Circumvention of Lawful Pathways, 31314-31452 [2023-10146]
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Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 208
[CIS No. 2744–23; Docket No: USCIS 2022–
0016]
RIN 1615–AC83
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Parts 1003 and 1208
[A.G. Order No. 5660–2023]
RIN 1125–AB26
Circumvention of Lawful Pathways
U.S. Citizenship and
Immigration Services, Department of
Homeland Security; Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule; request for comments
on expanded applicability in maritime
context.
AGENCY:
The Department of Homeland
Security (‘‘DHS’’) and the Department of
Justice (‘‘DOJ’’) are issuing a final rule
in anticipation of a potential surge of
migration at the southwest border
(‘‘SWB’’) of the United States following
the termination of the Centers for
Disease Control and Prevention’s
(‘‘CDC’’) public health Order. The rule
encourages migrants to avail themselves
of lawful, safe, and orderly pathways
into the United States, or otherwise to
seek asylum or other protection in
another country through which they
travel, thereby reducing reliance on
human smuggling networks that exploit
migrants for financial gain. The rule
does so by introducing a rebuttable
presumption of asylum ineligibility for
certain noncitizens who neither avail
themselves of a lawful, safe, and orderly
pathway to the United States nor seek
asylum or other protection in a country
through which they travel. In the
absence of such a measure, which
would apply only to those who enter at
the southwest land border or adjacent
coastal borders during a limited,
specified date range, the number of
migrants expected to travel without
authorization to the United States
would be expected to increase
significantly, to a level that risks
undermining the Departments’
continued ability to safely, effectively,
and humanely enforce and administer
U.S. immigration law, including the
asylum system, in the face of
exceptionally challenging
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SUMMARY:
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circumstances. Coupled with an
expansion of lawful, safe, and orderly
pathways into the United States, the
Departments expect the rule to lead to
a reduction in the number of migrants
who seek to cross the SWB without
authorization to enter, thereby reducing
the reliance by migrants on dangerous
human smuggling networks, protecting
against extreme overcrowding in border
facilities, and helping to ensure that the
processing of migrants seeking
protection in the United States is done
in an effective, humane, and efficient
manner. In addition, the Departments
are requesting comment on whether
applicability of the rebuttable
presumption should be extended to
noncitizens who enter the United States
without documents sufficient for lawful
admission during the same temporary
time period at a maritime border.
DATES:
Effective date: This rule is effective on
May 11, 2023.
Comment period for solicited
comments: Comments on expanded
applicability in maritime context
identified in Section V of this preamble
must be submitted on or before June 15,
2023. The electronic Federal Docket
Management System will accept
comments before midnight eastern time
at the end of that day.
ADDRESSES:
Docket: To view comments on the
proposed rule that preceded this rule,
search for docket number USCIS 2022–
0016 on the Federal eRulemaking Portal
at https://www.regulations.gov.
Comment period for solicited
additional comments: You may submit
comments on the specific issue
identified in Section V of this preamble
via the electronic Federal Docket
Management System at https://
www.regulations.gov, to DHS Docket
Number USCIS 2022–0016. 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
rulemaking 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 or
USB drives. The Departments are not
accepting mailed comments at this time.
If you cannot submit your comment by
using https://www.regulations.gov,
please contact the Regulatory
Coordination Division, Office of Policy
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and Strategy, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, by telephone at
(240) 721–3000 (not a toll-free call) for
alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Director,
Border and Immigration Policy, Office
of Strategy, Policy, and Plans, U.S.
Department of Homeland Security;
telephone (202) 447–3459 (not a toll-free
call).
For Executive Office for Immigration
Review (‘‘EOIR’’): Lauren Alder Reid,
Assistant Director, Office of Policy,
EOIR, Department of Justice, 5107
Leesburg Pike, Falls Church, VA 22041;
telephone (703) 305–0289 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
submit comments on the specific issue
identified in Section V of this preamble
by submitting relevant written data,
views, or arguments. To provide the
most assistance to the Departments,
comments should explain the reason for
any recommendation and include data,
information, or authority that supports
the recommended course of action.
Comments must be submitted in
English, or an English translation must
be provided. 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
rulemaking and may not receive a
response from the Departments.
Instructions: If you submit a
comment, you must submit it to DHS
Docket Number USCIS 2022–0016. All
submissions may be posted, without
change, to the Federal eRulemaking
Portal at https://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to consider
limiting the amount of personal
information that you provide in any
voluntary public comment submission
you make to the Departments. The
Departments may withhold information
provided in comments from public
viewing that they determine may impact
the privacy of an individual or is
offensive. For additional information,
please read the Privacy and Security
Notice available at https://
www.regulations.gov.
