] 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: Interim final rule with request for comments. AGENCY: On August 20, 2021, the Department of Homeland Security (‘‘DHS’’) and the Department of Justice (‘‘DOJ’’) (collectively ‘‘the Departments’’) published a notice of proposed rulemaking (‘‘NPRM’’ or ‘‘proposed rule’’) that proposed amending regulations governing the procedures for determining certain protection claims and available parole procedures for individuals subject to expedited removal and found to have a credible fear of persecution or torture. After a careful review of the comments received, the Departments are now issuing an interim final rule (‘‘rule’’ or ‘‘IFR’’) that responds to comments received in response to the NPRM and adopts the proposed rule with changes. Most significantly, the IFR provides that DHS’s United States Citizenship and Immigration Services (‘‘USCIS’’) will refer noncitizens whose applications are not granted to DOJ’s Executive Office for Immigration Review (‘‘EOIR’’) for streamlined removal proceedings. The IFR also establishes timelines for the consideration of applications for asylum and related protection by USCIS and, as needed, EOIR. This IFR responds to comments received in response to the NPRM and adopts the NPRM with changes as described in this rule. The Departments solicit further public comment on the IFR’s revisions, which will be considered and addressed in a future rule. lotter on DSK11XQN23PROD with RULES2 SUMMARY: VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Effective Date: This interim final rule is effective May 31, 2022. Submission of public comments: Comments must be submitted on or before May 31, 2022. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day. ADDRESSES: You may submit comments on the entirety of this interim final rule 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 the Departments’ officials, will not be considered comments on the interim final 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 (not a tollfree call) for alternate instructions. FOR FURTHER INFORMATION CONTACT: For USCIS: Rena´ Cutlip-Mason, 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, Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: DATES: DEPARTMENT OF HOMELAND SECURITY Table of Contents I. Public Participation II. Executive Summary A. Background B. Legal Authority C. Changes in the IFR 1. Revisions to the Proposed DHS Regulations 2. Revisions to the Proposed DOJ Regulations PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 D. Provisions of the IFR 1. Credible Fear Screening Process 2. Applications for Asylum 3. Proceedings for Further Consideration of the Application for Asylum by USCIS Through Asylum Merits Interview for Noncitizens With Credible Fear 4. Streamlined Section 240 Removal Proceedings Before the Immigration Judge 5. Parole E. Summary of Costs and Benefits F. Effective Date III. Discussion of the IFR A. Credible Fear Screening Process B. Applications for Asylum C. Proceedings for Further Consideration of the Application for Asylum by USCIS Through Asylum Merits Interview for Noncitizens With Credible Fear D. Streamlined Section 240 Removal Proceedings Before the Immigration Judge 1. Schedule of Proceedings a. Pre-Hearing Procedures b. Merits Hearing(s) 2. Evidentiary Standard 3. Timeline for Proceedings 4. Continuances and Filing Extensions 5. Consideration of Statutory Withholding of Removal and CAT Protection 6. Exceptions to Streamlined Procedures E. Other Amendments Related to Credible Fear F. Parole G. Putative Reliance Interests IV. Response to Public Comments on the Proposed Rule A. Summary of Public Comments B. General Feedback on the Proposed Rule 1. General Support for the Proposed Rule a. Immigration Policy Benefits b. Positive Impacts on Applicants, Their Support Systems, and the Economy 2. General Opposition to the Proposed Rule a. Immigration Policy Concerns b. Negative Impacts on Applicants and Their Support Systems c. Negative Impacts on U.S. Citizens and the Economy d. Other General Opposition to the Proposed Rule C. Basis for the Proposed Rule 1. DOJ and DHS Statutory/Legal Authority 2. Need for the Proposed Rule/DOJ and DHS Rationale 3. Prior Immigration Rulemakings D. Proposed Changes 1. Applicability 2. Parole a. General Comments on Parole b. Change in Circumstances Under Which Parole May Be Considered c. Availability of Employment Authorization for Those in Expedited Removal Who Have Been Paroled From Custody d. Other Comments on Proposed Approach to Parole 3. Credible Fear Screening Process a. General Comments on Credible Fear Screening Process b. ‘‘Significant Possibility’’ Standard for Protection Claims c. Due Process in Credible Fear Screening d. Removal of Mandatory Bars From Consideration E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations e. Other Comments on the Proposed Credible Fear Screening Process 4. Applications for Asylum a. Written Record of the Credible Fear Determination Created by USCIS, Together With the Service of the Credible Fear Determination, Treated as an Application for Asylum b. Date Positive Credible Fear Determination Served as Date of Filing and Receipt c. Inclusion of Applicant’s Spouse and Children d. Due Process in Asylum Applications e. Other Comments on Proposed Provisions on Applications for Asylum 5. Adjudication of Applications for Asylum for Noncitizens With Credible Fear a. DHS Interpretation of Statute in Creating a New Adjudication Process b. Review of Asylum Claim by an Asylum Officer, Rather Than by an Immigration Judge, in Section 240 Removal Proceedings c. Requirements for USCIS Asylum Merits Adjudication d. Failure To Appear e. Process for USCIS To Deny an Application for Asylum or Other Protection and Issue a Removal Order f. Other Comments on Proposed Adjudication of Applications for Asylum 6. Application Review Proceedings Before an Immigration Judge a. Creation of New Limited Proceedings in Lieu of Section 240 Removal Proceedings and Limitation on Relief to Asylum, Statutory Withholding of Removal, and Convention Against Torture Review Only b. De Novo Review of Full Asylum Hearing Record and Consideration of Additional Testimony and Evidence c. Immigration Judge’s Discretion To Vacate Asylum Officer’s Removal Order d. Immigration Judge’s Authority To Review All Asylum Officer Decisions e. Appeal of Immigration Judge’s Decision to the Board of Immigration Appeals f. Other Comments on Proposed Application Review Proceedings before Immigration Judges E. Other Issues Related to the Proposed Rulemaking 1. Public and Stakeholder Input 2. Severability 3. Discretion and Phased Implementation a. Discretion b. Phased Implementation 4. Comments on Immigration Court Inefficiencies and Bottlenecks F. Statutory and Regulatory Requirements 1. Impacts and Benefits (E.O. 12866 and E.O. 13563) a. Methodology b. Population c. Costs or Transfers i. Impacts on the Credible Fear Asylum Population and Support Networks ii. Impacts on U.S. Workers, Companies, Economy iii. Impacts on Federal Government iv. Other Comments on Costs or Transfers d. Other Comments on Impacts and Benefits of the Proposed Rulemaking 2. Paperwork Reduction Act VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 3. Other Comments on Statutory and Regulatory Requirements G. Comments Outside of the Scope of This Rulemaking V. Statutory and Regulatory Requirements A. Administrative Procedure Act B. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) 1. Summary of the Rule and Its Potential Impacts 2. Background and Purpose of the Rule 3. Population 4. Impacts of the Rule a. Impacts to the Credible Fear Asylum Population b. Impacts to USCIS i. Total Quantified Estimated Costs of Regulatory Changes ii. Intra-Federal Government Sector Impacts c. Familiarization Costs, Benefits, and Transfers of Possible Early Labor Market Entry C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Congressional Review Act F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. Family Assessment I. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) J. National Environmental Policy Act K. Paperwork Reduction Act I. Public Participation The Departments invite all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this interim final 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 interim final rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to the Departments in implementing these changes will reference a specific portion of the interim final rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than those listed above, including emails or letters sent to the Departments’ officials, will not be considered comments on the interim final rule and may not receive a response from the Departments. Instructions: If you submit a comment, you must include the agency name and the DHS Docket No. USCIS– 2021–0012 for this rulemaking. All submissions will be posted, without change, to the Federal eRulemaking PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 18079 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 information provided in comments from public viewing that they determine may impact the privacy of an individual or that 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 may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published. II. Executive Summary A. Background On August 20, 2021, the Departments published an NPRM in the Federal Register proposing to amend the regulations governing the process for further consideration of asylum and related protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. See Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 FR 46906 (Aug. 20, 2021). The preamble discussion in the NPRM, including the detailed presentation of the need for reforming the system for processing asylum and related protection claims at the Southwest border, is generally adopted by reference in this IFR, except to the extent specifically noted in this IFR, or in the context of proposed regulatory text that is not contained in this IFR. To reform and improve the process, the NPRM proposed revisions to 8 CFR parts 208, 235, 1003, 1208, and 1235. Those proposed revisions fell into five main categories. First, individuals subject to expedited removal and found to have a credible fear of persecution or torture would 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 E:\FR\FM\29MRR2.SGM 29MRR2 18080 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 Convention Against Torture (‘‘CAT’’) 1 protection initially adjudicated by USCIS following a nonadversarial interview before an asylum officer. Second, individuals granted protection by USCIS would be entitled to asylum, statutory withholding of removal, or protection under the CAT, as appropriate, without further adjudication. Third, individuals not granted protection would be ordered removed by the asylum officer but would have the ability to seek prompt, de novo review with an immigration judge (‘‘IJ’’) in EOIR through a newly established procedure, with appeal available to the Board of Immigration Appeals (‘‘BIA’’) and the Federal courts. Fourth, individuals placed in expedited removal proceedings would be eligible for consideration for parole from custody in accordance with section 212(d)(5) of the Act, if DHS determined, in the exercise of its discretion and on a case-by-case basis, that parole is warranted because, inter alia, detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities). Finally, the NPRM proposed to restore the expedited removal framework and credible fear screening processes that were in place before various regulatory changes made from late 2018 through late 2020. Specifically, the longstanding ‘‘significant possibility’’ screening standard would apply once more to all such protection claims arising from expedited removal proceedings initiated pursuant to section 235(b)(1) of the Act, and the mandatory bars to asylum and withholding of removal (with limited exception) would not apply at this initial screening stage. The comment period for the NPRM opened on August 20, 2021, and closed on October 19, 2021, with 5,235 public comments received. The Departments summarize and respond to the public comments below in Section IV of this preamble. B. Legal Authority The Departments are publishing this IFR pursuant to their respective and joint authorities concerning asylum, statutory withholding of removal, and protection under the CAT. Section 235 of the INA provides that if an asylum officer determines that a noncitizen subject to expedited removal has a 1 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). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 credible fear of persecution, the noncitizen shall receive ‘‘further consideration of the application for asylum.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This IFR addresses how that further consideration, including of the noncitizen’s related claims to statutory withholding of removal and CAT protection, will occur. Section 208 of the INA authorizes the ‘‘Secretary of Homeland Security or the Attorney General’’ to ‘‘grant asylum’’ to a noncitizen—including a noncitizen subject to expedited removal under section 235(b) of the INA—‘‘who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section.’’ INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see INA 208(a)(1), 8 U.S.C. 1158(a)(1) (referencing asylum applications by noncitizens subject to expedited removal under section 235(b) of the INA, 8 U.S.C. 1225(b)); see also INA 208(d)(1), (d)(5)(B), 8 U.S.C. 1158(d)(1), (d)(5)(B) (further authorizing rulemaking concerning asylum applications). These provisions of the INA reflect that 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. See, e.g., HSA 101, 441, 451(b), 471, 1511(d)(2), 6 U.S.C. 111, 251, 271(b), 551(d)(2). By operation of the HSA, certain references to the ‘‘Attorney General’’ in the INA are understood to refer to the Secretary. HSA 1517, 6 U.S.C. 557. As amended by the HSA, the INA thus ‘‘charge[s]’’ 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 grants the Secretary the power to ‘‘establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority’’ under the immigration laws, INA 103(a)(3), 8 U.S.C. 1103(a)(3). The Secretary’s authority thus includes the authority to publish regulations governing the apprehension, inspection and admission, detention and removal, withholding of removal, and release of noncitizens 2 encountered in the interior of the United States or at or between the U.S. ports of entry. See INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231. Certain 2 This rule uses the term ‘‘noncitizen’’ as equivalent to the statutory term ‘‘alien.’’ See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 of the Secretary’s authorities have been delegated within DHS to the Director of USCIS.3 USCIS asylum officers conduct credible fear interviews, make credible fear determinations, and determine whether a noncitizen’s affirmative asylum application should be granted. See 8 CFR 208.2(a), 208.9(a), 208.30. In addition, under the HSA, the Attorney General retains authority to ‘‘establish such regulations . . ., issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out’’ his authorities under the INA. HSA 1102, INA 103(g)(2), 8 U.S.C. 1103(g)(2). The Attorney General also retains authority over certain individual immigration adjudications, including removal proceedings pursuant to section 240 of the INA, 8 U.S.C. 1229a (‘‘section 240 removal proceedings,’’ ‘‘section 240 proceedings,’’ or ‘‘240 proceedings’’), and certain adjudications related to asylum applications, conducted by IJs within DOJ’s EOIR. See HSA 1101(a), 6 U.S.C. 521(a); INA 103(g), 8 U.S.C. 1103(g). With limited exceptions, IJs within EOIR adjudicate asylum and withholding of removal applications filed by noncitizens during the pendency of section 240 removal proceedings, and IJs also adjudicate asylum applications referred by USCIS to the immigration court. 8 CFR 1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 8 U.S.C. 1101(b)(4), 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3). The United States is a party to the 1967 United Nations Protocol Relating to the Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (‘‘Refugee Protocol’’), which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (‘‘Refugee Convention’’). Article 33 of the Refugee Convention contains a qualified nonrefoulement obligation to refrain from expelling or returning ‘‘a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’’ 19 U.S.T. at 6276. The United States implements its obligations under Article 33 of the Refugee Convention (via the Refugee Protocol) through the statutory withholding of removal 3 See DHS, Delegation to the Bureau of Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); see also 8 CFR 2.1, 208.2(a), 208.30. E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which provides that a noncitizen may not be removed to a country where his or her life or freedom would be threatened on account of one of the protected grounds listed in Article 33 of the Refugee Convention. The Foreign Affairs Reform and Restructuring Act of 1998 (‘‘FARRA’’) provides the Departments with the authority to ‘‘prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.’’ Public Law 105–277, div. G, sec. 2242(b), 112 Stat. 2681. In addition, FARRA includes the following policy statement: ‘‘It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture . . . . ’’ Id., sec. 2242(a). DHS and DOJ have promulgated various regulations implementing U.S. obligations under Article 3 of the CAT, consistent with FARRA. See, e.g., 8 CFR 208.16(c) through (f), 208.17, and 208.18; Regulations Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), as corrected by 64 FR 13881 (Mar. 23, 1999). Section 212 of the INA vests in the Secretary the discretionary authority to grant parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Section 103 of the INA authorizes the Secretary to establish rules and regulations governing parole. INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3). C. Changes in the IFR After carefully reviewing the public comments received in response to the NPRM, this IFR makes 23 changes to the regulatory provisions proposed in the NPRM, many of which were recommended or prompted by commenters. The regulatory changes pertain to both the DHS and DOJ regulations. As also described below, procedurally, the Departments could issue a final rule. However, the Departments are publishing this IFR rather than proceeding to a final rule in order to provide the public with an additional opportunity to comment. Although not legally required, the additional opportunity to comment on the IFR’s changes to the NPRM is VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 desirable given the new procedures and scheduling deadlines applicable to the IFR’s streamlined EOIR process, the limited time between issuance of this IFR and when the first cases will be calendared for hearings, and the changes made to facilitate a shift from the proceedings proposed in the NPRM to the IFR’s streamlined 240 proceedings. The Departments therefore solicit further public comment on the IFR’s revisions, which will be considered and addressed in a final rule. 1. Revisions to the Proposed DHS Regulations First, in new 8 CFR 208.30(g)(1)(i), this rule provides that USCIS may, in its discretion, reconsider a negative credible fear finding with which an IJ has concurred, provided such reconsideration is requested by the applicant or initiated by USCIS no more than 7 days after the concurrence by the IJ, or prior to the noncitizen’s removal, whichever date comes first. USCIS, however, will not accept more than one such request for reconsideration of a negative credible fear finding. Second, this rule adds a new 8 CFR 208.4(b)(2) to clarify that noncitizens whose asylum applications are retained by USCIS for further consideration following a positive credible fear determination may subsequently amend or correct the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or supplement the information collected during the process that concluded with a positive credible fear determination, provided the information is submitted directly to the asylum office no later than 7 days prior to the scheduled asylum interview, or for documents submitted by mail, postmarked no later than 10 days prior to the interview. This rule further provides that, upon the asylum officer finding good cause in an exercise of USCIS discretion, the asylum officer may consider amendments or supplements submitted after the 7- or 10-day submission deadline or may grant the applicant an extension of time during which the applicant may submit additional evidence, subject to the limitation on extensions described in new 8 CFR 208.9(e)(2) and provided in new 8 CFR 208.4(b)(2). In new 8 CFR 208.9(e)(2), this rule further provides that, in the absence of exigent circumstances, an asylum officer shall not grant any extensions for submission of additional evidence that would prevent a decision from being issued to the applicant within 60 days of service PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 18081 of the positive credible fear determination. Third, this rule provides in new 8 CFR 208.2(a)(1)(ii), 208.30(f), 1208.2, and 1208.30(g) that USCIS may further consider the asylum application of a noncitizen found to have a credible fear of persecution or torture through a nonadversarial merits interview conducted by an asylum officer when such application is retained by USCIS or referred to USCIS by an IJ after an IJ has vacated a negative credible fear determination. Such nonadversarial merits interviews are known as ‘‘Asylum Merits interviews’’ and are governed by the procedures in 8 CFR 208.9. Fourth, this rule provides in new 8 CFR 208.9(b) that, in the case of a noncitizen whose case is retained by USCIS for an Asylum Merits interview, an asylum officer will also elicit all relevant and useful information bearing on the applicant’s eligibility for statutory withholding of removal and CAT protection. This rule provides that if the asylum application is not granted, the asylum officer will determine whether the noncitizen is eligible for statutory withholding of removal in accordance with 8 CFR 208.16(b) or CAT protection pursuant to 8 CFR 208.16(c). See 8 CFR 208.16(a), (c). Even if the asylum officer determines that the applicant has established eligibility for statutory withholding of removal or protection under the CAT, the asylum officer shall proceed with referring the asylum application to the IJ for a hearing pursuant to 8 CFR 208.14(c)(1). See 8 CFR 208.16(a). If the asylum application includes a dependent (that is, a spouse or child who is in the United States and is included on the principal applicant’s application as a dependent, cf. 8 CFR 208.30(a), 208.14(f)) who has not filed a separate application and the principal applicant is determined to not to be eligible for asylum, the asylum officer will elicit sufficient information to determine whether there is a significant possibility that the dependent has experienced or fears harm that would be an independent basis for protection prior to referring the family to the IJ for a hearing. See 8 CFR 208.9(b). If the asylum officer determines that there is a significant possibility that the dependent has experienced or fears harm that would be an independent basis for asylum, statutory withholding of removal, or protection under the CAT, the asylum officer shall inform the dependent of that determination. See id. USCIS also intends to inform dependents that they may request their own credible fear determination and E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18082 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations may separately file an asylum application if they choose to do so. If a spouse or child who was included in the principal’s request for asylum does not separately file an asylum application that is adjudicated by USCIS, the principal’s asylum application will be deemed by EOIR to satisfy EOIR’s application filing requirements for the spouse or child as principal applicants. See 8 CFR 208.3(a)(2), 1208.3(a)(2). Fifth, this rule provides in 8 CFR 208.9(a)(1) that USCIS shall not schedule an Asylum Merits interview for further consideration of an asylum application following a positive credible fear determination fewer than 21 days after the noncitizen has been served a record of the positive credible fear determination. The asylum officer shall conduct the interview within 45 days of the date that the positive credible fear determination is served on the noncitizen, subject to the need to reschedule an interview due to exigent circumstances. See 8 CFR 208.9(a)(1). Sixth, this rule includes language from existing regulations, currently in effect, in 8 CFR 208.9(d), that was inadvertently not included in the NPRM’s proposed regulatory text related to USCIS’s discretion to limit the length of a statement or comment and require its submission in writing. See 8 CFR 208.9(d)(1). Seventh, this rule removes language proposed in the NPRM in 8 CFR 208.9(f)(2) related to having the Asylum Merits record include verbatim audio or video recordings, and provides that the interview will be recorded and a verbatim transcript of the interview shall be included in the record. See 8 CFR 208.9(f)(2). Eighth, this rule clarifies in 8 CFR 208.9(g)(2) that if a USCIS interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7. The rule continues to provide that, for asylum applications retained by USCIS for further consideration, if the applicant is unable to proceed effectively in English, the asylum officer shall arrange for the assistance of an interpreter in conducting the Asylum Merits interview. See 8 CFR 208.9(g)(2). Ninth, although the NPRM proposed to amend 8 CFR 208.10(a) to provide that, for noncitizens whose cases are retained by USCIS for further consideration of their asylum application after a positive credible fear determination, failure of a noncitizen to appear for an Asylum Merits interview might result in the issuance of an order of removal, no changes to 8 CFR VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 208.10(a) are being made in this IFR. Failure to appear may result in referral of the noncitizen to section 240 removal proceedings before an IJ as well as dismissal of the asylum application. See 8 CFR 208.10(a). Tenth, in 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), this rule establishes the regulatory authority for consideration for parole of noncitizens in expedited removal or in expedited removal with pending credible fear determinations consistent with the current regulation at 8 CFR 212.5(b). Eleventh, the rule includes a technical amendment to 8 CFR 212.5(b) to incorporate a reference to 8 CFR 235.3(b). Twelfth, in 8 CFR 235.3(c)(2), this rule includes a technical amendment to establish the regulatory authority for consideration for parole of noncitizens whose asylum applications are retained by USCIS for further consideration following a positive credible fear determination consistent with the current regulation at 8 CFR 212.5(b). Thirteenth, the IFR includes edits to 8 CFR 208.14 and 8 CFR 1208.14 to emphasize that asylum officers’ decisions on approval, denial, referral, or dismissal of an asylum application remain subject to review within USCIS, and an edit to 8 CFR 208.14(c)(1) to make clear that an asylum applicant described in 8 CFR 208.14(c)(4)(ii)(A), if not granted asylum, may first be placed into expedited removal and receive a positive credible fear screening before being referred to an IJ. 2. Revisions to the Proposed DOJ Regulations In the fourteenth change from the NPRM, this rule neither adopts the NPRM’s proposal to create a new IJ review process when USCIS does not grant asylum nor requires the applicant to affirmatively request such review. Instead, this rule requires DHS to refer noncitizens whose applications for asylum are not granted to section 240 removal proceedings by issuing a Notice to Appear (‘‘NTA’’). However, this rule adds 8 CFR 1240.17 to DOJ’s regulations, which will impose streamlining measures to enable such proceedings to be completed more expeditiously than ordinary section 240 proceedings involving cases that originate from the credible fear process. The rules and procedures that apply during all section 240 proceedings will generally apply to cases governed by the new 8 CFR 1240.17, but the rule’s additional procedural requirements will further ensure efficient adjudication while preserving fairness. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Fifteenth, this rule does not adopt the NPRM’s proposed evidentiary limitations, which would have required the noncitizen to demonstrate that any additional evidence or testimony to be considered by the IJ was not duplicative of that considered by the asylum officer and was necessary to fully develop the record. Instead, with the exception of time limits, the long-standing evidentiary standards for section 240 removal proceedings will apply as provided in new 8 CFR 1240.17(g)(1). To ensure expeditious adjudication, this rule imposes deadlines for the submission of evidence as specified in new 8 CFR 1240.17(f). In general, new 8 CFR 1240.17(f)(2) requires the respondent to submit any additional documentary evidence by the time of the status conference which, under new 8 CFR 1240.17(f)(1), is held 30 days, or the next available date no later than 35 days, after the master calendar hearing unless a continuance or a filing extension is granted. Under new 8 CFR 1240.17(f)(3)(i), DHS must file any documents 15 days prior to the merits hearing or, if the IJ determines a merits hearing is not warranted, 15 days following the status conference. New 8 CFR 1240.17(f)(3)(ii) allows the respondent to submit a supplemental filing replying to DHS and identifying any additional witnesses or documentation 5 days prior to the merits hearing or, if the IJ determines a merits hearing is not warranted, 25 days following the status conference. These deadlines may be extended in accordance with the continuances and extension provisions in new 8 CFR 1240.17(h), and an IJ may otherwise accept late-filed evidence pursuant to new 8 CFR 1240.17(g)(2) under certain circumstances, including if required to do so under statute or the Constitution. Sixteenth, the rule provides that streamlined section 240 removal proceedings for cases covered by the new 8 CFR 1240.17, where the USCIS Asylum Merits interview record is transmitted to EOIR for review, will generally be adjudicated under an expedited timeline. The master calendar hearing will occur 30 to 35 days after DHS commences proceedings as provided in new 8 CFR 1240.17(b) and (f)(1). Any merits hearing will be held 60 days after the master calendar hearing, or on the next available date no later than 65 days after the master calendar hearing, see 8 CFR 1240.17(f)(2), subject to continuance and filing extension requests as outlined in new 8 CFR 1240.17(h). This rule also imposes time limits for an IJ to issue a decision as provided in new 8 CFR E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 1240.17(f)(5). To ensure expeditious adjudication, this rule adopts the NPRM’s requirement that USCIS must file the complete record of proceedings for the Asylum Merits interview, including the transcript and decision, with the immigration court and serve it on the respondent pursuant to new 8 CFR 1240.17(c). Additionally, as in the NPRM, this rule does not require the respondent to complete and file a new asylum application, but instead provides that the record of the positive credible determination shall be treated as satisfying the application filing requirements subject to any supplementation or amendment, and shall further be deemed to satisfy EOIR’s application filing requirements for any spouse or child included in the cases referred by USCIS and who has not separately filed an asylum application that was adjudicated by USCIS, as provided in new 8 CFR 1208.3(a)(2). See 8 CFR 1240.17(e). Seventeenth, to prepare cases for expeditious adjudication, this rule requires IJs to hold status conferences to take place 30 days after the master calendar hearing, or if a hearing cannot be held on that date, on the next available date no later than 35 days after the master calendar hearing, as outlined in new 8 CFR 1240.17(f)(2). This rule requires both parties to participate at the status conference, although the level of participation required by the respondent depends on whether the respondent has legal representation. At a minimum, as required by new 8 CFR 1240.17(f)(2)(i)(A), if the respondent will contest removal or seek any protection(s) for which the asylum officer did not determine the respondent eligible, the respondent shall indicate whether the respondent intends to testify, present any witnesses, or offer additional documentation. If a respondent thereafter obtains legal representation, nothing in the IFR prohibits respondent’s counsel from supplementing statements or submissions made by the respondent during the status conference so long as there is no delay to the merits hearing or a filing deadline or, if the case will be delayed, the respondent satisfies the IFR’s provisions governing continuances and filing extensions. Under new 8 CFR 1240.17(f)(2)(ii) and (f)(3), if DHS will participate in the case, DHS shall, at the status conference or in a written statement filed no later than 15 days prior to the scheduled merits hearing (or if the IJ determines that no such hearing is warranted, no later than 15 days following the status conference), set forth its position on the respondent’s VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 application and identify contested issues of law or fact, among other things. Where DHS has elected to participate in the case but does not timely provide its position as required under paragraph (f)(2)(ii), the IJ has authority pursuant to new 8 CFR 1240.17(f)(3)(i) to deem claims or arguments previously advanced by the respondent unopposed, subject to certain exceptions. The purpose of the status conference and these procedural requirements is to identify and narrow the issues and ready the case for a merits hearing. Eighteenth, under new 8 CFR 1240.17(f)(2)(i)(B), a respondent may choose to concede removability and not seek asylum, in which case the IJ will issue an order of removal and deny asylum, but the IJ shall, with a limited exception, give effect to a determination by an asylum officer that the respondent is eligible for statutory withholding of removal or protection under the CAT. DHS may not appeal a grant of statutory withholding of removal or protection under the CAT in this context to the BIA except to argue that the IJ should have denied the application(s) based on certain evidence, as provided in new 8 CFR 1240.17(i)(2). Nineteenth, new 8 CFR 1240.17(h) establishes standards for continuances during these streamlined section 240 removal proceedings. The rule adopts a ‘‘good cause’’ standard for respondentrequested continuances or filing extensions that would delay any merits hearing up to certain limits as detailed in new 8 CFR 1240.17(h)(2)(i). Any such continuance or extension generally shall not exceed 10 days. When the respondent has received continuances or filing extensions that cause a merits hearing to occur more than 90 days after the master calendar hearing, the rule requires the respondent to meet a heightened standard for further continuances or extensions as provided in new 8 CFR 1240.17(h)(2)(ii). Pursuant to new 8 CFR 1240.17(h)(2)(iii), any further continuances or extensions requested by the respondent that would cause a merits hearing to occur more than 135 days after the master calendar hearing may be granted only if the respondent demonstrates that failure to grant the continuance or extension would be contrary to statute or the Constitution. DHS may receive continuances or extensions based on significant Government need, as outlined in new 8 CFR 1240.17(h)(3), which will not count against the limits on respondent-requested continuances. Further, as provided in new 8 CFR 1240.17(h)(2)(iv) and (h)(4), any delay due to exigent circumstances shall not PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 18083 count toward the limits on continuances or extensions. Twentieth, new 8 CFR 1240.17(f)(4)(i) and (ii) provide that in certain circumstances the IJ may decide the respondent’s application without holding a merits hearing, including where neither party has elected to provide testimony and DHS has declined to cross-examine the respondent or where the IJ intends to grant the application and DHS has not elected to examine the respondent or present evidence or witnesses. Under these provisions, the IJ shall still hold a hearing if the IJ decides that a hearing is necessary to fulfill the IJ’s duty to fully develop the record. Twenty-first, new 8 CFR 1240.17(i)(2) provides that, where the asylum officer does not grant asylum but determines the respondent is eligible for statutory withholding of removal or CAT relief, and where the IJ subsequently denies asylum and issues a removal order, the IJ shall generally give effect to the asylum officer’s determination(s). In such circumstances, the IJ shall issue a removal order, but the IJ shall give effect to the asylum officer’s determination by granting statutory withholding of removal or protection under the CAT unless DHS presents evidence or testimony that specifically pertains to the respondent, that was not in the record of proceedings for the USCIS Asylum Merits interview, and that demonstrates that the respondent is not eligible for the protection in question. Twenty-second, this rule sets forth certain exceptions from the procedures and timelines summarized above. Under new 8 CFR 1240.17(k), such exceptions include the following circumstances: The respondent was under the age of 18 on the date that the NTA was issued and is not in consolidated removal proceedings with an adult family member; the respondent has produced evidence demonstrating prima facie eligibility for relief or protection other than asylum, statutory withholding of removal, voluntary departure, or CAT relief and the respondent is seeking to apply for, or has applied for, such relief or protection; the respondent has produced evidence supporting a prima facie showing that the respondent is not subject to removal, and the question of removability cannot be resolved simultaneously with the adjudication of the applications for asylum and related protection; the IJ finds the respondent subject to removal to a country other than the country or countries in which the respondent claimed a fear of persecution, torture, or both before the asylum officer and the respondent claims a fear of persecution, torture, or E:\FR\FM\29MRR2.SGM 29MRR2 18084 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations both in that alternative country or countries; the case is on remand or has been reopened following the IJ’s order; or the respondent exhibits indicia of mental incompetency. Finally, DOJ is making technical edits in 8 CFR 1003.42 to conform with changes to DHS regulations proposed in the NPRM and adopted in this rule related to the credible fear screening process in new 8 CFR 208.30(e). D. Provisions of the IFR The Departments carefully considered the 5,235 public comments received, and this IFR generally adopts the framework proposed in the NPRM with certain modifications as explained in this rule. This rule also relies on the justifications articulated in the NPRM, except as reflected in this preamble. lotter on DSK11XQN23PROD with RULES2 1. Credible Fear Screening Process The Departments are generally returning to the regulatory framework governing the credible fear screening process in place before various regulatory changes were made from the end of 2018 through the end of 2020, which currently are not in effect.4 As 4 On November 9, 2018, the Departments issued an 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) (‘‘Presidential Proclamation Bar IFR’’). A month later, the U.S. District Court for the Northern District of California preliminarily enjoined the Departments from implementing the IFR, 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) (‘‘Third Country Transit (TCT) Bar IFR’’), 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 the TCT Bar IFR. 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) (‘‘TCT Bar rule’’), which again attempted to bar from asylum eligibility those noncitizens who transited through 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 the TCT Bar rule, which remains in place as of this VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 provided in this IFR, DHS is amending 8 CFR 208.30(b) to return to providing that noncitizens subject to expedited removal who indicate an intention to apply for asylum, or who express a fear of persecution or torture, or a fear of return to the noncitizen’s country, shall be screened by a USCIS asylum officer for a credible fear of persecution or torture (rather than a credible fear of persecution, reasonable possibility of persecution, or reasonable possibility of torture). All references in 8 CFR 208.30 and 8 CFR 235.6 to a ‘‘credible fear of persecution, reasonable possibility of persecution, or a reasonable possibility of torture’’ are replaced with ‘‘credible fear of persecution or torture’’ or ‘‘credible fear.’’ DHS is further amending 8 CFR 208.30(b) to provide that the asylum officer to whom such a noncitizen is referred for a credible fear screening may, in USCIS’s discretion and with supervisory concurrence, refer the noncitizen for proceedings under section 240 of the Act without making a credible fear determination. DHS is amending 8 CFR 208.30(c) to provide for the inclusion of a noncitizen’s concurrently arriving spouse or child in the noncitizen’s positive credible fear evaluation and determination, unless the noncitizen declines such inclusion. Additionally, DHS is amending 8 CFR 208.30(c) to provide asylum officers with the discretion to include a noncitizen’s other concurrently arriving family members in the noncitizen’s positive credible fear evaluation and determination for purposes of family unity. writing. E. Bay Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663, 668 (N.D. Cal. Feb. 2021). Around the same time that the Departments issued the final TCT Bar rule, they 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 Global Asylum rule. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021) (‘‘Pangea II’’). That preliminary injunction remains in place as of this writing. 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 Security Bars rule’s effective date to December 31, 2022, as the Departments consider possible action to rescind or revise the rule. See Security Bars and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021). PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 DHS is amending 8 CFR 208.30(e) to return to defining ‘‘credible fear of persecution’’ as ‘‘a significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen’s] claim and such other facts as are known to the [asylum] officer, that the [noncitizen] can establish eligibility for asylum under section 208 of the Act or for withholding of removal under section 241(b)(3) of the Act.’’ DHS is further amending 8 CFR 208.30(e) to return to defining ‘‘credible fear of torture’’ as ‘‘a significant possibility that the [noncitizen] is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to [8 CFR] 208.16 or [ ] 208.17.’’ Additionally, as provided in the NPRM, DHS is amending 8 CFR 208.30(e)(5) to return to the existing and two-decade-long practice of not applying at the credible fear screening the mandatory bars to applying for, or being granted, asylum that are contained in sections 208(a)(2)(B)–(D) and (b)(2) of the Act, including any bars established by regulation under section 208(b)(2)(C) of the Act, or bars to eligibility for statutory withholding of removal, with limited exceptions. DHS is maintaining the regulations related to the threshold screening under the safe third country agreement with Canada in 8 CFR 208.30(e)(6), but making technical edits to change ‘‘credible fear of persecution, reasonable possibility of persecution, or reasonable possibility of torture’’ to ‘‘credible fear of persecution or torture’’ to align the terminology with the rest of this IFR. DHS will continue to require supervisory review of all credible fear determinations before they can become final. See 8 CFR 208.30(e)(8). Consistent with the NPRM, this IFR amends 8 CFR 208.30(g) to return to providing that once an asylum officer has made a negative credible fear determination, if a noncitizen refuses or fails to either request or decline IJ review, such refusal or failure to make an indication will be considered a request for IJ review. In those instances, the noncitizen will be served with a Form I–863, Notice of Referral to Immigration Judge. If, upon review of an asylum officer’s negative credible fear determination, the IJ finds the noncitizen possesses a credible fear of persecution or torture, the IJ shall vacate the Form I–860, Notice and Order of Expedited Removal, and remand the case to DHS for further consideration of the application for asylum. Alternatively, DHS may commence section 240 removal proceedings, during which the noncitizen may file an E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations application for asylum and withholding of removal. If the IJ concurs with the negative credible fear determination, DHS can execute the individual’s expedited removal order, promptly removing the individual from the United States. In comparison to the NPRM, in this IFR, DHS is amending 8 CFR 208.30(g) to provide that USCIS may, in its discretion, reconsider a negative credible fear determination with which an IJ has concurred, provided such reconsideration is requested by the noncitizen or initiated by USCIS no more than 7 days after the concurrence by the IJ, or prior to the noncitizen’s removal, whichever date comes first, and further provided that no previous request for consideration has already been made.5 There is no change for noncitizens who do not elect to have their determination reviewed by an IJ. Any reconsideration request made prior to review by an IJ will be treated as an election for review by an IJ. See 8 CFR 208.30(g)(1). lotter on DSK11XQN23PROD with RULES2 2. Applications for Asylum Under section 235(b)(1)(B)(ii) of the Act, noncitizens who receive a positive credible fear determination from a USCIS asylum officer are referred for ‘‘further consideration of the application for asylum.’’ As provided in the NPRM, this rule establishes a new process by which such ‘‘further consideration’’ may occur, wherein a noncitizen will have their asylum claim adjudicated following an Asylum Merits interview before a USCIS asylum officer in the first instance, rather than by an IJ in section 240 removal proceedings. See 8 CFR 208.30(f). In issuing both the NPRM and this IFR, the Departments concluded that the expedited removal process presented an opportunity for establishing a more efficient process for making protection determinations for those coming to our borders. The credible fear interview process creates a unique opportunity for the protection claim to be presented to a trained asylum officer and documented; that documentation can then initiate and facilitate a merits adjudication. Unlike those noncitizens who are placed directly into section 240 removal proceedings after apprehension at the border, noncitizens placed instead into expedited removal and who subsequently make a fear claim are referred to USCIS for an interview under oath. Rather than move noncitizens who 5 Reconsideration requests made by noncitizens of negative credible fear determinations already affirmed by an IJ are colloquially known as requests for reconsideration (‘‘RFRs’’). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 receive positive credible fear determinations directly into section 240 proceedings—which is what happens to noncitizens apprehended at the border who are not placed into expedited removal—the Departments have determined that it is appropriate to establish a more efficient process that includes the involvement of USCIS and the creation of a documented record of the noncitizen’s protection claim during the credible fear screening process. By treating the record of the credible fear determination as an asylum application and by issuing a follow-up interview notice when the credible fear determination is served, USCIS will be able to promptly schedule and conduct an interview on the merits of the noncitizen’s protection claims and issue a final decision. For those noncitizens not granted asylum by USCIS, the IFR’s process will also create a more complete record of the principal applicant’s protection claims, as well as those of their spouse or child included on the application and interviewed during the Asylum Merits interview. EOIR can then use the rationale of the USCIS determination in a streamlined section 240 removal proceeding. Consistent with the NPRM, DHS is amending 8 CFR 208.3 to address application and filing requirements for noncitizens over whom USCIS retains jurisdiction for further consideration of asylum applications pursuant to the Asylum Merits process established by this rule. DHS is amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(2), that the written record of a positive credible fear finding satisfies the asylum application filing requirements in 8 CFR 208.3(a)(1). DHS is further amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(1) and (2), that noncitizens placed in the Asylum Merits process are subject neither to the general requirement in 8 CFR 208.3(a)(1) that asylum applicants file a Form I–589, Application for Asylum and for Withholding of Removal, nor to the benefit request submission requirements of 8 CFR 103.2. Consistent with the NPRM, DHS is also amending 8 CFR 208.3(a) to provide that the written record of the positive credible fear determination shall be considered a complete asylum application for purposes of the one-year filing deadline at 8 CFR 208.4(a), requests for employment authorization based on a pending application for asylum under 8 CFR 208.7, and the completeness requirement at 8 CFR 208.9(a); shall not be subject to the requirements of 8 CFR 103.2; and shall be subject to the conditions and PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 18085 consequences in 8 CFR 208.3(c) upon signature at the Asylum Merits interview, as described in new 8 CFR 208.3(a)(2). DHS is amending 8 CFR 208.3(c)(3) to provide that receipt of a properly filed asylum application under 8 CFR 208.3(a) commences the period after which a noncitizen may file an application for employment authorization based on a pending asylum application. DHS is further amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(2), that the date that the positive credible fear determination is served on the noncitizen shall be considered the date of filing and receipt. DHS is further amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(2), that 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 and any subsequent immigration benefit. DHS is amending current 8 CFR 208.4(c), rather than 8 CFR 208.3(a)(2) as provided in the NPRM, and redesignating it as 8 CFR 208.4(b), with certain modifications as compared to the NPRM, to provide the noncitizen the opportunity to subsequently amend or correct the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or supplement the information collected during the process that concluded with a positive credible fear determination, within a specified time frame (7 or 10 days, depending on the method of submission) prior to the scheduled Asylum Merits interview. DHS is further amending current 8 CFR 208.4(c) to provide, in new 8 CFR 208.4(b)(2), that, finding good cause in an exercise of USCIS’s discretion, the asylum officer may consider amendments or supplements submitted after the 7- or 10-day submission deadline or may grant the applicant an extension of time during which the applicant may submit additional evidence, subject to the limitation on extensions described in 8 CFR 208.9(e)(2). In the absence of exigent circumstances, an asylum officer shall not grant any extensions for submission of additional evidence that would prevent an Asylum Merits decision from being issued to the applicant within 60 days of service of the positive credible fear determination, as described in new 8 CFR 208.9(e)(2). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18086 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 3. Proceedings for Further Consideration of the Application for Asylum by USCIS Through Asylum Merits Interview for Noncitizens With Credible Fear Under the framework in place prior to this rulemaking, if an asylum officer determined that a noncitizen subject to expedited removal had a credible fear of persecution or torture, DHS placed the noncitizen before an immigration court for adjudication of the noncitizen’s claims by initiating section 240 removal proceedings. Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), however, authorizes a procedure for ‘‘further consideration of [an] application for asylum’’ that may commence outside of section 240 removal proceedings. Consistent with the NPRM, DHS is amending 8 CFR 208.2(a) to provide that USCIS may take initial jurisdiction to further consider the application for asylum, in an Asylum Merits interview, of a noncitizen, other than a stowaway and a noncitizen physically present in or arriving in the Commonwealth of the Northern Mariana Islands (‘‘CNMI’’), found to have a credible fear of persecution or torture. DHS is amending 8 CFR 208.9(b) to provide that the purpose of the Asylum Merits interview shall be to elicit all relevant and useful information bearing on the applicant’s eligibility for asylum. In comparison to the NPRM, DHS is further amending 8 CFR 208.9(b) to provide that, in the case of a noncitizen whose case is retained by USCIS for an Asylum Merits interview, an asylum officer will also elicit all relevant and useful information bearing on the applicant’s eligibility for statutory withholding of removal and CAT protection. This rule further provides in 8 CFR 208.16(a) that, in the case of a noncitizen whose case is retained by or referred to USCIS for an Asylum Merits interview and whose asylum application is not approved, the asylum officer will determine whether the noncitizen is eligible for statutory withholding of removal under 8 CFR 208.16(b) or withholding or deferral of removal pursuant to the CAT under 8 CFR 208.16(c). In comparison to the NPRM, DHS is amending 8 CFR 208.9(a) to provide that USCIS shall not schedule an Asylum Merits interview for further consideration of an asylum application following a positive credible fear determination fewer than 21 days after the noncitizen has been served a record of the positive credible fear determination. The asylum officer shall conduct the interview within 45 days of the date that the positive credible fear determination is served on the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 noncitizen subject to the need to reschedule an interview due to exigent circumstances, as provided in new 8 CFR 208.9(a)(1). Consistent with the NPRM, DHS is amending 8 CFR 208.9 to specify the procedures for such interviews before an asylum officer. With limited exception, these amendments generally provide that the same procedures applicable to affirmative asylum interviews will also apply to interviews under this rule, such as the right to have counsel present, 8 CFR 208.9(b), at no expense to the Government. In this IFR, DHS also includes language from existing regulations in 8 CFR 208.9(d) that was inadvertently not included in the NPRM’s proposed regulatory text related to the USCIS’s discretion to limit the length of a statement or comment and require its submission in writing. As was stated in the NPRM, DHS is amending 8 CFR 208.9(f) to provide, in new 8 CFR 208.9(f)(2), that for Asylum Merits interviews, a verbatim transcript of the interview will be included in the referral package to the immigration judge. However, DHS is removing the language proposed in the NPRM regarding the record also including a verbatim audio or video recording in new 8 CFR 208.9(f)(2). DHS believes that recording the interview in order to produce a verbatim transcript that will be included in the record is sufficient to meet the aims of the rule.6 DHS is amending 8 CFR 208.9(g) to provide, in new 8 CFR 208.9(g)(2), that if a noncitizen is unable to proceed effectively in English at an Asylum Merits interview, the asylum officer shall arrange for the assistance of an interpreter in conducting the interview. In comparison to the NPRM, this rule provides in new 8 CFR 208.9(g)(2) that if a USCIS interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for purposes eligibility for employment authorization. In comparison to the revisions proposed in the NPRM, this IFR leaves existing 8 CFR 208.10 unchanged—thus providing that a noncitizen’s failure to appear for an Asylum Merits interview may result in the referral of the application for consideration in section 240 removal proceedings before an IJ (as opposed to the issuance of an order of removal). See 8 CFR 208.10(a)(1). In 8 CFR 208.14(b), USCIS continues to implement its authority to grant asylum in any case within its 6 The Departments may consider making available a process by which parties to EOIR proceedings under 8 CFR 1240.17 will be able to timely review, upon request, the recording of the USCIS Asylum Merits interview. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 jurisdiction. In comparison to the NPRM, DHS is amending 8 CFR 208.14(c) and 208.16(a) and (c) to provide that if an asylum officer conducting an Asylum Merits interview for further consideration of an asylum application after a positive credible fear determination does not grant asylum to an applicant, the asylum officer will determine whether the applicant is eligible for statutory withholding of removal or CAT protection. The asylum officer will not issue an order of removal as proposed in the NPRM, nor issue a final decision on an applicant’s request for statutory withholding of removal or CAT protection. Instead, the asylum officer will refer the application—together with the appropriate charging document and written findings of, and the determination on, eligibility for statutory withholding of removal or CAT protection—to an IJ for adjudication in streamlined section 240 removal proceedings. See 8 CFR 208.14(c); 8 CFR 208.16(a), (b), (c)(4); 8 CFR 1208.14(c). The referral of the asylum application of a principal applicant to the IJ will also include any dependent of that principal applicant, as appropriate. See 8 CFR 208.3(a)(2), 208.14(c)(1). If the asylum application includes a dependent who has not filed a separate application and the principal applicant is determined to not to be eligible for asylum, the asylum officer will elicit sufficient information to determine whether there is a significant possibility that the dependent has experienced or fears harm that would be an independent basis for protection prior to referring the family to the IJ for a hearing. See 8 CFR 208.9(b), (i). If a spouse or child who was included in the principal’s request for asylum does not separately file an asylum application that is adjudicated by USCIS, the principal’s asylum application will be deemed by EOIR to satisfy EOIR’s application filing requirements for the spouse or child as principal applicants. See 8 CFR 1208.3(a)(2). 4. Streamlined Section 240 Removal Proceedings Before the Immigration Judge DOJ is adding 8 CFR 1240.17, which shall govern section 240 removal proceedings for respondents whose cases originate from the credible fear process and who have not been granted asylum after an initial adjudication by an asylum officer, pursuant to 8 CFR 208.14(c)(1). The general rules and procedures that govern all other removal proceedings under section 240 apply to removal proceedings covered by this E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations rule with certain exceptions designed to streamline the proceedings and account for the unique procedural posture of these cases. Under new 8 CFR 1240.17(b), USCIS will issue an NTA to any noncitizen not granted asylum by USCIS after an Asylum Merits interview held pursuant to 8 CFR 208.2(a), with the master calendar hearing in these streamlined section 240 proceedings scheduled for 30 to 35 days after service of the NTA. Under new 8 CFR 1240.17(e), the record of the proceedings for the interview before the asylum officer and the asylum officer’s decision shall be admitted as evidence and considered by the IJ. Moreover, this rule provides that a respondent is not required to separately prepare and file a Form I– 589, Application for Asylum and for Withholding of Removal, and that the record of the positive credible fear determination satisfies the application filing requirements for the principal applicant as well as for any dependent included in the referral and who did not separately file an asylum application that was adjudicated by USCIS. See 8 CFR 208.3(a), 1208.3(a), 1240.17(e). That is, any spouse or child included in the referral will be deemed to have satisfied EOIR’s application filing requirements as a principal applicant. The Departments have determined that it is appropriate for cases under this rule to proceed on a streamlined time frame before the IJ as claims will have been significantly developed and analyzed by USCIS before the IJ proceedings start, the record will be available for review by the IJ, and respondents will not be required to prepare and file an asylum application. Accordingly, the rule establishes timelines for certain hearings to occur as provided in new 8 CFR 1240.17(f)(1)– (4). As set forth in new 8 CFR 1240.17(h), the rule imposes limitations on the length of continuances and filing extensions that can be granted before a respondent must satisfy a heightened standard to receive additional continuances or filing extensions that have the effect of further delaying a hearing required under the rule. The rule also imposes certain procedural requirements and gives IJs additional tools designed to narrow the issues and ready the case for a merits hearing, if necessary. Under new 8 CFR 1240.17(f)(1) and (2), the rule requires the IJ to hold a status conference 30 days after the master calendar hearing or, if a status conference cannot be held on that date, on the next available date no later than 35 days after the master calendar hearing, and imposes obligations on both parties to participate VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 at the conference, although the level of participation required by the respondent depends on whether the respondent has legal representation. If DHS indicates that it will participate in the case, DHS has an obligation under new 8 CFR 1240.17(f)(2)(ii) and (f)(3) to set forth its position on the respondent’s application and identify contested issues of law or fact (including which elements, if any, of the respondent’s claim(s) it is challenging), among other things. In certain circumstances, where DHS does not respond in a timely manner to the respondent’s claims, the IJ has authority to deem those claims unopposed, as provided in new 8 CFR 1240.17(f)(3)(i). However, DHS may respond at the merits hearing to any arguments or claimed bases for asylum first advanced by the respondent after the status conference. See 8 CFR 1240.17(f)(3)(i). Where DHS has indicated that it will not participate in a merits hearing, the rule allows DHS, in certain, limited instances, to retract this position prior to the merits hearing, as provided in new 8 CFR 1240.17(f)(2)(ii). The rule allows IJs to hold additional status conferences if the case is not ready for a merits hearing, as provided in new 8 CFR 1240.17(f)(2). Under new 8 CFR 1240.17(f)(4), the IJ may forgo a merits hearing and decide the respondent’s application on the documentary record (1) if neither party has requested to present testimony and DHS has indicated that it waives crossexamination, or (2) if the noncitizen has timely requested to present testimony, DHS has indicated that it waives crossexamination and does not intend to present testimony or produce evidence, and the IJ concludes that the application can be granted without further testimony. The rule preserves the IJ’s ability to hold a merits hearing if the IJ decides that it is necessary to fulfill the IJ’s duty to fully develop the record. If the case cannot be decided on the documentary record, the new 8 CFR 1240.17(f)(2) requires the IJ to hold a merits hearing 60 days after the master calendar hearing or, if a hearing cannot be held on that date, on the next available date no later than 65 days after the master calendar hearing. At the merits hearing, the respondent may testify fully and offer any additional evidence that has been submitted in compliance with the time limits on evidentiary filings under the normal evidentiary standards that apply to 240 removal proceedings as provided in new 8 CFR 1240.17(f)(4)(iii)(A) and (g)(1). If the proceedings cannot be completed at the scheduled merits hearing, the IJ shall schedule any continued merits hearing as soon as possible but no later PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 18087 than 30 days after the initial merits hearing except in case of a continuance or extension as provided in 8 CFR 1240.17(f)(4)(iii)(B). Under new 8 CFR 1240.17(f)(5), the IJ is required, wherever practicable, to issue an oral decision on the date of the final merits hearing or, if the IJ concludes that no hearing is necessary, no later than 30 days after the status conference. Where issuance of an oral decision on such date is not practicable, the IJ must issue an oral or written decision as soon as practicable, and in no case more than 45 days after the applicable date described in the preceding sentence. See 8 CFR 1240.17(f)(5). Under new 8 CFR 1240.17(i)(2), if the IJ denies asylum but an asylum officer has determined that the respondent is eligible for statutory withholding of removal or protection under the CAT with respect to the proposed country of removal, then the IJ shall enter an order of removal but give effect to the asylum officer’s eligibility determination by granting the applicable form of protection, unless DHS demonstrates that evidence or testimony that specifically pertains to the respondent and that was not in the record of proceedings for the USCIS Asylum Merits interview establishes that the respondent is not eligible for such protection. Under new 8 CFR 1240.17(f)(2)(i)(B), the rule similarly provides that where an asylum officer has declined to grant asylum but has determined that the respondent is eligible for statutory withholding of removal or protection under the CAT with respect to the proposed country of removal, the respondent may elect not to contest removal and not pursue a claim for asylum before the IJ but still receive statutory withholding of removal or CAT protection. In such a case, the rule provides that the IJ shall enter an order of removal but give effect to the asylum officer’s eligibility determination by granting the applicable form of protection, unless DHS makes a prima facie showing through evidence that specifically pertains to the respondent and that was not in the record of proceedings for the USCIS Asylum Merits interview that the respondent is not eligible for such protection. Similarly, new 8 CFR 1240.17(d) further provides that an IJ must give effect to an asylum officer’s determination that a noncitizen is eligible for statutory withholding of removal or protection under the CAT, even if the noncitizen is ordered removed in absentia, unless DHS makes a prima facie showing through evidence that specifically pertains to the E:\FR\FM\29MRR2.SGM 29MRR2 18088 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 respondent and that was not in the record of proceedings for the USCIS Asylum Merits interview that the respondent is not eligible for such protection. In addition, new 8 CFR 1240.17(l) makes clear that DHS may, in keeping with existing regulations, seek to terminate such protection.7 Finally, the rule specifically exempts certain cases that cannot be expedited under the circumstances from the timelines and other expedited aspects of the streamlined 240 proceedings. See 8 CFR 1240.17(k). Such exceptions include the following circumstances: The respondent was under the age of 18 on the date that the NTA was issued and is not in consolidated removal proceedings with an adult family member, 8 CFR 1240.17(k)(1); the respondent has produced evidence of prima facie eligibility for relief or protection other than asylum, statutory withholding of removal, protection under the CAT, and voluntary departure, and the respondent is seeking to apply for, or has applied for, such relief or protection, 8 CFR 1240.17(k)(2); 8 the respondent has produced evidence that supports a prima facie showing that the respondent is not removable and the IJ determines that the issue of whether the respondent is removable cannot be resolved simultaneously with the adjudication of the applications for asylum and related protection, 8 CFR 1240.17(k)(3); the IJ finds the respondent subject to removal to a country other than the country or countries in which the respondent claimed a fear of persecution, torture, or both before the asylum officer and the respondent claims a fear of persecution, torture, or both in that alternative country or countries, 8 CFR 1240.17(k)(4); the case is on remand or has been reopened following the IJ’s order, 8 CFR 1240.17(k)(5); or the respondent exhibits indicia of mental incompetency, 8 CFR 1240.17(k)(6). The provisions at 8 CFR 1240.17(f), (g), and (h), which pertain to the schedule of proceedings, to the consideration of evidence and testimony, and to continuances, adjournments, and filing 7 Nothing in this rule alters the existing regulatory provisions governing termination of withholding or deferral; these provisions apply to any noncitizen whose removal has been withheld or deferred, whether through the procedure established in this rule or otherwise. See 8 CFR 208.17(d), 208.24(f), 1208.17(d), 1208.24(f). 8 The rule does not specify the particular type of evidence that must be produced in order to demonstrate prima facie eligibility for relief. Such evidence could include testimonial evidence as well as documentary evidence. The rule further does not require that a completed application for the relief at issue be filed with the immigration court. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 extensions, will not apply in such cases. The other provisions in 8 CFR 1240.17, however, will apply. 5. Parole DHS is amending 8 CFR 235.3(b)(2)(iii) to permit parole of detained individuals whose inadmissibility is being considered in the expedited removal process, or who have been ordered removed under the expedited removal process, only on a case-by-case basis for urgent humanitarian reasons or significant public benefit, which includes, as interpreted in longstanding regulations, see 8 CFR 212.5(b), circumstances in which continued detention is not in the public interest, provided that the noncitizen presents neither a security risk nor a risk of absconding. Similarly, DHS is amending 8 CFR 235.3(b)(4)(ii) to permit parole of detained individuals pending a credible fear interview and any review of an asylum officer’s credible fear determination by an IJ only on a case-by-case basis for urgent humanitarian reasons or significant public benefit, including if continued detention is not in the public interest, provided that the noncitizen presents neither a security risk nor a risk of absconding. This rule further finalizes, as proposed, that such 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 8 CFR 274a.12(c)(11). See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). The IFR also includes a technical amendment to 8 CFR 212.5(b) to incorporate a reference to 8 CFR 235.3(b). Parole is not guaranteed but instead considered on a case-by-case basis to determine whether it is warranted as a matter of discretion; DHS also may impose reasonable conditions on parole such as periodic reporting to U.S. Immigration and Customs Enforcement (‘‘ICE’’). See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5(d).9 Additionally, DHS is including in this rule a technical amendment to 8 CFR 235.3(c)(2) to provide that parole of noncitizens with positive credible fear determinations whose asylum applications are retained by USCIS for further consideration through the Asylum Merits process is permissible only on a case-by-case basis for urgent humanitarian reasons or significant public benefit, including if continued detention is not in the public interest, 9 Noncitizens who are paroled are not considered to be ‘‘admitted’’ to the United States. See INA 101(a)(13)(B), 212(d)(5)(A); 8 U.S.C. 1101(a)(13)(B), 1182(d)(5)(A). PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 provided that the noncitizen presents neither a security risk nor a risk of absconding. This technical amendment is necessary to clarify that the parole authority pertaining to noncitizens awaiting an Asylum Merits interview with USCIS under this rule will be consistent with 8 CFR 212.5, just as the parole authority pertaining to detained noncitizens subject to expedited removal who are placed in section 240 removal proceedings is consistent with 8 CFR 212.5. As noted above, parole is not guaranteed but instead considered on a case-by-case basis to determine whether it is warranted as a matter of discretion. E. Summary of Costs and Benefits The primary individuals and entities that this rule is expected to affect are: (1) Noncitizens who are placed into expedited removal and who receive a credible fear screening; (2) the support networks of asylum applicants who receive a positive credible fear determination; (3) USCIS; and (4) EOIR. The expected impacts to these individuals and entities and to others are detailed in Section V.B of this preamble. In brief, by reducing undue delays in the asylum adjudication system, and by providing a variety of procedural safeguards, the rule protects equity, human dignity, and fairness given that individuals who are eligible for asylum or other protection may receive that protection more promptly, while individuals who are ineligible may more promptly be ordered removed. In the Departments’ judgment, these benefits—which are difficult or impossible to quantify—along with the benefits of the rule that are more amenable to quantification, amply justify the aggregate costs of the rule. The rule’s impact on affected noncitizens (and, in turn, on their support networks) may vary substantially from person to person depending on, among other things, whether the individual receives a positive credible fear determination and whether the individual’s asylum claim is granted or not granted by USCIS. For example, some individuals may benefit more from an earlier grant of asylum because they may be able to enter the labor force sooner. And individuals who establish credible fear may benefit from cost savings associated with no longer having to file a Form I–589, Application for Asylum and for Withholding of Removal. The Departments have estimated the human resource- and informationrelated expenditures required for USCIS to implement this rule. These estimates are developed along three population E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations bounds to account for possible variations in the number of credible fear screenings in future years. Implementation of the rule also is expected to reduce EOIR’s workload, allowing EOIR to focus efforts on other priority work and to reduce the growth of its substantial current backlog. That expected reduction in workload would result from (1) cases in which USCIS grants asylum never reaching EOIR, resulting in a potential 15 percent reduction in EOIR’s caseload originating from credible fear screening (assuming historic grant rates), and (2) many of the cases reaching EOIR being resolved with less investment of immigration court time and resources than they would have required if referred directly to EOIR in the first instance. An important caveat to the Departments’ estimates of the potential costs and benefits associated with this rule is that it will take time to fully implement the rule, as the Departments intend to take a phased approach to implementing the rule. lotter on DSK11XQN23PROD with RULES2 F. Effective Date This IFR will be effective 60 days from the date of publication in the Federal Register. This rule applies prospectively and only to adults and families who are placed in expedited removal proceedings and indicate an intention to apply for asylum, a fear of persecution or torture, or a fear of return to their home country, after the rule’s effective date. The rule does not apply to unaccompanied children, as they are statutorily exempt from expedited removal proceedings. See 8 U.S.C. 1232(a)(5)(D)(i) (providing that ‘‘any unaccompanied alien child’’ whom DHS seeks to remove ‘‘shall be . . . placed in removal proceedings under section 240’’ of the INA); see also 6 U.S.C. 279(g)(2) (defining ‘‘unaccompanied alien child’’).10 The rule also does not apply to individuals in the United States who are not apprehended at or near the border and subject to expedited removal.11 Such individuals will 10 In lieu of being placed in section 240 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. See 8 U.S.C. 1232(a)(2). 11 The former Immigration and Naturalization Service (‘‘INS’’) initially implemented expedited removal processes only for certain noncitizens arriving at ports of entry. In 2002, DHS, by designation, expanded the application of expedited removal to certain 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) had not been continuously present in the United States for at least 2 years. Notice VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 continue to have their asylum claims heard in section 240 removal proceedings in the first instance, or through an affirmative asylum application under section 208 of the INA, 8 U.S.C. 1158, if they have not yet been placed in immigration proceedings. The rule also does not apply to (1) stowaways or (2) noncitizens who are physically present in or arriving in the CNMI who are determined to have a credible fear. Such individuals will continue to be referred to asylum-and-withholding-only proceedings before an IJ under 8 CFR 208.2(c). III. Discussion of the IFR The principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection. The IFR accomplishes this purpose both by instituting a new process for resolving the cases of noncitizens who have been found to have a credible fear of persecution or torture and by facilitating the use of expedited removal for more of those who are eligible, and especially for populations whose detention presents particular challenges. When individuals 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); 8 CFR 208.30. Under 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 certain 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 certain noncitizens, not covered by prior designations, who entered the country without inspection less than two 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. Executive Order 14010, Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, 86 FR 8267, 8270–71 (Feb. 2, 2021). On March 21, 2022, DHS published a Federal Register Notice rescinding the 2019 designation. See Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 FR 16022 (Mar. 21, 2022). PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 18089 procedures in place immediately prior to the effective date of this IFR, individuals who receive a positive credible fear determination are referred to an immigration court for section 240 removal proceedings, during 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 an NTA, for full consideration of the asylum and withholding of removal claim in proceedings under section 240 of the Act’’). As explained in the NPRM, it may take years before the individual’s protection claim is first adjudicated by an IJ. This delay creates additional stress and uncertainty 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, are unable to lawfully work until their asylum application has been granted or has remained pending for several months, and are unable to petition for qualified family members, some of whom may still be at risk of harm. Moreover, 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. Such additional entrants only further increase the backlog and lengthen the delays. To respond to this problem, this rule at 8 CFR 208.2(a)(1)(ii) and 208.9 provides USCIS the authority to adjudicate in the first instance the asylum claims of individuals who receive a positive credible fear determination, and further provides that USCIS does so following a nonadversarial interview by an asylum officer. The rule also provides at 8 CFR 208.3(a)(2) that the record of a credible fear interview will serve as an asylum application for noncitizens whose cases are retained by or referred back to USCIS for adjudication after a positive credible fear determination, thereby allowing cases originating with a credible fear screening to be adjudicated substantially sooner. Both the Departments and the noncitizen can avoid the burden caused by delays associated with otherwise requiring the noncitizen to file a Form I–589, Application for Asylum and for Withholding of Removal. See Section IV.D.4.a of this preamble. By E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18090 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations authorizing USCIS to adjudicate in the first instance the asylum claims of individuals who receive a positive credible fear determination and by making it possible for this adjudication to be made promptly and independently of EOIR, the Departments predict that the rule will also help to stem the rapid growth of the EOIR caseload, described in greater detail in the NPRM. See 86 FR 46937. As for the noncitizen, this change reduces potential barriers to protection for eligible applicants by enabling asylum seekers to meet the statutory requirement to apply for asylum within one year of arrival, avoiding the risk of filing delays, and immediately beginning the waiting period of work authorization eligibility. See id. at 46916. Any spouse or child who arrived with the principal asylum applicant and is included as a dependent on the principal applicant’s positive credible fear determination may make a separate claim for protection and submit their own principal asylum application to USCIS for consideration. As noted in the NPRM, 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. From 2018 through 2020, however, several attempts were made to change the credible fear screening process. Many of these attempts have been initially vacated or enjoined, and the implementation of others has been delayed pending consideration of whether they should be revised or rescinded.12 The Global Asylum rule, which is enjoined, revised regulations to provide that noncitizens with positive credible fear determinations would be placed in asylum-and-withholding-only proceedings before an IJ. See 85 FR 80276. In the Global Asylum rule, the Departments explained their view that placing such noncitizens in asylum-andwithholding-only proceedings before an IJ would ‘‘bring the proceedings in line with the statutory objective that the expedited removal process be streamlined and efficient,’’ id., and later noted that it would ‘‘lessen the strain on the immigration courts by limiting the focus of such proceedings and thereby streamlining the process,’’ id. at 80286. The Departments provided that these asylum-and-withholding-only proceedings would follow the same rules of procedure that apply in section 240 proceedings and that a noncitizen could appeal their case to the BIA and Federal circuit courts, as necessary. See id. at 80289. The Departments 12 See supra note 4 (discussing recent regulations and their current status). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 acknowledged that IJs often adjudicate multiple forms of relief in a single removal proceeding, in addition to asylum, statutory withholding of removal, or CAT protection claims, and stated that those additional issues ‘‘generally only serve to increase the length of the proceedings’’ and that ‘‘there may be rare scenarios in which [noncitizens] subject to expedited removal are eligible for a form of relief other than asylum.’’ Id. In the Global Asylum rule, the Departments concluded that placing noncitizens with positive credible fear determinations into more limited asylum-andwithholding-only proceedings properly balanced the need to prevent noncitizens from being removed to countries where they may face persecution or torture with ensuring efficiency in the overall adjudication process. See id. This rule offers another approach. It establishes 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 appropriate safeguards against error.13 The rule authorizes USCIS to adjudicate in the first instance the asylum 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 will use to adjudicate these claims will be nonadversarial, and the decisions will be made within time frames consistent with those established by Congress in section 208(d)(5)(A) of the INA, 8 U.S.C. 1158(d)(5)(A).14 The Departments believe that the approach in this rule, in contrast to the approach outlined in the Global Asylum rule, will allow for noncitizens’ claims 13 Section 4(b)(i) of Executive Order 14010, Creating a Comprehensive Regional Framework to Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, instructed the Secretary 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 and protection claims] and adherence to standards of fairness and due process.’’ 86 FR 8267, 8270 (Feb. 2, 2021). 14 See INA 208(d)(5)(A)(ii)–(iii), 8 U.S.C. 1158(d)(5)(A)(ii)–(iii) (specifying that an initial interview or hearing on an asylum application should generally commence within 45 days after the filing of the application and that final administrative adjudication should generally be completed within 180 days after the filing of the application). PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 to be heard more efficiently and fairly. As further explained in this rule, allowing noncitizens with positive credible fear determinations to have their asylum, statutory withholding, and CAT protection claims heard in a nonadversarial setting before an asylum officer capitalizes on the investment of time and expertise that USCIS has already made and, for the subset of cases in which asylum is granted by USCIS, saves investment of time and resources by EOIR and ICE. See Sections II.C. and IV.D.5 of this preamble. The extensive and well-rounded training that asylum officers receive is designed to enable them to conduct nonadversarial interviews in a fair and sensitive manner. This rule will 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. If the asylum officer does not grant asylum following an Asylum Merits interview, the noncitizen will be referred to an IJ for streamlined section 240 removal proceedings, with a structure that provides for the prompt resolution of their claims and that allows the noncitizen to seek other forms of relief. If the asylum application includes a dependent who has not filed a separate application and the principal applicant is determined not to be eligible for asylum, the asylum officer will elicit sufficient information to determine whether there is a significant possibility that the applicant’s dependent has experienced or fears harm that would be an independent basis for protection prior to referring the family to the IJ for a hearing. This will allow EOIR to consider all family members to have separately filed an asylum application once the family is placed into the streamlined section 240 removal proceedings. This IFR will help more effectively achieve many of the goals outlined in the Global Asylum rule—including improving efficiency, streamlining the adjudication of asylum, statutory withholding of removal, and CAT protection claims, and lessening the strain on the immigration courts—albeit with a different approach. This rule helps meet the goal of lessening the strain on the immigration courts by having USCIS asylum officers adjudicate asylum claims in the first instance, rather than IJs. As explained further in this rule, the Departments anticipate that the number of cases USCIS refers to EOIR for adjudication will decrease. See Sections IV.F.1.a and V.B.4.b.ii of this preamble. In contrast to the Global Asylum rule, in this rule, the E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 Departments are amending regulations to include several time frames for the adjudication process and particular procedural requirements designed to streamline the overall process and take advantage of the record created by the asylum officer, while still providing noncitizens with a full and fair opportunity to present testimony and evidence in support of their claims before an IJ. See Sections II.A.4 and III.D of this preamble. Accordingly, these changes better meet the Departments’ goals of improving efficiency and streamlining the process. In addition, upon reconsideration, the Departments recognize that giving noncitizens the opportunity to seek other forms of relief within the context of streamlined section 240 removal proceedings helps reduce barriers to accessing other immigration benefits that may be available, and that the potential benefits to noncitizens of having such an opportunity outweigh efficiency concerns. The Departments clarify that nothing in this rule 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 an NTA to place the noncitizen in ordinary section 240 removal proceedings at any time after they are referred to USCIS for a credible fear determination. See 8 CFR 208.30(b), (f); Matter of J–A–B– & I–J–V– A–, 27 I&N Dec. 168, 171 (BIA 2017); Matter of E–R–M– & L–R–M–, 25 I&N Dec. 520, 523 (BIA 2011). Moreover, should any provision of the rule governing the USCIS process for cases covered by 8 CFR 208.2(a)(1)(ii) be enjoined or vacated, EOIR has the discretion to place into ordinary section 240 proceedings any case referred to EOIR under this section. A. Credible Fear Screening Process The credible fear screening regulations under this rulemaking generally 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 and determined to be inadmissible pursuant to INA 212(a)(6)(C) or (a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), can be placed in 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. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 1225(b)(1)(A)(ii), (B); 8 CFR 235.3(b)(4), 1235.3(b)(4). 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 ‘‘significant possibility’’ standard, which presently applies to all relevant protection claims because the regulatory changes referenced above have been vacated or enjoined.15 The Departments are returning to codifying the historical practice of applying the ‘‘significant possibility’’ standard across all forms of protection screened in the credible fear process. This rule adopts the ‘‘significant possibility’’ standard for credible fear screening for purposes of asylum, statutory withholding of removal, and CAT protection. While the statutory text at INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), only defines ‘‘credible fear’’ for purposes of screening asylum claims, the Departments believe that the efficiency gained in screening the same or a closely related set of facts using the same legal standard at the same time is substantial and should not be overlooked. Moreover, the credible fear screening process is preliminary in nature; its objective is to sort out, without undue decision costs, which cases merit further consideration. See generally INA 235(b)(1)(B); 8 U.S.C. 1225(b)(1)(B). Efficiently using one standard of law at the preliminary step is consistent with that objective, even though the ultimate adjudication of a noncitizen’s claim for each form of protection may require a distinct analysis. The standard for establishing a credible fear of persecution under the INA requires ‘‘a significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen’s] claim and such other facts as are known to the officer, that the [noncitizen] could establish eligibility for asylum under section 208’’ of the INA. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). While the ‘‘significant possibility’’ standard for the purpose of screening for asylum is established by statute, the statute does not specify a standard to be used in screening for statutory withholding of removal or CAT protection. In June 2020, the Departments proposed alternative standards for statutory withholding of removal and CAT protection. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264, 15 See supra note 4 (discussing recent regulations and their current status). PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 18091 36268 (June 15, 2020) (‘‘Global Asylum NPRM’’). Under that proposed rule, ‘‘asylum officers would consider whether [noncitizens] could establish a credible fear of persecution, a reasonable possibility of persecution, or a reasonable possibility of torture.’’ Id. at 36269. In finalizing that rule, the Departments noted that in changing the standard of law for withholding of removal and deferral of removal, an individual’s ‘‘screening burdens would become adequately analogous to the merits burdens, where the [individual’s] burdens for statutory withholding of removal and protections under the CAT regulations are higher than the burden for asylum.’’ Global Asylum rule, 85 FR 80277. However, pursuant to an Executive order and with the additional context of the court’s injunction against the implementation of the Global Asylum rule in Pangea II,16 the Departments have reviewed and reconsidered that rule. See Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, 86 FR 8277 (Feb. 2, 2021) (‘‘E.O. on Legal Immigration’’) (ordering review of existing regulations for consistency with the E.O. on Legal Immigration). In line with this review, the Departments have revisited the approach of having divergent standards applied during the credible fear screening and determined that keeping one standard in screening for asylum, statutory withholding, and CAT protection better promotes an efficient credible fear screening process. In multiple rulemaking efforts, the Departments promulgated divergent standards for asylum and withholding of removal, along with variable standards for individuals barred from certain types of protection.17 However, in working to create efficiencies within this process, as well as recognizing that the Departments have signaled their intention to either modify or rescind these rules,18 adhering to the legal standard that was set by Congress in section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v), is the logical 16 See supra note 4 (discussing recent regulations and their current status). 17 See supra note 4 (describing the TCT Bar IFR, Presidential Proclamation Bar IFR, and Security Bars rule). 18 See Executive Office of the President, Office of Management and Budget (‘‘OMB’’), Office of Information and Regulatory Affairs (‘‘OIRA’’), Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/ public/do/eAgendaHistory (last visited Mar. 5, 2022) (select DHS or DOJ); Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, https:// www.reginfo.gov/public/do/eAgendaMain (last visited Mar. 5, 2022) (select DHS or DOJ). E:\FR\FM\29MRR2.SGM 29MRR2 18092 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 choice. See 86 FR 46914. Upon reconsideration, the Departments believe that the varied legal standards created by different rulemakings, and enjoined or vacated by legal challenges, defeat their intended purpose, and complicate and extend the initial screening process provided for in INA section 235. Having asylum officers apply varied legal standards would generally lead to the need to elicit additional testimony from noncitizens at the time of the credible fear screening interview, which lengthens credible fear interviews and increases adjudication times. In the Departments’ view, the delays associated with complicating and extending every credible fear interview likely outweigh any efficiencies gained by potential earlier detection of individuals who may be barred from or ineligible for certain types of protection. For example, when the TCT Bar IFR was in effect,19 asylum officers were required to spend additional time during any interview where the bar potentially applied developing the record related to whether the bar applied, whether an exception to the bar might have applied, and, if the noncitizen appeared to be barred and did not qualify for an exception to the bar, developing the record sufficiently such that a determination could be made according to the higher reasonable fear standard. This additional time spent developing the record when the higher reasonable fear standard applied decreased the efficiency of the screening interviews themselves and complicated the analysis asylum officers were required to perform, thus contributing to the overall lengthening of the entire process. In the Global Asylum NPRM, the Departments stated that ‘‘[r]aising the standards of proof to a ‘reasonable possibility’ for the screening of 19 The TCT Bar IFR went into effect on July 16, 2019, see 84 FR 33829, and was vacated on June 30, 2020, see Capital Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d at 45–57. The TCT Bar rule went into effect on January 19, 2021. See 85 FR 82260. However, it did not have an impact on credible fear processing. The TCT Bar rule did not directly make any amendments to the credible fear regulations at 8 CFR 208.30 and instead relied on changes to the credible fear regulations made by the Global Asylum rule in order to apply the TCT bar in credible fear. On January 8, 2021, the Global Asylum rule was preliminarily enjoined. See Pangea II, 512 F. Supp. 3d 966. As a result of the preliminary injunction in Pangea II, the amendments to 8 CFR 208.30 made by the Global Asylum rule were enjoined. Thus, the bar to asylum eligibility at 8 CFR 208.13(c)(4) established in the TCT Bar rule did not apply in credible fear while the Global Asylum rule remained enjoined. The TCT Bar rule itself was enjoined on February 16, 2021. See E. Bay Sanctuary Covenant, 519 F. Supp. 3d at 668. Therefore, only the TCT Bar IFR ever went into effect. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 [noncitizens] seeking statutory withholding of removal and CAT protection would allow the Departments to better screen out non-meritorious claims and focus limited resources on claims much more likely to be determined to be meritorious by an immigration judge.’’ 85 FR 36271. However, based on the Departments’ experience implementing divergent screening standards for asylum, statutory withholding of removal, and CAT protection while the TCT Bar IFR was in effect, no evidence has been identified that this approach resulted in more successful screening out of nonmeritorious claims while ensuring the United States complied with its nonrefoulement obligations. The Departments also reasoned in the Global Asylum NPRM: ‘‘Adopting a higher standard for statutory withholding and CAT screenings would not hinder the streamlined process envisioned for expedited removal. Asylum officers already receive extensive training and guidance on applying the ‘reasonable possibility’ standard in other contexts because they are determining whether a reasonable possibility of persecution or torture exists in reasonable fear determinations pursuant to 8 CFR 208.31. In some cases, asylum officers would need to spend additional time eliciting more detailed testimony from [noncitizens] to account for the higher standard of proof; however, the overall impact on the time asylum officers spend making screening determinations would be minimal.’’ 85 FR 36271. However, the Departments have reconsidered these predictions, again based on the experience implementing divergent screening standards while the TCT Bar IFR was in effect. Beyond the additional time asylum officers themselves spent conducting these screening interviews, making determinations, and recording their assessments, supervisory asylum officers reviewing these cases spent additional time assessing whether the varying standards of proof were properly applied to the forms of relief for which asylum officers screened. This effort also required the additional investment of time and resources from Asylum Division headquarters, including training and quality assurance staff who had to develop and deliver guidance and trainings on the new process, monitor the work being conducted in the field to ensure compliance with regulations and administrative processes, and provide guidance to asylum officers and supervisory asylum officers on individual cases. Attorneys from the PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 USCIS Office of Chief Counsel had to spend time and resources reviewing and advising on training materials and guidance issued by the Asylum Division, as well as on individual cases on which legal advice was sought to ensure proper application of the divergent screening standards on various forms of relief. IJs reviewing negative determinations by asylum officers were also compelled to spend additional time ensuring the proper application of these screening standards, compared to the time spent reviewing determinations under a single standard in the status quo ante. The Departments failed to account in the relevant rulemakings for the necessity of expending these additional resources beyond time spent by asylum officers themselves making screening determinations. The Departments also stated in the Global Asylum NPRM: ‘‘The procedural aspects of making screening determinations regarding fear of persecution and of torture would remain largely the same. Moreover, using a higher standard of proof in the screening context for those seeking statutory withholding of removal or protection under the CAT regulations in the immigration courts allows the Departments to more efficiently and promptly distinguish between aliens whose claims are more likely or less likely to ultimately be meritorious.’’ 85 FR 36271. However, for the reasons detailed above, the Departments’ experience implementing divergent screening standards while the TCT Bar IFR was in effect demonstrated that these predictions of increased efficiency and promptness did not materialize, undermining congressional intent that the screening process in the expedited removal context operate nimbly and in a truly expedited manner. In clarifying that the ‘‘significant possibility’’ standard applies not only to credible fear screening for asylum, but also to credible fear screening for statutory withholding and CAT protection, the Departments will help ensure that the expedited removal process remains truly expedited, and will allow for asylum officers to adhere to a single legal standard in screening claims for protection from persecution and torture in the expedited removal process. Similarly, through this rulemaking, the Departments are generally returning the regulatory text to codify the pre2018, and current, practice of screening for eligibility for asylum and statutory withholding of removal while not applying most bars to asylum or withholding of removal in the credible E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations fear screening process. The Global Asylum rule, which has been enjoined, attempted to require the application of a significantly expanded list of mandatory bars during credible fear screenings and mandated a negative credible fear finding should any of the bars apply to the noncitizen at that initial stage. See 85 FR 80278; supra note 4. In the Global Asylum NPRM, the Departments justified this change by stating: ‘‘From an administrative standpoint, it is pointless and inefficient to adjudicate claims for relief in section 240 proceedings when it is determined that an alien is subject to one or more of the mandatory bars to asylum or statutory withholding at the screening stage. Accordingly, applying those mandatory bars to aliens at the ‘credible fear’ screening stage would eliminate removal delays inherent in section 240 proceedings that serve no purpose and eliminate the waste of adjudicatory resources currently expended in vain.’’ 85 FR 36272. However, upon reconsideration, the Departments have determined that, in most cases, the stated goal of promoting administrative efficiency can be better accomplished through the mechanisms established in this rulemaking rather than through applying mandatory bars at the credible fear screening stage. The Departments now believe that it is speculative whether, had the Global Asylum rule been implemented, a meaningful portion of the EOIR caseload might have been eliminated because some individuals who were found at the credible fear screening stage to be subject to a mandatory bar would not have been placed into section 240 proceedings. This is particularly true in light of the Global Asylum rule’s preservation of a noncitizen’s ability to request review of a negative credible fear determination (including the application of mandatory bars at the credible fear stage) by an IJ, as well as that rule’s allowance for individuals found subject to a mandatory bar to asylum at the credible fear screen stage to nonetheless have their asylum claims considered by an IJ in asylum-andwithholding-only proceedings if they demonstrate a reasonable possibility of persecution or torture and are not subject to a bar to withholding of removal. Requiring asylum officers to broadly apply mandatory bars during credible fear screenings would have made these screenings less efficient, undermining congressional intent that the expedited removal process be truly expeditious, and would further limit DHS’s ability to use expedited removal VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 to an extent that is operationally advantageous. Requiring asylum officers to broadly apply the mandatory bars at credible fear screening would increase credible fear interview and decision times because asylum officers would be expected to devote time to eliciting testimony, conducting analysis, and making decisions about all applicable bars. For example, when the TCT Bar IFR was in effect,20 asylum officers were required to spend additional time during any interview where the bar potentially applied developing the record related to whether the bar applied, whether an exception to the bar might have applied, and, if the noncitizen appeared to be barred and did not qualify for an exception to the bar, developing the record sufficiently such that a determination could be made according to the higher reasonable fear standard. As another example, a ‘‘particularly serious crime’’ is not statutorily defined in detail, beyond an aggravated felony,21 and offenses typically are designated as particularly serious crimes through case-by-case adjudication—the kind of fact-intensive inquiry requiring complex legal analysis that would be more appropriate in a full adjudication before an asylum officer or in section 240 proceedings with the availability of judicial review than in credible fear screenings.22 Presently, asylum officers ask questions related to all mandatory bars to develop the record sufficiently and identify potential bars but, since mandatory bars are not currently being applied in the credible fear determination, the record does not need to be developed to the level of detail that would be necessary if the issue of a mandatory bar was outcomedeterminative for the credible fear determination. If a mandatory bar were to become outcome determinative, it would be necessary to develop the 20 See supra note 19. INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(i). 22 See Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982) (setting out multi-factor test to determine whether a noncitizen has committed a particularly serious crime, including ‘‘the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community’’); see also Matter of L–S–, 22 I&N Dec. 645, 649 (BIA 1999) (en banc); Matter of G–G–S–, 26 I&N Dec. 339, 343–43 (BIA 2014) (‘‘We have held that for an alien who has not been convicted of an aggravated felony or whose aggravated felony conviction did not result in an aggregate term of imprisonment of 5 years or more, it is necessary to examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction to determine whether the crime was particularly serious.’’). 21 See PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 18093 record sufficiently to make a decision about the mandatory bar such that, depending on the facts, the interview would go beyond its congressionally intended purpose as a screening for potential eligibility for asylum or related protection—and a fail-safe to minimize the risk of refoulement—and would instead become a decision on the relief or protection itself. The level of detailed testimony necessary in some cases to make such a decision would require asylum officers to spend significantly more time developing the record during the interview and conducting additional research following the interview. IJs reviewing negative credible fear determinations where a mandatory bar was applied would, depending on the facts, similarly face a more complicated task, undermining the efficiency of that process as well. Applying a mandatory bar often involves a complex legal and factual inquiry. While asylum officers are trained to gather and analyze such information to determine the applicability of mandatory bars in affirmative asylum adjudications, they are currently instructed to assess whether certain bars may apply in the credible fear screening context. See USCIS, Credible Fear of Persecution and Torture Determinations Lesson Plan 42– 43 (Feb. 13, 2017). The latter assessment is designed to identify any mandatory bar issues requiring further exploration for IJs and the ICE attorneys representing DHS in section 240 removal proceedings, see 6 U.S.C. 252(c), rather than to serve as a comprehensive analysis upon which a determination on the applicability of a bar may be based.23 Because of the complexity of the inquiry required to develop a sufficient record upon which to base a decision to apply certain mandatory bars, such a decision is, in general and depending on the facts, most appropriately made in the context of a full merits interview or hearing, whether before an asylum officer or an IJ, and not in a screening context. Furthermore, the Departments recognize that considerations of procedural fairness counsel against applying mandatory bars that entail extensive fact-finding during the credible fear screening process. In 23 See USCIS, Credible Fear of Persecution and Torture Determinations Lesson Plan 44 (Feb. 13, 2017) (‘‘The officer must keep in mind that the applicability of these bars requires further evaluation that will take place in the full hearing before an immigration judge if the applicant otherwise has a credible fear of persecution or torture. In such cases, the officer should consult a supervisory officer follow procedures on ‘flagging’ such information for the hearing, and prepare the appropriate paperwork for a positive credible fear finding.’’). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18094 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations response to the Global Asylum NPRM, a commenter emphasized that each of the mandatory bars involves intensive legal analysis and asserted that requiring asylum officers to conduct this analysis during a screening interview would result in ‘‘the return of many asylum seekers to harm’s way.’’ Global Asylum rule, 85 FR 80294. Another commenter expressed the concern that ‘‘countless asylum-seekers could be erroneously knocked out of the process based on hasty decisions, misunderstandings, and limited information.’’ Id. at 80295. Upon review and reconsideration, due to the intricacies of the fact-finding and legal analysis often required to apply mandatory bars, the Departments now believe that individuals found to have a credible fear of persecution generally should be afforded the additional time, procedural protections, and opportunity to further consult with counsel that the Asylum Merits process or section 240 removal proceedings provide. In light of these concerns, the Departments have reconsidered their position stated in the preamble to the Global Asylum NPRM that any removal delays resulting from the need to fully consider the mandatory bars in section 240 proceedings ‘‘serve no purpose’’ and amount to ‘‘adjudicatory resources currently expended in vain.’’ 85 FR 36272. As stated above, the Departments now believe that, in many cases, especially when intensive fact-finding is required, the notion that consideration of mandatory bars at the credible fear screening stage would result in elimination of removal delays for individuals subject to the bars is speculative. Moreover, to the extent consideration of mandatory bars in section 240 proceedings does result in delays to removal, the Departments believe in light of the public comments cited above that such delays do serve important purposes—particularly in cases with complicated facts—namely, ensuring that the procedures and forum for determining the applicability of mandatory bars appropriately account for the complexity of the inquiry and afford noncitizens potentially subject to the mandatory bars a reasonable and fair opportunity to contest their applicability. Adjudicatory resources designed to ensure that noncitizens are not refouled to persecution due to the erroneous application of a mandatory bar are not expended in vain. Rather, the expenditure of such resources helps keep the Departments in compliance with Federal law and international treaty obligations. Given the need to preserve the efficiencies Congress intended in VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 making credible fear screening part of the expedited removal process and to ensure procedural fairness for those individuals found to have a significant possibility of establishing eligibility for asylum or statutory withholding of removal but for the potential applicability of a mandatory bar, the Departments have decided that the Global Asylum rule’s broad-based application of mandatory bars at the credible fear screening stage should be rescinded.24 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). The Departments also are recodifying the treatment of a failure or refusal on the part of a noncitizen to request IJ review of a negative credible fear determination as a request for IJ review. See 8 CFR 208.30(g)(1), 1208.30(g)(2)(i). In the Global Asylum rule, the Departments amended regulations to treat a noncitizen’s refusal to indicate whether they would like IJ review as declining IJ review. See 85 FR 80296. The Departments explained that treating refusals as requests for review serves to create unnecessary and undue burdens and that it is reasonable to require an individual to answer affirmatively when asked by an asylum officer if they would like IJ review. See id. In this rule, the Departments are reverting to the pre-existing regulations. Upon reconsideration, the Departments recognize that there may be numerous explanations for a noncitizen’s refusal or failure to indicate whether they would like to seek IJ review—and indeed there will be cases in which a noncitizen wants review but fails to explicitly indicate it. The Departments now conclude that treating any refusal or failure to elect review as a request for IJ review, rather than as a declination of such review, is fairer and better accounts for the range of explanations for a noncitizen’s failure to seek review. Treating such refusals or failures to elect review as requests for IJ review appropriately ensures that any noncitizen who may wish to pursue IJ 24 In addition to the proposed changes to the DOJ portions of the regulations in the NPRM related to the application of mandatory bars in the credible fear process, the IFR also includes a similar edit to 8 CFR 1003.42(d)(1). Both 8 CFR 1003.42 and 8 CFR 1208.30 relate to IJs’ review of asylum officers’ credible fear determinations, and the Departments intend for the regulations to be consistent with regard to the treatment of mandatory bars in the credible fear review process. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 review (that is, any noncitizen who has not, in fact, declined IJ review) has the opportunity to do so. A noncitizen who genuinely wishes to decline review may of course withdraw the request for review before the IJ; in such a case, the IJ will return the noncitizen’s case to DHS for execution of the expedited removal order. See 8 CFR 1208.30(g)(2). In comparison to the NPRM, in this rule, the Departments are amending 8 CFR 208.30(g) to provide, in new 8 CFR 208.30(g)(1)(i), that USCIS may, in its discretion, reconsider a negative credible fear determination with which an IJ has concurred, provided the request for reconsideration is received from the noncitizen or their attorney or initiated by USCIS no more than 7 days after the concurrence by the IJ, or prior to the noncitizen’s removal, whichever date comes first. USCIS’s reconsideration of any such request is discretionary. After an IJ has concurred with a negative credible fear determination, DHS can execute the individual’s expedited removal order, promptly removing the individual from the United States. Under no circumstances, however, will USCIS accept more than one request for reconsideration. The Departments carefully considered the public comments received in response to the NPRM related to the proposal to foreclose any DHS reconsideration of negative credible fear determinations. Based on those comments, the Departments decided to retain the existing regulatory language related to DHS reconsideration, see 8 CFR 208.30(g), but to place reasonable procedural limits on the practice. Accordingly, the Departments are amending the regulation to include numerical and time limitations and clarify that DHS may, in its discretion, reconsider a negative credible fear determination with which an IJ has concurred. These procedural limitations and clarifications are necessary to ensure that reconsideration requests to USCIS do not obstruct the streamlined process that Congress intended in creating expedited removal. These changes also are consistent with 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 negative credible fear determination that serves as the check to ensure that noncitizens who have a credible fear of persecution or torture are not returned based on an erroneous screening determination by USCIS. 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 E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 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 statutory provisions limiting administrative and judicial review and directing expeditious determinations reflect clear congressional intent that expedited removal be a truly expedited process. The numerical and time limitations promulgated in this rule are consistent with congressional intent and with the purpose of the current regulation allowing for such requests. The Departments believe that, over time, the general allowance for reconsideration by USCIS asylum offices came to be used beyond its original intended scope. Such requests have not used a formalized process, since there is currently no formal mechanism for noncitizens to request reconsideration of a negative credible fear determination before USCIS; instead, they are entertained on an informal, ad hoc basis whereby individuals contact USCIS asylum offices with their reconsideration requests after an IJ has affirmed the negative credible fear determination. This informal, ad hoc allowance for such requests, including multiple requests, has proven difficult to manage. To deal with these many requests, USCIS has had to devote time and resources that could more efficiently be used on initial credible fear and reasonable fear determinations, affirmative asylum cases, and now, Asylum Merits interviews with the present rule. B. Applications for Asylum If the noncitizen is found to have a credible fear, this IFR changes the procedure as described above. Under this rule, rather than referring the individual to an IJ for an adversarial section 240 removal proceeding in the first instance, or, as provided for in a presently enjoined regulation, asylumand-withholding-only proceedings before an IJ,25 the individual’s asylum application instead may be retained for further consideration by USCIS through a nonadversarial interview before an asylum officer. See 8 CFR 208.30(f). Similarly, if, upon review of an asylum officer’s negative credible fear 25 See Global Asylum rule, 85 FR 80276; supra note 4 (discussing recent regulations and their current status). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 determination, an IJ finds that an individual does have a credible fear of persecution or torture, the individual also can be referred back to USCIS for further consideration of the individual’s asylum claim. See 8 CFR 1003.42, 1208.30(g). To eliminate delays between a positive credible fear determination and the filing of an application for asylum, the Departments are amending regulations to provide, in new 8 CFR 208.3(a)(2), 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, will be treated as an ‘‘application for asylum,’’ with the date of service on the individual considered the date of filing. Every individual who receives a positive credible fear determination and whose case is retained by USCIS will be considered to have filed an application for asylum at the time the determination is served on them. The application will be considered filed or received as of the service date for purposes of the one-year filing deadline for asylum, see INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), and for starting the waiting period for eligibility to file for employment authorization based upon a pending asylum application, see 8 CFR 208.3(c)(3). The Departments are amending regulations to provide that this application for asylum will be considered a complete application for purposes of 8 CFR 208.4(a), 208.7, and 208.9(a) in order to qualify for an interview and adjudication, and will 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 filing a frivolous asylum application at the time of the Asylum Merits interview, as provided in new 8 CFR 208.3(a)(2).26 26 In addition, the Departments are amending 8 CFR 1208.3 and 1208.4 to account for changes made by this rule, including the provisions that will treat the record of the credible fear determination as an application for asylum in the circumstances addressed by the rule. The amendment at 8 CFR 1208.3(c)(3) affects language that was enacted in the rule entitled ‘‘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. at 81750–51. The December 16, 2020, rulemaking is preliminarily enjoined. See Order at 1, Nat’l Immigrant Justice Ctr. v. Exec. Office for Immigration Review, No. 21–cv–56 (D.D.C. Jan. 14, 2021). This rule makes 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 preliminarily enjoined regulation, will be made through later rulemakings. See Executive Office of PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 18095 The Departments will implement these changes to the credible fear process by having the 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 the credible fear interview, as 8 CFR 208.30(d) already provides and will continue to provide under the IFR, the asylum officer will ‘‘elicit all relevant and useful information’’ for the credible fear determination, create a summary of the material facts presented by the noncitizen during the interview, review the summary with the noncitizen, and allow the noncitizen to correct any errors. The record created will contain the necessary biographical information and sufficient information related to the noncitizen’s fear claim to be considered an application. As a matter of longstanding practice in processing families through credible fear screenings, the information captured by the asylum officer during the credible fear interview will contain information about the noncitizen’s spouse and children, if any, including those who were not part of the credible fear determination—but under this rule only a spouse or child who was included in the credible fear determination issued pursuant to 8 CFR 208.30(c) or who has a pending asylum application with USCIS pursuant to 8 CFR 208.2(a)(1)(ii) can be included as a dependent on the request for asylum.27 See 8 CFR 208.3(a)(2). Any spouse or child included as a dependent on the credible fear determination may request to file a separate asylum application as a the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgenda ViewRule?pubId=202110&RIN=1125-AB15 (last visited Feb. 28, 2022). 27 While only a spouse or child 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 as a dependent on the subsequent asylum application under this 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 section 240 removal proceedings on the asylum application of a principal asylum applicant who is in such section 240 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 not be approved. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18096 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations principal applicant with USCIS at any time while the principal’s asylum application is pending with USCIS. See 8 CFR 208.3(a)(2). A copy of the principal applicant’s application for asylum—the record of the credible fear determination, including the asylum officer’s notes from the interview, the summary of material facts, and other materials upon which the determination was based—will be provided to the noncitizen at the time that the positive credible fear determination is served. See 8 CFR 208.30(f). As provided in new 8 CFR 208.4(b)(2), the noncitizen may subsequently amend or correct the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or supplement the information collected during the process that concluded with a positive credible fear determination, up until 7 days prior to the scheduled Asylum Merits interview before a USCIS asylum officer, or for documents submitted by mail, postmarked no later than 10 days before the scheduled Asylum Merits interview. The asylum officer, finding good cause in an exercise of USCIS discretion, may consider amendments or supplements submitted after the 7- or 10-day submission deadline or may grant the applicant an extension of time during which the applicant may submit additional evidence, subject to the limitation on extensions described in 8 CFR 208.9(e)(2). In new 8 CFR 208.9(e)(2), this rule further provides that, in the absence of exigent circumstances, an asylum officer shall not grant any extensions for submission of additional evidence that would prevent the Asylum Merits decision from being issued to the applicant within 60 days of service of the positive credible fear determination. The Departments believe that such limitations are necessary to ensure that the process remains expeditious while maintaining fairness. 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 ascertain the basis of the noncitizen’s request for protection. Under this rule, 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 oneyear asylum filing deadline, avoiding VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the risk of filing delays, and expeditiously beginning the waiting period for employment authorization eligibility. C. Proceedings for Further Consideration of the Application for Asylum by USCIS Through Asylum Merits Interview for Noncitizens With Credible Fear In this IFR, consistent with the NPRM, the Departments are amending regulations to authorize USCIS asylum officers to conduct Asylum Merits interviews for individuals whose cases are retained for further consideration by USCIS following a positive credible fear determination or returned to USCIS if an IJ vacates an asylum officer’s negative credible fear finding.28 The Departments carefully considered the comments received in response to the NPRM focused on timelines related to Asylum Merits interviews, and, in this IFR, are including regulatory language clarifying timelines for scheduling hearings and providing asylum decisions. As provided in 8 CFR 208.9(a)(1), USCIS will not schedule an Asylum Merits interview for further consideration of an asylum application following a positive credible fear determination fewer than 21 days after the noncitizen has been served a record of the positive credible fear determination, unless the applicant requests in writing that an interview be scheduled sooner. The asylum officer shall conduct the interview within 45 days of the date that the positive credible fear determination is served on the noncitizen—i.e., the date the asylum application is considered filed, see 8 CFR 208.3(a)(2)—subject to the need to reschedule an interview due to exigent circumstances. See 8 CFR 208.9(a)(1). These timelines are consistent with the INA, which provides that, ‘‘in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed.’’ INA 208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). The nonadversarial Asylum Merits interview process will provide several procedural safeguards, such as the following: (1) The applicant may have 28 In addition to the proposed changes to the DHS portion of the regulations in the NPRM, the IFR also includes a similar edit to 8 CFR 1003.42(d)(1). This edit is intended to ensure consistency with 8 CFR 1003.42 and the proposed edits to 8 CFR 1208.30(g)(2) so that both provisions properly direct that a case where an IJ vacates a negative credible fear finding will be referred back to USCIS as intended by both the NPRM and the IFR. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 counsel or a representative present, may present witnesses, and may submit affidavits of witnesses and other evidence, 8 CFR 208.9(b); (2) the applicant or applicant’s representative will have an opportunity to make a statement or comment on the evidence presented and the representative will also have the opportunity to ask followup questions of the applicant and any witness, 8 CFR 208.9(d)(1); (3) a verbatim transcript of the interview will be included in the referral package to the IJ, with a copy also provided to the noncitizen, 8 CFR 208.9(f)(2), 1240.17(c); (4) an asylum officer will arrange for the assistance of an interpreter if the applicant is unable to proceed effectively in English, and if a USCIS interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for purposes of eligibility for employment authorization, 8 CFR 208.9(g); and (5) the failure of a noncitizen to appear for an interview may result in the referral of the noncitizen to section 240 removal proceedings before an IJ, 8 CFR 208.10(a)(1)(iii), unless USCIS, in its own discretion, excuses the failure to appear, 8 CFR 208.10(b)(1). The Departments believe that these procedural safeguards will enhance efficiency and further the expeditious adjudication of noncitizens’ asylum claims, while at the same time balancing due process and fairness concerns. The protection claims considered in Asylum Merits interviews will be adjudicated in a separate queue, apart from adjudications of affirmative asylum applications filed directly with USCIS. Allowing the cases of individuals who receive a positive credible fear determination to remain with USCIS for the Asylum Merits interview, rather than initially referring the case to an IJ for an adversarial section 240 removal proceeding or, as provided for in a presently enjoined regulation, for an asylum-and-withholding-only proceeding,29 will capitalize on the investment of time and expertise that USCIS has already made and, for the subset of cases in which asylum is granted by USCIS, save investment of time and resources by EOIR and ICE. It will 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. The Asylum Merits interview process affords noncitizens a fair opportunity to present their claims. In addition, noncitizens 29 See Global Asylum rule, 85 FR 80276; supra note 4 (discussing recent regulations and their current status). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations who are not granted asylum will be referred to an immigration court for a streamlined section 240 removal proceeding, which means that an IJ will consider their asylum and, as necessary, statutory withholding and CAT protection claims. Overall, these ample procedural safeguards will ensure due process, respect human dignity, and promote equity. Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), authorizes a procedure for ‘‘further consideration’’ of asylum applications that is separate from section 240 removal proceedings. As the Department of Justice recognized over two decades ago, ‘‘the statute is silent as to the procedures for those who . . . demonstrate a credible fear of persecution.’’ Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10320 (Mar. 6, 1997) (interim rule). It ‘‘does not specify how or by whom this further consideration should be conducted.’’ 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). By not specifying what ‘‘further consideration’’ entails, the statute leaves it to the Departments to determine. Under the familiar Chevron framework, it is well-settled that such ‘‘ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’’ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1629 (2018) (noting that Chevron rests on ‘‘the premise that a statutory ambiguity represents an implicit delegation to an agency to interpret a statute which it administers’’ (quotation marks and citation omitted)). An agency may exercise its delegated authority to plug the gap with any ‘‘reasonable interpretation’’ of the statute. Chevron, 467 U.S. at 844. By its terms, the phrase ‘‘further consideration’’ is open-ended. The fact that Congress did not specify the nature of the proceedings for those found to have a credible fear, see INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), contrasts starkly with two other provisions in the same section that expressly require or deny section 240 removal proceedings for certain other classes of noncitizens. In one provision, INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A), Congress provided that an applicant for admission who ‘‘is not VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 clearly and beyond a doubt entitled to be admitted’’ must be ‘‘detained for a proceeding under [INA 240].’’ And in another, INA 235(a)(2), 8 U.S.C. 1225(a)(2), Congress provided that ‘‘[i]n no case may a stowaway be considered . . . eligible for a hearing under [INA 240].’’ This shows that Congress knew how to specifically require or prohibit referral to a section 240 removal proceeding when it wanted to do so. ‘‘Where 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.’’ Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021) (quotation marks and citation omitted). The D.C. Circuit 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 Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009) (quotation marks and citation omitted). That Congress’s silence in section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), permits the Departments discretion to establish procedures for ‘‘further consideration’’ is reinforced by the fact that the noncitizens whom DHS has elected to process 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). If, following an Asylum Merits interview described in this IFR, USCIS grants asylum, the individual may be allowed to remain in the United States indefinitely with the status of asylee and eventually may apply for lawful permanent residence. See INA 208(c)(1), 209(b), 8 U.S.C. 1158(c)(1), 1159(b). If asylum is not granted, the asylum officer will refer the application, together with the appropriate charging document and the record of the Asylum Merits interview, for adjudication in streamlined section 240 removal proceedings before an IJ. See 8 CFR 208.14(c)(1), 1240.17(a). The Departments carefully considered the public comments received in response to the NPRM and reconsidered the proposals outlined in the NPRM related to having USCIS asylum officers make final decisions regarding statutory withholding of removal and CAT protection claims and issue removal orders. See 86 FR 46917–19. In this IFR, DHS is amending 8 CFR 208.9(b) to PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 18097 provide that, in the case of a noncitizen whose case is retained by or referred to USCIS for further consideration through an Asylum Merits interview, an asylum officer will also elicit all relevant and useful information bearing on the applicant’s eligibility for statutory withholding of removal or CAT protection. This IFR further provides in 8 CFR 208.16(a) and (c) that if the asylum application is not granted, the asylum officer will determine whether the noncitizen is eligible for statutory withholding of removal under 8 CFR 208.16(b) or CAT protection under 8 CFR 208.16(c). Asylum officers will not issue orders of removal to applicants who are not granted asylum as proposed in the NPRM, but rather will refer applicants who are not granted asylum to the immigration court for consideration of their protection claims in streamlined section 240 removal proceedings before an IJ. See 8 CFR 208.14(c)(1), 208.16(a). USCIS will not issue a final decision on an applicant’s request for statutory withholding of removal or CAT protection. Rather, pursuant to new 8 CFR 1240.17(d), (f)(2)(i)(B), and (i)(2), if an asylum officer does not grant asylum but determines the noncitizen is eligible for statutory withholding of removal or CAT protection and the IJ does not grant asylum, the IJ will issue a removal order and, subject to certain exceptions, give effect to USCIS’s determination. If the asylum application includes a dependent who has not filed a separate application, the asylum officer will, as appropriate and prior to referring the family to streamlined section 240 proceedings before an IJ, elicit information sufficient to determine whether there is a significant possibility that the applicant’s dependent has experienced or fears harm that would be an independent basis for protection in the event that the principal applicant is not granted asylum. See 8 CFR 208.9(b), (i). If a spouse or child who was included in the principal applicant’s request for asylum does not separately file an asylum application that is adjudicated by USCIS, the principal’s asylum application will be deemed by EOIR to satisfy EOIR’s application filing requirements for the spouse or child as principal applicants. See 8 CFR 208.3(a)(2), 1208.3(a)(2). This provision will allow any spouse or child in the streamlined procedure to exercise their right to seek protection on an independent basis without the need for delaying the proceedings to allow for the preparation and filing of an I–589, Application for Asylum and for Withholding of Removal. The E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18098 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations Departments have determined that these changes meet the goals of this rule, such as improving efficiency while allowing noncitizens to receive a full and fair opportunity to be heard, and are also responsive to commenters’ concerns raised in response to the NPRM, as detailed in Sections IV.D.5 and 6 of this preamble. While USCIS will not make final decisions regarding statutory withholding of removal and CAT protection claims and issue removal orders, it is appropriate for USCIS to make eligibility determinations regarding statutory withholding of removal and protection under the CAT. As a threshold issue, applications for asylum, statutory withholding of removal, and protection under the CAT are all factually linked. While the legal standards and requirements differ among the forms of relief and protection, the relevant applications will substantially share the same set of operative facts that an asylum officer would have already elicited, including through evidence and testimony, in the nonadversarial Asylum Merits interview. Moreover, asylum officers receive extensive training, and develop extensive expertise, in assessing claims and country conditions, and are qualified to determine whether an applicant will face harm in the proposed country. See INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b). Asylum officers also receive training on the standards and eligibility issues related to determinations for statutory withholding of removal and CAT protection in order to conduct credible fear screening interviews and make appropriate credible fear determinations under 8 CFR 208.30(e). See 8 CFR 208.1(b). While asylum officers will also not make final decisions regarding a dependent’s eligibility for asylum, statutory withholding of removal, and CAT protection claims if the dependent has not received a prior separate positive credible fear determination or filed a separate principal asylum application with USCIS, it is appropriate for asylum officers to elicit sufficient information regarding each dependent’s eligibility for protection in order to allow for those claims to be on the record and appropriately considered should the family be placed into streamlined section 240 removal proceedings. In many cases, the family members will likely substantially share the same set of operative facts that an asylum officer would have already elicited from the principal applicant, including through evidence and testimony, during the same VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 nonadversarial Asylum Merits interview. Accordingly, the additional questioning that will ordinarily be needed to develop the record enough to facilitate an IJ’s adjudication of any claims through streamlined section 240 proceedings is expected to be modest. Moreover, any dependent who wishes to be adjudicated as a principal applicant by USCIS may file a separate application with USCIS prior to referral to removal proceedings. Where a noncitizen’s asylum application is not granted by USCIS, automatic referral to streamlined section 240 proceedings—as further discussed in Section III.D of this preamble— ensures that the application of the principal applicant and any family members may be reviewed by the IJ. In the streamlined section 240 proceedings, the IJ will adjudicate de novo the noncitizen’s and any family members’ applications for asylum and, if USCIS determined them ineligible for statutory withholding of removal or protection under the CAT, such claims as well. Statutory withholding of removal and CAT protection are nondiscretionary forms of protection, the granting of which is mandatory upon a showing of eligibility. See, e.g., Myrie v. Att’y Gen. United States, 855 F.3d 509, 515–16 (3d Cir. 2017); Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir. 2009). Because an asylum officer does not issue an order of removal under the IFR, it is appropriate to wait until the IJ enters the order of removal before generally giving effect to USCIS’s statutory withholding of removal and CAT protection eligibility determinations. See Matter of I–S– & C– S–, 24 I&N Dec. 432, 433 (BIA 2008). D. Streamlined Section 240 Removal Proceedings Before the Immigration Judge Upon careful consideration of the comments received in response to the NPRM, as discussed in Section IV of this preamble, this IFR does not adopt the IJ review proceedings proposed in the NPRM. See 86 FR 46946–47 (8 CFR 1003.48, 1208.2(c) (proposed)). Instead, the Departments will place noncitizens whose applications for asylum are not granted by USCIS, as well as any spouse or children included on the noncitizen’s application, in section 240 proceedings that will be streamlined as provided in new 8 CFR 1240.17. See 8 CFR 1240.17(a), (b). As provided in new 8 CFR 1240.17(a), IJs must conduct these proceedings in accordance with the procedures and requirements set forth in section 208 of the Act, 8 U.S.C. 1158. Currently, further consideration of an asylum application by an individual in PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 expedited removal is done through section 240 proceedings. See, e.g., 8 CFR 208.30(f) (2020); 30 8 CFR part 1240, subpart A (2020). Such proceedings follow issuance of an NTA, which informs the noncitizen of DHS’s charges of inadmissibility or removability, INA 239(a)(1), 8 U.S.C. 1229(a)(1), and these proceedings provide an opportunity for the noncitizen to make his or her case to an IJ, INA 240(a)(1), 8 U.S.C. 1229a(a)(1). Parties in section 240 removal proceedings have a wide range of well-established rights, including the following: The right to representation at no expense to the Government, INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); a reasonable opportunity to examine evidence, present evidence, and crossexamine witnesses, INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B); the right to seek various forms of relief, 8 CFR 1240.1(a)(1)(ii)–(iii); the right to file a motion to continue, 8 CFR 1003.29; and the right to appeal specified decisions to the BIA, 8 CFR 1003.3(a), 1003.38(a), and to later file a petition for review in the appropriate U.S. Court of Appeals, INA 242, 8 U.S.C. 1252. Under the IFR, USCIS will have authority to adjudicate asylum claims brought by noncitizens subject to expedited removal and found to have a credible fear of persecution or torture rather than immediately referring such cases for adjudication by IJs in section 240 removal proceedings. The Departments have determined that noncitizens who subsequently are not granted asylum by USCIS should be referred to section 240 removal proceedings that will be streamlined as described in new 8 CFR 1240.17. The well-established rights that apply in section 240 proceedings will continue to apply during the 240 proceedings described in new 8 CFR 1240.17, but the latter will include new procedures designed to streamline the process while continuing to ensure fairness. The Departments believe that these cases can be adjudicated more expeditiously than other cases in section 240 removal proceedings. Unlike other cases, noncitizens subject to this IFR will have had a full opportunity to present their protection claims to an asylum officer. Moreover, as established in new 8 CFR 1240.17(c) and (e), IJs and parties in any subsequent streamlined section 240 removal proceedings will have the benefit of a fully developed record and 30 The Global Asylum rule would have revised the process, placing such noncitizens into asylumand-withholding-only proceedings instead of section 240 proceedings, see 85 FR 80276, but it was enjoined, see supra note 4. E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 decision prepared by USCIS.31 Because the USCIS Asylum Merits interview will create a record that includes testimony and documentary evidence, the Departments believe that less time will be needed in immigration court proceedings to build the evidentiary record. Thus, cases will be resolved more expeditiously before the IJ. The Departments recognize that, in some instances, IJs may need to take additional testimony and evidence— beyond what is contained in the USCIS record—to fully develop the record. See, e.g., 8 CFR 1240.17(f)(4)(iii). By providing IJs with the ability to rely upon the previously developed record in most cases, while preserving the flexibility for IJs to take new evidence and testimony when warranted, without the additional motions practice contemplated by the NPRM’s provisions, the IFR creates more streamlined, efficient adjudications overall. Accordingly, the Departments believe that it is possible to achieve the purposes of the NPRM—to increase efficiency and maintain procedural fairness—by making procedural changes to streamline existing 240 proceedings instead of establishing the IJ review proceedings proposed under the NPRM. In keeping with this goal, the IFR provides that these section 240 proceedings will be subject to particular procedural requirements designed to streamline the overall process and take advantage of the record created by the asylum officer while still providing noncitizens with a full and fair opportunity to present testimony and evidence in support of their claims. Where the IJ would not be able to take advantage of that record, the streamlining measures do not apply. Thus, new 8 CFR 1240.17(k) exempts certain cases from the streamlined process, including, for example, where the respondent has produced evidence of prima facie eligibility for relief or protection other than asylum, statutory withholding of removal, CAT protection, or voluntary departure, 8 CFR 1240.17(k)(2); where the respondent has raised a substantial defense to the removal charge,32 8 CFR 31 New 8 CFR 1240.17(c) provides that DHS will serve the record of proceedings for the Asylum Merits interview and the asylum officer’s written decision on the respondent and on the immigration court no later than the date of the master calendar hearing; it further provides that, in the exceptional case in which service is not effectuated by that date, the schedule of proceedings pursuant to new 8 CFR 1240.17(f) will be delayed until service is effectuated. 32 As stated in note 8, supra, the rule does not specify that a particular type of evidence is required in order to show prima facie eligibility for relief, VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 1240.17(k)(3); or where the designated country of removal is different from the one that the asylum officer considered in adjudicating the noncitizen’s application for asylum or protection, 8 CFR 1240.17(k)(4).33 New 8 CFR 1240.17(k) makes other exceptions for certain vulnerable noncitizens and it exempts cases that have been reopened or remanded. See 8 CFR 1240.17(k)(1), (5), (6). Accordingly, with these exceptions, the Departments believe that these proceedings can be expedited given the limited forms of relief and protection that will need to be adjudicated by the IJ and given that the IJ and the parties will benefit from the record developed before USCIS. The IFR provides additional procedures that will contribute to efficient adjudication. As provided in revised 8 CFR 208.3(a)(2) and 8 CFR 1208.3(a)(2) and new 8 CFR 1240.17(e), the IFR treats the record underlying the positive credible fear determination as the noncitizen’s asylum application, as well as an asylum application for any spouse or child included as a dependent on the application for purposes of EOIR’s filing requirements if USCIS does not grant the principal applicant’s application and if the spouse or child does not separately file an asylum application that is adjudicated by USCIS. This procedure obviates the need for the noncitizen and any dependent to prepare and file a new application before the IJ. IJs are also required to hold status conferences to identify and narrow issues under new 8 CFR 1240.17(f)(1), (2). The USCIS Asylum Merits interview record and decision will permit the parties and the and such evidence could include testimonial evidence as well as documentary evidence. 33 Under this IFR, a noncitizen’s accompanying spouse and children may be included in the request for asylum if they were included in the credible fear determination. See 8 CFR 208.3(a)(2), 208.30(c). Where a noncitizen is accompanied by a spouse or children, and the noncitizen is found to have a credible fear of persecution or torture, the family has the choice to have the spouse and children be included as dependents on the asylum application or to separately seek asylum as principal applicants. See 8 CFR 208.3(a)(2), 208.30(c). Should the family choose to have the spouse and children proceed solely as dependents, the asylum officer will, as appropriate, elicit sufficient information to determine whether there is a significant possibility that the applicant’s spouse or child has experienced or fears harm that would be an independent basis for protection in the event that the principal applicant is not granted asylum prior to referring the family to the IJ for a hearing. See 8 CFR 208.9(b), (i). If a spouse or child who was included in the principal applicant’s request for asylum does not separately file an asylum application that is adjudicated by USCIS, the principal’s asylum application will be deemed by EOIR to satisfy EOIR’s application filing requirements for the spouse or child as principal applicants. See 8 CFR 1208.3(a)(2). PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 18099 IJ to identify any errors or omissions in the record, narrow issues, and provide any additional bases for asylum or related protection. Specifically, the rule, as provided in new 8 CFR 1240.17(f)(2) and (3), imposes obligations on the parties to identify and narrow the issues prior to the merits hearing, although the obligations on the noncitizen depend on whether the noncitizen has representation. As provided by new 8 CFR 1240.17(f)(2)(ii)(A), DHS must state whether it intends to rest on the existing record, waive cross-examination of the respondent, otherwise participate in the proceedings before the IJ, or waive appeal in the event the IJ grants protection. This position may be retracted by DHS, orally or in writing, prior to the issuance of the IJ’s decision, if DHS seeks consideration of evidence pursuant to the standard laid out in 8 CFR 1240.17(g)(2). See 8 CFR 1240.17(f)(2)(ii)(C). Moreover, if DHS indicates that it will participate in the case, at the status conference or via a subsequent written statement it shall state its position on the respondent’s claim(s); state which elements of the respondent’s claim(s) it is contesting and which facts it is disputing, if any, and provide an explanation of its position; identify any witnesses it intends to call; provide any additional non-rebuttal or non-impeachment evidence; and state the status of the identity, law enforcement, or security investigations or examinations required by section 208(d)(5)(A)(i) of the Act, 8 U.S.C. 1158(d)(5)(A)(i), and 8 CFR 1003.47. See 8 CFR 1240.17(f)(2)(ii), (f)(3). If DHS does not timely respond, either at the status conference or in its written statement, to one or more of the respondent’s arguments or claimed bases for asylum, including which arguments raised by the respondent DHS is disputing and which facts it is contesting, the IJ has authority to deem those arguments or claims unopposed, provided, however, that DHS may respond at the merits hearing to any arguments or claimed bases for asylum first advanced by the respondent after the status conference. See 8 CFR 1240.17(f)(3)(i). The IFR creates additional efficiencies by permitting IJs to decide applications on the documentary record in certain circumstances, including where neither party has elected to present testimony and DHS has not elected to crossexamine the noncitizen or where the IJ determines that the application can be granted without further testimony and DHS declines to cross-examine the noncitizen. See 8 CFR 1240.17(f)(4)(i), (ii). Notwithstanding these provisions, E:\FR\FM\29MRR2.SGM 29MRR2 18100 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 however, the IJ shall hold a hearing if the IJ decides that a hearing is necessary to fulfill the IJ’s duty to fully develop the record. See id. The IFR also gives appropriate effect to the asylum officer’s determination of a noncitizen’s eligibility for statutory withholding of removal or protection under the CAT. This serves to increase efficiency and provides a safeguard where an asylum officer has already found that the noncitizen could be subject to persecution or torture if removed. In general, in cases where the IJ denies asylum and issues a removal order, the IJ will give effect to the asylum officer’s determination of eligibility for statutory withholding of removal or protection under the CAT; the IJ may not sua sponte review the asylum officer’s determination. See 8 CFR 1240.17(d), (f)(2)(i)(B), (i)(2). However, these provisions account for the possibility that DHS may submit evidence or testimony that specifically pertains to the respondent and that was not included in the record of proceedings for the USCIS Asylum Merits interview in order to demonstrate that the respondent is not eligible for the protection(s) the asylum officer determined. See id. In such a case, the IJ will, based on the review of this new evidence or testimony, make a separate determination regarding the noncitizen’s eligibility for statutory withholding of removal or protection under the CAT, as relevant. 1. Schedule of Proceedings The Departments are imposing procedural adjudication time frames and limitations on continuances and filing extensions during streamlined section 240 removal proceedings under this IFR. The Departments believe that these time frames and limitations are justified given both the streamlining procedures discussed above and the fact that such cases will come to the IJ with a complete asylum application and following a nonadversarial interview before an asylum officer at which a comprehensive record, including a verbatim transcript and decision, has been assembled. Under new 8 CFR 1240.17, the Departments will impose procedural time frames on IJs with respect to their hearing schedules. Specifically, an IJ will hold a master calendar hearing 30 days after service of the NTA or, if a hearing cannot be held on that date, on the next available date no later than 35 days after service. As provided by new 8 CFR 1240.17(f)(1) and (2), the IJ will hold a status conference 30 days after the master calendar hearing or, if a status conference cannot be held on that VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 date, on the next available date no later than 35 days after the master calendar hearing, followed by a merits hearing, if necessary, 60 days after the master calendar hearing or, if a hearing cannot be held on that date, on the next available date no later than 65 days after the master calendar hearing.34 If needed, under new 8 CFR 1240.17(f)(4)(iii), the IJ may hold a subsequent merits hearing to resolve any lingering issues or complete testimony no later than 30 days after the initial merits hearing. As further discussed below, the IJ may grant continuances and filing extensions under specified standards. See 8 CFR 1240.17(h). Finally, under 8 CFR 1240.17(f)(5), whenever practical, the IJ shall issue an oral decision on the date of the final merits hearing or, if the IJ determines that no such hearing is warranted, no more than 30 days after the status conference; and where issuance of an oral decision on such date is not practicable, the IJ shall issue an oral or written decision as soon as practicable, no later than 45 days after the final merits hearing or, if the IJ concludes that no hearing is necessary, no later than 75 days after the status conference.35 The combined effect of these provisions should fully achieve the NPRM’s efficiency goals while allowing noncitizens to receive a full and fair hearing in streamlined section 240 removal proceedings rather than through the IJ review process contemplated by the NPRM. The wellestablished rights that apply in ordinary section 240 proceedings will continue to apply during the streamlined section 240 proceedings described in new 8 CFR 1240.17, but certain new procedures will streamline the process by taking advantage of the record created by the asylum officer and ensure a prompt, efficient, and fair hearing on the respondent’s claim. 34 Because the timing of the merits hearing is tied to the date that the status conference occurs, the Departments note that any delay of the status conference will necessarily result in a corresponding delay of the merits hearing. In other words, if the status conference occurs 45 days after the master calendar hearing rather than 30–35 days after it because, for example, the respondent requested a continuance to seek counsel or the immigration court had to close on the original date of the status conference, see 8 CFR 1240.17(h), the merits hearing would still occur 30–35 days after the status conference—on days 75–80. 35 In other words, where it is not practicable to issue an oral decision on the date of the final merits hearing, the immigration judge has up to 45 days to issue a decision. Where an IJ has determined that a merits hearing is not necessary, and it is not practicable to issue a decision within 30 days after the status conference, the IJ has up to an additional 45 days within which to issue a decision. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 a. Pre-Hearing Procedures In order to best prepare the case for adjudication, new 8 CFR 1240.17(f) establishes initial procedures to ensure that the IJ has a complete picture of the case and the relevant issues prior to conducting any merits hearing that may be needed. As provided in new 8 CFR 1240.17(f)(1), at the master calendar hearing, the IJ will perform the functions required by 8 CFR 1240.10(a), including advising the respondent of the right to be represented, at no expense to the Government, by counsel of the respondent’s own choosing. See 8 CFR 1240.17(f)(1). Additionally, the IJ will advise as to the nature of the streamlined section 240 removal proceedings, including that the respondent has pending applications for asylum, statutory withholding of removal, and withholding or deferral of removal under the CAT, as appropriate; that the respondent has the right to testify, call witnesses, and present evidence in support of these applications; and of the deadlines that govern the submission of evidence. See id. Finally, except where the noncitizen is ordered removed in absentia, at the conclusion of the master calendar hearing the IJ will schedule a status conference to take place 30 days after the master calendar hearing or, if necessary, on the next available hearing date no later than 35 days after the master calendar hearing. See id. The IJ will also advise as to the requirements for the status conference. See id. The adjournment of the case until the status conference will not be considered a noncitizen-requested continuance under new 8 CFR 1240.17(h)(2). See id. The purpose of the status conference is to take pleadings, identify and narrow any issues, and determine whether the case can be decided on the documentary record alone or, if a merits hearing before the IJ is needed, to ready the case for such a hearing. See 8 CFR 1240.17(f)(2). In general, the Departments expect that the parties will use the record of the Asylum Merits interview as a tool to prepare the proceeding for the IJ’s adjudication. See id. At the status conference, the noncitizen must indicate, orally or in writing, whether the noncitizen intends to contest removal or seek any protection(s) for which the asylum officer did not determine the noncitizen eligible. See 8 CFR 1240.17(f)(2)(i). The IJ will also advise the noncitizen that the respondent has the right to testify, call witnesses, and present evidence in support of the noncitizen’s application; and of the deadlines that govern the E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations submission of evidence. If a noncitizen expresses an intent to contest removal or seek protection for which the asylum officer did not determine the noncitizen eligible, the noncitizen must, orally or in writing: (1) Indicate whether the noncitizen plans to testify before the IJ; (2) identify any witnesses the noncitizen plans to call at the merits hearing; and (3) provide any additional documentation in support of the applications. See 8 CFR 1240.17(f)(2)(i)(A). A represented noncitizen is further required to: (4) Describe any alleged errors or omissions in the asylum officer’s decision or the record of proceedings before the asylum officer; (5) articulate or confirm any additional bases for asylum and related protection, whether or not they were presented or developed before the asylum officer; and (6) state any additional requested forms of relief or protection. If a noncitizen is unrepresented, the IJ will ask questions and guide the proceedings in order to elicit relevant information from the noncitizen and otherwise fully develop the record. See Quintero v. Garland, 998 F.3d 612, 623–30 (4th Cir. 2021) (describing the general duty of the IJ to develop the record, which is ‘‘especially crucial in cases involving unrepresented noncitizens’’); see also Matter of S–M–J–, 21 I&N Dec. 722, 723–24, 729 (BIA 1997) (en banc) (also describing the general duty of the IJ to develop the record). If a noncitizen does not express an intent to contest removal or seek protection for which the asylum officer did not determine the noncitizen eligible, the IJ will order the noncitizen removed and will not conduct further proceedings. See 8 CFR 1240.17(f)(2)(i)(B). In such cases, where the asylum officer determined the noncitizen eligible for statutory withholding of removal or protection under the CAT, the IJ will issue a removal order and will give effect to that protection, unless DHS makes a prima facie showing—through evidence that specifically pertains to the noncitizen and that was not included in the record of proceedings for the USCIS Asylum Merits interview—that the noncitizen is not eligible for such protection. See id. For its part, DHS must indicate at the status conference, orally or in writing, whether it intends to: (1) Rest on the record; (2) waive cross-examination of the noncitizen; (3) otherwise participate in the case; or (4) waive appeal if the IJ decides to grant the noncitizen’s application. See 8 CFR 1240.17(f)(2)(ii). If DHS indicates that it will participate in the case, it then must, orally or in VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 writing: (1) State its position on each of the noncitizen’s claimed grounds for asylum or related protection; (2) state which elements of the noncitizen’s claim for asylum or related protection it is contesting and which facts it is disputing, if any, and provide an explanation of its position; (3) identify any witnesses it intends to call at any merits hearing; (4) provide any additional non-rebuttal or nonimpeachment evidence; and (5) state whether the appropriate identity, law enforcement, or security investigations or examinations have been completed. See id. DHS can provide this information at the status conference or by submitting a written statement under 8 CFR 1240.17(f)(3)(i) as outlined below. See id. At the status conference, as further detailed below, the IJ will determine whether further proceedings are warranted; if they are, the IJ will schedule the merits hearing to take place 60 days after the master calendar hearing or, if the merits hearing cannot be held on that date, on the next available date no later than 65 days after the master calendar hearing. See 8 CFR 1240.17(f)(2). The IJ may also schedule additional status conferences prior to any merits hearing if the IJ determines such conferences will contribute to efficient resolution of the case. See id. After the adjournment of the status conference, where DHS intends to participate in a case, DHS is required to file a written statement providing information required under 8 CFR 1240.17(f)(2)(ii) but that DHS did not provide at the status conference, as well as any other relevant information or argument in response to the noncitizen’s submissions. See 8 CFR 1240.17(f)(3)(i). DHS’s written statement is due no later than 15 days prior to the scheduled merits hearing or, if the IJ determines that no such hearing is warranted, no later than 15 days following the status conference. See id. The noncitizen may also submit a supplemental filing after the status conference to reply to any statement submitted by DHS, identify any additional witnesses, and provide any additional documentation in support of the respondent’s application. See 8 CFR 1240.17(f)(3)(ii). Any such filing is due no later than 5 days prior to the scheduled merits hearing or, if the IJ determines that no such hearing is warranted, no later than 25 days following the status conference. See id. The IFR’s efficiencies and timeline are predicated on the parties’ participation in the status conference and other procedural steps needed to narrow the issues and prepare the case for adjudication in advance of any merits PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 18101 hearing before an IJ. This rule helps ‘‘ensure efficient adjudication by focusing the immigration courts’ limited resources on the issues that the parties actually contest.’’ Matter of A–C–A–A–, 28 I&N Dec. 351, 352 (A.G. 2021). In this regard, as described above, DHS ICE Office of the Principal Legal Advisor attorneys representing DHS in immigration court (‘‘DHS attorneys’’) play a critical role in narrowing the issues during section 240 removal proceedings. The Departments believe that the rule’s requirements will increase the overall efficiency of case adjudications and help parties better prepare their respective positions before the IJ. b. Merits Hearing(s) Based on the parties’ statements and submissions at the status conference, the IJ will determine whether the noncitizen’s application may be decided on the documentary record without a merits hearing or whether a merits hearing is required. See 8 CFR 1240.17(f)(4)(i)–(iii). Specifically, an IJ may decline to hold a merits hearing and decide the application on the documentary record if: (1) DHS has indicated that it waives crossexamination and neither the noncitizen nor DHS has requested to present testimony under the pre-hearing procedures described above, see 8 CFR 1240.17(f)(4)(i); or (2) the noncitizen has timely requested to present testimony and DHS has indicated that it waives cross-examination and does not intend to present testimony or produce evidence, and the IJ concludes that the asylum application can be granted without further testimony, see 8 CFR 1240.17(f)(4)(ii). Notwithstanding these provisions, the IJ shall hold a hearing if the IJ decides that a hearing is necessary to fulfill the IJ’s duty to fully develop the record. See 8 CFR 1240.17(f)(4)(i), (ii).36 36 The Departments emphasize that permitting the IJ to issue decisions in some cases without holding a hearing does not undermine the fairness or integrity of asylum proceedings because the respondent will already have testified, under oath, before the asylum officer. The IFR’s framework only allows for the IJ to render a decision without scheduling a hearing in a manner that would not prejudice the noncitizen or undermine the integrity of asylum proceedings. In Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), the BIA held that ‘‘[a]t a minimum . . . the regulations require that an applicant for asylum and withholding take the stand, be placed under oath, and be questioned as to whether the information in the written application is complete and correct.’’ Id. at 118. The BIA determined that the regulations required these procedures for fairness reasons and to maintain ‘‘the integrity of the asylum process itself.’’ Id. The provisions in this IFR that permit IJs to decide applications without a hearing in certain E:\FR\FM\29MRR2.SGM Continued 29MRR2 18102 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 If the IJ determines to hold a merits hearing, the IJ will conduct that hearing as in section 240 removal proceedings generally. The IJ will swear the noncitizen to the truth and accuracy of any information or statements, hear all live testimony requested by the parties, and consider the parties’ submissions. See 8 CFR 1240.17(f)(4)(iii)(A). The Departments’ goal is for the IJ to issue an oral decision at the conclusion of a single merits hearing (when a merits hearing is required) whenever practicable, see 8 CFR 1240.17(f)(4)(iii)(A), (f)(5), but the Departments recognize that not every case may be resolved in that fashion. The rule therefore allows the IJ flexibility in such circumstances to hold another status conference and take any other steps the IJ considers necessary and efficient for the resolution of the case. See 8 CFR 1240.17(f)(4)(iii)(B). In all circumstances, the IJ will be required to schedule any subsequent merits hearing no later than 30 days after the initial merits hearing. Id. 2. Evidentiary Standard This IFR provides that, in the streamlined section 240 proceedings, noncitizens and DHS will have the opportunity to address alleged errors in the USCIS Asylum Merits record, present testimony, and submit additional evidence. The longstanding evidentiary standard for section 240 proceedings applies—evidence must be relevant and probative, and its use must be fundamentally fair. 8 CFR 1240.17(g)(1); see 8 CFR 1240.7(a) (‘‘The immigration judge may receive in evidence any oral or written statement that is material and relevant to any issue in the case . . . .’’); Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004) (‘‘The traditional rules of evidence do not apply to immigration proceedings . . . . ‘The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’ ’’ (citations omitted) (citing Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996); quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995))); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980) (holding that evidence must be ‘‘relevant and probative and its use not fundamentally unfair’’). In addition, any evidence submitted must be timely (after taking into account a timely request for a continuance or filing extension that is granted), see 8 CFR circumstances do not raise the same concerns that animated the BIA’s decision in Matter of Fefe, including because the cases covered by the IFR involve noncitizens who have already received a hearing on their asylum and protection claims before an asylum officer. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 1240.17(g)(1), subject to certain exceptions, see 8 CFR 1240.17(g)(2). Evidence submitted after the deadline set by the IJ but before the IJ issues a decision in the case may be considered only if it could not reasonably have been obtained and presented before the applicable deadline through the exercise of due diligence, or it its exclusion would violate a statute or the Constitution.37 See id. As in all section 240 proceedings, the IJ will exclude evidence that does not meet the requirements described above. See 8 CFR 1240.17(g)(1). The Departments are not adopting the NPRM’s proposal that noncitizens seeking to submit additional evidence for IJ review would have to demonstrate that it was not duplicative and was necessary to develop the record. Instead, the Departments believe the IFR’s provisions will promote efficiency and fairness by allowing the parties and adjudicators to apply longstanding, workable evidentiary standards. The Departments believe that the NPRM’s efficiency goals can be achieved in the context of streamlined section 240 removal proceedings without the NPRM’s evidentiary restrictions because, unlike individuals in ordinary section 240 removal proceedings, noncitizens whose cases are subject to this rule will already have received an initial adjudication by USCIS, and their case will come to the immigration court with a fully developed record. 3. Timeline for Proceedings As noted in the NPRM, the Departments’ purpose for conducting rulemaking on this topic is to develop a ‘‘better and more efficient’’ system for processing applications for asylum and related relief brought by individuals subject to expedited removal under section 235 of the Act, 8 U.S.C. 1225. 86 FR 46907. Under the current procedures, individuals who are first placed in the expedited removal process but who are subsequently found to have a credible fear of persecution or torture are placed in section 240 removal proceedings before the immigration court. 8 CFR 208.30(f) (2020). Under existing procedures, these proceedings often take several years to complete and can be highly protracted and inefficient. Further, as stated in the NPRM, the current system was created at a time when most noncitizens encountered at the border were single adults from 37 In addition, as described below, under new 8 CFR 1240.17(h), a party may seek to have an extension of a filing deadline. For example, a party may seek to have a filing deadline extended if there is an unexpected delay in receipt of the evidence from a medical practitioner or other party. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 Mexico, relatively few of whom made asylum claims. See 86 FR 46908. In contrast, at present, a large share of noncitizens encountered at the border are families and unaccompanied children, a significant portion of whom express the intention to seek asylum. See id. Given the above, the IFR establishes the timeline and procedures detailed below to apply in all cases subject to the streamlined section 240 removal proceedings. The Departments believe that these procedures serve important efficiency interests while still permitting noncitizens an appropriate amount of time to prepare for proceedings. Immigration court proceedings commence when DHS files the NTA, and the master calendar hearing will take place 30 days after the date the NTA is served or, if a hearing cannot be held on that date, on the next available date no later than 35 days after service. See 8 CFR 1240.17(b). Except where the noncitizen is ordered removed in absentia, the IJ will then schedule a status conference 30 days after the initial master calendar hearing or, if a status conference cannot be held on that date, on the next available date no later than 35 days after the master calendar hearing. See 8 CFR 1240.17(f)(1). From there, if warranted, the merits hearing will be scheduled 60 days after the master calendar hearing or, if a hearing cannot be scheduled on that date, on the next available date no later than 65 days after the master calendar hearing. See 8 CFR 1240.17(f)(2). If any subsequent merits hearing is necessary, the IJ will schedule it no later than 30 days after the initial merits hearing. See 8 CFR 1240.17(f)(4)(iii)(B). Finally, whenever practicable, the IJ shall issue an oral decision on the date of the final merits hearing or, if no such hearing is held, 30 days after the status conference. See 8 CFR 1240.17(f)(4)(iii)(A), (f)(5). If the IJ cannot issue a decision on that date, the IJ must issue an oral or written decision as soon as practicable and no later than 45 days after the applicable date described in the previous sentence. See 8 CFR 1240.17(f)(5). Under the default timeline set forth in the IFR, at least 90 days is provided from the service of the NTA before the merits hearing for the noncitizen to secure counsel, obtain evidence, and otherwise prepare—in addition to the time the noncitizen had to secure counsel and obtain evidence leading up to the Asylum Merits interview. See Matter of C–B–, 25 I&N Dec. 888, 889 (BIA 2012) (holding that ‘‘the [IJ] must grant a reasonable and realistic period of time to provide a fair opportunity for a E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 noncitizen to seek, speak with, and retain counsel’’). Moreover, as discussed below, 8 CFR 1240.17(h) contemplates continuances and filing extensions by request of the parties. The Departments believe these time frames, including the standards for continuances and extensions, ensure adequate time and protect procedural fairness while also meeting the Department’s goal of creating efficient and streamlined proceedings. Unlike in ordinary section 240 removal proceedings, noncitizens in these streamlined section 240 proceedings will already have had an incentive and time to obtain representation prior to the commencement of immigration court proceedings. Similarly, noncitizens will not be appearing in immigration court on a totally blank slate; they will have had notice regarding what sort of evidence is needed and a prior opportunity to obtain any available evidence ahead of the Asylum Merits interview. In addition, where a noncitizen is placed in removal proceedings under the procedures in the IFR, the noncitizen will have already applied before USCIS for asylum, withholding of removal, and protection under the CAT, as relevant. The noncitizen will have had the opportunity to testify before, and submit evidence to, the asylum officer, and the asylum officer will have fully evaluated the noncitizen’s eligibility for asylum, withholding of removal, and protection under the CAT. Moreover, any dependent would have also had the opportunity to testify before the asylum officer, and the asylum officer would have elicited testimony from the dependent for any independent basis for eligibility for asylum, withholding of removal, and protection under the CAT. The IJ will be provided with the record before USCIS, including the asylum officer’s decision, the verbatim transcript of the Asylum Merits interview, and the evidence on which the asylum officer relied in reaching the decision. In the Departments’ view, it is appropriate for cases under this IFR to proceed on an expedited time frame before the immigration courts as claims will have been significantly developed and analyzed before the proceedings start. 4. Continuances and Filing Extensions The IFR establishes modified standards for continuances and filing extensions in streamlined 240 proceedings. Generally, in immigration proceedings, a noncitizen may file a motion for continuance for good cause shown. See 8 CFR 1003.29. The regulations have incorporated this VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 ‘‘good cause’’ standard since 1987, see 8 CFR 3.27 (1987),38 and substantial case law and agency guidance have elaborated on its meaning, see, e.g., Matter of L–A–B–R–, 27 I&N Dec. 405, 413–19 (A.G. 2018) (clarifying the framework for applying the ‘‘good cause’’ standard when a noncitizen requests a continuance to pursue collateral relief); Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (setting forth factors for consideration when determining whether there is good cause for a continuance so that a noncitizen may pursue adjustment of status before USCIS); Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978) (holding that, in general, IJs should favorably exercise discretion to continue proceedings when a prima facie approvable visa petition and adjustment application are submitted); Usubakunov v. Garland, 16 F.4th 1299, 1305 (9th Cir. 2021) (holding that the denial of a noncitizen’s motion for a continuance to permit his attorney to be present at his merits hearing amounted to a violation of his statutory right to counsel). The Departments believe that good cause remains an appropriate standard for most continuances because it provides IJs with sufficient guidance and discretion to manage their cases both fairly and efficiently, and the IFR adopts this standard as the default for continuance requests by noncitizens in streamlined section 240 proceedings, subject to certain restrictions described below. Specifically, the IFR imposes limits on the length of continuances that may be granted for good cause. First, no individual continuance for good cause may exceed 10 days unless the IJ determines that a longer continuance would be more efficient. See 8 CFR 1240.17(h)(2)(i). This will ensure that continuances do not delay proceedings unnecessarily, either by being too long or too short. The Departments recognize that, on occasion, it may be appropriate and more efficient to grant one lengthier continuance to achieve its intended 38 See also Aliens and Nationality; Rules of Procedure for Proceedings Before Immigration Judges, 52 FR 2931, 2934, 2938 (Jan. 29, 1987) (final rule). The regulation at 8 CFR 3.27 has been redesignated twice—first to 8 CFR 3.29, second to its current location at 8 CFR 1003.29—without amending the regulatory text. See Executive Office for Immigration Review; Rules of Procedures, 57 FR 11568, 11569 (Apr. 6, 1992) (interim rule); Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824, 9830 (Feb. 28, 2003) (final rule). The regulatory text was recently amended by ‘‘Procedures for Asylum and Withholding of Removal,’’ 85 FR 81698, 81699, 81750 (Dec. 16, 2020) (final rule), but that rule has been preliminarily enjoined, see Order at 1, Nat’l Immigrant Justice Ctr. v. EOIR, No. 21–cv–56 (D.D.C. Jan. 14, 2021). PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 18103 purpose—for example, to gather evidence that will take time to obtain or to secure the availability of a witness— such that it would not be necessary to grant further continuances at the time that the proceedings are scheduled to reconvene. Cf. Meza Morales v. Barr, 973 F.3d 656, 665 (7th Cir. 2020) (Barrett, J.) (‘‘ ‘[T]imeliness’ is not a hard and fast deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent ‘timely’ resolution. That is presumably why nobody appears to think that continuances conflict with the regulation’s timeliness requirement.’’). Thus, this IFR provides IJs with sufficient flexibility to grant continuances for good cause to ensure fairness of proceedings while appropriately balancing efficiency considerations. Second, the IFR also establishes two modified continuance procedures that govern in specific factual circumstances unique to streamlined section 240 removal proceedings. The Departments believe that the IFR’s streamlined section 240 proceedings warrant modified standards for continuances under certain conditions because the IFR’s streamlined 240 proceedings occur after noncitizens have had a nonadversarial hearing before an asylum officer and have had a chance to present their claims for asylum and protection from removal. Additionally, the Departments have a considerable interest in developing an efficient process to fully and fairly adjudicate the claims of those noncitizens who were initially screened for expedited removal but have demonstrated a credible fear of persecution or torture. As noted in the NPRM, section 235 of the Act, 8 U.S.C. 1225, developed a system that ‘‘was initially designed for protection claims to be the exception, not the rule, among those encountered at or near the border.’’ 86 FR 46909. Accordingly, the IFR’s imposition of modified requirements for continuances in streamlined section 240 removal proceedings is in keeping with the NPRM’s purpose to develop more fair and efficient processes to adjudicate the claims of individuals encountered at or near the border and found to have a credible fear of persecution or torture. Specifically, the IFR provides that IJs should apply the ‘‘good cause’’ standard only where the aggregate length of all continuances and extensions requested by the noncitizen does not cause a merits hearing to take place more than 90 days after the master calendar hearing. 8 CFR 1240.17(h)(2)(i). The IFR then implements different criteria based E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18104 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations on the length of the resulting delay for deciding requests for continuances and extensions by the noncitizen that would cause a merits hearing to occur more than 90 days after the master calendar hearing. See 8 CFR 1240.17(h)(2)(ii)– (iii). Where a noncitizen-requested continuance or filing extension would cause a merits hearing to take place between 91 and 135 days after the master calendar hearing, an IJ should grant a continuance or filing extension if the noncitizen demonstrates that it is necessary to ensure a fair proceeding and the need for it exists despite the noncitizen’s exercise of due diligence. See 8 CFR 1240.17(h)(2)(ii). The length of continuances and extensions under this provision are, as a matter of procedure, limited to the time necessary to ensure a fair proceeding. See id. Next, should the noncitizen request any continuances or filing extensions that would cause a merits hearing to take place more than 135 days after the master calendar hearing, the noncitizen must demonstrate that failure to grant the continuance or extension would be contrary to statute or the Constitution. 8 CFR 1240.17(h)(2)(iii). Noncitizens in removal proceedings have the ‘‘right to a full and fair hearing,’’ Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (collecting cases), which ‘‘derives from the Due Process Clause of the Fifth Amendment,’’ Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009); see also Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983) (‘‘It should be emphasized that the full panoply of procedural protections . . . are not mandated for [noncitizens] in these civil, administrative proceedings . . . . All that is required here is that the hearing be fundamentally fair.’’ (citations omitted)). A full and fair hearing, ‘‘at a minimum, includes a reasonable opportunity to present and rebut evidence and to cross-examine witnesses.’’ Grigoryan v. Barr, 959 F.3d 1233, 1240 (9th Cir. 2020) (citing Cinapian, 567 F.3d at 1074 (citing, in turn, section 240(b)(4)(B) of the Act, 8 U.S.C. 1229a(b)(4)(B))). When adjudicating continuance and extension requests pursuant to the IFR’s heightened standards, IJs should consider whether the request is related to the noncitizen’s ability to reasonably present his or her case or implicates any of the rights found at section 240(b)(4)(B) of the Act, 8 U.S.C. 1229a(b)(4)(B). Thus, continuance requests to present testimony and evidence, to rebut evidence, or to crossexamine witnesses may meet the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 standards set forth in new 8 CFR 1240.17(h)(2)(ii) and (iii).39 In addition to the foregoing, the Departments emphasize that the Act provides noncitizens in section 240 removal proceedings with the right to representation at no Government expense, INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A), and that the noncitizen must be provided a reasonable opportunity to obtain counsel. See Matter of C–B–, 25 I&N Dec. 888, 889 (BIA 2012) (‘‘In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a noncitizen, the Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the noncitizen to seek, speak with, and retain counsel.’’). Federal courts have strictly reviewed IJ decisions to deny continuances for seeking counsel or take other actions that may impinge that right in proceedings. See, e.g., Usubakunov, 16 F.4th at 1305 (holding that the denial of a noncitizen’s motion for a continuance to permit his attorney to be present at his merits hearing amounted to violation of his statutory right to counsel); see also Leslie v. Att’y Gen. of U.S., 611 F.3d 171, 180–81 (3d Cir. 2010) (The ‘‘statutory and regulatory right to counsel is also derivative of the due process right to a fundamentally fair hearing.’’); Hernandez Lara v. Barr, 962 F. 3d 45, 54 (1st Cir. 2021) (‘‘The statutory right to counsel is a fundamental procedural protection worthy of particular vigilance.’’). Accordingly, a continuance to seek representation would be sufficient to qualify for the heightened continuance standards in these streamlined 240 proceedings if denial would violate a noncitizen’s right to 39 The Departments note, however, that the decision to grant or deny a continuance or extension will depend on the individual facts and circumstances present in each case. See, e.g., De Ren Zhang v. Barr, 767 F. App’x 101, 104–05 (2d Cir. 2019) (collecting cases in which the Second Circuit upheld an IJ’s denial of a continuance where a noncitizen ‘‘had already received multiple continuances, or had a significant amount of time in which to gather and submit evidence’’ but, under the particular circumstances of that case, concluding that the IJ’s denial of a continuance was an abuse of the IJ’s discretion); Bondarenko v. Holder, 733 F.3d 899, 906–08 (9th Cir. 2013) (holding that the denial of the noncitizen’s request for a continuance to investigate the Government’s forensic report was a violation of the noncitizen’s right to due process); Cruz Rendon v. Holder, 603 F.3d 1104, 1111 (9th Cir, 2010) (determining that ‘‘the denial of the requested continuance’’ to obtain evidence that bore directly on the noncitizen’s eligibility for relief, ‘‘in conjunction with the limitations placed upon her testimony, prevented [the noncitizen] from fully and fairly presenting her case’’). PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 representation or another statutory or constitutional right.40 The Departments emphasize that the time periods that determine the relevant continuance standard do not begin to run until the day after the master calendar hearing, at which the IJ will advise noncitizens of their rights in the streamlined section 240 proceedings, including their right to representation, at no expense to the Government, and of the availability of pro bono legal services, and will ascertain that noncitizens have received a list of such pro bono legal service providers. 8 CFR 1240.17(f)(1) (citing 8 CFR 1240.10(a)); see INA 240(b)(4), 8 U.S.C. 1229a(b)(4). Furthermore, these calculations only pertain to delay of hearings and deadlines specifically included in this regulation, namely, the status conference hearing or a merits hearing and any filing deadline that, if extended, would have the effect of delaying a hearing. Any continuances with respect to interim hearings or deadlines that may be set by the IJ do not impact determination of the continuance standard that applies in this section.41 Continuances or filing extensions granted due to exigent circumstances, such as court closures or 40 This does not mean that a request for a continuance to seek counsel can never be denied. See Usubakunov, 16 F.4th at 1304 (‘‘We recognize that immigration courts bear a crushing caseload and an applicant cannot unreasonably delay the administrative process, which has various component parts and must be managed efficiently by the IJ.’’); see also Arrey, 916 F.3d at 1158 (explaining that a noncitizen ‘‘is not denied the right to counsel where continuing the hearing would have been futile or where the IJ had done everything he reasonably could to permit [the noncitizen] to obtain counsel’’ (quotation marks and citation omitted)). Such determinations are made on a case-by-case basis. See Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005) (‘‘The inquiry is fact-specific and thus varies from case to case. We pay particular attention to the realistic time necessary to obtain counsel; the time frame of the requests for counsel; the number of continuances; any barriers that frustrated a [noncitizen’s] efforts to obtain counsel, such as being incarcerated or an inability to speak English; and whether the [noncitizen] appears to be delaying in bad faith.’’); see also Gonzalez-Veliz v. Garland, 996 F.3d 942, 949 (9th Cir. 2021) (comparing cases granting and denying requests for continuances to seek counsel). 41 In other words, the IJ would determine the appropriate standard to consider when reviewing a noncitizen’s request for a continuance by considering how much the continuance would shift the merits hearing. For example, the IJ would apply the ‘‘good cause’’ standard under 8 CFR 1240.17(h)(2)(i) if a noncitizen requests an initial continuance of the status conference for 10 days, which would in turn cause the merits hearing to be delayed by 10 days (because the merits hearing will occur 30–35 days after the status conference). However, if the noncitizen later requests further continuances that would cause the status conference to occur later than day 60, and in turn would cause the merits hearing to occur later than day 90, the IJ would apply the heightened continuance standard under 8 CFR 1240.17(h)(2)(ii). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations illness of a party, will not count against the aggregate limits on continuances, as further explained below and as set forth at new 8 CFR 1240.17(h)(4). The Departments have also contemplated DHS’s need for continuances and provided for them in appropriate situations. The IJ may grant DHS a continuance and extend filing deadlines based on significant Government need, as set forth at new 8 CFR 1240.17(h)(3). The Departments anticipate that significant Government need will only arise in exceptional cases. The IFR provides a nonexclusive list of examples of significant Government needs, including ‘‘confirming domestic or foreign law enforcement interest in the respondent’’ and ‘‘conducting forensic analysis of documents submitted in support of a relief application or other fraud-related investigations.’’ 8 CFR 1240.17(h)(3). The Departments believe that requiring DHS to demonstrate a significant Government need for a continuance serves efficiency interests without undermining DHS’s opportunity to present its case. First, DHS inherently possesses the subject-matter expertise to navigate section 240 proceedings in general and does not face the same obstacles as do noncitizens in exploring and securing competent representation. Second, noncitizens, not DHS, bear the burden of proof throughout the majority of streamlined section 240 proceedings. Of particular relevance, noncitizens generally bear the burden of demonstrating eligibility for protectionbased relief. See, e.g., INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B). Third, DHS does not face the same issues with respect to access to counsel, especially when taking into consideration the likelihood that some noncitizens will be detained during the course of proceedings. IJs must be able to take such factors under consideration when considering continuance requests made by noncitizens, but they are not relevant to such requests made by DHS. In addition, these timelines and standards do not apply to an IJ’s ability to continue a case, extend a filing deadline, or adjourn a hearing due to exigent circumstances, such as the unavailability of the IJ, the parties, or counsel due to illness, or the closure of the immigration court. See 8 CFR 1240.17(h)(4). Such continuances must be limited to the shortest time necessary and each must be justified. See id. The Departments recognize the magnitude and weight of asylum claims, and the importance of ensuring that asylum procedures do not undermine the fairness of proceedings. See Quintero, 998 F.3d at 632 (‘‘[N]eedless to say, VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 these cases per se implicate extremely weighty interests in life and liberty, as they involve individuals seeking protection from persecution, torture, or even death.’’); Xue v. BIA, 439 F.3d 111, 113–14 (2d Cir. 2006) (‘‘We should not forget, after all, what is at stake. For each time we wrongly deny a meritorious asylum [or withholding] application, . . . we risk condemning an individual to persecution. Whether the danger is of religious discrimination, extrajudicial punishment, forced abortion or involuntary sterilization, physical torture or banishment, we must always remember the toll that is paid if and when we err.’’); Matter of O–M–O–, 28 I&N Dec. 191, 197 (BIA 2021) (‘‘The immigration court system has no more solemn duty than to provide refuge to those facing persecution or torture in their home countries, consistent with the immigration laws.’’). The Departments believe that this rule strikes the appropriate balance by providing noncitizens with a full and fair opportunity to present their claims—first before USCIS and then, if necessary, in streamlined section 240 removal proceedings—while ensuring that such claims are adjudicated in a timely and efficient manner. 5. Consideration of Statutory Withholding of Removal and CAT Protection The NPRM proposed that, where USCIS denied asylum, IJs would reconsider the entire USCIS Asylum Merits record de novo, including grants of statutory withholding of removal and protection under the CAT. See, e.g., 86 FR 46946 (8 CFR 1003.48(a) (proposed)). Upon further review, including the review of comments as discussed further below, the Departments have determined that IJs should generally give effect to an asylum officer’s determination that a noncitizen is eligible for statutory withholding of removal or protection under the CAT subject to certain exceptions. Specifically, under new 8 CFR 1240.17(i)(1), if an asylum officer finds that the noncitizen is not eligible for asylum or other protection sought, IJs will adjudicate de novo all aspects of a noncitizen’s application, including the noncitizen’s eligibility for asylum and, if necessary, statutory withholding of removal or protection under the CAT. However, if an asylum officer does not grant asylum but finds that a noncitizen is eligible for statutory withholding of removal or protection under the CAT, the noncitizen has two options. First, the noncitizen may indicate that the noncitizen does not intend to contest removal or seek protection(s) for PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 18105 which the asylum officer did not find the noncitizen eligible, as described at new 8 CFR 1240.17(f)(2)(i)(B). In that case, unless DHS makes a prima facie showing, through evidence that specifically pertains to the noncitizen and was not in the record of proceedings for the USCIS Asylum Merits interview, that the noncitizen is not eligible for such protection(s), the IJ will issue the removal order and give effect to any protection for which the asylum officer found the noncitizen eligible, and no further proceedings will be held.42 Second, and alternatively, the noncitizen may contest the asylum officer’s decision to not grant asylum, in which case the IJ will adjudicate de novo the noncitizen’s application for asylum. See 8 CFR 1240.17(i)(2). If the IJ subsequently denies asylum, then the IJ will enter an order of removal and give effect to the protections for which the asylum officer deemed the noncitizen eligible, unless DHS demonstrates through evidence or testimony that specifically pertains to the respondent and that was not included in the record of proceedings for the USCIS Asylum Merits interview that the noncitizen is not eligible for such protection. See id.43 42 In addition, at 8 CFR 1240.17(d), the IFR provides that a noncitizen who fails to appear and who is ordered removed in absentia under section 240(b)(5)(A) of the INA, 8 U.S.C. 1229a(b)(5)(A), will still receive the benefit of any protections from removal for which the asylum officer found that the noncitizen was eligible unless DHS makes a prima facie showing through evidence that specifically pertains to the noncitizen and that was not included in the record of proceedings for the USCIS Asylum Merits interview that the noncitizen is not eligible for such protection. Where USCIS has determined that an applicant is eligible for statutory withholding of removal or protection under the CAT, the United States would risk violating its nonrefoulement obligations by nonetheless removing the noncitizen to the country in which they more likely than not would be subject to persecution or torture due to the failure to appear. That would particularly be so if the noncitizen’s failure to attend the hearing were due to misunderstanding, confusion, or a belief that no further steps were necessary to preserve the noncitizen’s eligibility for statutory withholding of removal or protection under the CAT. 43 The Departments emphasize that the evidence or testimony relied upon by DHS to demonstrate that the noncitizen is not eligible for withholding of removal or protection under the CAT must be evidence or testimony not considered by the asylum officer that pertains specifically to the noncitizen and establishes that the noncitizen is not eligible. For example, DHS could submit information that arose from background checks conducted after the asylum officer interview, but DHS cannot point to a statement by the noncitizen in the Form I–213, Record of Deportable/Inadmissible Alien. The evidence or testimony must demonstrate the noncitizen’s ineligibility for the protection that the asylum officer determined the noncitizen was eligible for. The IJ’s decision must be based on such new evidence or testimony; the IJ may not E:\FR\FM\29MRR2.SGM Continued 29MRR2 lotter on DSK11XQN23PROD with RULES2 18106 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations The Departments have determined that these changes are advisable for several reasons. First, after reviewing comments, the Departments have declined to adopt certain provisions proposed in the NPRM and instead have set forth that after an asylum officer does not grant asylum, an individual will be automatically referred to streamlined section 240 removal proceedings. Automatic referral to streamlined section 240 proceedings means that every noncitizen whose application is not approved by the asylum officer will have the opportunity to have their case reviewed by the IJ, without first affirmatively requesting review. During streamlined 240 proceedings, the noncitizen may elect to have the IJ adjudicate de novo the noncitizen’s asylum application, and any protection claim for which the asylum officer found the noncitizen ineligible. At the same time, the rule recognizes that an asylum officer’s determination that a noncitizen is eligible for protection should generally be given effect in the interest of efficiency and to ensure that the noncitizen is not returned to a country where an immigration official has already determined that the noncitizen may be persecuted or tortured. It is appropriate for USCIS to make eligibility determinations for statutory withholding of removal and protection under the CAT. As a threshold issue, applications for asylum, statutory withholding of removal, and protection under the CAT are all factually linked. While the legal standards and requirements differ among the forms of relief and protection, the relevant applications will substantially share the same set of operative facts that an asylum officer would have already elicited, including through evidence and testimony, in the nonadversarial proceeding. Moreover, asylum officers receive extensive training, and develop extensive expertise, in assessing claims and country conditions and are qualified to determine whether an applicant will face harm in the proposed country. See INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b). Asylum officers also receive training on standards and eligibility issues related to determinations for statutory withholding of removal and CAT protection in order to conduct credible fear screening interviews and make appropriate credible fear determinations under 8 CFR 208.30(e). See 8 CFR reconsider the asylum officer’s determination or deny eligibility based merely on disagreement with the asylum officer’s conclusions or evaluation of the record before the asylum officer. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 208.1(b). Finally, statutory withholding of removal and protection under the CAT are nondiscretionary forms of protection, the granting of which is mandatory upon a showing of eligibility. See, e.g., Myrie, 855 F.3d at 515–16; Benitez Ramos, 589 F.3d at 431. Because the asylum officer does not issue an order of removal under the IFR, it is appropriate to wait until the IJ enters the order of removal before giving effect to USCIS’s statutory withholding of removal and CAT protection eligibility determinations. See Matter of I–S– & C–S–, 24 I&N Dec. at 433. Thus, this IFR recognizes that applications for discretionary and mandatory forms of protection will be reviewed by IJs. However, determinations that a noncitizen is eligible for a mandatory form of protection will be given effect by the IJs, unless DHS demonstrates, through new evidence specifically pertaining to the noncitizen, that the noncitizen is not eligible for such protection. Considering the comments received on the NPRM, the Departments recognize that this procedure is an intermediate approach between the NPRM and the commenters’ suggestions described below in Section IV.D.6 of this preamble. Whereas the NPRM would have allowed the IJ to sua sponte review the asylum officer’s statutory withholding and CAT determinations, the IFR instead places the burden on DHS to demonstrate, with new evidence specific to the noncitizen, that the noncitizen is not eligible for such protections. The Departments have determined that this process is most efficient, given that there may be particular instances, such as evidence of fraud or criminal activity, where overturning the asylum officer’s eligibility determination is justified. If the Departments provided no mechanism in these streamlined section 240 removal proceedings through which the asylum officer’s eligibility determinations could be overturned, DHS would have to follow the procedures set forth in 8 CFR 208.17(d) and 208.24(f) in instances where overturning the asylum officer’s eligibility determinations is justified. Providing an exception where DHS demonstrates that evidence or testimony specifically pertaining to the noncitizen and not in the record of proceedings for the USCIS Asylum Merits interview establishes that the noncitizen is not eligible is substantially more efficient, consistent with the overall aims of this IFR. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 6. Exceptions to Streamlined Procedures The IFR provides specific exceptions that will allow certain noncitizens or situations to be exempted from these streamlined procedures and timelines despite originating in the expedited removal process and being referred to immigration court following an asylum officer’s initial adjudication. See 8 CFR 1240.17(k). These exceptions ensure procedural fairness because not all cases that might otherwise be placed in streamlined section 240 removal proceedings would in fact be suitable for the expedited timeline. At new 8 CFR 1240.17(k)(3), the IFR provides an exception to the expedited timeline if the noncitizen has raised a substantial challenge to the charge that the noncitizen is subject to removal— e.g., if the noncitizen has a claim to U.S. citizenship or the charge that the noncitizen is subject to removal is not supported by the record—and that challenge cannot be resolved simultaneously with the noncitizen’s applications for asylum, statutory withholding of removal, or withholding or deferral of removal under the CAT. Because the IFR places noncitizens into section 240 proceedings, the noncitizen can affirmatively elect to apply for a wide range of relief in addition to asylum, statutory withholding of removal, and protection under the CAT. See, e.g., 8 CFR 1240.1(a)(1)(ii) (providing IJs with the authority to adjudicate a wide range of applications for relief); 8 CFR 1240.11(a)(2) (‘‘The immigration judge shall inform the [noncitizen] of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the [noncitizen] an opportunity to make application during the hearing . . . .’’). The IFR therefore provides an exception to the timeline if the noncitizen produces evidence of prima facie eligibility for relief or protection other than asylum, statutory withholding of removal, withholding or deferral of removal under the CAT, or voluntary departure, and is seeking to apply for, or has applied for, such relief or protection. See 8 CFR 1240.17(k)(2). For example, a noncitizen who also is eligible to seek adjustment of status under section 245 of the Act, 8 U.S.C. 1255, could provide the IJ with proof of prima facie eligibility and a copy of the submitted Form I–130, Petition for Alien Relative, and upon receipt of such evidence, the timeline in 8 CFR 1240.17(f)–(h) would not apply.44 Testimonial evidence, and 44 Although a submitted visa petition demonstrating prima facie eligibility for relief would be an optimal way to demonstrate E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 out-of-court written statements, could also be considered by immigration judges as evidence of prima facie eligibility for relief. The Departments believe this exception from the timeline is appropriate to allow effective adjudication of the new relief being sought because the IJ will not have the benefit of an already developed record regarding those forms of relief, which the IJ will have for the noncitizen’s application for asylum or other protection.45 Similarly, the IFR provides an exception where the IJ finds the noncitizen subject to removal to a different country from the country or countries in which the noncitizen claimed a fear of persecution and torture before the asylum officer, and the noncitizen claims a fear of persecution or torture with respect to that alternative country. See 8 CFR 1240.17(k)(4). The Departments similarly believe the IFR’s timeline should not apply in these circumstances because the record would need to be developed without the benefit of previous adjudication. The Departments have also considered the effect of the streamlined 240 proceedings on vulnerable populations. To ensure procedural fairness, the Departments will exempt the following categories of noncitizens from these procedures: Noncitizens under the age of 18 on the date the NTA was issued, except noncitizens in section 240 proceedings with an adult family member, 8 CFR 1240.17(k)(1); and noncitizens who have exhibited indicia of mental incompetency, 8 CFR 1240.17(k)(6). Finally, the expedited timeline does not apply to cases that have been reopened or remanded following the IJ’s order. 8 CFR 1240.17(k)(5). Reopened and remanded cases may present unique qualification for this exception, there may exist circumstances in which a filed petition would not be possible to present on an expedited timeline due to factors outside of a noncitizen’s control. For example, a complaint for custody and motion for Special Immigrant Juvenile classification (‘‘SIJ’’) findings, as filed with a State court, along with a statement and evidence as to other eligibility factors listed on the Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant, could be sufficient to permit the IJ to assess a respondent’s prima facie eligibility for SIJ classification. 45 The Departments also note that this shift from the NPRM to streamlined section 240 removal proceedings addresses comments that the NPRM would have improperly burdened noncitizens by requiring them to file motions to vacate their removal orders and by limiting noncitizens to only one such motion. Further, by placing noncitizens into streamlined 240 proceedings—thereby allowing them to seek various forms of relief or protection for which they may be eligible—the IFR also addresses comments that the NPRM would have authorized the IJs to exercise discretion over whether to allow the respondent to apply for additional forms of relief or protection. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 issues that are outside of the scope of these streamlined 240 proceedings. E. Other Amendments Related to Credible Fear In addition to the new procedures at 8 CFR 1240.17, this IFR amends 8 CFR 1003.42, 1208.2, 1208.3, 1208.4, 1208.5, 1208.14, 1208.16, 1208.18, 1208.19, 1208.22, 1208.30, and 1235.6. Except for the amendments at 8 CFR 1003.42, the Departments proposed amendments to all of these sections in the NPRM in order to: (1) Effectuate the reestablishment of the ‘‘significant possibility’’ standard in credible fear review proceedings before EOIR; (2) ensure that IJs, like asylum officers, do not apply the mandatory bars at the credible fear screening process; and (3) ensure that the provisions providing for the USCIS Asylum Merits process are accurately reflected in EOIR’s regulations where relevant, including confirmation that the written record of the positive credible fear determination will count as an asylum application. The IFR adopts these same changes with limited technical amendments where necessary to accord with the streamlined section 240 proceedings under new 8 CFR 1240.17. The Departments also include amendments to 8 CFR 1003.42(d)(1) in this IFR. Although these amendments were not included in the NPRM, they are direct corollaries of the NPRM’s proposed amendments and are necessary to ensure consistency, both internally within DOJ’s regulatory provisions and more broadly between DHS’s and DOJ’s regulations. Specifically, the IFR amends 8 CFR 1003.42(d)(1) to ensure consistency with the revisions to 8 CFR 208.30(e) related to credible fear screening standards and treatment of mandatory bars in the credible fear screening process and with the revisions to 8 CFR 1208.30(g)(2) so that both provisions properly direct that when an IJ vacates a negative credible fear finding, the IJ will refer the case back to USCIS as intended by the NPRM and the IFR. F. Parole This rule amends the DHS regulations governing the circumstances in which parole may be considered for individuals who are being processed under the expedited removal provisions of INA 235(b)(1), 8 U.S.C. 1225(b)(1). Expedited removal is a procedure that applies when an immigration officer ‘‘determines’’ that a noncitizen ‘‘arriving in the United States,’’ or a noncitizen covered by a designation who has not been admitted or paroled into the United States, is inadmissible under PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 18107 either INA 212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C) (fraud or misrepresentation), or INA 212(a)(7), 8 U.S.C. 1182(a)(7) (lack of proper documents), and further determines that the noncitizen should be placed in expedited removal. INA 235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii). Other noncitizens who are applicants for admission—and whom an immigration officer determines are not clearly and beyond a doubt entitled to be admitted—generally are referred for ordinary removal proceedings under INA 240, 8 U.S.C. 1229a. See INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). The statute generally provides for the detention of noncitizens subject to expedited removal pending a final credible fear determination and, if no such fear is found, until removed. See INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (noncitizens in the expedited removal process ‘‘shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed’’). The statute, likewise, provides that noncitizens determined 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). Congress has, however, expressly granted DHS the authority to release any applicant for admission from detention via parole ‘‘on a case-bycase basis for urgent humanitarian reasons or significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). This includes DHS’s authority to parole noncitizens detained under section 235 of the Act, 8 U.S.C. 1225. See Jennings v. Rodriguez, 138 S. Ct. 830, 837, 844 (2018). The NPRM proposed to replace the current narrow parole standard with a standard that would permit parole ‘‘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).’’ 86 FR 46946 (8 CFR 235.3(b)(2)(iii) (proposed)); see id. at 46913–14. Having considered all comments received on this issue, DHS has determined that the current narrow standard should be replaced not with the standard proposed in the NPRM but with the longstanding parole standard applicable in other circumstances and described in 8 CFR 212.5(b), with which DHS officers and agents have substantial experience. That provision describes E:\FR\FM\29MRR2.SGM 29MRR2 18108 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 five categories of certain noncitizens detained under 8 U.S.C. 1225(b) who may meet the parole standard of INA 212(d)(5), 8 U.S.C. 1182(d)(5), provided they present neither a security risk nor a risk of absconding: (1) Noncitizens who have serious medical conditions such that continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) noncitizens who will be witnesses in proceedings conducted by judicial, administrative, or legislative bodies in the United States; and (5) noncitizens whose continued detention is not in the public interest. See 8 CFR 212.5(b)(1)–(5). Consistent with the statute and the regulation, DHS will consider noncitizens covered by this rule for parole under this standard pending their credible fear interview ‘‘only on a caseby-case basis,’’ 8 CFR 212.5(b), and may impose reasonable conditions on parole (including, for example, periodic reporting to ICE) to ensure that the noncitizen will appear at all hearings and for removal from the United States if required to do so, 8 CFR 212.5(c)–(d); see INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). For purposes of making these case-bycase determinations concerning parole of noncitizens pending a credible fear interview, the Secretary recognizes that, in circumstances where DHS has determined that the continued detention of a noncitizen who has been found not to be a flight risk or a danger to the community is not in the public interest, the release of that noncitizen on parole may serve ‘‘urgent humanitarian reasons’’ or achieve ‘‘significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see 8 CFR 212.5(b)(5). The INA does not define these ambiguous terms, leaving them to the agency’s reasonable construction.46 In implementing the statutory parole authority, DHS and the former INS have long interpreted the statute to permit parole of noncitizens whose continued 46 See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); see also Nat’l Cable & Telecomms. Ass’n v. Brand X internet Servs., 545 U.S. 967, 980 (2005) (‘‘If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if agency’s reading differs from what the court believes is the best statutory interpretation.’’ (citing Chevron, 467 U.S. at 843–44)); Garfias-Rodriguez v. Holder, 702 F.3d 504, 515 (9th Cir. 2012) (en banc) (‘‘We defer to an agency not because it is better situated to interpret statutes, but because we have determined that Congress created gaps in the statutory scheme that cannot be filled through interpretation alone, but require the exercise of policymaking judgment.’’ (citing Chevron, 467 U.S. at 865)); cf., e.g., Ibragimov v. Gonzales, 476 F.3d 125, 137 n.17 (2d Cir. 2007) (deferring to another aspect of 8 CFR 212.5). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 detention is not in the public interest as determined by specific agency officials. Specifically, prior to the 1996 amendment to the INA that provided for parole ‘‘on a case-by-case basis for urgent humanitarian reasons or significant public benefit,’’ Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (‘‘IIRIRA’’), Pub. L. 104–208, div. C, tit. VI, subtit. A, sec. 602, 110 Stat. 3009, 3009–689, the former INS had paroled individuals ‘‘whose continued detention’’ was ‘‘not in the public interest,’’ 8 CFR 212.5(b)(5) (1995); see Detention and Parole of Inadmissible Aliens; Interim Rule With Request for Comments, 47 FR 30044, 30045 (July 9, 1982) (interim rule). After the 1996 amendment, the agency incorporated the new ‘‘case-bycase’’ requirement into its regulation, while also providing, similar to prior regulatory authority, that parole of certain noncitizens, including those who pose neither a security risk nor a risk of absconding and whose ‘‘continued detention is not in the public interest’’ would generally be justified for ‘‘significant public benefit’’ or ‘‘urgent humanitarian reasons,’’ consistent with the 1996 statutory amendment. 62 FR 10348; see id. at 10313. Nothing in INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), prohibits DHS from considering its resources and detention capacity when it determines, on a caseby-case basis, whether the parole of a noncitizen otherwise subject to detention under INA 235(b), 8 U.S.C. 1225(b), would have a significant public benefit or would advance urgent humanitarian reasons.47 Rather, consistent with the statute, 8 CFR 212.5, and longstanding practice, DHS may take into account the important prerogative for it to use its detention resources for other individuals whose detention is in the public interest, including because of public safety or national security reasons. As has been the case for decades, DHS views detention as not being in the public interest where, in light of available detention resources, and considered on a case-by-case basis, detention of any particular noncitizen would limit the agency’s ability to detain other noncitizens whose release may pose a greater risk of flight or danger to the 47 See, e.g., New Mexico v. McAleenan, 450 F. Supp. 3d 1130, 1174 n.5 (D. N.M. 2020) (‘‘This vague [‘significant public benefit’] standard [in INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A)] conceivably encompasses a wide range of public benefits, such as conserving resources otherwise spent on housing asylum seekers . . . .’’). PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 community.48 With regard to noncitizens detained pending a credible fear interview, whose inadmissibility was still being considered, or who had been ordered removed in expedited removal proceedings, the former INS, in a 1997 rule, restricted the regulatory authority for release on parole to where parole is required for a ‘‘medical emergency’’ or ‘‘a legitimate law enforcement objective.’’ 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (current); see 62 FR 10356. As the NPRM explained, this current narrow standard effectively prevents DHS from placing into expedited removal many noncitizens who would otherwise be eligible for this process, especially families, given the practical constraints and the legal limits of the Flores Settlement Agreement (‘‘FSA’’).49 See 86 FR 46910. These restrictions on DHS’s ability to detain families in significant numbers and for an appreciable length of time, coupled with capacity constraints imposed by the COVID–19 pandemic, have effectively prevented the Government from processing more than a very limited number of families under expedited removal. Amending the regulation by which the former INS previously constrained itself (and now DHS) to considering parole for noncitizens in the expedited removal process far more narrowly than what the statute authorizes will advance the significant public benefit of allowing DHS to place more eligible noncitizens, particularly noncitizen families, in 48 See, e.g., ICE, Interim Guidance for Implementation of Matter of M–S-, 27 I&N Dec. 509 (A.G. 2019) During the Stay of the Modified Nationwide Preliminary Injunction in Padilla v. ICE, No. 18–298, 2019 WL 2766720 (W.D. Wash. July 2, 2019): Parole of Aliens Who Entered Without Inspection, Were Subject to Expedited Removal, and Were Found to Have a Credible Fear of Persecution or Torture (July 15, 2019); Memorandum from DHS Secretary John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvement Policies 3 (Feb. 20, 2017), https://www.dhs.gov/sites/default/ files/publications/17_0220_S1_Implementing-thePresidents-Border-Security-ImmigrationEnforcement-Improvement-Policies.pdf; Memorandum from Gene McNary, INS Commissioner, Parole Project for Asylum Seekers at Ports of Entry and INS Detention 1 (Apr. 20, 1992). 49 Stipulated Settlement Agreement, Flores v. Reno, No. 85–cv–4544 (C.D. Cal. Jan. 17, 1997); see also 86 FR 46910 & n.27 (describing the FSA). The FSA provides for a general policy favoring release of minors and requires the expeditious transfer of minors who are not released from custody, including minors accompanied by their parents or legal guardians, to a non-secure, state-licensed program. See FSA ¶¶ 6, 12, 14, 19. When the former ICE family residential centers were operational, the court determined that such facilities were secure, unlicensed facilities; therefore, DHS generally released noncitizen children detained during their immigration proceedings within 20 days. See Flores v. Sessions, 394 F. Supp. 3d 1041, 1070–71 (C.D. Cal. 2017). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations expedited removal proceedings, rather than processing them through lengthy and backlogged ordinary section 240 removal proceedings. This approach will allow DHS to more efficiently obtain orders of removal for families who do not raise a fear claim or who are found not to possess a credible fear, thereby facilitating their expeditious removal without the need for lengthy immigration court proceedings, and will allow other families to have their fear claims adjudicated in a more timely manner. Accordingly, the flexibility of the 8 CFR 212.5(b) standard—subject, of course, to the limitations on the parole authority contained in INA 212(d)(5), 8 U.S.C. 1182(d)(5)—will allow DHS to achieve the significant public benefits of more effectively utilizing the expedited removal authority in response to changing circumstances and promoting border security. DHS expects that expedited removal of families who do not make a fear claim, or who are determined not to have a credible fear of persecution or torture, will reduce the incentives for abuse by those who will not qualify for protection and smugglers who exploit the processing delays that result from ordinary removal backlogs. Finally, the contours of the category of noncitizens ‘‘whose continued detention is not in the public interest,’’ 8 CFR 212.5(b)(5), have been developed through directives and guidance. For example, in 2009 ICE issued guidance stating that ‘‘when an arriving alien found to have a credible fear establishes to the satisfaction of [ICE Detention and Removal Operations (DRO)] his or her identity and that he or she presents neither a flight risk nor danger to the community, DRO should, absent additional factors (as described [later in the directive]), parole the alien on the basis that his or her continued detention is not in the public interest.’’ ICE Policy No. 11002.1 ¶ 6.2, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/ 11002.1-hd-parole_of_arriving_aliens_ found_credible_fear.pdf. DHS intends to use further directives and guidance to apply the parole standard to noncitizens in expedited removal pending a credible fear interview. DHS emphasizes that any such directives or guidance will account for the fact that there are important and relevant differences between the population of noncitizens who have received a positive credible fear determination and the population of noncitizens in expedited removal who have not received a credible fear determination, including the expected length of time before such an individual VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 may be ordered removed and considerations relevant to assessing flight risk. G. Putative Reliance Interests In responses to comments below, the Departments have addressed the reliance interests in the status quo asserted by commenters. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (requiring agencies to consider ‘‘serious reliance interests’’ when changing policies); see also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016) (referring to ‘‘significant’’ and ‘‘serious’’ reliance interests (quotation marks omitted)). The governmental commenters do not appear to have identified any reliance interests. Although some commenters identified what they believed would be burdens on or injuries to State, county, and local governments as a result of the proposed rule—claims that are addressed in the Departments’ responses to comments—none clearly identified any significant reliance interests in the current state of affairs. The Departments perceive no serious reliance interests on the part of any State, county, or local governmental entity in the currently existing provisions the NPRM implicated or that are affected by this IFR. Even if such reliance interests exist, the Departments would nevertheless promulgate this regulation for the reasons stated in this rule. IV. Response to Public Comments on the Proposed Rule A. Summary of Public Comments In response to the proposed rule, the Departments received 5,235 comments during the 60-day public comment period. Approximately 1,347 of the comments were letters submitted through mass mailing campaigns, and 3,790 comments were unique submissions. Primarily, individuals and anonymous entities submitted comments, as did multiple State Attorneys General, legal service providers, advocacy groups, attorneys, religious and community organizations, elected officials, and research and educational institutions, among others. Comments received during the 60-day comment period are organized by topic below. The Departments reviewed the public comments received in response to the proposed rule and address relevant comments in this IFR, grouped by subject area. The Departments do not address comments seeking changes in U.S. laws, regulations, or agency policies that are unrelated to the changes to made by this rule. This IFR PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 18109 does not resolve issues outside the scope of this rulemaking. A brief summary of comments the Departments deemed to be out of scope or unrelated to this rulemaking, making a substantive response unnecessary, is provided at the end of the section. Comments may be reviewed at https:// www.regulations.gov, docket number USCIS–2021–0012. Following careful consideration of public comments received, the Departments in this IFR have made modifications to the regulatory text proposed in the NPRM. The rationale for the proposed rule and the reasoning provided in the background section of that rule remain valid with respect to those regulatory amendments, except where a new or supplemental rationale is reflected in this IFR. As a general matter, the Departments believe that the IFR addresses concerns expressed by a majority of those who commented on the NPRM’s proposed IJ review procedure by establishing that where the asylum officer denies a noncitizen’s application for asylum, that noncitizen will be placed into streamlined section 240 proceedings, rather than the alternative procedure proposed in the NPRM. While the Departments found a number of the concerns raised by commenters to be persuasive in making this change, general statements that the IFR addresses commenters’ concerns should not be read to mean that the Departments have adopted or agree with commenters’ reasoning in whole or in part. The Departments welcome comments on the IFR’s revisions that are submitted in accordance with the instructions for public participation in Section I of this preamble. Among other topics, the Departments invite comment on the procedures for streamlined section 240 proceedings and whether any further changes to those procedures would be appropriate. B. General Feedback on the Proposed Rule 1. General Support for the Proposed Rule a. Immigration Policy Benefits Comments: Several commenters supported the proposed rule on the basis of immigration policy benefits, including: Reducing duplication of effort between USCIS asylum officers and IJs by allowing asylum officers to adjudicate claims that originated through the USCIS-administered credible fear screening process with less or no expenditure of immigration court time or resources; improving the process to better serve traumatized populations; E:\FR\FM\29MRR2.SGM 29MRR2 18110 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations expediting the asylum application process and allowing covered asylum seekers to receive protection sooner; making the asylum application process more efficient and fair; helping to better manage migrant flows and increase security at the Southwest border; and providing due process, dignity, and equity within the system. Response: The Departments acknowledge the commenters’ support for the rule. b. Positive Impacts on Applicants, Their Support Systems, and the Economy Comments: A few commenters supported the proposed rule, without substantive rationale, on the basis of positive impacts on applicants, their support systems, and the U.S. economy. Some commenters supported the proposed rule and expressed gratitude for helping people who are in fear for their lives and encouraged facilitating a smoother pathway for noncitizens once they get through the initial process successfully. Another commenter stated that the rule represents a fundamental shift that will help eligible asylum applicants receive humanitarian protection and not keep asylum seekers in limbo for years while awaiting a final status determination. An individual commenter supporting the rule wrote that asylum seekers who have received a positive credible fear determination may be able to enter the labor force sooner. According to this commenter, enabling earlier access to employment for asylum-eligible individuals could reduce the public burden, reduce the burden on the asylum support network, and benefit those asylum seekers in terms of equity, human dignity, and fairness. Response: The Departments acknowledge these commenters’ support for the rule and agree the rule will benefit asylum seekers and their support systems, including public entities. lotter on DSK11XQN23PROD with RULES2 2. General Opposition to the Proposed Rule a. Immigration Policy Concerns Comments: Many commenters expressed general opposition to the rule out of a belief that this Administration is not committed to enforcing U.S. immigration law or deterring unauthorized migration into the United States, or out of a belief that the Administration intends to drive more irregular migration for political reasons. Several of these commenters pointed to the high numbers of Southwest border encounters that have occurred in 2021 as support for their beliefs. Response: The Departments acknowledge the commenters’ VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 frustration with the high rates of unauthorized entry into the United States between ports of entry on the Southwest border in 2021, a continuation of an increase that has been observed since April 2020.50 However, the Departments disagree with the commenters’ suggestion that the high numbers of border encounters imply either that the Administration supports or is indifferent to such unauthorized entries. To the contrary, maintaining an orderly, secure, and well-managed border and reducing irregular migration are priorities for the Departments and for the Administration. The Fiscal Year (‘‘FY’’) 2022 President’s Budget directs resources toward robust investments in border security and safety measures, including border technology and modernization of land ports of entry. See DHS, FY 2022 Budget in Brief 1–2, https://www.dhs.gov/sites/default/files/ publications/dhs_bib_-_web_version_-_ final_508.pdf. Under this Administration, the United States has also bolstered public messaging discouraging irregular migration and strengthened anti-smuggling and antitrafficking operations, while at the same time investing in Central America to address the lack of economic opportunity, weak governance and corruption, and violence and insecurity that lead people to leave their homes in the first place and attempt the dangerous journey to our Southwest border. See Press Release, The White House, FACT SHEET: The Biden Administration Blueprint for a Fair, Orderly and Humane Immigration System (July 27, 2021) https:// www.whitehouse.gov/briefing-room/ statements-releases/2021/07/27/factsheet-the-biden-administrationblueprint-for-a-fair-orderly-andhumane-immigration-system/ (last visited Mar. 14, 2022). The Departments emphasize that the COVID–19 pandemic and associated economic downturn, along with two severe hurricanes that together impacted Nicaragua, Honduras, Guatemala, and El Salvador in November 2020, have added to those longstanding problems. See DHS, Statement by Homeland Security Secretary Alejandro N. Mayorkas Regarding the Situation at the Southwest Border (Mar. 16, 2021), https://www.dhs.gov/news/2021/03/16/ statement-homeland-security-secretaryalejandro-n-mayorkas-regardingsituation; USAID, Latin American 50 See U.S. Customs and Border Protection (‘‘CBP’’), Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwestland-border-encounters. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 Storms—Fact Sheet #1, (FY) 2021 (Nov. 19, 2020), https://www.usaid.gov/crisis/ hurricanes-iota-eta/fy21/fs1 (last visited Mar. 14, 2022). Finally, misinformation—including the false message that our borders are ‘‘open’’— has also driven irregular migration. See DHS, Secretary Mayorkas Delivers Remarks in Del Rio, TX (Sep. 20, 2021), https://www.dhs.gov/news/2021/09/20/ secretary-mayorkas-delivers-remarksdel-rio-tx. The Departments reiterate that the borders of the United States are not open and that individuals should not put their own lives or the lives of their family members in the hands of smugglers or other criminals who represent otherwise. Comments: Many commenters generally opposed the rule due to concerns that USCIS asylum officers would be more likely than IJs to grant asylum or other protection to individuals who should not be eligible for it or to otherwise ‘‘loosen’’ the requirements for asylum eligibility. Some commenters expressed, without providing details, that IJs are better trained, better qualified, or better equipped to ‘‘vet’’ applicants or detect fraudulent claims. Other commenters explained that they were concerned USCIS asylum officers would not apply the law or would not serve as impartial adjudicators. Commenters based this concern on at least two different rationales. Some commenters reasoned that asylum officers were subject to greater political control than IJs; other commenters reasoned that asylum officers are too ‘‘unaccountable’’ to the public. Finally, a few commenters expressed concern about USCIS being ‘‘fee-driven’’ and that having a ‘‘feedriven’’ agency control the credible fear process removes it from congressional oversight. While most comments that disapproved of authorizing asylum officers to adjudicate defensive asylum applications urged the Departments to continue to require that IJs within EOIR adjudicate all such applications, some comments urged that ‘‘Federal judges’’ or immigration judges ‘‘appointed by the judicial branch’’ should be hired to quickly and impartially adjudicate asylum claims. Response: The Departments disagree with the assertion that USCIS asylum officers cannot appropriately vet or determine eligibility for protection. Asylum officers are career Government employees selected based on merit, they receive extensive training, and they possess expertise in determining eligibility for protection. See INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b); see, e.g., USAJOBS, E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations Asylum Officer, https:// www.usajobs.gov/job/632962200 (last visited Mar. 14, 2022) (specifying that asylum officers are members of the competitive service); see also 22 U.S.C. 6473(b) (requisite training on religious persecution claims). USCIS asylum officers must undergo ‘‘special training in international human rights law, nonadversarial interview techniques, and other relevant national and international refugee laws and principles.’’ 8 CFR 208.1(b); see also INA 235(b)(1)(E)(i), 8 U.S.C. 1225(b)(1)(E)(i) (requiring that asylum officers have ‘‘professional training in country conditions, asylum law, and interview techniques’’). While IJs handle a broad swath of immigrationrelated matters, USCIS asylum officers are uniquely trained to adjudicate protection claims. Additionally, USCIS asylum officers have dedicated resources available to them to address fraud concerns, including Fraud Detection and National Security (‘‘FDNS’’) officers embedded within the USCIS Asylum Division.51 FDNS employs numerous measures to detect and deter immigration benefit fraud and aggressively pursues benefit fraud cases in collaboration with USCIS adjudication officers and Federal law enforcement agencies. Since 2004, FDNS and ICE have collaborated in a strategic partnership to combat immigration fraud. FDNS officers work closely with law enforcement and intelligence community partners to resolve potential fraud, national security, and public safety concerns and to ensure the mutual exchange of current and comprehensive information. They conduct administrative investigations into suspected benefit fraud and aid in the resolution of national security or criminal concerns. Administrative investigations may include compliance reviews, interviews, site visits, and requests for evidence, and they may also result in a referral to ICE for consideration of a criminal investigation. Determining asylum eligibility and vetting is already a necessary part of the day-to-day work of a USCIS asylum officer and will continue to be so after this rule takes effect. Regardless of whether it is an IJ or an asylum officer who adjudicates an application, no individual may be granted asylum or withholding of removal until certain vetting and identity checks have been made. INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i); 51 See USCIS, Fraud Detection and National Security Directorate, https://www.uscis.gov/aboutus/directorates-and-program-offices/frauddetection-and-national-security-directorate. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 8 CFR 208.14(b), 1003.47. The Departments believe that commenters’ concerns about USCIS having a financial incentive to ‘‘rubber-stamp’’ grant applications for asylum or lacking congressional oversight because it is primarily fee-funded are likewise misplaced. USCIS adjudicates asylum applications without charge, see 86 FR 46922, and is subject to congressional oversight. Moreover, EOIR is currently burdened with a heavy case backlog, as described in the NPRM. Notably, EOIR’s caseload includes a wide range of immigration and removal cases. See EOIR Policy Manual, Part II.1.4(a) (updated Dec. 30, 2020), https://www.justice.gov/eoir/eoirpolicy-manual (‘‘EOIR Policy Manual’’). Allowing USCIS to take on cases originating in the credible fear process therefore is expected to reduce delays across all of EOIR’s dockets, as well as reducing the time it takes to adjudicate these protection claims. The Departments believe that alleviating immigration court caseloads through the fair, efficient process articulated in this rule is a positive step forward. Suggestions asking for additional Federal judges within the judicial branch to handle the influx of asylum and protection-related cases should be directed to Congress. Comments: Many commenters generally opposed the rule on the ground that a higher-priority or better way to address the overwhelmed U.S. asylum system would be to ‘‘regain control’’ over who enters the country by ‘‘tak[ing] steps to significantly reduce the number of people flowing across the border’’ and by not releasing individuals who have entered the United States without inspection or parole. Response: The Departments acknowledge concerns raised by the commenters and note that this rulemaking is one part of a multifaceted whole-of-government approach to addressing irregular migration and ensuring that the U.S. asylum system is fair, orderly, and humane. This wholeof-government approach seeks to make better use of existing enforcement resources by investing in border security measures that will facilitate greater effectiveness in combatting human smuggling and trafficking and addressing the entry of undocumented migrants. The United States also is working with governments of nearby countries to facilitate secure management of borders in the region and to investigate and prosecute organizations involved in criminal PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 18111 smuggling.52 These and other efforts to address irregular migration are beyond the scope of this rule, which specifically concerns the procedures by which individuals who are encountered near the border and placed into expedited removal will receive consideration of their claims for asylum or other protection, as is required by law. INA 235(b)(1), 8 U.S.C. 1225(b)(1). However, to the extent that the significant delays in the adjudication of asylum claims today contribute to rates of irregular migration, the Departments believe that the efficiencies introduced by the rule will help to reduce any incentive to exploit the system and enhance the Government’s efforts to address irregular migration. By limiting the amount of time a noncitizen may remain in the United States while a claim for relief or protection is pending, the rule stands to dramatically reduce potential incentives for noncitizens to make false claims for relief and protection. Finally, the Departments emphasize that individuals who have entered the United States without inspection or parole and who are subsequently encountered and placed into expedited removal are presumptively detained, as the statute provides that such individuals are subject to mandatory detention. See INA 235(b)(1)(B)(ii), (iii)(IV), 8 U.S.C. 1225(b)(1)(B)(ii), (iii)(IV). Such individuals may be released on parole only in accordance with the statutory and regulatory standards. See INA 212(d)(5), 8 U.S.C. 1182(d)(5); 8 CFR 212.5, 235.3(b)(2)(iii), (b)(4)(ii). Comments: Many commenters generally opposed the rule on the ground that allowing USCIS to adjudicate the merits of asylum claims through a nonadversarial process would ‘‘take away the rights of the American people to be represented in court when migrants seek benefits that would place them on the path to citizenship’’ or ‘‘remov[e] . . . safeguards that are meant to protect the American population.’’ Commenters asserted that allowing asylum claims to be adjudicated without a DHS attorney cross-examining the applicant and having the opportunity to offer impeachment evidence would give fewer rights to the American people, while the noncitizen applicant would 52 See Press Release, The White House, FACT SHEET: The Biden Administration Blueprint for a Fair, Orderly and Humane Immigration System (July 27, 2021), https://www.whitehouse.gov/ briefing-room/statements-releases/2021/07/27/factsheet-the-biden-administration-blueprint-for-a-fairorderly-and-humane-immigration-system/ (last visited Mar. 14, 2022). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18112 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations still have the opportunity to be represented by counsel. Response: The Departments do not agree with the premise of commenters’ assertions. A nonadversarial process does not take away the rights of the American people, but rather it allows for the presentation and consideration of asylum and other protection claims in a manner that is fair and efficient. Asylum officers are Government officials who are well-trained in making credibility determinations and assessing evidence. The asylum officer position is a specialized position focusing on asylum and related relief and protection from removal; as explained in Section III.B of this preamble, asylum officers already adjudicate affirmative asylum claims through a nonadversarial process. An asylum officer can consider evidence relevant to an applicant’s claim, including evidence that might be introduced as impeachment evidence in immigration court, and an asylum officer, where appropriate, can ask the applicant questions similar to those that a DHS attorney might ask in immigration court during a crossexamination. The Departments believe that the American public is better served if claims for asylum or related protection that originate through the credible fear screening process may be adjudicated—fairly and efficiently—not only within section 240 proceedings before IJs but also by asylum officers who specialize in such claims. Comment: Several commenters generally opposed the rule out of a belief that it is being promulgated solely for the purpose of providing asylum or other immigration benefits faster or through an easier procedure and is thereby putting the interests of migrants ahead of the interests of U.S. persons or of the public interest. Response: The Departments disagree with the view that the rule is not in the public interest. Rather, providing a process through which vulnerable populations may seek protection is the means by which the United States meets its obligations under both U.S. and international law. See Refugee Protocol, 19 U.S.T. 6223; INA 208, 241(b)(3), 8 U.S.C. 1158, 1231(b)(3); FARRA sec. 2242. Amending the existing process to allow adjudications—both those that end in grants and those that end in denials—to be made more promptly, while maintaining fundamental fairness, is a change that is in the public interest. For decades, U.S. law has protected vulnerable populations from return to a country where they would be persecuted or tortured. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987) (observing that the Refugee Act of VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 1980 established ‘‘a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger’’); FARRA sec. 2242 (legislation implementing U.S. obligations under Article 3 of the CAT not to remove noncitizens to any country where there are substantial grounds for believing the person would be in danger of being subjected to torture). Ensuring that the Departments uphold these American values as enshrined in U.S. law is in the national interest. It is also in the public interest that the procedures by which the Departments administer the law and uphold these values not regularly result in years-long delays, which may be detrimental to both the U.S. public and those seeking protection. Efficient processing of cases is in the public interest, as cases that span years can consume substantially greater Government resources, including by contributing to delays in immigration court proceedings that hinder DHS’s ability to swiftly secure the removal of noncitizens who are high priorities for removal. The process created by this rule therefore advances the public interest by authorizing the Departments to employ a fair and efficient procedure for individuals to seek protection as an appropriate alternative to the exclusive use of section 240 proceedings and by reducing immigration court backlogs that are detrimental to the public interest. Comments: Some commenters generally opposed the rule on the ground that it allows noncitizens to seek review of any denial of asylum or other protection but does not allow an opportunity for correcting or reviewing erroneous grants of asylum or other protection. Response: The Departments acknowledge the concern regarding error correction when asylum or other protection is granted, but the Departments believe this concern is addressed by existing statutory and regulatory provisions, as well as by DHS’s longstanding practices regarding the supervision of asylum officers. To reiterate those longstanding supervision practices, the Departments have revised 8 CFR 208.14(b) and (c) and, correspondingly, 8 CFR 1208.14(b) and (c), to emphasize that asylum officers’ decisions on approval, denial, dismissal, or referral of an asylum application remain subject to review within USCIS. As noted above, the Secretary of Homeland Security is charged with the administration and enforcement of the PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 immigration laws and has the control, direction, and supervision of all employees and of all the files and records of USCIS. See INA 103(a)(1), (2), 8 U.S.C. 1103(a)(1), (2). Further, the asylum statute vests the Secretary of Homeland Security with the authority to grant asylum. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The Secretary’s broad authority includes the authority to review and modify immigration benefit decisions, including grants of asylum. Such authority has been delegated to the Director of USCIS. See DHS, Delegation to the Bureau of Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); see also 8 CFR 2.1. Further, USCIS retains authority under this delegation to reopen or reconsider decisions (including asylum decisions) at any time on the agency’s own motion, based upon any new facts or legal determinations. See 8 CFR 103.5(a)(5). Nothing in this IFR in any way detracts from or diminishes the authority and responsibility of the Secretary of Homeland Security and the Director of USCIS over any grant of asylum that is issued by USCIS. Beyond these statutory and regulatory provisions, 100 percent of USCIS asylum officers’ approvals, denials, referrals, or dismissals of an asylum application are currently subject to supervisory review before a final decision is made and served on the applicant. See Memorandum from Andrew Davidson, Chief, Asylum Div., USCIS, Modifications to Supervisory Review of Affirmative Asylum Cases (Mar. 31, 2021). The decision of the asylum officer on whether or not to grant asylum undergoes review by a supervisor, and may be further reviewed as USCIS deems appropriate, before finalization and service on the applicant. Id. The Departments have revised 8 CFR 208.14(b) and (c), and made corresponding revisions to 8 CFR 1208.14(b) and (c), to emphasize these longstanding review practices. The Asylum Division also as a matter of policy determines which cases should receive further review at the headquarters level before being finalized. See, e.g., USCIS Asylum Division, Affirmative Asylum Procedures Manual, III.Q. Quality Assurance Review (May 2016), https:// www.uscis.gov/sites/default/files/ document/guides/AAPM-2016.pdf. Further, the Director of USCIS, or the Director’s delegate, ‘‘may direct that any case or class of cases be certified’’ to another USCIS official, including the USCIS Director herself, for decision. See 8 CFR 103.4(a)(1). Accordingly, USCIS E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations adjudicates each asylum claim, and the individual asylum officer is only empowered to grant asylum, as an exercise of the Secretary’s authority. See 8 CFR 208.9(a). If a grant of asylum or withholding of removal is not warranted, the grant may be terminated by USCIS or an immigration judge, as appropriate. See INA 208(c)(2), 8 U.S.C. 1158(c)(2); 8 CFR 208.24, 1208.24. A grant of CAT deferral of removal may also be terminated. See 8 CFR 208.17(d)–(f), 1208.17(d)–(f). The procedures for termination of a grant of asylum, withholding of removal, or deferral of removal is not changed by the rule. Any further judicial review may occur after the termination of asylum or other protection commences. Moreover, with regard to individuals who are found eligible for withholding of removal but not granted asylum, the rule generally provides an opportunity for correcting an erroneous finding of eligibility through the streamlined section 240 proceeding. For example, if the DHS attorney becomes aware of new derogatory information indicating that the noncitizen is ineligible for that other protection, such information can be submitted and accounted for in the IJ’s removal order. Finally, to the extent this IFR sets up a process under which, where an asylum officer declines to grant a noncitizen’s asylum claim, that noncitizen can continue to pursue that claim before an IJ, the IFR does not break new ground. Rather, in these respects, the IFR mirrors the longstanding affirmative asylum process. Comments: Several commenters generally opposed the rule on the ground that it would delay or otherwise make it harder for DHS to remove noncitizens by giving them more opportunities to appeal. Commenters expressed concern that delays in removal, coupled with more expeditious grants of asylum, would encourage more irregular migration and incentivize individuals to make fraudulent claims for asylum to obtain parole from detention. Response: The Departments acknowledge the commenters’ concern but disagree with their conclusions. The rule intends to streamline adjudication of protection claims, whether granted or not. As noted in the NPRM, for claims involving non-detained individuals in section 240 removal proceedings, including asylum seekers encountered at the border and initially screened into expedited removal who establish a credible fear of persecution, the current average case completion time for EOIR is 3.75 years, and individuals who VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 arrive at the border and seek protection therefore often must wait several years for an initial adjudication by an IJ. See 86 FR 46909, 46928 tbl. 6. Any appeal after that adjudication adds even more time that an individual may expect to remain in the United States. Given the length of the process under the status quo and the streamlining procedures incorporated into the new process to promote prompt resolution of removal proceedings, it is unlikely that the new process allowed by the rule will result in further ‘‘delays in removal’’ that commenters fear may encourage further irregular migration or incentivize the filing of non-meritorious claims by individuals who do not need protection. The new process replaces a single section 240 removal proceeding in immigration court with a merits interview before an asylum officer, followed by a streamlined section 240 removal proceeding if USCIS does not grant asylum. Comments that assume this new two-step process will result in greater delays overlook that the new process is tailored specifically to adjudicate asylum and related protection claims, and individuals in the process will have been determined by an immigration officer to be inadmissible under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 1225(b)(1)(A)(i).53 Additionally, as detailed in Section III.D of this preamble, the streamlined 240 removal proceeding will be governed by special procedural rules, including time frames and limits on continuances, that assure prompt completion. This streamlined process, as provided by the rule, thus addresses the commenters’ underlying concern regarding delays. As explained in the NPRM, the Departments believe that this rule will substantially reduce the average time to adjudicate asylum claims—whether the final decision is a grant or a denial—thereby reducing any incentive for exploitation of the asylum system. Comments: Several commenters generally opposed the rule based on the view that nearly all the migrants encountered at or near the Southwest border are economic migrants, not legitimate asylum seekers, and that all such individuals should therefore be removed without wasting resources on adjudications and appeals. 53 To be sure, the IFR includes exceptions to these streamlined section 240 proceedings. One of those exceptions is for noncitizens who raise a substantial challenge to the charges of inadmissibility or removability. See 8 CFR 1240.17(k)(3). Certain streamlining provisions under 8 CFR 1240.17, including the deadlines, and the limits on continuances and extensions of deadlines, will not apply in cases involving such noncitizens. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 18113 Response: The Departments acknowledge commenters’ concern that legitimate asylum seekers be identified and distinguished from individuals seeking to enter the United States for other purposes, and the rule is indeed designed to more expeditiously and fairly distinguish the one group from the other. The Departments disagree with commenters’ characterization that nearly all migrants encountered at the Southwest border are only seeking economic opportunity. Recent surveys of individuals seeking to migrate to the United States have found that individuals cite a variety of factors, often in combination, for leaving their country of origin. While economic concerns and a belief in American prosperity and opportunity are common reasons stated, violence and insecurity have been cited as reasons for migrating by majorities or near majorities of those surveyed.54 And, regardless, Congress has instructed that individuals in expedited removal who claim a fear of persecution or indicate an intent to apply for asylum be given an individualized credible fear screening. INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); see also 8 CFR 208.30. The purpose of these individualized screenings is to prevent the removal of individuals in need of protection to a country where they face persecution or torture. Under this IFR, as under current regulations, individuals who receive a positive credible fear determination are given a fair opportunity to pursue their claim for asylum or other protection. Individuals who receive a negative credible fear determination and individuals who are determined to not warrant a discretionary grant of asylum or to be otherwise ineligible for protection will be subject to removal. Moreover, by making changes to facilitate the more frequent use of expedited removal for broader classes of individuals and families, the IFR will enable the Departments to more quickly secure removal orders in cases in which no fear claim is asserted or no credible fear is established than if such individuals and families were instead placed directly in removal proceedings, as frequently occurs. 54 See, e.g., Randy Capps et al., Migration Policy Institute, From Control to Crisis: Changing Trends and Policies Reshaping U.S.-Mexico Border Enforcement 18–19 (Aug. 2019), https:// www.migrationpolicy.org/sites/default/files/ publications/BorderSecurity-ControltoCrisis-ReportFinal.pdf (last visited Mar. 15, 2022); Medicins Sans Frontieres, Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis 10–11 (May 2017), https://www.msf.org/sites/ msf.org/files/msf_forced-to-flee-central-americasnorthern-triangle_e.pdf (last visited Mar. 15, 2022). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18114 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations Comments: Multiple individual commenters generally opposing the proposed rule asserted that the rule, contrary to its stated purpose, would most likely increase the backlog of asylum cases, either because of the multiple levels of appeal available whenever an individual’s claim is not granted or because the rule would likely encourage more people to enter the United States and make a fear claim. Response: The Departments agree that high rates of asylum applications relative to historic data are of concern for both USCIS asylum offices and the immigration courts. However, commenters misapprehend the nature of the review and appeal structure proposed in the NPRM and finalized, in modified form, in this IFR. The new process replaces a single section 240 removal proceeding in immigration court with an interview before an asylum officer, which is followed by a streamlined section 240 removal proceeding if the asylum officer does not grant asylum. Commenters assume that any new two-step process will increase the backlog of asylum cases, but the process this IFR establishes is tailored specifically to adjudicate asylum claims. Additionally, as detailed above in Section III.D of this preamble, unlike an ordinary section 240 removal proceeding, streamlined section 240 removal proceedings will be governed by special procedural rules, including limits on continuances, that assure prompt completion. As a result, the process established by this rule is expected to take less time and assist in stemming case backlogs relative to the current process of initially adjudicating all claims through an ordinary section 240 proceeding, followed by the possibility of appeal to the BIA and review by the U.S. Courts of Appeals. The Departments also disagree with commenters’ predictions that the rule would increase the backlog of asylum cases by encouraging more individuals to seek asylum or related protection, as commenters have not identified any evident causal mechanism by which the rule as a whole, in context, would systematically and substantially incentivize more individuals to seek to enter the United States and pursue asylum. On the contrary, the Departments believe that, by enabling prompt adjudication of asylum claims— including the prompt rejection of claims that lack merit—the rule would discourage individuals who lack a basis for asylum or related protection to seek to enter the United States or claim protection. Comments: A few commenters expressed opposition for each of the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 following reasons: The proposed rule would change the substantive standard for asylum eligibility; the proposed rule would allow noncitizens who entered the United States without authorization to ‘‘cut the line’’ ahead of those who have been awaiting legal immigration and therefore will be unfair and harmful to those whose cases are delayed and will remove incentives for individuals to pursue legal immigration; and the proposed rule would automatically provide for ‘‘immediate’’ U.S. citizenship. A few commenters also expressed opposition on the ground that only elected officials should make asylum decisions or, alternatively, only voters should make asylum determinations. In addition, one commenter opposing the rule described it as ‘‘giving two chances at asylum’’ and another commenter described it as a proposal to ‘‘cut funding for the detention of asylum seekers.’’ Response: The concerns expressed by these commenters are based on apparent factual misunderstandings of the asylum standards, the asylum adjudications system, and the effect of an asylum grant. In that regard, the NPRM would not have changed, and the IFR does not change, the standards for qualifying for asylum. Further, the NPRM would not have provided, and the IFR does not provide, ‘‘immediate’’ U.S. citizenship to anyone. Rather, this rulemaking is concerned with the system for adjudicating asylum claims by noncitizens found to have credible fears of persecution or torture. While a noncitizen granted asylum may eventually apply for and receive citizenship if certain conditions are met, a grant of asylum on its own does not entitle the recipient to citizenship. The Departments believe that the changes suggested by these comments either are not within the scope of the rulemaking or would be impermissible under current U.S. law. Comments: A commenter stated that the proposed rule would negatively affect individuals seeking asylum through the affirmative application process. The commenter noted that USCIS has more than 400,000 pending affirmative asylum cases, and most cases take more than 180 days to adjudicate. The commenter stated that the proposed rule would exacerbate this backlog by adding to the queue the asylum claims of individuals in expedited removal proceedings. While the commenter acknowledged that the Departments proposed in the NPRM to increase staffing levels in order to implement the new rule, the commenter stated that these additional resources should be used to adjudicate existing PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 cases in order within the 180-day period mandated by Congress. Other commenters stated that the Departments have not addressed whether the proposed rule will increase backlogs and wait times for affirmative cases. Response: The Departments acknowledge the commenter’s concern for individuals with affirmative asylum cases pending before USCIS but disagree that this rule will negatively affect them. As discussed in the NPRM, the Departments have planned for the new process described in this rule to be implemented in phases, as the necessary staffing and resources are put into place. A phased implementation will allow the Departments to begin employing the proposed process in a controlled manner 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. As the commenter acknowledged, USCIS plans to hire new employees and secure additional funding to implement this rule so that it will not be necessary to divert resources from existing caseloads, including affirmative asylum, to do so. USCIS has estimated that it will need to hire approximately 800 new employees and spend approximately $180 million to fully implement the proposed Asylum Merits interview and adjudication process to handle approximately 75,000 cases annually. While addressing the affirmative asylum backlog is outside the scope of the rulemaking, the Departments acknowledge the importance of doing so and note that USCIS has taken other actions to address this priority. These include expanding facilities; hiring and training new asylum officers; implementing operational changes to increase interviews and case completions and reduce backlog growth; establishing a centralized vetting center; and working closely with technology partners to develop several tools that streamline case processing and strengthen the integrity of the asylum process.55 In addition, on September 30, 2021, Congress passed the Extending Government Funding and Delivering Emergency Assistance Act, which provides dedicated backlog elimination funding to USCIS for ‘‘application 55 See USCIS, Backlog Reduction of Pending Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021), https://www.dhs.gov/ sites/default/files/2021-12/USCIS%20-%20Backlog %20Reduction%20of%20Pending %20Affirmative%20Asylum%20Cases.pdf. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations processing, the reduction of backlogs within asylum, field, and service center offices, and support of the refugee program.’’ Public Law 117–43, sec. 132, 135 Stat. 344, 351. Comments: Some commenters generally proposed alternative ways to reduce delays and strain on the U.S. system for asylum adjudication and urged the Departments to implement these alternatives rather than the proposed rule. Proposed alternatives included the following actions: • Taking unspecified actions to significantly reduce the number of people crossing the border; • devoting more resources to the current asylum process, including hiring more IJs; • adopting stricter substantive standards for demonstrating asylum eligibility; • implementing the Migrant Protection Protocols (‘‘MPP’’); • criminally prosecuting anyone who makes a fraudulent asylum claim; • denying all asylum requests; and • denying asylum to noncitizens who cross the border between ports of entry. Response: The Departments acknowledge the commenters’ suggestions and recognize that building an immigration system that works and maintaining an orderly, secure, and well-managed border requires multiple coordinated lines of effort. High numbers of unauthorized border crossings, transnational criminal organizations seeking to profit from a range of illicit activities, and the ongoing impact of COVID–19 on the processing of migrants present significant challenges along the Southwest border. DHS has deployed unprecedented levels of personnel, technology, and resources and has made critical security improvements to secure and manage our borders. The Departments emphasize that this rule addresses specifically the way in which asylum and related protection claims of certain individuals encountered near the border are considered, with the aim of adjudicating those claims in a timelier manner while ensuring fundamental fairness. Comments advocating for other immigration policy changes that in theory could lead to fewer individuals making fear claims are outside the scope of this rulemaking. The Departments agree that increasing the number of IJs is part of the solution to alleviating the current strain on the U.S. asylum system. The Fiscal Year 2022 President’s Budget requests an additional 100 IJs and associated support staff to ensure the efficient and fair processing of cases, and EOIR will continue to request funding to add VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 additional IJs. See DOJ, FY 2022 Budget Request, https://www.justice.gov/jmd/ page/file/1398846/download. Given the increase in the number of immigration judges requested of and authorized by Congress during recent budget cycles, the Fiscal Year 2022 President’s Budget also requests 100 additional ICE litigators to prosecute the removal proceedings initiated by DHS, consistent with 6 U.S.C. 252(c). See DHS, ICE Budget Overview Fiscal Year 2022 Congressional Justification ICE– O&S–22, https://www.dhs.gov/sites/ default/files/publications/u.s._ immigration_and_customs_ enforcement.pdf (explaining that the ICE Office of the Principal Legal Advisor currently faces a staffing budgetary shortfall of several hundred positions). b. Negative Impacts on Applicants and Their Support Systems Comments: A few commenters opposed the proposed rule based on generally stated concerns about negative consequences for asylum seekers. Commenters stated that the existing process for adjudicating asylum claims originating in credible fear screening is effective and provides strong legal protections for asylum seekers, including the opportunity for judicial review. Other commenters expressed concern that any streamlining of the existing process would result in asylum seekers being ordered removed without receiving full and fair consideration of their protection claims. Response: The Departments disagree with the commenters’ premise that any change from the existing procedure that seeks to determine relief or protection claims in a timelier manner will be detrimental to individuals who are seeking asylum. The procedure established by this rule gives individuals appropriate procedural protections, as well as an opportunity for those whose relief or protection claims are denied to seek judicial review after exhausting their administrative remedies. Moreover, as described above, the Departments are finalizing the rule with certain changes from the NPRM that are responsive to concerns about fairness, such as retaining USCIS’s authority to entertain reconsideration of a negative credible fear determination that has been upheld by an IJ, specifying a minimum number of days between a positive credible fear determination and the Asylum Merits interview, and eliminating the restrictions on the evidence applicants may submit before IJs. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 18115 c. Negative Impacts on U.S. Citizens and the Economy Comments: Many commenters generally opposed the rule due to concerns that it will lead to increases in unauthorized immigration, immigration benefits illegally obtained by fraud, or lawful immigration that the commenters perceived as illegitimate. Commenters expressed concern that such immigration would have negative effects on U.S. citizens and the U.S. economy, including with respect to availability of housing and other resources, wages and jobs, public health, costs of schools and healthcare, crime and safety, the deficit, and the environment, among other things. For the most part, commenters did not provide details about why they believed that the rule would result in increased immigration or increased rates of fraud or misrepresentation. Some commenters, however, explained that they believed the rule would drive increased unauthorized or fraudulent immigration ‘‘by promising aliens who have made bogus asylum claims freedom from detention.’’ Other commenters explained that they believed the rule would drive increased unauthorized or fraudulent immigration by allowing for nonadversarial merits adjudications, without an ICE attorney assigned to cross-examine the applicant or present impeachment evidence. Response: The Departments acknowledge the comments on the potential negative impacts of lawful immigration, including the impacts on wages, jobs, and the labor force. However, because the rule does not change the substantive standard for asylum or related protection, the Departments do not expect that the rule will lead to increases in legal immigration, although it may lead to some eligible noncitizens receiving asylum or related protection sooner than they otherwise would. Section V.B of this preamble estimates the effects, on a per-individual, per-day basis, of individuals receiving employment authorization earlier as a result of efficiencies introduced by the rule. Contrary to commenters’ claims, as detailed in Section V.B of this preamble, the increased efficiencies of this IFR could also result in fewer individuals who are ineligible for protection receiving employment authorization, if their applications are not granted before the waiting period for employment authorization under 8 CFR 274a.12(c)(8) has run. Furthermore, even if there were reason to believe that the rule may lead to increases in legal immigration, the Departments note that commenters did not provide any data or studies E:\FR\FM\29MRR2.SGM 29MRR2 18116 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 supporting negative net impacts of asylees on U.S. citizens or the U.S. economy.56 While the Departments acknowledge the commenters’ concerns about the negative impacts of unauthorized immigration and unauthorized entrance into the United States without inspection or parole, the Departments disagree with the commenters that there is reason to believe that the rule will result in an increase in the number of individuals who enter the United States without inspection or parole, or in an increase in those who stay beyond their authorized period of admission. If anything, by more expeditiously ordering removed those who are ineligible for protection, this rule may send a stronger deterrent signal relative to the status quo. Moreover, as outlined above, the United States is undertaking a range of efforts to address irregular migration and promote security at the border. Without additional information about the mechanism by which commenters anticipate that this rule will lead to more unauthorized migration, the Departments cannot further evaluate these comments. The Departments note that the rule does not ‘‘promis[e] . . . freedom from detention,’’ and the Departments disagree with the commenters’ concern about the nonadversarial nature of the Asylum Merits interview, as previously explained. Similarly, while the Departments appreciate commenters’ concerns about individuals seeking to obtain asylum or related protection by fraud or misrepresentation, the Departments disagree that there is any reason to believe that the rule will result in an increase in either the incidence or success of such fraud or misrepresentation. As explained earlier in Section IV.B.2.a of this preamble, the Departments are confident that asylum 56 Isolating immigration’s effect on labor markets has been an ongoing task in the research. A 2017 National Academies of Sciences, Engineering, and Medicine (‘‘NAS’’) publication synthesizes the current peer-reviewed literature on the effects of immigration and empirical findings from various publications. NAS, The Economic and Fiscal Consequences of Immigration (2017), https:// www.nap.edu/catalog/23550/the-economic-andfiscal-consequences-of-immigration (last visited Mar. 5, 2022) (‘‘2017 NAS Report’’). Although this report is not specific to asylees, its analysis may be instructive. The report cautions that economic theory alone is not capable of producing definitive answers about the net impacts of immigration on labor markets over specific periods or episodes. Empirical investigation is needed. But wage and employment impacts created by flows of foreignborn workers into labor markets are difficult to measure. The effects of immigration have to be isolated from many other influences that shape local and national economies and the relative wages of different groups of workers. Id. at 4. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 officers have the training, skills, and experience needed to assess credibility and appropriately determine asylum eligibility through a nonadversarial interview.57 With respect to comments noting a negative impact of immigration (whether lawful or unauthorized) on availability of housing, public health, costs of schools and healthcare, the deficit, and the environment, the comments lacked specific information expanding on these statements and explaining how this rule would impact these areas. Environmental issues are addressed in Section V.J of this preamble. Comments: Numerous commenters stated that the needs, interests, and protection of the American people should come first, and they asserted that the proposed rule would ‘‘elevate’’ asylum seekers and others who enter the United States without authorization above U.S. citizens. Many individual commenters stated that the asylum program should be halted, or should not be changed, until the United States can support and help its own citizens who are in need. Response: The Departments acknowledge the commenters’ concern for U.S. citizens, and in particular for U.S. citizens in need. The Departments disagree, however, with the commenters’ assumption that the rule either prioritizes the interests of asylum seekers over the interests of U.S. citizens or will be to the detriment of the needs, interests, or protection of U.S. citizens. An asylum system that more expeditiously determines whether individuals are or are not eligible for asylum or other protection in the United States, while providing due process, is in the public interest. It complies with Congress’s instruction in INA 235, 8 57 The approval rate [total cases granted/total cases granted + total case denied + total cases referred (USCIS affirmative asylum processing only)] of asylum officers and IJs on the merits of asylum claims from Fiscal Years 2017 through 2021 show approval rates for asylum claims adjudicated by asylum officers to be in the 26–37 percent range, while IJ approval rates on asylum claims that started as credible fear screenings ranged from 31– 39 percent and on all asylum claims (regardless of whether they began in the expedited removal or credible fear process) ranged from 26–37 percent. This information suggests that asylum officers are just as equipped to identify individuals not meeting asylum eligibility requirements as IJs who use the adversarial process with the participation of ICE’s Office of the Principal Legal Advisor to reach a decision on asylum eligibility. USCIS, Refugee, Asylum and Int’l Operations Directorate, Asylum Division Workload Statistics for Affirmative Asylum 2009 to 2021 (2022); EOIR Adjudications Statistics: Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/ 1062976/download; EOIR Adjudications Statistics: Asylum Decision Rates (Jan. 19, 2022), https:// www.justice.gov/eoir/page/file/1248491/download. PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 U.S.C. 1225, that individuals in expedited removal be screened for credible fear of persecution and receive individualized consideration of their claims; it allows individuals who are not eligible for protection to be removed more promptly, thereby reducing any incentives to exploit the process; and it allows individuals who are eligible for asylum or other protection to sooner receive that assurance and integrate into their new community. Some commenters invoked particular categories of U.S. citizens in need, including persons experiencing unemployment or homelessness, veterans, persons with disabilities, and children in foster care, but the commenters did not provide any explanation or information to support the idea that this rule will operate to the detriment of these groups, or to support the idea that halting the asylum program—as some commenters proposed—would benefit these groups. The Departments note that the rule’s potential and uncertain impacts on the U.S. labor force are analyzed in Section V.B of the preamble. Comments: Multiple commenters stated generally that asylees’ dependence on Government programs for support would lead to an undue burden on American taxpayers, exacerbation of the U.S. deficit, or increased costs of education and healthcare in the communities where asylees live. Response: The Departments appreciate commenters’ concern that public costs at the Federal, State, or local level might accompany increases in the number of individuals granted asylum in the United States. However, these general comments did not provide information or explanation to support either (1) the premise that this rule will lead to more individuals being granted asylum in the United States, or (2) the premise that increases in the number of individuals granted asylum in the United States would, on net, lead to increased public costs or costs of education or healthcare. The Departments believe that the IFR is unlikely to lead to significant increases in the number of individuals granted asylum in the United States, much less to increased public costs or costs of education or healthcare that outpace asylees’ contributions in taxes and economic activity. A more detailed explanation of the possible impacts of this rule is provided in Section V.B of this preamble. Additionally, the Departments emphasize that estimating the fiscal impacts of immigration is a complex calculation. The first-order net fiscal impact of immigration is the E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations difference between the various tax contributions the immigrants in question make to public finances and the Government expenditures on public benefits and services they receive. These first-order impacts are sensitive to immigrants’ demographic and skill characteristics, their role in labor and other markets, and the rules regulating accessibility and use of Government programs.58 In addition, second-order effects may also occur, and analysis of such effects presents methodological and empirical challenges. For example, as with the native-born population, the age structure of an immigrant population plays a major role in assessing any fiscal impacts. Children and young adults contribute less to society in terms of taxes and draw more in benefits by using public education, for example. On average, as people age and start participating in the labor market, they become net contributors to public finances, paying more in taxes than they draw from public benefit programs. Moreover, older adults could again become net users of public benefit programs. Compared to the native-born population, immigrants can also differ in their characteristics in terms of skills, education levels, income levels, number of dependents in the family, the places they choose to live, etc., and any combination of these factors could have varying fiscal impacts. Local and State economic conditions and laws that govern public finances or the availability of public benefits also vary and can influence the fiscal impacts of immigration. lotter on DSK11XQN23PROD with RULES2 d. Other General Opposition to the Proposed Rule Comments: Many commenters stated that asylum seekers should remain in Mexico during the pendency of their immigration hearings or otherwise generally referred to the Migrant Protection Protocols (‘‘MPP’’). Similarly, other commenters asked the Department to clarify how the rule may comply or conflict with MPP. Specifically, commenters raised concerns regarding implementation of the program, litigation surrounding MPP, as well as alternative proposals for MPP. Response: Because MPP is decidedly separate from the expedited removal and credible fear process, comments concerning MPP are outside the scope of the changes made in this rule.59 The 58 See generally 2017 NAS Report at 323–27. processed for expedited removal are excluded from MPP, as that program is being implemented in compliance with the court order in Texas v. Biden, No. 2:21–cv–67, —F. Supp. 3d. —, 2021 WL 3603341 (N.D. Tex. Aug. 13, 2021). By its terms, MPP applies only to noncitizens initially 59 Individuals VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Departments appreciate engagement and concerns related to MPP, but discussion of the program, ongoing litigation, and DHS’s efforts to terminate the program are outside the scope of this rulemaking. Moreover, the Secretary of DHS has already explained in detail his reasons for terminating MPP and his decision not to use the contiguous-territoryreturn authority on a programmatic basis.60 C. Basis for the Proposed Rule 1. DOJ and DHS Statutory/Legal Authority Comments: Many individual commenters generally argued that the Departments do not have the statutory or legal authority to issue the rule, but the commenters did not provide a basis for their belief. Some individual commenters stated that the rule is unlawful, bypasses Congress, or cannot be issued as an executive decision. Response: The Departments believe that these general comments misapprehend or misstate the legal authorities involved in this rulemaking. As noted above in Section II.B of this preamble, asylum, statutory withholding of removal, and protection under the CAT are established or required by statute. See INA 208, 8 U.S.C. 1158; INA 241(b)(3), 8 U.S.C. 1231(b)(3); FARRA sec. 2242. This rule does not seek to bypass Congress or otherwise act where Congress has not given the Departments authority. This placed into section 240 proceedings, not the noncitizens at issue here, who are initially placed into expedited removal proceedings. See Memorandum from Robert Silvers, Under Secretary, Office of Strategy, Policy, and Plans, Guidance Regarding the Court-Ordered Reimplementation of the Migrant Protection Protocols 4 (Dec. 2, 2021), https://www.dhs.gov/sites/default/files/2022-01/21_ 1202_plcy_mpp-policy-guidance_508.pdf. Nor does MPP eliminate expedited removal as an option for processing certain inadmissible noncitizens arriving in the United States. Some individuals—e.g., Mexican nationals or nationals of countries outside the Western Hemisphere—may be eligible for processing through expedited removal but could not be considered for processing under MPP, which explicitly excludes certain categories of noncitizens. Additionally, the permanent injunction in Texas v. Biden specifically preserves the Secretary of DHS’s discretion to make individual determinations about how to process a particular individual. See Texas v. Biden, 2021 WL 3603341, at *27. That discretion encompasses whether to process a specific noncitizen for 240 proceedings or expedited removal. See Matter of E– R–M– & L–R–M–, 25 I&N Dec. 520 (BIA 2011). 60 See Memorandum from Alejandro N. Mayorkas, Secretary of Homeland Security, Termination of Migrant Protection Protocols (Oct. 29, 2021), https://www.dhs.gov/sites/default/files/ publications/21_1029_mpp-termination-memo.pdf; DHS, Explanation of the Decision to Terminate the Migrant Protection Protocols (Oct. 29, 2021), https://www.dhs.gov/sites/default/files/ publications/21_1029_mpp-terminationjustification-memo.pdf. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 18117 rule is consistent with statutory authority provided by Congress, and it is intended to create efficiencies in implementing a framework allowing for fair, consistent adjudications. Comments: Commenters argued that the Homeland Security Act of 2002 expressed congressional intent that defensive asylum claims be adjudicated by IJs rather than asylum officers by granting EOIR the authority to adjudicate these claims but making no such provision for USCIS. Moreover, commenters noted that because the HSA specified the date on which powers would be vested in USCIS, Congress did not intend that the Departments be able to reallocate the authorities of IJs and asylum officers through regulations and that Congress has decided not to reallocate authorities relevant to the proposed rule since 2003. Another comment argued that the Illegal Immigration Reform and Immigrant Responsibility Act expressed congressional intent that asylum seekers found to have a credible fear of persecution have their cases adjudicated by IJs. One comment cited IIRIRA legislative history in arguing that the credible fear interview’s purpose is to ‘‘weed out non-meritorious cases’’ and that asylum proceedings should be overseen by an IJ. One commenter asserted that legislative proposals under consideration in both the House and the Senate demonstrate Congress’s interest in asylum policy and in immigration policy generally. The commenter argued that gridlock in Congress does not give executive agencies a ‘‘free pass’’ to overstep the legislative directives given to them by Congress. Response: The Departments believe that these comments misapprehend or misstate the legal authorities involved in this rulemaking. This rule does not seek to bypass Congress or otherwise act where Congress has not given the Departments authority. If an asylum officer determines that a noncitizen has a credible fear of persecution, the noncitizen ‘‘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, however, ‘‘does not specify how or by whom this further consideration should be conducted.’’ Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997). By not specifying what ‘‘further consideration’’ entails, the statute leaves it to the agency to determine. Under Chevron, it is well-settled that such ‘‘ambiguity constitutes an implicit delegation from Congress to the agency E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18118 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations to fill in the statutory gaps.’’ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (citing Chevron, 467 U.S. at 844); see also Epic Sys. Corp., 138 S. Ct. at 1629 (noting that Chevron rests on ‘‘the premise that a statutory ambiguity represents an implicit delegation to an agency to interpret a statute which it administers’’ (quotation marks omitted)). An agency may exercise its delegated authority to plug the gap with any ‘‘reasonable interpretation’’ of the statute. Chevron, 467 U.S. at 844. By its terms, the phrase ‘‘further consideration’’ is open-ended. The fact that Congress did not specify the nature of the proceedings for those found to have a credible fear contrasts starkly with two other provisions in the same section that expressly require or deny section 240 removal proceedings for certain other classes of noncitizens. In one provision, INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(a), Congress provided that an applicant for admission who ‘‘is not clearly and beyond a doubt entitled to be admitted’’ must be ‘‘detained for a proceeding under section [INA 240].’’ And in another, INA 235(a)(2), 8 U.S.C. 1225(a)(2), Congress provided that ‘‘[i]n no case may a stowaway be considered . . . eligible for a hearing under section [INA 240].’’ These examples show that Congress knew how to specifically require immediate referral to a section 240 removal proceeding when it wanted to do so. ‘‘Where 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.’’ Salinas, 141 S. Ct. at 698 (quotation marks omitted). The D.C. Circuit 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 Cnty., 571 F.3d at 36 (quotation marks omitted). The suggestion that Congress’s silence in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), permits the Departments discretion to establish procedures for ‘‘further consideration’’ is reinforced by the fact that the noncitizens whom DHS has elected to process 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). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 The Departments disagree with the comments arguing that any statute requires asylum cases to be adjudicated through an adversarial process. The rule is designed to implement the statute, which does not specify what ‘‘further consideration of [an] application for asylum’’ entails and which thereby leaves it to the agency to determine what will occur when an individual placed in expedited removal is found to have demonstrated a credible fear of persecution. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Nothing in the asylum statute requires the Secretary of Homeland Security to establish an adversarial procedure to determine whether a noncitizen may be granted asylum. The Departments also disagree with the comments that defensive asylum applications are statutorily required to be adjudicated by DOJ instead of by DHS. The asylum statute provides that specified noncitizens ‘‘may apply for asylum,’’ including ‘‘in accordance with . . . [INA 235(b), 8 U.S.C. 1225(b)],’’ INA 208(a)(1), 8 U.S.C. 1158(a)(1), and that ‘‘[t]he Secretary of Homeland Security or the Attorney General may grant asylum to [a noncitizen] who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under [the asylum statute] if the Secretary of Homeland Security or the Attorney General determines that such [noncitizen] is a refugee,’’ INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). Section 208(b)(1)(A) of the INA does not distinguish between affirmative and defensive asylum applications, and its text—‘‘may grant asylum,’’ indicating that the Secretary of Homeland Security, on considering an asylum application, may determine not to grant it—confers adjudicatory authority. Cross-references between the asylum statute and the expedited removal statute provide further support for the conclusion that the asylum statute authorizes DHS to adjudicate defensive asylum applications. See, e.g., INA 208(a)(1), 8 U.S.C. 1158(a)(1) (citing INA 235(b), 8 U.S.C. 1225(b)); INA 235(b)(1)(A)(i), (ii), 8 U.S.C. 1225(b)(1)(A)(i), (ii) (citing INA 208, 8 U.S.C. 1158). The legislative history of the asylum statute supports this reading as well. Prior to 2005, section 208(b)(1)(A) referred only to the Attorney General. See INA 208(b)(1) (2000), 8 U.S.C. 1158(b)(1) (2000). Congress specifically added in certain references to the Secretary of Homeland Security in the REAL ID Act of 2005 and backdated the references’ effectiveness to the HSA’s effective date. Public Law PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 109–13, div. B, 101(a)(1), (2), (h)(1), 119 Stat. 231.61 In addition, the REAL ID Act’s conference report explains that the Act amended INA 208(b)(1) ‘‘to clarify that the Secretary of Homeland Security and the Attorney General both have authority to grant asylum,’’ ‘‘[b]ecause both the Secretary of Homeland Security and the Attorney General may now exercise authority over asylum depending on the context in which asylum issues arise.’’ H.R. Rep. No. 109– 72, at 162 (2005). Last, although the Departments acknowledge that some statements in IIRIRA’s legislative history could be read to suggest an expectation that noncitizens detained for ‘‘further consideration’’ would be placed in ‘‘normal non-expedited removal proceedings,’’ see, e.g., H.R. Rep. No. 104–828, at 209 (1996), the legislative history is inconsistent and, in any event, ‘‘legislative history is not the law,’’ Epic Sys., 138 S. Ct. at 1631. The Departments decline to read a limitation from the inconsistent legislative history into otherwise open-ended statutory text. Comments: Several commenters remarked that the proposed rule would create a rushed adjudication process in violation of U.S. obligations under both domestic and international law and contrary to United Nations High Commissioner for Refugees (‘‘UNHCR’’) guidance. Pursuant to such guidance, commenters recommended that the Departments make efforts to maximize asylum seekers’ access to counsel and argued that the detention of asylum seekers poses obstacles in this regard. Another commenter requested that no part of the asylum process, including the credible fear interview, should occur in a U.S. Customs and Border Protection facility. Similarly, another commenter cited UNHCR guidance and argued that accelerated procedures must, under international law, minimize risks of non-refoulement by giving asylum seekers guidance on the procedure itself and access to necessary facilities, including a competent interpreter, for submitting a protection claim, as well as the right to appeal a negative fear determination. Response: The Departments disagree with the commenters that the procedures for considering protection claims promulgated in this rule violate U.S. or international law. As an initial 61 That is not to say that the Secretary lacks other authorities in INA 208, 8 U.S.C. 1158, where Congress did not expressly add the Secretary in the REAL ID Act of 2005. Since enactment of the HSA, Congress has inserted piecemeal references to the Secretary in various provisions of the INA without doing so comprehensively. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations note, while the Departments do consider and value UNHCR guidance in interpreting the United States’ obligations under the 1967 Refugee Protocol, such guidance is not binding. The Departments agree with the commenters on the need to provide access to counsel to individuals making fear claims and have done so in this rule. For example, 8 CFR 235.3(b)(4)(ii) provides that prior to a credible fear interview, a noncitizen shall be given time to contact and consult with any person or persons of their choosing. In 8 CFR 208.30(d)(4), DHS provides that such person or persons may be present at the credible fear interview. In 8 CFR 208.9(b), DHS provides that individuals may have counsel or a representative present at affirmative asylum interviews or Asylum Merits interviews. In 8 CFR 1240.3 and 1240.10(a)(1), DOJ provides that noncitizens may have representation in section 240 proceedings before the IJ. The provisions at 8 CFR 1240.3 and 1240.10(a)(1) will apply in removal proceedings under this rule; though these proceedings are streamlined, noncitizens in them will have the right to representation at no expense to the Government. Furthermore, the Departments plan to ensure as part of the service of the positive credible fear determination, where an individual is placed in the Asylum Merits process, that they are provided with a fact sheet explaining the process and a contact list of free or low-cost legal service providers similar to what the individual would be provided if they were issued an NTA and placed into section 240 removal proceedings before EOIR. The Departments agree with the commenters that individuals subject to an accelerated procedure, such as a credible fear screening within expedited removal, should be provided guidance about the procedure, including information about the right to review of a negative credible fear determination. In 8 CFR 235.3(b)(4)(i), DHS continues to provide that individuals referred for credible fear interviews receive a written disclosure on Form M–444, Information About Credible Fear Interview, describing ‘‘[t]he purpose of the referral and description of the credible fear interview process’’; ‘‘[t]he right to consult with other persons prior to the interview and any review thereof at no expense to the United States Government’’; ‘‘[t]he right to request a review by an [IJ] of the asylum officer’s credible fear determination’’; and ‘‘[t]he consequences of failure to establish a credible fear of persecution or torture.’’ Additionally, for every credible fear VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 interview, asylum officers are trained to explain the purpose of the interview and ensure the individual understands. In addition, 8 CFR 208.30(d)(2) requires asylum officers conducting credible fear interviews to verify that the noncitizen has received Form M–444, Information About Credible Fear Interview, and to determine that they understand the credible fear determination process. Under this rule, if an asylum officer determines an individual does not have a credible fear of persecution or torture, the asylum officer must refer the individual to an IJ if the individual requests review or refuses or fails to indicate whether he or she requests review of the asylum officer’s credible fear determination. 8 CFR 208.30(g)(1), 1208.30(g)(2)(i). The process for IJ review of negative credible fear determinations involves the creation of a record of proceeding, the receiving of evidence, the provision of interpreters, and the right to consult with a person or persons of the individual’s choosing prior to the review. See INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8 CFR 1003.42. The Departments further agree with commenters on the need to provide competent interpretation. In 8 CFR 208.30(d)(5), DHS continues to provide that asylum officers conducting credible fear interviews will arrange for the assistance of an interpreter for noncitizens unable to proceed effectively in English where the asylum officer is unable to proceed competently in a language the alien speaks and understands. The rule provides in 8 CFR 208.9(g)(2) that asylum officers conducting Asylum Merits interviews will arrange for interpreter services for applicants unable to proceed effectively in English. Similarly, EOIR will provide interpretation services in credible fear determinations and hearings before an IJ. 8 CFR 1003.42(c), 1240.5. The Departments have mechanisms in place to ensure the quality of interpretation, including the absence of improper bias. These include training adjudicators to recognize signs of potential problems with interpretation and taking appropriate remedial measures; channels to report interpretation issues to the contracting entities providing interpretation services; and the periodic review of the terms and conditions of interpretation services contracts. Regarding the commenters’ opposition to the detention of asylum seekers, the Departments note that INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV), provides that individuals receiving credible fear interviews ‘‘shall be detained pending a final determination of credible fear of PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 18119 persecution and, if found not to have such a fear, until removed.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), further provides that noncitizens who receive a positive credible fear determination ‘‘shall be detained for further consideration of the application for asylum.’’ However, the INA additionally authorizes the Secretary to parole into the United States temporarily, on a case-by-case basis, such individuals ‘‘for urgent humanitarian reasons or significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). And as explained in more detail above, the Departments have provided in this rule for the reform of certain regulatory provisions implementing this statutory authority for individuals detained in the expedited removal process and for those pending a credible fear determination or any review thereof. Similarly, the Departments disagree with commenters’ proposal of disallowing credible fear interviews by USCIS asylum officers in CBP facilities during the credible fear process and note that this proposal is outside the scope of this rulemaking. Given the expedited nature of credible fear interviews and their role in initial processing of a covered noncitizen, CBP plays an important role in referral of claims of fear to a USCIS asylum officer. While the Departments have implemented safeguards to decouple law enforcement aims from the sensitive nature of protection screening, DHS and DOJ will remain flexible in how they use DHS facilities. 2. Need for the Proposed Rule/DOJ and DHS Rationale Comments: A commenter stated that the rule would create stronger ‘‘pull factors’’ encouraging foreign nationals to take advantage of quick release on parole and with the expectation that they would be able to live and work in the United States indefinitely while seeking asylum through an even more extended process than now exists. Other commenters argued that the proposed rule would lead to granting more asylum applications and that such an outcome is inappropriate because most asylum applications are not meritorious. Another commenter similarly argued that requiring noncitizens to prove their worthiness for a ‘‘discretionary form of relief’’ is required under existing laws and consistent with congressional intent; the commenter faulted the proposal for, in the commenter’s view, disregarding the requirements of the expedited removal statute. Conversely, a commenter stated that the proposed rule wrongly assumes that E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18120 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations asylum seekers at the border are more likely to have fraudulent claims and suggested imposing section 240 proceedings as the mechanism for review of asylum officer adjudication. The commenter cited a statistic that found that ‘‘83 percent of [affirmative asylum] cases that asylum officers did not grant after interview were subsequently granted asylum by the immigration courts in 2016.’’ Another commenter noted that the increase in credible fear referrals in the past decade more likely resulted from the deterioration of human rights conditions in nearby countries rather than an increase in fraudulent claims. Response: The Departments disagree with the generalized belief that the availability of parole in accordance with INA 212(d)(5), 8 U.S.C. 1182(d)(5), serves as a pull factor for individuals who would be covered by this process. As stated above in Section IV.B.2.a of this preamble, recent surveys of individuals seeking to migrate to the United States have found that individuals cite a variety of factors, often in combination, for leaving their country of origin. While economic concerns and a belief in American prosperity and opportunity are common reasons stated, violence and insecurity have been cited as reasons for migrating by majorities or near majorities of those surveyed.62 To the extent that individuals are motivated by economic concerns, the mere possibility of parole out of custody marginally earlier—based on an individualized determination—is not expected to significantly increase or alter the incentives that lead an individual to journey to the United States or remain in their country of origin. Importantly, noncitizens in expedited removal who are paroled prior to a credible fear determination (that is, the noncitizens affected by this IFR’s amendment to the regulations concerning parole) will not be eligible for employment authorization based on having been paroled. As to the claim that the majority of asylum applications are fraudulent, the Departments disagree. This assertion is not supported by fact. Moreover, denied asylum claims are not necessarily fraudulent. If an individual is not granted asylum or related protection by a USCIS asylum officer, it may be because they are ineligible for protection or have not shown that they merit a discretionary grant of asylum. In addressing commenters’ concern about the percentage of affirmative asylum applications that were not granted by USCIS but subsequently granted asylum 62 See supra note 54. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 by EOIR, the Departments note that numerous factors may explain this difference in outcomes, including that the IJ may be presented with additional evidence and testimony beyond what was heard by the asylum officer, and that the IJ may consider the asylum claim in light of changed circumstances underlying the application since the asylum officer’s decision. INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). Comment: Many commenters expressed concern for ensuring balance between fairness and efficiency. Commenters noted that addressing immigration backlogs should be the Departments’ priority, but the commenters also stated that procedural safeguards must be retained. Other commenters supported the implementation of a nonadversarial hearing process but asserted that due process concerns related to the expedited removal process could undermine the Departments’ goals of improving fairness or efficiency. Another commenter stated that compressed timelines may harm applicants who need time to develop trust in their attorneys and the asylum system. Response: The Departments agree that addressing the backlog of cases should be a priority, and applicants for asylum and related protection must be given due process. The Departments anticipate this rule will divert certain cases from immigration court and will enhance efficient processing of noncitizens subject to the expedited removal process, thereby stemming the growth of EOIR’s current backlog. The Departments also agree that ensuring fairness while being efficient may take time to execute on a national scale. It is for that reason that the Departments adopt a phased approach such that efficiencies can be developed while fairness is not lost due to administrative exigencies. While asylum applications are governed by a statutory timeline and this rule also uses a timeline to ensure applications stay on track, the Departments have incorporated safeguards to ensure that integrity is not compromised for the sake of administrative efficiency. Specifically, as noted in the regulatory text, the IFR provides for appropriate exceptions to the timelines at various stages of the asylum case, including submission of late-filed evidence and the timing of scheduled hearings. Comments: Comments attributed the immigration court backlog to ‘‘confusing and rapid fluctuations in the agencies’ interpretation of the particular social group definition,’’ changes in DHS prosecutorial discretion policies, PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 policies divesting IJs of authority to control their dockets, BIA and Attorney General opinions that preclude IJs from relying on parties’ stipulations, and office and court closures resulting from the COVID–19 pandemic. Response: The Departments recognize commenters’ concerns that numerous factors may impact the pending caseload. Accordingly, there may be numerous individual and combined approaches for addressing this issue. The Departments will not discuss at length the potential factors identified by commenters, as they are largely outside of the scope of this rulemaking. However, the Departments note that the goal of this IFR is to implement more efficient procedures for adjudicating certain protection-based claims. This will, in turn, help address the pending caseload while also ensuring that such cases are given appropriate full and fair consideration. To the extent that the IFR limits IJs’ authority to fully control their dockets, for example by establishing a regulatory timeline for scheduling and adjudicating these claims, the Departments believe that this regulatory schedule will ensure efficient processing of such claims while also permitting sufficient flexibility for IJs to deviate from the schedule by granting continuances where appropriate. Comments: One commenter stated that expediting the processing of asylum claims will not solve the current border crisis if the Administration also expands the categories of eligibility for asylum and stated that an improvement to asylum efficiency requires a combination of tightening the screening standards of eligibility for asylum and faster processing, including swift removal of those with meritless claims. Another commenter asserted that the Departments must not only consider immigration through a national security perspective, but must also pay attention to ‘‘humanitarian protection, legal immigration and naturalization, foreign student education and cultural exchange, and economic competitiveness.’’ The commenter expressed approval of the proposal in light of the challenges posed by backlogs. Conversely, at least one other commenter stated that the Departments should focus more on national security. Response: The Departments agree that fair and efficient processing of asylum claims is in the interest of the American people. Such a program of humanitarian protection not only speaks to American values of altruism, inclusiveness, and charity but is necessarily tied to our national security and economic interests. See, e.g., Deborah E. Anker & E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981) (noting that humanitarian protection speaks to American values). National security is a critical aspect of the asylum and refugee protection programs, not only because the Departments vet applicants to ensure they are not ineligible for asylum on national security grounds, but also because ensuring a safe haven for forcibly displaced persons around the world can promote national security. See, e.g., Elizabeth Neumann, Robust Refugee Programs Aid National Security (Dec. 17, 2020), https:// immigrationforum.org/wp-content/ uploads/2020/12/Robust-RefugeePrograms-Aid-National-Security12_16_ 20.pdf (last visited Mar. 14, 2022). In this rule, the Departments are not expanding asylum eligibility, but putting forward procedures that will use their respective resources to more effectively and efficiently issue decisions on protection claims. The Departments believe that such efficiencies will allow meritorious claims to be granted more promptly and will facilitate removal of those individuals who do not warrant protection from removal. 3. Prior Immigration Rulemakings Comments: Two commenters expressed support for the immigration rulemakings finalized during the prior Administration, stating that they kept borders safe and reduced the flow of unauthorized migrants. However, one commenter stated that the prior Administration destroyed the immigration system by overturning previously accepted legal interpretations and implementing procedures to deny people asylum. Another commenter expressed support for abandoning regulatory changes implemented under the prior Administration that obstructed access to asylum relief. One commenter stated that the proposed changes to the screening process for people in expedited removal proceedings are an important improvement over the previous regulatory changes implemented under the prior Administration. A commenter asserted that neither the Global Asylum rule nor the Security Bars rule should be implemented, as their provisions are incompatible with international legal standards and could have risks for individuals seeking protection in the United States. Another commenter suggested that, to ensure cases move quickly through asylum offices and court systems without delay, VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 DHS and DOJ should reverse the prior rules and policies such as the TCT Bar rule, Presidential Proclamation Bar IFR, Global Asylum rule, and Security Bars rule. A commenter stated that two asylumrelated rules, the Global Asylum rule and Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202 (Oct. 21, 2020) (‘‘Criminal Bars to Asylum rule’’), issued by the prior Administration were issued in violation of the HSA and the Federal Vacancies Reform Act (‘‘FVRA’’) and did not provide sufficient time for public comment on their ‘‘complicated provisions.’’ Therefore, the commenter said, both rules are null and void. The commenter also asserted that the provision of the Global Asylum rule that forced people into asylum-andwithholding-only proceedings was inconsistent with the INA, as Congress created a default rule that arriving individuals seeking asylum are to be placed in section 240 removal proceedings. The commenter also wrote that DHS and DOJ acted arbitrarily and capriciously by requiring individuals with credible fear findings to be placed in asylum-and-withholding-only proceedings. Another commenter stated that DHS should continue to rescind employment authorization rules issued by the prior Administration because they were issued by agency officials in violation of the Administrative Procedure Act (‘‘APA’’). With respect to employment authorization based on a pending asylum application, the commenter said this Administration should immediately restore the 150-day waiting period and 30-day processing time requirement for asylum seekers. Response: The Departments are revisiting and reconsidering numerous asylum-related rulemakings and policies in accordance with Executive Order 14010, Creating a Comprehensive Regional Framework to Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border (‘‘E.O. on Migration’’), and the E.O. on Legal Immigration. The E.O. on Migration provides that the ‘‘United States will . . . restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last 4 years that contravened our values and caused needless human suffering.’’ 86 FR 8267. The E.O. on Migration directs the Departments to determine whether to rescind various rules, such as the Presidential Proclamation Bar IFR, the TCT Bar rule, PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 18121 and other policies, which the Departments have been reviewing and reconsidering. See 86 FR 8269–70. In addition, the E.O. on Legal Immigration instructed the Secretary of State, Attorney General, and Secretary of Homeland Security to ‘‘identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers.’’ 86 FR 8277. The Departments have outlined several rulemaking efforts in the Spring and Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, consistent with the E.O. on Migration and the E.O. on Legal Immigration.63 The Departments plan to address the Presidential Proclamation Bar IFR, TCT Bar rule, Criminal Bars to Asylum rule, and other provisions of the Global Asylum rule in separate rulemakings. The Departments acknowledge the commenter’s concerns about the regulatory changes made in the Global Asylum rule, which are enjoined, related to placing noncitizens with positive credible fear determinations in asylum-and-withholding-only proceedings. As explained earlier in this IFR, the Departments are amending regulations to allow for USCIS to retain such noncitizens’ asylum applications for a nonadversarial Asylum Merits interview before an asylum officer, rather than initially refer them to an IJ for asylum-and-withholding-only proceedings, as provided in the presently enjoined regulation. See 8 CFR 208.30(f). Meanwhile, DHS maintains the discretion to place a covered noncitizen in, or to withdraw a covered noncitizen from, expedited removal proceedings and issue an 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 8 CFR 208.30(b), (f); Matter of J–A–B– & I–J–V–A–, 27 I&N Dec. at 171; Matter of E–R–M– & L–R– M–, 25 I&N Dec. 520, 523–24 (BIA 2011). On December 23, 2020, the Departments published the Security Bars rule, which was scheduled to become effective on January 22, 2021. The effective date of the Security Bars rule has been delayed several times, 63 See Executive Office of the President, OMB, OIRA, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/ public/do/eAgendaHistory (last visited Mar. 14, 2022) (select ‘‘Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions,’’ then select DHS or DOJ); Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, https:// www.reginfo.gov/public/do/eAgendaMain (last visited Mar. 14, 2022) (select DHS or DOJ). E:\FR\FM\29MRR2.SGM 29MRR2 18122 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 most recently until December 31, 2022.64 Thus, the Security Bars rule is not currently in effect. The Departments are reviewing and reconsidering the Security Bars rule and plan to publish a separate NPRM to solicit public comments on whether to modify or rescind the Security Bars rule.65 The commenters’ claims related to these rules, the rules related to employment authorization for noncitizens with pending asylum applications,66 and the HSA, APA, and FVRA fall outside of the scope of this rulemaking, and thus are not being addressed. Comments: A commenter expressed support for this Administration’s decision to vacate an Attorney General ruling issued under the prior Administration that prohibited IJs from managing their own dockets through administrative closure. The commenter suggested that the Administration should promulgate clear rules on administrative closure, which can improve inefficiencies and backlogs. Response: This comment is beyond the scope of this rule because the rule does not involve or impact administrative closure. DOJ plans, however, to initiate a rulemaking that provides general administrative closure authority to IJs and the BIA.67 64 The Security Bars rule’s effective date was first delayed by the rule, Security Bars and Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021), until March 22, 2021. The effective date of the Security Bars rule was again delayed until December 31, 2021, Security Bars and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021), and further delayed until December 31, 2022, Security Bars and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021). 65 See Executive Office of the President, OMB, OIRA, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https://www.reginfo.gov/ public/do/eAgendaViewRule?pubId=202104& RIN=1615-AC69 (last visited Mar. 14, 2022); Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/ eAgendaViewRule?pubId=202110&RIN=1615-AC69 (last visited Mar. 14, 2022). 66 On February 7, 2022, in AsylumWorks v. Mayorkas, No. 20–cv–3815, 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the United States District Court for the District of Columbia vacated two DHS employment authorization-related rules entitled ‘‘Asylum Application, Interview, and Employment Authorization for Applicants,’’ 85 FR 38532 (June 26, 2020) (‘‘2020 Asylum EAD Rule’’), and ‘‘Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications,’’ 85 FR 37502 (June 22, 2020). 67 Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, https://www.reginfo.gov/ public/do/eAgendaViewRule?pubId=202110& RIN=1125-AB18 (last visited Mar. 14, 2022). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 D. Proposed Changes 1. Applicability Comments: A commenter asserted that it would be unfair for asylum seekers who have been issued an NTA to be unable to have a nonadversarial interview before an asylum officer or a review before an IJ. The commenter stated that if the Administration has determined that the USCIS interview process is the most efficient and fair, then it should also be accessible to noncitizens ICE places in section 240 proceedings, such as pregnant women and families. A commenter asserted that the rule does not remedy the unequal treatment of affirmative and defensive cases, remarking that it instead goes halfway, by saying that some noncitizens in expedited removal—those referred for hearings before asylum officers—could seek a ‘‘partial review’’ with an IJ instead of the ‘‘full case review’’ that those in the affirmative asylum process would have if they were not granted asylum by USCIS. Additionally, a commenter remarked that it is unclear why the rule differentiates between ‘‘normal’’ cases and those of stowaways and asylum seekers physically present in or arriving in the Commonwealth of the Northern Mariana Islands. Response: The Departments disagree that it is unfair for noncitizens who are placed in section 240 removal proceedings to continue to have their claims heard before IJs rather than in nonadversarial interviews before USCIS in the first instance. It is well established that DHS officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders. See Arizona v. United States, 567 U.S. 387, 396 (2012) (‘‘A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.’’ (citation omitted)). USCIS, in particular, has the prosecutorial discretion, as appropriate, to place a covered noncitizen in, or to withdraw a covered noncitizen from, expedited removal proceedings and issue an 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, e.g., Matter of E–R–M–& L–R–M–, 25 I&N Dec. at 523–24. Such discretion is needed because there may be circumstances in which it may be more appropriate for a noncitizen’s protection claims to be heard and considered in the adversarial process before an IJ in the PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 first instance (for example, in cases where a noncitizen 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 addition, the Departments anticipate that DHS will also need to continue to place many noncitizens receiving a positive credible fear determination into ordinary section 240 removal proceedings while USCIS takes steps needed to allow for full implementation of the new process for all cases. This rule establishes an appropriate alternative to the exclusive use of ordinary section 240 removal proceedings. Nevertheless, noncitizens who are placed into streamlined section 240 removal proceedings will continue to have access to the same procedural protections that have been in place for asylum adjudications for many years. This rule authorizes the Departments to employ a fair and efficient procedure for individuals to seek protection, which includes opportunities for applicants to present their claims fully and fairly before asylum officers in a nonadversarial setting and, if not granted asylum, before IJs in streamlined section 240 removal proceedings. The comment related to the processing of claims of stowaways and noncitizens arriving from the Commonwealth of the Northern Mariana Islands falls outside of the scope of this rulemaking and, therefore, is not being addressed. As noted in the NPRM, this IFR would not apply to (1) stowaways or (2) noncitizens who are physically 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-andwithholding-only proceedings before an IJ under 8 CFR 208.2(c). 2. Parole a. General Comments on Parole Comments: Several commenters provided general comments on parole or the rule’s proposed change to the regulations governing the circumstances in which individuals in expedited removal proceedings may be paroled. Many of these commenters expressed opposition to DHS loosening the parole requirements or paroling noncitizens ‘‘simply because they lack resources to detain them.’’ Some of these commenters expressed doubt about the legality of paroling noncitizens simply because detention is unavailable or impractical. Response: The Departments acknowledge and take seriously the concerns expressed. The Departments E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 note, however, that the comments suggesting that the Departments had proposed for parole to be automatically granted upon a determination that detention is ‘‘unavailable or impracticable’’ are mistaken; as proposed, parole would be ‘‘in accordance with section 212(d)(5) of the Act and § 212.5 of this chapter,’’ 86 FR 46946 (8 CFR 235.3 (proposed)), which impose additional prerequisites to the exercise of parole authority. In this IFR, DHS is finalizing a change to the DHS regulations that will make even clearer that parole of noncitizens who are being processed under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), may be granted ‘‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Because the regulatory text that DHS is finalizing no longer specifies that parole may be considered when detention is ‘‘unavailable or impracticable,’’ the Departments decline to address in detail commenters’ arguments respecting that particular language. Nevertheless, the Departments have explained the longstanding regulatory and policy basis, consistent with the statutory authority, for taking detention resources into consideration when making parole determinations. See supra Section III.F of this preamble. b. Change in Circumstances Under Which Parole May Be Considered Comments: Many commenters either supported the proposed expansion of the circumstances under which parole may be considered or urged the adoption of what they characterize as a broader standard, consistent with section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). Some commenters urged DHS to adopt the long-standing parole standards applicable in other circumstances described in 8 CFR 212.5(b). Commenters stated that they welcomed a change that would allow families the possibility of parole—or that would allow for greater availability of parole in general—and help ensure the availability of detention space for those who pose the greatest threats to national security and public safety. One commenter stated that the proposed change would be an effective step toward a policy that, where possible, ensures noncitizens’ compliance with appointments and court dates and timely departure from the United States, if ordered removed, through supervision and case management rather than through detention. Numerous commenters stated that, while they welcomed the proposed rule’s expansion of the circumstances in VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 which parole may be considered, the proposed provisions were too narrow and should be amended to allow consideration of parole in a broader range of circumstances, consistent with the breadth of DHS’s statutory parole authority under section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). Commenters stated that adopting the standard of 8 CFR 212.5(b), which would allow parole consideration, among other things, when continued detention is not in the public interest, would give the agency more flexibility, achieve a uniform regulatory standard across the removal process, and promote family stability. A few commenters requested that DHS establish a presumption of parole, with DHS bearing a burden of demonstrating by clear and convincing evidence that there is a need for detention based on the public interest. Commenters also suggested that this standard should apply to all asylum seekers who establish a credible fear during the credible fear interview, regardless of their manner of entry, and regardless of whether they are referred for section 240 proceedings or for an Asylum Merits interview. One commenter urged that the regulations should support a presumption that detention is not in the public interest in cases of survivors fleeing gender-based violence, as well as for others who have established a credible fear. Some commenters also asked the Departments to clarify that asylum seekers should only be detained as a last resort. Similarly, one commenter stated that detention should only be used when it is demonstrated that an individual is a danger to the community or a flight risk that cannot be mitigated by other conditions. Another commenter stated that ‘‘detailing clear and consistent provisions for parole and detention’’ would be more efficient than case-bycase determinations. One commenter urged that the regulations at 8 CFR 235.3(b) should be amended to emphasize release from custody at the earliest possible stage of proceedings and asserted that parole eligibility should not be contingent on the outcome of credible fear screening. Other commenters opposed the proposed expansion of the circumstances under which parole may be considered. Some commenters opposed the NPRM on the ground that any policy that makes it more likely that noncitizens encountered at the border will be released from custody will, in the commenters’ view, encourage illegal immigration and harm the integrity of the immigration system. In explanation, one commenter discussed past policy changes related to parole and stated that PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 18123 the lesson to be learned is that as soon as a policy is enacted that makes it more likely that asylum seekers will be released from DHS custody, the number of asylum seekers who enter to exploit that policy ‘‘balloons.’’ Other commenters expressed concern that noncitizens who are aware they most likely will not be granted asylum will have a strong incentive to abscond. Citing the statistic that 38 percent of people who receive a positive credible fear determination and are released do not file an asylum application, a commenter expressed concern about a more permissive approach to parole, especially if individuals realize that their cases will no longer take years to resolve and thus their best chance for remaining in the United States would be to abscond. Response: The Departments acknowledge the range of views expressed, from support for the proposed regulatory amendment, to support for adopting instead the standard of 8 CFR 212.5(b), to support for more expansive use of parole for noncitizens subject to INA 235, 8 U.S.C. 1225, to opposition to any change that would expand the circumstances under which parole may be considered for such individuals. As explained above, having considered all comments received, the Departments agree with those commenters who suggested that the standard of 8 CFR 212.5(b)—the standard already applicable to, e.g., noncitizens who have received a positive credible fear determination and whose cases are pending—should replace the more constrained standard of 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), which allow for parole only for medical emergency or legitimate law enforcement objective. The Departments agree that the standard of 8 CFR 212.5(b), allowing for parole for urgent humanitarian reasons or significant public benefit, will give DHS more flexibility to delineate the circumstances in which parole may be considered, on a case-by-case basis and consistent with section 212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A), for this population. That said, the Departments emphasize that individuals who have not yet received a positive credible fear determination may not be similarly situated to individuals who have, as those pending a credible fear interview may shortly be subject to a final removal order. As a result, subsequent directives or guidance will clarify how officers and agents may determine whether ‘‘continued detention is not in the public interest,’’ 8 CFR 212.5(b)(5), for noncitizens who are being processed E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18124 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations under INA 235(b)(1), 8 U.S.C. 1225(b)(1), and who have not yet received a positive credible fear determination for purposes of deciding whether parole for urgent humanitarian reasons or significant public benefit would be warranted. Thus, while the IFR establishes a uniform regulatory standard in the DHS regulations for consideration of parole for individuals described in 8 CFR 235.3(b) (i.e., those in the expedited removal process) and 8 CFR 235.3(c) (i.e., ‘‘arriving aliens’’ placed in section 240 removal proceedings), application of that standard on a case-by-case basis will appropriately account for individualized considerations particular to noncitizens who have not already been determined to have a credible fear of persecution or torture, as explained above in Section III.F of this preamble. The Departments disagree with the commenters who urged that the regulations at issue should be amended to establish a presumption of parole, or to provide that detention will be used only as a last resort. These commenters did not explain how the standards they proposed would be permitted under section 212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A), and the Departments conclude that such options would be inconsistent with DHS’s discretionary parole authority. The Departments also disagree with the commenters who opposed loosening current regulatory restrictions on the exercise of parole authority on the ground that doing so would encourage illegal immigration and harm the integrity of the immigration system. These comments do not account for the fact that the amended standard for parole applies only to individuals being processed under the Departments’ expedited removal authority under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), and that the effect of the amendment will be to allow DHS to process more individuals through expedited removal rather than referring them to lengthier section 240 removal proceedings. As a result, individuals who express no fear of persecution or torture or who are determined not to have a credible fear can be ordered removed more promptly, which should discourage such individuals from seeking to enter the United States and thereby improve the integrity of the immigration system. The Departments acknowledge commenters’ contention that increases in the number of noncitizens at the border have been observed after various past policy changes. However, considering the many complex factors that may affect the rates of individuals seeking to enter VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the United States and make a claim for asylum, the Departments disagree that this perceived correlation amounts to evidence of causation or to a compelling reason to depart from a policy change that is otherwise justified. The Departments acknowledge the concern expressed by some commenters about the risk that paroled individuals may abscond but emphasize that the regulations will continue to provide that parole is available only to those noncitizens who present ‘‘neither a security risk nor a risk of absconding.’’ With regard to the commenter who suggested that noncitizens who do not file an asylum application after receiving a positive credible fear determination mean to abscond rather than pursue an asylum claim, the Departments note that failure to timely submit an asylum application after receiving a positive credible fear determination may be due to a lack of understanding or inability to obtain the language or other assistance needed to complete and file a Form I–589, Application for Asylum and for Withholding of Removal, or for other reasons not indicative of an intent to abscond. The Departments are unaware of, and commenters did not provide, any information showing that a noncitizen’s intention to abscond can reasonably be inferred from a failure to timely submit an asylum application. In addition, DHS officials, in their discretion, may impose reasonable conditions on the grant of parole (including, e.g., periodic reporting to ICE) to ensure that the individual will appear at all hearings and for removal from the United States when required to do so. See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5(c)–(d). Comments: Some commenters stated that the NPRM would establish a subjective, ambiguous standard for when parole may be allowed. Specifically, commenters stated that the proposed rule did not address what condition or set of conditions would be sufficient for DHS to consider detention ‘‘impracticable’’ and recommended that the rule utilize more definite language. Commenters also remarked that ‘‘unavailable’’ is not clearly defined and within DHS’s control to an extent that the proposed standard is ‘‘ripe for agency abuse.’’ Response: Although the Departments disagree that the standard proposed in the NPRM was ‘‘ripe for agency abuse,’’ the Departments acknowledge commenters’ uncertainty about the contours of the proposed standard. The Departments are not finalizing the proposed amendment that would have allowed parole consideration if PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 ‘‘detention is unavailable or impracticable’’ and, thus, need not further address that standard. Instead, DHS is finalizing an amendment that would allow for consideration of parole under the existing standards in 8 CFR 212.5(b), which, as explained in Section III.F above, includes parole on a caseby-case basis when continued detention is not in the public interest. The longstanding authority for DHS to take its detention capacity into account when making parole determinations is explained above, and future directives and guidance will build upon existing directives and guidance documents that are well understood by DHS officers and agents even as they are applied to the populations affected by this rule. Comments: At least one commenter offered the following specific suggestions: That 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) be amended to clarify that DHS should parole people if continued detention is not in the public interest; that 8 CFR 235.3(c) be amended to clarify that any asylum seeker who is placed in section 240 removal proceedings may be released on parole in the public interest, regardless of their manner of entry, by deleting the phrase ‘‘arriving alien(s)’’ and replacing it with ‘‘noncitizen(s)’’; and that regulatory language be revised to ensure that all asylum seekers who establish a credible fear of persecution or torture are eligible for parole under 8 CFR 212.5(b)(5), regardless of whether they are referred to ordinary section 240 removal proceedings or have their cases retained by USCIS for an Asylum Merits interview. Response: DHS is amending 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) to permit parole consideration in accordance with the longstanding regulation at 8 CFR 212.5(b), which includes parole in circumstances where continued detention is not in the public interest. The Departments emphasize that— consistent with INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), and 8 CFR 212.5(b)—parole will be granted ‘‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’’ The Departments decline the commenter’s other suggestions. First, the commenter’s suggestion to amend 8 CFR 235.3(c) in the manner suggested is outside the scope of this rule. This rule concerns only noncitizens processed under the expedited removal provisions of INA 235(b)(1), 8 U.S.C. 1225(b)(1), whereas 8 CFR 235.3(c) generally pertains to ‘‘arriving aliens’’ who are placed in section 240 proceedings. Second, 8 CFR 208.30(f) already provides that ‘‘[i]f an alien, other than E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations an alien stowaway, is found to have a credible fear of persecution or torture,’’ then ‘‘[p]arole . . . may be considered only in accordance with section 212(d)(5) of the Act and 8 CFR 212.5’’ to cover those who are placed directly into section 240 removal proceedings. DHS, moreover, is amending 8 CFR 212.5 to provide that the standard of 8 CFR 212.5(b) applies to noncitizens detained pursuant to 8 CFR 235.3(b), as well as 8 CFR 235.3(c). Finally, the Departments are adding language to 8 CFR 235.3(c) to allow for parole under the standard of 8 CFR 212.5(b) for noncitizens whose asylum cases are retained by or referred to USCIS for an Asylum Merits interview under this rule after a positive credible fear determination. Thus, regardless of whether the noncitizen’s asylum case is retained by USCIS for adjudication on the merits or referred to immigration court, noncitizens who receive a positive credible fear determination are generally eligible for parole consideration under the standard of 8 CFR 212.5(b). Comments: Some commenters stated that the proposed rule did not clearly indicate whether parole would be available (and if so, under what standard) for individuals who receive a positive credible fear determination and are placed into the new Asylum Merits process. These commenters suggested specific revisions to the text of current 8 CFR 235.3(c). A few other commenters also expressed doubt that individuals who receive a positive credible fear determination and are placed into the new Asylum Merits process would have access to parole. Response: In the IFR, DHS is clarifying that parole will be available for individuals who receive a positive credible fear determination and are placed into the new Asylum Merits process under the standard of 8 CFR 212.5(b)—that is, under the same standard as for individuals who receive a positive credible fear hearing and are referred to immigration court. See 8 CFR 208.30(f), 8 CFR 235.3(c). Comments: Some commenters asserted that the proposed rule’s expansion of parole would be unlawful and unauthorized by Congress. One commenter stated that the proposed rule is ultra vires, contending that INA 235(b)(1), 8 U.S.C. 1225(b)(1), provides for the detention of noncitizens in expedited removal proceedings throughout the entire process, from apprehension to a determination on any subsequent asylum claim. This commenter also discussed the statutory history of the parole provision and claimed that it shows a congressional VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 intent that parole be used in a restrictive manner. Other commenters urged that authorizing DHS to parole asylum seekers into the United States whenever DHS determines that detention is ‘‘unavailable or impracticable’’ would directly conflict with the INA and congressional intent to delegate only limited parole authority to DHS. One of these commenters stated that the rationale behind the proposed rule is ‘‘pretextual at best’’ and remarked that it simply provides a convenient, albeit ultra vires, reason to release asylum seekers from custody. Another commenter stated that, because current rates of migrant encounters mean that DHS will never have enough space to detain every person, detention would always be unavailable or impracticable, and more and more noncitizens would be released. Several commenters further stated that detention capacity is within DHS’s control and that it can make space unavailable to effectively make the detention of any noncitizen unavailable or impractical, which would violate the INA. Response: The Departments disagree that the expansion of the circumstances in which parole may be considered for a noncitizen in expedited removal proceedings proposed in the NPRM would be unlawful or ultra vires and also disagree with the unsupported assertion that the Departments’ rationale is in any way ‘‘pretextual.’’ As explained above, Congress has given DHS discretion to ‘‘parole’’ a noncitizen who is an applicant for admission ‘‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). The Departments have always understood this parole authority to apply to individuals detained pursuant to the detention provisions of INA 235, 8 U.S.C. 1225, and the Supreme Court has endorsed this interpretation in Jennings v. Rodriguez, 138 S. Ct. 830, 837, 844 (2018). This rule amends DHS regulations to replace the exceptionally narrow standard governing the circumstances in which parole may be allowed for noncitizens being processed under expedited removal, and who have not yet received a credible fear determination, see 8 CFR 235.3(b)(2)(iii), (b)(4)(ii), with the broader regulatory standard that already governs the circumstances in which parole may be allowed after a noncitizen has received a positive credible fear determination, see 8 CFR 208.30(f)(2), 212.5(b). This broader regulatory standard is fully consistent with DHS’s statutory parole authority. While the PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 18125 agency previously drew a distinction between the parole standard for those pending a credible fear determination (or whose inadmissibility is still being considered or subject to an expedited removal order) and those found to have a credible fear—perhaps as a matter of policy—there is no legal requirement for this distinction. The parole statute does not distinguish between the various procedural postures of noncitizens covered by INA 235(b), 8 U.S.C. 1225(b), or specifically reference any of the detention provisions at INA 235(b), 8 U.S.C. 1225(b). See INA 212(d)(5), 8 U.S.C. 1182(d)(5). There is, therefore, no reason on the face of the statute to read the detention provision at INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV), any differently from the identically worded detention provisions in INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), and INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A), which the Supreme Court has endorsed as subject to the Secretary’s full statutory release-on-parole authority. See Jennings, 138 S. Ct. at 844; see also Clark v. Martinez, 543 U.S. 371, 378 (2005) (‘‘To give these same words a different meaning for each category [of person it applied to] would be to invent a statute rather than interpret one.’’). This amendment would also allow DHS, in making parole determinations for individual noncitizens on a case-bycase basis, to utilize its limited detention bed space for noncitizens found to be a flight risk or danger to the community, as well as permit the DHS officers to devote more time to their handling of assigned detained cases— allowing for more efficient processing of issues, including responding to inquiries, requests for release, and securing travel documents for noncitizens subject to orders of removal. DHS would also be able to reallocate detention resources to other areas, such as alternatives to detention, which are not as cost prohibitive. The Departments reject the contention that DHS’s control over its detention capacity is so complete that it is capable of increasing the use of parole by artificially reducing available bedspace. The Department’s capacity to detain an individual on any given day is determined by many different factors, including the availability of appropriated funds, the number and demographic characteristics of individuals in custody as well as those encountered at or near the border or within the interior of the United States, and the types of facilities with available bedspace. Capacity restrictions at individual facilities imposed for a variety of reasons ranging from public E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18126 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations health requirements to court-ordered limitations also constrain the availability of detention space. Because the regulatory text that DHS is finalizing no longer specifies that parole may be considered when detention is ‘‘unavailable or impracticable,’’ the Departments decline to address in detail commenters’ arguments respecting that particular language. Comments: A few commenters that encouraged DHS to amend the regulations to provide for parole when continued detention is not in the public interest stated that this term should be interpreted to encompass, among other things, the impact of continued detention on an individual’s or their family’s physical or mental health, safety, well-being, family unity, and other considerations. Response: As explained above, DHS intends to use further directives or guidance to promote fair and consistent determinations as to when ‘‘continued detention is not in the public interest’’ for noncitizens in expedited removal who have not yet received a credible fear determination. The Departments recognize that the term ‘‘public interest’’ is open to interpretation but note that the noncitizen’s personal interests, while potentially relevant, are not determinative of whether continued detention is not in the public interest. Comments: A few commenters stated that, although any change that increases DHS’s ability to grant parole seems positive on its face, the proposed rule still leaves the decision of whether to parole an individual up to the discretion of a DHS officer. Commenters expressed concern about this discretion based on their experience with parole decisions they described as arbitrary or biased. Commenters recommended that the rule create accountability mechanisms and clear decision-making procedures to ensure parole requests are decided consistently, without bias or undue political influence, or in pro forma fashion without regard to the substance of the requests. For example, one commenter suggested there be a mandate that ICE provide a timely response in a language the applicant can understand that includes individualized analysis of the reasons why parole was denied. Another commenter recommended that DHS amend its regulations to include a specific time frame within which ICE officers must review parole requests and issue parole decisions, a mandate that parole interviews must take place before the issuance of a denial of a parole request, a requirement of detailed recordkeeping to help provide transparency and VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 oversight of parole decisions, and an independent department charged with routinely reviewing each ICE field office’s parole grant and denial rates. A commenter asked that the rule specify to whom at the agency asylum seekers should submit their parole requests, which officers make these decisions, and what documentation should be included or can be provided as satisfactory alternatives. Response: The NPRM proposed to amend, and this IFR will amend, the DHS regulations specifying the circumstances in which parole may be considered for noncitizens in expedited removal proceedings. Additionally, consistent with the INA, DHS’s exercise of discretion will be conducted on a case-by-case basis, given the unique factual circumstances of each case and to ensure the requirements for parole have been thoroughly considered and addressed. Comments that suggest new regulatory provisions to establish accountability mechanisms and decision-making procedures are therefore beyond the scope of the current rulemaking. Comments: One commenter urged that the rule should not include detention availability as a factor for parole, since the determination of whether to deprive an individual of their liberty ‘‘should never be contingent on or determined by the budget or physical infrastructure of a Federal agency.’’ Another commenter expressed concern that the proposed rule’s allowance for parole consideration when detention is unavailable or impracticable would lead to increased calls for detention beds, an outcome the commenter opposed. A commenter asserted that, under the expanded grounds for parole, detention should only be considered ‘‘practical’’ if asylum seekers are provided with the ability to access medical care, legal counsel, and language assistance. Response: Because the regulatory text that DHS is finalizing no longer specifies that parole may be considered when detention is ‘‘unavailable or impracticable,’’ the Departments decline to address in detail commenters’ arguments respecting that particular language. With regard to the comment premised on the idea that detention ‘‘should never be contingent on or determined by the budget or physical infrastructure of a Federal agency,’’ the Departments disagree. By statute, a noncitizen who is being processed under the expedited removal provisions of section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), is subject to detention unless DHS exercises its discretion to ‘‘parole’’ the noncitizen ‘‘only on a case-by-case PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 basis for urgent humanitarian reasons or significant public benefit.’’ INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). DHS’s resources may appropriately be considered in determining whether to exercise parole authority pursuant to section 212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A). Indeed, the availability of DHS detention resources is integral from an operational standpoint. For example, there may be a limited number of available detention beds in a particular facility or an insufficient number of DHS officers available to handle the volume of detainees, thereby hampering DHS’s ability to promptly and efficiently process cases. DHS can focus its detention resources on those noncitizens found to be a flight risk or danger to the community, particularly when there are a limited number of detention beds. Comment: A few commenters stated that the proposed rule’s expansion of the circumstances in which parole may be allowed is a welcome development but requested clarification regarding how the changed parole standard will be integrated into the proposed adjudicative process. Specifically, a commenter inquired whether a paroled person would be subject to the new procedure established by the rule and, if so, when and where the credible fear interview and Asylum Merits interview would take place. The commenter also asked whether a paroled person would be forced to remain near where they were detained and what the process would be for changing the venue of the asylum interview. Response: The procedure established by the rule is available to parolees. If the person or family unit is paroled prior to their credible fear interview, the Departments anticipate that their credible fear interview and Asylum Merits interview, if applicable, will take place at a USCIS Asylum Office near their destination within the United States and that such persons would not be required to remain in the vicinity of where they were detained. DHS anticipates that the credible fear interview will normally take place within 30 days of referral of the noncitizen to USCIS. DHS officials, in their discretion, may impose reasonable conditions on the grant of parole (including, e.g., periodic reporting to ICE) to ensure that the individual will appear at all hearings and for removal from the United States when required to do so. See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5(c)–(d). E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 c. Availability of Employment Authorization for Those in Expedited Removal Who Have Been Paroled From Custody Comments: Several commenters urged that the proposed regulations should be amended to provide for parole-based employment authorization eligibility for all people whom DHS paroles from detention, to respect the dignity of asylum seekers and ensure that they can support themselves and their families. Several commenters asserted that ensuring parole-based eligibility for an employment authorization document (‘‘EAD’’) for asylum seekers released from detention would help them secure housing, food, health care, and other necessities. Commenters discussed how authorizing asylum seekers to work at the earliest practicable stage would offer a variety of benefits to both asylum seekers and host communities, including helping to reduce their social and economic exclusion; reduce the risk that they experience extreme poverty, food insecurity, or homelessness; and alleviate the loss of skills, low selfesteem, and mental health problems that often accompany prolonged periods of idleness. One commenter also stated that barriers to employment authorization often impede asylum seekers’ access to counsel or other services, such as food assistance, and remarked that asylum seekers’ inability to work may have long-term negative impacts on their economic prospects and mental health. A commenter asserted that forcing parolees to wait for months or years for an adjudication of their claim without any means to find legal employment lends itself to abusive and harmful employment arrangements that are marked by unscrupulous employers taking advantage of asylum seekers’ desperation. A commenter stated that the denial of EADs to parolees would have a particularly negative impact on LGBT migrants, as they often travel alone with no support system. A commenter noted that the EAD is often the only government-issued identification an asylum seeker may have in their possession, and individuals forced to wait to apply for employment authorization would thus likely be without a valid identification, leading to challenges when securing housing, opening bank and utility accounts, or encountering law enforcement. The commenter concluded that limiting employment authorization for individuals released under 8 CFR 235.3(b)(4)(ii) would endanger the lives of asylum seekers and their families. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 On the other hand, another commenter noted that it supports the decision to restrict EAD eligibility ‘‘solely on the basis of receiving parole’’ and recommended that this decision be maintained. The commenter asserted that DHS does not have the authority to grant EADs to asylum seekers for whom the INA does not provide such eligibility or for whom the INA expressly grants the Secretary discretionary authority. The commenter argued that it would be unreasonable to conclude that Congress authorized DHS to use parole to permit an indefinite number of asylum seekers to enter the United States, in its discretion, and to allow them to engage in employment. The commenter also said providing EAD eligibility ‘‘solely on the basis of being paroled’’ would serve as a powerful pull factor for illegal immigration. Several commenters addressed the waiting period for EAD eligibility for asylum seekers. Some commenters argued that the one-year waiting period for EAD eligibility based on a pending asylum application, pursuant to the current DHS regulations at 8 CFR 208.7, is excessive and inhumane. One commenter stated that individuals forced to wait a year to apply for employment authorization would likely be unable to secure necessities such as food, shelter, and medical care. However, another commenter maintained that, per section 208(d)(2) of the Act, 8 U.S.C. 1158(d)(2), the Secretary cannot grant employment authorization to an asylum applicant until at least 180 days after the filing of the application for asylum. The commenter encouraged DHS to abide by the INA’s 180-day restriction, arguing that failing to do so would encourage illegal immigration and fraud in the asylum system. A commenter suggested that DHS require by regulation that parole-based EADs be adjudicated within 30 days of receipt, claiming that delays in USCIS adjudication force individuals to wait for months for parole-based employment authorization. A commenter, in asserting that the proposed rule’s parole provision is an ultra vires application, stated that the proposed rule does not actually limit employment authorization. The commenter stated that, even though the proposed rule provides that parole would not serve as an independent basis for employment authorization, nothing in 8 CFR 274a.12(c)(8) prohibits applications filed after the asylum seeker files a completed asylum application. Response: The Departments acknowledge the multiple comments PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 18127 both in support of and in opposition to the NPRM’s provision restricting EADeligibility based on parole for this subset of parolees. The Departments have considered comments highlighting potential benefits that would accrue to asylum applicants and their support networks if they were to receive employment authorization earlier as well as the potential drawbacks of providing earlier employment authorization and balanced those benefits and drawbacks in light of the broader interests served in the rulemaking. On balance, the Departments believe that this rulemaking’s overall framework promoting efficiency in the adjudication of protection-related claims and the overall statutory scheme with respect to obtaining employment authorization based on pending asylum applications is best served by finalizing the DHS regulatory language in the NPRM for several reasons. First, the Departments note that the overall goal of the rulemaking is to ensure that noncitizens receive final decisions on their claims for protection as quickly and efficiently as possible, consistent with fundamental fairness, and ensuring that noncitizens appear for any interviews and hearings is key to this process. Providing parole-based employment authorization to noncitizens who are in expedited removal or in expedited removal with a pending credible fear determination (that is, employment authorization with no prerequisite waiting period) risks incentivizing more individuals to enter the United States and seek out this process in the hopes of obtaining parole under this framework while disincentivizing appearance. Moreover, individuals for whom employment authorization is the most salient benefit of securing asylum, if eligible, would have less of an incentive to appear for subsequent interviews and hearings. See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). Second, the Departments believe that their approach is consistent with the provisions in section 208(d)(2) of the Act, 8 U.S.C. 1158(d)(2), regarding a waiting period for employment authorization for asylum applicants, which states that ‘‘[a]n applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.’’ INA 208(d)(2), 8 U.S.C. 1158(d)(2). The Departments recognize that the ‘‘otherwise eligible’’ language in section 208(d)(2) of the Act, 8 U.S.C. 1158(d)(2), could be read to encompass employment authorization based on E:\FR\FM\29MRR2.SGM 29MRR2 18128 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 parole. However, noncitizens paroled with a pending credible fear determination are all seeking asylum (or related protection) and are being paroled on a case-by-case basis for urgent humanitarian reasons or significant public benefit while they await a screening interview on their protection claims. The Departments note that potential benefits associated with more expeditious employment authorization are expected under the new process in that the waiting period will begin running sooner here as an application will be considered filed at the time of a positive credible fear determination. Additionally, eligible noncitizens will likely receive a final determination granting relief or protection, and employment authorization incident to status, prior to being eligible for an employment authorization under 8 CFR 274a.12(c)(8) based on a pending asylum application. With respect to waiting periods for asylum-based EADs generally, the Departments note that on February 7, 2022, in AsylumWorks v. Mayorkas, No. 20–cv–3815, 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the United States District Court for the District of Columbia vacated two DHS employment authorization-related rules entitled ‘‘Asylum Application, Interview, and Employment Authorization for Applicants,’’ 85 FR 38532 (June 26, 2020), and ‘‘Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications,’’ 85 FR 37502 (June 22, 2020). Finally, the Departments disagree with the commenter that states that the Secretary of Homeland Security lacks the discretionary authority to grant employment authorization to those paroled. The Departments note that the Secretary of Homeland Security, as a matter of policy for the reasons outlined above, is exercising his discretionary authority narrowly as to noncitizens who are in expedited removal or in expedited removal with a pending credible fear determination and who are paroled from custody. d. Other Comments on Proposed Approach to Parole Comments: A few commenters urged that detained asylum seekers should have access to bond determination hearings, as well as regular opportunities to challenge continued detention. Another commenter stated that regulations should ensure meaningful access to counsel for those in immigration detention, readily accessible confidential attorney-client meeting spaces, confidential free VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 telephone and televideo communication options, as well as minimum restrictions on visitation. Response: These comments are beyond the scope of the current rulemaking, given that the rule neither addresses bond determinations nor conditions for those held in immigration detention. Comments: One commenter stated that the proposed rule would essentially deny all individuals the right to have their custody reviewed by a neutral arbiter and urged that the regulations should require a neutral decisionmaker. The commenter suggested that IJs should be given the power to review and revise parole decisions made under the proposed regulations. Response: These comments are beyond the scope of the current rulemaking, which amends only the regulatory provisions specifying the circumstances in which parole may be considered for noncitizens subject to expedited removal. Comments: A commenter stated that the unprecedented surge in family unit migration, which the commenter attributed to the Flores Settlement Agreement, is endangering children at the border and that such migration will continue to soar unless the dynamics causing this trend are changed. The commenter asserted that the Departments should ‘‘address’’ the Flores Settlement Agreement before taking any steps to expand the availability of parole for asylum seekers and suggested that the agencies promulgate regulations that would enable DHS to detain adults and children entering illegally in family units, to comply with the detention provisions in the INA. Response: The Flores Settlement Agreement requires the promulgation of the relevant and substantive terms of the FSA as regulations, FSA ¶ 9, and based on a 2001 Stipulation, the Agreement terminates ‘‘45 days following defendants’ publication of final regulations implementing [the] Agreement,’’ Stipulation Extending Settlement Agreement ¶ 40, Flores v. Reno, No. 85–cv–4544 (C.D. Cal. Dec. 7, 2001). In August 2019, DHS and the Department of Health and Human Services published a Flores final rule, Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 FR 44392 (Aug. 23, 2019); however, that rule was partially enjoined, see Flores v. Rosen, 984 F.3d 720 (9th Cir. 2020). While the FSA does impose restrictions on DHS’s ability to detain family units, addressing the FSA by promulgating regulations to implement such PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 Agreement is outside the scope of this rule. Comments: Several commenters supported expanding the circumstances in which parole may be granted to allow release of families from detention but opposed any expansion of the expedited removal system upon which the proposed asylum process is premised. A couple of commenters asserted that the expedited removal process is harmful and emphasized that DHS is not required to use expedited removal. These commenters recommended that the proposed rule be amended to avoid the use of expedited removal. Commenters argued that the expedited removal process does not provide due process, fails to comply with domestic refugee law and international commitments, and has led to mistreatment and the return of refugees to persecution. Commenters also argued that the proposed changes to 8 CFR 235.3 to expand the possibility of parole would eliminate the barrier to placing families into expedited removal and would risk further cementing expedited removal as a primary tool to remove noncitizens, creating possibilities for use of the expedited removal structure to be expanded by future administrations. Response: The Departments disagree that the expedited removal process does not comport with due process or U.S. refugee law. See, e.g., DHS v. Thuraissigiam, 140 S. Ct. 1959, 1963–64 (2020) (addressing the Due Process Clause of the Fifth Amendment). Comments expressing opposition to the Departments’ use of expedited removal generally are also beyond the scope of this rulemaking, which amends certain procedures and standards applicable to noncitizens once they have already been placed into expedited removal. Comments: Several commenters stated that detention is a harmful and punitive practice that should be reduced or eliminated completely and expressed disappointment that the proposed rule did not include systematic efforts to limit or eliminate the detention of asylum seekers. A couple of commenters added that detention is not necessary to achieve the goal of ensuring that people seeking asylum appear for their appointments. A few commenters remarked that detention makes it nearly impossible for asylum seekers to assert their protection claims effectively, as their ability to access legal resources and legal representation is often non-existent. One commenter stated that only 30 percent of detained immigrants receive legal representation and argued that the remote location of detention facilities, the inadequate E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations access to counsel and interpreters, and the frequent transfer of detainees present nearly insurmountable barriers to detainees seeking to obtain legal assistance. A few commenters asserted that detention of asylum seekers flouts U.S. legal obligations under the Refugee Convention and Protocol or that presumptive detention of asylum seekers violates international refugee and human rights law. Some commenters suggested that DHS invest its resources in housing, medical treatment, and travel expenses for asylum seekers, rather than expediting asylum interviews and moving people through detention faster. They stated that this would help ensure that those entering the United States are welcomed by a supportive community. Response: Although the Departments acknowledge the commenters’ concerns about access to legal services, the Departments disagree with the commenters who urged that the regulations at issue should be amended to systematically limit or eliminate the detention of anyone indicating an intention to seek asylum. The Departments believe that the standards proposed by these commenters would not be consistent with the detention provisions of section 235(b)(1)(B)(ii) of the Act, 8 U.S.C. 1225(b)(1)(B)(ii), or DHS’s parole authority under section 212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A). Proposals to change those detention provisions are properly directed to Congress, not to the Departments. The Departments also do not believe that commenters’ requests are feasible. Commenters did not explain what budget authority DHS would have to invest resources in nondetention housing, medical treatment, and travel expenses for noncitizens arriving at the border and indicating an intention to apply for asylum in the United States. lotter on DSK11XQN23PROD with RULES2 3. Credible Fear Screening Process a. General Comments on Credible Fear Screening Process Comments: Some commenters indicated that the changes to the credible fear screening process in the NPRM are valuable and necessary and expressed general support for the changes. Other commenters expressed opposition to the procedural changes based on the belief that individuals in the expedited removal process are coached to lie and express fear. Several commenters described the credible fear process as a ‘‘loophole’’ to be exploited by dangerous people to get into the United States. Other commenters stated that the majority of asylum seekers are VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 not properly vetted, while another stated that individuals claim credible fear without any proof. Similarly, several commenters stated that documented proof should be submitted, and that testimony alone or a simple statement of credible fear is unacceptable. Another commenter stated that credible fear should be established immediately after the individual is detained to avoid having U.S. persons suffer at the hands of criminals. Similarly, another commenter suggested that individuals who are national security threats or have ‘‘egregious criminal histories’’ should not be permitted to make credible fear claims. Some commenters stated that asylum officers should not be conducting credible fear interviews, asserting that the existing process lacks transparency and oversight, and another commenter recommended that IJs handle credible fear claims. Several commenters expressed concern with conditions and due process in expedited removal and credible fear interviews in general, arguing that those factors would affect the case outcome in various stages of the asylum process. Response: The Departments acknowledge the commenters’ support for the changes to the credible fear screening process in this rule and acknowledge the other commenters’ concerns about the credible fear screening process. The Departments disagree that the credible fear screening process is a loophole to be exploited by dangerous individuals and that the rule will only encourage more individuals to come to the border and request asylum. Expedited removal and the credible fear screening process were established by Congress. The credible fear process ensures that the U.S. Government adheres to its international obligations, as implemented through U.S. law, to refrain from removing a noncitizen to a country where the noncitizen would be persecuted or tortured. See Section II.B and II.C of this preamble. To the extent that commenters assert that noncitizens seeking protection generally are liars or criminals seeking to exploit a ‘‘loophole,’’ the Departments reject that characterization as unfounded. This rulemaking is one part of a multifaceted whole-of-government approach to addressing irregular migration and ensuring that the U.S. asylum system is fair, orderly, and humane, and this rulemaking is consistent with the E.O. on Migration, which states that ‘‘[s]ecuring our borders does not require us to ignore the humanity of those who seek to cross them. The opposite is PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 18129 true.’’ 86 FR 8267. This whole-ofgovernment approach seeks to make better use of existing enforcement resources by investing in border security measures that are proven to work and that will facilitate greater effectiveness in combatting human smuggling and trafficking and the entry of undocumented individuals. This rule seeks to ensure that the Departments process the protection claims of individuals in the credible fear screening process promptly and efficiently, meaning that it allows individuals who are not eligible for protection to be removed more promptly. The Departments recognize that the credible fear screening and review process involves eliciting testimony from individuals seeking protection and does not require noncitizens to provide written statements or documentation. Both asylum officers and IJs receive training and have experience with assessing evidence and the credibility of noncitizens who appear before them for interviews or hearings. Asylum officers and IJs have experience identifying and raising concerns surrounding inconsistencies and lack of detail, and thus are equipped to make wellreasoned decisions regarding credibility, even in the absence of written statements or other documentation. Moreover, requiring written statements or other documentation would likely limit the ability of certain asylum seekers to obtain protection, given that some may have fled their home countries without the ability to secure documentation, and obtaining documentation once they are in the United States may not be feasible. Indeed, the INA explicitly provides that ‘‘testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.’’ INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). Moreover, the Departments respectfully disagree with commenters’ assertions that credible fear interviews are plagued with due process concerns. While some issues may arise due to the nature of credible fear interviews— which may be the first time or one of the first times an individual has provided testimony related to sensitive topics and which often occur remotely with an interpreter and with the individual in a detained setting—USCIS asylum officers are trained to conduct those interviews in a fair and sensitive manner, and E:\FR\FM\29MRR2.SGM 29MRR2 18130 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 every credible fear determination is reviewed by a supervisory asylum officer and subject to additional IJ review if the applicant so chooses or, under this IFR, fails or refuses to decline such review. The Departments do not agree that potential issues with the credible fear determination, to the extent that any may exist, would necessarily affect case outcomes in the new process. Applicants will have ample opportunity to correct any biographic or informational errors in the Form I–870. Asylum officers will not be limited to considering only the testimony provided during the credible fear interview but will conduct a full nonadversarial interview to determine asylum eligibility for the principal applicant. Moreover, if the applicant fails to establish asylum eligibility before the asylum officer at the Asylum Merits interview under the IFR, they will have the opportunity to present their claims for asylum and withholding or deferral of removal before an IJ when they are placed in streamlined section 240 proceedings and the IJ will review their claims. b. ‘‘Significant Possibility’’ Standard for Protection Claims Comments: Several commenters expressed general support for restoring the ‘‘significant possibility’’ standard. One commenter stated that clarifications at proposed 8 CFR 208.30(e)(2) provide important protections to individuals in expedited removal and comport with section 235(b)(1)(B) of the Act, 8 U.S.C. 1225(b)(1)(B). Other commenters expressed general disapproval with the use of the ‘‘significant possibility’’ standard, either advocating for a higher standard or stating that the use of a less stringent standard may encourage frivolous claims or claims from individuals solely seeking employment authorization. Response: The Departments acknowledge the support of commenters. The rule adopts the ‘‘significant possibility’’ standard for credible fear screenings for purposes of asylum, withholding of removal, and CAT protection. As explained above in Section III.A of this preamble, while the statutory text only defines ‘‘credible fear’’ for purposes of screening asylum claims, see INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v); see also 86 FR 46914, the Departments believe that the efficiency gained in screening the same set of facts using the same standard of law for all three forms of protection is substantial and should not be overlooked. Moreover, the credible fear screening process is preliminary in nature; its objective is to sort out, VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 without undue decision costs, which cases merit further consideration and to act as a fail-safe to minimize the risk of refoulement. Using one standard of law is consistent with those objectives, even though the ultimate adjudication of a noncitizen’s claim for each form of protection may require a distinct analysis. Comments: One commenter requested that the Departments elaborate upon the ‘‘significant possibility’’ test to make clear that the showing that must be made is not a ‘‘significant possibility’’ of persecution, but a ‘‘significant possibility’’ that the ‘‘claimant could make out a well-founded fear of such persecution where there exists as little as a one in ten chance of such serious harm occurring.’’ The commenter argued that the ‘‘preponderance of the evidence’’ threshold is not applicable during this process. The commenter also stressed that nothing in the proposed rule requires the asylum officer to investigate all the possible avenues by which an applicant for protection may be able to access asylum. Similarly, some commenters said that more training and oversight is needed to ensure that asylum officers correctly apply the low bar standard and do not misinterpret it. Alternatively, a commenter suggested that the standard ‘‘manifestly unfounded’’ be applied during the credible fear screening. That is, the commenter believes that unless an individual’s claim is assessed to be manifestly unfounded, or unrelated to the criteria for granting asylum, they should have access to full proceedings. The commenter believes this would guard against the risk that an individual would be returned to a country where they face persecution. The commenter further stated that the ‘‘significant possibility’’ standard is a step in the right direction but still does not match international standards. Another commenter expressed the concern that the ‘‘significant possibility’’ standard proposed in the rule is largely impossible to meet in practice because ‘‘it virtually forces the non-citizen to produce at once all of the evidence necessary to gain success at trial.’’ Response: The Departments appreciate comments regarding further elaboration on the ‘‘significant possibility’’ standard, alternative standards, and the ‘‘significant possibility’’ standard’s use in credible fear interviews. The ‘‘significant possibility’’ standard is a statutory standard found at INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), and suggested use of the ‘‘manifestly unfounded’’ or other international standards PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 concerning refugee claims in screening for credible fear would require legislative change. As commenters have recognized, appropriate application of the ‘‘significant possibility’’ standard is nuanced and fact-intensive. The Departments therefore believe that further elaboration on the appropriate application of the standard is best accomplished through case law, training, and oversight, rather than through abstract discussion or further codification. Such training is an integral part of ensuring the appropriate application of this standard, but the Departments do not believe it is appropriate to codify such training or oversight in the regulatory text. Comments: Some commenters stated that the return to the ‘‘significant possibility’’ standard is appropriate but observed that the proposed rule does not specify a choice of law rule, which is important for respecting the rights of asylum seekers, and commenters suggest that this language be added at 8 CFR 208.30. One commenter asked that DHS apply the law most favorable to the individual seeking protection when determining whether he or she meets the credible fear standard. Response: The Departments agree that USCIS should apply the law most favorable to the individual seeking protection at the credible fear screening stage. DHS remains subject to the injunction in Grace v. Whitaker, 344 F. Supp. 3d 96, 135–40, 146 (D.D.C. 2018), which found that a DHS policy memo applying only the law of the circuit where the credible fear interview occurs rather than the circuit law most favorable to the applicant’s claim was unlawful. Therefore, USCIS continues to apply the choice of law most favorable to the applicant when screening for credible fear. Comment: A few commenters generally opposed the rule on the ground that changing the standard for credible fear screening will delay removal of noncitizens with meritless claims for protection. Response: The Departments disagree that the rule’s changes to the credible fear screening process will, in the aggregate, contribute to delays in removal. Divergent standards for asylum and withholding of removal along with variable standards for individuals barred from certain types of relief were promulgated in multiple rulemaking efforts over the last few years.68 However, in working to create efficiencies within this process, adopting the standard of law that was 68 See supra note 4 (discussing recent regulations and their current status). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations set by Congress for credible fear claims is the logical choice. The varied legal standards created by asynchronous rulemaking, and often enjoined or vacated by legal challenges, defeated their intended purpose by complicating and extending the initial screening process provided for in section 235 of the Act, 8 U.S.C. 1225. Use of different legal standards for asylum, statutory withholding of removal, and CAT protection required additional time for adjudicators to evaluate whether a mandatory bar to asylum or to statutory withholding of removal was present. Additionally, adjudicators were required to evaluate the same evidence twice for the same factual scenario. Notably, use of the different standards would require asylum officers to apply the mandatory bars to asylum in order to consider screening for statutory withholding of removal. In turn, this would inevitably increase credible fear interview and decision times, requiring analysis of the bars and then applying the higher evidentiary standard. For example, when the TCT Bar IFR was in effect, asylum officers were required to spend additional time during any interview where the bar potentially applied developing the record related to whether the bar applied and, if so, whether an exception to the bar might have applied. Then, if the noncitizen appeared to be barred and did not qualify for an exception to the bar, asylum officers had to develop the record sufficiently such that a determination could be made according to the higher reasonable possibility standard. IJs reviewing negative credible fear determinations where a mandatory bar was applied would similarly be required to review the credible fear determination under two different standards, undermining the efficiency of that process as well. In the Departments’ view, the delays associated with complicating and extending each and every credible fear interview to use two different standards outweigh any efficiency that could be gained by potential earlier detection of individuals who may be barred from or ineligible for certain types of protection. Commenters have not provided any data or information suggesting that the asylum caseload would be meaningfully reduced by evaluating the existence of bars to eligibility during the credible fear screening or by applying a ‘‘reasonable possibility’’ standard (rather than the ‘‘significant possibility’’ standard) in screening claims for statutory withholding of removal or CAT protection. In clarifying that the ‘‘significant possibility’’ standard VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 applies not only to credible fear screening for asylum, but also to credible fear screening for statutory withholding and CAT protection, the Departments will continue to ensure that the expedited removal process remains expedited and will allow for asylum officers and, upon credible fear review, IJs, to adhere to a single standard of law in fulfilling the United States’ nonrefoulement obligations. c. Due Process in Credible Fear Screening Comments: Multiple commenters recommended that the Departments retain the language at 8 CFR 208.30(g)(2)(i) acknowledging USCIS’s ability to reconsider a negative credible fear finding after it has been upheld by an IJ. Commenters expressed their belief that an additional option for review, even after a Supervisory Asylum Officer (‘‘SAO’’) has reviewed the asylum officer’s credible fear determination and an IJ has concurred with the determination, is still necessary to preserve the rights of noncitizens. Commenters described a range of issues that they allege render the credible fear process systematically ‘‘unreliable,’’ making the need for additional safeguards against refoulement—including USCIS reconsideration—more acute. Describing the negative effects of trauma and procedural limitations on credible fear outcomes, commenters suggested that the ability to file a request for reconsideration with USCIS has saved ‘‘countless’’ asylum seekers from refoulement. One commenter noted that reconsideration provides ‘‘an important safety net’’ and can address instances in which the credible fear process may not have provided a fair process, including where appropriate interpretation for indigenous language speakers and adequate accommodations for disabilities were not provided. Another commenter suggested that the reconsideration processes in place are ‘‘central to the American value of due process’’ and a second commenter, for similar reasons, expressed strong opposition to eliminating them through this rule. Multiple commenters argued that revising this provision would eliminate a key procedural safeguard for asylum seekers, citing a September 2021 study by Human Rights First.69 Several 69 See Human Rights First, Biden Administration Move to Eliminate Requests for Reconsideration Would Endanger Asylum Seekers, Deport Them to Persecution and Torture (Sept. 2021), https:// www.humanrightsfirst.org/sites/default/files/ RequestsforReconsideration.pdf (last visited Mar. 14, 2022). PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 18131 commenters provided examples of individuals who successfully sought reconsideration and, as a result, won protection. These commenters concluded that reconsideration by USCIS is a means to avoid unlawful refoulement due to mishandled credible fear interviews, errors in the initial credible fear record, and barriers to adequate review by an IJ. Adding to the above arguments, a commenter asserted that the factors distinguishing USCIS reconsideration from IJ review favor due process and administrative efficiency. The commenter said reconsideration allows for more time to access counsel, since asylum seekers can request reconsideration at any time following the credible fear determination and prior to removal. On the other hand, EOIR is required to schedule hearings within 7 business days of the credible fear determination. The commenter added that USCIS asylum officers will often provide asylum seekers time to explain errors with their initial interview, while IJ reviews move quickly and do not consider procedural errors in the credible fear interview. Furthermore, the commenter suggested that USCIS benefits from requests for reconsideration, as they serve as checks and balances for the agency while informing future asylum officer training. Given the differences between IJ review and USCIS reconsideration, an individual commenter argued that ‘‘[requests for reconsideration] are often our only recourse after a negative [credible fear interview] finding.’’ Response: The Departments acknowledge the comments related to whether an IJ should have sole jurisdiction to review negative credible fear determinations made by USCIS, or whether USCIS should retain the practice of entertaining requests for reconsideration even after a negative credible fear determination is served on the applicant and reviewed and affirmed by an IJ. Some context for the regulatory language at play and the way this practice has developed is helpful to frame this discussion. Prior to publication of the Global Asylum rule on December 11, 2020, the language related to reconsideration was located at 8 CFR 1208.30(g)(2)(iv)(A). With the Global Asylum rule, the Departments moved it from that section to 8 CFR 208.30(g)(2)(i).70 The regulatory language recognizes USCIS’s inherent discretionary authority to reconsider its own determination, but it was never meant to provide for a general process 70 See 85 FR 80275; supra note 4 (discussing recent regulations and their current status). E:\FR\FM\29MRR2.SGM 29MRR2 18132 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations by which individuals could submit requests for reconsideration of negative credible determinations to USCIS that had already been reviewed and upheld by an IJ as a matter of course. In practice, however, this regulatory language has served as a basis for entertaining such requests and, over the years, they have become an ad hoc yet increasingly significant portion of the work of USCIS asylum offices. Because this was never meant to be a formalized process, there is no formal mechanism for individuals to request reconsideration of a negative credible fear determination before USCIS; instead, such requests are entertained on an informal ad hoc basis whereby individuals contact USCIS asylum offices with their requests for reconsideration after an IJ has affirmed the negative credible fear determination, and asylum offices have to quickly assign officers and supervisors to review those requests. This informal, ad hoc allowance for such requests has proven difficult to manage and led to the expenditure of significant USCIS resources to entertain such requests. Yet USCIS has continued to entertain these requests because, in line with what some commenters argued, IJ review has sometimes failed to address allegations of error or newly available evidence that may compel a positive credible fear determination, and individuals would otherwise have no other recourse. The informal ad hoc approach of USCIS entertaining requests for review of negative credible fear determinations that has developed over time requires USCIS to devote resources to these requests that could more efficiently be used on initial credible fear and reasonable fear determinations, affirmative asylum adjudications, and now Asylum Merits interviews under the present rule. Because there is no formal mechanism by which to accept and review such requests, there can be no uniform procedure guiding their review. Likewise, because they are not applications, petitions, motions, or some other type of formal request, USCIS does not maintain comprehensive, official data in the Asylum Division’s case management system on requests for reconsideration in a standardized manner that can be readily queried. In any event, the Departments agree with commenters FY19: Total negative CF determinations by the offices that tracked RFRs. FY19: Total RFRs submitted to offices that tracked RFRs ..................... FY19: Total negative determinations changed to positive post-RFR by offices that tracked RFRs. Fiscal Year 2020 (‘‘FY20’’) During FY20, the following USCIS asylum offices informally tracked credible fear RFRs received at their Fiscal Year 2021 (‘‘FY21’’) During FY21, the following USCIS asylum offices informally tracked credible fear RFRs received at their lotter on DSK11XQN23PROD with RULES2 Although the above data do not account for every case in which a request for reconsideration of a negative credible fear determination was made, they demonstrate the significant number VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Frm 00056 Fmt 4701 Francisco, CA (ZSF). The remaining offices (Arlington, VA (ZAR/ZAC); Chicago, IL (ZCH); and Miami, FL (ZMI)) did not track RFRs received. 7,698. 2,109 (27 percent of negatives from the offices that tracked RFRs). 150 (7 percent of RFR submissions and 2 percent of all negatives from the offices that tracked RFRs). Orleans, LA (ZOL). The remaining offices (Chicago, IL (ZCH); Miami, FL (ZMI); and San Francisco, CA (ZSF)) did not track RFRs received. 11,232. 1,213 (10.7 percent of negatives from the offices that tracked RFRs). 188 (15 percent of RFR submissions and 1.6 percent of all negatives from the offices that tracked RFRs). of requests for reconsideration that USCIS asylum offices have entertained. Anecdotally, offices report that given the sizeable number of requests received, it is not uncommon to have PO 00000 During FY19, the following USCIS asylum offices informally tracked credible fear RFRs received at their offices: Houston, TX (ZHN); Los Angeles, CA (ZLA); New York, NY (ZNY); Newark, NJ (ZNK); New Orleans, LA (ZOL); and San Francisco, CA (ZSF). The remaining offices (Arlington, VA (ZAR/ZAC); Chicago, IL (ZCH); and Miami, FL (ZMI)) did not track RFRs received. 2,086 (17 percent of negatives from the offices that tracked RFRs). 231 (11 percent of RFR submissions and 2 percent of all negatives from the offices that tracked RFRs). offices: Arlington, VA (ZAR/ZAC); Boston, MA (ZBO); Houston, TX (ZHN); Los Angeles, CA (ZLA); New York, NY (ZNY); Newark, NJ (ZNK); and New FY21: Total negative CF determinations by the offices that tracked RFRs. FY21: Total RFRs submitted to offices that tracked RFRs ..................... FY21: Total negative determinations changed to positive post-RFR by offices that tracked RFRs. Fiscal Year 2019 (‘‘FY19’’) 12,071. offices: Boston, MA (ZBO); Houston, TX (ZHN); Los Angeles, CA (ZLA); New York, NY (ZNY); Newark, NJ (ZNK); New Orleans, LA (ZOL); and San FY20: Total negative CF determinations by the offices that tracked RFRs. FY20: Total RFRs submitted to offices that tracked RFRs ..................... FY20: Total negative determinations changed to positive post-RFR by offices that tracked RFRs. that some type of data related to these requests, including how many are received, how often the negative credible fear determinations are reconsidered, and how often a positive decision is issued, would be helpful to inform this discussion. The Departments accordingly have attempted to gather the best data available related to these requests, based on informal tracking by some offices, which is not comprehensive or standardized. The available data related to requests for reconsideration (‘‘RFRs’’) of negative credible fear determinations already affirmed by an IJ is as follows: Sfmt 4700 four or five senior asylum officers working on RFRs full-time, along with two supervisors dedicating half of each day to RFRs on a regular basis, with additional oversight (approximately one E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations hour per day) by upper management (such as a Section Chief). The number of hours required to review an RFR may vary, as the task includes reviewing the credible fear record in light of any allegations of clear error or the presentation of any newly available evidence that may change the decision from a negative to a positive and determining if another interview is necessary to make a decision. In cases in which another interview is provided, a single request could take upwards of four hours to complete. Moreover, given the time-sensitive nature of the request, considering the individual is in the process of being expeditiously removed, where offices exercise their discretion to review such requests, they have to act quickly to ensure the review takes place prior to removal. Where RFRs are entertained, to ensure the review takes place prior to removal, if an office does not already have full-time staff dedicated to RFR review at a given moment, they must pull asylum officers off their regular caseload of credible fear, reasonable fear, or affirmative asylum cases and require them to quickly shift gears to review RFRs, in addition to requiring SAOs to do the same. Furthermore, while offices have not tracked cases where multiple RFRs are received, anecdotally, they report that it is not uncommon to receive multiple RFRs from the same applicant, in some instances as many as two to three or more per case. To channel USCIS’s resources to where they can most efficiently be used, with the present rulemaking, the Departments first proposed revising 8 CFR 208.30(g)(1)(i) to eliminate USCIS reconsiderations and provide that an IJ has sole jurisdiction to review whether the individual has established a credible fear of persecution or torture once the asylum officer has made a negative credible fear determination and the individual is served with a Form I–863 (after the individual either requests IJ review or declines to request review and that declination is treated as a request for review). Once the Form I–863 was served, jurisdiction to review the credible fear determination would then have rested solely with EOIR. The Departments based this revision on the notion that requests to reconsider negative credible fear determinations where applicants have new, previously unavailable evidence, or where a clear procedural or substantive error in the determination is alleged, should properly take the form of motions to reopen before EOIR and be decided by an IJ. Upon further consideration and after reflecting on the comments received on VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 this topic, however, the Departments agree with many of the commenters that even after a negative credible fear determination has been reviewed by an SAO, the individual has been served with the decision, and an IJ has reviewed and concurred with the negative determination, in some rare instances USCIS may still want to reconsider the determination as a matter of discretion. For example, if there is an allegation of procedural or substantive error in the original determination and the IJ did not address this issue during IJ review, it may be an appropriate exercise of USCIS’s discretion to reconsider the case. While the Departments disagree with the commenters’ characterization of credible fear interviews as rife with procedural errors, the Departments also recognize that errors sometimes occur given all the unique circumstances at play. In some instances, errors that may or may not have been avoidable will occur and should be corrected. In those instances, the Departments believe there should be some recourse for the noncitizens who are affected. The Departments do not take lightly the notion that, as referred to by commenters and as demonstrated by the above data, there are some cases where the negative credible fear determination is overturned and, absent such individuals requesting reconsideration and USCIS exercising its discretion to reconsider, these individuals may have been removed to a country where they were in fact ultimately able to demonstrate a credible fear of persecution or torture. Considering the gravity of the consequences of failing to address a potential clear error in the negative credible fear determination, including potentially violating the United States’ non-refoulement obligations and returning the individual to a country where there is a significant possibility that the individual could be persecuted or tortured, the Departments agree that it is appropriate to allow an option for reconsideration as a last resort. While the NPRM framed that option as being best exercised by EOIR before the IJ, considering the many comments showing how USCIS is specially positioned to reconsider a decision even after an IJ has concurred with it, the Departments agree that potential reconsideration by USCIS should continue to be allowed. As such, instead of adopting the revisions to 8 CFR 208.30(g)(1)(i) that were proposed in the NPRM, in this IFR, DHS is retaining language at 8 CFR 208.30(g)(1)(i) recognizing that DHS may, in its discretion, reconsider a PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 18133 negative credible fear finding with which an IJ has concurred. At the same time, the Departments remain concerned that requests for reconsideration of negative credible fear determinations not be permitted to undermine the present rule’s purpose to create a more efficient and streamlined process following a credible fear determination, while ensuring due process. As noted in the preamble to the NPRM, the original changes to 8 CFR 208.30(g) proposed in the NPRM were put forth to be consistent with the statutory scheme of INA 235(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii), under which IJ review of the credible fear determination serves as the check to ensure individuals are not returned to a country where they have demonstrated a credible fear. The Departments stand by that assertion from the NPRM’s preamble and want to emphasize that even though they are recognizing the possibility that USCIS may, in its discretion, reconsider a negative credible fear determination, such an exercise of discretion is not the appropriate primary mechanism for review of a credible fear determination—that credible fear review, per statute, rests with the IJ once jurisdiction is transferred to EOIR. The recognition of USCIS’s inherent discretionary authority to potentially reconsider a credible fear determination must not be used to undercut the statutory scheme of expedited removal, including the proper role of the IJ to review USCIS’s negative credible fear determination, nor will DHS permit it to obfuscate the purpose of the present rule. Accordingly, while DHS is maintaining the regulatory reference to its inherent discretionary authority to reconsider a negative credible fear determination in the present rule, it is also placing a temporal and numerical limitation on allowances for reconsideration to ensure the exercise of such authority is consistent with the statutory expedited removal and credible fear framework. The present rule provides at 8 CFR 208.30(g)(1)(i) that any request for reconsideration must be received no more than 7 days after the IJ’s concurrence with the negative credible fear determination, or prior to the individual’s removal, whichever date comes first. This time limit is necessary to ensure the avenue of allowing USCIS reconsideration does not undercut the whole expedited removal process in cases where the applicant has already had an opportunity to present his or her claim before an asylum officer, the asylum officer has made a decision that was E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18134 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations concurred with by an SAO, and an IJ has reviewed the determination in accordance with the statutory scheme. Additionally, for the same reasons, it is necessary to limit any request for reconsideration of a negative credible fear determination before USCIS to one request only, which the Departments have also provided for at 8 CFR 208.30(g)(1)(i). Considering, as mentioned above, that asylum offices report receiving multiple RFRs for a single case and devoting significant resources that could more efficiently be spent adjudicating the cases of applicants who have not yet had any opportunity for their claims to be heard, this numerical limitation is also essential if USCIS is going to continue entertaining such requests. If unlimited requests were allowed, or if there were no limit on the time frame during which such requests may be lodged, the Departments would run the risk of endorsing an ad hoc process that would undermine the very purpose of the statutory scheme of expedited removal laid out by Congress, and indeed also the very purpose of the present rule. The Departments, after careful reflection, instead are providing the best balance to promote both due process and finality, consistent with the statutory scheme of expedited removal, including the statutory language that clearly directs that the IJ is the proper reviewer of any negative credible fear determination made by an asylum officer. Comments: One commenter expressed support for the Departments’ proposal to eliminate the regulatory text that describes USCIS’s authority to reconsider negative credible fear determinations that have already been reviewed by a supervisory asylum officer and upheld by an IJ. This commenter agreed with the Departments’ assessment that the proposal would increase efficiency, that it more closely aligns with the statutory scheme of section 235 of the Act, 8 U.S.C. 1225, and that it would be necessary to ensure that requests for reconsideration do not frustrate the streamlined process that Congress intended for expedited removal. The commenter asserted that requests for reconsideration have become ‘‘an overwhelmingly popular tactic’’ to delay removal among individuals without meritorious fear claims, diverting resources from those with legitimate claims. Response: The Departments acknowledge the comment related to how the proposed changes align with the statutory scheme governing expedited removal and credible fear. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 The Departments also agree that resources should be used efficiently and generally should not be diverted from those who have not yet had any interview or determination to those who have already had an opportunity to present their claim and who received a negative credible fear determination made by an asylum officer, reviewed by a supervisory asylum officer, and concurred with by an IJ. For these reasons, while the Departments are not maintaining the exact revisions to 8 CFR 208.30(g) proposed in the NPRM, the Departments are taking this opportunity to clarify that the statutorily-mandated review of any negative credible fear determination must take place by an IJ pursuant to INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III), and that IJ review is the appropriate method by which a negative credible fear determination made by USCIS is reviewed. Following IJ review, pursuant to USCIS’s inherent discretionary authority to review its own decisions, USCIS may, as a matter of discretion, reconsider a negative credible fear determination that has already been concurred with by an IJ, 8 CFR 208.30(g), but the Departments agree with the comment that this exercise of discretion cannot be allowed to frustrate the underlying expedited removal process laid out by Congress. Accordingly, DHS is providing for revisions to 8 CFR 208.30(g) that place reasonable limits on when USCIS may entertain a request for reconsideration as a matter of discretion, including that any reconsideration be requested by the noncitizen or their attorney or initiated by USCIS no more than 7 days after the IJ concurrence with the negative credible fear determination, or prior to the noncitizen’s removal, whichever date comes first, and that only one such request may be entertained per case. These reasonable limitations are necessary to ensure that USCIS’s exercise of discretion in allowing any potential reconsideration of a negative credible fear determination is not inconsistent with Congress’s instructions in establishing the expedited removal process and to ensure requests for reconsideration cannot be used as a tactic to delay removal for individuals with nonmeritorious claims, which, as the commenter expressed, is a serious issue that diverts resources from USCIS hearing potentially meritorious claims. d. Removal of Mandatory Bars From Consideration Comments: A commenter stated that the NPRM did not provide a good enough rationale for rescinding the PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 regulatory change that would require application of the ‘‘mandatory bars’’ against asylum claims during credible fear screening. The commenter expressed opposition to ‘‘ignoring’’ mandatory bars, such as if the applicant is a criminal, is a danger to the United States, or participated in the persecution of others. A number of commenters supported the Departments’ proposal to not apply the mandatory bars to asylum and withholding of removal during the credible fear screening process. One comment stated that application of U.S. law relating to bars to asylum is so complex and often fact-intensive that it is simply not possible to make fair and accurate legal determinations on these issues in the context of credible fear screenings, which do not allow sufficient time to identify the factual information and legal arguments that may need to be raised on these points. Another commenter stated that exclusion from refugee protection is a complex inquiry into factual and legal questions involving not only international refugee law, but in many cases, international human rights, humanitarian law, and international criminal law. The commenter stated that this inquiry cannot be adequately assessed in a screening interview, particularly given truncated timelines, lack of legal assistance, lack of understanding about the procedure, challenges with translation and interpretation, and the prevalence of trauma. Response: The Departments acknowledge the commenter’s invitation to further explain their reasons for recodifying the historical practice of not applying mandatory bars to asylum or statutory withholding of removal at the credible fear screening stage. See 8 CFR 208.30(e)(5)(i)(A). As described in Section III.A of this preamble, requiring asylum officers to apply mandatory bars during credible fear screenings would make these screenings less efficient, undermining congressional intent that the expedited removal process be truly expeditious. Because of the complexity of the inquiry required to develop a sufficient record upon which to base a decision to apply a mandatory bar, such a decision is most appropriately made in the context of a full merits hearing, whether before an asylum officer or an IJ, and not in a screening context. Furthermore, due process and fairness considerations counsel against applying mandatory bars during the credible fear screening process. Due to the intricacies of fact finding and legal analysis required to make a determination on the applicability of any mandatory bars, E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations individuals found to have a credible fear of persecution should be afforded the additional time, procedural protections, and opportunity to further consult with counsel that the Asylum Merits process or section 240 proceedings provide. In light of the need to preserve the efficiency Congress intended in making credible fear screening part of the expedited removal process and to ensure due process for those individuals found to have a significant possibility of establishing eligibility for asylum or statutory withholding of removal but for the potential applicability of a mandatory bar, the Departments have determined that these goals can be accomplished by returning to the historical practice of not applying mandatory bars at the credible fear screening stage. The commenter’s suggestion that the Departments intend through this rulemaking to ignore any mandatory bar is mistaken. On the contrary, asylum officers are trained to gather and analyze information to determine the applicability of mandatory bars in affirmative asylum adjudications, and they are instructed to assess whether certain bars may apply in the credible fear screening context. The latter assessment is designed to flag any mandatory bar issues requiring further exploration in Asylum Merits interviews or section 240 removal proceedings. Asylum officers and IJs will continue to apply the mandatory bars in their adjudications, when justified by the facts and the law. Individuals subject to a mandatory bar will not be found eligible for any immigration benefit foreclosed by the bar. The Departments agree with these commenters that a complicated process requiring full evidence gathering and determinations to be made on possible bars to eligibility is incompatible with the function of the credible fear interview as a screening mechanism designed to quickly identify potentially meritorious claims deserving of further consideration in a full merits hearing and to facilitate the rapid removal of individuals determined to lack a significant possibility of establishing eligibility for asylum, statutory withholding of removal, or protection under the CAT. As detailed further above, not applying mandatory bars at the credible fear screening stage both preserves the efficiency Congress intended in making credible fear screening part of the expedited removal process and helps ensure a fair process for those individuals found to have a significant possibility of establishing eligibility for asylum or statutory VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 withholding of removal but for the potential applicability of a mandatory bar. The Departments have determined that these goals can be accomplished by returning to the historical practice of not applying mandatory bars at the credible fear screening stage. Comment: One commenter praised the Departments’ proposal to generally not apply the statutory mandatory bars to asylum and withholding of removal during the credible fear screening process but urged the Departments to remove some of the limited exceptions to ensure any additional bars are not applied. The commenter stated that this is a step in the right direction, but the regulatory language should be expanded to eliminate consideration of the bars to asylum resulting from the Presidential Proclamation Bar IFR and TCT Bar rule. Response: The Departments acknowledge the suggestion and note that they plan to propose to modify or rescind the regulatory changes promulgated in the Presidential Proclamation Bar IFR 71 and the TCT Bar rule 72 in separate rulemakings. These rulemakings contain the bars that the commenter has urged the Departments to remove from consideration within the credible fear process. The Departments note that these two rules are not currently in effect. Federal courts have either vacated or enjoined the Departments from implementing both the TCT Bar IFR and TCT Bar rule as well as the Presidential Proclamation Bar IFR.73 Comment: One commenter urged the Departments to implement the Global Asylum rule, including its requirement that USCIS asylum officers apply the mandatory bars to asylum and statutory withholding of removal at the credible 71 Executive Office of the President, OMB, OIRA, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, Noncitizens Subject to a Bar on Entry Under Section 212(f); Procedures for Protection Claims, https://www.reginfo.gov/public/ do/eAgendaViewRule?pubId=202104&RIN=1615AC34 (last visited Mar. 14, 2022); Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, Noncitizens Subject to a Bar on Entry Under Section 212(f); Procedures for Protection Claims, https://www.reginfo.gov/public/do/eAgenda ViewRule?pubId=202110&RIN=1615-AC34 (last visited Mar. 14, 2022). 72 See Executive Office of the President, OMB, OIRA, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https://www.reginfo.gov/ public/do/eAgendaViewRule?pubId=202104& RIN=1615-AC69 (last visited Mar. 14, 2022); Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/ eAgendaViewRule?pubId=202110&RIN=1615-AC69 (last visited Mar. 14, 2022). 73 See supra note 4 (discussing recent regulations and their current status). PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 18135 fear stage. The commenter cited the Departments’ justification for this provision in the preamble to the Global Asylum rule, arguing that it is ‘‘pointless, wasteful, and inefficient to adjudicate claims for relief in section 240 proceedings when it can be determined that an alien is subject to one or more of the mandatory bars to asylum or statutory withholding at the screening stage.’’ Response: The Departments note that the Global Asylum rule has been enjoined, so it cannot be implemented at this time.74 The Departments acknowledge that in the preamble to the Global Asylum rule, they justified the departure from the historic practice of not applying the mandatory bars at the credible fear screening stage by arguing that it would be an inefficient use of an immigration court’s resources to conduct full merits hearings on claims of individuals determined at the credible fear stage to be barred from asylum or statutory withholding of removal. However, as detailed further above, the Departments have subsequently determined that the stated goal of promoting administrative efficiency can be better accomplished through the mechanisms established in this rulemaking, rather than through broadly applying mandatory bars at the credible fear stage. The Departments now believe that it is speculative whether, had the Global Asylum rule been implemented, a meaningful portion of the EOIR caseload might have been eliminated because some individuals who were found at the credible fear screening stage to be subject to a mandatory bar would not have been placed into section 240 proceedings. On the other hand, requiring asylum officers to broadly apply the mandatory bars would, in many cases, increase credible fear interview and decision times. While the TCT Bar IFR was in effect, asylum officers were required to spend additional time during interviews determining whether the bar potentially applied, eliciting testimony related to the application of the bar, exploring whether an exception to the bar might have applied, and, if the noncitizen appeared to be barred and did not qualify for an exception to the bar, developing the record to ensure a legally sufficient determination could be made according to the higher reasonable fear standard. As discussed above, these efforts also increased the workload of supervisory asylum officers, Asylum Division Headquarters staff, USCIS 74 See supra note 4 (discussing recent regulations and their current status). E:\FR\FM\29MRR2.SGM 29MRR2 18136 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 Office of Chief Counsel attorneys, and IJs. Presently, asylum officers ask questions related to all mandatory bars to develop the record sufficiently to flag potential bars but, since mandatory bars are generally not applied in the credible fear determination, the record does not need to be developed to the level of detail that would be necessary if the issue was outcome determinative for the credible fear determination. If a mandatory bar were outcome determinative, it would be necessary to develop the record sufficiently to make a decision about the mandatory bar such that, in many cases, the interview would go beyond its intended purpose of being a screening for potential eligibility for protection and rather become a decision on the form of protection itself. The level of detailed testimony necessary to make such a decision, in many cases and depending on the facts, would require asylum officers to spend more time carefully developing the record during the interview and conducting additional research following the interview. IJs reviewing negative credible fear determinations where a mandatory bar was applied would similarly face additional factors to consider in their review, depending on the facts, often undermining the efficiency of that process as well. e. Other Comments on the Proposed Credible Fear Screening Process Comments: One commenter asserted that the NPRM does not improve efficiencies in adjudication or lead to cost savings when compared to having the asylum adjudication process take place outside of the context of expedited removal and detention. The commenter asserted that, rather than streamlining the process, the NPRM creates a new layer of USCIS adjudication with possibly two reviews by an immigration court. The commenter also asserted that the NPRM fails to adopt a longsuggested solution of allowing for grants of asylum at the credible fear interview stage or eliminating the credible fear screening process so that cases may proceed directly to the merits before USCIS. Response: The Departments note that the goals of this rulemaking include ensuring that noncitizens placed into the Asylum Merits process receive final decisions on their claims for protection as quickly and efficiently as possible, while also providing ample procedural safeguards designed to ensure due process, respect human dignity, and promote equity. In this rule, the Departments have outlined a process that continues to allow noncitizens to seek IJ review of asylum officers’ VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 negative credible fear determinations, as required by statute. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). In addition, following an Asylum Merits interview before an asylum officer, if the asylum officer does not grant asylum, the noncitizen will have the opportunity to have their protection claims considered before an IJ in streamlined section 240 removal proceedings. The Departments expect that this new process will allow protection claims to be adjudicated more quickly—whether granted or not— than they are under the current process (in which all individuals who receive positive credible fear determinations are referred for ordinary section 240 removal proceedings) and will provide procedural safeguards to ensure that noncitizens receive full and fair adjudications of their protection claims. The Departments have considered the commenter’s proposals to eliminate credible fear screenings and adjudicate protection claims outside the context of the expedited removal process, as well as to allow for grants of asylum at the credible fear screening stage. While the Departments acknowledge the proposals, at this time, the Departments decline to adopt these proposals in favor of the approach presented in this rule. The Departments believe that a credible fear screening provides a meaningful opportunity for a noncitizen to provide USCIS asylum officers with valuable information pertaining to their protection claims, and that a subsequent Asylum Merits interview will allow noncitizens to expand on the details and circumstances surrounding their need for protection. On the other hand, the credible fear screening process allows the Departments to assess who may not be eligible for protection and promptly execute removal orders. Overall, the credible fear screening process that the Departments implement, which is consistent with congressional intent, allows for the Departments to identify noncitizens who may or may not be eligible for protection. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). As for allowing grants of asylum at the credible fear screening stage, the Departments acknowledge the recommendation but are not addressing the matter in this rulemaking as it falls outside of the scope of this rule. Comments: Multiple commenters expressed support for the ‘‘clarification’’ in the NPRM that only USCIS asylum officers would conduct credible fear interviews. Some of these commenters asserted that CBP officers who had previously performed these screenings were hostile and confrontational and were more likely to make negative PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 credible fear determinations. Another commenter asserted that this ‘‘specification’’ is consistent with congressional intent because the INA expressly requires asylum officers, who have professional training in asylum law and interview techniques, to conduct credible fear interviews. Response: The Departments acknowledge the commenters’ support and agree that the rule clarifies that USCIS asylum officers will conduct credible fear interviews, which is consistent with the INA. See INA 235(b)(1)(B)(i), 8 U.S.C. 1225(b)(1)(B)(i); 8 CFR 208.30(d). USCIS asylum officers receive training and possess experience in handling asylum and related adjudications; receive regular trainings on asylum-related country conditions and legal issues, as well as nonadversarial interviewing techniques; and have ready access to country conditions experts. The Departments acknowledge the concerns of the commenters regarding the conduct of CBP officers but note that these issues fall outside of the scope of this rulemaking. Comments: One commenter suggested that the Departments should codify the elimination of the Prompt Asylum Claim Review (‘‘PACR’’) and the Humanitarian Asylum Review Process (‘‘HARP’’) by regulation, including by imposing enhanced procedural protections for all credible fear interviews, including that they not be conducted while in CBP custody. The commenter believes that, as the Departments revisit their asylum screening procedures, they should take this opportunity to prevent reintroduction of the programs by a future administration. Response: Pursuant to the E.O. on Migration’s directive to cease implementing PACR and HARP, and to consider rescinding any orders, rules, regulations, guidelines, or policies implementing those programs, the Departments have ceased implementing those programs. See 86 FR 8270. The Departments acknowledge the recommendation that those changes be codified by regulation, but further consideration and discussion of these programs fall outside of the scope of this rulemaking. 4. Applications for Asylum a. Written Record of the Credible Fear Determination Created by USCIS, Together With the Service of the Credible Fear Determination, Treated as an Application for Asylum Comments: A commenter expressed support for the provision requiring E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations asylum officers to provide a summary of material facts and interview notes to asylum seekers during the credible fear screening process. Various commenters expressed concern about time constraints for asylum seekers to amend or supplement the asylum application. One commenter argued that the 7-day timeline for submitting an amended or supplemented application—10 days if mailed—would be infeasible due to the remote location of many asylum offices and the brief timeline between the interview notice and the scheduled interview. The commenter recommended that the rule impose a requirement that USCIS provide a minimum time frame for applicants prior to the Asylum Merits interview. Another commenter urged that more time be allowed for applicants and attorneys to develop a case. Some commenters argued that the credible fear documentation is often unreliable and that applicants will need adequate time and assistance to make modifications or to supplement the record. Citing the procedural limitations at proposed 8 CFR 208.9(d)(1), many commenters recommended the Departments develop a more robust procedure for the asylum seeker or counsel to make corrections or statements at any stage of the process or during the Asylum Merits interview, while providing additional time to review the hearing transcript following the hearing. Another commenter suggested that the proposed rule be framed with the expectation that the asylum application will be supplemented, modified, or corrected prior to the hearing. The commenter also recommended the rule include a provision that would require asylum officers to encourage asylum seekers to correct or supplement the record. Several commenters expressed concern that supplementations, modifications, or corrections to the record would undermine the applicant’s credibility and negatively impact the applicant’s case outcome. One commenter recommended that the Departments change the rule to explicitly protect applicant credibility with respect to modifications, corrections, or supplementations to the credible fear determination. Finally, citing proposed 8 CFR 208.3(a)(2) allowing an applicant to amend, correct, or supplement information collected during expedited removal, a commenter stated it was unclear whether this provision would also apply to the asylum officer’s credible fear interview notes. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Response: The Departments appreciate comments supporting the treatment of a credible fear determination as an asylum application. In creating this efficiency, the Departments aim as well to reduce potential barriers to protection for eligible applicants. The Departments acknowledge the support for the provision stating that a copy of the application for asylum, including the asylum officer’s notes from the interview and basis for the determination, will be provided to the noncitizen at the time that the credible fear determination is served. See 8 CFR 208.30(f), (g)(1). The Departments recognize that the initial screening determination may not necessarily capture details that an asylum applicant wishes to include for further consideration of the applicant’s eligibility for asylum, statutory withholding of removal, or CAT protection. Therefore, it is important that an applicant be able to modify or supplement the application for asylum. However, given commenters’ concerns about credibility, ability to modify credible fear notes, and general concerns with the proposed process, the Departments want to clarify that modifications or supplements should not seek to modify or amend the credible fear determination made by the asylum officer. Under this rule, applicants may modify, amend, or correct the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or alternatively, may supplement the information collected during their credible fear interview. The Departments are making this change to allow for applicants to make corrections or further develop their claim but are making clear that a line-by-line correction of the asylum officers’ notes is not necessary or expected for purposes of the process or an assessment of credibility. The Departments do not believe that added protections are needed to protect against potential negative impacts on credibility assessments. Where there are discrepancies or inconsistencies, an applicant may explain such statements in their supplemental materials or at the Asylum Merits interview. As is always the case with any credibility determination made in the context of a nonadversarial asylum interview before USCIS, if a credibility concern arises, such as potential inconsistent testimony, the applicant will be given the opportunity to explain the inconsistency and the concern may be resolved if the applicant provides a PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 18137 reasonable explanation, which in some instances may relate to the nature of the credible fear interview itself if that constitutes such a reasonable explanation in the specific case. In creating a streamlined process, the Departments do not expect the applicant to do a wholesale edit of a credible fear interview record, but rather wish to ensure that biographic and basic information about the fear claim is correct, so that the applicant may further develop the claim at the Asylum Merits interview. The Departments address comments relating to constraints on timeline below in Section IV.D.4.d of this preamble. Comments: A few commenters warned that the proposal to treat the record of the credible fear determination as an asylum application would create a conflict of interest because the asylum office would create the same record that it would then adjudicate, and the asylum office would develop the record during the credible fear screening and could then not grant asylum based on that record. A commenter asserted that the person preparing the asylum application is not simply writing down what the applicant says and that such person must be a zealous advocate for the applicant, which may include arguing for a novel interpretation of the law. Another commenter said that the NPRM must be revised to promote neutral decision-making based on objective evidence in the record and correct application of U.S. and international law. Another commenter stated that if adjudicators face significant backlogs or certain types of claims are viewed unfavorably, it is possible that asylum officers responsible for preparing and lodging asylum applications may feel pressure or incentivized to file fewer claims (e.g., by issuing a greater number of negative fear determinations) and suggested that robust protections through checks-andbalances (referencing firewalls, where possible, as an example) within USCIS may help alleviate such concerns. Response: The Departments disagree with the commenters that the asylum officer’s role in preparing the asylum application through the creation of the credible fear record represents a conflict of interest with their role in adjudicating the asylum application of an individual found to have a credible fear in the first instance. By deeming the record of the credible fear interview to constitute the asylum application, the Departments ensure that the statements made by the noncitizen, including any arguments for a novel interpretation of the law, become part of the asylum application. Similarly, 8 CFR E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18138 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 208.30(d)(4) provides that counsel for the noncitizen may be present at the credible fear interview and for the asylum officer to permit counsel to make a statement at the end of the interview, which statement may include an argument for a novel interpretation of the law, and which would become part of the record. Furthermore, the rule provides at 8 CFR 208.4(c)(2) that noncitizens who receive a positive credible fear determination that is treated as the asylum application may supplement the information collected during the process that concluded with a positive credible fear determination. It further provides at 8 CFR 208.9(b) that asylum applicants may have counsel or a representative present at an Asylum Merits interview. Such representative will have an opportunity to make a statement or comment on the evidence presented upon completion of the hearing. See 8 CFR 208.9(d). Taken together, these provisions ensure that noncitizens and their representatives have ample opportunity to engage in zealous advocacy, including the presentation of arguments for novel interpretations of the law. As neutral fact finders conducting nonadversarial interviews in both the credible fear screening and asylum adjudication contexts, asylum officers are dutybound to consider the totality of evidence in the record and issue decisions based on the facts and the law. Their role in creating the credible fear record that will be treated as an asylum application thus poses no inherent conflict of interest. Additionally, different asylum officers may be making the credible fear determination and conducting the Asylum Merits interview, thus obviating any perceived appearance of conflict. Furthermore, contrary to the commenter’s assertion, nothing in this rule pressures or incentivizes asylum officers to issue negative credible fear determinations that are not warranted by the facts and law applicable to an individual’s case. This rule aims to address the backlog of asylum claims before EOIR by providing a more efficient mechanism for processing asylum claims originating in the credible fear screening process while guaranteeing due process and an objective application of the law to the facts in each case, not by pressuring asylum officers toward particular outcomes. Comments: Some commenters opposed treating the written record of the credible fear interview as an asylum application on the ground that it ‘‘demands that USCIS assume the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 burden in what should be the noncitizen’s role in the asylum application process.’’ These commenters stated that this feature of the rule will require the Government to adjudicate more asylum applications. Response: The Departments disagree that the IFR requires USCIS to assume a burden by treating the written record of the credible fear determination as an asylum application, as USCIS is required to produce this record as part of the credible fear screening process. While this change will mean that a greater percentage of noncitizens receiving a credible fear determination will subsequently receive a decision on the merits of their claims for asylum, statutory withholding of removal, and CAT, it will also mean that a final decision will be made in a more timely fashion than accomplished under the present process. As explained above, ensuring that all noncitizens who receive a positive credible fear determination quickly have an asylum application on file allows cases originating with a credible fear screening to be adjudicated substantially sooner than they otherwise would be—regardless of whether the noncitizen is granted asylum or ordered removed. Under the current process, noncitizens who receive a positive credible fear determination may wait months or years before attending a Master Calendar Hearing, and the IJ may be asked for multiple continuances to any deadline for the noncitizen to file an asylum application. By treating the credible fear documentation as the application for asylum, both the Departments and the noncitizen avoid the burden caused by delays, continuances, and rescheduled hearings sought in order for the noncitizen to file an asylum application. See supra Section III.B of this preamble. b. Date Positive Credible Fear Determination Served as Date of Filing and Receipt Comments: Multiple commenters supported the general idea that a positive credible fear determination would serve as an asylum application filing for purposes of the one-year filing deadline and to start the clock on employment authorization based on a pending asylum application, thereby helping asylum seekers avoid missing the one-year filing deadline and making it possible for asylum seekers to access employment authorization as quickly as possible. One commenter noted that this provision comports with the underlying policy goals of the one-year filing deadline. Other commenters provided opinions about the one-year filing PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 deadline generally, suggesting that the one-year filing deadline has become a barrier to applicants as many miss the filing deadline through lack of knowledge or notice of the deadline, confusion about the process, believing they already filed, or due to the lack of coordination between DHS and DOJ leading to court proceedings not being timely initiated. One commenter provided examples of personal stories showcasing how many asylum seekers fail to meet the deadline due to trauma, grief, or hope for the possibility of safe return to their home country. Several commenters further reasoned that the proposed change would save both asylum officers and IJs time in that they will not have to adjudicate whether an asylum application was filed within a year or whether an exception to the filing deadline was established (and, if so, whether the application was filed within a reasonable period of time given the exception). Instead, the commenter suggested that adjudicators will be able to concentrate on the substance of the claim. Some commenters went further, suggesting that Congress eliminate the one-year filing deadline entirely, as the deadline effectively acts as a bar to asylum and has arbitrarily blocked ‘‘tens of thousands of refugees’’ with meritorious claims for asylum. Various commenters supported expedited access to EADs for asylum seekers deemed to have a credible fear of persecution. Commenters expressed strong support for any procedural changes that would make it easier for asylum seekers to obtain EADs as quickly as possible. An individual commenter supported eliminating any delay between a positive credible fear determination and the filing of an application for asylum by treating the written record of the determination by USCIS as an application for asylum and starting the waiting period for employment authorization based on a pending asylum application. The commenter said enabling asylum seekers earlier access to employment could reduce the public burden, reduce the burden on the asylum support network, and benefit asylum seekers in terms of equity, human dignity, and fairness. A few commenters discussed the importance of the employment authorization to asylum seekers, including the ability to build financial security; gain housing and food; pay for competent legal counsel; ensure their home gets heating and electricity; escape situations of abuse; and obtain a form of identification that may allow the individual to get a driver’s license, access social benefits, open a bank account, register their child for school, E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations and enroll in health insurance. Citing research and examples from clients, commenters asserted that employment authorization not only allows asylum seekers to meet their basic daily needs and secure their fundamental rights, but it serves the economic interests of the United States through entrepreneurship, professional expertise, and tax revenue. A commenter argued that asylum seekers who have access to employment authorization would be less reliant on community resources and non-profit services. As expressed by commenters, individuals who experience barriers to employment authorization as a result of erroneous calculations in the starting and stopping of the waiting period for an EAD based on a pending asylum application are forced to work in exploitative situations and cannot support themselves or their families. Response: The Departments agree that ensuring that asylum seekers promptly have an application for asylum on file and that claims are timely adjudicated can help promote equity and fairness for individuals, including by allowing for earlier employment authorization on the basis of the asylum application or incident to status as an asylee, which in turn may reduce burdens on asylum support networks or the public. These fairness considerations were important factors in the Departments’ decision to treat the record underlying the positive credible fear determination as an application for asylum for purposes of meeting the one-year filing deadline and for purposes of beginning the time period applicants must wait before applying for or receiving employment authorization based on a pending asylum application. Instead of placing all individuals with a positive credible fear determination into removal proceedings before EOIR, where they then would have to defensively file a Form I–589, Application for Asylum and for Withholding of Removal (that would also require USCIS Service Center Operations to expend resources intaking the form and scheduling applicants for biometrics), and have them appear for multiple hearings before EOIR (where ICE resources would also be required to represent the Government in proceedings), applicants with a positive credible fear determination who are placed into the Asylum Merits process will have their credible fear record serve as the asylum application without having to expend additional agency resources to perform intake or additional applicant resources to file a new asylum application. This process will ensure applicants can apply for an EAD as soon as possible VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 once either the requisite time period has passed based on the record underlying the positive credible fear determination that serves as the asylum application or their asylum application is granted (making the individual eligible for employment authorization incident to status). Additionally, the rule will promote equity and due process by ensuring that individuals who are allowed to remain in the United States for the express purpose of having their asylum claim adjudicated after receiving a positive credible fear determination do not inadvertently miss the one-year filing deadline. The Departments also agree that having the record underlying the positive credible fear determination serve as the asylum application will create significant efficiencies in immigration court for noncitizens referred to streamlined section 240 proceedings when USCIS declines to grant asylum. Generally, noncitizens seeking asylum and related protections defensively during removal proceedings must complete and file the Form I–589, Application for Asylum and for Withholding of Removal. IJs must often grant continuances and delay hearings to allow noncitizens to complete the application. When a noncitizen files an asylum application defensively beyond the one-year filing deadline, the IJ and the parties must devote resources and time to resolving the issue of whether any exception to the one-year bar has been established and whether the application was thereafter filed within a reasonable period of time. However, this rule will increase efficiency during immigration court proceedings for certain cases originating from the credible fear process by reducing or eliminating the need for IJs to delay hearings for noncitizens to prepare the asylum applications and by obviating the need for IJs and the parties to spend time addressing issues related to the one-year filing deadline. Additionally, while the Departments agree that the issue of the one-year filing deadline for asylum is an important one, the comments related generally to the one-year filing deadline go outside the scope of the present rulemaking. The one-year filing deadline (including exceptions to the deadline) is set by Congress, INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Comments: Some commenters offered general opinions about EADs for asylum seekers and expressed concern that any waiting period for employment authorization is too long. A commenter stated that DHS should rescind employment authorization rules issued by the prior Administration because PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 18139 they were issued by agency officials in violation of the APA. The commenter said this Administration should immediately restore the 150-day waiting period and 30-day processing time requirement for asylum seekers. Another commenter concluded that the proposed rule ‘‘sidesteps’’ rescinding the timeline that leaves asylum seekers without the basic means to provide for themselves and urged DHS to enable applicants to seek employment authorization based on a grant of parole under 8 CFR 274a.12(c)(11). This commenter stated that paroling asylum seekers without employment authorization simply ensures their exploitation and destitution. Response: The Departments acknowledge the comments related generally to EADs based on a pending asylum application, often referred to as ‘‘(c)(8)’’ EADs because of the regulatory provision under which USCIS may grant such EADs, 8 CFR 274a.12(c)(8). The ‘‘(c)(11)’’ EADs referred to by the commenter relate to another subsection of that same provision, 8 CFR 274a.12(c)(11), which authorizes USCIS to grant an EAD to a noncitizen paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit. The eligibility criteria for EADs based on a pending asylum application are beyond the scope of the present rule. The present rule contains no substantive changes to EAD eligibility based on a pending asylum application or the requisite waiting period for applying for an EAD based on a pending asylum application. In the 2020 Asylum EAD Rule,75 DHS clarified that noncitizens who have been paroled into the United States after being found to have a credible fear or reasonable fear of persecution or torture may not apply under 8 CFR 274a.12(c)(11) (parole-related EADs), but may apply for employment authorization under 8 CFR 274a.12(c)(8) if they apply for asylum in accordance with the rules for (c)(8) EADs and are otherwise eligible. See 85 FR 38536. Those eligibility criteria are beyond the scope of the present rule. DHS welcomes comments related to these topics in separate, future rulemaking projects, as provided in the Spring and Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions. 75 Asylum Application, Interview, and Employment Authorization for Applicants, 85 FR 38532 (June 26, 2020). On February 7, 2022, in AsylumWorks v. Mayorkas, No. 20–cv–3815, 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the United States District Court for the District of Columbia vacated the 2020 Asylum EAD rule. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18140 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations c. Inclusion of Applicant’s Spouse and Children Comments: Several commenters asserted that the rule should permit asylum applicants to add a spouse and children or supplement family information at any point during the application process. A few commenters suggested that the proposed rule’s inflexibility with regard to changes to family information makes it more restrictive than the current rule, undermines the Departments’ goal of efficiency, and contradicts the Administration’s promise to keep families together. Other commenters reasoned that applicants may fail to discuss relevant family members during the credible fear process due to stress, trauma, fear, confusion regarding the asylum process and law, or because the asylum officer fails to inquire about family members. One commenter added that individuals should not be forced to choose between their own safety and reuniting with family members. One commenter stated that the proposed rule fails to consider how the provision of a credible fear decision automatically constituting the filing of an asylum application would affect the many asylum seekers who do not cross the border with their family members (e.g., different times and places, in groups or alone) and are thereby unable to join their claims. The commenter stated that the rule may result in family separations when some family members’ asylum cases are approved and others are not, where they could have otherwise been joined. One commenter concluded that requiring spouses and children to arrive concurrently with the principal applicant wrongly deprives asylum seekers of protection for their spouse or children and is furthermore inefficient as USCIS will have to adjudicate a Form I–730, Refugee/ Asylee Relative Petition, for family members who do not make it into the credible fear case. Another commenter described the Form I–730 process and remarked that the adjudicatory burden on USCIS will continue for years as more forms come into play instead of USCIS adjudicating the whole family’s adjustment applications all at once. A commenter also requested information about what will be the filing date in situations where multiple family members name each other as dependents and what will happen to dependents if the principal applicant is not granted asylum. Response: The Departments acknowledge comments related to dependents on an asylum application for individuals placed in the Asylum VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Merits process after receiving a positive credible fear determination. The spouse or child (unmarried, under 21 years old) of a principal asylee may derive asylum status from their spouse or parent. The derivative asylee may be included on the original application for asylum, or, if not included as a dependent on the application, the principal asylee may petition for their relatives by filing a Form I–730, Refugee/Asylee Relative Petition, within two years of the grant of asylum. Like affirmative and defensive asylum applications, a grant of asylum to the principal asylum applicant following an Asylum Merits interview will confer asylum status on their spouse or children if they are included as dependents in the application and not subject to any mandatory bars to asylum applicable to dependents. Principal applicants will be allowed to include dependents on their application in the new process if the dependents also entered the United States concurrently with the principal applicant and are on the same credible fear case, or, in the alternative, if the spouse or child already has a pending application under this new Asylum Merits process before USCIS. Additionally, a principal asylee may file a Form I–730, Refugee/Asylee Relative Petition, on behalf of any of their qualifying derivative family members after they are granted asylum. The Departments are cognizant of the concerns expressed by commenters about the need for flexibility in allowing dependents to be added to an asylum case under the new Asylum Merits process and contend that the procedures for dependents outlined in the IFR are as flexible as possible, while still ensuring the process can run smoothly and efficiently. The Departments would like to highlight that, in the credible fear process, applicants are specifically asked about all of their family members, and this information is recorded in the Form I–870, Record of Determination/ Credible Fear Worksheet. If the applicant receives a positive credible fear determination and is placed in the new Asylum Merits process, they will be allowed another opportunity to review and correct the information in their Form I–870. Accordingly, applicants will have ample opportunity to ensure that the information related to their family members is accurately reflected in their application under the new process. And if there are any qualifying family members that entered with the applicant or are already in the United States and also have an asylum application pending with USCIS after a positive credible fear finding, the PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 principal applicant is free to include them in his or her application. If for any reason a principal applicant fails to add a dependent to their initial asylum application, the principal applicant is not prevented from having that family member derive asylee status because the principal applicant is free to petition for that family member if and when the principal applicant is granted asylum, either by USCIS or by EOIR. With this IFR, the Departments are now establishing a procedure under which the principal applicant will receive a decision on the principal applicant’s case before USCIS and, if the principal applicant is not granted asylum, the principal applicant and any dependents on the case who are not in lawful status will be served with an NTA in immigration court and placed into streamlined section 240 removal proceedings before an IJ. In streamlined section 240 proceedings, the principal applicant may still be granted asylum and, if so, may confer that asylum status upon all of the qualifying dependents on the case. If the principal applicant is not granted asylum, then the principal applicant will be considered for statutory withholding of removal or withholding or deferral of removal under the CAT, and the IJ will also consider claims of the dependents that were elicited by the asylum officer during the Asylum Merits interview to determine if they are eligible for asylum or any other form of relief or protection. In response to the questions presented by commenters, the filing date will reflect the filing of the principal applicant. If a spouse or child is a dependent on an application under the new Asylum Merits process and also files as a principal applicant themselves, then the filing date for the dependent spouse or child’s application will be either (1) the date the dependent spouse or child’s Form I–589 was filed or (2) the date of service of the positive credible fear determination on their spouse or parent, whichever date is earlier. Additionally, if the principal applicant is not granted asylum, then the principal applicant and any dependents who are not in lawful status will be issued an NTA and placed in streamlined section 240 proceedings. See 8 CFR 208.14(c)(1). If there is a dependent under the new process who also has a pending affirmative asylum application before USCIS, then USCIS will adjudicate that asylum application on its own before placing that individual in section 240 proceedings and, if that individual is eligible for asylum as a principal applicant, the E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations individual would not be referred to immigration court. Additionally, under the revised 8 CFR 208.16, for cases under the jurisdiction of USCIS following a positive credible fear determination, if USCIS found the principal applicant ineligible for asylum, though USCIS cannot grant withholding or deferral of removal, the asylum officer is authorized to make a determination on the principal applicant’s eligibility for statutory withholding of removal or withholding or deferral of removal under the CAT if the principal applicant shows eligibility for such relief based on the record before USCIS. If USCIS determines that the principal applicant has shown eligibility for withholding or deferral of removal based on the record before USCIS, that determination will be given effect by the IJ if the IJ finds the principal applicant ineligible for asylum and issues a final order of removal, unless DHS demonstrates that evidence or testimony specifically pertaining to the respondent and not included in the record of proceedings for the USCIS Asylum Merits interview establishes that the respondent is not eligible for such protection(s), pursuant to the new 8 CFR 1240.17(i)(2). As described in 8 CFR 1240.17(i), once in section 240 proceedings, under the new process, the IJ will conduct a de novo review of the principal applicant’s eligibility for asylum, and if the principal applicant is not granted asylum, will consider de novo the principal applicant’s eligibility for statutory withholding of removal and withholding or deferral of removal under the CAT in cases where USCIS did not determine that the respondent was eligible for such relief. In cases where the principal applicant is not granted asylum by the IJ, the IJ will also review asylum eligibility for all other family members and if one family member is found eligible for asylum by EOIR and the others can receive asylum as derivative asylees, it will not be necessary for the IJ to evaluate the remaining family members’ eligibility for asylum or withholding or deferral of removal. If a respondent is not granted asylum and cannot otherwise derive asylum from a family member, then the IJ will review each respondent’s eligibility for statutory withholding of removal and withholding or deferral of removal under the CAT. Comments: One commenter requested the regulatory language be amended to define ‘‘accompanying family members’’ in 8 CFR 208.30, including by specifying what family members are included (e.g., siblings, cousins, etc.) and what including the family members on the form would accomplish. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Response: The Departments acknowledge the comment related to who may be included as an accompanying family member in a credible fear determination, but fully specifying the details of that process is beyond the scope of this rulemaking. In most cases, however, the Departments understand an ‘‘accompanying family member[ ]’’ to include a parent or sibling. Comments: A commenter warned that the proposed inclusion of an applicant’s spouse and children in the request for asylum conflicts with existing regulations. The commenter described what they called ‘‘riders,’’ or those individuals who previously filed affirmative applications and are already in the country and remarked that existing regulations require riders not originating from a credible fear claim to receive NTAs and be referred to immigration court for section 240 removal proceedings (8 CFR 208.14(c)(1)). The commenter argued that the proposed rule does not address this or how this circumstance would work procedurally and asserted that riders cannot be included in grants of statutory withholding of removal or protection under the CAT. Response: The Departments acknowledge the comments related to so-called ‘‘riders.’’ The present rulemaking does not change the governing law with respect to who may derive asylum from a principal applicant granted asylum in the United States. INA 208(b)(3), 8 U.S.C. 1158(b)(3). Further, the present rulemaking is not changing the status quo governing withholding of removal or deferral of removal with respect to an individual—both forms of relief or protection are individual in nature and a dependent cannot derive any status from a family member’s grant of withholding or deferral of removal. The present rulemaking is not changing anything about the nature of withholding or deferral of removal in that neither confer any type of status to a dependent. If a principal applicant is not granted asylum by USCIS under the new Asylum Merits process, then the principal applicant and all dependents included in the request for asylum who are not in lawful status will be issued an NTA and placed in streamlined section 240 proceedings, as described above. If one of the dependents does have a pending affirmative asylum application before USCIS, then that application will be adjudicated as well, but if that individual is not found eligible for asylum on their own, then they will also be issued an NTA and placed in section 240 proceedings if PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 18141 they are not otherwise in lawful status. Accordingly, the concerns expressed by the commenter related to ‘‘riders’’ appear to be unfounded, as anyone without legal status who is found ineligible for asylum by USCIS, whether in the affirmative asylum process or under this new Asylum Merits process, will be issued an NTA and placed in section 240 proceedings before an IJ. d. Due Process in Asylum Applications Comments: Some commenters emphasized the importance of formal hearings and a presentation of all available evidence in a court setting to, in their opinion, ensure due process. A few commenters argued that it was important for asylum claims to be heard before an independent, impartial judiciary. Response: The Departments disagree that a court setting or independent judiciary is necessary or otherwise required to allow for due process. See, e.g., 16D C.J.S., Constitutional Law sec. 2010 (2022) (‘‘Due process always stands as a constitutionally grounded procedural safety net in administrative proceedings[.]’’). Moreover, transfer of authority to the Judiciary is outside the Departments’ authority and beyond the scope of this rulemaking. The Departments only have the authority to promulgate rulemaking with respect to the authority already delegated to them by statute. Congress has expressly recognized the unique and specialized role of asylum officers in making credible fear determinations and in adjudicating the merits of asylum applications. Congress explicitly designated that ‘‘asylum officers’’ are responsible for conducting credible fear interviews and making credible fear determinations. INA 235(b)(1), 8 U.S.C. 1225(b)(1). Further, an ‘‘asylum officer’’ is defined by statute at INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E), as an immigration officer who: (1) ‘‘has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under’’ INA 208, 8 U.S.C. 1158, and (2) ‘‘is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.’’ Thus, Congress specifically contemplated that asylum officers act as full-time adjudicators of asylum applications and have specialized training to conduct such adjudications. Moreover, in addition to laying out the required background and role of asylum officers who both conduct credible fear determinations and adjudicate applications for asylum under INA 208, E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18142 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 8 U.S.C. 1158, Congress emphasized the important role of asylum officers in adjudicating asylum applications filed by even the most vulnerable applicants. In the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110–457, 122 Stat. 5044, Congress provided that asylum officers have initial jurisdiction over any asylum application filed by an unaccompanied child, and therefore asylum officers are specifically empowered to take all necessary steps to render a decision on an affirmative asylum case filed by a UAC. INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). Accordingly, Congress has repeatedly recognized the vital role of asylum officers in various contexts related to asylum applications. Under the INA, asylum officers are authorized to make initial credible fear determinations and are also the only adjudicators authorized to conduct the initial interview of the most vulnerable asylum applicants, unaccompanied children, even where those children may have already been placed into section 240 removal proceedings before EOIR. In addition to these very particular roles that Congress assigned to asylum officers, asylum officers are also recognized as full-time adjudicators of asylum claims under INA 208, 8 U.S.C. 1158. Asylum officers receive extensive training in substantive law and procedure, nonadversarial interview techniques and record development, decision writing, research skills, working with interpreters, and interviewing vulnerable individuals, including children; lesbian, gay, bisexual, transgender, queer, and intersex (‘‘LGBTQI’’) persons; survivors of gender-based violence; and survivors of torture and trauma. The extensive and well-rounded training asylum officers receive is designed to enable them to conduct nonadversarial interviews in a fair and sensitive manner. Indeed, Congress recognized the special role of asylum officers when it vested asylum officers, not IJs, with initial jurisdiction over asylum applications submitted by unaccompanied children even where they have already been placed in section 240 removal proceedings before EOIR. The present rulemaking builds on the already existing role of asylum officers in adjudicating affirmative asylum applications to have asylum officers also adjudicate asylum applications of individuals retained by or referred to USCIS for further consideration through an Asylum Merits interview following a positive credible fear determination. Additionally, after considering VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 comments and adjusting the present rule such that asylum officers will no longer issue removal orders under the framework of this rule as described above and below, USCIS will not be issuing orders related to statutory withholding of removal or withholding or deferral of removal under the CAT. In those cases in which the asylum officer finds that an individual is not eligible for asylum, the asylum officer will determine whether the individual is nonetheless eligible for withholding of removal under 8 CFR 208.16(b) or (c) or deferral of removal under 8 CFR 208.17. As proposed in the NPRM, asylum officers will determine applicants’ eligibility for withholding of removal, thereby maintaining the due process protections that already exist within affirmative asylum interviews conducted by USCIS asylum officers. See 8 CFR 208.9. While the Departments appreciate the concerns expressed by commenters concerned with protecting the due process rights of asylum applicants, the Departments are confident that those rights will be preserved through the nonadversarial interview process conducted by highly trained and specialized asylum officers, with a de novo review of the asylum claim by an IJ if USCIS finds the applicant ineligible for asylum. The IJ will also review any claim to statutory withholding of removal or withholding or deferral of removal under the CAT and any other potential form of relief or protection if the applicant is not granted asylum. Moreover, the rule does not contemplate any change to the noncitizen’s ability to appeal an IJ’s decision. Comments: Various commenters expressed concern that the proposed rule does not establish a minimum amount of time between the positive credible fear determination and the Asylum Merits interview for asylum seekers to obtain counsel and prepare before the hearing. One commenter asserted that the rule seeks to ‘‘unreasonably shorten’’ asylum seekers’ timeline for finding representation and gathering evidence—both time consuming processes that may require additional steps such as translation or mail services. Another commenter argued that the lack of ‘‘meaningful temporal space’’ between the credible fear determination and the asylum hearing would wrongly favor an efficient administrative process over a reasoned and fair decision of law. Another commenter suggested that provisions to expedite and replace the existing application process would go against congressional intent to identify PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 and protect the rights of genuine asylum seekers to due process. Similarly, another commenter expressed concern that the rule’s silence on the timeline between the credible fear determination and the hearing before an asylum officer may frustrate the statutory right of access to counsel. While the rule would clarify the right to representation during the hearing, some commenters expressed the concern that asylum seekers would not be able to secure counsel in practice. They argued that the time between the credible fear determination and the hearing before an asylum officer is short and would not account for applicants with limited resources and language barriers. Several commenters expressed concern that applicants would encounter difficulties in meeting the evidentiary requirements for the asylum hearing due to trauma, time restraints, detention, and other compounding factors. Specifically, commenters argued that survivors of trauma are often most likely to have trouble gathering sufficient evidence to support their application due to time restraints, the unavailability of documentary evidence and services, intimidation, and unawareness of available resources. One commenter expressed concern that the new credible fear process would not provide enough time for survivors of trauma or torture to recover and adequately prepare for interviews. One commenter claimed that any proposal to amend the rule that overlooks the intersection of trauma and the outcome of an asylum application will ‘‘result in systematic refoulement.’’ Similarly, another commenter argued that some individuals—including those with low levels of literacy, those with language access issues, and those who have suffered from trauma—may require additional time and assistance to complete or amend their applications. Many commenters recommended that the rule ensure meaningful opportunities for asylum seekers to find counsel and gather evidence by establishing an adequate timeline between the credible fear determination and the Asylum Merits interview before an asylum officer. One commenter recommended that the rule should provide a minimum 90-day timeline to submit evidence to USCIS between the credible fear determination and the Asylum Merits interview. Response: The Departments acknowledge concerns raised related to the amount of time provided between service of the positive credible fear determination and the Asylum Merits interview before USCIS. The Departments understand that applicants E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations will need time to review their applications and supporting documentation, consult with representatives, and prepare for their Asylum Merits interview. At the same time, the underlying purpose of the present rule is to make the process more efficient by streamlining proceedings that heretofore have been drawn out for months or even years. To balance the efficiency goals of the present rule with the due process concerns raised by commenters and shared by the Departments, DHS is clarifying at 8 CFR 208.9(a)(1) that there will be a minimum of 21 days between the service of the positive credible fear determination on the applicant and the date of the scheduled Asylum Merits interview. While recognizing that affirmative asylum applicants often spend a greater amount of time preparing their asylum application in advance of filing and have more time inside the United States to procure and consult with counsel, the Departments also must consider that delaying the Asylum Merits interview for any considerable length of time to allow applicants in the Asylum Merits process a similar amount of time would undermine the basic purpose of this rule: To more expeditiously determine whether an individual is eligible or ineligible for asylum. Accordingly, the Departments must weigh the benefits associated with more expeditiously hearing and deciding claims originating in the context of expedited removal and the credible fear screening process with the challenge applicants and representatives may face in preparing for the Asylum Merits interview during a limited time period, including where language barriers and other challenges raised in the comments are present. Thus, after careful consideration, the Departments have determined that a 21day minimum time frame between service of the positive credible fear determination and the Asylum Merits interview is the most reasonable option. This 21-day minimum time frame will strike an appropriate balance between achieving operational efficiency and still ensuring fairness by providing applicants and their representatives time to prepare for the Asylum Merits interview. Comments: Citing research, commenters also suggested that the location of the asylum interview, in addition to the timeline, affects asylum seekers’ ability to gather evidence and find counsel, including where such asylum seekers are survivors of trauma with scarce resources. A commenter suggested that the ability to access counsel and have a legal representative VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 present at the Asylum Merits interview would only be meaningful if the hearing takes place in an accessible location and if the applicants have sufficient opportunity to gather evidence and prepare. Considering the importance of location in assessing due process concerns, one commenter urged the Departments to provide more clarity on the location of the nonadversarial Asylum Merits interviews to ensure meaningful access to legal representation and adequate opportunities to meet evidentiary requirements. A commenter also suggested the rule include a two-hour limit on the distance between the location of the scheduled interview and the applicant’s location and provide an automatic mechanism for changing the location if a person moves within the United States. Another commenter recommended that this rulemaking provide a right to seek a change of venue to avoid the risk of an ‘‘unfair burden’’ on asylum seekers who move after being released from detention. A commenter suggested that the Asylum Merits interview occur with USCIS at the asylum seeker’s initial destination outside of the expedited removal process. Response: The Departments acknowledge the comments related to location of the Asylum Merits interview and potential changes in the location of the interview. Under the present rule, following the positive credible fear determination where the applicant is placed into the Asylum Merits process, the applicant’s interview will be scheduled with the asylum office with jurisdiction over their case. Just like affirmative asylum cases, sometimes the asylum office with jurisdiction over the case may be distant from the applicant’s residence. Unfortunately, because USCIS has limited asylum offices and office space, it would be impossible to always ensure an applicant only has to travel two hours or less to appear at an interview, but USCIS makes every reasonable effort to schedule applicants in a convenient location, including by orchestrating asylum interviews at circuit ride locations (i.e., locations other than an asylum office, such as a USCIS field office, where USCIS conducts asylum interviews) throughout the United States when possible and practicable. As for the comments recommending that the hearing should take place at the asylum applicant’s initial destination outside of the expedited removal process, USCIS agrees that this is the appropriate venue when the applicant has been paroled, and that is why the asylum office with PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 18143 jurisdiction over the applicant’s place of residence following the positive credible fear determination will be the office with jurisdiction over the applicant’s case. Additionally, if an applicant changes residence prior to an Asylum Merits interview and notifies USCIS of the change, just as with an affirmative asylum interview, USCIS will attempt to reschedule the applicant’s interview to occur at the office with jurisdiction over the applicant’s new residence location. USCIS also appreciates the comments related to applicants securing access to counsel for their Asylum Merits interview. Just as with affirmative asylum interviews, USCIS will make reasonable efforts to ensure applicants are scheduled for their Asylum Merits interview in a time and place that ensures their representatives of record can attend and meaningfully participate in the interview. Comments: Some commenters suggested that requests for adjournment or continuances should be assessed more liberally where the delay sought is to find an attorney or gather supporting evidence. One commenter recommended that the rule decouple the proposed definition of ‘‘filing’’ a claim from the time periods specified in the INA, including the 45 days required for initial consideration and 180 days for completion. Response: The Departments acknowledge the comments related to the timeline for applications and potential continuances. The Departments cannot change the statutory procedures governing asylum under INA 208, 8 U.S.C. 1158, including the procedures set out in INA 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A), related to security checks and the general framework indicating that in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence no later than 45 days after the date an application is filed, and in the absence of exceptional circumstances, the administrative adjudication of the application, not including administrative appeal, shall be completed within 180 days of the filing date. Accordingly, it is not within the Departments’ authority to decouple the filing date from the timeline for adjudicating the asylum application. Regarding requests to reschedule, applicants should follow the instructions on the USCIS website and their appointment notices, just as they do with affirmative asylum interviews. Comments: Various commenters expressed concern about time constraints for asylum seekers to amend E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18144 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations or supplement the asylum application. One commenter argued that the 7-day timeline for submitting an amended or supplemented application—10 days if mailed—would be infeasible due to the remote location of many asylum offices and the brief timeline between the interview notice and the scheduled interview. The commenter recommended that the rule impose a requirement that USCIS provide at least six weeks’ notice to applicants prior to the asylum hearing. Response: As mentioned in the response to comments related to what form the application for asylum will take under the new rule and how it may be supplemented or modified, the Departments recognize that the initial credible fear screening determination may potentially include errors or misunderstandings and may not necessarily capture every detail an applicant would like to provide. The Departments agree with commenters that it is important for applicants to be able to modify or supplement their applications for asylum to account for such misunderstandings or errors or to add nuance. However, also as mentioned in the earlier response, the Departments note that modifications or supplements should only take the form of correcting the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or providing additional evidence beyond that collected during the credible fear interview. The credible fear determination and the notes collected by the asylum officer are part of the record of determination and form the basis for establishing a credible fear of persecution or torture, but it would not be practical or possible to expect the applicant to review the entirety of the asylum officer’s notes or the asylum officer’s own work product in making the credible fear determination and make modifications to those items. As further explained in the response to previous comments on the topic of what form amendments may take, in creating a streamlined process, the Departments do not expect the applicant to do a wholesale edit of a credible fear interview, but rather wish to ensure that biographic and basic information about the fear claim is correct, so that the applicant may further develop the claim at the Asylum Merits interview. Accordingly, while the Departments appreciate commenters’ concerns about the time frame under which applicants may be expected to make corrections or provide supplemental evidence, the Departments believe that the provided time frame achieves the best possible balance between allowing applicants VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 sufficient time to present their evidence and achieving a streamlined process. The six-week notice time frame suggested by one commenter would be twice as long as the notice provided to affirmative asylum applicants for their interviews. While the commenter might consider six weeks an ideal time frame to prepare for an asylum interview, it would not be practical or achieve the goals of operational efficiency to wait six weeks for the interview to take place in every case. As mentioned above, however, there will be a minimum time frame between the positive credible fear determination and the Asylum Merits interview of 21 days. Also, as described above, USCIS believes this time frame best reaches the goals of providing applicants in this new process with adequate time to prepare for their Asylum Merits interviews and allowing expeditious adjudications. As for the time frame for submitting additional evidence, USCIS is providing applicants in the Asylum Merits process with evidentiary submission requirements that also reflect that careful balance. It would be impractical for USCIS to require all evidence to be submitted at the credible fear stage, and USCIS recognizes that applicants may need time to collect some additional evidence. Moreover, while the burden of proof is on the applicant to establish eligibility for asylum, as always with any asylum case, documentary evidence is not required to sustain the applicant’s burden of proof in establishing asylum eligibility; testimony alone may be sufficient where it is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. INA 208(b)(1)(B)(i), (ii), 8 U.S.C. 1158(b)(1)(B)(i), (ii). When applicants seek to provide documentary evidence to sustain their burden of proof, USCIS welcomes that evidence but also must place some limit on the time for submission to allow asylum officers to meaningfully engage with the evidence. Asylum officers must review each case file, including the evidence the applicant has submitted in support of the applicant’s claim, sufficiently in advance of the Asylum Merits interview to begin to assess its probative value, conduct additional research if needed, and prepare to elicit testimony from the applicant about such evidence. The Departments agree with commenters that applicants need time to locate and submit such evidence, but asylum officers also need time to review and examine such evidence in advance of the interview if the evidence is to be meaningfully explored. Accordingly, the PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 Departments consider that requiring additional evidence be submitted at least 7 days in advance of the interview if submitted in person, or postmarked 10 days in advance if mailed, is a reasonable time given the various interests at play in setting up such a time frame. While DHS appreciates the specific comment related to the challenge of submitting evidence in person, that is precisely why DHS is allowing an additional 3 days for mailing if evidence is submitted via mail. This time frame allows for asylum offices to receive and properly file the evidence and for asylum officers to review submissions as they prepare for Asylum Merits interviews. This time frame also preserves the time available during the Asylum Merits interview to meaningfully elicit testimony from an applicant and allow representatives time to ask follow-up questions or provide additional statements if needed, instead of taking up that time with the asylum officer’s review of justsubmitted evidence. Notably, this time frame for the Asylum Merits interview is more generous to applicants than the time frame provided at current 8 CFR 208.9, which requires evidence to be submitted at least 14 days in advance of the interview. Given the realities of the COVID–19 pandemic, current operational practice is to require evidence to be submitted 7 days in advance of an affirmative asylum interview if submitted in person, and 10 days if submitted via mail. Moreover, if there is evidence that the applicant was unable to procure during the required time frame and that the applicant believes is highly material or essential to the applicant’s case, the asylum officer has discretion to allow the applicant a brief extension to provide such evidence. Likewise, if an asylum officer identifies a piece of evidence that is essential, such as evidence necessary to establish a derivative relationship for a member of the case, the asylum officer will issue a request for evidence to the applicant and provide a reasonable time to respond. And as mentioned above, documentary evidence is not required to sustain the applicant’s burden of proof in establishing asylum eligibility— testimony alone may be sufficient where it is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. INA 208(b)(1)(B)(i), (ii), 8 U.S.C. 1158(b)(1)(B)(i), (ii). Furthermore, even in cases where the asylum officer determines that the applicant should provide evidence that corroborates otherwise credible testimony, if the applicant does not have the evidence E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations and cannot reasonably obtain the evidence, it is not required to be provided. Id. Thus, even where the applicant may wish to provide additional documentary evidence, but it is not reasonably available in the time frame provided, the applicant may still meet the burden of establishing asylum eligibility. Comments: Several commenters asserted that applicants must be allowed adequate representation when preparing an asylum application; one commenter explained that such representation is necessary to ‘‘make an effective submission’’ while ‘‘meet[ing] the standards of modern corroboration requirements’’ in adjudication. Commenters argued that asylum seekers may not understand what nuances in the record could affect their case due to the complex, politicized, and evolving nature of asylum standards. Therefore, as one commenter asserted, the opportunity to amend or correct the credible fear interview record would only be meaningful if applicants have access to adequate interpretation and legal services. Similarly, another commenter stated that correcting or supplementing a credible fear interview record could be ‘‘difficult or impossible’’ without legal counsel. A commenter added that a lack of resources, poor knowledge of systems, and obstacles associated with detention intensify the need for counsel in the asylum application process. Considering these challenges, the commenter recommended that agencies inform asylum seekers—in their own language—of their right to counsel, to present additional evidence, and to expand the grounds of the asylum claim. Additionally, the commenter recommended that agencies clarify the higher standards at the asylum interview compared with the credible fear interview and provide a contact list of local legal services providers. Response: The Departments acknowledge the comments related to the role of counsel for applicants who are placed in the Asylum Merits interview process. As mentioned above in response to comments about amending or supplementing the application, the Departments do not expect the applicant to conduct a wordby-word, line-by-line review of the asylum officer’s credible fear interview and make corrections to the notes or the asylum officer’s work product. Instead, the Departments would welcome any corrections to the applicant’s biographic information, clarifications the applicant would like to make to the Form I–870, or any additional evidence the applicant would like to provide in support of the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 application. In any event, the Departments agree with commenters that information related to the process in which the applicant is placed and access to counsel are of utmost importance. That is why the Departments plan to ensure that when an individual is placed in the Asylum Merits process, the individual is provided with a fact sheet explaining the process, including the relevant standards, and a contact list of free or low-cost legal service providers similar to that which applicants would receive in section 240 removal proceedings before EOIR. Comments: Many commenters reiterated the challenges asylum seekers experience in obtaining access to adequate counsel and developing their asylum claims, particularly while in detention or during expedited processes. One commenter argued that noncitizens must be given an opportunity to amend their credible-fear interview record with representation because, in the context of detention, DHS is ‘‘not currently capable of carrying out a proper fact-finding proceeding.’’ Another commenter additionally claimed that adequate interpretation and legal services are ‘‘nearly impossible’’ to find when the applicant is detained. A commenter added that the proposed rule only allows for legal representation at no expense to the Government in the application process, compounding difficulties for asylum seekers who are ineligible to apply for employment authorization. Several commenters proposed that the Government fund legal representation programs for asylum seekers in the credible fear and Asylum Merits stages. Additionally, a commenter suggested the rule provide more information on access to counsel, legal orientation programs, and education for pro se applicants and applicants with cognitive, mental, or physical impairments. Response: The Departments acknowledge the comments related to access to counsel while in expedited removal; however, such comments are outside the scope of the present rulemaking, as they relate to the expedited removal process generally. This rulemaking is not altering the expedited removal process itself but rather introducing an alternative procedure for ‘‘further consideration’’ of the asylum claims of individuals who receive a positive credible fear determination. The rule preserves applicants’ ability to retain and access counsel within the new Asylum Merits process before USCIS. Further, while the Departments appreciate comments PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 18145 suggesting the possibility of Government-funded attorneys in the credible fear process and for the asylum application, those comments are also outside the purview of this rulemaking. The Departments agree that it is important to, whenever feasible, provide applicants with information on access to counsel and provide education for pro se applicants. That is why such information, including an advisal of the right to be represented during the interview and of information related to the nature of the interview, is provided to applicants at various stages during the credible fear interview, including during the interview itself. Further, the Departments plan to provide information about the Asylum Merits process, as well as information related to free or low-cost legal service providers, along with service of the positive credible fear determination. The Departments take commenters’ concerns about applicants with cognitive, mental, or physical impairments very seriously. DHS already has a practice of placing individuals in section 240 removal proceedings when they are unable to testify on their own behalf due to possible cognitive or mental impairments, physical disability, or other factors that impede them from effectively testifying in the context of a credible fear interview. In section 240 proceedings, IJs consider whether applicants demonstrate indicia of incompetency and, if so, which safeguards are appropriate. See, e.g., Matter of M–A–M–, 25 I&N Dec. 474 (BIA 2011). Accordingly, applicants with indicia of incompetency will continue to have their claims considered in ordinary section 240 proceedings. Comments: Commenters asserted that the NPRM’s estimated 90-day case completion timeline would be ‘‘unrealistic,’’ ‘‘troubling,’’ and ‘‘could prejudice the rights of asylum seekers.’’ One of these commenters argued that the expedited timeline would affect due process, in part because asylum seekers often have limited resources, physical and emotional needs, and barriers to preparing their cases, including difficulty finding counsel. Similarly, a commenter expressed concern that the proposed rule at 8 CFR 208.3(a)(2) would maintain the 45-day timeline for consideration and 180-day requirement for completion. Another commenter argued that the 45-day timeline for completing adjudications for new arrivals would ‘‘require extraordinary resources,’’ contribute to the USCIS E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18146 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations backlog, and exacerbate due process concerns. Response: The Departments acknowledge commenters’ concerns regarding the timeline of case processing. As mentioned above with respect to the comments related to the processing timeline from positive credible fear determination to Asylum Merits interview, it is not within the Departments’ authority to change the 45-day timeline for interviews and the 180-day timeline for adjudications set by Congress in INA 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A), absent exceptional circumstances. In this IFR, the Departments changed the rule language from that proposed in the NPRM to acknowledge that Asylum Merits decisions would generally be issued within 60 days of service of the positive credible fear determination absent exigent circumstances. See 8 CFR 208.9(e)(2). Comments: A commenter argued that the proposal to remove the application requirement for noncitizens apprehended at the border gives such noncitizens procedural protections not afforded to asylum seekers who already reside in the United States. The commenter opposed the possibility that, under the proposed provisions, asylum seekers with strong ties to the United States would still be required to complete and submit Form I–589 in a timely fashion, while individuals seeking admission at the border would have rights beyond what existing statutes provide. The commenter added that the lack of an asylum application requirement would complicate the review of cases. Response: The Departments acknowledge the comments related to the form of application created by this rule, but the present rule is not eliminating the requirement that there be an application for asylum from the principal applicants in the new process. Instead of affirmatively filing a Form I– 589, as is required for individuals in the United States who have not been placed into section 240 removal proceedings and seek to file for asylum affirmatively before USCIS, or defensively filing a Form I–589, as is required for individuals in the United States who have already been placed into section 240 removal proceedings (either following a positive credible fear determination or otherwise), applicants in the process established by this IFR will be considered to have filed their asylum application in the form of the documented testimony provided under oath to an asylum officer during the credible fear interview and included as part of their positive credible fear VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 determination. 8 CFR 208.3(a). The Departments are streamlining the requirement for individuals who are already in the credible fear process such that the information collected in the credible fear determination itself becomes the basis of an application for asylum. To require such individuals to subsequently submit a paper I–589 asylum application in order to seek asylum would be unnecessarily repetitive. Treating the credible fear determination as the asylum application eliminates duplicative collection of information for individuals who have already been found to have a credible fear of persecution or torture. These individuals are still subject to the oneyear filing deadline and the other statutory bars to filing for asylum, the same requirements to appear for an interview, the same consequences for a failure to appear before USCIS, and the same requirements for EAD eligibility as other applicants. Moreover, the underlying procedures related to attorney participation remain the same as those for affirmative asylum applicants before USCIS. Most fundamentally, the eligibility standards governing adjudication of asylum applications are identical for applicants in the new process as they are for affirmative asylum applicants. In addition, the Departments will provide ample procedural safeguards to noncitizens throughout the new process established in this rule, including in the Asylum Merits interview itself, such as the following: (1) A verbatim transcript of the interview will be included in any referral package to the immigration judge, 8 CFR 208.9(f)(2); (2) an asylum officer will arrange for the assistance of an interpreter if the applicant is unable to proceed effectively in English, and if an interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for the purpose of eligibility for employment authorization, 8 CFR 208.9(g)(2); and (3) an asylum officer will, when not granting asylum, also consider an applicant’s eligibility for statutory withholding of removal or CAT protection within the context of the Asylum Merits interview. Thus, if the asylum application is not approved, the asylum officer will determine whether the noncitizen is eligible for statutory withholding or CAT protection under 8 CFR 208.16(b) or (c). See 8 CFR 208.16(a), 208.17(a). Even if the asylum officer determines that the applicant has established eligibility for statutory withholding of removal or CAT protection, the asylum officer shall proceed with referring the asylum application to the IJ for a hearing PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 pursuant to 8 CFR 208.14(c)(1). See 8 CFR 208.16(a). The Departments acknowledge the commenter’s concern about appellate review. As indicated above, this rulemaking does not eliminate the application requirement for principal asylum applicants. Rather, it changes the form of application for those individuals who receive a positive credible fear determination. As is the case for BIA review of asylum claims originating in the affirmative asylum process before USCIS, where an applicant has filed a Form I–589, the records created and evidence considered by asylum officers and IJs under the new process will go well beyond the application itself to include the testimony of the principal and derivative applicants, the results of background, identity, and security checks, and identity documents. They may also include affidavits and testimony from witnesses, country of origin information, civil documents, law enforcement records, medical records, court documents, and numerous other forms of evidence. By the time a case reaches the BIA, a robust record is available for the Board’s consideration, only a small portion of which is the asylum application itself. Therefore, the Departments are confident that the records created before USCIS and IJs will enable the BIA to conduct a proper review under the appropriate legal standards of any cases on appeal arising out of the new processes created by this rulemaking. e. Other Comments on Proposed Provisions on Applications for Asylum Comments: A commenter supported the proposed change to allow the Asylum Office to rely on biometric information collected during the expedited removal process rather than requiring covered noncitizens to report to an Application Support Center (‘‘ASC’’) for new fingerprinting. The commenter reasoned that elimination of duplicative biometric collection prevents asylum seekers from having to take time off from work or find childcare, and eliminates the risk for adverse consequences (e.g., stopping the asylum EAD clock or failure to appear at an ASC appointment). The commenter went on to state that the Government would also save time and money by not requiring the capture of biometric data that DHS has already collected previously. Response: The Departments acknowledge the commenter’s support for using the biometrics already captured during the expedited removal process for the asylum application, for E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations the reasons outlined by the commenter. It is these very concerns expressed by the commenter that weighed in favor of allowing DHS to use the biometrics already captured in the expedited removal process for purposes of the asylum application as well. USCIS may still have to require applicants to attend an ASC appointment or otherwise obtain their biometrics in support of the asylum application following a positive credible fear determination but is working to obtain the ability to reuse the biometrics already captured by other DHS entities for the asylum application before USCIS. Comments: One commenter believed that, because the asylum applicant has the right to seek review of an asylum officer’s decision not to grant asylum before an IJ, all denied claims will end up in our judicial system. Moreover, the commenter stated, because the rule seeks to reduce the immigration court backlog, adjudicators will be instructed to approve or grant asylum claims of individuals arriving at the border. Response: The Departments disagree that the rule’s aim to reduce the immigration court backlog sends signals to adjudicators that they must grant non-meritorious cases. Each adjudication is based on specific, individualized facts, and, in the case of asylum, the grant of asylum status further requires not only a finding of substantive eligibility, but also a favorable exercise of discretion. If an asylum officer does not grant asylum, the noncitizen will be placed into streamlined section 240 removal proceedings. After being placed in streamlined removal proceedings and having the asylum claim reviewed de novo by the IJ, if the IJ denies asylum, the noncitizen may (as now in ordinary section 240 proceedings) appeal the IJ’s decision to the BIA. And, as with BIA decisions in ordinary section 240 proceedings, the noncitizen may then seek judicial review before the appropriate U.S. Court of Appeals. See INA 242(a), 8 U.S.C. 1252(a). Judicial review serves as an important mechanism to ensure fairness and due process. Further, this rule leaves in place the statutory process by which the cases of noncitizens determined to have no credible fear of persecution or torture are resolved quickly, and creates a framework that also allows clearly grantable asylum cases to also be resolved quickly. Nevertheless, nothing in the rule suggests or requires that complex cases will be rushed or essential parts of the analysis or required vetting and security checks will be ignored, as there are no changes to substantive asylum eligibility. The VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Departments recognize that some cases may take longer to complete due to, for instance, particularly complex issues. 5. Adjudication of Applications for Asylum for Noncitizens With Credible Fear a. DHS Interpretation of Statute in Creating a New Adjudication Process Comments: A commenter expressed concern with the NPRM’s proposal to authorize asylum officers to issue removal orders, including in cases where an asylum-seeker fails to appear for a merits hearing before USCIS. The commenter contends that this new authority would put asylum officers in an enforcement-oriented or adversarial role, which could undermine the nonadversarial proceeding. The commenter asked that ICE or IJs instead be tasked with issuing removal orders. Furthermore, the commenter stated that an applicant who may have missed a hearing inadvertently should have an opportunity to remedy the situation before a removal order is issued. The commenter urged the Government to consider nonadversarial first-instance asylum hearings in a context that corresponds with international standards on detention and affords asylum-seekers sufficient time and opportunity to recover from trauma, gather information about their cases, and have access to legal advice, assistance, and representation. Response: The Departments have carefully considered the comments received in response to the NPRM regarding an asylum officer’s authority to issue a removal order. As discussed elsewhere, the Departments have decided not to adopt that proposal. Instead, under the IFR, an asylum officer will issue an NTA when not granting an application for asylum and refer the case for streamlined section 240 proceedings before an IJ. Given this choice of process in the IFR, the Departments find it is unnecessary to further respond to the comments regarding an asylum officer’s authority to issue a removal order, as the Departments believe the concerns of those comments are now addressed. b. Review of Asylum Claim by an Asylum Officer, Rather Than by an Immigration Judge, in Section 240 Removal Proceedings Comments: Several commenters expressed support for the proposal to have asylum officers adjudicate asylum applications in the first instance, noting that asylum officers are trained in assessing country conditions, conducting interviews, and handling PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 18147 sensitive information. One commenter stated that having USCIS adjudicate asylum applications would allow for a fast yet equitable process. One commenter noted that the proposed process would encourage asylum seekers to speak openly about their fears, and stated that asylum officers are better equipped than IJs to adjudicate protection-related claims. Another commenter asked DHS to clarify what types of trainings will be offered to asylum officers and suggested such training should emphasize cultural competence. Response: The Departments agree that a nonadversarial process is well-suited to adjudicating claims for asylum and related protection. The Departments concur with commenters who make specific reference to the trainings that all asylum officers undergo before they may work with vulnerable populations. The Departments note that asylum officers are trained in asylum and refugee law, interviewing techniques, country of origin information, decisionmaking, interviewing survivors of torture, fraud identification and evaluation techniques, and addressing national security concerns. See e.g., USCIS, Asylum Division Training Programs, https://www.uscis.gov/ humanitarian/refugees-and-asylum/ asylum/asylum-division-trainingprograms. Cultural competence is an integral part of many of these trainings, and the Departments acknowledge the commenter’s suggestion that trainings should emphasize this skill. Comments: Many commenters opposed the proposal to have asylum officers adjudicate asylum applications in the first instance, generally stating that only IJs should grant asylum. Other commenters argued that only IJs have the requisite training or that claims should not be adjudicated by ‘‘bureaucrats.’’ One commenter remarked that the proposal to have asylum officers adjudicate asylum claims would introduce the potential of ‘‘political abuse,’’ and some commenters argued that asylum claim adjudication must be conducted by IJs to prevent undue bias or corruption. A few form letter campaigns expressed concern that the proposal would make asylum officers ‘‘the most powerful immigration officials in the country.’’ One commenter expressed concern that the proposal would circumvent the careful analysis asylum applications demand and recommended increasing funding and hiring additional IJs to process the immigration backlog. Another commenter opposed allowing asylum officers to adjudicate asylum claims and suggested Federal judges should be E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18148 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations placed in courts near the border to handle asylum claims expediently. A commenter asked how DHS will ensure that only qualified asylum officers will adjudicate asylum claims and remarked that such qualifications are part of the legal definition of an IJ. Response: The Departments strongly disagree with statements asserting or suggesting that asylum officers, who are career Government employees selected based on merit as explained earlier in Section IV.B.2.a of this preamble, are biased or otherwise politically motivated. As noted above in Section III.C of this preamble, USCIS asylum officers already must undergo ‘‘special training in international human rights law, nonadversarial interview techniques, and other relevant national and international refugee laws and principles.’’ 8 CFR 208.1(b). USCIS asylum officers already adjudicate asylum applications as part of their duties, and this fact will not be affected by the rule. Also, as noted above in Section IV.B.2.a of this preamble, no individual may be granted asylum or withholding of removal until certain vetting and identity checks have been conducted. INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). Additionally, while the Departments believe that commenters’ statements are grounded in misinformation, the Departments also note that Government officials are entitled to the presumption of official regularity in the manner in which they conduct their duties. United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926). Commenters failed to provide any examples of what they incorrectly posit to be concerns with bureaucratic ‘‘power[ ]’’ or bias on part of asylum officers. The Departments believe that such concerns stem from a fundamental misunderstanding of the United States’ immigration system as well as the respective roles of IJs and asylum officers. Additionally, the comments lack any meaningful explanation or evidentiary basis; such baseless accusations against public officials are ‘‘easy to allege and hard to disprove.’’ Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (quotation marks omitted); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (requiring the production of evidence rather than ‘‘bare suspicion’’ that ‘‘responsible officials acted negligently or otherwise improperly in the performance of their duties’’). Comments: Referencing the NPRM’s preamble, several commenters stated that the prior Administration’s border strategy has led to a significant increase in the number of backlogged asylum cases. These commenters stated that VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 authorizing border cases to be handled not only by immigration courts but also by the USCIS Asylum Division will increase efficiency by eliminating redundancy. These commenters stated that permitting asylum officers to maintain jurisdiction throughout the life of a case capitalizes on the work and time already invested in each case during credible fear screenings, which will alleviate pressure on the immigration courts and eventually lead to a much more efficient immigration system. Other commenters likewise supported the proposed rule and stated that, while the number of IJs has doubled, the number of pending cases has tripled and outstripped the hiring of IJs. These commenters also stated that the immigration procedures contemplated in IIRIRA are inadequate for the number of applicants now seeking asylum in the United States. Two commenters stated that IJs can adjudicate asylum cases efficiently but that they must be provided more resources. A commenter indicated that there is no evidence that asylum officer interviews are more efficient than IJ adjudications. The commenter added that backlogs may in fact expand as a result of reallocating funding to cases under the proposed system, stating that the asylum offices do not have room for the proposed additional hires and that asylum officers may leave their jobs. The commenter stated that asylum officers typically conduct only two interviews a day while IJs conduct multiple hearings and that the latter are more efficient because IJs and counsel are more competent in immigration law. A commenter agreed that the proposed rule would extend the backlog by extending the appeals process for asylum seekers. Another commenter stated that the proposed rule could not seriously address backlogs because credible fear determinations and asylum applications only make up a small portion of immigration court dockets. A commenter also expressed doubt that the new process would alleviate backlogs because of startup costs for the new process. However, two commenters stated that, under the current system, outcomes of an asylum case can depend almost as much on luck as on the merits of an asylum application. The commenters cited a source indicating that approval rates by individual IJs can vary from 0.9 percent of all cases to 96.7 percent. One of the commenters stated that such disparity causes unnecessary stress for individuals and also indicates the absence of clear, uniform standards used by IJs to adjudicate cases. The PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 commenter stated that, conversely, the Asylum Division uses rigorous quality assurance processes and requires supervisory review of all cases and similar statutory definitions and policy guidance used by refugee officers in USCIS will also be applied to the work of asylum officers. The commenter concluded by stating that, under the new rule, the unpredictability and variance that characterize the current immigration court system will be replaced by greater consistency and clarity in the decision-making process across all asylum offices. Other commenters asserted that the rule would not create a more expeditious process and that limiting the rights of asylum seekers in expedited removal would better streamline immigration. Commenters also stated that it would be problematic for asylum seekers to have the right to an attorney but not to grant ‘‘the American people’’ the ‘‘right to be represented by an ICE attorney.’’ Response: The Departments agree that allowing USCIS to adjudicate these cases will alleviate pressure on the immigration courts and eventually lead to a much more efficient immigration system. Further, the Departments understand comments relating to reallocation of resources affecting the backlog of cases, the hiring, potential loss, and retention of asylum officers, and concerns for delay as the USCIS Asylum Division takes on this new caseload. It is on this basis that the Departments are phasing in implementation of this rule. The graduated steps involved will allow for the Departments to address concerns that arise and learn how implementation can be better operationalized. In comparing adjudications between USCIS and IJs, the specialized role of asylum officers coupled with ownership of a case from screening to adjudication allows for efficiency gains. Further, the USCIS Asylum Division has steps in place to ensure consistency in adjudications, and safeguards will continue as USCIS adjudicates applications pursuant to this rule. The Departments disagree that an adversarial process is required to adjudicate the merits of an asylum application. However, as noted above in Section III.D of this preamble, this IFR will provide for a streamlined section 240 removal proceeding in the event that an asylum officer does not grant asylum. The United States Government will be represented by ICE in those adversarial proceedings in accordance with 6 U.S.C. 252(c). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations c. Requirements for USCIS Asylum Merits Adjudication Comments: A commenter expressed concern that the procedural safeguards for hearings before asylum officers will fall short of due process requirements. The commenter suggested that all procedural safeguards available in immigration court proceedings be included in hearings before an asylum officer to ensure fairness. Meanwhile, another commenter stated that the provisions of 8 CFR 208.9(d) alone would not violate the due process rights of noncitizens, citing the right to a de novo hearing in immigration courts under proposed § 1003.48(e)(1). The commenter cautioned, however, that the combination of 8 CFR 208.9(d) and 1003.48(e)(1) will deny noncitizens the chance to explain the circumstances of their persecution or well-founded fear of persecution in a complete and orderly way, and that the rule is inconsistent with 8 U.S.C. 1229(a)(4)(b) and due process guaranteed by the Fifth Amendment. Another commenter recommended asylum officers be required to introduce relevant country-conditions evidence— including evidence on gender-based violence, gang violence, and any recognized efforts to combat the aforementioned—when the applicant has not presented such evidence during the hearing before an asylum officer. Similarly, another commenter explained that having more complete knowledge of a country’s conditions would allow asylum officers to properly elicit full testimony from asylum seekers. One commenter suggested additional procedural safeguards to promote ‘‘a less traumatic procedure,’’ such as trauma survivors being given an opportunity to request interviewers of a specific gender. Response: The Departments acknowledge the concerns of the commenters regarding the procedural safeguards in Asylum Merits interviews before USCIS asylum officers and disagree that such safeguards will fall short of due process requirements. As explained earlier in this IFR, the Departments are making several modifications to the process proposed in the NPRM in response to comments, including referring noncitizens who are not granted asylum by an asylum officer to an IJ for streamlined section 240 removal proceedings. DHS will provide ample procedural safeguards to noncitizens throughout the Asylum Merits process, including in the Asylum Merits interview itself, such as the following: (1) The applicant may have counsel or a representative present, may VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 present witnesses, and may submit affidavits of witnesses and other evidence, 8 CFR 208.9(b); (2) the applicant or applicant’s representative will have an opportunity to make a statement or comment on the evidence presented, and the representative will also have the opportunity to ask followup questions, 8 CFR 208.9(d)(1); (3) a verbatim transcript of the interview will be included in any referral package to the IJ, 8 CFR 208.9(f)(2); (4) an asylum officer will arrange for the assistance of an interpreter if the applicant is unable to proceed effectively in English, and if an interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for the purposes of eligibility for employment authorization, 8 CFR 208.9(g)(2); and (5) the failure of a noncitizen to appear for an interview may result in the referral of the noncitizen to ordinary section 240 removal proceedings before an IJ, unless USCIS, in its own discretion, excuses the failure to appear, see 8 CFR 208.10(b)(1). Furthermore, as explained earlier, if an asylum officer does not grant asylum to an applicant, the asylum officer will determine whether the applicant is eligible for statutory withholding and CAT protection before referring the case to streamlined section 240 removal proceedings before an IJ. The Departments believe that these procedures will give applicants a fair opportunity to present their claims, as well as have their claims heard and properly decided in an efficient manner. As for requiring asylum officers to introduce country conditions evidence, the Departments decline to impose such a requirement. Asylum officers receive extensive country conditions training, have ready access to country conditions experts, and regularly consider country conditions when making decisions as a matter of course. In addition, current affirmative asylum interview procedures allow for applicants to request interviewers of a specific gender. These same procedures will apply in the context of Asylum Merits interviews. Comments: Several commenters requested clarifications and modifications to procedures for merits hearings before asylum officers, including opportunities to present details and evidence pertaining to the case. A commenter explained that communication plays a crucial role in the interview process and asserted that the rule does not provide sufficient opportunity for legal advocates to call witnesses, present additional information, or prompt their clients to speak on their own behalf. Some commenters argued that the NPRM empowers asylum officers to present PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 18149 evidence, but does not allow applicants or their counsels to frame and present their cases, or to examine or challenge any evidence introduced. Likewise, one commenter remarked that the structure of the hearing before asylum officers reverses the ‘‘normal order of adjudication,’’ thus giving minimal opportunity to asylum seekers, who have the ‘‘burden of proof,’’ to make statements and be directly examined. Several commenters asserted that asylum officers provide limited to no opportunity for counsel to crossexamine applicants and present witness testimonies during interviews, which causes stress to applicants and limits the protections otherwise provided to them in section 240 removal proceedings. A few commenters asserted that limiting counsel’s ability to make a statement or ask questions would jeopardize due process rights and reduce counsel’s ability to properly advocate for the asylum seeker. Several commenters stated that more robust and meaningful participation by counsel during the hearing would help address the due process concerns arising from the revised provisions in 8 CFR 208.9, while reducing confusion or the need for appeals. Some commenters proposed that the rule include at least one continuance for the purpose of seeking counsel to advance equity within the adjudication process. Several commenters asserted that without access to counsel, asylum seekers would lack meaningful representation necessary for a successful hearing. Some commenters recommended that 8 CFR 208.9 be revised to allow representatives to make an opening statement, elicit testimony from the applicant during the hearing, and provide a closing statement. Similarly, from an efficiency and due process standpoint, a commenter recommended that the asylum seeker’s counsel—rather than an asylum officer with limited time to review ‘‘the often voluminous case file’’—ask questions during the hearing. The commenter suggested that 8 CFR 208.9(d) be further amended to provide that the representative will also have the opportunity to ask follow-up questions during the interview or hearing. One commenter urged USCIS to consider consulting with lawyers who appear in immigration courts to receive feedback on the effects of the rule. Response: The Departments acknowledge the concerns of the commenters regarding procedures for USCIS Asylum Merits adjudication, including the role of counsel in Asylum Merits interviews. As provided in 8 CFR 208.9(b), the purpose of the Asylum Merits interview will be to elicit all E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18150 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations relevant and useful information bearing on the applicant’s eligibility for asylum. USCIS asylum officers have experience with (and receive extensive training on) eliciting testimony from applicants and witnesses, engaging with counsel, and providing applicants the opportunity to present, in their own words, information bearing on eligibility for asylum. Asylum officers also are trained to give applicants the opportunity to provide additional information that may not already be in the record so that the asylum officer has a complete understanding of the events that form the basis for the application. Noncitizens who are placed in the Asylum Merits process will have multiple opportunities to provide information relevant to their claims before USCIS asylum officers in nonadversarial settings, as well as the opportunity for an IJ to review or consider their claims. If an IJ ultimately denies protection to an applicant, BIA review will be available. Within the context of Asylum Merits interviews, noncitizens retain the ability to access and secure counsel. See 8 CFR 208.9(b). As in the affirmative asylum interview context, USCIS will make every reasonable effort to ensure applicants are scheduled for their hearing in a time and place that ensures their representatives of record can attend and meaningfully participate in their interview. Applicants may request rescheduling of Asylum Merits interviews by following the instructions set forth on the USCIS website and in appointment notices. At the Asylum Merits interview, the applicant may present witnesses and may submit affidavits and other evidence. See id. At the completion of the Asylum Merits interview, 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. See 8 CFR 208.9(d)(1). The Departments recognize the importance of the role of counsel in advising and assisting noncitizens with presenting their claims and believe that this rule provides counsel the opportunity to do so within the context of Asylum Merits interviews. As a result, the Departments decline to make further changes in response to these comments. As for the suggestion to consult with legal practitioners appearing before the immigrant courts, the Departments note that the NPRM provided the opportunity for any and all members of the public, including legal practitioners, to offer feedback on the rule, and in this VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 IFR the Departments are including another request for public comments. Comments: Citing the impact of legal representation on asylum case outcomes, a commenter indicated that the NPRM increases access to legal representation. The commenter noted that the NPRM allows representatives with DOJ EOIR accreditation, including individuals with partial accreditation, to represent clients seeking statutory withholding of removal and CAT protection before USCIS. The commenter noted that by allowing statutory withholding of removal and CAT protection claims to proceed before USCIS, applicants would have greater access to free or low-cost legal representation from DOJ-accredited representatives. Another commenter recommended that the rule permit USCIS to appoint counsel in cases where counsel is needed, allow asylum seekers and their counsel to record objections and request the record reflect nonverbal activity, and create a procedure to report misconduct following hearings before asylum officers in the event that asylum officers mishandle such hearings. Response: The Departments acknowledge the feedback on the impact that the rule may have on access to legal representation. Given the Departments’ decision to have asylum officers issue final decisions solely as to the asylum claims, rather than also issuing final decisions regarding statutory withholding and CAT protection claims as proposed in the NPRM or otherwise issuing removal orders, the commenter’s note about individuals with partial accreditation is no longer relevant. While the Departments appreciate comments suggesting that USCIS appoint counsel to noncitizens in certain instances, those comments are outside the purview of this rulemaking. The Departments note that asylum seekers and counsel will have the opportunity to make a statement or comment on the evidence presented at Asylum Merits interviews, which may include raising objections and requesting that the record reflect nonverbal activity. As for reporting asylum officer misconduct, USCIS will follow existing agency-wide procedures on receiving and responding to complaints and misconduct, which are available on the USCIS website. Comments: Several commenters expressed support for the provision in the NPRM requiring asylum officers to record and transcribe hearings. A commenter noted that the provision allows noncitizens to receive a recording and transcript of their hearing before an asylum officer, which they PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 believe would place the noncitizen on equal footing with the DHS attorney. Some commenters added that the recordings and transcriptions of hearings would allow for accurate documentation of the proceedings and align with transparency and accessibility priorities. One commenter requested that DHS also clarify how asylum seekers will be able to access their hearing transcripts because it would allow noncitizens to determine whether they require help from counsel. The commenter also asked that the Departments address the possibility of widening the scope of the provision so that asylum seekers may access transcripts from IJ proceedings. Another commenter expressed concern about the inability of records to capture nonverbal cues and reactions during the hearing. This commenter suggested that a human communications specialist be consulted to determine how to incorporate non-verbal cues into hearing records. One commenter noted that the requirement to record or transcribe the hearing may not be feasible and argued that this requirement would pose challenges for IJs conducting de novo reviews of hearings before asylum officers. Another commenter similarly urged USCIS to clarify how the review of hearing records would be conducted and the impact on the due process rights of asylum seekers. The commenter stated that full recordings of hearings would be hours long and claimed that generating transcripts would lengthen the time needed to issue decisions. Considering these issues, the commenter recommended that USCIS identify who would be reviewing the records and determine whether asylum officers would take notes in conjunction with the hearing recordings. Another commenter suggested that all interviews, regardless of their nature, be recorded. They specified that all questions and answers be documented in the language they were initially spoken in and later interpreted. The commenter also recommended that the Departments provide adjudication documents in the asylum seeker’s language, and that, in the case of literacy limitations, an interpreter read the records to an asylum seeker. Finally, in cases where the asylum seeker is detained, the commenter recommended the agencies ensure privacy to review the records. Response: The Departments acknowledge the support for recording and transcribing Asylum Merits interviews. The Asylum Merits interview will be recorded so that a transcript of the interview can be E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 created. A verbatim transcript of the interview will be included in the referral package to the IJ. See 8 CFR 208.9(f)(2). A copy of that transcript will also be provided to the noncitizen. In addition, asylum officers will take notes during Asylum Merits interviews. As for nonverbal cues or reactions, asylum officers may make note of such matters as appropriate.76 The Departments do not anticipate that these procedures will lead to significant delays in the adjudication of the noncitizen’s asylum claim before USCIS. The Departments recognize one commenter’s concern that there may be logistical challenges associated with implementing recording or transcription of interviews before asylum officers. However, the Departments are taking a phased approach to implementation in part to address this concern. The rule does make changes to long-standing practices, and as implementation progresses, the Departments will work to ameliorate any challenges that arise as the process is put into practice. Also, allowing for robust independent review of asylum officers’ decisions to not grant asylum is an important feature that ensures administrative fairness over and above due process minimums. In addition, USCIS will arrange for an interpreter when an applicant is unable to proceed with an Asylum Merits interview in English, and if an interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for the purposes of eligibility for employment authorization. See 8 CFR 208.9(g)(2). At the Asylum Merits interview, the asylum officer will provide information about the hearing to the applicant, which will be interpreted for the applicant. While the Departments acknowledge the recommendation that questions and answers be documented in the language in which they were initially spoken and that adjudication documents be provided in the language spoken by the applicant, the Departments note that Asylum Merits interviews will be recorded and transcribed, and that notice of decisions will be provided to applicants in writing. The Departments believe that these various procedural safeguards sufficiently allow for applicants to access their Asylum Merits interview records and remain informed of the reasons for any decisions not to grant asylum. Thus, further 76 Asylum officers conducting Asylum Merits interviews will continue to follow the guidance on note-taking they receive during their basic training. See USCIS, RAIO Combined Training Program: Note-Taking Training Module (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/ foia/Interviewing_-_Note_Taking_LP_RAIO.pdf. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 documentation or explanation requirements are not warranted in this IFR. The comments recommending that DHS arrange a private setting for detained individuals to review their records fall outside of the scope of this rulemaking, and thus are not being addressed. The Departments believe that receipt of the transcript from the asylum officer’s Asylum Merits interview will benefit the IJ and the noncitizen by providing a clear, precise, and accurate record of the basis for the adjudication. The Departments acknowledge the suggestion related to widening the scope of availability of transcripts from proceedings before IJs; however, this suggestion is beyond the scope of this IFR. Upon appeal of a decision by an IJ to the BIA, the hearing, where appropriate, is transcribed by the BIA and sent to both parties. See EOIR Policy Manual, Part II, Ch. 4.10(b), Part III, Ch. 4.2(f). Further, immigration hearings before the IJ are recorded. See 8 CFR 1240.9. If either party would like a recording of the proceedings before the IJ, an audio recording is available by making arrangements with the immigration court staff. See EOIR Policy Manual, Part II, Ch. 4.10(a). Comments: Several commenters expressed support for the provision in the NPRM at 8 CFR 208.9(g) that would require USCIS to provide an interpreter for the hearing before an asylum officer, reasoning that such a requirement would promote fairness and accuracy in adjudication. Conversely, one commenter expressed concern that the provision in the NPRM, paired with other provisions in the NPRM, would ‘‘disproportionately harm vulnerable, minority populations’’ in the event that an Asylum Office cannot find an interpreter. Some commenters asserted that language barriers would result in mistakes in the record and complicate the appeal process. To address language access concerns, two commenters suggested this provision be extended to all asylum officer interviews, with some changes. The commenters suggested the agency provide specifications of the interpreter’s qualifications and make Government-provided interpretation non-obligatory, asserting that these modifications would enhance asylum applicants’ access to competent interpretation during the hearing. One commenter, in support of the use of interpreters during hearings before asylum officers, urged USCIS to implement additional safeguards to combat the systemic problems associated with language access. The commenter suggested that the safeguards include a mandate for PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 18151 interpretation throughout the full hearing in the asylum seeker’s native language and incorporate specifications on the use of telephonic and video interpretations, and suggested that telephonic and video interpretation be used in cases where no qualified inperson interpreter is available. A commenter also suggested that the rule require everything said in any language during the interview process be part of the record to curtail the possibility of error and omission. Lastly, the commenter recommended a routine screening of interpreters to ensure consistency and accuracy in hearing records. Response: As explained earlier, USCIS will provide an interpreter for Asylum Merits interviews when an applicant is unable to proceed with the hearing in English, and if an interpreter is unavailable, USCIS will attribute any resulting delay to USCIS for the purposes of eligibility for employment authorization. See 8 CFR 208.9(g)(2). The Departments acknowledge the commenters’ support for the provision and disagree with the commenters who assert that this requirement will disproportionately harm vulnerable, minority populations. USCIS has existing contracts with telephonic interpreters to provide interpretation for credible fear screening and affirmative asylum interviews, and thus has extensive experience providing contract interpreter services. Per contractual requirements, the USCIS contract interpreters are carefully vetted and tested. They must pass rigorous background checks as well as demonstrate fluency in reading and speaking English as well as the language of interpretation. The USCIS contractor must test and certify the proficiency of each interpreter as part of their quality control plan. The USCIS contractor also must provide interpreters capable of accurately interpreting the intended meaning of statements made by the asylum officer, applicant, representative, and witnesses during interviews or hearings. The USCIS contractor will provide interpreters who are fluent in reading and speaking English and one or more other languages. The one exception to the English fluency requirement involves the use of relay interpreters in limited circumstances at USCIS’s discretion. A relay interpreter is used when an interpreter does not speak both English and the language the applicant speaks, such as a rare language or dialect. In addition, USCIS contractorprovided telephonic interpreters must be at least 18 years of age and pass a security and background investigation E:\FR\FM\29MRR2.SGM 29MRR2 18152 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 by the USCIS Office of Security and Integrity. They cannot be the applicant’s attorney or representative of record; a witness testifying on the applicant’s behalf; a representative or employee of the applicant’s country of nationality or, if stateless, the applicant’s country of last habitual residence; a person who prepares an Application for Asylum and for Withholding of Removal or Refugee/ Asylee Petition for a fee, or who works for such a preparer or attorney; or a person with a close relationship to the applicant, as deemed by the Asylum Office, such as a family member. All contract interpreters must be located within the United States and its territories (i.e., Puerto Rico, Guam, etc.). Additionally, under the International Religious Freedom Act of 1998, USCIS must ensure that ‘‘persons with potential biases against individuals on the grounds of religion, race, nationality, membership in a particular social group, or political opinion . . . shall not in any manner be used to interpret conversations between aliens and inspection or asylum officers.’’ 22 U.S.C. 6473(a). In light of these requirements, the Departments are confident that USCIS will be able to ensure that communication among all parties is clear and accurate. The Departments acknowledge that current interpreter contracts cannot absorb the expected increase in the need for interpretation services. DHS anticipates that it will need to both increase funding on existing contracts and procure new contracts for interpretation services. As a result of this IFR, the need for interpretation services will increase as the number of Asylum Merits interviews USCIS performs rises, which is further discussed in Section VI of this preamble. DHS declines to make modifications in this rule related to the commenters’ recommendation to extend the USCIS-provided interpreter provision to all asylum interviews before USCIS as changes to USCIS’s affirmative asylum process are outside the scope of this rulemaking.77 77 On September 17, 2021, DHS published a temporary final rule that extends and modifies the requirement for certain asylum applicants to use a USCIS-provided telephonic contract interpreter to keep the USCIS workforce and applicants safe during the COVID–19 public health emergency. See Asylum Interview Interpreter Requirement Modification Due to COVID–19, 86 FR 51781 (Sept. 17, 2021). The rule is effective until March 16, 2023. See 87 FR 14757 (Mar. 16, 2022) (extending temporary final rule); see also 85 FR 59655 (Sept. 23, 2020) (original temporary final rule); 86 FR 15072 (Mar. 22, 2021) (first extension of temporary final rule). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 d. Failure To Appear Comments: Various commenters opposed the proposed revisions that would allow an asylum officer to issue an order of removal when a noncitizen fails to appear for a scheduled hearing. Some of these commenters asserted that there are many reasons an asylum seeker might miss an interview that are not reasonably attributable to the applicant. Other commenters opposed this aspect of the proposal, arguing that the proposed rule offers fewer protections for asylum seekers than provided by the regulations governing in-absentia removal hearings before an IJ. Commenters argued that, unlike in section 240 removal proceedings, the proposed regulation does not contemplate safeguards to ensure that the asylum officer has provided the required evidence of inadmissibility and correctly issued the removal order. Because DHS is required to establish ‘‘by clear, unequivocal, and convincing evidence’’ that the noncitizen is removable and received written notice of the time and place of proceedings before a judge will issue an in-absentia removal order, these commenters asserted that the proposed rule requires the asylum officer to act as both the adjudicator and the prosecutor when it comes to issuing the removal order. These commenters opposed this aspect of the proposal because the proposed regulations do not include a process through which the noncitizen would seek rescission and reopening after receiving an in-absentia removal order from an asylum officer. Finally, other commenters opposed this part of the proposal because it does not include a provision that requires heightened notice of asylum hearings for children under 14, as exists in the regulations governing section 240 removal proceedings. Some commenters expressed concern about this aspect of the proposal because it would permit an asylum officer to issue a removal order without previously issuing a notice of failure to appear, which one of these commenters stated would provide an important safeguard preventing the issuance of a removal order against an individual who did not attend their hearing through no fault of their own. Commenters asserted that the agencies did not provide any rationale for the decision not to provide notice to asylum seekers of their failure to appear and that this lack of notice of failure to appear offends due process. Also expressing due process concerns, a commenter suggested that the final rule must establish clear and fair notice procedures before any removal order is PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 allowed. For example, the commenter expressed concern that the proposed rule does not have a requirement that the asylum officer issue a notice of further consideration hearing that would be comparable to the procedure under current 8 CFR 208.30(f), under which the officer issues an NTA for full consideration of the asylum and withholding of removal claims in section 240 removal proceedings. Asserting that due process requires notice and an opportunity to be heard, commenters argued that the proposed regulation would violate due process by not providing an effective remedy for lack of notice and providing only a discretionary opportunity to be heard. While acknowledging that the proposed rule would provide that USCIS may excuse the failure to appear if the applicant demonstrated ‘‘exceptional circumstances,’’ the commenter argued that it is unclear whether this language would permit USCIS to rescind a removal order that had already been issued. Moreover, the commenter stated that this language keeps the decision to excuse the failure to appear entirely discretionary, unlike the statutory right to petition the immigration court to reopen in section 240 proceedings. Nor would this language, according to the commenter, provide applicants with a right to petition for reopening their cases due to lack of notice, a right they would have in section 240 removal proceedings. One commenter argued that granting asylum officers authority to issue inabsentia removal orders as proposed would violate asylum seekers’ due process rights, citing uncertainties surrounding reasonable access to legal representation in the proposed rule and the extreme consequences of an inabsentia removal order. Citing due process concerns, another commenter objected to this aspect of the proposed rule because it would not provide a mechanism for requesting postponement, aside from the discretionary ‘‘brief extension of time’’ or for requesting a change of venue. A commenter expressed concern that the proposed rule provides authority to issue a removal order for failing to appear for biometrics appointments without incorporating the limited safeguards required for in-absentia orders of removal by IJs. Commenters recommended that the final rule include, either directly or by reference, the same or higher protections as an individual would receive in immigration court proceedings. A commenter suggested that, if the final rule adopts the NPRM’s proposal, it should include provisions E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 that allow applicants to ask USCIS to rescind the removal order and reopen their cases where the applicant can show a due process violation or exceptional circumstances that excuse a failure to appear. Instead of allowing asylum officers to issue in-absentia removal orders, a commenter urged the Departments to require that cases be referred to immigration court when asylum seekers fail to appear for their interviews. Another commenter asserted that authorizing asylum officers to issue in-absentia removal orders would have a disproportionate and unfair impact on applicants with disabilities as well as asylum seekers who speak languages of lesser diffusion, who are less likely to receive notice of such appointments in a language they can understand. Response: The Departments have considered the comments related to the possibility of asylum officers issuing inabsentia removal orders as outlined in the NPRM and, after careful consideration, have opted not to include that proposal in this IFR. Under the present rule as revised, asylum officers will not be issuing removal orders following the Asylum Merits interview. Consistent with the Departments’ determination that final orders of removal for individuals whose asylum claims are being adjudicated under the framework of this IFR will only be issued by IJs, asylum officers also will not issue removal orders if an applicant fails to comply with biometrics requirements or fails to appear for the hearing. Instead, failure to appear for hearings or to comply with biometrics requirements will result in applicants not having their asylum claims considered through the process established by this IFR. In those circumstances, noncitizens will be issued an NTA and placed in ordinary section 240 proceedings before EOIR. In those ordinary section 240 proceedings, noncitizens would not be considered to have asylum applications pending but would have the opportunity to file a Form I–589. e. Process for USCIS To Deny an Application for Asylum or Other Protection and Issue a Removal Order Comments: A commenter provided a lengthy background analysis of the CAT, its implementation in the FARRA, and the authority of asylum officers to order the removal of asylum seekers. The commenter stated that the proposed rulemaking correctly does not amend the provision in 8 CFR 1208.16(f) for statutory withholding and CAT protection. Furthermore, the commenter asserted that the only statutory authority asylum officers have to order that VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 asylum seekers be removed is expedited removal under section 235(b)(1)(B)(iii)(I) of the INA. The commenter argued that asylum officers therefore lack authority to issue an order of removal after not granting a noncitizen’s asylum claim and therefore also lack authority to adjudicate claims for statutory withholding of removal or CAT protection. Citing text from the NPRM’s preamble, the commenter reasoned that the Departments incorrectly relied on a ‘‘vestigial’’ provision of INA regarding ‘‘orders of deportation’’ that were replaced by IIRIRA ‘‘orders of removal.’’ The commenter also argued that the Departments cannot rely on Mitondo v. Mukasey, 523 F.3d 784 (7th Cir. 2008), reasoning that that case cannot be applied in the context of expedited removals because it turned on vague statutory language related to the Visa Waiver Program whereas, the commenter argued, the statutory language on asylum officers’ powers of removal in section 235(b)(1) is more explicit. Response: The Departments have carefully considered the comments received in response to the NPRM regarding an asylum officer’s authority to issue a removal order. As discussed elsewhere, under this IFR, asylum officers will not issue removal orders. The Departments agree that an asylum officer should issue an NTA when not granting an application for asylum and refer the case for streamlined 240 proceedings before an IJ. Given this process, the Departments find it is unnecessary to further respond to the comments regarding an asylum officer’s authority to issue a removal order. f. Other Comments on Proposed Adjudication of Applications for Asylum Comments: One commenter recommended several actions to address delays in the USCIS affirmative asylum adjudication process, including to reduce or eliminate the diversion of asylum office staff to conduct credible fear screenings and instead refer asylum seekers for full asylum interviews, create a new streamlined process to refer new requests for asylum originating at the U.S. border to USCIS asylum offices, ramp up hiring of asylum office staff, modernize the interview scheduling and filing systems, create an application route for cancellation of removal cases, and resolve more cases at the USCIS asylum offices in lieu of actions that typically occur in immigration courts, such as termination of immigration court proceedings for individuals who have filed an asylum application. The PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 18153 commenter also urged USCIS to address the occurrence of asylum granted by an immigration court but not initially granted by USCIS. Response: The Departments acknowledge the recommendations to address delays in the affirmative asylum adjudication process, but further consideration and discussion of the affirmative asylum adjudication process and different outcomes between affirmative asylum office adjudications and immigration court decisions fall outside of the scope of this rulemaking. The provisions of this rule respond to the problem of delay and backlogs for individuals encountered at the border who seek asylum or related protection by establishing a streamlined and simplified adjudication process. As discussed, the principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and procedural fairness of the expedited removal process for individuals who have been found to have a credible fear of persecution or torture. Comments: A commenter requested that the Departments further clarify adjudicatory timelines and processes so that stakeholders can fully evaluate the fairness, feasibility, and potential efficiencies of the rule. For example, the commenter stated that the proposed rule does not establish a timeline for the submission of evidence and does not provide for continuances but, rather, only extensions of undefined length and purpose. This commenter also requested that the Departments address the anticipated timeline and process for the adjudication of asylum claims for individuals who are released from detention following a positive credible fear determination but prior to the adjudication of their claim by an asylum officer, stating the proposed rule seemed to focus on asylum claim adjudication for detained noncitizens. Response: The Departments acknowledge the request to clarify adjudicatory timelines and processes. DHS is clarifying at 8 CFR 208.9(a)(1) that there will be a minimum of 21 days between the service of the positive credible fear determination on the applicant and the date of the scheduled Asylum Merits interview, unless the applicant requests in writing that an interview be scheduled sooner. DOJ is also clarifying the timeline for adjudications before the immigration court should the proceedings be referred to EOIR pursuant to new 8 CFR 1240.17(a) and (b). Notably, applicants will not appear for a master calendar hearing until at least 30 days after DHS serves the NTA, as set forth at new 8 CFR 1240.17(b). Applicants will then be E:\FR\FM\29MRR2.SGM 29MRR2 18154 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations provided the opportunity to elect to testify and submit additional documentary evidence, as well as to identify errors in the record of proceedings before the asylum officer, including the asylum officer’s decision. 8 CFR 1240.17(e). At this stage, parties may elect to proceed on the documentary record or may request a final merits hearing. 8 CFR 1240.17(f)(1). Based on an independent evaluation of the record, the IJ will then determine whether to decide the application on the documentary record or to hold a merits hearing. 8 CFR 1240.17(f)(2). If deemed necessary, the merits hearing generally will be scheduled 60 to 70 days after the initial master calendar hearing. Proceedings may be continued and filing deadlines may be extended, subject to certain requirements previously discussed in Section III.D of this preamble. In general, the Departments expect that the initial merits proceedings will be completed within 135 days from the first master calendar hearing before an IJ, and often substantially sooner. Having provided additional clarity regarding adjudicating timelines in the IFR, the Departments invite further comments. Comments: A commenter recommended that the Departments allow asylum seekers with a positive credible fear determination to proceed as affirmative asylum applicants before USCIS, with referral to an immigration court occurring after the asylum interview, as necessary. The commenter stated that this approach would reduce the burden on immigration courts and allow for efficient processing of meritorious claims in a nonadversarial system. Response: The Departments acknowledge the recommendation. The IFR provides for a nonadversarial asylum officer interview and adjudication with referral to an immigration court if the applicant is not granted asylum, through a streamlined section 240 proceeding with special procedures that will appropriately introduce efficiencies made possible by the asylum officer’s record and determinations. lotter on DSK11XQN23PROD with RULES2 6. Application Review Proceedings Before an Immigration Judge Comments: A majority of commenters who discussed the proposed IJ review proceedings expressed due process, procedural, constitutional, and other concerns about the creation of new IJ review proceedings and argued that applicants not granted asylum by the asylum officer should instead be VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 referred to section 240 removal proceedings. Commenters stated that many asylum seekers with strong and straightforward claims would benefit from the chance to be granted asylum after an interview with an asylum officer. Oner commenter stated that the initial interview with an asylum officer is ‘‘theoretically a good idea’’ but would ultimately depend on implementation. However, commenters were concerned that the NPRM’s IJ review proceedings would disproportionately affect applicants with more complex cases. Thus, commenters supported referral to an IJ for a full evidentiary hearing if an applicant’s case was initially not granted by an asylum officer. Commenters expressed significant concern about the possibility of a noncitizen being returned to a country where he or she fears persecution or torture without receiving a full adversarial hearing. Several commenters remarked that they would be more supportive of the NPRM’s provisions regarding initial asylum officer adjudication if the NPRM retained all asylum seekers’ rights to full merits hearings in immigration court. On the other hand, some commenters were supportive of the NPRM’s provisions that would have allowed a noncitizen whose application was not granted to submit additional evidence for IJ review. Response: Upon careful consideration, the Departments have revised the process set forth in the NPRM so that individuals will be placed in streamlined section 240 proceedings rather than the NPRM’s proposal for non-section 240 proceedings, as described in new 8 CFR 1240.17, if an asylum officer does not grant asylum after an initial adjudication. As a general matter, the Departments agree with commenters that section 240 proceedings provide a better alternative than the proceedings proposed in the NPRM. IJs, DHS attorneys, and immigration counsel are familiar and experienced with the rules and procedures that apply to section 240 proceedings because those proceedings are the most common type conducted by IJs. The statute and regulations provide detailed standards and consistent rules for the conduct of section 240 hearings and noncitizens’ rights during such proceedings, see 8 U.S.C. 1229a et seq., 8 CFR 1240.1 through 1240.19. Currently, asylum and protection applications filed by noncitizens whose cases originate from the credible fear process are adjudicated in section 240 proceedings. In contrast, the NPRM would have created a new process and PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 would have imposed new evidentiary standards and limitations. See 86 FR 46946. The Departments believe that the NPRM process could have resulted in efficiencies while still ensuring a fair process, see, e.g., id. at 46906; however, as commenters claim, the NPRM process may also have resulted in increased immigration court and appellate litigation surrounding the interpretation and application of the new standards and evidentiary limitations. To avoid those complications, the Departments have decided not to adopt the NPRM’s approach at this time and have instead decided to place noncitizens in streamlined section 240 proceedings if an asylum officer does not approve the noncitizen’s application. This process will not employ the novel evidentiary restrictions proposed in the NPRM, but will instead apply largely the same longstanding rules and standards governing the submission of evidence that apply in ordinary section 240 proceedings. However, in keeping with the NPRM’s purpose to increase efficiency and procedural fairness of the expedited removal process for individuals who have been found to have a credible fear of persecution or torture, 86 FR 46909, and in light of the efficiencies gained by initial adjudication before and creation of a record by the asylum officer, these streamlined section 240 proceedings will be subject to particular procedural requirements that ensure they are completed in an expeditious manner while still preserving fairness to noncitizens.78 The Departments agree with the commenters’ assertions that noncitizens and the overall immigration adjudication system will benefit from this rulemaking in part by authorizing asylum officers to grant asylum to noncitizens determined to have a credible fear of persecution or torture. 8 CFR 208.2(a)(1)(ii). Asylum officers receive extensive training and possess expertise, see supra Section III.C of this preamble; INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b), and the Departments are confident in asylum officers’ ability to carry out their duties in accordance with all applicable 78 Streamlined section 240 proceedings are conducted in accordance with section 240 of the INA, 8 U.S.C. 1229a, but with particular procedural requirements laid out in new 8 CFR 1240.17, as described above in Section III of this preamble. EOIR has made other such procedural changes, including the recent procedural requirements imposed on cases subject to case flow processing under Policy Memorandum (‘‘PM’’) 21–18, Revised Case Flow Processing before the Immigration Courts (Apr. 2, 2021). Generally, that PM eliminates the master calendar hearing for represented nondetained cases, but those cases are still conducted pursuant to section 240 of the INA, 8 U.S.C. 1229a. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations statutes and regulations and in an efficient, fair manner. The Departments have amended their respective regulations in this IFR to provide certain procedural protections that address commenters’ concerns about the process that applies if an asylum officer does not grant asylum after an initial adjudication. For example, all noncitizens not granted asylum by asylum officers after an initial adjudication will be issued an NTA and referred to streamlined section 240 proceedings, as described in new 8 CFR 1240.17. Because, under this IFR, such noncitizens will be referred for streamlined section 240 proceedings, 8 U.S.C. 1229a, the applicable evidentiary standard is consistent with the longstanding evidentiary standard for section 240 proceedings—evidence is admissible unless the IJ determines it is untimely, not relevant or probative, or that its use is fundamentally unfair. 8 CFR 1240.17(g); 8 CFR 1240.7(a); Nyama, 357 F.3d at 816 (‘‘The traditional rules of evidence do not apply to immigration proceedings. . . . ‘The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’ ’’ (quoting Espinoza, 45 F.3d at 310)); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (1980) (holding that evidence must be ‘‘relevant and probative and its use must not be fundamentally unfair’’). As part of the streamlined section 240 proceedings adopted by DOJ in this IFR at new 8 CFR 1240.17, noncitizens may elect to testify or present additional evidence that meets this evidentiary standard. 8 CFR 1240.17(g). If the noncitizen timely requests to testify, the IJ must schedule a hearing unless the IJ determines that the application can be granted without live testimony and DHS has not requested to present testimony or cross-examine the noncitizen, as described at new 8 CFR 1240.17(f)(4)(ii). Given these protections, among others, the Departments are confident that the procedures are sufficient to ensure that noncitizens will not be removed to a country where they fear persecution or torture without the opportunity for a hearing before an IJ. The Departments acknowledge those commenters who expressed support for the NPRM’s evidentiary procedures, but the new process established by this IFR at new 8 CFR 1240.17(g), and as described above in Section III of this preamble, maintains the noncitizen’s ability to submit evidence to asylum officers and IJs, albeit in accordance with a broadened evidentiary standard consistent with section 240 proceedings. The new process further includes rules governing continuances, procedures for VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 prehearing conferences, and the requirement of submissions by the parties. The Departments believe that the revisions, including (1) transmission of the asylum office record, (2) requirements that the IJ not hold a hearing unless requested by a party or if necessary, and (3) the deadlines imposed, will prevent time-consuming evidentiary hearings and increase the overall efficiencies and effectiveness in all cases. a. Creation of New Limited Proceedings in Lieu of Section 240 Removal Proceedings and Limitation on Relief to Asylum, Statutory Withholding of Removal, and Convention Against Torture Review Only Comments: Several commenters expressed opposition to the NPRM’s procedures proposing that applicants who are not granted asylum or are found ineligible for statutory withholding of removal or CAT protection by an asylum officer must affirmatively request further review by an IJ. Overall, these commenters suggested that, if the Departments move forward with the NPRM’s new hearing process, these applicants should be automatically referred to the IJ for a hearing, ideally in section 240 proceedings. Multiple commenters compared this process to the procedures for credible fear review in which applicants who neither affirmatively request IJ review nor waive review are referred to the IJ. See 8 CFR 208.30(g)(1).79 Commenters stated that it was unclear why the Departments would not apply the same presumption to the NPRM’s process for people who are not granted asylum by asylum officers since, commenters explained, the new hearing process is essentially an extension of the credible fear interview process at issue in 8 CFR 208.30(g)(1). In other words, commenters urged the Departments to automatically refer asylum officers’ decisions to not grant asylum to the IJ for section 240 proceedings unless the asylum seeker affirmatively states or files a notice waiving IJ review (i.e., ‘‘opts out’’). Commenters expressed concern that requiring an applicant to affirmatively seek further review may result in some applicants not receiving further IJ review due to the applicant’s confusion or the complexity of the process, and not due to a lack of desire for further review. For example, commenters noted 79 This citation refers to 8 CFR 208.30(g)(1) prior to publication of the Global Asylum rule, which amended 8 CFR 208.30(g), see 85 FR 80392, but which has since been enjoined, see supra note 4 (discussing recent regulations and their current status). PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 18155 that many asylum seekers who receive a negative credible fear finding may not know that they can seek a ‘‘de novo review’’ or may not understand the consequences of failing to seek review. In addition, there may be problems for applicants with the translation of documents informing them about the appeal process into a language they can read, or with applicants understanding the gravity of the process. Finally, commenters explained that automatic referral to an IJ is preferable to requiring an affirmative election because the applicant may receive an asylum officer’s decision not to grant asylum through the mail, which triggers a short time to respond and other mail difficulties. Commenters expressed concern that the 30-day period to request review by the IJ is too short and recommended extending the time period in which a noncitizen must respond after receiving a denial in the mail from 30 to 60 days. Some commenters compared the IJ referral procedures in the NPRM to those for applicants who have affirmatively applied before USCIS. See 8 CFR 208.14(c)(1) (instructing the asylum officer to refer the application of an applicant who is inadmissible or deportable for adjudication in section 240 proceedings). Commenters were concerned that the difference in the procedures would create confusion in immigrant communities and lead many asylum seekers in the NPRM process to mistakenly believe that their cases would be automatically referred to the immigration court. Similarly, commenters were concerned that having two different paths may also create confusion potentially for the asylum office itself. Some commenters said that substituting an ‘‘appeal’’ for a ‘‘referral’’ for IJ review is confusing and potentially deceptive, especially for applicants who appear pro se at an asylum officer interview. Commenters said that such applicants will likely have difficulty understanding paperwork that explains the contours of these IJ review hearings, as well as the obligation to file a notice of appeal, thereby potentially foreclosing further administrative and judicial review. Commenters further expressed concern that additional categories of applicants would be particularly affected by the requirement to affirmatively request IJ review, including non-English speakers, individuals with mental health disabilities, trauma victims, and individuals in detention. Commenters noted that language barriers, effects of trauma, and the detrimental effects of detention all E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18156 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations negatively impact an asylum seeker’s ability to affirmatively request review. In addition, commenters noted that the noncitizens who would be placed in proceedings before EOIR will have already had an asylum officer determine that the claim is credible and, therefore, not frivolous. Thus, commenters explained, such asylum seekers would be unlikely to request review, resulting in the waiver of meritorious claims. Response: This IFR does not implement the NPRM’s proposal for IJ review proceedings, and instead adopts streamlined section 240 proceedings, as described above in Section III of this preamble. Specifically, as described in new 8 CFR 1240.17, DHS will file an NTA and place the noncitizen in these streamlined section 240 proceedings in all cases where the noncitizen was found to have a credible fear of persecution or torture, but the asylum officer subsequently did not grant the asylum application. The Departments believe that providing streamlined section 240 proceedings addresses nearly all of the commenters’ concerns and requests on this topic. Applicants will not be required to affirmatively request review by an IJ, and applicants will not be referred to the limited IJ proceedings proposed in the NPRM. Instead, applicants will be referred to streamlined section 240 proceedings that incorporate various procedural measures to enhance efficiency, consistent with the streamlined nature of these proceedings, while still ensuring fairness to noncitizens. Proceedings under this IFR are conducted under section 240 of the Act, 8 U.S.C. 1229a, and the streamlined proceedings will advance more expeditiously than ordinary section 240 proceedings generally proceed because the IJ will have the benefit of the full asylum officer record and the IJ and the parties will be subject to timelines that ensure the proceedings are adjudicated promptly. The streamlined 240 proceedings will also ensure that the intent of the NPRM to streamline IJ review is preserved. Nevertheless, the Departments believe that these additional procedural measures will not create confusion for noncitizens, as section 240 proceedings are the most common type of immigration proceeding, and these new, straightforward procedural requirements will be directly communicated to noncitizens. Moreover, the new procedural timelines in the IFR are responsive to commenters’ concerns that noncitizens need longer than 30 days to identify errors in the asylum officer’s decision. Notably, under the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 IFR, as set forth at new 8 CFR 1240.17(b), the master calendar hearing will be held 30 days after the NTA is served, or, if a hearing cannot be held on that date, on the next available date no later than 35 days after the date of service. At the conclusion of the initial master calendar hearing, the IJ will schedule a status conference 30 days after the master calendar hearing or, if a status conference cannot be held on that date, on the next available date no later than 35 days after the master calendar hearing, as described at new 8 CFR 1240.17(f)(1). At status conferences provided for at new 8 CFR 1240.17(f)(2), noncitizens will indicate orally or in writing whether they intend to contest removal or seek any protections for which an asylum officer did not determine a noncitizen eligible, and if seeking protections, noncitizens will indicate whether they intend to testify before the immigration court, identify any witnesses they intend to call, and provide any additional documentation. 