II. Executive Summary
A. Purpose of Action
Economic and political instability
around the world is fueling the highest
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levels of migration since World War II,
including in the Western Hemisphere.
Analysis by the DHS Office of
Immigration Statistics (‘‘OIS’’) found
that even while CDC’s Title 42 public
health Order 1 has been in place,
encounters at our SWB 2—referring to
the number of times U.S. officials
encounter noncitizens 3 attempting to
cross the SWB of the United States
without authorization to do so—reached
an all-time high in 2022, driven in large
part by an unprecedented exodus of
migrants at different times from
countries such as Brazil, Colombia,
Cuba, Ecuador, Haiti, Nicaragua, Peru,
and Venezuela.4 The U.S. Border Patrol
(‘‘USBP’’) completed 221,710
encounters between ports of entry in
December 2022, second only to May
2022 (224,371 encounters) for the most
monthly encounters since at least Fiscal
Year (‘‘FY’’) 2000 (the period for which
detailed records are available), and very
likely the most ever.5 Daily encounters
between Ports of Entry (‘‘POEs’’)
averaged 7,152 for December 2022 and
exceeded 8,000 per day 11 times during
1 See Public Health Determination and Order
Regarding Suspending the Right to Introduce
Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists, 87 FR
19941, 19941–42 (Apr. 6, 2022) (describing the
CDC’s recent Title 42 public health Orders, which
‘‘suspend[ ] the right to introduce certain persons
into the United States from countries or places
where the quarantinable communicable disease
exists in order to protect the public health from an
increased risk of the introduction of COVID–19’’).
2 United States Government sources refer to the
U.S. border with Mexico by various terms,
including ‘‘SWB,’’ ‘‘the southern border,’’ ‘‘U.S.Mexico border,’’ or ‘‘the land border with Mexico.’’
In some instances, these differences can be
substantive, referring only to portions of the border,
while in others they simply reflect different word
choices. The ‘‘southern border’’ is both a land and
maritime border extending from beyond California
to the west to beyond Florida to the east. This rule
applies along the entirety of the U.S. land border
with Mexico, referred to in the regulatory text as the
‘‘southwest land border,’’ but the Departments use
different terms in the preamble to describe the
border. This is in large part to reflect the source
material supporting the rule, but the Departments
believe that the factual circumstances described in
the preamble call for applying the rule across the
entirety of the U.S. land border with Mexico,
referred to throughout as the ‘‘SWB.’’ As discussed
in greater detail below, the Departments believe that
the factual circumstances described in this
preamble call for applying the rule to coastal
borders adjacent to that land border as well;
accordingly, this final rule applies to those who
enter the United States from Mexico, whether at the
southwest land border or adjacent coastal borders.
3 For purposes of this discussion, the
Departments use the term ‘‘noncitizen’’ to be
synonymous with the term ‘‘alien’’ as it is used in
the Immigration and Nationality Act. See INA
101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 140 S.
Ct. 1442, 1446 n.2 (2020).
4 OIS analysis of OIS Persist Dataset based on data
through March 31, 2023; OIS analysis of historic
U.S. Border Patrol data.
5 OIS analysis of OIS Production data based on
data through March 31, 2023.
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the month, as compared to average daily
encounters of 1,977 for all of 2000–2019
and average daily encounters of 1,265 in
the immediate pre-pandemic period,
2014–2019.6 Smuggling networks enable
and exploit this unprecedented
movement of people, putting migrants’
lives at risk for smugglers’ financial
gain.7 Meanwhile, the current asylum
system—in which a high number of
migrants are initially determined
eligible to pursue their claims, even
though most ultimately are not granted
asylum in the subsequent EOIR removal
proceedings 8—has contributed to a
growing backlog of cases awaiting
review by asylum officers (‘‘AOs’’) and
immigration judges (‘‘IJs’’). The practical
result of this growing backlog is that
those with meritorious claims may have
to wait years for their claims to be
granted, while individuals who are
ultimately denied protection may spend
years in the United States before being
issued a final order of removal.9 As the
demographics of border encounters have
shifted in recent years to include larger
numbers of non-Mexicans—who are far
more likely to assert asylum claims—
and as the time required to process and
remove noncitizens ineligible for
protection has grown (during which
individuals may become eligible to
apply for employment authorization),
the deterrent effect of apprehending
noncitizens at the SWB has become
more limited.10
6 OIS analysis of OIS Production data for fiscal
year (‘‘FY’’) 2000–March 2023 and OIS Yearbook
data for FY 1925–FY 1999. As discussed further
below, daily encounters between ports of entry fell
sharply in January 2023 following the launch of the
Cuba, Haiti, and Nicaragua parole processes, and
daily encounters between ports of entry at the SWB
averaged just over 5,200 a day the 30 days ending
April 10, 2023. OIS analysis of Unified Immigration
Portal (UIP) data pulled on April 13, 2023.
7 Miriam Jordan, Smuggling Migrants at the
Border Now a Billion-Dollar Business, N.Y. Times,
July 25, 2022, https://www.nytimes.com/2022/07/
25/us/migrant-smugging-evolution.html.
8 See EOIR, Executive Office for Immigration
Review Adjudication Statistics: Asylum Decision
and Filing Rates in Cases Originating with a
Credible Fear Claim (Jan. 16, 2023), https://
www.justice.gov/eoir/page/file/1062976/download.
The EOIR adjudication outcome statistics report on
the total number of cases originating with credible
fear claims resolved on any ground in a FY, without
regard to whether an asylum claim was adjudicated.
The asylum grant rate is a percentage of that total
number of cases.
9 OIS analysis of EOIR data as of March 31, 2023.
10 For noncitizens encountered at the SWB in FY
2014–FY 2019 who were placed in expedited
removal, nearly 6 percent of Mexican nationals
made fear claims that were referred to U.S.
Citizenship and Immigration Services for
adjudication, compared to nearly 57 percent of
people from Northern Central America (i.e., El
Salvador, Guatemala, and Honduras), and just over
90 percent of all other nationalities. OIS analysis of
Enforcement Lifecycle data as of December 31,
2022. Of note, according to OIS analysis of historic
EOIR and CBP data, there is a clear correlation since
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While the CDC’s Title 42 public
health Order has been in effect, migrants
who do not have proper travel
documents have generally not been
processed into the United States; they
instead have been expelled to Mexico or
to their home countries under the
Order’s authority without being
processed under the authorities set forth
in Title 8 of the United States Code,
which includes the Immigration and
Nationality Act (‘‘INA’’ or ‘‘the Act’’).
When the Order is lifted, however, the
United States Government will process
all migrants into the United States
under Title 8 authorities, as required by
statute. At that time, the number of
migrants seeking to cross the SWB
without authorization is expected to
increase significantly, unless other
policy changes are made. Such
challenges were evident in the days
following the November 15, 2022, court
decision that, had it not been stayed on
December 19, 2022, would have resulted
in the lifting of the Title 42 public
health Order effective December 21,
2022.11 Leading up to the expected
termination date, migrants gathered in
various parts of Mexico, including along
the SWB, waiting to cross the border
once the Title 42 public health Order
was lifted.12 According to internal
Government sources, smugglers were
also expanding their messaging and
recruitment efforts, using the expected
lifting of the Title 42 public health
Order to claim that the border was open,
thereby seeking to persuade would-be
migrants to participate in expensive and
dangerous human smuggling schemes.
In the weeks between the November
2022 announcement that the Title 42
public health Order would be lifted, and
the December 19, 2022, stay order that
kept the Title 42 public health Order in
place, encounter rates jumped from an
average of just under 7,700 per week
(early November) to nearly 8,800 per
FY 2000 between the increasing time it takes to
complete immigration proceedings, which results in
a lower share of noncitizens being removed, and the
growth in non-Mexican encounters at the SWB.
Both trends accelerated in the 2010s, as nonMexicans became the majority of border encounters,
and they have accelerated further since FY 2021, as
people from countries other than Mexico and
Northern Central America now account for the
largest numbers of border encounters.
11 See Huisha-Huisha v. Mayorkas, No. 21–100,
2022 WL 16948610 (D.D.C. Nov. 15, 2022), cert. and
stay granted, Arizona v. Mayorkas, 143 S. Ct. 478
(2022).
12 See, e.g., Leila Miller, Asylum Seekers Are
Gathering at the U.S.-Mexico Border. This Is Why,
L.A. Times, Dec. 23, 2022, https://
www.latimes.com/world-nation/story/2022-12-23/
la-fg-mexico-title-42-confusion.
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week (mid-December), a change not
predicted by normal seasonal effects.13
While a number of factors make it
particularly difficult to precisely project
the numbers of migrants who would
seek to cross the SWB without
authorization or present at a U.S. POE
without documents sufficient for
admission after the lifting of the Title 42
public health Order, DHS encounter
projections and planning models from
early April suggest that encounters
could rise to 11,000 per day, absent
policy changes and absent a viable
mechanism for removing Cuban,
Haitian, Nicaraguan, and Venezuelan
(‘‘CHNV’’) nationals who do not have a
valid protection claim.14 As discussed
in greater detail below, data indicate
that recently announced enforcement
processes, as applied to CHNV
nationals, which couple new parole
processes with prompt returns of those
who attempt to cross the SWB without
utilizing these processes, are effectively
deterring irregular migration 15 from
those countries to the United States,
13 Month over month change from November to
December for all of FY 2013–FY2022 averaged
negative 2 percent. OIS analysis of OIS Persist
Dataset based on data through March 31, 2023.