8 CFR 1240.17(f)(2)(i). Where a noncitizen is represented by counsel, the noncitizen shall further describe any alleged errors or omissions in the asylum officer’s decision or the record of proceedings, articulate any additional bases for asylum and related protections, and state any additional requested forms of relief. Id. The IFR also provides specifically for continuances and filing extensions in streamlined section 240 proceedings, which allows appropriate flexibility with regard to the established timelines. See 8 CFR 1240.17(h). If a noncitizen needs additional time beyond these timelines, as commenters suggested, new 8 CFR 1240.17(h)(2) provides for respondent-requested continuances and filing extensions. Thus, these timelines are clear, streamlined, and reasonable, allowing noncitizens the opportunity to reasonably present their cases while maintaining the overall efficiencies of the NPRM. In addition to established evidentiary standards, section 240 proceedings— including the streamlined section 240 proceedings addressed in this IFR— provide a number of procedural protections established by statute and regulation, such as the right to representation, ‘‘a reasonable opportunity to examine the evidence against the [noncitizen], to present evidence on the [noncitizen’s] own behalf, and to cross-examine witnesses,’’ and the creation of a complete record of the proceedings. INA 240(b)(4), 8 U.S.C. 1229a(b)(4). Additionally, the Act and the regulations establish that the IJ should play a robust role in PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 proceedings. See INA 240(b)(1), 8 U.S.C. 1229a(b)(1) (requiring IJs to ‘‘administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses’’); 8 CFR 1003.10(b) (same and requiring IJs to take other actions that are ‘‘appropriate and necessary for the disposition of’’ each case); 8 CFR 1240.10(a) (requiring IJs to, inter alia, advise noncitizens of certain rights in section 240 proceedings and to explain factual allegations and legal charges in the NTA in non-technical language); 8 CFR 1240.11(a)(2) (requiring IJs to inform noncitizens of ‘‘apparent eligibility to apply for any of the benefits enumerated in this chapter’’); 8 CFR 1240.1(a)(1)(iv) (authorizing IJs to ‘‘take any other action consistent with applicable law and regulations as may be appropriate’’ in a section 240 proceeding). Additionally, section 240 proceedings provide for special consideration for noncitizens who may present with competency issues. See INA 240(b)(3), 8 U.S.C. 1229a(b)(3); Matter of M–A–M–, 25 I&N Dec. at 479–84 (stating that where a noncitizen shows indicia of incompetency, the IJ must inquire further and establish safeguards where appropriate). In addition, the IFR carves out a specific exception to the general timeline and procedures in the streamlined 240 proceedings for a noncitizen who has exhibited indicia of incompetency at new 8 CFR 1240.17(k)(6). The Departments note that the IFR does not permit noncitizens to ‘‘optout’’ of or decline further proceedings before an IJ because section 240 of the Act, 8 U.S.C. 1229a, requires an IJ, as opposed to the asylum officer, to issue the order of removal in cases where asylum is denied. The IFR does, however, allow a noncitizen to indicate that the noncitizen does not wish to contest removal or seek any protections for which the asylum officer did not find the noncitizen eligible, as set forth in new 8 CFR 1240.17(f)(2)(i)(B). In such a case, if the asylum officer determined the noncitizen eligible for withholding of removal or protection under the CAT, the IJ will give effect to that protection as determined by the asylum officer unless DHS makes a prima facie showing through new evidence or testimony that specifically pertains to the respondent and that was not included in the record of proceeding for the USCIS Asylum Merits interview that the respondent is not eligible for such protection. In addition, if a noncitizen fails to appear for the IJ proceedings, the IJ will generally be required to issue an in-absentia removal order pursuant to E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations existing regulations, but will similarly give effect to the asylum officer’s determination, if any, that the noncitizen is eligible for withholding of removal or protection under the CAT, unless DHS demonstrates that the respondent is not eligible for such protection, as provided in new 8 CFR 1240.17(d). Comments: Commenters expressed concerns that the NPRM’s proposed IJ review proceedings lacked procedural protections and due process safeguards. Commenters stated that placing applicants whose cases are not granted by the asylum officer in these limited, asylum-only-type proceedings limits critical and well-established due process protections for applicants. In other words, commenters generally supported placing applicants in section 240 proceedings, to include the broader evidentiary standard applied in 240 proceedings, rather than a new limited proceeding tethered to the asylum interview record, and imposing a narrow evidentiary standard. Commenters stated that the NPRM’s proposed IJ review proceedings would erase the procedural guarantees and protections of full removal hearings and inappropriately limit immigration court consideration of asylum officer decisions. For instance, under the NPRM, an applicant would be unable to submit applications for other forms of relief without submitting additional motions, and would be unable to submit additional evidence unless an IJ deems it ‘‘necessary’’ and ‘‘not duplicative.’’ Commenters stated that IJs would be expected to rule in these ‘‘reviews’’ without holding evidentiary hearings. Similarly, commenters expressed concern that the proceedings would effectively be limited to review of only the asylum officer’s notes, which would deprive the applicant of the right to present testimonial and documentary evidence, cross-examine adverse witnesses, and review and rebut all evidence considered by the adjudicator. Commenters expressed concern that the procedures in the NPRM’s proposed IJ review, as compared to section 240 proceedings, could deprive applicants of a true opportunity to be heard. Commenters stated that the evidentiary provisions of the IJ review process could not cure the absence of these procedural protections. Commenters said the evidentiary procedures proposed by the NPRM during IJ review are vague and inadequate, and the NPRM’s articulated rationales for a truncated hearing rather than full section 240 proceedings are arbitrary and capricious. Commenters expressed concern about the nature of the record before the IJ in VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the review proceedings proposed by the NPRM—more specifically, that the NPRM gives a disproportionate amount of deference to asylum officer decisions while simultaneously limiting IJ adjudication to a mere review of the asylum officer-created record, rather than providing for a full de novo merits hearing. Commenters believed the NPRM would allow credible fear interview notes to be the sole basis of the asylum application, and that proposed 8 CFR 208.14(c) would allow asylum applications to be the sole piece of evidence reviewed by the IJ. Commenters also believed that relying on the asylum officer to adequately develop the record falls far short of due process standards. Commenters expressed concern that the asylum officer’s notes may not explain why certain types of evidence were not allowed to be presented. Given these concerns, commenters said that this would create a chain of reliance on limited and often incomplete credible fear interview notes, would limit the ability of counsel to effectively supplement the record where necessary, and would prejudice clients who were not able to fully present their claims during the credible fear interview because of incapacity, trauma, or an improper setting for the interview. Commenters stated that the NPRM does not explicitly guarantee the applicant a right to receive a decision from the IJ that lays out the reasons for their decision. Commenters reasoned that these decisions are critical for BIA and judicial review and thus, at a minimum, the NPRM should include the same standard of requiring an IJ to explain the reasoning underlying the court’s decision as in section 240 proceedings. Commenters expressed concern that the proposed IJ review procedure would provide insufficient review in light of the nature of the asylum officers’ adjudications and decisions. Commenters stated that, in the context of asylum officers’ adjudications of affirmative asylum applications or those filed by unaccompanied children, applicants receive a one-page notice explaining the decision with limited legal explanation. Assuming the decisions by asylum officers in the new procedures under the NPRM would be similar, commenters expressed concern that the NPRM does not provide the same safeguard of section 240 proceedings that is provided to these other applicants. Commenters stated that asylum officers do not always adequately review the entire record and make referrals to the immigration court for complex cases. Commenters stated PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 18157 that the NPRM’s proposed IJ review proceedings would not ensure that any errors or omissions by the asylum officer are uncovered, particularly where the IJ rejected additional evidence or testimony that might support the protection claim. Commenters stated that full section 240 proceedings are necessary because many applicants who currently are referred to removal hearings by asylum officers are granted asylum by an IJ. Commenters stated that reasons for the high number of cases granted after referral to EOIR, in the current section 240 referral process, include insufficiency or inaccuracy of credible fear interview notes as a sole measure of credibility, the structure of the asylum officer’s interview, access to counsel, and access to evidentiary material and witness testimony. In contrast, commenters said the standard for considering admissible evidence in section 240 proceedings is relevance and fundamental fairness, and that immigration proceedings favor broad evidentiary admissibility. Commenters said the reason for the large disparity in outcomes was the right to a full de novo court hearing, where attorneys were free to offer documents, briefs, and testimony. Commenters also took issue with the NPRM’s statement that a noncitizen would have a ‘‘full opportunity to challenge’’ an asylum officer’s decision to not grant asylum through an IJ’s review of the asylum interview record. Commenters stated that, statistically, a large number of asylum applicants are unsuccessful in making a strong case for themselves at their hearings before asylum officers, citing impacts of trauma on presenting claims and difficulties with providing documentary evidence on short notice. Thus, commenters asserted, it is not realistic or fair to expect that the record of the hearing before an asylum officer, on which the IJ would rely during their review, would be sufficient to ensure that applicants have the opportunity to adequately make their case. Commenters stated that the availability of section 240 proceedings for some applicants and only limited proceedings under the NPRM for other asylum applicants is not rationally connected to (1) whether a noncitizen has been or may be persecuted or tortured in the country the noncitizen left behind, and (2) the noncitizen’s ability to articulate the claim or timely obtain evidence. Therefore, commenters urged that any final rule preserve the right to full adversarial proceedings before an IJ for those applicants who E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18158 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations have not had their applications granted by an asylum officer. Commenters stated that the NPRM is not clear as to what extent applicants who do not receive a grant of asylum by the asylum officer will be negatively impacted if placed in affirmative proceedings without a guarantee of full section 240 proceedings. Commenters stated that if the NPRM decreased due process protections of applicants by denying the benefit of full section 240 proceedings, it may reduce access to the asylum process. Commenters said the NPRM raises transparency concerns regarding how the Departments will handle cases after review by an asylum officer. Commenters said the Departments must not enact a faster process at the expense of due process protections and one commenter expressed concern that the NPRM’s limited review proceedings would result in the creation of a de facto ‘‘rocket docket’’ that would place asylum seekers at risk of summary deportations. Absent clarification on the potential impact of these provisions, the commenters said they had been denied an opportunity to meaningfully comment on the NPRM. Response: As described above in Section III of this preamble, the Departments have determined that a noncitizen whose asylum claim is not granted by an asylum officer after an initial adjudication will be issued an NTA and referred to an IJ for streamlined section 240 removal proceedings, and the Departments have decided not to implement the IJ review proceedings originally proposed in the NPRM. Section 240 proceedings follow issuance of a notice of charges of inadmissibility or removability against a noncitizen, INA 239(a)(1), 8 U.S.C. 1229(a)(1); INA 240(a), 8 U.S.C. 1229a(a), and provide an opportunity for the noncitizen to make a case to an IJ, INA 240(a), (b), 8 U.S.C. 1229a(a), (b). Accordingly, the use of section 240 proceedings provides notice and an opportunity to be heard, which satisfies due process. See, e.g., LaChance v. Erickson, 522 U.S. 262, 266 (1998) (‘‘The core of due process is the right to notice and a meaningful opportunity to be heard.’’). The Departments’ decision not to implement the NPRM’s proposal for limited review proceedings for applications not granted by the asylum officer and instead to refer noncitizens to streamlined section 240 removal proceedings addresses commenters’ concerns that the NPRM’s proposed proceedings were overly restrictive. In response to commenters’ concerns regarding the nature of the record VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 created by the asylum officer, the Departments note that while the written record of the positive credible fear determination will be considered a complete asylum application, applicants may subsequently amend or correct the biographic or credible fear information in the Form I–870, Record of Determination/Credible Fear Worksheet, or supplement the information collected during the process that concluded with a positive credible fear determination. 8 CFR 208.4(b)(2). Also, because the IFR is consistent with the evidentiary standard for section 240 proceedings, noncitizens may review and present evidence that is relevant and probative, which eliminates the NPRM’s limited evidentiary standard of ‘‘necessary’’ and ‘‘not duplicative’’ and ensures noncitizens have the opportunity to supplement the record for IJ review. 8 CFR 1240.17(g). Upon conclusion of the streamlined section 240 proceedings, the DOJ regulations provide that an IJ will issue a decision considering the full record before the IJ, as set forth at new 8 CFR 1240.17(f)(5), and noncitizens will have an opportunity for appeal. 8 CFR 1240.13, 1240.15. The IJ has a duty to provide a decision orally or in writing. See Matter of Kelly, 24 I&N Dec. 446, 447 (BIA 2008) (holding that the IJ has a responsibility ‘‘to insure [sic] that the decision in the record is complete’’); 8 CFR 1003.37. Specifically, the IJ ‘‘shall decide whether an alien is removable from the United States. The determination of the [IJ] shall be based only on the evidence produced at the hearing.’’ INA 240(c)(1)(A), 8 U.S.C. 1229a(c)(1)(A). These provisions ensure that noncitizens receive a meaningful opportunity to be heard and afford procedural protections and due process safeguards. Moreover, under the IFR, noncitizens will not need to engage in additional motions practice—as they would have under the NPRM—should they wish to seek other forms of relief beyond the applications previously considered by the asylum officer. Further, IJs will conduct hearings for noncitizens who request to present live testimony, unless the application can be granted without a hearing, as indicated at new 8 CFR 1240.17(f)(4). The Departments find that the process set forth in this IFR addresses commenters’ concerns that the NPRM provided undue deference to asylum officers while limiting the IJ’s role in the proposed application review proceedings. While the Departments recognize that commenters stated they prefer ‘‘full’’ section 240 proceedings over those proposed in the NPRM, the Departments believe that the PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 streamlined procedures set forth in this rule are necessary and appropriate for furthering efficiency interests while still ensuring fair adjudication of claims. In addition, the transcription of the hearing before an asylum officer, along with the additional timelines for completing cases that are included in this IFR, address commenters’ concerns about transparency as to how the Departments will handle cases. Comments: Commenters similarly stated that the NPRM does not permit procedures provided in section 240 proceedings, specifically in regard to continuances. Commenters explained that in section 240 proceedings, noncitizens are first scheduled for master calendar hearings where, among other things, IJs ask if they need a continuance to secure representation. Commenters stated that continuances are routine throughout the course of a case in immigration court. However, if proceedings are transferred to the asylum office, commenters were concerned that noncitizens will have less freedom to request their interview be rescheduled because DHS only allows for continuances of asylum officer proceedings in ‘‘exceptional circumstances.’’ Commenters also pointed out that 8 CFR 1003.48(e) as proposed in the NPRM did not adequately contemplate the legitimate needs for which an extension may be necessary (e.g., to obtain representation by counsel). Commenters reasoned that applications for continuances should be fully documented, setting forth the steps already taken to secure an attorney or to obtain supporting evidence. Commenters believed that requests should be granted to allow for additional time, within reasonable limits, if applicants establish that they have been diligent and thorough with their search. Response: At new 8 CFR 1240.17(h), the IFR explicitly provides for continuances in the context of streamlined section 240 proceedings. As specifically relevant to commenters’ concerns, the IJ may grant initial continuances, including continuances to allow the noncitizen time to secure representation. These initial continuance standards will be governed by the long-standing, traditional ‘‘good cause’’ standard, as described at new 8 CFR 1240.17(h)(2)(i). See 8 CFR 1003.29. As discussed above in Section III of this preamble, and as found at new 8 CFR 1240.17(h)(2)(ii) and (iii), the IFR also allows additional continuances beyond the initial 30-day ‘‘good cause’’ period, but the standards for additional E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations continuances beyond the initial 30-day ‘‘good cause’’ period will be increasingly restrictive as the noncitizen’s requested continuances increase the aggregate delay of the proceedings. The IFR provides heightened standards for consideration when the merits hearing has been delayed for more than 90 days past the initial master calendar hearing due to continuances granted to the noncitizen. Nevertheless, the IFR preserves the opportunity for continuances as necessary to ensure a fair proceeding or to prevent a violation of statutory or constitutional rights, including the statutory right to counsel, as set forth at new 8 CFR 1240.17(h)(2)(ii)–(iii). Comments: Commenters explained that the NPRM’s proposed ‘‘prohibition’’ on immigration court consideration on the issue of removability may violate due process and result in wrongful removals. For example, commenters described a situation in which an IJ properly probed for facts and discovered that the noncitizen facing removal was in fact a U.S. citizen. However, commenters explained, if IJs are not permitted to make a ruling on admissibility or removability, there is no incentive for them to inquire to determine if the applicant before them has undiscovered legal status. To ensure that noncitizens are not removed by mistake and to avoid unnecessary hearings for those who are not removable, the commenters said that IJs should be permitted to inquire and make determinations regarding removability. Response: The IFR resolves commenters’ concerns with issues of removability and admissibility. In the streamlined section 240 removal proceedings introduced by this IFR, as in all section 240 proceedings, the IJ must make a determination regarding whether the noncitizen is subject to removal as charged. 8 CFR 1240.17(f)(2)(i), (k)(3); 8 CFR 1240.10(c), (d). The IFR includes an exception to the timelines in the streamlined proceedings for cases in which the noncitizen makes a prima facie showing that the noncitizen is not subject to removability and the IJ determines that the challenge cannot be resolved simultaneously with the adjudication of the noncitizen’s applications for asylum, statutory withholding of removal, or withholding or deferral of removal under the CAT. Instead, these noncitizens will be subject to ordinary section 240 proceedings, as described at new 8 CFR 1240.17(k)(3). Comments: Commenters disagreed with the NPRM’s statement that ‘‘requiring a full evidentiary hearing VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 before an IJ after an asylum officer’s denial would lead to inefficiencies without adding additional value or procedural protections.’’ 86 FR 46918. Commenters argued that this ignores the reality of the asylum process by assuming that applicants will be able to develop a full evidentiary record before the asylum officer, demonstrates a misunderstanding of how difficult it is to be granted asylum, and could hinder due process. Commenters said that nonadversarial hearings with asylum officers are not faster and fairer than immigration court hearings with represented applicants, especially if attorneys on both sides agree to narrow issues in dispute before the IJ. At least one commenter believed that, under the NPRM, an IJ’s decision regarding rejecting or admitting evidence would not be reviewable by the BIA or a U.S. Court of Appeals because the NPRM did not require the judge to provide a reasoned decision. Therefore, commenters explained, the NPRM’s proposed IJ review could deny a noncitizen the opportunity to relate clearly and completely the circumstances of persecution or a wellfounded fear of persecution to either an asylum officer or IJ. Commenters anticipated that the NPRM, if it had been promulgated in that form, would be vacated because it is inconsistent with due process guaranteed by the Fifth Amendment as well as INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B), which provides that noncitizens shall have a reasonable opportunity to examine the evidence against them, to present evidence on their own behalf, and to cross-examine witnesses presented by the Government. Response: The Departments disagree with commenters’ concerns that the initial asylum officer adjudication of claims would not provide further efficiencies over the current expedited removal credible fear screening process. Although this IFR revises the process as proposed by the NPRM for reviewing applications that an asylum officer does not grant, the Departments maintain that having an Asylum Merits interview with an asylum officer for noncitizens with positive credible fear determinations, as both the IFR and NPRM provide, will be more expeditious than the current process of referring all noncitizens with positive credible fear determinations to section 240 proceedings before the immigration court. As described in the NPRM, immigration courts are experiencing large and growing backlogs and subsequent adjudication delays. 86 FR 46907. Asylum officers are well trained and experienced with asylum PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 18159 adjudications, and each case that is granted by USCIS is a direct reduction in cases that would have been before EOIR. See id. The threshold asylum officer hearing proposed in the NPRM also will ensure that cases referred to immigration court will include a welldeveloped record. Where cases are referred with such a record, IJs will not have to grant continuances for respondents to file applications for asylum and related protection. Even though parties will be able to file additional evidence, the asylum officer record will help IJs to narrow issues. For both these reasons, USCIS adjudication of claims will promote efficiency before EOIR. In addition, the IFR does not adopt the NPRM’s proposal for broad limits on introducing new evidence. Instead, the IFR provides at new 8 CFR 1240.17(g)(1) that IJs may exclude documentary evidence or witness testimony ‘‘only if it is not relevant or probative; if its use is fundamentally unfair; or if the documentary evidence is not submitted or the testimony is not requested by the applicable deadline, absent a timely request for a continuance or filing extension that is granted.’’ The Departments believe the IFR’s evidentiary standard addresses the commenters’ concerns regarding the need for a full evidentiary hearing. Further, the Departments believe that, overall, the IFR’s streamlined section 240 proceedings will be equally effective, if not more so, than the NPRM’s proposed proceedings in enhancing efficient adjudication and replacing time-consuming evidentiary hearings. For example, the IFR provides that the asylum officer’s record will be automatically transmitted upon DHS’s issuance of an NTA, which will enable the parties to narrow the issues and assist the IJ’s review of the case. The IFR also provides that if neither party requests to present testimony, or if the IJ determines that the asylum application can be granted without hearing testimony and DHS does not request to present testimony or evidence, the IJ can decide the case without a hearing. The IFR also provides various deadlines for the scheduling of hearings and the issuance of the IJ decision. These measures enhance efficiency by precluding the need for a full evidentiary hearing in some cases and by facilitating a more efficient hearing when one is necessary. Finally, in response to commenters’ concerns regarding administrative and judicial review of IJ decisions regarding the admission of evidence, the Departments emphasize that there is not a substantive difference regarding IJs’ E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18160 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations decisions on the admission of evidence in these streamlined section 240 proceedings and standard 240 proceedings. Either party may challenge the IJ’s decision during a subsequent appeal to the BIA, which will be reviewed pursuant to the same standards of review as for appeals from ordinary section 240 proceedings. See 8 CFR 1003.1; INA 242, 8 U.S.C. 1252. A noncitizen who receives an adverse decision from the BIA may file a petition for review subject to the requirements of section 242 of the INA, 8 U.S.C. 1252, and nothing in this rule affects that statutory provision. Comments: Commenters expressed concerns that IJs would serve a ‘‘pseudo-appellate’’ role by reviewing decisions by asylum officers. The commenters characterized the current IJ review process of negative credible fear interviews as ‘‘deficient’’ and explained that expanding this aspect of the IJ’s duty will amplify due process concerns and result in erroneous removals. Therefore, commenters urged that, if the NPRM is not withdrawn, the Departments should at least automatically refer claims not granted by asylum officers for full section 240 proceedings. Response: The Departments find that the decision to place individuals whose applications are not granted by the asylum officer into streamlined 240 proceedings, rather than the NPRM’s proposed IJ review proceedings, addresses commenters’ concerns that the new procedures would have been akin to a credible fear review rather than an adjudication in removal proceedings. As commenters point out, section 240 proceedings allow noncitizens a fuller opportunity to present evidence and testimony to develop the record, secure and work with counsel if they have not yet done so, and participate in additional hearings as needed. See generally 8 CFR part 1240. The IFR includes additional procedural requirements to ensure that proceedings will proceed more expeditiously, but will still give noncitizens a full opportunity to develop the record and obtain a de novo determination as to asylum eligibility from the IJ, thus obviating commenters’ concerns. When conducting these streamlined 240 proceedings, IJs will exercise independent judgment and discretion in reviewing the claims before them for adjudication. See 8 CFR 1003.10(b); see generally EOIR, Ethics and Professionalism Guide for Immigration Judges (Jan. 2011), https:// www.justice.gov/eoir/sibpages/ IJConduct/EthicsandProfessionalism GuideforIJs.pdf (IJ Ethics and VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Professionalism Guide) (requiring IJs to, inter alia, be faithful to the law, maintain professional competence in the law, act impartially, and avoid actions that would create the appearance of violations of the law or applicable ethical standards). The Departments believe the protections provided in section 240 proceedings are appropriate to provide a sufficient record for appeal. Nevertheless, the Departments also clarify that, contrary to commenters’ conclusory statements, IJs’ current credible fear review process is not ‘‘deficient’’ and does not violate due process. The IFR maintains the NPRM’s approach of restoring the credible fear screening standards that were in effect prior to the regulatory changes made between 2018 and 2020. See 86 FR 46911. None of those regulations has gone into effect, as all are delayed, vacated, or enjoined. See id. at 46909 n.24. The Departments believe that returning the regulations to the framework in place prior to the changes made between 2018 and 2020 will ensure the process is more efficient, effective, and consistent with congressional intent. Id. at 46914. The Supreme Court has emphasized that noncitizens who are encountered in close vicinity to and immediately after crossing the border and placed in expedited removal proceedings, which include the credible fear screening process, have ‘‘only those rights regarding admission that Congress has provided by statute.’’ Thuraissigiam, 140 S. Ct. at 1983. Congress provided the right to a determination whether the noncitizen has a ‘‘significant possibility’’ of establishing eligibility for asylum under INA 208, 8 U.S.C. 1158. See also INA 235(b)(1)(B)(ii), (v), 8 U.S.C. 1225(b)(1)(B)(ii), (v). Because the regulations reestablish the ‘‘significant possibility’’ standard, consistent with the statute, it does not infringe on noncitizens’ rights. See Thuraissigiam, 140 S. Ct. at 1983. In addition, despite the Departments’ disagreement with the commenters’ characterization of the credible fear review process, the Departments find that this IFR addresses commenters’ concerns as IJs will continue to have the traditional adjudicator authorities in 240 proceedings. Comments: Commenters stated that the reports by the U.S. Commission on International Religious Freedom (‘‘USCIRF’’), the Administrative Conference of the United States (‘‘ACUS’’), and the Migration Policy Institute (‘‘MPI’’) cited in the NPRM as support for asylum officers adjudicating defensive claims do not suggest PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 eliminating full evidentiary IJ hearings of defensive asylum claims, which commenters believed the NPRM implied. 86 FR 46917–18. Commenters stated that requiring the applicant to petition the IJ for consideration of additional evidence would curtail due process beyond the procedure recommended by USCIRF whereby asylum officers would either grant asylum cases immediately after the credible fear interview or, in more complicated cases, refer the applicant to full proceedings before an IJ. Response: The NPRM’s references to reports by the USCIRF, ACUS, and MPI were not meant to imply support for the NPRM’s proposed process, as commenters alleged. Rather, the NPRM clearly stated that those reports ‘‘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 . . . .’’ 86 FR 46918 (emphasis added). Nevertheless, for the reasons discussed thus far and above in Section III of this preamble, this IFR replaces the NPRM’s proposed IJ review procedure with streamlined section 240 removal proceedings. Comments: Commenters raised concerns that the NPRM’s procedures distinct from section 240 IJ review could have a negative impact on those applicants who are unrepresented by counsel, non-English speakers, or trauma survivors. Accordingly, commenters recommended that asylum seekers instead be given an opportunity to obtain counsel and present all evidence in support of their claims in section 240 merits hearings before IJs. Commenters asserted that only such a hearing would ensure that pro se applicants are not wrongfully returned to danger in violation of the United States’ nonrefoulement obligations. Commenters generally argued that issues related to lack of access to counsel stem from the fact that noncitizens appearing before the immigration courts have no right to Government-appointed counsel. Commenters urged the Departments to consider that, while many asylum seekers do not have access to legal representation at any stage of immigration proceedings, they are particularly unlikely to have legal representation at early stages of presenting their claims. Other commenters believed that the majority of asylum applicants do not have E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations representation. Commenters expressed concerns that, under the NPRM, unrepresented asylum seekers would not be able to adequately present their asylum claims before the asylum officer, and that these initial deficiencies would later pose significant challenges to legitimate claims, even with the assistance of counsel, once asylum seekers are before the immigration court. Commenters also raised concerns that unrepresented applicants, many of whom are unfamiliar with the complexities of immigration law and do not speak English, would be unable to adequately draft filings, fill out forms, and present their claims at all, particularly within the time constraints presented by the NPRM. Commenters noted that these concerns are further exacerbated by the fact that many applicants suffer from post-traumatic stress disorder or other mental health ailments. Commenters stated that the NPRM would negatively impact trauma survivors’ ability to present their claims because they may not be able to immediately disclose all relevant facts pertaining to their claims to their asylum officers or even their own counsel. Commenters stated that it is common for asylum seekers to disclose only limited information about their past persecution in early statements and then to provide greater detail when later questioned by an IJ. Commenters stated that it may take several meetings with an advocate before asylum seekers are comfortable enough to share the details of their persecution. Commenters asserted that the NPRM would increase the likelihood that such applicants may face erroneous adverse credibility determinations, and that the expedited process would be generally detrimental to a full exploration of claims. Commenters particularly argued that more robust procedural safeguards are critically important to guaranteeing LGBTQ+ asylum seekers the opportunity to present their claims. Commenters cited Matter of M–A–M–, 25 I&N Dec. 474, as an example of a case that recognized the important procedural protections available in section 240 removal proceedings. In Matter of M–A–M–, the BIA recognized the right for applicants who may lack mental capacity to present expert testimony to demonstrate that their mental health conditions impacted their claims. Id. at 479. Moreover, commenters believed that asylum officers are not in the best position to probe an applicant on the reasons for inconsistencies in a claim, particularly when the asylum seeker acted pro se or received ineffective VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 assistance of counsel before the Asylum Office. Commenters anecdotally stated that they have witnessed circumstances where asylum officers failed to thoroughly probe the reasons for inconsistencies, but where applicants later resolved inconsistencies during direct examination in immigration court. Without the ability to testify live on the same issues in a truly de novo proceeding, one commenter said, many traumatized asylum seekers would not have the opportunity to present critical evidence that would prove their claims. Response: The IFR addresses commenter concerns about the rule’s impact on vulnerable populations, including individuals with posttraumatic stress disorder, individuals who face language barriers, and individuals who are unrepresented, by providing that noncitizens whose applications are not granted by the asylum officer will be placed in streamlined section 240 proceedings rather than finalizing the IJ review procedure proposed in the NPRM. The Departments have included procedural rules to ensure the efficient disposition of these cases, and noncitizens in these streamlined 240 proceedings will receive all of the procedural protections required by section 240 of the Act, 8 U.S.C. 1229a, which commenters were concerned were lacking in the NPRM. See INA 240(b)(4), 8 U.S.C. 1229a(b)(4) (setting forth noncitizen’s rights in proceedings); see also Matter of M–A– M–, 25 I&N Dec. at 479–83 (stating that where a noncitizen has indicia of incompetency, the IJ must inquire further and establish safeguards where appropriate). The Departments believe that these measures are sufficient to ensure that all noncitizens, including vulnerable noncitizens, have adequate time to prepare and present their claims. Moreover, the IFR explicitly exempts certain categories of noncitizens, including juveniles and mentally incompetent individuals, from the streamlined procedures created by this IFR, as described at new 8 CFR 1240.17(k). With respect to commenters’ concerns about noncitizens not having adequate access to or time to obtain counsel, the Departments recognize the ‘‘immense value of legal representation in immigration proceedings, both to the individuals that come before [EOIR] and to the efficiency of [its] hearings.’’ Director’s Memo (‘‘DM’’) 22–01: Encouraging and Facilitating Pro Bono Legal Services 1 (Nov. 5, 2021), https:// www.justice.gov/eoir/book/file/ 1446651/download. As with all noncitizens in section 240 removal proceedings, the individuals subject to PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 18161 the IFR have a right to representation at no cost to the Government. INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A).80 Additionally, resources are available for pro se noncitizens in immigration court. See, e.g., EOIR, Pro Bono Legal Service Providers, https://probono.eoir. justice.gov; EOIR, Immigration Court Online Resource, https://icor.eoir. justice.gov/en/;cf. EOIR, Press Release, EOIR Announces ‘‘Access EOIR’’ Initiative (Sept. 28, 2021) (aiming to increase representation before EOIR), https://www.justice.gov/eoir/pr/eoirannounces-access-eoir-initiative; EOIR, Press Release, EOIR Launches Resources to Increase Information and Representation (Oct. 1, 2020), https:// www.justice.gov/eoir/pr/eoir-launchesresources-increase-information-andrepresentation. In addition, because noncitizens in section 240 removal proceedings, including the streamlined section 240 proceedings set forth in the IFR, have the right to provide testimony and evidence in support of their applications, the Departments find that placing noncitizens whose applications are not granted by the asylum officer in streamlined section 240 proceedings rather the NPRM’s proposed distinct proceedings addresses commenters’ concerns about the effect of a lack of representation early in the expedited removal or asylum application process. In other words, noncitizens who fail to provide evidence or testimony on relevant parts of their claims before asylum officers due to a lack of representation will have the ability to submit additional evidence or testimony to the IJ during subsequent streamlined section 240 proceedings, as described above in Section III of this preamble. Further, noncitizens in these streamlined section 240 proceedings will have opportunities to obtain 80 The Departments strive to improve access to counsel, as evidenced through other policies and rulemakings, and recognize that increasing access to counsel will, in turn, further the efficiency of all of the Departments’ operations, including those set forth in this rulemaking. See DM 22–01: Encouraging and Facilitating Pro Bono Legal Services (Nov. 5, 2021) (‘‘Competent legal representation provides the court with a clearer record and can save hearing time through more focused testimony and evidence, which in turn allows the judge to make better-informed and more expeditious rulings.’’); see generally Executive Order 14012, 86 FR 8277, 8277 (Feb. 2, 2021) (directing Attorney General and Secretary to ‘‘identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law’’). Nevertheless, recommendations from commenters calling for noncitizens to have access to appointed counsel in section 240 removal proceedings are beyond the scope of this rulemaking. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18162 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations representation even before removal proceedings are initiated as they may be represented during the initial adjudication conducted by the asylum officer. See 8 CFR 208.9. The Departments believe that commenters’ concerns that the procedures proposed in the NPRM would negatively impact individuals whose claims develop over time or who need additional time and testimony to explain inconsistencies and aspects of their claim that they do not feel were adequately addressed during the interview are ameliorated by the IFR, which does not contain the NPRM’s restrictions on the introduction of new testimony or documentary evidence. Instead, the IFR incorporates evidentiary standards consistent with those in section 240 proceedings— evidence must be relevant, probative, and fundamentally fair, as described at 8 CFR 1240.17(g)(1). See INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B) (noncitizens must have a ‘‘reasonable opportunity’’ to present evidence on their behalf); 8 CFR 1240.7(a); see also Nyama, 357 F.3d at 816 (‘‘The traditional rules of evidence do not apply to immigration proceedings . . . . ‘The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’ ’’ (quoting Espinoza, 45 F.3d at 310)). Noncitizens may also request to provide additional testimony where they believe that it is necessary, as described above in Section III of this preamble. Comments: Commenters expressed concerns that, by relying solely on the record before the asylum officer, the NPRM would effectively result in IJs ‘‘rubber-stamping’’ asylum officer decisions without providing meaningful review and oversight. Commenters stated that full evidentiary hearings before an IJ provide an essential check on errors during the credible fear interview and affirmative interview processes. Commenters stated that the NPRM does not mandate that IJs have the same obligations regarding evidence and the record that are set forth in the INA for section 240 proceedings, such as an obligation to ‘‘administer oaths, receive evidence, and interrogate, examine, and cross-examine the [noncitizen] and any witnesses.’’ INA 240(b)(1), 8 U.S.C. 1229a(b)(1). Instead, commenters stated that the NPRM would create a presumption against holding immigration court hearings and against the presentation of additional evidence or testimony. Commenters were concerned that, as a result, IJs would pretermit claims and affirm decisions VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 not granting asylum without first conducting a hearing in person. Commenters urged that a fuller review is necessary to prevent a negative use of the asylum officer’s increased authority under the NPRM in the future. Similarly, commenters also expressed concern that future IJ performance metrics could exacerbate these issues by encouraging overly cursory reviews. Response: As an initial matter, the decision to place noncitizens whose applications are adjudicated but not granted by the asylum officer in streamlined section 240 proceedings, rather than the NPRM’s proposed IJ review proceedings, addresses commenters’ concerns that limited proceedings would not allow for meaningful review and oversight by the IJ. In particular, the switch to streamlined section 240 proceedings will ensure that the IJ’s review is meaningful and not a ‘‘rubber-stamp’’ of the asylum officer’s decision. The streamlined section 240 proceedings established by the IFR will allow noncitizens to submit additional testimony or evidence, if they deem it necessary, as described at new 8 CFR 1240.17(e), (f). Accordingly, commenters’ concerns—that the IJ could deny an application based solely on the record before the asylum officer without allowing the noncitizen to testify or provide evidence—are no longer applicable. The Departments believe that the procedures in this IFR also ameliorate commenters’ concerns over statements in the NPRM that IJs could decide whether to accept additional evidence or make a determination based solely on the asylum officer’s record. In addition to applying the statutory procedures regarding evidence and maintenance of the record set forth in section 240 of the Act, 8 U.S.C. 1229a, the IFR permits noncitizens to request to provide additional testimony where necessary and only permits the IJ to deny such requests where the IJ concludes there is sufficient evidence in the record to grant the asylum application without hearing additional testimony. The Departments further believe that the detailed review procedures set forth in the IFR alleviate commenters’ concerns about IJs adjudicating applications without adequately reviewing asylum officer decisions. Because the IFR ameliorates the commenters’ concerns on these points, the IFR also addresses the commenters’ related concern that future IJ performance metrics could exacerbate these issues.81 81 EOIR no longer reviews IJ performance through individual IJ performance metrics. IJs are held to PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 Comments: Commenters disputed the NPRM’s justification that the limited review proceedings would increase efficiency in the asylum adjudication process. For example, commenters stated that IJs would have to divert resources from substantive adjudications to address a large number of motions or appeals resulting from confusion over the requirement that the applicant affirmatively request further IJ review within a short time period. Commenters suggested that this provision may also spark litigation and diversion of resources to correct injustices that would otherwise lead the United States to return refugees to persecution, in violation of nonrefoulement principles. Commenters also remarked that the NPRM did not adequately explain why establishing an entirely separate process through the Asylum Office and courts would serve efficiency interests when those same officials would continue to be tasked with their current functions and duties. Commenters said that the Departments did not provide a meaningful rationale for why a separate procedure apart from section 240 proceedings was necessary to carry out efficient, just results for asylum seekers. Commenters suggested that it would be more efficient to place all applicants in section 240 proceedings, instead of the NPRM’s IJ review procedure, because the novel proceedings would give rise to prolonged disputes about the introduction of new evidence to supplement the asylum officer’s record or support prima facie eligibility for alternative relief. Commenters argued that motions that would increase under the NPRM would include motions to file additional evidence; motions to vacate the limited asylum-, withholding-, and CAT-only proceedings to pursue other relief or protection; and the inevitable cross-motions, motions to reconsider, interlocutory appeals to the BIA, motions to reopen, and petitions for review by U.S. Courts of Appeals. Commenters also asserted, generally, that challenges to expedited removal cases are already compounding the backlog of cases. high ethical standards, in part, to avoid impropriety or the appearance of impropriety, which would include deciding cases consistent with performance metrics rather than applicable law and regulations. See IJ Ethics and Professionalism Guide (providing that IJs must be faithful to the law, maintain professional competence in the law, act impartially, and avoid actions that would create the appearance that the IJ is violating the law or applicable ethical standards); see also EOIR Policy Manual, Part II, ch. 1.3(c) (stating that IJs ‘‘strive to act honorably, fairly, and in accordance with the highest ethical standards’’). E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations Response: The IFR addresses nearly all of the commenters’ concerns by providing that noncitizens whose applications are adjudicated but not granted by the asylum officer will now be placed in streamlined proceedings under section 240 of the Act, 8 U.S.C. 1229a. The Departments emphasize that section 240 proceedings are the default, most common type of removal proceeding. This familiar framework safeguards due process interests by ensuring that noncitizens have certain rights and protections in such proceedings. See INA 240(b)(4), 8 U.S.C. 1229a(b)(4). The Departments believe that adhering to this statutory framework, but establishing procedural case-processing measures specific to this category of cases, will further the Departments’ efficiency interests without undermining fairness in proceedings. Further, noncitizens in streamlined section 240 proceedings may apply for other forms of relief or protection without the need to first submit a motion to the IJ to vacate the asylum officer’s order of removal, which would have been the case under the NPRM at 8 CFR 1003.48(d) (proposed). See 86 FR 46920. The IFR provides, at new 8 CFR 1240.17(k)(2), that a noncitizen will not be subject to the streamlined procedures if the noncitizen produces evidence of prima facie eligibility and the noncitizen is seeking to apply for, or has applied for, such relief or protection other than asylum, statutory withholding of removal, withholding or deferral of removal under the CAT, and voluntary departure. Comments: Commenters asserted that the NPRM’s IJ review procedure would violate the Act or is otherwise contrary to congressional intent. First, commenters asserted that the Act requires that individuals in expedited removal who seek review of asylum officers’ decisions not to grant asylum be placed in full section 240 removal proceedings. Commenters further stated that none of the statutory sections on which the NPRM relied displaces the statutory presumption of section 240 removal proceedings. Commenters stated that nothing in the Act suggests that Congress exempted from section 240 removal proceedings noncitizens seeking asylum who are determined to have credible fear, or any subset of that population. Commenters argued that the Departments’ statutory interpretation erroneously rests on the negative inference that section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), permits proceedings other than section 240 VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 proceedings because that section does not explicitly require section 240 proceedings, as compared with section 235(b)(2) of the Act, 8 U.S.C. 1225(b)(2), which explicitly requires section 240 proceedings. Commenters asserted that reading is erroneous because section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), establishes a general rule that applicants for admission must be placed in section 240 removal proceedings. Commenters believe that section 235(b)(2)(B)(ii) of the Act, 8 U.S.C.1225(b)(2)(B)(ii), then creates an exception to that automatic entitlement for those defined as ‘‘arriving’’ in section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), because such individuals are placed in expedited removal. In sum, commenters generally assert that DHS screens 8 U.S.C. 1225(b)(1) applicants to determine which of the two statutorily established methods of removal will apply: Expedited removal for those without credible fear, or standard removal proceedings for those who establish credible fear. Commenters asserted that the statute has never been and cannot now reasonably be understood to exclude all (b)(1) applicants from a full removal hearing once they are no longer subject to the expedited removal process. Commenters also disputed the Departments’ interpretation of section 235(b)(2)(A) of the Act, 8 U.S.C. 1225(b)(2)(A), and statement that ‘‘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.’’ 86 FR 46917. Commenters argue that a credible fear screening creates an exit from expedited removal proceedings, and, by design, those who establish credible fear are no longer subject to expedited removal. Thus, commenters concluded, the Departments’ view that people seeking asylum can be forced into lesser proceedings in immigration court is contrary to law. Commenters also believe that the legislative history of expedited removal demonstrates that Congress intended for all noncitizens found to possess a credible fear of persecution or torture to be afforded section 240 proceedings. Commenters stated that, in drafting the asylum statute and significantly amending the Act through IIRIRA, it is clear that Congress contemplated that asylum seekers would be afforded an opportunity to defend against deportation before an IJ in full section 240 proceedings, which include various procedural and due process safeguards. PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 18163 Specifically, commenters cited the congressional record in support of their position. See, e.g., 142 Cong. Rec. S4461 (1996) (statement of Sen. Alan Simpson) (‘‘[T]he bill provides very clearly an opportunity for every single person[, even those] without documents, or with fraudulent documents . . . to seek asylum.’’). Commenters further argued that IIRIRA includes three levels of screening to ensure that asylum seekers are clearly identified so that genuine asylum seekers are not subject to the expedited procedures that apply to nonasylum seekers. In support, commenters referenced statements by the chief drafters of the law explaining that asylum seekers can be ordered removed only after full section 240 proceedings where they can submit evidence, call witnesses, and testify. See, e.g., 142 Cong. Rec. S4492 (1996) (statement of Sen. Alan Simpson) (‘‘If [asylum seekers] have credible fear, they get a full hearing without any question.’’). Commenters also suggested that other provisions in the Act demonstrate congressional intent to place such applicants in section 240 removal proceedings. For example, commenters stated that at the same time Congress enacted expedited removal, Congress gave asylum seekers a full year to submit an initial application in recognition that asylum cases take time to prepare. Accordingly, commenters said that the NPRM contravened congressional intent by precluding access to section 240 removal proceedings for applicants not granted asylum following a positive credible fear interview. On the other hand, some commenters objected to the NPRM on the basis that it would extend the credible fear and review process further than Congress intended. Specifically, these commenters asserted that the additional review by the asylum officers and within USCIS undermined congressional intent for the expedited removal process to be truly expedited. In support, commenters cited Congress’s statutory scheme to limit the administrative review of expedited removal orders and limit judicial review of determinations made during the expedited removal process. See INA 242, 8 U.S.C. 1252. Commenters concluded that creating additional levels of review would slow the credible fear process, waste administrative resources, and run counter to Congress’s legislative aims. Commenters stated that the restrictions on IJs in the NPRM’s limited proceedings would conflict with the IJ’s role to develop the record before the E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18164 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations court. Commenters stated that the Act and its implementing regulations require IJs to take an active role in section 240 removal proceedings to develop the record and ensure that applicants are advised of the nature of the proceedings, as well as their rights and responsibilities therein. See, e.g., Abdurakhmanov v. Holder, 735 F.3d 341, 346 n.4 (6th Cir. 2012) (‘‘An IJ has . . . an obligation[ ] to ask questions of the [noncitizen] during the hearing to establish a full record . . . . [The questioning] should be designed to elicit testimony relevant to the fair resolution of the [noncitizen’s] applications.’’); Toure v. Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006) (‘‘[A]n IJ has a duty to develop an applicant’s testimony, especially regarding an issue that she may find dispositive . . . .’’ (citing Matter of S–M–J–, 21 I&N Dec. at 723– 26)). Commenters stated that this duty differentiates IJs from Article III judges but is consistent with other types of administrative proceedings. Commenters explained that in the immigration context, courts have recognized that unique features of immigration court proceedings require IJs to fill this role to ensure fair and accurate adjudications. In addition, commenters stated that the NPRM’s IJ review procedure would conflict with the United States’ international obligations, including nonrefoulement, because it would diminish the significance of immigration court review as a safeguard. On the other hand, commenters stated that the protections afforded to applicants in section 240 proceedings comport with UNHCR guidance emphasizing that the asylum adjudicator’s role is to ‘‘ensure that the applicant presents his case as fully as possible and with all available evidence.’’ See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 205(b)(1) (2019), https://www.unhcr.org/en-us/ publications/legal/5ddfcdc47/ handbook-procedures-criteriadetermining-refugee-status-under-1951convention.html (last visited Mar. 5, 2022). Commenters also expressed concerns that the NPRM would effectively penalize asylum seekers based on their manner of entry—in violation of Article 31 of the Refugee Convention—as the NPRM would apply only to persons who have sought asylum at or after recently crossing the border. Response: The Departments have considered commenters’ concerns that the NPRM’s proposal that noncitizens not granted asylum by the asylum officer would immediately be ordered VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 removed, with the opportunity to seek IJ review through a newly created proceeding, would violate congressional intent, the Act, and international obligations. Through this IFR, noncitizens not granted asylum by the asylum officer instead will be referred to streamlined section 240 proceedings before an IJ. While the Departments are establishing procedural steps to ensure the efficient disposition of these cases, noncitizens in streamlined section 240 proceedings established by the IFR are entitled to the same general rights and protections as noncitizens in section 240 proceedings. See, e.g., INA 240(b)(4), 8 U.S.C. 1229a(b)(4) (setting forth noncitizens’ rights in proceedings). This shift generally resolves the commenters’ concerns on these points by returning to the use of section 240 proceedings and affirming the role of the IJ as the adjudicator, while still ensuring that the proceedings are completed expeditiously. The Departments disagree, however, with commenters’ argument that the NPRM violates congressional intent to create an efficient expedited removal process by proposing an additional layer of adjudication and review by the asylum officer. Specifically, the Departments believe that the commenters’ concerns erroneously conflate expedited removal of noncitizens who have not demonstrated a credible fear of persecution or torture with the separate process that occurs for noncitizens who have established a credible fear of persecution or torture. The Act makes clear that most noncitizens who are arriving in the United States, if inadmissible under certain provisions of the Act, will be removed ‘‘without further hearing or review.’’ INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). The Act carves out one exception to this general rule: If the noncitizen indicates a fear of persecution or torture or an intention to apply for asylum, rather than face immediate removal, the noncitizen will instead be interviewed by an asylum officer to determine whether the noncitizen has a credible fear of persecution. INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If, during the interview, the noncitizen does not demonstrate a credible fear, the Act again calls for the noncitizen’s immediate removal ‘‘without further hearing or review.’’ INA 235(b)(1)(B)(iii)(I), 8 U.S.C. 1225(b)(1)(B)(iii)(I).82 This IFR does not 82 Although the Act states that, under these circumstances, the noncitizen will be removed without further hearing or review, the Act also provides for a very limited IJ review of the asylum PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 make any significant changes to the implementing regulations for these statutory provisions. Although the initial screening process is intended to be expedited, once a noncitizen is determined to have a credible fear of persecution or torture, the Act no longer calls for the noncitizen’s removal without further hearing or review. Rather, it establishes that the noncitizen’s application for asylum shall be given ‘‘further consideration.’’ INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).83 The Act does not specify the contours of or the appropriate speed at which such further consideration should occur before a noncitizen receives a final adjudication. The Departments believe that the ‘‘further consideration’’ directed by Congress reasonably encompasses establishing a procedure under which an asylum officer adjudicates the asylum application in the first instance and, if the application is not granted, refers the noncitizen to streamlined section 240 proceedings. The Departments believe that this procedure will be more efficient than the current lengthy process in which noncitizens are referred directly to section 240 proceedings, both because cases that can readily be granted by the asylum officer will be removed from the docket, and because cases referred to the immigration court will arrive in immigration court with the benefit of a record assembled by the asylum officer that enables these section 240 proceedings to be substantially streamlined, as outlined above in Section III of this preamble. Commenters’ references to provisions of the Act that limit judicial review of decisions made during the initial screening process—i.e., whether there is expressed or established credible fear of persecution or torture—are inapposite because those provisions only limit judicial review of decisions made during that initial screening process. The Departments’ view is that Congress did not eliminate or limit judicial review in cases involving noncitizens determined to have credible fear just because they were initially screened as possible candidates for expedited removal. See Thuraissigiam, 140 S. Ct. at 1965 (‘‘Applicants can avoid officer’s determination that the noncitizen does not have a credible fear of persecution or torture. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). The IJ’s decision reviewing the asylum officer’s credible fear determination is final and not subject to reconsideration or appeal. 8 CFR 1208.30(g)(2)(iv)(A). 83 For further discussion regarding the legal authority for the NPRM, see Section II.B of this preamble. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations expedited removal by claiming asylum . . . . If the asylum officer finds an applicant’s asserted fear to be credible, the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing.’’ (footnotes omitted)). Comments: Commenters emphasized the importance of judicial review for adjudicating applications for asylum or protection, particularly for marginalized groups, and expressed concern that the NPRM would not sufficiently protect the right to judicial review. Commenters suggested placing applicants whose claims are adjudicated but not granted by an asylum officer in section 240 proceedings rather than a new proceeding to ensure judicial review and avoid potential future litigation about the Federal courts’ jurisdiction over these cases. While commenters primarily advocated for section 240 proceedings, they also recommended additional ways to improve the NPRM’s proceedings to ensure adequate judicial review, such as, for example, amending the rule so that the IJ, not the asylum officer, would issue a removal order. The noncitizen could then appeal the IJ’s decision to the BIA and seek judicial review of the BIA’s decision. In contrast, other commenters disagreed that further changes are needed to protect judicial review and emphasized that the NPRM does not alter any current safeguards for individuals seeking asylum or protection. The commenters reiterated that those who are not granted asylum, withholding of removal, or protection under the CAT by an asylum officer would still have the option to have their cases heard by the immigration court, which would be a second level of review. Response: The Departments agree with commenters that the Departments’ procedures must ensure the right to judicial review of adjudications of applications for asylum or protection. Judicial review ensures fairness and accuracy in immigration proceedings, and Congress specifically sought to ensure review remained available for asylum applications while otherwise limiting review over other types of decisions. See INA 242(a)(2)(B)(ii), 8 U.S.C. 1252(a)(2)(B)(ii) (Congress limiting judicial review of agency decisions regarding discretionary forms of relief ‘‘other than the granting of relief under [INA 208(a),] section 1158(a) of this title.’’). Regarding commenters’ concerns that the procedure proposed in the NPRM might not allow for further judicial review, the Departments disagree with VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 that view and, in any case, emphasize that the process has been revised as described above in Section III of this preamble so that noncitizens whose applications are adjudicated but not granted by the asylum officer will be issued an NTA and placed in streamlined section 240 proceedings. As with all section 240 removal proceedings, a noncitizen may first appeal the IJ’s decision to the BIA, 8 CFR 1240.15, and then appeal the BIA’s decision to a Federal circuit court, INA 242, 8 U.S.C. 1252. In addition, under the IFR, the IJ issues the removal order, if applicable, rather than the asylum officer, consistent with some commenters’ suggestions. The changes under this IFR demonstrate the Departments’ continued commitment to fair adjudications, and address commenters’ concerns regarding the need to ensure the availability of judicial review. The Departments are committed to maintaining longstanding procedural protections inherent in section 240 proceedings for noncitizens subject to the expedited removal process and subsequently determined to have a credible fear of persecution or torture. The Departments acknowledge that some commenters supported the NPRM’s approach, and the Departments believe that the IFR will maintain the efficiencies and benefits provided for in the NPRM through the implementation of the new streamlined 240 removal proceedings. b. De Novo Review of Full Asylum Hearing Record and Consideration of Additional Testimony and Evidence Comments: Commenters disputed the NPRM’s characterization of the proposed IJ review proceedings as ‘‘de novo,’’ stated that use of the term ‘‘de novo’’ is ‘‘paradoxical’’ and ‘‘misleading,’’ and said that the proposed IJ review process may violate asylum seekers’ due process rights. Commenters said that any standard of review other than a true de novo review would be inconsistent with the challenges associated with the effects of trauma, gathering evidence, and the asylum officers’ previous role in granting or referring cases, not denying applications for asylum. Commenters stated that, while 8 CFR 1003.48(e) as proposed in the NPRM referred to the review by the IJ as ‘‘de novo,’’ the use of the phrase ‘‘de novo’’ appears to be misplaced. Commenters further stated that the current review proceedings for affirmative asylum applicants referred to immigration court, in which the IJ holds a new hearing and issues a decision PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 18165 independent from the asylum officer, are considered de novo review. On the other hand, commenters noted that, while the NPRM calls the new proceedings de novo, the IJ would not be required to conduct a new hearing independent of the asylum officer’s decision. The commenters said a ‘‘de novo’’ hearing would typically treat a case as if it were being heard for the first time, but the NPRM limits the scope of ‘‘de novo’’ hearings by imposing evidentiary restrictions and limiting the IJ review to the transcript of the interview. Similarly, commenters also opposed the NPRM’s use of the term ‘‘shall’’ when directing the IJ to review the asylum officer’s decision and use of the term ‘‘may’’ when directing the IJ to consider additional evidence. Commenters explained that such terms impute an improper deference to the asylum officer’s decision and limit the applicant’s ability to supplement the record. At least one commenter expressed concern that the IJ’s review of the asylum officer’s decision would become similar to IJ review of asylum officers’ credible fear interview decisions, which commenters disputed was a de novo review. Response: First, the Departments clarify that de novo review is a ‘‘court’s nondeferential review of an administrative decision, usu[ally] through a review of the administrative record plus any additional evidence the parties present.’’ Review, de novo review, Black’s Law Dictionary (11th ed. 2019). De novo review does not mean, as some commenters suggested, that proceedings must begin anew without reference to the underlying decision (indeed, this construction would undermine the entire concept of a review) or with unlimited opportunities to submit new record evidence. Id. (‘‘[N]ondeferential review of an administrative decision’’ usually involves review of the ‘‘administrative record’’ and ‘‘additional evidence’’ presented by the parties.). For example, the BIA conducts de novo review of legal questions, even though it generally may not consider new record evidence. See 8 CFR 1003.1(d)(3)(ii) (‘‘The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.’’). The de novo review standard permits the BIA to draw legal conclusions without deference to the IJ’s decision, based upon the record before it. By contrast, the BIA may only overturn an IJ’s finding of fact where, based upon the existing record, the IJ’s E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18166 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations finding was ‘‘clearly erroneous.’’ See 8 CFR 1003.1(d)(3)(i). In sum, the distinction between de novo review and other standards of review, such as clear error, is not based upon whether parties may submit additional record evidence, but rather how much deference the adjudicator must give to the underlying determinations based upon the existing record evidence. Accordingly, commenters’ implications that a credible fear review under 8 CFR 1208.30(g) is not a de novo review are inaccurate. De novo review is a widely used standard of review in immigration proceedings and, under the IFR, IJs will conduct de novo review of asylum officer decisions as described at new 8 CFR 1240.17(i). Second, the Departments emphasize that commenters’ concerns regarding the submission of evidence under the NPRM are ameliorated by the IFR’s shift from the limited review proceedings to streamlined 240 proceedings as discussed above in Section III of this preamble. Specifically, under the IFR, either party may submit record evidence and request to present testimony, pursuant to new 8 CFR 1240.17(f)(2)(i) and (ii). The IFR directs IJs to review an asylum officer’s decision de novo, see new 8 CFR 1240.17(i), and the admission of evidence is governed by an evidentiary standard consistent with that currently used in section 240 proceedings. Given the shift to that evidentiary standard, the IFR does not contain the language stating that the IJ ‘‘may’’ accept additional evidence. Comments: Multiple commenters expressed due process concerns associated with the NPRM’s proposed de novo review proceedings before an IJ, in particular with the limitations that any additional testimony or documentation reviewed by the IJ must be ‘‘necessary’’ and ‘‘not duplicative.’’ Overall, commenters stated that the NPRM seemed to eliminate or dilute longstanding procedural rights that noncitizens have had in section 240 removal proceedings. Commenters stated that the NPRM would deprive many asylum seekers of a meaningful opportunity to present their full story because a full examination would not occur before asylum officers, and evidentiary hearings before an IJ would generally be foreclosed. Commenters explained that this outcome is particularly inappropriate in situations where an IJ denies an application on the basis of an adverse credibility finding. Some commenters stated that the Departments appeared to contemplate that the asylum seeker would not ever appear before the IJ in most cases VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 because the IJ would simply issue a decision based on the IJ’s review of the asylum officer’s record. Commenters compared this alleged limitation to EOIR’s Case Flow Processing policy, which commenters stated limits master calendar hearings. Commenters explained that this hearing limitation essentially gives the IJ an appellate review role but deprives the asylum seeker’s counsel from providing briefing to the IJ. One commenter stated that depriving asylum seekers of an evidentiary hearing would be ‘‘overkill’’ because the new proceedings outside of section 240 proceedings already would save significant time for IJs by narrowing the legal issues to be decided and shrinking the scope of relief or protection. Commenters stated that the nature of the hearings before the IJ would exacerbate rather than correct issues that may arise in the proceedings before the asylum officer because the hearing before the IJ is one in which the IJ reviews the record already created by USCIS. For example, commenters claimed the record would be sparse and unlikely to reflect a full accounting of the harm, persecution, or torture the asylum seeker experienced. Commenters alleged that the cumulative effect of this limitation as well as the evidentiary limitation would be to extend summary removal from the stage of threshold contact through the period when the claim is disposed of on the merits. At a minimum, commenters urged that the NPRM be revised to permit the taking of fresh testimony and the submission of new evidence to the IJ upon a proper showing. Further, commenters disputed that the NPRM’s proposed procedure would result in a ‘‘complete’’ record. One commenter alleged that the proposed nonadversarial procedures would relegate attorneys to ‘‘passive observer status’’ and prevent them from developing ‘‘critical elements’’ of a record, usually developed through presenting testimony, calling witnesses, or submitting documentary evidence. Also, regarding the evidentiary rules in the application review proceedings before the IJ, commenters said it is unclear whether an IJ would be required to give notice and an opportunity to provide additional evidence before summarily affirming the asylum officer’s decision. Commenters said the Ninth Circuit has long held that the IJ must give the asylum applicant notice of the evidence required and an opportunity to provide it if the IJ believes further corroborating evidence is required to support an otherwise credible application. However, the PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 commenters continued, there is no similar process for asylum interviews, which generally occur in one day, with all evidence required to be submitted prior to the interview. Commenters said that IJs would need additional training in order to preserve fairness and due process, given the distinct nature of reviewing interview transcripts. Commenters expressed concern that the NPRM did not adequately consider what this training may involve, but commenters urged the Departments to develop this training before enacting a final rule. Commenters said it is reasonable to expect that many asylum seekers would want to provide supplemental evidence and recommended that the Departments provide further assurances that asylum seekers would be able to do so and are entitled to a comprehensive review of their case before an IJ. To comport with due process and minimize the risk of refoulement, commenters asserted that the NPRM should prohibit pretermission by IJs based solely on the asylum officer’s record and should instead specify a presumption of admissibility of new evidence and eliminate the requirement that parties must file motions to supplement the record. Response: As described above, the Departments have decided to refer all noncitizens whose applications are adjudicated but not granted by the asylum officer to streamlined section 240 removal proceedings rather than implementing the IJ review procedure proposed in the NPRM. As part of the streamlined section 240 removal proceedings, the Departments are not proposing to apply a novel evidentiary standard, and, instead, will adopt an evidentiary standard consistent with that used in section 240 removal proceedings. Parties to proceedings are familiar with this standard, and IJs have experience in its application. Further, while streamlined section 240 removal proceedings under this IFR include certain procedural requirements to maintain the expedited nature of the overall process, noncitizens will be assured the longstanding due process rights inherent in section 240 removal proceedings. The Departments emphasize that this decision not to adopt the NPRM’s proposed evidentiary restrictions will not reduce the efficiencies the Departments sought in the NPRM. In fact, as previously explained, the Departments believe that the IFR’s streamlined section 240 removal proceedings will be equally as effective as the NPRM’s proposed IJ review proceedings in enhancing efficient E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations adjudication and replacing timeconsuming evidentiary hearings. For example, the IFR provides that the asylum officer’s record will be automatically transmitted upon DHS’s issuance of an NTA, which will expedite the parties’ ability to narrow the issues and assist the IJ’s review of the case. The IFR also provides that if neither party requests to present testimony, or if the IJ determines that the asylum application can be granted without hearing testimony, and DHS does not request to present evidence or witnesses or to cross-examine the noncitizen, the IJ can decide the case without a hearing. The IFR also provides various deadlines and procedural measures to ensure efficient processing that preclude the need to conduct a full evidentiary hearing or otherwise facilitate a more efficient hearing. The Departments disagree with commenters that noncitizens will be deprived a meaningful opportunity to present their claims to asylum officers. Asylum officers conduct interviews with the purpose of ‘‘elicit[ing] all relevant and useful information bearing on the applicant’s eligibility for asylum.’’ 8 CFR 208.9(b). Asylum officers receive specialized training and information in order to carry out their duties with professionalism and competence. See 8 CFR 208.1(b). Asylum officers have experience with (and receive extensive training on) eliciting testimony from applicants and witnesses, engaging with counsel, and providing applicants the opportunity to present, in their own words, information bearing on eligibility for asylum. As described in the NPRM, asylum officers will ‘‘develop[ ] and consider[ ] the noncitizen’s claim fully, including by taking testimony and accepting evidence, during the nonadversarial proceeding.’’ 86 FR 46918. Asylum officers also are trained to give applicants the opportunity to provide additional information that may not already be in the record so that the asylum officer has a complete understanding of the events that form the basis for the application. Thus, the hearing before the asylum officer functions as an evidentiary hearing, as the applicant is required to ‘‘provide complete information regarding the applicant’s identity, including name, date and place of birth, and nationality, and may be required to register this identity.’’ 8 CFR 208.9(b). Further, the noncitizen may have counsel or a representative present, present witnesses, and submit affidavits of witnesses and other evidence. Id. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Noncitizens who are placed in the new process established by this IFR will have multiple opportunities to provide information relevant to their claims before USCIS asylum officers in nonadversarial settings, and at different stages will have the opportunity for an IJ to review or consider their asylum claim de novo. Further, the Departments disagree with commenters that IJs need special training to review transcripts. IJs regularly review hearing notes and records from USCIS, transcripts of hearings that indicate a criminal conviction, and transcripts of oral decisions that are appealed to the BIA. See, e.g., 8 CFR 1003.5(a) (transcripts for the BIA); 8 CFR 1003.41(a)(4) (criminal hearing transcripts); see also EOIR Policy Manual, Part VIII, Ch. VIII.3.A: Uniform Docketing System Manual (providing process under which IJs must review oral decisions and transcripts through eTranscription); Operating Policies and Procedures Memorandum (‘‘OPPM’’) 84–9: Processing Hearing Transcriptions (Oct. 17, 1984) (transcripts from USCIS). In light of established DOJ guidance, as well as the general presumption of administrative regularity, the Departments are confident that IJs will continue their work with professionalism and competency. See Chem. Found., 272 U.S. at 14–15; see also IJ Ethics and Professionalism Guide. Regarding comments on pretermission—that is, the practice of denying applications on the papers without hearing an applicant’s testimony because the IJ concludes that the applicant has not made a prima facie case for the relief or protection sought— to the extent that commenters refer to pretermission of asylum applications under the separate Global Asylum rule, that rule is currently enjoined.84 The NPRM and this IFR do not rely on or involve that rule’s discussion of pretermission of asylum applications. If commenters are alleging that the NPRM’s IJ review proceedings would effectively result in pretermission, the Departments disagree but emphasize that, as described above in Section III of this preamble, this IFR revises the NPRM to provide streamlined section 240 proceedings with certain procedural requirements in new 8 CFR 1240.17 that include, in part, the submission of additional evidence. In addition, as provided in new 8 CFR 1240.17(f)(4)(i)– (ii), an IJ may not determine the noncitizen’s eligibility for relief in these proceedings without a hearing unless 84 See supra note 4 (discussing recent regulations and their current status). PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 18167 the noncitizen does not wish to testify or the IJ determines that the application can be granted. Accordingly, the Departments find that commenters’ concerns with pretermission under the Global Asylum rule, which would have allowed an IJ to pretermit and deny an application, are addressed by the procedures set out in the IFR. The IFR does not disturb the evidentiary standard applicable in section 240 removal proceedings. Comments: One commenter stated that the criteria for a noncitizen to supplement the record before the IJ— whether evidence is ‘‘duplicative’’ or ‘‘necessary’’—is a ‘‘fuzzy concept’’ and others argued that the standard may implicate due process violations or cause delay. Commenters urged the Departments to describe clearly what evidence and testimony is ‘‘necessary’’ and ‘‘not duplicative’’ to develop the factual record and to specify that the threshold to meet these standards is low. For example, one commenter explained that ‘‘duplicative’’ can mean ‘‘effectively identical,’’ and it can mean ‘‘involving duplication’’ to some lesser degree. In the latter sense, the commenter explained that it means ‘‘unnecessarily doubled or repeated,’’ which would likely be subjective. The commenter said the NPRM provides no basis for determining what is ‘‘duplicative.’’ Likewise, commenters stated that the NPRM provides no guidance on what new testimony or documentation may be ‘‘necessary.’’ For example, one commenter stated that much evidence that is relevant or critical can be seen as not ‘‘necessary’’ to ‘‘a reasoned decision.’’ Moreover, commenters alleged that a strict reading of the ‘‘necessity’’ requirement could be mandated by future decisions of the Attorneys General and would turn IJs into reviewers of a record created by the asylum officer. Thus, commenters explained, the NPRM threatens to turn an immigration court proceeding in this context into one that is adversarial in name only, with a concomitant loss of faith in the integrity of the process. Commenters stated that, given that the rules of evidence do not apply in immigration court, the interpretation of the evidentiary standards would be left to each individual IJ. Commenters stated that, based on their experience, IJs would have widely different interpretations, leading to inconsistent application and confusion among applicants and counsel. Other commenters explained that the NPRM creates a new, unknown standard in immigration court proceedings rather E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18168 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations than relying on the longstanding discretionary authority of IJs to conduct and control the nature of the proceedings. One commenter found ‘‘enormous discrepancies’’ among IJs’ handling of discretionary motions. At least one commenter alleged that many courts along the Southwest border would be antagonistic to a discretionary motion like that contemplated by the NPRM. The commenter said the pressure, volume of cases, and speed required of IJs along the border make it far less likely that the IJs would look upon these motions favorably. Commenters stated that pro se individuals, in particular, may hesitate to submit additional evidence out of fear that it will be rejected as duplicative or unnecessary. Commenters stated that the NPRM lacked guidance for adjudicators on these terms and would lead to further delay because the parties would litigate the issue of admissibility of evidence. Commenters further stated that this litigation would also make judicial review of the determination to exclude evidence virtually impossible. Commenters stated that the NPRM does not specify what an asylum officer’s decision must contain, such that an incomplete or undeveloped asylum application record might pass muster at the IJ level. One commenter stated that it is unclear how IJs ‘‘will explain in court the standards for submitting additional testimony and documentation’’ if IJs merely conduct a paper review ‘‘solely on the basis of the record before the asylum officer.’’ Thus, commenters urged the Departments to specify when and how IJs would provide this explanation to noncitizens and mandate that the IJ explain the standard in all cases, rather than on a discretionary basis. Response: As described above in Section III of this preamble, the Departments have decided to refer noncitizens whose applications for asylum are not granted by the asylum officer to streamlined section 240 removal proceedings rather than implementing the IJ review proceedings proposed in the NPRM. As part of the streamlined section 240 proceedings, the Departments are no longer proposing to apply the NPRM’s evidentiary standard, but, instead, as provided in new 8 CFR 1240.17(g)(1), will apply an evidentiary standard consistent with that applied in section 240 proceedings. See 8 CFR 1240.7(a); see also Matter of D–R–, 25 I&N Dec. 445, 458 (BIA 2011) (‘‘In immigration proceedings, the sole test for admission of evidence is whether the evidence is probative and its admission is VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 fundamentally fair.’’ (quotation marks and citation omitted)); Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010) (‘‘[IJs] have broad discretion to conduct and control immigration proceedings and to admit and consider relevant and probative evidence.’’). Parties to proceedings are familiar with this standard, and IJs have experience in its application. Accordingly, the Departments find that this change addresses commenters’ concerns with the NPRM’s evidentiary standard, including the potential for its inconsistent application, negative impacts on pro se individuals, the need for corresponding guidance for adjudicators, and the need for clarity regarding how noncitizens would be informed of the new standard. The IFR does not disturb the current evidentiary standard for section 240 removal proceedings. Nevertheless, in response to commenters’ concerns about IJs’ inconsistent application of evidentiary standards and discretionary motions determinations, the Departments emphasize that IJs exercise independent judgment and discretion in adjudicating cases before them. See 8 CFR 1003.10(b); see generally IJ Ethics and Professionalism Guide (requiring IJs to, inter alia, be faithful to the law, maintain professional competence in the law, act impartially, and avoid actions that would create the appearance of violations of the law or applicable ethical standards). IJs will continue to interpret and apply applicable law and regulations, regardless of geographic location or caseload. In response to comments that the NPRM could result in the adjudication of allegedly incomplete or undeveloped asylum applications, the Departments first emphasize that asylum officers receive thorough training and regularly adjudicate affirmative applications for asylum. See 8 CFR 208.1(b), 208.14. Every case presents a unique set of facts, but asylum officers are trained to elicit ‘‘all relevant and useful information bearing on whether the [noncitizen] can establish credible fear’’ of persecution or a reasonable possibility of torture during the interview, which forms the basis of the decision. 8 CFR 208.30(d). Under the IFR in new 8 CFR 1240.17(c), asylum officers also provide numerous documents to the IJ. Also, under the IFR, in credible fear determinations, the asylum officer must provide to the IJ a written record of the determination, including copies of the asylum officer’s notes, a summary of the material facts as stated by the applicant, any additional facts relied on by the asylum PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 officer, and the asylum officer’s determination of whether, in light of such facts, the noncitizen established a credible fear of persecution or torture. 8 CFR 208.30(e)(1), (f), (g). Under new 8 CFR 1240.17(c) and (e), and 8 CFR 208.9(f), from the Asylum Merits interviews, the asylum officer must provide to the IJ all supporting information provided by the noncitizen, any comments submitted by the Department of State or DHS, any other unclassified information considered by the asylum officer in the written decision, and a verbatim transcript of the interview. Notwithstanding these requirements, under the IFR in new 8 CFR 1240.17(f)(2)(i)(A), and (g), the noncitizen may submit additional evidence or testimony, consistent with the applicable evidentiary standard, to supplement the record during any subsequent IJ review. Considering all this information, the Departments disagree with the assertion that an IJ would make a decision based on an ‘‘incomplete’’ or ‘‘undeveloped’’ record, as commenters alleged. Comments: Multiple commenters said that the NPRM’s process and evidentiary standards would allow IJs to review an interview transcript and concur with asylum officers’ decisions to not grant asylum with little due process (so-called ‘‘rubber-stamping’’) and without meaningful participation by asylum seekers’ counsel. Commenters alleged that the requirement that litigants make an initial showing that evidence is new and not duplicative would allow IJs to ‘‘rubber-stamp’’ the asylum officer’s negative determination. One commenter was especially concerned that the IJ decisions would be based on ‘‘severely truncated hearings,’’ where asylum seekers do not have a right to counsel, are not allowed to present testimony or evidence, and where asylum officers take often incomplete and incorrect notes. Commenters stated that the NPRM contained no provision by which an applicant may challenge a negative decision by the IJ to exclude additional evidence, which could lead to a ‘‘rubber-stamp’’ of the underlying asylum officer’s decision to not grant asylum. Similarly, one commenter said that the NPRM would essentially allow the alleged current ‘‘disturbing practice’’ of IJs ‘‘rubber stamping’’ credible fear reviews to ‘‘bleed over’’ into the merits process. Commenters stated that if the IJ listened to the recording of the interview before the asylum officer rather than waiting for a transcript of the interview, the entire process could be completed within a few days or E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations weeks of the asylum seeker’s arrival in the United States, similar to other procedures under the prior Administration. Some commenters alleged that nothing in the NPRM would require an IJ who rejects testimony or other evidence to give a reasoned explanation for that decision, which could allow IJs who may have a propensity to deny claims the procedural opportunity to do so. Commenters said that IJs would have little incentive under the NPRM to permit inclusion of additional evidence and may opt to exclude evidence if there are any indicia that the facts were already in the administrative record. Commenters remarked that, as the NPRM acknowledges, IJs are overburdened with overflowing dockets. As a result, commenters argued, IJs would be inclined to deny requests for submission of additional evidence or testimony on even a vague finding that the submissions would be duplicative or unnecessary. One commenter said the NPRM would thus perpetuate what the commenter characterized as the deterioration of the immigration court system as a ‘‘rubber-stamping tool’’ for removal orders issued by DHS and upend the purpose of the courts. Commenters stated that applicants with additional evidence should not be hindered by evidentiary limitations, especially given that, as alleged by commenters, case completion quotas provide IJs with incentives to adjudicate claims as quickly as possible. Likewise, commenters said that IJ performance metrics compound concerns that IJs would have a disincentive to find a need for evidentiary hearings when asylum cases are not granted. Commenters said the performance metrics are deeply problematic because they create financial incentives for IJs to prize speed over fairness. Commenters stated that over 40 percent of IJs have been on the bench for fewer than five years, and many have backgrounds in criminal prosecution or the military and need to learn the increasingly complex procedural and substantive immigration rules on the job. The commenters said these relatively new IJs would be placed in a role of appellate review of decisions rendered by asylum officers who also will have been newly hired. This combination of fewer due process rights in eliciting testimony by new asylum officers with appellate-type review by relatively new IJs would not provide adequate protection to asylum seekers. Commenters stated that some IJs depart markedly from the average asylum grant rates in their own courts, rejecting more than 90 percent of asylum claims in non-detained cases. In VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 addition, those commenters explained that IJs’ asylum grant rates are significantly influenced by factors other than the merits of the cases, such as the gender and prior prosecutorial experience of the IJ. Commenters were therefore concerned that some IJs may likewise summarily or arbitrarily deny asylum applicants the opportunity to testify, thereby pretermitting their appeals. Commenters asserted that the evidentiary restrictions during IJ review are particularly problematic in light of alleged problems, based on political influence, with the country conditions information available to the asylum officers who would be tasked with making the record the IJ would review. In other words, at least one commenter stated, if applicants are denied a full and fair opportunity to present evidence that challenges the country conditions information underlying the asylum officer’s decision to not grant asylum or protection, IJs may ‘‘rubber-stamp’’ decisions that are based on inaccurate information resulting from impermissible political considerations. Response: As described above, the IFR, in new 8 CFR 1240.17, revises the process so that noncitizens whose applications for asylum are not granted following the Asylum Merits interview are referred to streamlined section 240 removal proceedings, rather than implementing the novel IJ review procedure proposed by the NPRM. As part of this change, the Departments are no longer proposing evidentiary standards like those in the NPRM. See 8 CFR 1003.48(e)(1) (proposed); 86 FR 46911, 46920. Rather, the IFR adopts an approach consistent with the current evidentiary standard for section 240 removal proceedings; subject to the applicable deadline in streamlined section 240 proceedings, IJs may exclude additional evidence only if it is not relevant, probative, or timely or if its use is fundamentally unfair. In other words, unlike the NPRM, the IFR does not require the IJ to make a novel threshold determination regarding the need for the evidence. In addition, the noncitizen will have the privilege of being represented by counsel at no expense to the Government during proceedings before the IJ if the noncitizen chooses. INA 292, 8 U.S.C. 1362.85 Further, unlike the NPRM, this IFR specifically contemplates that the IJ will, if necessary, conduct hearings to narrow the issues and take testimony or 85 To be sure, the NPRM proposed that noncitizens would have the same privilege. See 8 CFR 1003.12 (proposed), 1003.16; see also 86 FR 46919. PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 18169 further evidence, as provided in new 8 CFR 1240.17(f)(4). These features of streamlined section 240 removal proceedings preclude the possibility that an IJ would simply ‘‘rubber-stamp’’ an asylum officer’s asylum decision, as commenters alleged. Regarding commenters’ concerns with the process of IJs’ credible fear reviews, the IFR returns the credible fear screening process to that which was in effect prior to the regulatory changes made between 2018 and 2020. See generally 8 CFR 208.30. The DOJ regulations at 8 CFR 1003.42 and 1208.30(g)(2) provide an extensive process through which an IJ reviews a negative credible fear determination. IJs exercise independent judgment and discretion and follow applicable laws and regulations in credible fear reviews, and they would continue to do so under this rule. See, e.g., IJ Ethics and Professionalism Guide (requiring IJs to, inter alia, be faithful to the law, maintain professional competence in the law, act impartially, and avoid actions that would create the appearance of violations of the law or applicable ethical standards). More specifically, the Departments reject commenters’ contentions that IJs currently ‘‘rubber-stamp’’ asylum officer’s negative credible fear determinations and that such practice would carry over into an IJ’s review of an asylum officer’s decisions under the NPRM or the IFR. Under 8 CFR 208.30(d)(4) of DHS’s regulations, which the NPRM did not propose to amend, noncitizens may consult with a person or persons of their choosing before the interview, contrary to commenters’ allegations that noncitizens have no right to counsel. Upon an exercise of USCIS’s discretion, that person or persons may be present at the interview and may present a statement at the end of the interview. 8 CFR 208.30(d)(4). Further, noncitizens may ‘‘present other evidence, if available,’’ see id., contrary to commenters’ allegations that noncitizens may not present testimony or evidence. The Departments also disagree with commenters’ allegations that asylum officers take ‘‘often incomplete’’ or ‘‘incorrect’’ notes. Asylum officers receive extensive training and possess expertise, see 8 CFR 208.1(b); INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E), and the Departments are confident in the asylum officers’ ability to carry out their duties in accordance with all applicable statutes and regulations. Further, this IFR provides that the record from the Asylum Merits interview will include a verbatim transcript of the interview before the asylum officer, obviating the need for IJs E:\FR\FM\29MRR2.SGM 29MRR2 18170 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 to rely exclusively on asylum officers’ notes. The Departments also disagree with commenters who recommended IJs review recordings of the Asylum Merits interviews instead of verbatim transcripts as a way to increase efficiency. The Departments prefer the review of transcripts considering their clarity, ease of use, and increased specificity in citations. Further, the Departments disagree that listening to a recording would save a significant amount of time compared to reviewing a transcript. For these reasons, the IFR includes the transcript alone in the record that is referred to the IJ for use in subsequent streamlined 240 removal proceedings.86 Although the Departments believe that this IFR addresses commenters’ concerns about ‘‘rubber-stamping’’ because it provides for streamlined section 240 removal proceedings rather than the NPRM’s IJ review procedure and associated standard for the submission of evidence, the Departments dispute commenters’ allegations that IJs would reject evidence or refuse to hold an evidentiary hearing based on performance metrics or other bases unrelated to the specifics of an individual proceeding. IJs independently adjudicate each case by applying applicable law and regulations, not by considering performance metrics. 8 CFR 1003.10(b) (providing that IJs ‘‘may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases’’). In addition, EOIR no longer reviews IJ performance through individual judge performance metrics. IJs are held to high ethical standards in part to avoid impropriety or the appearance of impropriety, which would include deciding cases consistent with performance metrics rather than applicable law and regulations. See also IJ Ethics and Professionalism Guide (providing that IJs must be faithful to the law, maintain professional competence in the law, act impartially, and avoid actions that would create the appearance that the IJ is violating the law or applicable ethical standards); see also EOIR Policy Manual, Part II, ch. 1.3(c) (stating that IJs ‘‘strive to act honorably, fairly, and in accordance 86 While USCIS will have to record the USCIS interview in order to create a transcript of the interview, the Departments did not intend to imply in the NPRM that EOIR would receive a recording with the record in every case. The receipt of the recording would be redundant with the transcript and, as noted, more time consuming to review than a transcript. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 with the highest ethical standards’’). Likewise, the Departments do not share the commenters’ concerns with IJs’ professional experience or diverse backgrounds. IJs are selected on merit with baseline qualifications, including possession of a J.D., LL.M., or LL.B. degree; active membership in a State bar; and seven years of experience as a licensed attorney working in litigation or administrative law. IJs receive extensive training upon entry on duty, annual training, and periodic training on specialized topics as necessary. IJs are also expected to maintain professionalism and competence in the law.87 Likewise, the Departments reject commenters’ implications that newly hired asylum officers are less competent or professional than IJs. As explained earlier in Section IV.B.2.a of this preamble, asylum officers are selected based on merit, receive extensive training, and possess expertise in determining eligibility for protection. The Departments are confident in asylum officers’ ability to carry out their duties in accordance with all applicable statutes and regulations. The Departments disagree with commenters’ use of asylum grant rates to imply that IJs with low grant rates make arbitrary decisions or are influenced by factors outside of the merits of the case. An individual IJ’s grant rate may be affected by factors outside the IJ’s control. For example, an IJ assigned to a detained docket will generally have a higher percentage of applicants who are ineligible for asylum due to criminal convictions compared with an IJ who is assigned to a nondetained docket. The Departments reiterate the ethical and professional standards to which IJs are held, discussed above, which would preclude arbitrarily or summarily denying noncitizens the opportunity to testify or considering improper factors in a case, as commenters alleged. IJs are required to adjudicate cases in an impartial manner based on their independent judgment and discretion, applying applicable law and regulations. 8 CFR 1003.10(b). Overall, commenters’ accusations of bias or impropriety that would lead to due process violations are insufficient to ‘‘overcome a presumption of honesty and integrity in those serving as adjudicators.’’ Withrow v. Larkin, 421 U.S. 35, 47 (1975). The Departments are confident in the competency, integrity, and professionalism of IJs and asylum officers in providing due process of law to all noncitizens before them. Further, if a noncitizen believes that an IJ has 87 See PO 00000 IJ Ethics and Professionalism Guide. Frm 00094 Fmt 4701 Sfmt 4700 acted improperly or otherwise prejudiced the proceeding, the noncitizen may appeal the IJ’s decision to the BIA, 8 CFR 1240.15, and in turn appeal the BIA’s decision to a Federal circuit court, INA 242, 8 U.S.C. 1252. See also Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1075 (9th Cir. 2015) (remanding the case and stating that the IJ ‘‘exhibit[ed] some of the same misconceptions about the transgender community that [the noncitizen] faced in her home country’’ by failing ‘‘to recognize the difference between gender identity and sexual orientation,’’ and refusing to allow the use of female pronouns); see also Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007) (remanding the IJ’s adverse credibility finding that was based in part on ‘‘the IJ’s personal and improper opinion [that the noncitizen] did not dress or speak like or exhibit the mannerisms of a homosexual’’). In addition, individuals who believe that an IJ has engaged in judicial misconduct may submit a complaint to EOIR’s Judicial Conduct and Professionalism Unit: Executive Office for Immigration Review, attn.: Judicial Conduct and Professionalism Unit, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, judicial.conduct@ usdoj.gov. The Departments disagree with commenters who broadly asserted that noncitizens should not be ‘‘hindered’’ by evidentiary limitations. Although the IFR does not adopt the NPRM’s proposed evidentiary standard, the IFR includes an evidentiary standard consistent with that currently used in section 240 proceedings. See Nyama, 357 F.3d at 816 (‘‘The traditional rules of evidence do not apply to immigration proceedings . . . . ‘The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’ ’’ (quoting Espinoza, 45 F.3d at 310)); Matter of Ramirez-Sanchez, 17 I&N Dec. at 505 (holding that evidence must be ‘‘relevant and probative and its use must not be fundamentally unfair’’). The IFR further provides, in new 8 CFR 1240.17(g)(2), that evidence filed after the applicable deadline may be considered if it could not reasonably have been obtained and presented before the deadline through the exercise of due diligence. While the bar for admitting evidence in immigration proceedings is relatively low, noncitizens have never had a wholly unrestricted right to present any and all evidence or testimony. Finally, the Departments also disagree with commenters’ allegations that E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations country conditions information available to asylum officers is inaccurate, inappropriately politically influenced, or otherwise problematic. Federal Government country conditions reports, such as the U.S. Department of State country conditions reports, are longstanding, credible sources of information. See, e.g., Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (‘‘U.S. Department of State country reports are the most appropriate and perhaps the best resource for information on political situations in foreign nations.’’ (quotation marks omitted)); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (State Department country reports are ‘‘usually the best available source of information on country conditions’’ (quotation marks omitted)). Commenters have provided no reasoning beyond conclusory allegations that the country conditions information available to asylum officers is inaccurate or inappropriately politically influenced. Further, under the IFR, IJs will consider all relevant and probative evidence, consistent with the evidentiary standards in section 240 proceedings and subject to the applicable deadline. Thus, IJs may consider country conditions information in accordance with its probative value, which will vary by case, as well as evidence submitted by the noncitizen that challenges such country conditions information. Comments: Multiple commenters expressed concerns that limiting an asylum seeker’s oral testimony to items that are not duplicative of the written application, on the belief that the written record would suffice for deciding the applicant’s veracity, would violate the asylum seeker’s due process rights. Commenters stated that it would be difficult for IJs to assess credibility issues through a transcript or videos, and commenters disagreed that IJs could review credibility issues de novo absent additional testimony. Instead, commenters asserted that live, in-person testimony is required to assess an applicant’s demeanor, candor, and responsiveness to questions. Further, commenters cited Goldberg v. Kelly, 397 U.S. 254, 269 (1970), for the proposition that the right to present one’s testimony is crucial ‘‘where credibility and veracity are at issue.’’ One commenter noted that, in such instances, Goldberg v. Kelly provides that a person ‘‘must be allowed to state his position orally’’ and ‘‘written submissions are a wholly unsatisfactory basis for decision.’’ Id. at 369. Accordingly, commenters stated that, to comport with due process, it is VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 critical that IJs provide applicants with ample opportunity to present their case, including the chance to explain any perceived omissions or inconsistencies, before making credibility findings. Additionally, commenters emphasized that IJs have a duty to develop the record in immigration proceedings, for which the ability to personally examine the applicant is a crucial tool. Relatedly, commenters stated that, if represented, the applicant’s counsel should be allowed to present and guide relevant, probative testimony because this form of examination most effectively elicits the noncitizen’s factual basis for relief or protection. The commenters said that records from asylum interviews do not present all of the relevant facts as coherently as a direct examination by counsel who is familiar with the case. Moreover, commenters stated that during the course of testimony, a question from counsel or from the IJ could elicit an answer that unexpectedly gives rise to a new line of questioning or even a new legal theory of the case. Response: As discussed above in Section III of this preamble, the IFR provides that noncitizens whose applications are not granted by the asylum officer will be placed in streamlined section 240 removal proceedings instead of implementing the NPRM’s IJ review procedure. In streamlined section 240 proceedings, the noncitizen is entitled to testify before the IJ if the noncitizen timely requests the opportunity to do so, unless the IJ determines that asylum may be granted without the need to hear additional testimony. However, under new 8 CFR 1240.17(f)(2), and (f)(4)(i)– (ii), the IJ may forego a hearing and decide the case on the documentary record if (1) neither the noncitizen nor DHS has timely requested to present testimony under the pre-hearing procedures and DHS has not requested to cross-examine the noncitizen, or (2) the noncitizen elected to testify or provide evidence but the IJ determines that relief or protection may be granted without further proceedings and DHS has not requested to cross-examine the noncitizen. Additionally, noncitizens will have the privilege of representation at no expense to the Government, and, if the noncitizen is represented, the noncitizen’s representative will be able to shape the course of direct examination. INA 240(b)(4), 8 U.S.C. 1229a(b)(4). Moreover, IJs will continue to have the authority to ‘‘interrogate, examine, and cross-examine the [noncitizen] and any witnesses,’’ thereby maintaining the IJ’s ability to PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 18171 develop the record. INA 240(b)(1), 8 U.S.C. 1229a(b)(1). Further, IJs will continue to assess a noncitizen’s credibility, as set forth in section 240(c)(4)(C) of the Act, 8 U.S.C. 1229a(c)(4)(C). Thus, the Departments believe that the changes made in this IFR, provided generally in new 8 CFR 1240.17, address commenters’ concerns by preserving noncitizens’ ability to testify before an IJ in support of their claims, while at the same time maintaining the efficiencies highlighted in the NPRM by establishing expedited procedural requirements for the timely resolution of noncitizens’ proceedings. Comments: Commenters also stated that applicants must be given the opportunity to submit evidence, as needed, to develop their claims in the IJ review stage because the ability to present additional evidence before the IJ is crucial to ensuring due process for immigrants seeking protection. First, several commenters said that duplicative evidence is sometimes necessary to persuade an IJ. For example, commenters indicated that multiple reports of the same phenomena might persuade an IJ of the prevalence of an issue. Likewise, commenters said that some IJs may not be persuaded by a single piece of evidence, but duplicative evidence may satisfy the IJ or increase the evidentiary weight an IJ gives to an applicant’s testimony. Similarly, several commenters said that the law accords greater deference to Government sources, such as State Department reports, and IJs may find other or contradictory evidence deserving of little evidentiary weight. Thus, commenters explained, while duplicative in a strict sense, filing several reports from different sources that similarly rebut the State Department’s conclusions can be necessary to making a successful claim. However, under the NPRM, commenters asserted that IJs can exclude this evidence merely because it is facially duplicative without ever reaching the question as to whether it is necessary. Additionally, commenters pointed out that corroborating accounts of persecution, such as declarations from multiple witnesses about the same event, can often assist in showing the applicant’s credibility and the severity of the persecution they suffered. Commenters also indicated that asylum adjudications may hinge on considering evidence in the aggregate, such as whether a series of incidents rises to the level of persecution, or whether evidence of similarly situated cases and country conditions cumulatively establish a likelihood of future harm to the applicant. Thus, commenters stated E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18172 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations that the NPRM creates the risk that IJs may erroneously reject evidence as ‘‘duplicative’’ when it is in fact critical to a cumulative analysis, noting that for the IJ, it is precisely the overwhelming nature of the evidence pointing toward one conclusion that makes it persuasive. Accordingly, commenters argued that the NPRM’s restriction on duplicative evidence would make it impossible to prove, to the satisfaction of the adjudicator, many meritorious claims. Commenters also stated that, in some instances, an IJ may not be able to determine if new evidence or testimony is ‘‘duplicative’’ and ‘‘necessary’’ until the hearing is concluded. According to commenters, questioning from counsel or from an IJ during seemingly duplicative testimony may elicit new information relevant to an asylum seeker’s claim. Thus, commenters expressed concern that while the need for duplicative evidence might not become apparent until the hearing is concluded, the decision to exclude additional testimony and documentary evidence will have been made at the outset of the proceeding. As it is not always possible to predict what will be a central issue in a case, and as duplicative evidence can actually be necessary to meet the applicant’s burden of proof, commenters believed that permitting duplicative evidence would not be ‘‘inefficient.’’ Response: As discussed above in Section III of this preamble, the IFR provides that individuals whose applications are not granted by the asylum officer will be placed in streamlined section 240 removal proceedings rather than the NPRM’s proposed IJ review procedure. As part of those streamlined section 240 proceedings, noncitizens may submit additional evidence before the IJ in support of their claims. Because these removal proceedings are governed by section 240 of the Act, 8 U.S.C. 1229a— subject to specific procedural requirements and timelines, as described above in Section III— noncitizens will be able to submit evidence in these proceedings, as provided in new 8 CFR 1240.17(g)(1), and the IJ will only exclude such evidence if the IJ determines that the evidence is untimely, that it is not relevant or probative, or that its use is fundamentally unfair. See 8 CFR 1240.7(a); see also Matter of D–R–, 25 I&N Dec. at 458 (‘‘In immigration proceedings, the sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’’ (quotation marks omitted)); Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010) (‘‘[IJs] VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 have broad discretion to conduct and control immigration proceedings and to admit and consider relevant and probative evidence.’’). In other words, the ability of noncitizens in these proceedings to introduce evidence or testimony will not hinge on the IJ’s analysis of whether or not the evidence is duplicative of the record from the noncitizen’s hearing before the asylum officer. Consistent with currently applicable evidentiary rules in section 240 proceedings, noncitizens may instead submit evidence that commenters noted would otherwise be duplicative. Given the above, commenters’ concerns about the evidentiary restrictions in the NPRM’s proposed limited IJ proceedings are moot. Comments: Commenters expressed concerns that the NPRM would harm applicants who face unique hurdles during proceedings, including individuals who were unable to provide a complete record before the asylum officer due to trauma, lack an understanding of the process, are unrepresented, have language barriers, or are members of a vulnerable or marginalized population. Specifically, commenters were concerned with the NPRM’s limitation that IJs only review the record created by the asylum officer and the NPRM’s evidentiary standard that applicants can only submit ‘‘nonduplicative’’ evidence to the IJ. With so much at stake, commenters believed that these applicants should not be hindered by rules that limit their ability to fully present their claims. Commenters provided a wide range of reasons that the NPRM’s evidentiary standards would particularly disadvantage pro se applicants. Commenters speculated that pro se individuals, particularly those without English language proficiency, may not be aware of the full scope of evidence they can provide before the asylum officer and that USCIS’s traditional use of broad, open-ended questions may not be sufficient to elicit relevant information for the adjudication of an asylum claim. Similarly, commenters explained that those applicants who do not retain a lawyer prior to the Asylum Merits interview may lose their opportunity to develop the facts and law in their claim. Commenters also indicated that detained applicants frequently need time to contact family to support their legal claims; thus, commenters believed that the NPRM disproportionately disadvantages those without counsel in detention. Commenters also believed the NPRM would make it difficult for unrepresented, noncitizens without PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 English language proficiency to examine the record and make their case to the IJ during the review process. According to one commenter, the record forwarded by the Asylum Office to the IJ for review will ‘‘undoubtedly be in English,’’ making it effectively impossible for applicants who are not represented and who do not read English to ascertain what is in the record, to make arguments about how the asylum officer erred, and to determine what additional information or evidence they possess and could provide to support their claim. Additionally, commenters stated that the NPRM did not account for language access issues, noting that when an applicant speaks a rare language or dialect, the Asylum Office frequently cannot find an interpreter, and this language gap frequently results in mistakes in the record. Given the heightened evidentiary standard for introducing new evidence into the record, commenters expressed concern that interpretation mistakes would be difficult to correct through the appeal process proposed by the NPRM. Commenters stated that the NPRM’s evidentiary restrictions in IJ review proceedings would prejudice many unrepresented applicants because pro se individuals would be unable to comply with the pre-trial procedures requiring detailed justifications for the admission of proposed evidence. One commenter did not believe that having an IJ explain ‘‘restrictive and vague standards’’ to pro se applicants in court would be sufficient to apprise those applicants of the procedures they should follow to provide further relevant evidence to the court. Commenters argued that most applicants cannot be expected to meet these additional procedural burdens to submit evidence. Further, commenters stated that demanding that applicants meet additional evidentiary burdens before the IJ—especially if the applicant was not adequately represented when presenting the claim to the asylum officer—does not advance the fairness of the system. Moreover, commenters indicated that if the IJ needs to make a decision to admit new evidence or to allow further testimony based on a review of the evidence the applicant seeks to present, the NPRM added what is, in effect, a motion to reopen to every asylum claim, which may overly burden the finite legal services available to applicants. Additionally, commenters noted that some applicants suffer from cognitive or emotional issues that may prevent them from testifying effectively before the asylum officer or without a lengthy interview over the course of multiple E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations days or weeks. Commenters also noted that the ability to present new evidence is crucial in cases involving applicants who are members of the LGBTQ+ community because some applicants may not have ‘‘come out’’ yet to themselves or to their families when they arrive in the United States, or at the time of an asylum interview, given that the way an individual identifies may evolve over time. Similarly, commenters indicated that IJs may need more educational evidence about asylum claims for transgender and gender nonconforming applicants or applicants who are living with HIV, stating that the time to acquire evidence, to obtain legal representation, and to present testimony, including expert testimony, are particularly crucial in such cases. Response: As discussed above in Section III of this preamble, the IFR provides that noncitizens whose asylum applications are not granted by an asylum officer will be placed in streamlined section 240 removal proceedings rather than finalizing the NPRM’s proposed IJ review procedure. Because section 240 proceedings provide noncitizens with procedural safeguards, including the right to counsel at no expense to the Government and the ability to reasonably present their case, the Departments believe that this shift largely addresses commenters’ concerns with the NPRM’s effect on underrepresented, non-English speaking, traumatized, and other marginalized noncitizens. In response to commenters’ concerns related to unrepresented individuals appearing before an asylum officer for an Asylum Merits interview, the Departments note that, as explained earlier in this IFR, USCIS asylum officers have experience with (and receive extensive training on) eliciting testimony from applicants and witnesses and providing applicants the opportunity to present, in their own words, information bearing on eligibility for asylum. Asylum officers also are trained to give applicants the opportunity to provide additional information that may not already be in the record so that the asylum officer has a complete understanding of the events that form the basis for the application. See supra Section IV.D.5 of this preamble. With respect to commenters’ concerns about interpreters for Asylum Merits interviews, the Departments note that USCIS has existing contracts with telephonic interpreters to provide interpretation for credible fear screening and affirmative asylum interviews, and thus has extensive experience providing contract interpreter services. USCIS VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 contractors must provide interpreters capable of accurately interpreting the intended meaning of statements made by the asylum officer, applicant, representative, and witnesses during interviews or hearings. The USCIS contractor will provide interpreters who are fluent in reading and speaking English and one or more other languages. The one exception to the English fluency requirement involves the use of relay interpreters in limited circumstances at USCIS’s discretion. A relay interpreter is used when an interpreter does not speak both English and the language the applicant speaks, such as a rare language or dialect. See supra Section IV.D.5 of this preamble. As explained earlier in this IFR, USCIS will arrange for the assistance of an interpreter in conducting the Asylum Merits interview, and if an interpreter is unavailable, will attribute any delays to USCIS for the purpose of employment authorization eligibility, as described in new 8 CFR 208.9(g)(2). Thus, USCIS will ensure that there is clear communication among the various individuals participating in any Asylum Merits interview. The Departments recognize that unrepresented noncitizens may have difficulties identifying errors in the asylum officer’s decision as well as making legal arguments before the IJ regarding those errors. Accordingly, under the IFR, unrepresented noncitizens are not required to submit a written statement to the IJ identifying errors in the asylum officer’s decision; instead, under new 8 CFR 1240.17(f)(2), the IJ will conduct a status conference to narrow the issues, determine the noncitizen’s position, and ascertain whether a merits hearing will be needed. At this status conference, the noncitizen will state whether the noncitizen intends to testify, identify any witnesses the noncitizen intends to call in support of the noncitizen’s application, and provide any additional documentation in support of the noncitizen’s application. Id. In addition, individuals who speak a language other than English will be provided an interpreter. Further, should any noncitizen— including unrepresented or other vulnerable noncitizens—wish to provide additional testimony and evidence before the IJ, the respondent may do so under the IFR, as provided in new 8 CFR 1240.17(f)(2)(i), without needing to satisfy the kind of threshold requirements proposed in the NPRM. As previously stated, the only limitation on the admission of evidence in the IFR’s streamlined section 240 proceedings is that the IJ must exclude evidence if it is PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 18173 untimely, not relevant or probative, or if its use is fundamentally unfair, which is consistent with the standard evidentiary rules in all other section 240 proceedings. Matter of D–R–, 25 I&N Dec. at 458 (‘‘In immigration proceedings, the sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.’’ (quotation marks omitted)). Finally, regarding commenters’ concerns over the ability of noncitizens with competency concerns to testify effectively in a short time period, the Departments note that the IFR, in new 8 CFR 1240.17(k)(6), excepts noncitizens who have exhibited indicia of incompetency. These noncitizens would instead be placed in ordinary section 240 removal proceedings.88 Thus, the Departments believe that the IFR adequately responds to commenters’ concerns by placing all applicants who are not granted asylum following an Asylum Merits interview into streamlined section 240 removal proceedings, thereby providing additional procedural protections and safeguards, and ensuring due process. See Hussain v. Rosen, 985 F.3d 634, 644 (9th Cir. 2021) (‘‘[D]ue process has been provided whenever a[ noncitizen] is given a full and fair opportunity to be represented by counsel, to prepare an application for . . . relief, and to present testimony and other evidence in support of the application.’’ (quotation marks omitted)). Comments: Commenters stated that, contrary to the Departments’ goals, the NPRM’s proposed evidentiary requirements would result in a less efficient and more burdensome adjudicatory system. For example, commenters stated that, in addition to providing evidence, applicants and counsel would have to proffer each piece of evidence, which would increase the time and cost of proceedings. Commenters stated that, although the NPRM provides for the possibility of supplementing the record, the NPRM frames it as the exception for the sake of judicial efficiency and places a new burden on the applicant to prove that any new evidence is necessary for the case. Commenters said it would be impossible to gather the relevant evidence needed and to prepare clients for testimony in such a short time frame. Commenters said applicants often need 88 In addition, EOIR will provide a qualified representative through the EOIR National Qualified Representative Program (‘‘NQRP’’) to a respondent who is found to be incompetent to represent themselves in immigration proceedings and who is both unrepresented and detained. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18174 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations to gather evidence from their home countries, which could not be obtained in only a few weeks, especially for clients who are detained. Some commenters similarly said it is well established under U.S. law that asylum seekers often flee for their lives without the ability to first collect documentation to support their claims, and it can be difficult, if not impossible, for asylum seekers or their representatives to gather evidence from family and friends in their country of origin. It is thus unreasonable to expect that asylum seekers will present all their evidence at a streamlined hearing before an asylum officer, thus leading to an incomplete record for IJ review. Commenters stated that, to fulfill their ethical duties to their clients, legal advocates would have to immediately seek to fill the inevitable evidentiary gaps in the record, and then prepare written motions seeking to admit that evidence and seeking a full individual merits hearing. Commenters said the NPRM’s evidentiary restrictions would add challenges for an IJ to conduct meaningful de novo review of an appeal. Commenters stated IJs could instead conduct their review directly in court, without relying on proceedings with the asylum officer, and with better results because the IJ would be able to make a credibility assessment of the applicant, as well as any witnesses. Some commenters remarked that the majority of claims not granted by an asylum officer would end up in immigration court, and, under the NPRM, IJs would be flooded with requests to present new evidence and to grant individual hearings. Commenters wrote that, if the IJ were to grant a motion to allow testimony and additional evidence, the proposed regulation would have failed to save any time or expense either to noncitizens or EOIR, because the case would then proceed in immigration court just as an affirmative case that is referred to court does now. On the other hand, if the IJ were to reject an applicant’s additional testimony or other evidence, then the applicants would almost certainly file an appeal. Commenters expressed concern that judicial review of the NPRM’s evidentiary restrictions could be limited and inefficient in practice. For example, if the IJ does not provide a reasoned explanation for the rejection (which the proposed NPRM does not require), a court of appeals would be highly likely to remand the case to the BIA, with a further remand to the IJ, because judicial review of the IJ’s action would be nearly impossible without such an explanation. Commenters similarly VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 stated that a decision by the IJ to reject additional testimony or documents would not require specific reasons, making judicial review of the determination that the evidence is not necessary or would be duplicative virtually impossible. Commenters stated that denials of requests to present additional evidence would lead to an increase in interlocutory appeals to the BIA and could lead to additional rounds of Federal circuit court appeals as asylum seekers challenge the sufficiency of the immigration court record. In addition, commenters stated, many Federal courts place onerous exhaustion requirements on petitions for review of BIA decisions, and some courts even suggest that noncitizens must seek reconsideration to point out ignored arguments or improper legal approaches before having those arguments considered on appeal. As a result, commenters stated that the NPRM’s procedures, which were designed to be efficient, would cause significant inefficiencies on the back end by forcing applicants to file motions to reconsider before the immigration court and the BIA. Response: As described above in Section III of this preamble, the IFR revises the process in new 8 CFR 1240.17(a) and (b), so that noncitizens whose applications for asylum are adjudicated but not granted by an asylum officer are referred to streamlined 240 proceedings through the issuance of an NTA, rather than seeking IJ review through the procedure proposed by the NPRM. As part of this change, the Departments are also removing the evidentiary standards proposed by the NPRM. See 8 CFR 1003.48(e)(1) (proposed); 86 FR 46911, 46920. Instead, as provided in new 8 CFR 1240.17(g)(1), the IFR affirms that noncitizens in the streamlined 240 proceedings may submit additional evidence to the IJ consistent with the traditional evidentiary standard applied in 240 proceedings. With this change, the IFR does not include those procedural requirements that commenters were concerned would create inefficiencies. Specifically, unlike what was proposed in the NPRM, the IFR does not require the noncitizen to demonstrate that any desired new evidence or testimony is non-duplicative and necessary or require the IJ to make a threshold determination that the evidence satisfies that standard. Because the noncitizen may submit evidence during streamlined section 240 proceedings, any delay in the availability of evidence during the asylum officer review, and any PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 corresponding gap in the record, may be addressed before the IJ. The lack of an additional, novel evidentiary standard reduces the likelihood of appeals and subsequent litigation, identified by the commenters, surrounding the submission of evidence. In addition, given that the IFR is consistent with the longstanding evidence standard used in section 240 proceedings, the Departments do not believe that the IFR will have a chilling effect on the availability of judicial review regarding an IJ’s evidentiary determinations. The IFR does not amend a noncitizen’s right to appeal a decision, in accordance with the statutes and regulations. See 8 CFR 1003.3, 1003.38. Comments: Commenters stated that while the NPRM’s proposed ‘‘nonduplicative’’ and ‘‘necessary’’ standard for the submission of new evidence may create more efficiency, it is inappropriate because it (1) reverses Congress’s original intent to protect asylum seekers from expedited removal and give them sufficient time after their initial arrival in the United States to prepare an asylum application; (2) violates international obligations to prevent the refoulement of genuine refugees; and (3) undermines the United States’ commitment to asylum protection and the preservation of human rights. Commenters stated that the proposed restriction on new evidence in the proposed IJ review proceedings would be fundamentally unfair and violate both U.S. asylum law and the Refugee Convention and Protocol. Similarly, commenters stated that the NPRM’s evidentiary restrictions, if adopted, conflict with the statutory and regulatory affirmative duty of IJs to fully develop the record. Response: As described above in Section III of this preamble, the IFR revises the process in new 8 CFR 1240.17(a) and (b) to provide that noncitizens whose applications for asylum are not granted by an asylum officer are referred to streamlined section 240 removal proceedings through the issuance of an NTA, rather than seeking IJ review through the procedure proposed by the NPRM. As part of this change, the Departments are also removing the ‘‘non-duplicative’’ and ‘‘necessary’’ evidentiary standards proposed by the NPRM. See 8 CFR 1003.48(e)(1) (proposed); 86 FR 46911, 46920. Instead, the IFR affirms that noncitizens in streamlined section 240 removal proceedings may submit additional evidence to the IJ, as provided in new 8 CFR 1240.17(g)(1), consistent with the traditional evidentiary standard application in 240 E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations proceedings. This change addresses commenters’ concerns that the NPRM’s evidentiary standard violates congressional intent and the United States’ international obligations. Similarly, the IFR’s changes address commenters’ concerns regarding IJs’ duty to develop the record. Unlike the proposal in the NPRM, the IFR specifically contemplates, in new 8 CFR 1240.17(f)(1) and (2), the IJ conducting a master calendar hearing in all cases, followed by a status conference to discuss the noncitizen’s claim and narrow the issues. Overall, IJs will continue to exercise independent judgment and discretion in accordance with the case law, statutes, and regulations to decide each case before them. See 8 CFR 1003.10(b). Comments: Commenters suggested numerous alternative formulations regarding the NPRM’s proposed evidentiary standard for IJ review proceedings. Some commenters proposed that the standard for introduction of new evidence before the IJ should be lower, stating that a low threshold will ensure that newlydeveloped evidence and any evidence the asylum officer erroneously failed to include in the record is considered in immigration court. Commenters stated that lowering the evidentiary threshold would still provide improved efficiency because IJs would still only hear new evidence, decreasing the amount of time spent reviewing each case and helping to stem the growth of EOIR’s case backlog. Other commenters similarly argued that, if the proposed process cannot be amended to guarantee section 240 removal proceedings for asylum seekers, the Departments should allow applicants to freely present evidence and testimony during the IJ review proceedings. Commenters also suggested changes that they stated would better align the procedures for these review proceedings with international law and international procedures. First, commenters stated that the Departments could follow the example set by the United Nations Committee Against Torture and require an explanation for late submission, with a presumption in favor of accepting the explanation and admitting the evidence. Second, commenters stated that the UNHCR urges states to consider all available evidence to meet their obligations under international law. Commenters noted that a more lenient evidentiary standard would better align with the United States’ obligations under the Refugee Protocol, including ensuring that adjudicators consider all evidence that could support a claim, VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 even when only submitted on appeal, and that the unique realities implicated in adjudicating international protection claims require flexibility. Response: As explained above in Section III of this preamble, under the IFR in new 8 CFR 1240.17(a) and (b), if the application for asylum is adjudicated but not granted by the asylum officer, DHS will issue an NTA and refer the applicant to streamlined section 240 removal proceedings before an IJ. Because the Departments are not pursuing the proposed IJ review procedure, including the proposed limitations on new evidence, the Departments need not further respond directly to commenters’ suggestions for how those proceedings could have been improved. Further, the Departments believe that the change in the IFR to streamlined 240 proceedings ultimately addresses commenters’ concerns, as noncitizens will have the opportunity to address any perceived errors in the asylum officer’s written decision, submit new evidence without regard to the evidentiary limitations proposed in the NPRM, and testify before the IJ. Comments: Commenters expressed concern that the NPRM would essentially give the IJ an appellate review role but would not provide rights for noncitizens or their counsel to address any errors in the asylum officer’s decision. Specifically, commenters stated, the NPRM does not contain any information about whether the IJ would issue a briefing schedule, whether the parties would appear before the IJ for a hearing, or whether it would be incumbent on the noncitizen to convince the IJ that further legal argument is necessary in the case. Other commenters were concerned that the NPRM did not provide sufficient guidance as to the structure of the hearing before an IJ. Response: As part of the shift from the NPRM’s proposed IJ review procedure to streamlined section 240 removal proceedings, this IFR contains detailed instructions regarding the mechanics of these proceedings before the IJ, including a requirement that IJs hold a status conference and afford the parties an opportunity to make additional legal argument. These provisions are designed to ensure that these proceedings are adjudicated efficiently while at the same time responding to commenters’ interest in having more procedural details specified in the regulation. Specifically, under new 8 CFR 1240.17(b) and (f), the IJ will conduct at least an initial master calendar hearing in all cases and will also conduct a status conference and possibly receive written statements to PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 18175 narrow the issues. Under new 8 CFR 1240.17(f)(2), the noncitizen shall describe any alleged errors or omissions in the asylum officer’s decision or the record of proceedings before the asylum officer and provide any additional documentation in support of the applications. See 8 CFR 1240.17(f)(2)(i)(A)(1)(ii)–(iii). If, under new 8 CFR 1240.17(f)(4), the IJ determines that the application cannot be granted on the documentary record and the noncitizen has elected to testify or DHS has elected to cross-examine the noncitizen or present testimony or evidence, the IJ will hold an evidentiary hearing. Comments: Commenters further indicated that the NPRM does not require the Departments to inform the noncitizen or their counsel that the case is being reviewed by an IJ. Response: The Departments disagree with commenters’ concerns on this point because, under the NPRM, the case would only be reviewed by an IJ if the noncitizen or their counsel first requested such review. Nevertheless, the Departments emphasize that any concerns about the provision of notice regarding the IJ review are addressed by this IFR. Under new 8 CFR 1240.17(b), a noncitizen whose application for asylum is not granted following an Asylum Merits interview will receive notice about the IJ proceedings, because DHS will serve an NTA on all such individuals in order to initiate the section 240 removal proceedings. See also INA 239(a)(1), 8 U.S.C. 1229(a)(1). Comments: Commenters stated that, while a verbatim transcript of the Asylum Merits interview will be provided to the IJ, there is no indication that the noncitizen will have access to the audio recording of proceedings with the asylum officer to review for interpretation errors. Response: The Departments intend to make available a process by which parties to EOIR proceedings under 8 CFR 1240.17 will be able to timely review, upon request, the recording of the USCIS Asylum Merits interview. In addition, noncitizens should follow EOIR’s procedures to obtain access and copies of their immigration records after cases have been docketed with the immigration courts. Comment: Another commenter stated that the NPRM is silent as to whether a noncitizen’s motion to present further evidence to the IJ will be considered applicant-caused delay for purposes of the EAD clock and urged the Departments not to penalize noncitizens in this way for moving to include further evidence that would be E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18176 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations necessary to a fair adjudication of their claim. Response: The Departments understand asylum applicants’ desire to obtain EADs, but neither the NPRM nor this IFR amends DHS’s procedures pertaining to the issuance of EADs. Accordingly, any delay attributable to an applicant, including a continuance to obtain evidence sought in immigration court, will be considered an applicantcaused delay for purposes of EAD eligibility just as it would under the status quo. Comments: Commenters also expressed concerns that the NPRM ‘‘ties the hands’’ of the Government and that these asylum adjudications will be susceptible to fraudulent and frivolous claims. Commenters pointed out that the NPRM requires DHS to proffer evidence or testimony for an admissibility ruling but does not provide a clear opportunity for DHS to cross-examine noncitizens regarding evidence the noncitizens may have relied on during their interviews with asylum officers. Response: The Departments disagree with any allegation that this rule would increase fraudulent asylum applications. First, all asylum applications submitted to USCIS for initial adjudication by the asylum officer will be subject to the consequences of filing a frivolous application. 8 CFR 208.3(c); see also INA 208(d)(4), 8 U.S.C. 1158(d)(4). Second, although the NPRM would have required both parties to make new threshold evidentiary showings in order to submit additional testimony or evidence before the IJ, the IFR, in new 8 CFR 1240.17(f)(2)(ii) and (f)(3), provides DHS with an explicit opportunity in all cases to respond to any new argument or evidence by the noncitizen, call witnesses, and submit additional documentation, including documentation for rebuttal or impeachment purposes. In addition, both the NPRM and IFR in 8 CFR 208.9(c) provide DHS the opportunity to address credibility concerns with the applicant during the asylum officer hearing. Although the hearing before the asylum officer is nonadversarial, the asylum officer, a DHS employee, has the authority to ‘‘present evidence, receive evidence, and question the applicant and any witnesses’’ during the interview. Id. Accordingly, the IFR maintains certain procedures proposed in the NPRM and provides additional procedures that are responsive to commenters’ concerns. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 c. Immigration Judge’s Discretion To Vacate Asylum Officer’s Removal Order As discussed below, commenters opposed the limitation on noncitizens’ ability to seek other forms of relief or protection beyond asylum, withholding of removal, or protection under the CAT in the proposed IJ review proceedings unless the noncitizen files a motion to vacate the removal order entered by the asylum officer and the IJ grants that motion as a matter of discretion. See 8 CFR 1003.48(d) (proposed). Comments: Commenters opposed the limitation on noncitizens’ ability to seek other forms of relief or protection beyond asylum, withholding of removal, or protection under the CAT in the proposed IJ review proceedings unless the noncitizen files a motion to vacate the removal order entered by the asylum officer and the IJ grants that motion as a matter of discretion. See 8 CFR 1003.48(d) (proposed). Commenters pointed out that noncitizens frequently apply for other forms of immigration relief, such as Special Immigrant Juvenile classification, T nonimmigrant status, or U nonimmigrant status concurrently with their applications for asylum, withholding, and protection under the CAT, and expressed a range of concerns that the rule would limit the ability of noncitizens to pursue these types of statutorily-available statuses in the proposed limited IJ review proceedings, which commenters stated was contrary to congressional intent to provide other forms of relief or protection. First, commenters said that the NPRM’s proposed procedure for a discretionary motion to vacate a removal order and transfer the noncitizen to section 240 proceedings is insufficient and that the NPRM would effectively cut off access to these remedies for vulnerable applicants. For example, commenters speculated that unrepresented or child applicants would be unable to meet the procedural requirements for filing the proposed motion, such as a showing of prima facie eligibility. Commenters also noted that some forms of relief are much harder to seek if the applicant is removed than they would be if the applicant could have sought them during the proceedings before the IJ. For example, it could be difficult to confer with an attorney with the relevant expertise while abroad. Second, commenters found the discretionary motion requirement inefficient. Commenters noted that applicants who seek collateral relief before USCIS, such as T or U nonimmigrant status, often seek PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 administrative closure or termination of the immigration court proceedings while those applications are adjudicated. Because these cases are then off the IJ’s docket, administrative closure or termination in these cases serves the stated goal of efficiency in immigration proceedings, but the NPRM would not allow for this efficiency. Third, commenters noted that the rule would effectively prevent individuals who become eligible for other relief during appeal from seeking it because they would not have sought to have the case transferred to section 240 proceedings in a timely manner. Commenters asserted that the NPRM provides no justification for this punitive and burdensome change in opportunity for an asylum applicant whose case originated in credible fear screening to seek other relief for which they may become eligible while the case is on appeal. Finally, commenters further stated that limiting or denying access to all forms of complementary protection conflicts with international standards. Response: As explained above in Section III of this preamble, the Departments are not adopting the IJ review procedure proposed in the NPRM; instead, this IFR provides that noncitizens whose applications for asylum are not granted by an asylum officer will be issued an NTA and referred to an IJ for further review of their applications in a streamlined section 240 removal proceeding. Under the new 8 CFR 1240.17(k)(2), noncitizens who provide evidence of prima facie eligibility for forms of relief or protection other than asylum, withholding of removal, protection under the CAT, and voluntary departure and who either seek to apply or have applied for such relief or protection will be exempted from the timelines applicable in these streamlined proceedings. The IJ will then consider the noncitizen’s eligibility for relief as in section 240 proceedings generally. See, e.g., 8 CFR 1240.1(a)(1)(ii) (providing the IJ with the authority to determine a wide range of applications for relief or protection). Further, there will no longer be an intervening requirement for the noncitizen to file a discretionary motion to vacate the asylum officer’s removal order and for the IJ to grant such a motion before the noncitizen may seek additional forms of relief or protection. Instead, under new 8 CFR 1240.17(k)(2), noncitizens who produce evidence of prima facie eligibility and submit or intend to submit an application or petition for another form of relief or protection will be exempt from the streamlined E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 procedure set out in the IFR. Accordingly, the shift to streamlined section 240 proceedings addresses commenters’ concerns about the motion process and limitation on the available forms of relief or protection for noncitizens in these proceedings. Comments: Commenters were concerned that the proposal to require a motion for the IJ to vacate the removal order is a new process that will waste Government resources by adding another motion for IJs to review and that it would likely generate additional rounds of appeals. Commenters stated that it would be more efficient to instead allow an IJ to decide the entire matter in front of them without being forced to ignore or exclude other information that would show removal is unwarranted. Similarly, rather than a process that requires the applicant to identify other grounds of immigration eligibility beyond the three enumerated in 8 CFR 1003.48(a), as set out in the NPRM, commenters argued that it would be fairer and more efficient if the asylum officer and the IJ could inquire about all possible grounds during their respective hearings. Commenters further suggested that the Departments revise the NPRM to have the asylum office refer all cases not granted asylum to section 240 removal proceedings. Response: The Departments believe that these commenter concerns will be addressed by this IFR, which establishes that noncitizens who are not granted asylum after an Asylum Merits interview will be placed into streamlined section 240 removal proceedings, rather than the IJ review proceedings proposed by the NPRM. Under the IFR, asylum officers will not issue removal orders that would need to be vacated by the IJ. Rather, a noncitizen will not be ordered removed until after the IJ has reviewed the asylum officer’s decision and concluded that the noncitizen does not warrant asylum.89 Additionally, the noncitizen need not affirmatively request or seek review of the asylum officer’s decision. Rather, 89 A respondent who fails to appear for their hearing, however, may be ordered removed in absentia for failure to appear. See INA 240(b)(5)(A), 8 U.S.C. 1229a(b)(5)(A). As discussed above in Section III of this preamble, under new 8 CFR 1240.17(d), if the asylum officer had determined that a respondent who fails to appear before the IJ was eligible for statutory withholding of removal or protection under the CAT, the IJ will issue an inabsentia removal order and generally will give effect to protection for which the asylum officer found the respondent eligible, unless DHS makes a prima facie showing, through evidence that specifically pertains to the respondent and was not in the record of proceedings for the USCIS Asylum Merits interview, that the respondent is not eligible for such protection. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 under new 8 CFR 1240.17(a) and (b), if the asylum officer does not grant asylum, DHS will serve the applicant with an NTA and initiate a streamlined section 240 removal proceeding by filing the NTA with the immigration court. Further, just as in all proceedings governed by section 240 of the Act, 8 U.S.C. 1229a, noncitizens may seek other forms of relief or protection, and the IJ will consider additional possible grounds for relief or protection beyond asylum, withholding of removal, and protection under the CAT. See 8 CFR 1240.11(a)(2) (‘‘The immigration judge shall inform the [noncitizen] of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the [noncitizen] an opportunity to make application during the hearing . . . .’’). Further, under new 8 CFR 1240.17(k)(2), the proceedings for noncitizens who apply for other forms of relief or protection and produce evidence of prima facie eligibility will not be subject to the same expedited procedures detailed in this IFR for these proceedings generally. Comments: Commenters expressed concerns that the NPRM’s requirement for applicants to file a motion before they may seek additional forms of relief or protection would prejudice noncitizens who are without counsel or do not speak English because these noncitizens would likely be unaware of their eligibility for additional forms of relief or protection, would be unaware of the option to file a motion for vacatur, or would not realistically be able to file such motions. Specifically, at least one commenter argued that the NPRM would lead to due process violations by denying noncitizens the right to seek relief or protection for which they might be eligible. Similarly, commenters argued that the NPRM’s time and number limitations on motions for section 240 removal proceedings raise due process concerns for noncitizens with disabilities or PTSD, or those who speak rare languages. Commenters further expressed concern that pro se individuals would be particularly harmed by the NPRM’s rules for the motion to vacate. For example, one commenter noted that a pro se noncitizen who previously moved unsuccessfully to vacate with insufficient evidence or argument would be precluded from filing any additional evidence or an additional motion, even if the noncitizen later obtained the help of an attorney or representative who is able to show prima facie eligibility for asylum or protection. Instead, commenters suggested that asylum applicants should be allowed to make more than one PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 18177 motion to show they are eligible for a different form of relief or protection. Commenters asserted that this change will not significantly impact the efficiency of IJ review because most asylum seekers requesting further review do not usually have a claim to a different form of relief from removal. Response: The IFR’s changes from the NPRM address commenter concerns about the impact of the motion to vacate requirement on pro se and non-English speaking noncitizens. Specifically, as discussed elsewhere, the IFR establishes that USCIS will affirmatively refer all applicants whose applications are not granted by the asylum officer to streamlined section 240 removal proceedings for adjudication by an IJ. Adjudication by the IJ is automatic upon DHS’s filing of the NTA with the immigration court. Additionally, as in all proceedings governed by section 240 of the Act, DOJ’s regulations allow noncitizens to seek other forms of relief or protection, without first filing a motion, and the IJ will consider additional possible grounds for relief or protection beyond asylum, withholding of removal, and protection under the CAT. See 8 CFR 1240.11(a)(2) (‘‘The immigration judge shall inform the [noncitizen] of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the [noncitizen] an opportunity to make application during the hearing . . . .’’); see also Quintero, 998 F.3d at 623–24 (collecting cases discussing an IJ’s affirmative duty to develop the record). Further, pursuant to new 8 CFR 1240.17(k)(2), the proceedings for noncitizens who apply for other forms of relief or protection and produce evidence of prima facie eligibility will not be subject to the same expedited timeline procedures detailed in this IFR for these expedited proceedings generally. No motion is necessary to demonstrate prima facie eligibility because the IJ could make such determination based on oral representations or information otherwise provided to the IJ. In addition, as noted above, the IFR, as provided in new 8 CFR 1240.17(k)(6), excepts respondents who have exhibited indicia of incompetency from these streamlined section 240 proceedings. These respondents would instead be placed in ordinary section 240 proceedings. Comments: Commenters disagreed with the NPRM’s approach that applicants who may be eligible to seek some other form of relief or protection beyond asylum, withholding of removal, and protection under the CAT would be able to do so only after the completion E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18178 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations of a full asylum application and interview. Commenters explained that this approach would force applicants to relive and testify in depth about traumatic events in their lives relevant to their asylum claims, even if they have alternative avenues to relief—such as T nonimmigrant status or SIJ classification—that do not require inperson hearings and would not lead to possible re-traumatization. At least one commenter disagreed with the NPRM’s lack of a provision regarding continuances for a noncitizen to obtain evidence of the additional relief or protection for which they may be eligible. The commenter noted that it often takes months to obtain relevant evidence, but under the NPRM, noncitizens may be forced to go forward with IJ review before this process is complete. Additionally, commenters objected to the proposed limitations providing for only one motion for vacatur and requiring that the filing would have to precede a determination on the merits of the protection claim. Commenters argued that these limitations would effectively force applicants to choose which remedy they wish to seek before their appellate rights are exhausted with respect to the asylum, statutory withholding, and CAT claims. Commenters stated that requiring the motion to be filed prior to the IJ’s decision on eligibility for asylum or related protection undermines the Departments’ goal of balancing fairness and efficiency. Commenters suggested that there should be exceptions to the time and numerical limitations on the proposed motion for vacatur to account for scenarios such as those in which (1) the noncitizen receives ineffective assistance of counsel, (2) new facts exist that give rise to new fears and forms of relief or protection, (3) updates to immigration laws are made, or (4) other unusual circumstances arise. Response: The IFR’s changes from the NPRM, as discussed above in Section III of this preamble, address commenters’ concerns with the NPRM’s proposals related to the timing and number limits for motions to vacate the asylum officer’s removal order. Specifically, because asylum officers will not be issuing removal orders and applicants instead will be placed in streamlined section 240 removal proceedings, noncitizens may seek other forms of relief or protection beyond asylum, withholding of removal, and protection under the CAT, without an intervening motion or other threshold requirement like that set out by the NPRM. See 8 CFR 1240.11(a)(2) (‘‘The immigration judge shall inform the [noncitizen] of VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the [noncitizen] an opportunity to make application during the hearing[.]’’). Should noncitizens request a continuance to obtain evidence of prima facie eligibility for other forms of relief or protection, the base standard for continuances in streamlined section 240 proceedings will continue to be good cause, as provided in new 8 CFR 1240.17(h)(2)(i). However, as discussed above in Section III of this preamble, the aggregate length of continuances for good cause is capped at 30 days, as provided in new 8 CFR 1240.17(h)(2)(i) and (h)(3). Additional continuances beyond 30 days will require a heightened showing, as provided in new 8 CFR 1240.17(h)(2)(ii)–(iii). Further, under new 8 CFR 1240.17(k)(2), the proceedings for noncitizens who apply for other forms of relief or protection and produce evidence of prima facie eligibility will not be subject to the same streamlined procedures detailed in this IFR. In addition, for such cases, IJs may utilize the same common docket-management tools as those generally used in section 240 removal proceedings, such as continuances and administrative closure, in appropriate cases where a noncitizen may be eligible for alternative forms of relief, such as adjustment of status under section 245 of the Act, 8 U.S.C. 1255. With respect to commenters who expressed concern about the possible trauma that noncitizens might endure from testifying, the Departments note that the IFR does not require noncitizens to testify before the IJ. Rather, it gives noncitizens the opportunity to provide further testimony should they wish to do so. Thus, as provided in new 8 CFR 1240.17(f)(2)(i), if noncitizens feel that they have had adequate opportunity to articulate the nature of their claims before the asylum officer, they need not elect to further testify and may rest on the record of proceedings before the asylum officer. Additionally, the IFR provides in new 8 CFR 1240.17(f)(2) that the parties will engage in a status conference prior to the merits hearing during which the parties will narrow the issues in dispute. In some instances, the IJ may determine that the application can be decided on the documentary record without additional testimony from the noncitizen. Id. Further, under new 8 CFR 1240.17(f)(2)(ii), DHS may decide not to contest certain issues, and noncitizens need not testify about sensitive issues that DHS does not contest. The PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 Departments also note that both asylum officers and IJs undergo ongoing training and support to promote the quality of adjudications and to prepare them to address sensitive claims. Asylum officers who conduct interviews are required by regulation to undergo ‘‘special training in international human rights law, nonadversarial interview techniques, and other relevant national and international refugee laws and principles.’’ 8 CFR 208.1(b). Asylum officers are also required to determine that noncitizens are able to participate effectively in their interviews before proceeding. 8 CFR 208.30(d)(1), (5). These DHS regulations are intended to recognize and accommodate the sensitive nature of fear-based claims and to foster an environment in which noncitizens may express their claims to an asylum officer. Similarly, IJs must undergo comprehensive, ongoing training, as provided in DOJ’s existing regulations. 8 CFR 1003.0(b)(1)(vii). IJs are further directed to conduct hearings in a manner that would not discourage a noncitizen from presenting testimony on difficult subject matter. See OPPM 17–03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children 3 (Dec. 20, 2017) (‘‘Every [IJ] should employ age-appropriate procedures whenever a juvenile noncitizen or witness is present in the courtroom.’’); Matter of J–R–R–A– , 26 I&N Dec. 609, 612 (BIA 2015) (‘‘[W]here a mental health concern may be affecting the reliability of the applicant’s testimony, the [IJ] should, as a safeguard, generally accept that the applicant believes what he has presented, even though his account may not be believable to others or otherwise sufficient to support the claim.’’); Matter of Y–S–L–C–, 26 I&N Dec. 688, 690–91 (BIA 2015) (‘‘Conduct by an [IJ] that can be perceived as bullying or hostile can have a chilling effect on a [noncitizen’s] testimony and thereby limit his or her ability to fully develop the facts of the claim . . . . [S]uch treatment of any [noncitizen] is never appropriate[.]’’). DHS retains the option to issue an NTA to place the noncitizen in ordinary section 240 removal proceedings prior to the Asylum Merits interview, and it could do so if the applicant appears to have a strong claim for a form of relief or protection that the asylum officer cannot grant. This procedure would be another means of preventing the applicant from having to testify twice. Comments: Several commenters expressed concern that the proposed motion to vacate removal orders would be left to the discretion of the IJ, even if the applicant had established prima E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations facie eligibility for a different form of relief from removal. In particular, commenters stated that the NPRM did not make clear how that discretion should be exercised. Commenters argued that the ability to appeal such denials to the BIA would not be a sufficient safeguard because of the complexity of filing an appeal for some applicants. Commenters asserted that the discretionary nature of the motion would result in the wrongful removal of noncitizens with available relief, which would run afoul of due-process obligations. Further, some commenters worried that DHS could exercise discretion not to refer an applicant to section 240 removal proceedings even if an IJ were to grant a motion to vacate. Response: The IFR’s changes from the NPRM, as discussed above in Section III of this preamble, address commenters’ concerns with the NPRM’s proposed framework under which both the IJ and DHS would make discretionary determinations in the context of a motion to vacate. First, under the IFR, when an asylum officer does not grant asylum, DHS will serve an applicant with an NTA and initiate streamlined section 240 removal proceedings by filing the NTA with the immigration court. See 8 CFR 208.14(c). Second, as recognized in new 8 CFR 1240.17(k)(2), because applicants will be referred to streamlined section 240 removal proceedings, they may seek other forms of relief or protection beyond asylum, withholding of removal, and protection under the CAT, without an intervening motion or other threshold requirement like that set out by the NPRM. See also 8 CFR 1240.11(a)(2) (‘‘The [IJ] shall inform the [noncitizen] of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the [noncitizen] an opportunity to make application during the hearing[.]’’). Finally, as provided in new 8 CFR 1240.17(k)(2), noncitizens who produce evidence of prima facie eligibility for relief or protection other than asylum, withholding of removal, protection under the CAT, or voluntary departure and indicate an intent to apply for, or who have applied for, such form of relief or protection will be excepted from these streamlined section 240 proceedings and have their cases adjudicated under the standard processes. Accordingly, noncitizens who are eligible to seek forms of relief or protection other than asylum, withholding of removal, and protection under the CAT do not have to receive a favorable discretionary grant in order to do so. Comments: Commenters asserted that the NPRM’s proposed differing VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 treatment of various categories of asylum seekers is unfairly arbitrary. For example, commenters feared that the eligibility of asylum seekers to apply for any form of relief or protection—rather than just asylum, statutory withholding of removal, and protection under the CAT—would be based solely on how CBP and ICE have exercised discretion to process noncitizens on a given day. Commenters argued that the Departments should allow IJs to grant motions to vacate removal orders both where the noncitizen would be eligible to apply for relief or protection if in a section 240 proceeding and where the noncitizen would be eligible to apply for collateral relief adjudicated by USCIS because it did not appear that an IJ would have the authority to terminate a case under the NPRM. Commenters also urged that a noncitizen should be allowed to file an interlocutory appeal to the BIA if an IJ denied a motion to vacate under the NPRM. Finally, commenters requested a clarification and rationale for the NPRM’s prohibition on a motion to vacate premised on an application for voluntary departure. Commenters expressed concern that, if neither USCIS nor EOIR can grant voluntary departure, individuals could be separated from their families or otherwise negatively affected. Response: The IFR’s changes from the NPRM, as discussed above in Section III.D of this preamble, address commenters’ concerns with the NPRM’s motion to vacate framework. First, under the IFR, any applicant not granted asylum by an asylum officer after an Asylum Merits interview will be served with an NTA and placed in streamlined section 240 removal proceedings without the need to request an IJ’s review.90 Accordingly, individuals in streamlined section 240 proceedings will be able to apply for all forms of relief or protection for which they may be eligible, including voluntary departure, thus addressing commenters’ concerns on this issue. 90 To the extent that commenters’ concerns relate to the general discretion of DHS to determine whether to place an applicant for admission in expedited removal under section 235 of the Act, 8 U.S.C. 1235, or to issue an NTA and refer the applicant to section 240 proceedings, commenters’ concerns are beyond the scope of this rule. See, e.g., Matter of M–S–, 27 I&N Dec. 509, 510 (A.G. 2019) (‘‘[I]f the [noncitizen] is inadmissible on one of two specified grounds and meets certain additional criteria, DHS may place him in either expedited or full proceedings.’’). PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 18179 d. Immigration Judge’s Authority To Review All Asylum Officer Decisions Comments: Commenters stated that asylum applicants who were not granted asylum but were granted withholding of removal or CAT protection may be deterred from seeking IJ review because of the possibility of being denied all relief or protection and removed. Commenters stated that such deterrence is particularly inappropriate for individuals granted withholding of removal or CAT protection because they are unable to travel abroad or petition for relatives to follow to the United States. Commenters also stated that the proposed rule would leave those granted withholding of removal or CAT protection by the asylum officer with a difficult choice of seeking review and potentially being removed to their country of feared harm or facing permanent separation from family members. Overall, commenters expressed concern that the proposal could have a chilling effect on the decision to seek review of an asylum officer’s decision to not grant asylum where doing so would require risking the loss of already-issued protection, citing international treaty obligations to not return refugees to countries where they might suffer persecution or torture. Other commenters were concerned that an asylum applicant would not receive notice that seeking review of an asylum officer’s decision to not grant asylum could also result in IJ review of granted protections. Some commenters asserted that requiring IJs to review grants of protection is contrary to the rule’s stated goals of improving efficiency and addressing the immigration court backlog. Commenters argued that it is inefficient to require an IJ to revisit portions of the asylum officer’s decision that neither party has requested the IJ review and observed that granted cases can and will be reviewed upon the asylee’s application for permanent residence. Other commenters stated that an IJ’s unilateral decision to reverse protections that were granted by an asylum officer would undercut the IJ’s role as a neutral arbiter. Commenters asserted that allowing IJs to review grants of protection is inconsistent with the principles of adversarial adjudication. Commenters noted that the proposed rule would have DHS (as the adverse party to an asylum seeker in immigration court) argue that a benefit was wrongfully granted by another DHS component (USCIS) and asserted that it would be irrational for ICE to argue in this manner before EOIR that another component of E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18180 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations DHS erred in its decision-making. Similarly, commenters argued that the executive branch cannot contest a decision also issued by the executive branch, asserting that the same reasoning has long applied to the prohibition on DHS seeking judicial review of BIA decisions in Federal court. According to commenters, this aspect of the rule would discourage cooperation between the parties to narrow the issues or stipulate to relief, resulting in unnecessary court battles and delay. Commenters argued that it would be inequitable for DHS to obtain automatic review of a grant of withholding of removal or CAT protection when noncitizens do not obtain automatic review of denials. Some commenters also worried that authorizing, but not requiring, IJs to review withholding of removal and CAT decisions risks inconsistent revocation of these benefits if some IJs decide to conduct this review and others do not, arguing that the risk of arbitrarily and permanently separating families outweighs any efficiency concerns. Commenters also asserted that ‘‘mixed cases’’ could create confusion for noncitizens attempting to request review of their case before U.S. Courts of Appeals. For example, commenters stated that IJs could reverse the denial of withholding of removal but leave the asylum denial and order of removal on the basis of prior grounds of inadmissibility undisturbed. Commenters worried that, in such cases, noncitizens requesting review before courts of appeal would likely exceed the ‘‘mandatory and jurisdictional’’ 30-day limit to review their asylum denial and accompanying removal order. Finally, commenters asserted that these procedural hurdles would deter pro bono attorneys from taking cases. Response: As described above in Section III of this preamble, this IFR does not adopt the NPRM’s proposed IJ review procedure and instead implements streamlined section 240 removal proceedings in new 8 CFR 1240.17. One consequence of this change from the NPRM, which the Departments emphasize was requested by the majority of those who commented on this aspect of the NPRM, is that the asylum officer will not issue orders of removal or grant withholding of removal or protection under the CAT. Rather, because the IJ will issue orders of removal, the IJ will also grant or deny withholding of removal and protection under the CAT. See Matter of I–S– & C– S–, 24 I&N Dec. 432, 434 (BIA 2008) (‘‘[W]hen an [IJ] decides to grant withholding of removal, an explicit VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 order of removal must be included in the decision.’’). Nevertheless, asylum officers will continue to consider the applicant’s eligibility for withholding of removal and protection under the CAT during the Asylum Merits interviews and, if they do not grant the application for asylum, will indicate whether the applicant has demonstrated eligibility for withholding of removal or protection under the CAT based on the record before USCIS. See 8 CFR 208.14(c)(1); 8 CFR 208.16(a). Upon an asylum officer’s decision to not grant asylum, the noncitizen is placed in streamlined section 240 removal proceedings. The IFR provides that the IJ will schedule a status conference where the noncitizen will indicate whether the noncitizen intends to contest removal or seek any protections for which the asylum officer did not determine that the noncitizen was eligible. If the noncitizen does not intend to contest removal or seek any protections for which the asylum officer did not determine that the noncitizen was eligible, the IJ will order the noncitizen removed. If the asylum officer determined that the noncitizen was eligible for withholding of removal or protection under the CAT, the IJ will give effect to the protection for which the asylum officer determined that the noncitizen was eligible, subject to the ability of DHS to present new evidence establishing that the applicant is not eligible for protection. However, the noncitizen can elect to contest removal or seek protections that were not granted by the asylum officer. Where the asylum officer did not grant the application for asylum and determined that the applicant is not eligible for statutory withholding of removal or withholding or deferral of removal under the CAT, the IJ will review each of the applications de novo as provided in new 8 CFR 1240.17(i)(1). Where the asylum officer did not grant asylum but determined that the applicant was eligible for statutory withholding of removal or protection under the CAT, the IJ will adjudicate the application for asylum de novo, as provided in new 8 CFR 1240.17(i)(2). Further, under new 8 CFR 1240.17(i)(2), if the IJ denies asylum and enters an order of removal, the IJ will also issue an order giving effect to the protections for which the asylum officer determined that the noncitizen was eligible, unless DHS affirmatively demonstrates through evidence or testimony that specifically pertains to the respondent and that was not included in the record of proceedings for the USCIS Asylum Merits interview that the noncitizen is not eligible for such protection. The IJ PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 will grant any protections for which the IJ finds the noncitizen eligible. The Departments believe that these procedures outlined in the IFR address many concerns of the commenters while also promoting efficiency in governmental processes. First, the IFR does not allow the IJ to reconsider sua sponte relief or protection for which the asylum officer determined the noncitizen was eligible. Instead, under new 8 CFR 1240.17(i)(2), if the noncitizen elects to contest removability or the asylum officer’s determination, the burden shifts to DHS to present evidence showing that evidence or testimony not included in the asylum officer record and specifically pertaining to the noncitizen establishes that the noncitizen is not eligible for the relief or protection. The Departments believe it is necessary for DHS to be able to revisit the issue of eligibility in special circumstances, such as when there may be evidence of fraud or new derogatory information affecting eligibility. As explained above, the Departments believe that, without a process for DHS to address such issues in the streamlined section 240 removal proceedings, DHS would otherwise have to follow the procedures in 8 CFR 208.17(d) and 208.24(f) in instances where overturning the asylum officer’s eligibility determination is justified. e. Appeal of Immigration Judge’s Decision to the Board of Immigration Appeals Comments: Some commenters expressed support for the appeal procedures in the NPRM. Other commenters expressed concern that, without a traditional immigration court hearing transcript to review, BIA and Federal court review would be cursory. Similarly, commenters asserted that the BIA and Federal court review under the NPRM would be meaningless because they believed such review would be conducted on the basis of a partial, incomplete record and that, in many cases, there would be initial rounds of litigation regarding application of the NPRM’s limitations on the introduction of evidence. Response: As discussed above in Section III of this preamble, under this IFR, applicants not granted asylum by the asylum officer after an Asylum Merits interview will be referred to streamlined section 240 removal proceedings before the immigration court. This change from the NPRM addresses commenters’ concerns about the effect of the nature of the IJ review proceedings set out in the NPRM on any subsequent BIA or appellate review. Under the IFR, in new 8 CFR 1240.17(a) E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations and (g)(1), noncitizens will be afforded longstanding procedural protections and due process safeguards inherent in section 240 proceedings, including the right to representation at no cost to the Government and the rights to present evidence and testimony. See INA 240(b)(4)(A)–(B), 8 U.S.C. 1229a(b)(4)(A)–(B). More specifically, under new 8 CFR 1240.17(a), noncitizens will have the opportunity to be heard at scheduled hearings and the ability to develop the record by presenting evidence that is timely submitted, relevant, probative, and not fundamentally unfair. Furthermore, under new 8 CFR 1240.17(g)(2), IJs may consider late-filed evidence that is filed before the IJ issues a decision in the case if it could not reasonably have been obtained and presented before the deadline through the exercise of due diligence. A complete record of all evidence and testimony will be kept in accordance with the standard procedures for section 240 proceedings. INA 240(b)(4)(C), 8 U.S.C. 1229a(b)(4)(C). This includes but is not limited to: (1) The record of proceedings before the asylum office, as outlined in 8 CFR 208.9(f); (2) a written statement, if any, from the noncitizen describing any alleged errors and omissions in the asylum officer’s decision or the record of proceedings before the asylum office; and (3) documentation and testimony in support of the application for relief or protection. The Departments believe that this requirement will alleviate procedural concerns and ensure that the BIA will have a full record on appeal and that U.S. Courts of Appeals will have a full record in a petition for review. lotter on DSK11XQN23PROD with RULES2 f. Other Comments on Proposed Application Review Proceedings Before Immigration Judges Comments: Commenters urged the Departments to remove the regulatory language that would permit the immigration court to reject an asylum application if proof of payment of the fee, if required, is not submitted, citing proposed 8 CFR 1208.3(a)(2). Commenters asserted that asylum applications should never require a fee because seeking safety from persecution is a fundamental human right and refusing asylum applicants for the inability to pay would effectively cause the United States to abrogate its international obligations. Stating that the prior Administration’s fee rule is enjoined, commenters suggested that the Departments should not leave open the possibility for future administrations by explicitly including the possibility of an VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 asylum application fee in this proposed regulation. Response: As noted in the NPRM, the Departments published numerous rules in recent years that have been vacated, enjoined, or otherwise delayed. 86 FR 46909 n.24. Two such rules are final rules regarding application fees issued by DHS and DOJ, respectively. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020) (enjoined by Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020), and Nw. Immigrant Rts. Project v. United States Citizenship & Immigr. Servs., 496 F. Supp. 3d 31 (D.D.C. 2020), appeal dismissed, No. 20–5369, 2021 WL 161666 (DC Cir. Jan. 12, 2021)); Executive Office for Immigration Review; Fee Review, 85 FR 82750 (Dec. 18, 2020) (partially enjoined by Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., 513 F. Supp. 3d 154 (D.D.C. 2021)). Language regarding the submission of an application fee, if any, for applications for asylum was included in the latter rule. 8 CFR 1208.3(c)(3); see also 85 FR 82765–69 (discussing commenters’ concerns regarding an application fee for asylum applications). The NPRM proposed to amend the regulations only as necessary to effectuate the changes related to the credible fear and asylum adjudication processes as explained in the NPRM and this IFR. See, e.g., 86 FR 46914 n.38. As a result, the NPRM did not include any proposed edits regarding the asylum application fee-related language in § 1208.3(c)(3).91 The language related to the payment of an asylum application fee, if any, was included simply as surrounding regulatory text that was reprinted to ensure correct amendments to the language related to the credible fear and asylum adjudication processes. DOJ, however, will be considering additional changes to the regulations regarding the applicable fees for applications and motions during EOIR proceedings. See Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, https:// www.reginfo.gov/public/do/ eAgendaViewRule?pubId=202110& RIN=1125-AB19 (last visited Mar. 9, 2022). Comments: Commenters urged the Departments to rescind the provisions of the Global Asylum rule that expressly 91 The commenter is incorrect that the Department included language regarding an application fee for applications for asylum at 8 CFR 1208.3(a)(2). PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 18181 permit pretermission of asylum claims and to enact a broad regulatory bar on the practice. At a minimum, commenters asked the Departments to expressly prohibit IJs from pretermitting asylum applications upon review from asylum officers’ decisions to not grant asylum, arguing that allowing IJs to do so under the proposed system of minimal process would violate the Constitution. Response: As stated above, the NPRM only proposed to amend provisions of prior rulemakings to the extent necessary to implement the proposed changes related to the credible fear and asylum adjudication processes. See, e.g., 86 FR 46914 n.38. The provisions referenced by commenters at 8 CFR 1208.13(e) regarding pretermission of applications were added by the Departments as part of a separate rulemaking known as the Global Asylum rule. See 85 FR 80274. Because this provision is beyond the scope of the changes needed to effectuate the credible fear and application review processes included in the NPRM, the Departments are not including any changes to this provision at this point. However, the Departments will consider whether to modify or rescind 8 CFR 1208.13(e) and the other remaining portions of the regulations affected by enjoined regulations in future rulemakings. See, e.g., Executive Office of the President, OMB, OIRA, Fall 2021 Unified Agenda: Department of Justice, https://www.reginfo.gov/public/do/ eAgendaMain?operation=OPERATION_ GET_AGENCY_RULE_LIST& currentPub=true&agencyCode=& showStage=active&agencyCd=1100& csrf_token=1F5E59171165 D9C756F8D13DB0280F16BF4E61995 A08C2DA5251225495 FD83335EE930292724E7EF24BEB50141 CF0AC59747 (last visited Mar. 1, 2022). Comments: Commenters urged the Departments to preserve Federal court review of asylum cases in any asylum process, stressing that judicial review protects refugees from politicized policies, rushed administrative decision-making, or discriminatory factual and legal interpretations and provides judicial oversight of administrative adjudications with lifeor-death consequences. Some commenters argued that the proposed rule does not provide adequate appellate protections for asylum seekers, explaining that the provision of the NPRM subjecting asylum seekers to expedited removal under INA 235(b)(1), 8 U.S.C. 1225(b)(1), unless and until they are granted asylum, could be found by courts to trigger the INA’s jurisdiction-stripping provision relating E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18182 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations to expedited removal. See INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A). Specifically, commenters expressed concern that some courts might view a challenge to the denial of an asylum application that affirms an expedited order of removal and denies all relief or protection as asking the court ‘‘to review . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to [INA 235(b)(1), 8 U.S.C. 1225(b)(1)],’’ claims for which the statute bars jurisdiction. See INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A). Commenters asserted that the statute authorizes only two processes for the issuance of a removal order: (1) An expedited removal order under INA 235(b)(1), 8 U.S.C. 1225(b)(1), for which judicial review is barred; and (2) a removal order entered in proceedings under INA 240, 8 U.S.C. 1229a, for which judicial review is available but which the NPRM expressly proposed not to use. As such, according to commenters, the Departments’ simultaneous assertion that INA 235(b)(1), 8 U.S.C. 1225(b)(1) provides the authority to create the proposed procedures while at the same time stating that an order of removal issued pursuant to those procedures is not ‘‘an order of removal pursuant to [INA 235(b)(1), 8 U.S.C. 1225(b)(1)]’’ could raise questions about the availability of judicial review. Commenters also expressed concern that, even if this Administration is committed to interpreting the proposed rule as allowing for judicial review, a future administration could advise counsel at ICE and DOJ to interpret the rule more narrowly and argue that judicial review is not available. According to commenters, the possibility that the proposed rule could inadvertently deprive asylum seekers of judicial review is another reason to ensure that those not granted asylum by an asylum officer after passing a credible fear screen are referred to proceedings under INA 240, 8 U.S.C. 1229a. Finally, some commenters questioned what items the Federal courts would review, even if there is no jurisdictional hurdle to review by a U.S. Court of Appeals. Asserting that the circuit courts of appeals are used to reviewing records that include full immigration court hearing transcripts, commenters expressed concern that, under the proposed rule, courts of appeals would review a written decision of the BIA, which reviewed an IJ’s review of an asylum officer’s decision. Although the record likely would include a transcript VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 of the asylum officer interview, commenters worried that the transcript would be two levels removed from the Federal court review and would not be in the formal format that Federal courts are accustomed to reviewing. Response: As explained above in Section III of this preamble, the Departments are not adopting the IJ review procedure proposed in the NPRM; instead, under this IFR, noncitizens whose applications for asylum are adjudicated but not granted by an asylum officer will be issued an NTA and referred to an IJ for further review of their applications in streamlined section 240 removal proceedings. If the IJ in turn denies the noncitizen’s application for asylum, the IJ will issue an order of removal, and the noncitizen may appeal that decision under the generally applicable procedures, first to the BIA and then in a petition for review to the appropriate U.S. Court of Appeals. 8 CFR 1003.24; INA 242, 8 U.S.C. 1252. Accordingly, this change addresses commenters’ concerns regarding the availability of judicial review. Regarding commenters’ concerns about the record for judicial review, the Departments do not agree that the nature of the record presents concerns. As stated in the NPRM, USCIS will transcribe the Asylum Merits interview before the asylum officer, and that verbatim transcript will be included in the referral package sent to the immigration court, as finalized in 8 CFR 208.9(f). Because the Departments will ensure that the transcripts of these hearings are in a format that is appropriate for the IJ’s review of the record, commenters’ concerns that the transcript will not be sufficiently formal or otherwise helpful for BIA or Federal court review is simply speculative. The noncitizen may then supplement the record from the hearing by the asylum officer during the noncitizen’s proceedings before an IJ, including by providing statements or evidence regarding any alleged insufficiency during the Asylum Merits proceedings. Further, if the noncitizen appeals the IJ’s decision, all hearings conducted by the IJ will be transcribed under standard EOIR procedures. See 8 CFR 1003.5(a) (2020).92 92 DOJ amended 8 CFR 1003.5 in 2020 as part of a final rule that affected EOIR procedures related to the processing of BIA appeals. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 81588 (Dec. 16, 2020). On March 10, 2021, the United States District Court for the Northern District of California granted a nationwide preliminary injunction barring the Department from implementing or enforcing the 2020 rule or any portion thereof and stayed the effectiveness of the PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 Comments: Some commenters stated that, although they suggested changes to strengthen due process protections with respect to the proposed IJ review proceedings, the Departments are on track to usher in a modernized U.S. asylum system that is orderly, efficient, and fair. Another commenter called attention to what it said is ‘‘the fundamental defect in our immigration adjudication system that gives rise to the technocratic changes proposed’’ in the NPRM: The lack of an independent immigration court. The commenter suggested that the Departments adopt a ‘‘new model’’ in which an independent court, presided over by independent judges, would assertedly ‘‘make rational decisions based on the facts and the law of the cases it hears.’’ Commenters also expressed concern that the proposed appeal process seems vague, among other flaws, leaving it unclear what will happen to someone where an IJ on appeal rules in contradiction of the lower authority. Response: Commenters’ assertions regarding problems with the immigration court system as a whole are beyond the scope of this rulemaking. Nonetheless, the Departments emphasize that IJs exercise ‘‘independent judgment and discretion’’ in deciding cases, 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), and are prohibited from considering political influences in their decision-making, IJ Ethics and Professionalism Guide (‘‘An Immigration Judge should not be swayed by partisan interests or public clamor.’’). Moreover, as noted above and in Section III of this preamble, the Departments have not adopted the IJ review procedure proposed in the NPRM and instead are providing that if an asylum officer adjudicates but does not grant asylum, the noncitizen will be issued an NTA in streamlined section 240 removal proceedings. Because new 8 CFR 1240.17(a) provides that the same rules and procedures governing proceedings under 8 CFR, part 1240, subpart A, apply unless otherwise noted, if the IJ in turn denies relief or protection, a noncitizen may appeal the IJ’s decision to the BIA under the DOJ regulations at 8 CFR 1240.15 and may further petition for review of the BIA’s decision by a Federal circuit court. The Departments believe that this revision addresses commenters’ concerns about rule. Centro Legal de La Raza v. Exec. Off. for Immigr. Rev., No. 21–CV–00463–SI, 2021 WL 916804, at *1 (N.D. Cal. Mar. 10, 2021). Accordingly, the Departments cite to the regulations in effect prior to publication of the December 16, 2020 rule. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations the alleged vagueness and unfairness of the proposed appeal process in the NPRM by providing a clear process for appeal and incorporating longstanding protections that ensure fairness in immigration proceedings. Comments: Commenters urged the Departments to ensure that all noncitizens have access to motions to reopen protections, asserting that the NPRM is unclear about whether there would be an opportunity for the noncitizen to move to reopen if not physically removed following a removal order. Response: As noted above and in Section III of this preamble, the Departments have decided not to adopt the IJ review procedure proposed in the NPRM and instead are providing that if an asylum officer adjudicated but did not grant asylum, the noncitizen will be issued an NTA in streamlined section 240 removal proceedings. The standard rules governing motions to reopen will continue to apply in those section 240 proceedings. See INA 240(b)(5)(C), (c)(7), 8 U.S.C. 1229a(b)(5)(C), (c)(7); 8 CFR 1003.2, 1003.23. The Departments believe this change addresses commenters’ concerns about the clarity of rules governing access to motions to reopen in the NPRM. Comments: Commenters urged the Departments to generally end the practice of expedited removal, particularly in the case of asylum seekers, and grant applicants a full hearing before an IJ when requesting an appeal on a negative decision by an asylum officer. Response: Commenter recommendations to eliminate expedited removal are beyond the scope of this rulemaking. Nevertheless, the Departments note that expedited removal is a statutorily provided procedure. INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) (‘‘If an immigration officer determines that [a noncitizen] . . . who is arriving in the United States . . . is inadmissible . . . the officer shall order the [noncitizen] 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)(B)(iii)(I), 8 U.S.C. 1225(b)(1)(B)(iii)(I) (‘‘[I]f the officer determines that [a noncitizen] does not have a credible fear of persecution, the officer shall order the [noncitizen] removed from the United States without further hearing or review.’’). Comments: Commenters suggested ways to ensure timely, effective, and fair immigration court decisions: (1) Formalize IJ authority to use VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 administrative closure to manage their dockets; (2) establish formal pre-hearing conferences for DHS attorneys and noncitizens’ counsel to confer and identify issues in dispute prior to trial, stipulate to issues where there is no dispute, or agree that asylum or protection is grantable based on the written submissions; (3) clarify the IJ’s authority to terminate section 240 removal proceedings to allow a noncitizen to pursue applications for permanent status before USCIS if the noncitizen establishes prima facie eligibility for such status; and (4) create a formal mechanism for asylum seekers and other immigrants to advance immigration court hearing dates to ensure that their cases are timely heard and that hearing slots do not go unused. Response: Comments suggesting improvements for immigration court proceedings generally are outside the scope of this rulemaking. However, the Departments briefly explain the current legal scheme and how it may relate to this IFR. First, regarding commenters’ request that IJs be able to utilize administrative closure to manage their dockets, the Attorney General recently issued Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), finding that, while the process of rulemaking proceeds, the current standard for administrative closure is set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W– Y–U–, 27 I&N Dec. 17 (BIA 2017). Parties should refer to the current case law until further rulemaking is completed. See Director Memorandum’s (DM) 22–03, Administrative Closure (Nov. 22, 2021). Second, regarding the commenters’ request for a formal pre-hearing conference, the IFR, in new 8 CFR 1240.17(f), provides that the IJ will hold a prehearing status conference to narrow the issues and otherwise simplify the case. Third, commenters’ request that the Departments clarify general IJ authority to terminate proceedings to allow a noncitizen to pursue other relief or protection before USCIS is beyond the scope of this rulemaking. This IFR specifically addresses procedures for noncitizens subject to the expedited removal process; it does not involve general IJ authority to terminate proceedings. Regarding IJs’ general authority to terminate proceedings, relevant case law provides that an IJ may dismiss or terminate section 240 removal proceedings only under the circumstances identified in the regulations. See Matter of S–O–G– & F– D–B–, 27 I&N Dec. 462 (BIA 2018). Further, parties may agree to dismiss PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 18183 proceedings for the noncitizen to pursue other relief or protection before USCIS. See Matter of Kagumbas, 28 I&N Dec. 400, 401 n.2 (BIA 2021) (noting that parties are not prohibited ‘‘from agreeing to dismiss proceedings so that a respondent may pursue adjustment of status before . . . USCIS’’). Fourth, regarding commenters’ request for EOIR to create a formal mechanism for noncitizens to file a motion to advance hearing dates, the Immigration Court Practice Manual provides formal instructions for requests to advance a hearing date. See EOIR Policy Manual, Part II.5.10(b). Moreover, EOIR maintains a formal policy to ensure that all available blocks of immigration court time are utilized to the maximum extent practicable. See EOIR, PM 19–11, No Dark Courtrooms (May 1, 2019), https:// www.justice.gov/eoir/file/1149286/ download. E. Other Issues Related to the Proposed Rulemaking 1. Public and Stakeholder Input Comments: Several commenters requested a comment period extension for various reasons, such as unclear deadline instructions, insufficient time to comment, and impacts of the COVID– 19 pandemic. One commenter stated that commenting on this rule is difficult without understanding its interaction with other proposed rulemakings relating to the asylum system. Additionally, two commenters requested that the proposed rule be rescinded, revised, and reposted for another comment period opportunity. One of these commenters said the agency should reissue a new NPRM after providing asylum seekers meaningful opportunities to present their own recommendations for reforming the asylum system. Response: Although the APA does not require a specific time period for public comments, Executive Orders 12866, 58 FR 51735 (Sept. 30, 1993), and 13563, 76 FR 3821 (Jan. 18, 2011), recommend a comment period of at least 60 days. Here, the Departments have a provided a 60-day comment period that allowed for adequate notice, evinced by the over 5200 comments received and addressed in this rule. In addition, the Departments are issuing this rulemaking as an IFR with a request for comment, thus allowing the public a further chance to provide input. The Departments consequently do not agree with the need for an extension. Additionally, suggestions to rescind, revise, and republish the rule upend the rulemaking process. The NPRM is designed to provided fair notice and E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18184 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations allow for public input. Engaging in continual reworking of such a notice because of public comment undermines the methodology of informal rulemaking under the APA. Comments: Several commenters urged USCIS to engage with stakeholders like immigration advocates, nongovernmental organizations, and asylum seekers to improve existing processes prior to publishing the rule. One commenter provided specific feedback from its members about improving the efficiency and accessibility of the asylum system. Another commenter similarly requested that, before any further steps are taken to finalize the rule, additional consultations take place. The commenter ‘‘remind[ed]’’ the Departments that, in response to a rule proposed by the prior Administration, UNHCR emphasized that it was prepared to offer technical assistance, and the asylum officers’ union observed that the current Administration ‘‘must make sure that the individuals tasked with implementing policy have a voice in crafting new regulations.’’ The commenter stated that, by Executive order, the President has mandated that Federal Departments ‘‘shall promptly begin consultation and planning with international and non-governmental organizations to develop policies and procedures for the safe and orderly processing of asylum claims at United States land borders.’’ If the Departments choose not to engage in such consultation and planning with experts, the commenter requested an explanation of why not. Response: The Departments acknowledge commenters’ requests for further engagement and their suggestions to improve the asylum program. Here, the Departments provided a 60-day comment period in the NPRM, which provided the opportunity for members of the public, including the commenters, public employee unions, and other stakeholders, to offer feedback on the rule. In addition, in this IFR, the Departments are including another request for public comments. Furthermore, the Departments regularly engage experts from non-governmental and intergovernmental organizations to supplement the extensive training provided to their personnel. The Departments also note that they regularly hold public engagement sessions with stakeholders, allowing further opportunity for the consultations the commenters have requested. The Departments are continually seeking ways to improve the manner in which they carry out their duties in service to VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the public and take into account stakeholder feedback when doing so. Comments: Some commenters requested a more specific definition of ‘‘particular social group’’ to better understand the proposed rule and provide feedback. Similarly, several commenters requested a delay in implementation of the rule until the ‘‘particular social group’’ rule is issued so that Congress has the opportunity to comment and, if necessary, to legislate on who is eligible for asylum. Response: The Departments acknowledge the commenters’ interest in the forthcoming rulemaking addressing, among other things, the definition of the term ‘‘particular social group’’ as used in the INA.93 However, the Departments disagree that the implementation of this IFR should be delayed until the ‘‘particular social group’’ rule is issued. The Departments do note, however, that in issuing this rulemaking as an IFR, they are soliciting further comment on its provisions. This rulemaking does not change any of the criteria for asylum eligibility, but rather addresses the procedures and mechanisms by which the asylum claims of individuals subject to expedited removal are considered and processed. By contrast, the ‘‘particular social group’’ rulemaking would codify the Departments’ interpretations of certain Federal statutes they are charged with implementing. The Administrator of the Office of Information and Regulatory Affairs within the Office of Management of Budget has determined that this IFR 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, this IFR is effective 60 days after publication, thus allowing additional time for congressional review. If Congress deems it necessary to legislate on asylum eligibility or any other topic within its authority under the United States Constitution, it may certainly do so without regard to any regulations promulgated by Executive departments. The Departments will faithfully execute any laws enacted by Congress and signed by the President. 2. Severability Comments: A commenter expressed concern that, if certain protective provisions in the proposed rule are severed, then it ‘‘would fall short of international standards for fair and 93 See Executive Office of the President, OMB, OIRA, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/ public/do/eAgendaViewRule?pubId=202104& RIN=1615-AC65 (last visited Feb. 27, 2022). PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 efficient processing of asylum applications.’’ Response: The Departments acknowledge the commenter’s concern. The Departments are committed to ensuring that the process afforded applicants meets the requirements of due process even if certain aspects of the IFR are enjoined by a court. With this consideration in mind, the Departments reiterate the statement on severability set forth in the NPRM. 86 FR 46921. That is, to the extent that any portion of the IFR is stayed, enjoined, not implemented, or otherwise held invalid by a court, the Departments intend for all other parts of the 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 IFR results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the IFR continue to operate in tandem with the reverted provisions, if at all possible, and subject to the discretion permitting USCIS to decide to issue individuals NTAs and refer noncitizens to ordinary section 240 removal proceedings. 3. Discretion and Phased Implementation a. Discretion Comments: One commenter expressed concern about providing DHS with discretion to determine whether noncitizens who receive a positive credible fear determination are issued NTAs and referred directly to section 240 removal proceedings or instead have their cases retained by USCIS for Asylum Merits interviews. The commenter urged DHS to eliminate the discretion to place noncitizens in section 240 removal proceedings rather than in the new process. This commenter believes that such discretion is arbitrary, inconsistent, and will ‘‘exacerbate negative bias’’ in the decision-making process. Another commenter urged the Departments to reconsider the use of discretion because the commenter believes there is a high risk of inconsistent treatment among asylum seekers subject to the new process and asylum seekers who are placed in section 240 removal proceedings in the first instance. Response: The Departments acknowledge the commenters’ concerns but disagree that permitting DHS to continue to exercise its discretion to place noncitizens who establish a credible fear of persecution or torture directly into ordinary section 240 E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 removal proceedings before an IJ, as finalized in new 8 CFR 208.30(b), is arbitrary, inconsistent, or will exacerbate negative bias. Such discretion is needed because there may be circumstances in which it may be more appropriate for a noncitizen’s protection claims to be heard and considered in the adversarial process before an IJ in the first instance (for example, in cases where a noncitizen may have committed significant criminal acts, engaged in past acts of harm to others, or created a public safety or national security threat). In addition, the Departments anticipate that DHS will also need to continue to place many noncitizens receiving a positive credible fear determination into ordinary section 240 removal proceedings while USCIS takes steps needed to allow for full implementation of the new process. Noncitizens who are placed into section 240 removal proceedings in the first instance will have access to the same procedural protections that have been in place for asylum adjudications for many years. Such exercise of discretion is similar to and in line with DHS’s recognized prosecutorial discretion to issue an NTA to a covered noncitizen in expedited removal proceedings at any time after the covered noncitizen is referred to USCIS for a credible fear determination. See Matter of E–R–M– & L–R–M–, 25 I&N Dec. at 523. Moreover, USCIS asylum officers have experience with exercising discretion in various contexts, including in the adjudication of the asylum application itself, and, thus, will be well suited to exercise discretion in this context. b. Phased Implementation Comments: Some commenters expressed opposition to the phased rule implementation approach. One commenter asserted that a Federal district court has found that the practice of expediting cases for a particular subset of individuals may violate their rights, citing Las Americas Immigrant Advocacy Center v. Trump, 475 F. Supp. 3d 1194 (D. Or. 2020). Another commenter asserted that there is no justification for what the commenter viewed as the rule’s preferential treatment for non-detained families over detained individuals and single adult women and men. Another commenter suggested a detailed plan for USCIS to conduct a pilot project allowing asylum seekers to opt into the new process and then have USCIS collect evidence about the fairness and expeditiousness of the rule before it becomes final. Alternatively, the commenter suggested providing a preliminary period during VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 which the rule would be in effect followed by a ‘‘stay’’ of the regulatory changes to ensure that the new process is producing fair and expeditious decisions. Response: As discussed in greater detail in the costs and benefits analysis of this rule and its impacts on USCIS, as required under Executive Orders 12866 and 13563, USCIS has estimated that it will need to hire new employees and spend additional funds to fully implement the new Asylum Merits process. If the number of noncitizens placed into expedited removal and making successful fear claims increases, the cost to implement the rule with staffing levels sufficient to handle the additional cases in a timely fashion would be substantially higher. Until USCIS can support full implementation, USCIS will need to continue to place a large percentage of individuals receiving a positive credible fear determination into ordinary section 240 removal proceedings in the first instance. Current resource constraints will 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 in the first instance. The Departments are also accounting for existing and emerging priorities impacting the workload of the USCIS Asylum Division, such as the affirmative asylum caseload and the streamlined asylum application processing of certain Afghan parolees as described in section 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act.94 The Departments believe that, to fully implement the rule, additional resources will be required. The Departments therefore will expand use of the new Asylum Merits process in phases, as the necessary staffing and resources are put into place. While the Departments acknowledge the commenters’ recommendations that the Departments proceed with a pilot project or have regulatory changes take effect for a limited time, the Departments believe that the phased implementation approach is better suited for this new process. A phased implementation will allow the Departments to begin employing the new process in an orderly and controlled manner and for a limited 94 See Public Law 117–43, sec. 2502, 135 Stat. 344, 377 (2021); DHS, DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals as They Resettle in the U.S. (Nov. 8, 2021), https://www.dhs.gov/news/2021/11/08/dhsannounces-fee-exemptions-streamlined-processingafghan-nationals-they-resettle. PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 18185 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 protection claims presented, heard, and properly adjudicated in full conformance with the law. Phased implementation will 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. Phased implementation will also ensure that EOIR is able to dedicate IJs to the streamlined section 240 removal proceedings, which will require available docket space to meet these proceedings’ scheduling requirements. Given limited agency resources, the Departments anticipate first implementing this new process for only a limited number of noncitizens who receive a positive credible fear determination after the effective date of this rule. The Departments believe this is necessary because USCIS capacity is currently insufficient to handle all referrals under this new process. The Departments also anticipate limiting referrals under the initial implementation of this rule to noncitizens apprehended in certain Southwest border sectors or stations, as well as based on the noncitizen’s final intended destination (e.g., if the noncitizen 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 cases could be considered for processing pursuant to this phased implementation. The Departments also disagree that the decision in Las Americas precludes a phased implementation of the IFR. The relevant part of that decision addressed only whether the adoption of a separate policy constituted ‘‘final agency action’’ that could be challenged under the APA. 475 F. Supp. 3d at 1216. The decision did not purport to prohibit agencies from implementing regulatory programs in phases. Overall, the Departments will work together to ensure that both agencies have capacity as this rule’s implementation proceeds. For example, if EOIR does not have additional available docket space, USCIS will not expand the rule’s application at that point. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18186 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 4. Comments on Immigration Court Inefficiencies and Bottlenecks Comments: Some commenters suggested several ways to address inefficiencies and bottlenecks, such as quickly filling existing positions, surging staffing to the courts, and requesting funding from Congress to increase the number of immigration court interpreters, support staff, IJs, BIA legal and administrative staff, and BIA members. Additionally, these commenters suggested pre-hearing requirements to narrow issues for trial and to create a process to advance cases stuck in the court backlog. Response: The Departments acknowledge the commenters’ suggestions and recommendations to help improve the immigration adjudication process as a whole. The commenters’ suggestions regarding the hiring process, staff surges, and increased funding are beyond the scope of this rulemaking. However, DOJ has already implemented or is currently implementing a number of measures referenced by the commenters, as described below. For example, DOJ has reduced the average IJ hiring process from 742 days (over 2 years) in 2017 to 8 to 10 months at present. Upon receipt of qualified applicants from the Office of Personnel Management (‘‘OPM’’), DOJ immediately begins assessment of the applicants. DOJ also consistently meets its internal deadlines for this process. As a result of these efforts, as of October 2021, DOJ had hired 65 new IJs in FY 2021, bringing the total number of IJs to 559. See EOIR, Adjudication Statistics: Immigration Judge (IJ) Hiring (Jan. 2022), https://www.justice.gov/eoir/ page/file/1242156/download. DOJ continues to focus on filling all vacancies as expeditiously as possible. DOJ has consistently requested increased funding for additional authorized positions. In its FY 2022 budget request, DOJ requested an additional 600 authorized positions, to include 300 attorney positions. Of the 300 attorney positions, DOJ anticipates hiring 100 new IJs and support staff. See DOJ, FY 2022 Budget and Performance Summary: Executive Office for Immigration Review (Aug. 20, 2021), https://www.justice.gov/jmd/page/file/ 1399026/download. DHS also requested funding appropriations to meet the increased workload in the immigration courts and ameliorate staffing budgetary shortfalls. For FY 2022, DHS requested 100 additional ICE litigator positions to prosecute the removal proceedings initiated by DHS, consistent with 6 U.S.C. 252(c). See DHS, ICE Budget Overview: FY2022 Congressional VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Justification at ICE–O&S–22, https:// www.dhs.gov/sites/default/files/ publications/u.s._immigration_and_ customs_enforcement.pdf. In new 8 CFR 1240.17(f)(1)–(3), the IFR establishes certain pre-hearing requirements for individuals in streamlined section 240 proceedings. Establishing pre-hearing requirements for all cases, however, is beyond the scope of this rulemaking. DOJ reiterates that IJs may issue orders for pre-hearing statements. 8 CFR 1003.21(b), (c). Further, EOIR’s case flow processing model, which applies to certain nondetained cases with representation, incorporates short matter hearings or pre-trial conferences for cases that are not yet ready for trial, as appropriate. See EOIR, PM 21–18: Revised Case Flow Processing Before the Immigration Courts (Apr. 2, 2021), https:// www.justice.gov/eoir/filing-deadlinesnon-detained-cases; see also EOIR, DM 22–04: Filing Deadlines in Non-Detained Cases (Dec. 16, 2021), https:// www.justice.gov/eoir/book/file/ 1456951/download (amending PM 21– 18). F. Statutory and Regulatory Requirements 1. Impacts and Benefits (E.O. 12866 and E.O. 13563) a. Methodology Comments: A commenter referenced the NPRM statement that the agencies cannot accurately estimate the benefits to the agencies. Additionally, the commenter referenced several specific cost estimates and case numbers from the NPRM and reasoned that the numbers are now incorrect because more cases have been added since then, causing an increase in cost and resulting in less financial efficiency for the rule. Response: USCIS acknowledges the increasing backlog and agrees that it can have an impact on credible fear asylum applicants, their families, and support networks. As stated in the NPRM, this rule is expected to slow the growth of EOIR’s backlog and allow EOIR to work through its current backlog more quickly. First, the rule will allow DHS to process more noncitizens encountered at or near the border through expedited removal—rather than placing them into section 240 removal proceedings—thereby quickly and efficiently securing removal orders for those who do not make a fear claim or who receive a negative credible fear determination. Second, this rule is estimated to reduce EOIR’s overall credible fear workload by at least 15 percent. This estimate is based on the average of EOIR asylum grant data over PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 the past five years for cases originating with a credible fear claim.95 Under this IFR, grants of asylum for such cases would generally be made by USCIS without involvement by EOIR (setting aside those cases in which asylum is granted after referral to a streamlined section 240 proceeding). Because the Departments expect that USCIS’s asylum grant rate will be approximately the same as EOIR’s, approximately 15 percent of cases originating in credible fear interviews will no longer contribute to EOIR’s workload. Third, the above calculation sets a lower bound on EOIR’s expected workload reduction, as it does not account for efficiencies that may be realized in cases that are referred to EOIR for streamlined section 240 proceedings. In these three ways, the rule will enable IJs to focus efforts on other high-priority work, including backlog reduction. Moreover, for noncitizens who are placed into the process established by this IFR, the Departments expect that asylum decisions will be reached faster than if they were to go through the current process with EOIR. Unfortunately, not all benefits can be quantified at this time, as the Departments acknowledged in the NPRM and affirm in this IFR. 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 changes to the regulatory standard for consideration for parole could lead to individuals spending less time in detention, which would benefit the Government, considering its limited resources and inability to detain all those apprehended, as well as the affected individuals, who would be able to continue to prepare for and pursue relief or protection outside the confines of a detention setting. b. Population Comments: A commenter asserted that the 75,000 to 300,000 range of 95 See supra note 57 (discussing IJs’ and asylum officers’ similar approval rates on the merits of the asylum claim). Based on the five-year (FY 2017 through FY 2021) average, an estimated 15 percent of the total number of EOIR asylum cases completed originating from credible fear screening were granted asylum. See EOIR, Adjudications Statistics: Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/ 1062976/download. Calculation: FY 2017 to FY 2021 grant rates (14.02 percent) + (16.48 percent) + (15.38 percent) + (16.60 percent) + 14.32 percent)/ 5 = 15 percent average (rounded). E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations people cited in the NPRM who would receive credible fear determination does not include the ‘‘2019 DHS expansion of the expedited removal process to the full extent authorized by statute.’’ Response: The Departments disagree that the population cited in the NPRM underestimates the number of people who would receive credible fear determinations. Although there is no way to predict exact future filing volumes, USCIS determined the population expected to be affected by this rule to be the average number of credible fear completions processed annually by USCIS (71,363, see Table 3). However, as changes in credible fear cases and asylum in general can be driven by multiple factors that are difficult to predict, USCIS provided estimates for potential populations above and beyond the current number of annual credible fear completions. At present, the estimated lower bound of 75,000 is greater than current annual average of completions, and USCIS has estimated a maximum population of 300,000 people who could be impacted to account for variations and uncertainty in the future population. Although the 2019 DHS expansion of the expedited removal process is currently in place, President Biden, in his E.O. on Migration, has directed DHS to consider whether to modify, revoke, or rescind the expansion. It is unknown when or if the expansion would be rescinded or what other factors outside of this rulemaking may impact the size of this population. Therefore, the Departments have done their best to provide estimates at varying potential population levels. c. Costs or Transfers lotter on DSK11XQN23PROD with RULES2 i. Impacts on the Credible Fear Asylum Population and Support Networks Fees Comments: Several commenters stated that the United States has a legal obligation to protect those seeking asylum, and some stated that asylum applications should never require a fee. Additionally, many commenters said fee increases disproportionately impact low-income immigrants and vulnerable populations, including gender-based violence survivors. Other commenters stated that increased fees would financially harm noncitizens seeking asylum and create a barrier for many applicants. An individual commenter suggested that the fee-based services of USCIS would endanger the freedoms of U.S. citizens. Response: USCIS currently does not charge a fee to apply for asylum. This rule is not requiring low-income VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 noncitizens or other vulnerable populations to pay a fee for their asylum application to be adjudicated. Additionally, fee waivers are currently available for an applicant who cannot afford to pay to apply for an immigration benefit that requires a fee. The provisions of this IFR are not expected to impact any applicant who entered the United States legally and is seeking to obtain immigration benefits through the appropriate processes or any natural-born or naturalized U.S. citizen not part of an asylum applicant’s support network. Comments: Several commenters referenced the rule’s statement that a significant investment of resources will be necessary to build up the capacity of USCIS to make this new rule fully operational. Several commenters urged DHS to secure the necessary resources from Congress to the extent possible, rather than through increased fees for applicants. Response: The Departments acknowledge these comments and the concern they show for the funding of this rule. As the commenters state, fees are necessary for USCIS to collect to pay for the work USCIS performs in adjudicating applications and petitions for immigration benefits. USCIS acknowledged in the NPRM that, if this rule were to be funded through a future fee rule, it would increase fees by an estimated weighted average between 13 percent and 26 percent, depending on volume of applicants. 