14 OIS analysis of DHS SWB Encounter Planning
Model generated April 18, 2023. The complexity of
international migration limits the Department’s
ability to precisely project border encounters under
the best of circumstances. The current period is
characterized by greater than usual uncertainty due
to ongoing changes in the major migration source
countries (i.e., the shift from Mexico and Northern
Central America to new countries of origin,
discussed further below), the growing impact of
climate change on migration, political instability in
several source countries, the evolving recovery from
the COVID–19 pandemic, and uncertainty generated
by border-related litigation, among other factors.
OIS leads an interagency SWB Encounter
Projections Working Group that generates encounter
projections every two to four weeks, with ongoing
refinements to the model based on feedback from
the working group and model diagnostics. The
enterprise encounter projection utilizes a mixed
method blended model that combines a Bayesian
structural time series statistical model produced by
OIS with subject matter expert input to account for
real-time policy developments and pending
litigation, among other factors, that are not captured
by the statistical model. The blended model is run
through a standard statistical process (Monte Carlo
simulations) to generate 68 percent and 95 percent
confidence intervals for each of 33 separate
demographic groupings. In light of the greater-thanusual uncertainty at the current time, the
Departments’ planning models are designed to
prepare the Departments for all reasonably likely
eventualities, and therefore focus on the upper
bounds of the blended model’s 68 and 95 percent
confidence intervals. As noted in Section IV.B.2 of
this preamble, in the current context, the
Departments must focus their planning efforts on
the high and moderately high planning models
rather than plan to an optimistic scenario that could
leave enforcement efforts badly under-resourced
and harm efforts to provide a safe and orderly
process.
15 In this preamble, ‘‘irregular migration’’ refers to
the movement of people into another country
without authorization.
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thus yielding a substantial decrease in
encounter numbers for nationals of
CHNV countries.16
However, DHS will no longer have a
means to promptly expel migrants
without a legal basis to stay in the
United States following the termination
of the Title 42 public health Order,
which means that an important
disincentive associated with the parole
processes would no longer be present.
In addition, there are a number of
factors that could contribute to these
gains being erased after the lifting of the
Title 42 public health Order, including
the presence of several large diaspora
populations in Mexico and elsewhere in
the hemisphere, the unprecedented
recent growth in migration from
countries of origin not previously
typical, the already large number of
migrants in proximity to the SWB, and
the general uncertainty surrounding the
expected impact of the termination of
the Title 42 public health Order on the
movement of migrants. Thus, the high
end of the estimated encounter rate
remains a possibility for which the
Departments need to prepare. In the
absence of the policy changes included
in the rule, most non-Mexicans
processed for expedited removal under
Title 8 would likely establish credible
fear and remain in the United States for
the foreseeable future despite the fact
that many of them will not ultimately be
granted asylum,17 a scenario that would
likely incentivize an increasing number
of migrants to the United States and
further increase the likelihood of
sustained, high encounter rates.
A sustained, high encounter rate risks
overwhelming the Departments’ ability
to effectively process, detain, and
16 In the week prior to the announcement of the
parole processes (ending October 12, 2022, for
Venezuela and January 6, 2023, for Cuba, Haiti, and
Nicaragua), the daily average of CHNV encounters
was nearly 2,000 between POEs. A month after the
parole announcements, daily encounters of CHNV
nationals averaged just under 300 encounters. In the
most recent seven days ending April 10, 2023,
CHNV daily encounters averaged 195. OIS analysis
of OIS Persist dataset based on data through March
31, 2023, and OIS analysis of CBP UIP data
downloaded April 13, 2023.
17 See Section III.C of the preamble to the notice
of proposed rulemaking, Circumvention of Lawful
Pathways, 88 FR 11704, at 11715–11716 (Feb. 23,
2023). Overall, 63 percent of non-Mexicans placed
in expedited removal from 2014–2019 made fear
claims, and 85 percent of those claiming fear (54
percent of all those placed in expedited removal)
established fear or were otherwise placed in section
240 removal proceedings as a result of their fear
claim. These rates are likely to be higher after May
11, 2023, because of the growing prevalence of
extra-regional nationals (i.e., noncitizens not from
Mexico or Northern Central America), who are more
likely than those from Northern Central American
countries to make fear claims and to establish fear.
OIS analysis of OIS Enforcement Lifecycle data
based on data through February 28, 2023.
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remove, as appropriate, the migrants
encountered. This would put an
enormous strain on already strained
resources, risk overcrowding in already
crowded USBP stations and border
POEs in ways that pose significant
health and safety concerns, and create a
situation in which large numbers of
migrants—only a small proportion of
whom are likely to be granted asylum—
are subject to exploitation and risks to
their lives by the networks that support
their movements north.
In response to this urgent and extreme
situation, the Departments are issuing a
rule that—
• incentivizes migrants to use lawful,
safe, and orderly means for noncitizens
to enter the United States to seek
asylum and other forms of protection;
• provides core protections for
noncitizens who would be threatened
with persecution or torture in other
countries; and
• builds upon ongoing efforts to share
the responsibility of providing asylum
and other forms of protection to eligible
migrants with the United States’
regional partners.
At the same time, the rule addresses
the reality of unprecedented migratory
flows, the systemic costs those flows
impose on the immigration system, and
the ways in which increasingly
sophisticated smuggling networks
cruelly exploit the system for financial
gain. Specifically, this rule establishes a
presumptive condition on asylum
eligibility for certain noncitizens who
fail to take advantage of the existing and
expanded lawful pathways 18 to enter
the United States, including the
opportunity to schedule a time and
place to present at a POE, and thus seek
asylum or other forms of protection in
a lawful, safe, and orderly manner, or to
seek asylum or other protection in one
of the countries through which they
travel on their way to the United States.
This effort draws, in part, on lessons
learned from the successful Venezuela
parole process,19 as well as the similar
processes for Cubans, Haitians, and
Nicaraguans,20 under which DHS
18 The terms ‘‘lawful pathways’’ and ‘‘lawful, safe,
and orderly pathways,’’ as used in this preamble,
refer to the range of pathways and processes by
which migrants are able to enter the United States
or other countries in a lawful, safe, and orderly
manner and seek asylum and other forms of
protection as described in this rule.
19 See DHS, Press Release, DHS Announces New
Migration Enforcement Process for Venezuelans
(Oct. 12, 2022), https://www.dhs.gov/news/2022/10/
12/dhs-announces-new-migration-enforcementprocess-venezuelans; see also DHS, Implementation
of a Parole Process for Venezuelans, 87 FR 63507
(Oct. 19, 2022).
20 See DHS, Press Release, DHS Continues to
Prepare for End of Title 42; Announces New Border
Enforcement Measures and Additional Safe and
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coupled a mechanism for noncitizens
from these countries to seek entry into
the United States in a lawful, safe, and
orderly manner, with the imposition of
new consequences for those who cross
the border without authorization to do
so—namely returns to Mexico.21 Prior to
the implementation of these processes,
the Government of Mexico had not been
willing to accept the return of such
nationals; the Government of Mexico’s
independent decision to allow such
returns was predicated, in primary part,
on the implementation of these
processes.
A week before the announcement of
the Venezuela parole process on
October 12, 2022, Venezuelan
encounters between POEs at the SWB
averaged over 1,100 a day from October
5–11. About two weeks after the
announcement, Venezuelan encounters
averaged under 200 per day between
October 18 and 24.22 U.S. Customs and
Border Protection (‘‘CBP’’) encountered
an average of 106 Venezuelans between
POEs per day in March 2023, about onetenth the number of encounters prior to
the announcement of the parole
process.23 Similarly, the number of
Cuban, Haitian, and Nicaraguan
(‘‘CHN’’) nationals encountered between
POEs dropped significantly in the wake
of the introduction of the new
processes, which coupled a lawful, safe,
and orderly way for such nationals to
seek parole in the United States with
consequences (in the form of prompt
returns to Mexico) for those who
crossed the SWB without authorization.
Between the announcement of these
processes on January 5, 2023, and
January 21, 2023, the number of daily
encounters between POEs of CHN
nationals dropped from 928 to 73, a 92
Orderly Processes (Jan. 5, 2023), https://
www.dhs.gov/news/2023/01/05/dhs-continuesprepare-end-title-42-announces-new-borderenforcement-measures-and.
21 While the Title 42 public health Order has been
in place, those returns have been made under Title
42. As noted below, after the Title 42 public health
Order is lifted, affected noncitizens may instead be
subject to return or removal to Mexico under Title
8. See The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration
(May 2, 2023), https://www.whitehouse.gov/
briefing-room/statements-releases/2023/05/02/
mexico-and-united-states-strengthen-jointhumanitarian-plan-on-migration/ [hereinafter The
White House, Mexico and United States Strengthen
Joint Humanitarian Plan on Migration (May 2,
2023)]; Government of Mexico, Me´xico y Estados
Unidos fortalecen Plan Humanitario Conjunto sobre
Migracio´n (May 2, 2023), https://www.gob.mx/
presidencia/prensa/mexico-y-estados-unidosfortalecen-plan-humanitario-conjunto-sobremigracion?state=published.