86 FR 46937. This estimated increase would be attributable to the implementation of the asylum officer portions of the proposed rule only. USCIS conducts notice-andcomment rulemaking to raise fees and increase revenue for such staffing actions. Although the substance of the future fee rule is outside of the scope of this rule, USCIS currently does not charge a fee to apply for asylum. USCIS is exploring all options to provide funding for this rule. Other Impacts Comments: A commenter expressed concern that the potential for more expedited denials of applications risks making some asylum seekers less likely to receive employment authorization while their cases are pending. Response: This rule is 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. Faster processing will lead to timelier case completions for asylum claims, including both approvals and denials. Employment authorization is a discretionary benefit PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 18187 that USCIS may grant to those who qualify. This rule does not change the requirements for employment authorization or for asylum, but it may change the amount of time some applicants’ cases remain pending. Applicants whose asylum claims are approved can work immediately. Comments: Multiple commenters asserted that the proposed rule will do little to address the backlog of cases or improve efficiency. Other commenters argued that the rule would divert already scarce agency resources away from noncitizens who submit affirmative asylum applications in addition to unaccompanied noncitizen minors, over whose asylum claims USCIS has initial jurisdiction. Another commenter expressed concern that, if USCIS shifted experienced asylum officers into this new role, it would slow down existing caseloads due to less experienced new hires. Response: The Departments disagree with the criticisms from these commenters. This rule will allow EOIR to focus efforts on high-priority work and will likely contribute to EOIR’s efforts to reduce its substantial current backlog over time. Ultimately, EOIR will not see the cases in which USCIS grants asylum, which the Departments estimate as at least a 15 percent reduction in EOIR’s overall credible fear workload. Over time, this rule stands to reduce the backlog of cases pending in immigration courts and will enable faster processing of cases originating in credible fear screening—whether asylum is granted or denied—than if they were to go through the current process with EOIR. USCIS has estimated that it will need to hire approximately 800 new employees to fully implement the proposed asylum officer interview and adjudication process to handle approximately 75,000 cases annually. USCIS will not shift asylum officer resources from their current workload to implement this program but has explained how it will hire, train, and deploy staff specifically dedicated to this program in Section IV.B.1.b of this preamble. Although addressing the affirmative asylum backlog is outside the scope of the rulemaking, the Departments acknowledge the importance of doing so and note that USCIS has taken other actions to address this priority. These include expanding facilities; hiring and training new asylum officers; implementing operational changes to increase interviews and case completions and reduce backlog growth; establishing a centralized vetting center; and working closely with technology partners to develop several tools that E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18188 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations streamline case processing and strengthen integrity of the asylum process.96 In addition, on September 30, 2021, Congress passed the Extending Government Funding and Delivering Emergency Assistance Act, which provides dedicated backlog elimination funding to USCIS for ‘‘application processing, the reduction of backlogs within asylum, field, and service center offices, and support of the refugee program.’’ Public Law 117–43, sec. 132, 135 Stat. at 351. Comment: A commenter asserted that biometric information collection for both EAD submissions and asylum applications is duplicative, timeconsuming, and costly due to the relatively low number of asylum offices throughout the country. Response: Biometrics information is collected on every individual associated with a Form I–589 filing, and for the Form I–765(c)(8) category, USCIS started collecting biometrics, and the associated $85 biometrics service fee, in October 2020. This rule does not change biometric collection requirements related to Form I–589 or Form I–765. USCIS may still have to require applicants to attend an ASC appointment or otherwise obtain their biometrics in support of the asylum application following a positive credible fear determination but is working to obtain the ability to reuse the biometrics already captured by other DHS entities for the asylum application before USCIS. Comments: One commenter said that DHS failed to consider the long-term financial and procedural impact on feepaying legal immigrants who pay USCIS petition fees and that this proposed rule unfairly shifts the financial burden from the U.S. taxpayer (DOJ) to lawful immigrants (USCIS). The commenter asserted that it is in the best interest of those who pay fees to have the money mostly spent on adjudicating their petitions, not on humanitarian interests. The commenter argued that the United States should have funded the operation, not lawful immigrants, and that funding could have been used on projects such as e-filing systems and process improvements instead. The commenter asserted that the proposal harms fee-paying immigrants, such as those with master’s and doctoral degrees in the STEM (science, technology, engineering, and mathematics) fields who are needed for the United States’ 96 See USCIS, Backlog Reduction of Pending Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021), https://www.dhs.gov/ sites/default/files/2021-12/USCIS%20-%20Backlog %20Reduction%20of%20Pending%20Affirmative %20Asylum%20Cases.pdf. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 international competitiveness. The commenter suggested that DOJ hire more IJs or that funding should come from Congress or by charging asylum seekers in expedited removal a fee that fully covers the cost to adjudicate their case. Response: USCIS already performs humanitarian work through credible and reasonable fear screenings, asylum interviews, and refugee processing for which the costs are covered through fees paid by applicants and petitioners. Should this rule be funded through a future fee rule, the financing would be no different. This rule is not requiring fee-paying immigrants with master’s and doctoral degrees in the STEM field to take on the full burden of this new program. Although some applicants who fall into these categories may face increased fees under a future fee rule, historically, changes to fees are spread across a variety of applicants and petitioners and are fully outlined in a notice-and-comment rulemaking. Comment: A commenter asserted that the NPRM would cause significant harm to its mission and programming and to the clients it serves. It stated that it will need to make significant changes in its programming to provide meaningful representation and pro bono services and may have to divert more resources to represent asylum seekers in appeals. Additionally, the commenter asserted, the fast-tracking of interviews and the limitations on attorney representation during the interviews would significantly hinder its ability to provide legal services in a timely and meaningful manner. As a result, it would have a smaller population it could represent in the United States. Without access to counsel, it asserted, asylum seekers would be less likely to prevail on the merits of their claims. The commenter alleged that the consequences of these proposed changes would be devastating for tens of thousands of refugees whom the United States has committed to protecting. Response: The Departments acknowledge the commenter’s concern but disagree that this rule will negatively impact asylum seekers in the manner the commenter predicts. This rule is 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. This rule does not change the requirements for asylum applicants or the evaluation criteria that are used during adjudication. Prompt adjudication of these claims will benefit asylum seekers, the Departments, and the public. The PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 Departments understand that applicants will need time to review their applications and supporting documentation, consult with representatives, and prepare for their Asylum Merits interviews before USCIS asylum officers. At the same time, the underlying purpose of this rulemaking is to establish a process for promptly adjudicating cases that heretofore have been drawn out for months or even years before EOIR. To balance the efficiency goals of the present rule with the fairness and due process concerns raised by commenters and shared by the Departments, the Departments are clarifying at 8 CFR 208.9(a)(1) that there will be a minimum of 21 days between the service of the positive credible fear determination on the applicant and the date of the scheduled Asylum Merits interview. This time frame mirrors the time frame provided to applicants in the affirmative asylum process, where asylum interviews are generally scheduled, and interview notices are mailed to applicants, 21 days in advance of the asylum interview date. This rule does not limit access to counsel for asylum applicants. To the contrary, 8 CFR 208.9(b) provides that ‘‘[t]he applicant may have counsel or a representative present’’ at the asylum interview, and 8 CFR 208.9(d)(1) provides the applicant’s representative an opportunity to make a statement, comment on the evidence presented, and ask follow-up questions. Moreover, the Departments are forgoing the IJ review procedure proposed by the NPRM. Rather, applicants who are not granted asylum after a hearing conducted by the asylum officer will be placed in streamlined section 240 removal proceedings. Although these proceedings will be substantially streamlined relative to ordinary section 240 proceedings, the Departments have designed a process that is intended to facilitate and preserve access to counsel and ensure that noncitizens receive a full and fair hearing. First, noncitizens subject to these procedures who have not secured counsel by the time of their Asylum Merits interview will continue to have a meaningful opportunity to secure counsel during removal proceedings. The IFR provides for a 30-day gap between the asylum officer’s decision not to grant asylum and the noncitizen’s master calendar hearing in immigration court, during which time the noncitizen may seek counsel. At the master calendar hearing, IJs must advise unrepresented noncitizens of their rights in removal section 240 removal proceedings, including their right to E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations representation and the availability of pro bono legal services, and provide a list of pro bono legal service providers. INA 240(b)(4), 8 U.S.C. 1229a(b)(4); 8 CFR 1240.10. The noncitizen will have an additional 30 days before the status conference to seek counsel without needing to request a continuance. A noncitizen who remains unrepresented at the status conference may request a continuance for good cause shown to secure counsel and may receive such continuances for up to an additional 30 days. Matter of C–B–, 25 I&N Dec. at 889 (‘‘In order to meaningfully effectuate the statutory and regulatory privilege of legal representation . . . , the [IJ] must grant a reasonable and realistic period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel.’’). The IFR permits further continuances to secure counsel in appropriate circumstances even under the rule’s heightened continuance requirements, which apply after 30 days of continuances have been granted. See, e.g., Usubakunov, 16 F.4th at 1305 (denial of a noncitizen’s motion for a continuance to permit his attorney to be present at his merits hearing amounted to violation of his statutory right to counsel). Accordingly, the IFR provides a significant and reasonable amount of time for noncitizens to obtain counsel and allows for continuances to secure representation in appropriate circumstances. Second, the IFR recognizes that a noncitizen might not obtain counsel before the beginning of proceedings and therefore allows for continuances or extensions of filing deadlines where counsel needs additional time to prepare, so long as counsel demonstrates that the need for the continuance or extension satisfies the applicable standard. The rule also provides flexibility to counsel by allowing noncitizens to file additional documents and supporting evidence after the filing deadline when certain conditions are met. Third, the rule provides a meaningful opportunity for both represented and unrepresented noncitizens to present their claims during streamlined section 240 removal proceedings. The rule is consistent with IJs’ duty to develop the record, and various provisions of the rule particularly enable IJs to do so in cases involving pro se respondents. In cases where the noncitizen is represented, the IFR is designed to streamline proceedings by narrowing the issues to be adjudicated, which the Departments anticipate will benefit all parties and their counsels as well as EOIR. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 ii. Impacts on U.S. Workers, Companies, Economy Approximately five commenters provided specific feedback about the impacts on U.S. workers, companies, and the economy. Comments: A commenter expressed concern about the fiscal impact on American taxpayers and stated that the proposed rule is not clear about how USCIS will cover the costs related to the rule. Another commenter requested that DHS provide estimates of the proposal’s impact on the number of immigrants and asylum seekers intending to enter the country and the costs associated with any increased immigration. The commenter also requested an estimate of how much the humanitarian effort of accepting asylees would cost the average U.S. citizen and expressed concern about immigration’s impact on the country’s limited financial resources. Response: The work performed by USCIS is primarily paid for through fees collected from applicants or petitioners requesting immigration or naturalization benefits.97 USCIS acknowledged in the NPRM that, if this rule were to be funded through a future fee rule, it would increase fees by an estimated weighted average of between 13 percent and 26 percent, depending on volumes of applicants. 86 FR 46937. USCIS conducts notice-and-comment rulemaking to raise fees and increase revenue for such staffing actions. Although speculating on future fees is outside of the scope of this rule, USCIS currently does not charge a fee to apply for asylum. USCIS is exploring all options to provide funding for this rule. The population expected to be affected by this rule is the average 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, the Departments take into consideration larger populations to account for variations and uncertainty in the future population. Regarding the costs associated with increased immigration, this rule focuses on the direct costs to USCIS related to staffing needs to absorb the new workload it will take on from EOIR. Further, the Departments recognize the role of support networks, which could include public and private entities and family and personal friends, 97 See USCIS, Budget, Planning and Performance (May 28, 2021), https://www.uscis.gov/about-us/ budget-planning-and-performance. PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 18189 legal services providers and advisors, religious and charity organizations, State and local public institutions, educational providers, and nongovernmental organizations (‘‘NGOs’’), but it is not possible to place a monetary value on such support. The rule does not change the substantive eligibility standard for asylum or the evidentiary requirements. Therefore, USCIS has no reason to expect that the rule will have a significant effect on the number of individuals who may be granted asylum. Additionally, individuals whose asylum claims are pending are not provided any special humanitarian aid funded by U.S. taxpayers. Comments: Several commenters speculated that, in the current economic situation of high inflation and low jobgrowth, the influx of working-age immigrants may create wage decreases impacting low-wage American workers. Another commenter cited a study and the testimony of a former member of Congress indicating that immigrants with low education and skills may compete with the most vulnerable Americans, which would assertedly lower wages and benefit businesses. Response: The commenters suggesting that increased immigration, particularly of low-skilled immigrants, to the United States may adversely impact the wages of low-income Americans provide no evidence indicating such an impact would be the most likely outcome of this rulemaking. Furthermore, these comments blur the distinction between legal and illegal immigration and provide little evidence on the impact of asylum seekers in particular on wages.98 Faster adjudications for applicants who receive a positive credible fear determination mean they may enter the labor market sooner under this rule than they would currently. Conversely, some asylum seekers that currently enter the labor market with a pending asylum application will no longer enter the labor market under this rule if they receive a negative decision on their asylum claim at an earlier date. Therefore, at this time, it is unknown exactly how this rule will impact employment authorization for this population or what impacts such authorizations would have on the labor market. Because the ‘‘(c)(8)’’ EAD does not include or require, at the initial or 98 Economic research indicates that immigration in general has had little effect on the distribution of wages in the United States in recent decades. See Jane G. Gravelle, Cong. Research Serv., R46212, Wage Inequality and the Stagnation of Earnings of Low-Wage Workers: Contributing Factors and Policy Options (Feb. 5, 2020), https://crsreports. congress.gov/product/pdf/R/R46212/3 (last visited Mar. 5, 2022). E:\FR\FM\29MRR2.SGM 29MRR2 18190 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 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. Therefore, USCIS cannot confirm the type of work that asylum seekers obtain or the wages they earn. The Bureau of Labor Statistics (‘‘BLS’’) publishes statistics on employment that can provide insight into the current economic situation. Total nonfarm payroll employment rose by 210,000 in November 2021, while the unemployment rate fell to 4.2 percent and the number of unemployed persons fell by 542,000 to 6.9 million.99 BLS also publishes job openings, a measure of the unmet demand for labor. In November 2021, there were 10.6 million job openings.100 Meanwhile, BLS’ quarterly employment cost index shows that wages and salaries increased for civilian, private industry, and State and local government workers in September 2021.101 The arguments that low job growth or the influx of working-age immigrants may create wage decreases impacting low-wage American workers are speculative and not supported by the data. iii. Impacts on Federal Government lotter on DSK11XQN23PROD with RULES2 Impacts on U.S. Citizenship and Immigration Services Approximately 15 submissions provided feedback about the impacts to USCIS. Comments: Many commenters asserted that the proposed rule will do little to address case backlogs at either EOIR or USCIS and will require extensive resources from USCIS. Several commenters argued that the financial and administrative burden will shift from EOIR to USCIS. Multiple commenters expressed concern that resources will be drawn away from the current process in order to conduct training for and implement the new process, which will increase backlogs. Another commenter suggested that that newly hired asylum officers should be deployed to the existing asylum offices to reduce the already existing backlogs. Response: EOIR’s caseload includes a wide range of immigration and removal 99 BLS, The Employment Situation—November 2021 (Dec. 3, 2021), https://www.bls.gov/news. release/archives/empsit_12032021.pdf (last visited Feb. 27, 2022). 100 BLS, Job Openings and Labor Turnover— November 2021 (Jan. 4, 2022), https://www.bls.gov/ news.release/archives/jolts_01042022.pdf (last visited Feb. 27, 2022). 101 BLS, Employment Cost Index—September 2021 (Oct. 29, 2021), https://www.bls.gov/news. release/archives/eci_10292021.pdf (last visited Feb. 27, 2022). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 cases. Allowing asylum officers to take on cases originating in the credible fear process is expected to reduce delays across all of EOIR’s docket, as well as reduce the time it takes to adjudicate these protection claims. By shifting that caseload to USCIS, the rule will enable IJs to focus efforts on other high-priority work. USCIS acknowledges that it will take time and money to hire and train new asylum officers, but it does not anticipate shifting current resources to do so. Hiring and training asylum officers is already a part of regular USCIS operations. USCIS does not anticipate increased backlogs as a direct result of this rule. As stated in the NPRM and in this IFR, there is the potential for backlogs to be mitigated, though USCIS cannot predict the timing and scope of such potential changes with accuracy. Staffing levels and priorities across the agency are continuously monitored and actions are taken as needed. Comments: Several commenters asserted that training asylum officers would increase financial burden on USCIS. Additionally, multiple commenters reasoned that, since USCIS funds itself based on fees, and because fees will not be charged for this new process, USCIS will not have enough funding to cover training and implementation of the new rule. Several commenters expressed concern that the proposed rule’s economic analysis did not state USCIS’s ability to pay for the additional costs or address other impacts to USCIS, such as appeals or accessibility issues due to the limited number of asylum offices and the need for expanded teleconferencing technology for remote hearings. Response: As outlined in the NPRM and affirmed in this IFR, this rule does have associated costs, but it also has benefits (see Table 1). As previously stated, if the medium- and high-volume bands of 150,000 and 300,000 asylum applicants 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. USCIS conducts notice-andcomment rulemaking to raise fees and increase revenue for such staffing actions. USCIS is exploring all options to provide funding for this rule. The Departments do not expect this rule to result in an increase in appeals or the number of individuals requiring access to an asylum office, but they do recognize that the timing of appeals and asylum interviews may change because PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 of this rule. As part of the estimated USCIS FY 2022 and FY 2023 funding requirements by volume of credible fear referrals (see Tables 7 and 8), USCIS included estimated costs associated with needs such as interpreter and transcription services, facilities, IT case management, and other contracts, supplies, and equipment. The Departments agree with the commenters that there will be expanded technology needs to implement this rule. Comments: A commenter stated that moving the funding type from an appropriations-funded model to a feebased enterprise model would result in USCIS’s dependency on high fees to generate revenue. Response: USCIS agrees generally that, if funding is sourced to fees, higher fees over time are necessary to generate revenue in line with costs, but disagrees that fee-based funding would generate a harmful dependency. USCIS relies on fees to fund almost all the work the agency performs. USCIS is exploring all options to provide funding for this rule. However, if the rule is to be funded through a future fee rule, it would increase fees by an estimated weighted average between 13 percent and 26 percent, depending on volumes of applicants. Comments: A commenter stated that the rule does not make an appropriate comparison for the proposed new procedures. Specifically, the NPRM stated that USCIS would have to hire approximately 800 new employees and spend approximately $180 million to handle approximately 75,000 cases per year if the rule was implemented. The commenter said the rule improperly compares whether the proposed rule, backed with $180 million in new funding, would provide more fair and expeditious decisions than the existing system that receives no additional funding. The commenter said the appropriate comparison is whether the proposed rule, backed with $180 million in new funding, would provide more fair and expeditious decisions when compared with the existing system if the existing system were backed with $180 million in new funding. Response: The Departments have determined that important procedural changes are needed to improve the system of asylum adjudication for cases originating in credible fear screening, and that simply adding more money to the existing procedures would not yield the same benefits in fairness and reduced delays. Implementing these important procedural changes will involve costs for, among other things, personnel and training. It is not possible E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 to place a monetary value on fairness and expeditiousness in the process of adjudicating the protection claims of noncitizens arriving at the border. However, to the extent that the $180 million amount referenced above would facilitate the implementation of the rule, the Departments believe that it will enable greater benefits in terms of fair and expeditious decisions than the same amount applied to the existing system. Impacts on the Executive Office for Immigration Review Approximately four submissions provided feedback about the impacts on EOIR. Comments: A commenter worried that the proposed rule will do little address case backlogs and will require extensive resources from EOIR. Another commenter asserted that the proposed rule will further burden the immigration courts and create delays. A commenter argued that, although the proposed rule may limit the growth of the IJ docket, it does not offer any relief to IJs, and it merely moves some cases to USCIS, which already has a backlog of cases. A commenter was concerned that there is no reason to believe that conducting interviews in detention centers would be quicker than the EOIR process because doing so does not eliminate duplicative hearings and eliminates access to the courts. Response: The rule will not directly change how cases that are already pending before EOIR are adjudicated. However, as stated in the NPRM, this rule is expected to slow the growth of EOIR’s backlog and allow EOIR to work through its current backlog more quickly. First, the rule will allow DHS to process more noncitizens encountered at or near the border through expedited removal—rather than placing them into section 240 removal proceedings—thereby quickly and efficiently securing removal orders for those who do not make a fear claim or who receive a negative credible fear determination. Second, as explained above at Section IV.F.1.a of this preamble, this rule is estimated to reduce EOIR’s overall credible fear workload by at least 15 percent. Third, the calculation described above sets a lower bound on EOIR’s expected workload reduction, as it does not account for efficiencies that may be realized in cases that are referred to EOIR for streamlined section 240 proceedings. In these three ways, the rule will enable IJs to focus efforts on other high-priority work, including backlog reduction. The Departments agree that the interviews themselves may not take less time; however, the VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 overall process for asylum applicants to apply, interview, and receive a decision will take less time. Adjudicative efficiency gains and revised parole guidelines for case-by-case consideration could lead to individuals spending less time overall in detention, which would benefit the Government, considering its limited resources and inability to detain all those apprehended, and the affected individuals, who would be able to continue to prepare for and pursue relief or protection outside the confines of a detention setting. Thus, as stated in the NPRM and in this IFR, there is the potential for backlogs to be mitigated, though we cannot predict the timing and scope of such potential changes with accuracy. Comments: A commenter stated that, in the four months since the NPRM was drafted, the EOIR backlog grew by more than 100,000 cases, which is already larger than the number of cases (75,000) the proposed rule is intended to address. Further, the commenter argued that this expansion of duties would address only 5 percent of the overall immigration backlog and would require 27 percent of EOIR’s overall budget. Response: The Departments recognize the need to address the growing EOIR backlog, which is one of the catalysts for this rule. The NPRM developed three population bounds for credible fear screenings, ranging from 75,000 as a lower bound to 300,000 as an upper bound to account for possible variations in future years. 86 FR 46923. As stated, EOIR would not see the cases in which USCIS grants asylum, which the Departments estimate will result in at least a 15 percent reduction in the number of cases that would normally arrive at EOIR after a positive credible fear determination. Such efficiency improvements, in conjunction with streamlined review, could benefit applicants and the Government, though we cannot make exact predictions germane to these changes. Other Comments on Impacts on the Federal Government Approximately four submissions provided other comments on impacts on the Federal Government. Comments: A commenter asserted that the emphasis on expedited removal and accompanying detention is likely to maintain or increase extremely high levels of unnecessary spending on detention. Response: As stated in the NPRM and affirmed in this IFR, DHS will consider paroling detained individuals in the expedited removal process, on a caseby-case basis, consistent with the INA PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 18191 and relevant regulations and policies. Having considered all comments received on the issues of detention and parole, the Departments have determined that the current narrow standard should be replaced not with the standard proposed in the NPRM but with the standard of 8 CFR 212.5(b). That provision describes five categories of noncitizens who may meet the parole standard of INA 212(d)(5), 8 U.S.C. 1182(d)(5), based on a case-by-case determination, provided they present neither a security risk nor a risk of absconding: (1) Noncitizens who have serious medical conditions for which continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) noncitizens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; and (5) noncitizens whose continued detention is not in the public interest. Expanding the potential for parole out of custody for this population is expected to improve the Departments’ ability to utilize expedited removal for a greater number and more diverse category of noncitizens, mitigate associated detention costs, and promote the dignity of asylum applicants. iv. Other Comments on Costs or Transfers Approximately three submissions provided other comments on costs or transfers. Comments: A commenter stated that the proposed rule will be costly to noncitizens; ICE attorneys; judges and staff of the immigration courts and the BIA; the Office of Immigration Litigation in the Department of Justice, which will have to defend the denials of asylum and protection appeals in Federal courts; and judges and staff of the U.S. Courts of Appeals. Further, the commenter asserted that the proposed rule’s economic analysis did not reflect costs to the Federal judiciary. Response: The Departments do not expect this rule to be the cause of an increase in the number of appeals to the BIA or petitions for review before a U.S. Court of Appeals. Noncitizens who receive a negative credible fear determination may seek a de novo review of that determination by an IJ but otherwise have no opportunity for further appeal. See 8 U.S.C. 1225(b)(1)(B)(iii). The IFR does not change that. An applicant whose asylum claim is denied and who is ordered removed may appeal the decision to the BIA and further petition for review by a U.S. Court of Appeals. This rule does not change the current appeals process, E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18192 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations nor is it expected to result in a greater number of BIA appeals or U.S. Court of Appeals petitions for review than would occur otherwise. Comments: A commenter asserted that the rule would increase costs and time frames for various reasons: interview length will increase; asylum officers will be required to write a justification for the decision in cases where they do not grant asylum; transcripts of hearings will take longer to make; asylum officers will be required to read lengthy transcripts; applicants may unfairly be denied a chance to appeal if they have to understand and file a notice of appeal; IJs will have more paperwork; and counsel will routinely appeal cases in which the IJ denied a motion to allow for additional testimony and evidence. Response: The Departments estimated the costs of transcription services, which are included in Table 8 as their own line item. USCIS does not currently estimate asylum interview times because each case is unique, and there are a variety of factors outside of this rulemaking that may impact the length of an interview. Asylum officers are already required to review all documentation submitted by and pertinent to an asylum applicant prior to an interview. Likewise, regardless of the decision being made, an asylum officer provides a justification for the decision, which is then reviewed. This rule does not change the requirements for asylum applicants or the evaluation criteria that are used during adjudication. Comment: Several commenters said the proposed rule would create a ‘‘massive new USCIS infrastructure,’’ the cost of which would be borne by other applicants for USCIS benefits. Response: USCIS has estimated the staffing resources it will need to implement this rule at somewhere between 794 and 4,647 total new positions. USCIS acknowledged in the NPRM that if this rule were to be funded through a future fee rule, it would increase fees by an estimated weighted average between 13 percent and 26 percent, depending on volumes of applicants. USCIS is exploring all options to provide funding for this rule and will consider the overall costs borne by applicants for USCIS benefits in doing so. Comments: A commenter requested that the proposed rule be funded by taxpayers. Response: USCIS is exploring all options to provide funding for this rule. USCIS acknowledged in the NPRM that, if this rule were to be funded through a future fee rule, it would increase fees VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 by an estimated weighted average between 13 percent and 26 percent, depending on volumes of applicants. That estimate, however, does not preclude USCIS from considering other sources of funding, such as funding from taxpayers. d. Other Comments on Impacts and Benefits of the Proposed Rulemaking Comments: Several commenters said the Departments did not analyze or discuss the likelihood that the proposed rule’s revisions to the asylum process would encourage more noncitizens to seek asylum. For example, the Departments considered the administrative efficiencies expected to be gained from the rule and the expected benefits conferred upon noncitizens availing themselves of the asylum process through quicker adjudication timelines. But the Departments allegedly failed to analyze or discuss whether these changes to the asylum process would in fact encourage more noncitizens living abroad to make their way to the United States. The commenters asserted that an increase in noncitizens seeking to enter the United States will further drive up enforcement actions at the Southwest border and increase the statistical likelihood of non-meritorious asylum claims and illegal entry overall. The commenter argued that MPP, for example, achieved concrete results in managing asylum seekers attempting to cross the Southwest border, but claimed it was unclear whether the proposed rule would achieve even remotely the same results because the Departments failed to analyze this issue. At a minimum, the commenter said, the Departments should have addressed with specificity whether the proposed rule would be expected to decrease or increase the number of noncitizens attempting to travel to the United States to seek asylum and explain the basis for their conclusions. Response: The Departments do not expect this rule to encourage or cause an increase in the number of individuals seeking asylum in the United States. As explained above, this rule is not expected to create any significant new incentives that would drive increased irregular migration. To the contrary, by reducing the amount of time a noncitizen can expect to remain in the United States with a pending asylum claim that originated in credible fear screening, the rule dramatically reduces a critical incentive for noncitizens not in need of protection to exploit the system. Although eligible individuals may be granted asylum sooner, ineligible individuals may be identified PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 and ordered removed more quickly. This rule does not change the substantive standard for asylum eligibility, and commenters have not identified any evident causal mechanism by which the rule as a whole, in context, would systematically and substantially incentivize more individuals to seek to enter the United States and pursue asylum. 2. Paperwork Reduction Act Comments: A commenter requested eliminating Form I–589 in order to prevent asylum applicants from facing rejection, delays, or missing the deadline because the form was not correctly completed. The commenter argued that Form I–589 is burdensome for applicants to complete because it is technical and is written in and must be completed in English (although most asylum seekers have limited English proficiency). The commenter also stated that many asylum seekers do not have legal representation while filling out the form, often causing applicants to make mistakes and leave required questions blank, which could result in rejection of the application. Response: The rule addresses the commenter’s concern in that applicants with a positive credible fear determination who are placed into the Asylum Merits process will not have to file a Form I–589. Rather, such an applicant’s credible fear record will serve as the asylum application. This process will also ensure applicants can apply for an EAD as soon as possible once the requisite time period has been met based on the date of service of a positive credible fear determination that serves as the date of filing of an asylum application. This streamlined process will not only promote efficiency but will also serve the interests of fairness and human dignity while simultaneously reducing the burden on asylum support networks and the public by ensuring asylum seekers have access to employment authorization as quickly as possible. Additionally, the rule will promote equity and due process by ensuring that individuals who are allowed to remain in the United States for the express purpose of having their asylum claims adjudicated after receiving a positive credible fear determination do not inadvertently miss the one-year filing deadline for asylum after being placed into section 240 removal proceedings and failing to defensively file their Form I–589 within the first 12 months. The requirement for affirmative asylum applicants and defensive asylum applicants in traditional section 240 removal E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations proceedings to submit a Form I–589 is outside the scope of this rulemaking. lotter on DSK11XQN23PROD with RULES2 3. Other Comments on Statutory and Regulatory Requirements Approximately four submissions provided other feedback on statutory and regulatory requirements. National Environmental Policy Act (‘‘NEPA’’) Comments: Two commenters expressed concerns that the Departments have not adequately complied with NEPA, 42 U.S.C. 4321 et seq., by failing to specifically consider certain potential environmental impacts of this rule. The comments focused primarily on population growth impacts. Commenters also raised broader concerns about the adequacy of DHS’s NEPA compliance procedures as set forth in the relevant DHS implementing directive and instruction manual. Response: Even assuming that such impacts are amenable to meaningful analysis in some contexts, any such analysis with respect to this rule would be fundamentally speculative in nature. This rule will not alter immigration eligibility criteria or result in an increase in the number of individuals who may be admitted or paroled into the United States. Rather, this rule changes specific procedures for adjudicating certain asylum claims pursuant to existing standards and shifts certain adjudicative responsibilities from DOJ to DHS. The commenters offered no basis to conclude that such changes would result in environmental impacts susceptible to meaningful analysis. This rule will not result in any major Federal action that will significantly affect the human environment and is not part of a larger action. As discussed in the NPRM and in the NEPA section below, the rule falls squarely within Categorical Exclusions A3(a) and A3(d) in DHS Instruction Manual 023–01–001–01. See DHS, Instruction Manual 023–01–001–01, Revision 01, Implementation of the National Environmental Policy Act (NEPA) A–1, A–2 (Nov. 6, 2014), https:// www.dhs.gov/sites/default/files/ publications/DHS_ Instruction%20Manual%20023-01-00101%20Rev%2001_ 508%20Admin%20Rev.pdf (Instruction Manual 023–01). Commenters’ broader concerns about the adequacy of DHS’s NEPA compliance procedures are outside the scope of this rulemaking. Federalism Comments: Commenters asserted that the proposed rule failed to properly VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 consider and analyze federalism concerns. The commenters stated that, contrary to the Departments’ conclusion that the proposed rule insubstantially impacts States and presents no substantial federalism concerns, the proposed rule would have wide-ranging effects on States’ finances and resources. Finally, the commenters argued that the Departments should reassess federalism implications and republish the proposed rule. In contrast, another commenter asserted that the proposed rule does not have sufficient federalism implications to require a federalism summary impact statement. The commenter referenced section 6 of Executive Order 13132 and stated that the proposed rule would not have direct effect on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the different levels of government. Response: The Departments did consider federalism concerns and determined that the rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. 86 FR 46939. The Departments also determined the rule is within the purview and authority of the Departments and does not directly affect States. Id. As detailed above, the rule’s primary consequences are to authorize a new procedure by which asylum claims originating in credible fear screening may be adjudicated and to authorize a revision to the regulations governing parole of noncitizens in expedited removal. The latter change will enable DHS to place more noncitizens encountered at or near the border into expedited removal, allowing such noncitizens who do not make a fear claim or who are determined not to have a credible fear of persecution or torture to be ordered removed more swiftly. The Departments further note that immigration generally is an area of Federal regulation in which the Federal Government, rather than the States, has the preeminent role. See, e.g., Toll v. Moreno, 458 U.S. 1, 10–12 (1982) (‘‘Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders.’’); Truax v. Raich, 239 U.S. 33, 42 (1915) (‘‘The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal government.’’); accord Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984) (explaining that third parties lack a PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 18193 cognizable interest ‘‘in procuring enforcement of the immigration laws’’ against third parties in particular ways). Unfunded Mandate Reform Act (‘‘UMRA’’) Comments: Several commenters asserted that the proposed rule failed to analyze whether an unfunded mandate was being imposed on the States. The commenters wrote that the Departments addressed the requirements of the UMRA by denying any impact. However, the commenters raised concerns and provided examples of how States may incur costs associated with undocumented noncitizens or noncitizens who have been granted asylum. Further, the commenters said that, contrary to the requirements of the UMRA, the Departments failed to allow elected leaders in State, local, and Tribal government to provide input on the proposed rule. Response: The Departments disagree with these comments. The UMRA is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments. As stated in the NPRM, although this rule is expected to exceed the $100 million expenditure in any one year when adjusted for inflation ($169.8 million in 2020 dollars based on the Consumer Price Index for All Urban Consumers (‘‘CPI–U’’)),102 the Departments do not believe this rule would impose any unfunded Federal mandates on State, local, or Tribal governments, in the aggregate, or on the private sector. The term ‘‘Federal mandate’’ means a Federal intergovernmental mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1), 658(6). The term ‘‘Federal intergovernmental mandate’’ means, in relevant part, a provision that would impose an enforceable duty upon State, local, or Tribal governments (except as a condition of Federal assistance or a duty arising from participation in a voluntary Federal program). See 2 102 See BLS, Historical Consumer Price Index for All Urban Consumers (CPI–U): U.S. City Average, All Items, By Month, https://www.bls.gov/cpi/ tables/supplemental-files/historical-cpi-u202103.pdf (last visited Feb. 28, 2022). 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. E:\FR\FM\29MRR2.SGM 29MRR2 lotter on DSK11XQN23PROD with RULES2 18194 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations U.S.C. 658(5). The term ‘‘Federal private sector mandate’’ means, in relevant part, a provision that would impose an enforceable duty upon the private sector (except as a condition of Federal assistance or a duty arising from participation in a voluntary Federal program). See 2 U.S.C. 658(7). This rule does not contain such a mandate because it does not impose any enforceable duty upon any other level of government or private-sector entity. Any downstream effects on such entities would arise solely due to their voluntary choices and would not be a consequence of an enforceable duty. Similarly, any costs or transfer effects on State and local governments would not result from a Federal mandate as that term is defined under the UMRA.103 The requirements of the UMRA, therefore, do not apply to this rule; accordingly, the Departments have not prepared an UMRA statement. Comments: Several States asserted that States and local communities ‘‘disproportionately bear the social and economic costs of illegal immigration’’ because immigrants may arrive with ‘‘little to no warning,’’ a criminal record, and little to no resources, with States ultimately bearing the cost of providing assistance for such individuals. Additionally, two commenters stated that noncitizens granted the legal status of asylee are entitled to certain public benefits, such as Social Security Income, Medicaid, welfare, food stamps, employment authorization, a driver’s license, education, and healthcare, which Americans rely on. Response: To the extent that States and local communities bear social or economic costs associated with what the commenters term ‘‘illegal immigration,’’ or with noncitizens entering the United States without documentation and seeking asylum, those are not costs associated with this rule. As explained above, this rule is not expected to create any significant new incentives that would drive increased irregular migration. To the contrary, by reducing the amount of time a noncitizen can expect to remain in the United States with a pending asylum claim, the rule dramatically reduces a critical incentive for noncitizens not in need of protection to exploit the system. Moreover, with regard to the asserted ‘‘social cost,’’ commenters cited figures associated with noncitizens within the United States who are taken into ICE custody and thus improperly conflated the characteristics of such noncitizens with the characteristics of noncitizens encountered at or near the border 103 See 2 U.S.C. 1502(1), 658(6). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 seeking asylum.104 The commenters’ assumptions and generalizations about the characteristics of noncitizens seeking asylum in the United States, including their assumptions about the extent to which this population relies on public services or support rather than private support networks, are not supported by evidence. With regard to the asserted economic or fiscal cost, commenters referenced public benefits and public services, as well as State expenditures on border security and policing. However, as explained in more detail above, estimating the net fiscal impact of immigration is a complex calculation that requires consideration of not only Government expenditures on public benefits and services but also the various tax contributions the noncitizens in question make to public finances. Commenters did not provide information or data that would allow for a reliable estimation of the net fiscal impact associated with relevant populations or associated with any marginal change in relevant populations.105 The Departments have acknowledged the role of support networks in supporting noncitizens affected by this rule. Notably, this rule’s reduction in adjudication delays may allow some noncitizens to become eligible for employment authorization—and enter the labor market—sooner under this rule than they currently would, which could 104 For example, commenters cited ICE’s FY 2020 Enforcement and Removal Operations Report for the proposition that 90 percent of the noncitizens administratively arrested by ICE in FY 2020 had either criminal convictions or criminal charges pending. But, as that report makes clear, in FY 2020, due to the COVID–19 pandemic, ICE ‘‘narrowly focus[ed] enforcement efforts on public safety risks and individuals subject to mandatory detention based on criminal grounds.’’ See ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and Removal Operations Report 4 (2020), https://www.ice.gov/doclib/news/library/ reports/annual-report/eroReportFY2020.pdf. 105 Much of the information commenters did cite, moreover, was not specific to recently arrived noncitizens pursuing asylum claims but instead attempted to estimate—for example—total education costs associated with students with limited English proficiency, total education costs associated with all children living in a household with an undocumented person, or total costs certain States have incurred for law enforcement agencies conducting public safety and security activities near the Southwest border. See Marc Ferris and Spencer Raley, The Elephant in the Classroom: Mass Immigration’s Impact on Education, Federation for American Immigration Reform 6 (Sept. 2016), https://www.fairus.org/sites/default/files/2017-08/ FAIR-Education-Report-2016.pdf (last visited Feb. 28, 2022); Matthew O’Brien, Spencer Raley, and Jack Martin, The Fiscal Burden of Immigration on United States Taxpayers, Federation for American Immigration Reform 1 (2017), https:// www.fairus.org/sites/default/files/2017-09/FiscalBurden-of-Illegal-Immigration-2017.pdf (last visited Feb. 28, 2022). PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 lead to less reliance on those support networks. Individuals granted asylum may work immediately. Executive Order 13990 Comments: A commenter stated that the proposed rule does not mention Executive Order 13990, which requires agencies to use an interim estimate of the social costs of greenhouse gases when monetizing the value of changes regulations. The commenter said it is clear that the Departments did not refer to the Executive order during rulemaking, and that it is arbitrary and capricious for agencies to follow the Executive order only when the Biden Administration dislikes a policy. Response: Executive Order 13990 seeks to protect public health and the environment and restore science to tackle the climate crisis. The Departments agree with the commenter that they did not mention or refer to E.O. 13990 for this rulemaking. This rule establishes a new procedure by which individuals who receive a positive credible fear determination may have their claims for asylum adjudicated by USCIS in the first instance, rather than EOIR bearing the full responsibility for adjudicating such claims. The changes made through this rule are within the purview and authority of the Departments and do not have any direct or substantial link to greenhouse gas emissions. Moreover, the rule does not otherwise relate to the subject matter of E.O. 13990.106 G. Comments Outside of the Scope of This Rulemaking The Departments received many comments outside of the scope of this rulemaking. Because these comments are outside of the relevant scope, the Departments are not providing responses to these comments or addressing the issues raised in these comments. Comments from the public outside of the scope of this rulemaking concerned the following issues: USCIS maintaining its ‘‘Last In, First Out’’ affirmative asylum scheduling process to reduce incentives for applicants to file only for the purpose of obtaining an EAD; termination of the Deferred Action for Childhood Arrivals (‘‘DACA’’) program; a recommendation that individuals seeking protection due to climate change should receive positive credible fear determinations and be granted asylum; policies relating to Afghan evacuees; the title 42 order 106 In addition, a district court has enjoined certain agencies from implementing Section 5 of E.O. 13990. See Louisiana v. Biden, No. 2:21–cv– 1074, 2022 WL 438313 (W.D. La. Feb. 11, 2022), appeal filed, No. 22–30087 (5th Cir. Feb. 19, 2022). E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations issued by the Centers for Disease Control and Prevention; policies relating to immigration vetting and background checks; and other immigration and border management policies. lotter on DSK11XQN23PROD with RULES2 V. Statutory and Regulatory Requirements A. Administrative Procedure Act The APA generally requires agencies to publish notice of a proposed rulemaking in the Federal Register and allow for a period of public comment. 5 U.S.C. 553(b). The Departments published an NPRM on August 20, 2021, and allowed for a 60-day comment period. As detailed previously, in response to comments, the Departments have altered the rule in multiple ways. The Departments are in compliance with the APA’s notice-andcomment requirements with respect to these changes because each change is a logical outgrowth of the proposals set forth in the NPRM, or a rule of agency procedure to which the notice-andcomment requirements do not apply, or both. To satisfy the APA’s notice-andcomment requirements, generally, the final rule an agency adopts must either meet an exception to the notice-andcomment requirements or be a logical outgrowth of the NPRM. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). The logical outgrowth test asks whether the purposes of notice and comment have been adequately served, such that there was ‘‘fair notice.’’ See id. ‘‘In most cases, if the agency . . . alters its course in response to the comments it receives, little purpose would be served by a second round of comment.’’ Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994). Accordingly, the ‘‘logical outgrowth’’ test normally is applied to consider ‘‘whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule.’’ Id. The changes made in this IFR were adopted in response to comments received and build logically on the NPRM. Thus, in these circumstances, ‘‘interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice-and-comment period.’’ CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079–80 (D.C. Cir. 2009) (quotation marks omitted). Moreover, the APA’s notice-andcomment requirements do not apply to ‘‘rules of agency . . . procedure.’’ 5 U.S.C. 553(b)(A). A ‘‘ ‘critical feature’ of VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the procedural exception ‘is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.’ ’’ JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980)); cf. Texas v. United States, 809 F.3d 134, 176 (5th Cir. 2015) (holding that a rule is not procedural when it ‘‘modifies substantive rights and interests’’ (quoting U.S. Dep’t of Lab. v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984)). ‘‘In determining whether a rule is substantive, [a court] must look at [the rule’s] effect on those interests ultimately at stake in the agency proceeding.’’ Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984). ‘‘Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.’’ Nat’l Sec. Couns. v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013); see Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987). Moreover, ‘‘an otherwise-procedural rule does not become a substantive one, for noticeand-comment purposes, simply because it imposes a burden on regulated parties.’’ James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). Finally, although a procedural rule generally may not ‘‘encode[ ] a substantive value judgment or put[ ] a stamp of approval or disapproval on a given type of behavior,’’ Bowen, 834 F.2d at 1047, ‘‘the fact that the agency’s decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one,’’ Glickman, 229 F.3d at 282. Notably, many of the revisions to the proposed rule do not alter individuals’ rights or interests. See JEM Broad., 22 F.3d at 326. Instead, the revisions relate to the procedure by which such claims shall be presented before the agencies, see id., without encoding a substantive value judgment, see Bowen, 834 F.2d at 1047, other than the need for procedural efficiency, see Glickman, 229 F.3d at 282; see also Lamoille Valley R. Co. v. I.C.C., 711 F.2d 295, 328 (D.C. Cir. 1983) (holding that an order changing the schedule for an adjudication, including when parties were to submit briefing, was a procedural rule); Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (even ‘‘a rule with a ‘substantial impact’ upon the persons subject to it is not necessarily a substantive rule’’ (citing Pub. Citizen PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 18195 v. Dep’t of State, 276 F.3d 634, 640–41 (D.C. Cir. 2002)); Ranger v. FCC, 294 F.2d 240, 244 (D.C. Cir. 1961) (while holding that a rule was procedural, noting that ‘‘no substantive rights were actually involved by the regulation itself’’ even if ‘‘failure to observe it might cause the loss of substantive rights’’). Although additional notice and comment are not required, the Departments acknowledge that they would benefit from the public’s input on the provisions in this IFR as well as the IFR’s implementation. However, the Departments also believe that the immigration system would benefit from rapid implementation of the rule, which is lawful given that the rule is a logical outgrowth of the NPRM and because the changes relate to procedural issues. The benefits of rapid implementation include the ability to begin allocating resources to implement the new process, including hiring asylum officers, which can take many months. Further, the benefit of additional public comment alongside practical experience with gradual implementation will aid the Departments in promulgating a future final rule. For these reasons, the Departments have decided to follow the NPRM with this IFR. B. 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 and, to the extent permitted by law, to proceed only if the benefits justify the costs. They also direct agencies to select regulatory approaches that maximize net benefits while giving consideration, to the extent appropriate and consistent with law, to values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. In particular, E.O. 13563 emphasizes the importance of not only quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility, but also considering equity, fairness, distributive impacts, and human dignity. All of these considerations are relevant here. OIRA within OMB has designated this IFR an economically significant regulatory action under sec. 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation. 1. Summary of the Rule and Its Potential Impacts As detailed previously, in response to comments, the Departments have E:\FR\FM\29MRR2.SGM 29MRR2 18196 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 altered the rule in multiple ways from the NPRM. None of the revisions outlined in Section II.C of this preamble has led to revisions in the overall cost benefit analysis, which remains unchanged from the NPRM. However, relative to the NPRM, the changes in this IFR, such as the use of streamlined section 240 removal proceedings in place of the NPRM’s IJ review procedure, may result in smaller overall operational efficiencies, as discussed below. This rule changes and streamlines 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 rule changes the respective roles of an IJ and an asylum officer during proceedings for further 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 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 adjudicating the merits of 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. Noncitizens whose claims are not granted by an asylum officer will be referred to an IJ for a streamlined section 240 removal proceeding. The population of individuals likely to be affected by this 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 VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 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 by an asylum officer. In addition, because of data constraints and conceptual and empirical challenges, we can provide only a partial monetization of the impacts on individuals. For example, asylum seekers who establish credible fear may benefit from having their asylum claims adjudicated potentially sooner than they otherwise would. Those who are granted asylum sooner receive humanitarian protection from the persecution they faced in their country of origin on account of their race, religion, nationality, membership in a particular social group, or political opinion, and they have a possible path to citizenship in the United States. These outcomes obviously constitute 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 cost savings associated with not having to incur filing expenses, as well as earlier labor force entry. The Departments have 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 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. The Departments have 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 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 impacted individuals could earn. The per-person per-workday estimates are not extended to broader monetized impacts due to data constraints. An important caveat for the possible benefits to asylum applicants who establish a credible fear introduced above and discussed more thoroughly in this analysis is that it is expected to take time to implement this rule. Foremost, the Departments expect the resourcing of this rule to be implemented in a phased approach. Further, although upfront expenditures to support the changes from this rule based on planning models are high, the logistical and operational requirements of this 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 rule, the Departments 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 FY 2026, is not possible at this time because of budget constraints and timing of hiring, and because the Departments do not have fully developed resource projections applicable to this rule stretching past FY 2023. The average annualized cost of this 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 10year 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 IFR are presented in Table 1 and are discussed in more detail more in the following analysis. Where quantitative estimates are provided, they apply to the midpoint figure (applicable to the wage range or the population range). E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 18197 TABLE 1—SUMMARY OF THE EXPECTED IMPACTS OF THE INTERIM FINAL RULE Entities impacted Individuals who receive a positive credible fear determination. Individuals who receive a negative credible fear determination. DHS–USCIS .............................. EOIR .......................................... Support networks for asylum applicants who receive a positive credible fear determination. lotter on DSK11XQN23PROD with RULES2 Other .......................................... 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 percent of individuals screened have received a positive 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 percent of individuals screened have received a negative credible fear determination. N/A ............................................ • Potential early labor earnings for asylum applicants who obtain an 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 two 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 employment 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 employment authorization under the current regulations may not obtain employment authorization if their asylum claims are promptly denied. • The impacts involving compensation to individuals may be overstated because of potential value of non-paid work such as childcare or housework. • Individuals might 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 decision not to grant their asylum claims. • Some individuals may benefit in terms of human dignity if paroled from detention while awaiting their credible fear interviews and determinations. • 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 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- • After implementation is fully phased in, EOIR no longer adjudicates asylum claims raised in port staff and other personnel. expedited removal in the first instance. EOIR would conduct streamlined section 240 removal proceedings for individuals not granted asylum. • Allows EOIR to focus efforts on other high-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 on 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 charitable organizations, State and local public institutions, educational providers, and NGOs. Unknown ................................... • There could be familiarization costs associated with this IFR; for example, if attorneys representing each asylum client reviewed the rule, based on average reading speed, the cost would be about $76.3 million, which would potentially be incurred during the first year the rule is effective. • There may be some labor market impacts as some asylum seekers who currently enter the labor market with a pending asylum application would no longer be entering the labor market under this IFR if they receive negative decisions on their asylum claims sooner. Applicants with a positive credible fear determination may enter the labor market sooner under this IFR than they would currently. • Tax impacts: Employees and employers would pay their respective portion of Medicare and Social Security taxes as a result of 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 VerDate Sep<11>2014 Expected 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 $370.28 per person. 17:37 Mar 28, 2022 Jkt 256001 OMB Circular A–4, Table 2 presents the prepared accounting statement showing PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 the costs and benefits associated with this regulation. E:\FR\FM\29MRR2.SGM 29MRR2 18198 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations TABLE 2—OMB A–4 ACCOUNTING STATEMENT [$ millions, FY 2020] Time period: FY 2022 through FY 2031 Category Primary estimate 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 Unquantified benefits ............................................................................. 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 possibility of parole on a case-by-case basis could lead to individuals spending less time in detention, which would benefit the Government and the affected individuals. Another, potentially very significant, 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 its overall credible fear workload. This could help mitigate the backlog of cases pending in immigration courts. Additionally, this benefit would extend to individuals granted or not granted asylum faster than if they were to go through the current process with EOIR. Depending on the individual case circumstances, this IFR 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 under the present process. The anticipated operational efficiencies from this IFR may provide for prompt grant of relief or protection to qualifying noncitizens and ensure that those who do not qualify for relief or protection may be removed sooner than under current rules. Relative to the NPRM, the changes in this IFR may result in smaller operational efficiencies to DHS because the ICE Office of the Principal Legal Advisor will need to play a more significant role because noncitizens not approved for asylum will now be placed into streamlined section 240 removal proceedings. Regulatory (‘‘RIA’’). Costs Annualized monetized costs for 10-year period between 2021 and 2030 (discount rate in parentheses). lotter on DSK11XQN23PROD with RULES2 Annualized quantified, but un-monetized, costs .................................... (3 percent) $453.8 $180.4 $1,002.4 (7 percent) $451.2 $179.5 $995.8 • Potential cost-savings applicable to Form I–589 of $338.86 per person. RIA. • Potential cost-savings applicable to Form I–765 of $377.32 per person. • Familiarization costs of about $76.3 million (in 2022). • The transfer of cases from EOIR to USCIS would allow resources at EOIR to be directed to other work, and there is a potential for cost savings to be realized for credible fear processing specifically if the average cost of worktime spent on cases by USCIS asylum officers would be lower than at EOIR currently. These would not be budgetary cost savings, and USCIS has not made a one-to-one time- and cost-specific comparison between worktime actually spent on a case at EOIR and USCIS. RIA. Qualitative (unquantified) costs ............................................................. VerDate Sep<11>2014 19:38 Mar 28, 2022 Jkt 256001 PO 00000 Frm 00122 RIA. N/A Fmt 4701 Sfmt 4700 E:\FR\FM\29MRR2.SGM 29MRR2 Impact Analysis Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 18199 TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued [$ millions, FY 2020] Time period: FY 2022 through FY 2031 Category Primary estimate Minimum estimate Maximum estimate Source citation Transfers Annualized transfers: ............................................................................. Potential transfers include labor earnings that would accrue to credible fear asylum applicants who enter the labor market earlier than they would currently. The impact accruing to labor earnings developed in this rule has the potential to include both distributional effects (which are transfers) and indirect benefits to employers. 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) and to the Government in the form of tax impacts. A portion of this compensation gain and tax payment might be transferred to asylum applicants from others who are currently in the U.S. labor force or eligible to work lawfully. From whom to whom? ........................................................................... Potential transfers include a distributional economic impact in the form of a transfer to asylum applicants who enter the labor force earlier than they would currently if they take on work performed by others already in the U.S. workforce. Miscellaneous analyses/category .......................................................... N/A Effects on State, local, or Tribal governments ...................................... N/A Effects on small businesses .................................................................. lotter on DSK11XQN23PROD with RULES2 This IFR 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 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 rule streamlines and simplifies the adjudication process for certain individuals who are 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 adjudicating applications for asylum, statutory withholding of removal, and CAT protection in a timelier fashion and with appropriate procedural protections against error. A principal feature 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. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 The IFR may 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 consistent with INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), when continued detention is not in the public interest. This rule applies only to recentlyarrived individuals who are subject to expedited removal—i.e., adults and families. The 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 rule also does not apply to (1) stowaways or (2) noncitizens who are physically present in or arriving in the CNMI. Those classes of noncitizens PO 00000 Frm 00123 RIA. Fmt 4701 Sfmt 4700 RFA. will continue to be referred to asylum/ withholding-only hearings before an IJ under 8 CFR 208.2(c). Finally, this rule does not require that a noncitizen amenable to expedited removal after the effective date of the rule be placed in the nonadversarial merits adjudication process described in this IFR. Rather, DHS generally, and USCIS in particular, retain discretion to issue an NTA to a covered noncitizen in expedited removal proceedings to instead place them in ordinary 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. E:\FR\FM\29MRR2.SGM 29MRR2 18200 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations TABLE 3—USCIS FORM I–589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL, AND CREDIBLE FEAR DATA [FY 2016 through FY 2020] 107 Form I–589 receipts FY 2016 2017 2018 2019 2020 Initial receipts Credible fear completions Pending receipts Positive screen Negative screen All completions Total credible fear cases 108 ......................................................................... ......................................................................... ......................................................................... ......................................................................... ......................................................................... 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 5-year 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). As can be seen from Table 3, the Form I–589 pending case number has grown steadily since 2016, and, as of the fourth quarter of FY 2021, was 412,796,109 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. 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, although this 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 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 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 through FY 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 17 290.6 197.1 570.1 496.1 816.2 811.7 1,230.9 1,067.3 1,252.7 1,311.2 955.3 1,174.0 Median 163.0 80.5 407.0 354.0 671.0 668.0 1,082.0 959.0 1,065.0 1,247.0 919.0 1,109.0 lotter on DSK11XQN23PROD with RULES2 Source: Data and analysis provided by USCIS, RAIO Directorate, SAS Predictive Modeling Environment 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 data through May 11, 2021. The total time for cases from apprehension to adjudication by EOIR can be found by adding the times in 107 In FY 2020, the credible fear filings are captured in 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 relatives or sponsors in the United States, including their relationships to the applicant and contact information. In previous years credible fear filings included 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 CBP. The referral documentation includes a form containing information about the applicant: Form I–867, Credible Fear Referral. 108 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. 109 USCIS, Immigration and Citizenship Data, https://www.uscis.gov/tools/reports-and-studies/ immigration-and-citizenship-data (filter by Asylum Category to search for file ‘‘All USCIS Application and Petition Form Types (Fiscal Year 2021, 4th Qtr, July 1–September 30, 2021) (Dec. 15, 2021)’’). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 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. 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. It is also seen that the FY 2021 average durations for detained cases are relatively close to FY 2016 through FY 2018 levels, with this series witnessing a spike in 2019. Because 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. For non-detained cases, the gap between median and mean duration is relatively 18201 consistent up to FY 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 rule may impact the volume and timing of employment authorization applications and approvals. Although 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 in 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 through FY 2020] EAD category (a)(5) Granted asylum under section 208 FY Initial receipts 2016 2017 2018 2019 2020 Approvals EAD category (c)(8) applicant for asylum/pending asylum EAD category (a)(10) granted withholding of removal/243 (H) Initial receipts Initial receipts Approvals Approvals ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. 29,887 32,673 38,743 47,761 31,931 27,139 29,648 39,598 41,288 36,334 169,970 261,782 262,965 216,038 233,864 152,269 234,053 246,525 177,520 183,820 2,008 1,936 1,733 2,402 3,318 1,621 1,076 1,556 2,101 2,554 5-year total ................................................................ 180,995 174,007 1,144,619 994,187 11,397 8,908 5-year Average .................................................. 36,199 34,801 228,924 198,837 2,279 1,782 Source: OPQ, USCIS, Form I–765 Application for Employment Authorization: All Receipts, Approvals, Denials Grouped by Eligibility Category and Filing Type (May 11, 2021), https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf. 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 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 (see 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 its processing systems. Second, not all individuals determined to have a credible fear follow up with their cases with EOIR, and some filed cases are administratively closed. Therefore, as a 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 lotter on DSK11XQN23PROD with RULES2 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) ......................................................................................... VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 413 447 648 669 712 1,078 (2.95) E:\FR\FM\29MRR2.SGM 214 252 512 455 502 857 (2.35) 29MRR2 16,794 26,531 33,634 55,404 33,517 6,646 18202 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations TABLE 6—EOIR TIME DURATION METRICS, DAYS, AND COMPLETIONS FOR CASES WITH A CREDIBLE FEAR ORIGIN— Continued Average processing time FY Median processing time Initial case completions 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 Source: EOIR, Planning, Analysis, and Statistics Division (‘‘PASD’’), data obtained April 19, 2021. The row for FY 2021 reflects data 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 FY 2018, followed by a leveling off until FY 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 subsections. The first (a) focuses on impacts on 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. lotter on DSK11XQN23PROD with RULES2 a. Impacts on the Credible Fear Asylum Population Under the new procedure established by this 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 because of 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 VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 submitting the form.110 Regarding 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 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.’’ 111 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 $27.07 112 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 BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS relies on a benefitsto-wage multiplier of 1.45 and, therefore, is able to estimate the full opportunity cost per applicant, 110 See USCIS, Form I–589, Application for Asylum and for Withholding of Removal: Instructions, OMB No. 1615–0067, at 14 (expires July 31, 2022), https://www.uscis.gov/sites/default/ files/document/forms/i-589instr.pdf. 111 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 (last visited Mar. 5, 2022). 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. 112 For the average wage for all occupations, the Departments rely on BLS statistics. See BLS, May 2020 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_ nat.htm#00-0000 (last visited Feb. 28, 2022). PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 including employee wages and salaries and the full cost of benefits such as paid leave, insurance, retirement, and other benefits.113 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.114 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 obtained 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 113 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 BLS, 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 Feb. 28, 2022). 114 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. E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations figure by the same five-year period average of 110,937 initial filings (Table 3) yields a multiplier of 2.67 (rounded).115 Under the supposition that each photo causes applicants to incur a cost of $10,116 there could be $26.70 in additional cost-savings at either wage bound.117 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 $364.86.118 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 claims under this rule as well. DHS does not know exactly how long, on average, individuals may spend preparing for their credible fear interviews under the rule, and how that amount of time and effort would compare to the time individuals currently spend preparing for the credible fear interviews. If the increased time were substantial—i.e., above and beyond that currently earmarked for the asylum application process—lower cost savings could result. Under the rule, asylum applicants who established a credible fear would be able to file for employment authorization via the Form I–765, Application for Employment Authorization (‘‘EAD’’), while their asylum applications are 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 rule. Currently, asylum applicants can file for an EAD under the asylum (c)(8) category while their asylum applications are pending. Such applications are subject to a waiting period that commences when their completed Form I–589s are filed. Asylum applicants who establish a credible fear would still be subject to lotter on DSK11XQN23PROD with RULES2 115 Calculation: Average Form I–589 biometrics collections 296,072/110,937 average initial Form 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). 116 The U.S. Department of State estimates an average cost of $10 per passport photo in its supporting statement for its Paperwork Reduction Act submission for the Application for a U.S. Passport, OMB #1405–0004 (DS–11) (Feb. 8, 2011), https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201102–1405–001 (last visited Feb. 28, 2022) (see question #13 of the Supporting Statement). 117 Calculation: $10 per photo cost × 2.67 photos per Form I–589 = $26.70. 118 Calculation: $205.32 + $26.70 = $232.02; $338.16 + $26.70 = $364.86; $471.00 + $26.70 = $497.70. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 the waiting period.119 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 the impacts related to that decline, and then why countervailing factors might mitigate such a decline. One result of this rule is that asylum applications for some individuals pursuant to this rule could be granted asylum earlier than they would be under current conditions. Because an asylum approval grants employment authorization incident to status, and because 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.120 As stated earlier, the Department of State estimates that each passport photo costs about $10 each. Submitting two passport photos results 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 119 On February 7, 2022, in AsylumWorks v. Mayorkas, No. 20-cv-3815 (BAH), 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the U.S. District Court for the District of Columbia vacated two DHS employment authorization-related rules entitled ‘‘Asylum Application, Interview, and Employment Authorization for Applicants,’’ 85 FR 38532 (June 26, 2020), and ‘‘Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications,’’ 85 FR 37502, (June 22, 2020), that addressed waiting periods. Separately, a partial preliminary injunction was issued on September 11, 2020, in Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), that exempts certain individuals from a 365-day waiting period and certain other eligibility criteria, but retains a 180-day waiting period. Although the duration of time required for the waiting period varies based on application of these rules and the related vacaturs and injunctions, a required waiting period remains in effect notwithstanding these rules, vacaturs, or injunctions. 120 See USCIS, Instructions for Application for Employment Authorization, OMB No. 1615–0040, at 31 (expires July 31, 2022), https://www.uscis.gov/ sites/default/files/document/forms/i-765instr.pdf. PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 18203 (effective minimum and national average) developed earlier. At the wage bounds relied upon, the opportunitycost 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 be $101.27 and $206.44 per applicant, respectively. However, some might choose to file for an EAD even if they hope that asylum will be granted earlier than the EAD approval because they 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 claims, and that, as a result, there would not be changes in costs or cost savings germane to biometrics. For the Form I–765(c)(8) category, USCIS started collecting biometrics, and the associated $85 biometrics service fee, in October 2020.121 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.122 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.123 Because an individual would spend an average of 1 hour and 10 minutes (1.17 hours) at an ASC to submit biometrics,124 adding 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 $144.05.125 The travel cost is $28, which is the per mileage reimbursement rate of 0.56 multiplied by 50-mile travel distance. Adding the time-related and travel costs generates a per-person 121 USCIS collects biometrics for Form I–765 (c)(8) submissions, but a preliminary injunction in Casa de Maryland, 486 F. Supp. at 935, currently exempts members of certain organizations from this biometrics collection. 122 See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 536, 572 (Jan. 3, 2013). 123 See GSA, POV Mileage Rates (Archived), https://www.gsa.gov/travel/plan-book/ transportation-airfare-pov-etc/privately-ownedvehicle-mileage-rates/pov-mileage-rates-archived (last visited Feb. 28, 2022). 124 See USCIS, Instructions for Application for Employment Authorization, OMB No. 1615–0040, at 31 (expires July 31, 2022), https://www.uscis.gov/ sites/default/files/document/forms/i-765instr.pdf. 125 Calculations: Total time burden of 3.67 hours × total rate of compensation for the effective wage $17.11 = $62.79; total time burden of 3.67 hours × total rate of compensation for the average wage $39.25 = $144.05. E:\FR\FM\29MRR2.SGM 29MRR2 18204 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 biometrics submission cost of $90.79, at the low-wage bound and $172.05 at the high-wage bound.126 Although 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 IFR. 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 costs 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 $370.28.127 These figures represent the maximum per-person cost savings for those who choose not to file for an EAD.128 Having developed the cost savings for applicants who do not file for an EAD, we now turn to factors that could counteract a 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 applications 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 and 274a.12(c)(8) 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 pending when lodged in immigration court. This change in 126 Calculations: Opportunity cost of time, effective wage $62.79 + travel cost of $28 = $90.79; Opportunity cost of time, average wage $144.05 + travel cost of $28 = $172.05. 127 Calculations: $192.07 + biometrics services fee of $85 = $277.07; $378.49 + biometrics services fee of $85 = $463.49. Although 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. 128 There is a scenario that the Departments have considered, 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 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 the applicant did already file for an EAD, then the filing costs associated with the EAD would be sunk costs, since the (c)(8) EAD does not actually provide any benefit over the (a)(5) EAD. Because this scenario is likely to be rare, DHS has not attempted to quantify its impact. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 timing could allow some EADs to be approved earlier for those who file for an EAD with a pending asylum application. In this sense, the EAD waiting period 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 broader standard adopted by this IFR 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 employment authorization, however, and the rule provides, in 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), that noncitizens paroled pending credible fear screening will not be eligible for employment authorization based on that grant of parole from custody. 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 noncitizens whose asylum applications are considered under the procedure established by this IFR. 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. Given the two changes discussed above related to the EAD filings—(1) the change in timing for when an EAD can be filed; and (2) the broadening of the standard under which certain noncitizens placed in expedited removal may be considered for parole before receiving a credible fear determination—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 considering 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 rule, it is the more expeditious asylum grant or EAD approval that results in employment authorization, individuals PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 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. 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 costs 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 employment 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 IFR that such individuals would not obtain employment authorizations in the future. The impact is attributable to the difference in days between when asylum would be granted under the 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 workday (8) to obtain the impact, as in the formula: D × 0.714 × W × 8. In terms of each actual workday, the daily distributional impacts 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, although 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 who 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 several assumptions that may not be accurate. E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES2 As a result, we cannot extend the perperson cost (in terms of earnings) to an aggregate monetized cost, even if we knew either the population impacted or the day-difference average because an estimate of the costs would require both data points. The impact on labor earnings developed above has the potential to include both distributional effects (which are transfers) and indirect benefits to employers.129 The distributional impacts would be felt by 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 who 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 who receive their employment authorizations earlier as a result of the IFR, gaining productivity and potential profits that the asylum applicants’ earlier starts 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. To the extent that overtime pay could be reduced, some portion of this pay could be transferred from the workers to the companies. We do not know what the next-best alternative may be for those companies. As a result, the Departments do not know the portion of overall impacts of this IFR that are transfers or benefits, but the Departments estimate the maximum monetized impact of this IFR in terms of a daily, per-person basis compensation. The extent to which the portion of impacts would constitute 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. 129 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/wp-content/uploads/legacy_ drupal_files/omb/circulars/A4/a-4.pdf (last visited Feb. 28, 2022) (providing further discussion of transfer payments and distributional effects). VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 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 mitigate the beneficial impacts for 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 under which some individuals could enter the market. The Departments do not have reason to believe the overall U.S. labor market would be affected, given the relatively small population that is expected to be impacted. Moreover, some asylum seekers who currently enter the labor market with a pending asylum application may no longer be entering the labor market under this IFR if they receive a negative decision sooner on their asylum claim. Specifically, there could be individuals who receive positive credible fear determinations, but whose asylum applications are ultimately denied within 180 days of filing. Under this rule and the resultant shortened adjudication time frame, these individuals who otherwise would have been eligible to receive (c)(8) EADs no longer will be eligible because their asylum claims will have been adjudicated (and thus their asylum applications will no longer be pending) prior to the expiration of the waiting period required for (c)(8) filings. The lost compensation to these individuals could constitute a transfer to others in the U.S. workforce. Because 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 entry of some asylum seekers in the labor market because individual tax situations vary widely, but the Departments considered the effect of Social Security and Medicare taxes, which have a combined tax rate of 7.65 percent (6.2 percent and 1.45 percent, respectively), with a portion paid by the employer and the same amount withheld from the employee’s wages.130 130 See Internal Revenue Service, Publication 15 (Circular E), Employer’s Tax Guide (Dec. 16, 2021), PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 18205 With both the employee and employer paying their respective portions 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.131 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 daydifference would be, and therefore the Departments cannot make an informed monetized estimate of the potential impact. It accordingly follows that the Departments cannot monetize the potential tax impacts of the IFR. However, the Departments can provide partial quantitative information by focusing on the workday earnings presented earlier. The workday earnings, at the wage bounds of $136.88 and $314.00, are multiplied by 0.153 to obtain $20.94 and $48.04, respectively, with a midpoint of $34.49. These values represent the daily employment tax impacts per individual. The tax impacts per person would amount to the total day-difference in earnings scaled by 0.714, to reflect a five-day workweek. Conversely, to the extent that this rule prevents a person from obtaining an EAD, there may be losses in tax revenue. Having developed partial (based on an individual basis) monetized impacts of this IFR, there are two important caveats applicable to the population of asylum applicants who have received a positive credible fear determination. First, as we detail extensively in the following subsection, there will be resource requirements and associated costs needed to make this IFR operational and effective. These changes will not occur instantaneously and may require months or even a year or more to fully implement. Although 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 delay in realizing the impacts. These individuals thus may face a delay in realizing benefits such as earlier https://www.irs.gov/pub/irs-pdf/p15.pdf (last visited Feb. 28, 2022); 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-americanswont-pay-any-federal-income-taxes-this-year-hereswhy-2018-04-16 (last visited Mar. 5, 2022). 131 Calculation: (6.2 percent Social Security + 1.45 percent Medicare) × 2 employee and employer losses = 15.3 percent total estimated tax loss to Government. E:\FR\FM\29MRR2.SGM 29MRR2 18206 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations asylum determinations, income gains, and possible filing cost savings. Second, despite the possibility that some baseline EAD filers may choose not to file in the future, there could be mitigating effects that would reduce the volume decline 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 claims by IJs may benefit some applicants by affording another opportunity for review and approval of their asylum claims. It is possible that the earnings impact described could overstate the quantified benefits directly attributable to receiving earlier employment authorization. For those who entered the labor market after receiving employment authorization and began to receive paid compensation from an employer, counting the entire amount received by the employer as a benefit may result in an overestimate. Even without working for wages, the time spent by an individual has value. For example, if someone performs childcare, housework, or other activities without paid compensation, that time still has value. Consequently, a more accurate estimate of the net benefits of receiving employment authorization under the proposed rule would attempt to account for the value of time of the individual before receiving employment authorization. For example, the individual and the economy would gain the benefit of the worker entering the workforce and receiving paid compensation but would lose the value of the worker’s time spent performing non-paid activities. Due to the wide variety of non-paid activities an individual could pursue without employment authorization, it is difficult to estimate the value of that time. As an example, if 50 percent of wages were a suitable proxy of the value for this nonpaid time, the day-impacts per person would be scaled by half accordingly. b. Impacts to USCIS lotter on DSK11XQN23PROD with RULES2 i. Total Quantified Estimated Costs of Regulatory Changes In this subsection, the Departments discuss impacts on 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. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 Costs of Staffing to USCIS USCIS will need additional staffing to implement the provisions presented in this rule. The staffing requirement will largely depend on the volume of credible fear referrals. In addition to asylum officers, USCIS will require additional supervisory staff and operational personnel 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 IFR. Approximately 92 percent of the field asylum officers are currently employed at the GS–12 pay level or lower.132 Under this model, USCIS will be assuming work normally performed by an IJ. EOIR data indicate that the weighted average salary was $155,089 in FY 2021 for IJs; $71,925 for Judicial Law Clerks (‘‘JLCs’’); $58,394 for Legal Assistants; $132,132 for DHS Attorneys; and $98.51 per hour for interpreters.133 Notably, entry-level IJs are required to adjudicate a wider array of immigration applications than asylum officers, and their decisions, unlike those of current USCIS asylum officers, are not subject to 100 percent supervisory review. As such, under this IFR, USCIS asylum officers making determinations on statutory withholding of removal and CAT protection cases would be performing work at a GS–13 minimum level, considering they will be conducting adjudications traditionally performed only by IJs.134 In addition, first-line Supervisory Asylum Officers (‘‘SAOs’’) reviewing these decisions would be graded at a GS–14.135 Currently, not all SAOs are at a grade GS–14. 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 individuals who receive a positive credible fear determination to IJs at 132 In 2021, the base salary for a GS–12 ranged from $66,829, at step 1, up to $86,881, at step 10. See OPM, 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 Mar. 1, 2022) (‘‘OPM Salary Table’’). 133 Weighted average base salaries across position, FY, and location are drawn from DOJ EOIR PASD analysis. Interpreter wages are presented hourly here because these positions are paid differently and not always on an annual basis. In 2021, the base salary for a GS–15 step 3 was $117,824 and step 4 was $121,506. See OPM Salary Table. 134 In 2021, the base salary for a GS–13 step 1 was $79,468. See OPM Salary Table. 135 In 2021, the base salary for a GS–14 step 1 was $93,907. See OPM Salary Table. PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 EOIR for consideration of the individuals’ asylum claims. Based on 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 was 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 $470.62 136 per hearing over the same time frame. 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 (apart from 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 for FY 2016 through FY 2019 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 on 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.137 136 Estimate were based on analysis provided by EOIR on May 19, 2021, of median digital audio recording length data from all merits 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 merits hearings for corresponding years to produce the five-year average cost per hearing of $470.62. 137 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 E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations USCIS has estimated the staffing resources it will need to implement this 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.138 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. The costs of this rule are likely to include initial costs associated with the hiring and training of staff, and those costs would continue in future years. Additionally, as was explained in Section G of the NPRM, the Departments expect a phased approach to implementation due to budgetary and logistical factors. 86 FR 46922. 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. These estimates therefore partially capture the likely phasing of resourcing and costs, but not the full phasing that could extend into further years. The Departments do not currently have the appropriate data to include an implementation of the IFR in their estimates of quantified resource costs. However, we do not believe a partial implementation significantly skews the expected costs of this rule. We offer some additional comments concerning this phased 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, and facilities); and training. For the remainder of FY 2022, 18207 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 $438.2 million, assuming all staff is hired and corresponding equipment needs are fulfilled in the fiscal year. DHS recognizes that, operationally, it may take more time to attain the necessary staffing and equipment. However, we are not able to reliably predict those timelines due to the uncertain nature of the recruitment and onboarding processes. Any delay in hiring would reduce the first-year costs of implementation, as explained further below. The itemized planned resources are presented in Table 7. TABLE 7—ESTIMATED USCIS FY 2022 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS [$ in thousands] 75k cases 150k cases 300k cases (A) Staffing ................................................................................................................................... Payroll * ................................................................................................................................. Non-Payroll ........................................................................................................................... (B) General Expenses ................................................................................................................. Interpreter Services .............................................................................................................. Transcription Services .......................................................................................................... Facilities ................................................................................................................................ Physical Security .................................................................................................................. IT Case Management ........................................................................................................... Other Contract/Supplies/Equipment ..................................................................................... $140,507 113,602 26,905 39,313 6,615 9,366 6,635 623 12,500 3,574 $355,175 285,983 69,192 83,025 19,136 26,697 17,606 1,654 12,500 5,432 $806,697 648,257 158,440 145,682 44,179 37,362 40,865 3,839 12,500 6,937 Total ...................................................................................................................................... 179,820 438,200 952,379 Source: USCIS Analysis from RAIO and USCIS 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 as compared to FY 2022 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, and 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 $4.375 million in FY 2023. Meanwhile, costs for interpreter and transcription services, facilities, and physical security are expected to rise in FY 2023 because of resource cost increases. For FY 2024 through FY 2031 of implementation, DHS expects resource costs to stabilize. TABLE 8—ESTIMATED USCIS FY 2023 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS [$ in thousands] 75k cases lotter on DSK11XQN23PROD with RULES2 (A) Staffing ................................................................................................................................... Payroll* ................................................................................................................................. 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. 138 The primary estimate of 2,035 total new positions is not equal to the average of the lower- VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 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 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 $133,427 122,753 150k cases $337,047 309,758 300k cases $766,159 703,852 guide for several possible ranges that could be realized in the future, taking into account variations in the populations. Actual volume levels and hence actual staffing levels could be above or below these levels. E:\FR\FM\29MRR2.SGM 29MRR2 18208 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations TABLE 8—ESTIMATED USCIS FY 2023 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS— Continued [$ in thousands] 75k cases 150k cases 300k cases Non-Payroll ........................................................................................................................... (B) General Expenses ................................................................................................................. Interpreter Services .............................................................................................................. Transcription Services .......................................................................................................... Facilities ................................................................................................................................ Physical Security .................................................................................................................. IT Case Management ........................................................................................................... Other Contract/Supplies/Equipment ..................................................................................... 10,674 31,267 6,813 9,647 6,834 642 4,375 2,956 27,289 76,554 19,710 27,498 18,134 1,704 4,375 5,133 62,307 141,249 45,504 38,483 42,091 3,954 4,375 6,842 Total ...................................................................................................................................... 164,694 413,601 907,408 lotter on DSK11XQN23PROD with RULES2 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. USCIS expects to hire most new staff at the GS– 13, step 1 level, on average, and most of those hired will serve as asylum officers. As stated, these officers will be making determinations on 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. See 5 U.S.C. 5333 (providing that new appointments generally ‘‘shall be made at the minimum rate of the appropriate grade’’). Payroll costs also include Government contributions to non-pay benefits, such as healthcare and retirement. Although 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, and office supplies. For example, asylum officers have been 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.) was approximately $7,000. However, USCIS is currently engaging a virtual training that is approximately $5,000 per student. Although the training is expected to shift back to in-person training in the future, we currently do not have a projected date for this shift. 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. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 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 IFR, 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 because such staff are not currently employed by USCIS. To create transcription service estimates, USCIS applied EOIR’s current cost model to USCIS’s estimated increase in case volumes. DHS also anticipates costs associated with general expenses associated with miscellaneous contract, supplies, and equipment 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. Costs of IT Upgrades for USCIS DHS is planning upgrades to internal management systems and databases as a requirement to implement this IFR. 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. This 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 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 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 ICE, CBP, and DOJ.139 Included in these $12.5 million in costs are the costs to pay staff to make these upgrades. DHS estimates between 30 and 40 individuals, with a little over half being 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. This amount 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 its planned IT upgrades requiring new facilities or additional structures. 139 Although 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 given their own staffing constraints to handle manually any additional process automations, could delay some implementation into FY 2023. E:\FR\FM\29MRR2.SGM 29MRR2 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations Importantly, DHS’s upgrades are 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. Completion of the upgrades is also dependent on the availability of ICE, CBP, and DOJ systems to integrate with USCIS systems to provide for streamlined implementation. However, because this plan was developed 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 of the net change in Form I–765 filing volumes (related to asylum or withholding of removal), and, hence, commensurate biometrics collections (and fee payments). Given the parameters of this rule, however, any net change in biometrics would not impose new costs on 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 19,607,616.140 The average number of individuals that submitted biometrics annually across all USCIS forms for the period FY 2016 through FY 2020 was 3,911,857.141 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 the ASC contract bounds. To better illustrate the limited impact of biometrics collection on USCIS, 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. 18209 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.142 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 ................ ................ ................ ................ ................ Maximum volume 0 8,565 20,525 31,753 63,505 8,564 20,524 31,752 63,504 95,256 Costs $25,477.79 6.66 5.94 5.53 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 experience a significant change in costs for that district. If biometrics volumes increase on net, there could be small marginal, and hence, average, cost declines; in contrast, if volumes decline, some of those marginal costs might not be realized. Having developed the costs for USCIS to implement the rule, this section brings the total costs together as annual inputs that are discounted over a 10year 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 INTERIM FINAL RULE TO USCIS [In undiscounted 2020 dollars] Time Period: FYs 2022 through 2031 FY Human resources General (non-IT) cost IT expenditure Annual total lotter on DSK11XQN23PROD with RULES2 10A. Low Population Bound (75k Annual Cases) 2022 ................................................................................. 140 Data and information were provided by the USCIS IRIS Directorate. The average annual biometrics volumes were obtained through the CPMS database. The cost of the contract reflects the most recent contract update, dated June 18, 2020. VerDate Sep<11>2014 17:37 Mar 28, 2022 Jkt 256001 $140,507,000 $26,813,000 141 Data and information were provided by USCIS IRIS Directorate, utilizing the CPMS database. 142 ‘‘Economies of scale’’ refers to a scenario where a greater quantity of output produced (in this PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 $12,500,000 $179,820,000 case, more biometric service appointments) results in a lower per-unit fixed cost or per-unit variable cost to produce that output. E:\FR\FM\29MRR2.SGM 29MRR2 18210 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations TABLE 10—MONETIZED COSTS OF THE INTERIM FINAL RULE TO USCIS—Continued [In undiscounted 2020 dollars] Time Period: FYs 2022 through 2031 FY 2023 2024 2025 2026 2027 2028 2029 2030 2031 Human resources General (non-IT) cost IT expenditure Annual total ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. 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 26,892,000 27,698,760 28,529,723 29,385,614 30,267,183 31,175,198 32,110,454 33,073,768 34,065,981 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 4,375,000 164,694,000 169,503,570 174,457,427 176,728,846 181,899,461 184,280,049 189,677,201 192,