22 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
23 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
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percent decline.24 CHN encounters
between POEs continued to decline to
an average of fewer than 17 per day in
March 2023.25 DHS estimates that the
drop in CHNV encounters in January
through March was almost four times as
large as the number of people permitted
entry under the parole processes.26
This rule, which draws on these
successful processes, and which will
apply only to those who enter during a
limited, specified date range at the
southwest land border or adjacent
coastal borders, will discourage
irregular migration by encouraging
migrants to use lawful, safe, and orderly
pathways and allowing for swift returns
of migrants who bypass such pathways,
even after the termination of the Title 42
public health Order. It responds to the
expected increase of migrants seeking to
cross the SWB following the termination
of the Title 42 public health Order that
would occur in the absence of a policy
shift by encouraging reliance on lawful,
safe, and orderly pathways, thereby
shifting the incentives that otherwise
encourage migrants to make a dangerous
journey to the SWB. It is also responsive
to the requests of foreign partners that
have lauded the sharp reductions in
irregular migration associated with the
aforementioned process for Venezuelans
and have urged that the United States
continue and build on this kind of
approach, which couples processes for
individuals to travel directly to the
United States with consequences at the
land border for those who do not avail
themselves of these processes. The
United States has, as noted above,
already extended this model to Cuba,
Haiti, and Nicaragua, and the
Government of Mexico and the United
States recently announced a set of
additional measures on migration,
including the United States’ continued
commitment to welcoming CHNV
nationals under these parole processes
and Mexico’s commitment to continue
to accept back migrants on
24 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
25 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
26 In December 2022, prior to the announcement
of the CHN parole processes, the OIS Enterprise
Encounter Projection predicted 273,000 total
encounters of CHNV nationals in January through
March 2023, a projection equivalent to 265,000
unique encounters given CHNV repeat encounter
rates. During that same period, following the
enactment of the CHN parole processes, unique
SWB encounters (excluding scheduled arrivals via
the CBP One app) of CHNV nationals was 20,204–
245,000 fewer unique encounters than had been
predicted. By comparison, a total of 61,967 CHNV
nationals entered the United States pursuant to the
CHNV parole processes during the same period. OIS
analysis of OIS Persist Dataset based on data
through March 31, 2023, and of CBP OFO CHNV
Advance Travel Authorization reports.
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humanitarian grounds after May 11,
2023.27 The Departments assess that
continuing to implement and build on
this approach is critical to the United
States’ ongoing engagements with
regional partners, in particular the
Government of Mexico, regarding
migration management in the region.28
Consonant with these efforts, over the
past two years, the United States has
taken significant steps to expand safe
and orderly options for migrants to
lawfully enter the United States. The
United States has, for example,
increased and will continue to
increase—
• refugee processing in the Western
Hemisphere;
• country-specific and other available
processes for individuals seeking parole
for urgent humanitarian reasons or
significant public benefit on a case-bycase basis; and
• opportunities to lawfully enter the
United States for the purpose of
seasonal employment.
In addition, once the Title 42 public
health Order is terminated, the United
States will expand implementation of
the CBP OneTM mobile application
(‘‘CBP One app’’),29 an innovative
mechanism for noncitizens to schedule
a time to arrive at POEs along the SWB,
to allow an increasing number of
migrants who may wish to claim asylum
to request an available time and location
to present and be inspected and
processed at certain POEs, in
accordance with operational limitations
at each POE.30 Use of this app keeps
27 The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration
(May 2, 2023).
28 See also The White House, Joint Statement by
President Biden and Prime Minister Trudeau (Mar.
24, 2023), https://www.whitehouse.gov/briefingroom/statements-releases/2023/03/24/jointstatement-by-president-biden-and-prime-ministertrudeau/ (reaffirming commitment of United States
and Canada to a collaborative regional approach to
migration centered on expanding legal pathways
and humane border management, including
deterrence of irregular migration).
29 The Departments note that unless otherwise
specified, references to the CBP One app refer to
usage of the CBP One tool, which can be accessed
via the smartphone application. Although there is
a desktop version of the CBP One app, it does not
currently allow users to submit their information in
advance. CBP is developing the capability to use the
desktop version for this purpose.
30 As of January 12, 2023, this mechanism is
currently available for noncitizens seeking to cross
SWB land POEs to request a humanitarian
exception from the Title 42 public health Order. See
CBP, Fact Sheet: Using CBP OneTM to Schedule an
Appointment (last modified Jan. 12, 2023), https://
www.cbp.gov/document/fact-sheets/cbp-one-factsheet-english. Once the Title 42 public health Order
is terminated, and the POEs open to all migrants
who wish to seek entry into the United States, this
mechanism will be broadly available to migrants in
central and northern Mexico, allowing them to
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migrants from having to wait in long
lines of unknown duration at the POEs,
and enables the POEs to manage the
flows in a safe and efficient manner,
consistent with their footprint and
operational capacity, which vary
substantially across the SWB. Once
present in the United States, those who
use this mechanism can make claims for
asylum and other forms of protection
and are exempted from this rule’s
rebuttable presumption on asylum
eligibility. They are vetted and
screened, and assuming no public safety
or national security concerns, may be
eligible to apply for employment
authorization as they await resolution of
their cases.31
Moreover, on April 27, 2023, DHS and
the Department of State announced
several new measures to further reduce
irregular migration across the Western
Hemisphere, significantly expand
lawful pathways for protection, and
facilitate the safe, orderly, and humane
processing of migrants.32 These new
measures include—
• creating family reunification parole
processes for El Salvador, Guatemala,
Honduras, and Colombia, as well as
modernizing the longstanding Haitian
Family Reunification Parole process and
the Cuban Family Reunification Parole
process;
• committing to referring for
resettlement thousands of additional
refugees per month from the Western
Hemisphere, with the goal of doubling
the number of refugees the United States
committed to welcome as part of the Los
Angeles Declaration on Migration and
Protection (‘‘L.A. Declaration’’);
• establishing regional processing
centers in key locations throughout the
Western Hemisphere to reduce irregular
migration;
• launching an aggressive antismuggling campaign targeting criminal
networks in the Darie´n Gap and
combating smuggler misinformation;
• surging AOs to complete credible
fear interviews at the SWB more
quickly; and
request an available time and location to present
and be inspected and processed at certain POEs.
31 Under current employment authorization
regulations, there is no waiting period before a
noncitizen parolee in this circumstance may apply
for employment authorization, except where the
noncitizen is in expedited removal proceedings,
including after a positive credible fear
determination, and paroled from custody. See 8
CFR 274a.12(c)(11), 235.3(b)(2)(iii), (b)(4)(ii).
32 See DHS, Fact Sheet, U.S. Government
Announces Sweeping New Actions to Manage
Regional Migration (Apr. 27, 2023), https://
www.dhs.gov/news/2023/04/27/fact-sheet-usgovernment-announces-sweeping-new-actionsmanage-regional-migration [hereinafter DHS, New
Actions to Manage Regional Migration (Apr. 27,
2023)].
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• ramping up coordination between
state and local officials and other federal
agencies to provide resources, technical
assistance, and support.33
These measures will be implemented
in close coordination with regional
partners, including the governments of
Mexico, Canada, Colombia, and
Guatemala, as well as the government of
Spain.34
Available pathways provide lawful,
safe, and orderly mechanisms for
migrants to enter the United States and
make their protection claims. Consistent
with the CHNV processes, this rule also
imposes consequences on certain
noncitizens who fail to avail themselves
of the range of lawful, safe, and orderly
means for entering the United States
and seeking protection in the United
States or elsewhere. Specifically, this
rule establishes a rebuttable
presumption that certain noncitizens
who enter the United States without
documents sufficient for lawful
admission are ineligible for asylum, if
they traveled through a country other
than their country of citizenship,
nationality, or, if stateless, last habitual
residence, unless they were provided
appropriate authorization to travel to
the United States to seek parole
pursuant to a DHS-approved parole
process; presented at a POE at a prescheduled time or demonstrate that the
mechanism for scheduling was not
possible to access or use due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle; or sought asylum or other
protection in a country through which
they traveled and received a final
decision denying that application.
Unaccompanied children (‘‘UC’’) are
excepted from this presumption.35 This
presumption may be rebutted, and
would necessarily be rebutted if, at the
time of entry, the noncitizen or a
member of the noncitizen’s family with
whom they are travelling had an acute
medical emergency, faced an imminent
and extreme threat to life or safety, such
as an imminent threat of rape,
33 See
id.
id.; see also The White House, Mexico and
United States Strengthen Joint Humanitarian Plan
on Migration (May 2, 2023) (committing to increase
joint actions to counter human smugglers and
traffickers, address root causes of migration, and
continue to combine expanded lawful pathways
with consequences for irregular migration).
35 The term ‘‘unaccompanied child’’ as used in
this rule is the same as ‘‘unaccompanied alien
child,’’ which is defined at 6 U.S.C. 279(g)(2) to
mean ‘‘a child who—(A) has no lawful immigration
status in the United States; (B) has not attained 18
years of age; and (C) with respect to whom—(i)
there is no parent or legal guardian in the United
States; or (ii) no parent or legal guardian in the
United States is available to provide care and
physical custody.’’
34 See
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kidnapping, torture, or murder,36 or
satisfied the definition of ‘‘victim of a
severe form of trafficking in persons’’
provided in 8 CFR 214.11(a). The
presumption also may be rebutted in
other exceptionally compelling
circumstances.
The rebuttable presumption is a
‘‘condition[ ]’’ on asylum eligibility, INA
208(b)(2)(C) and (d)(5)(B), 8 U.S.C.
1158(b)(2)(C) and (d)(5)(B), that applies
in affirmative and defensive asylum
application merits adjudications, as well
as during credible fear screenings.
Individuals who are subject to and do
not rebut the presumption remain
eligible for statutory withholding of
removal and protection under the
regulations implementing U.S.
obligations under Article 3 of the
Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (‘‘CAT’’).37
With the ability to schedule a time
and place to arrive at POEs and the
availability of other orderly and lawful
pathways, this system is designed to (1)
protect against an unmanageable flow of
migrants arriving at the SWB; (2) further
ongoing efforts to share the
responsibility of providing asylum and
other forms of protection with the
United States’ regional partners; (3)
ensure that those with valid asylum
claims have an opportunity to seek
protection, whether in the United States
or elsewhere; (4) enable the
Departments to continue administering
the immigration laws fairly and
effectively; and (5) reduce the role of
exploitative transnational criminal
organizations and smugglers.
The rule applies to noncitizens who
enter the United States without
authorization from Mexico at the
southwest land border or adjacent
coastal borders on or after the date of
termination of the Title 42 public health
Order and before a specified date, 24
months from the rule’s effective date.
However, the rule will continue to
apply to such noncitizens who entered
the United States during the 24-month
time frame in their Title 8 proceedings
and in any subsequent asylum
applications, except for those
applications filed after the two-year
period by those who entered the United
36 The term ‘‘imminent’’ refers to the immediacy
of the threat; it makes clear that the threat cannot
be speculative, based on generalized concerns about
safety, or based on a prior threat that no longer
poses an immediate threat. The term ‘‘extreme’’
refers to the seriousness of the threat; the threat
needs to be sufficiently grave, such as a threat of
rape, kidnapping, torture, or murder, to trigger this
ground for rebuttal.
37 Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85, 114.
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States as minors and who apply as
principal applicants. The Departments
intend that the rule will be subject to
review to determine whether the entry
dates provided in 8 CFR 208.33(a)(1)(i)
and 1208.33(a)(1)(i) should be extended,
modified, or remain as provided in the
rule.
B. Effective Date
Issuance of this rule is justified in
light of the migration patterns witnessed
in recent months, and the concern about
the possibility of a surge in irregular
migration upon, or in anticipation of,
the lifting of the Title 42 public health
Order. The Departments seek to
underscore that migrants will not be
able to cross the border without
authorization to enter without
consequence upon the eventual lifting
of the Order. Under this rule, the
Departments will use their Title 8
authorities to process, detain, and
remove, as appropriate, those who enter
the United States from Mexico at the
southwest land border or adjacent
coastal borders without authorization
and do not have a valid protection
claim.
The Departments are issuing this rule
without the 30-day delayed effective
date typically required by the
Administrative Procedure Act
(‘‘APA’’) 38 because the Departments
have determined that it is necessary to
implement the rule when the Title 42
public health Order is lifted. The lifting
of the Order could occur as a result of
several different litigation and policy
developments, including the vacatur of
the preliminary injunction entered in
Louisiana v. CDC, 603 F. Supp. 3d 406
(W.D. La. 2022), appeal pending, No.
22–30303 (5th Cir. June 15, 2022); the
lifting of the stay entered by the
Supreme Court in Arizona v. Mayorkas,
143 S. Ct. 478 (2022); or ‘‘the expiration
of the Secretary of HHS’ declaration that
COVID–19 constitutes a public health
emergency,’’ Public Health
Reassessment and Order Suspending the
Right to Introduce Certain Persons from
Countries Where a Quarantinable
Communicable Disease Exists, 86 FR
42828, 42829 (Aug. 5, 2021). The
expiration of the declaration by the
Secretary of Health and Human Services
(‘‘HHS’’) that COVID–19 constitutes a
public health emergency is expected to
occur on May 11, 2023, in light of the
recent announcement that ‘‘[a]t present,
the Administration’s plan is to extend’’
the public health emergency to May 11
and then allow it to expire ‘‘on that
38 See 5 U.S.C. 553(d). The Departments further
address this requirement in Section VI.A of this
preamble.
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date.’’ 39 The Departments have thus
sought to move as expeditiously as
possible, while also allowing sufficient
time for public comment.
C. Changes From Proposed Rule to Final
Rule
On February 23, 2023, the
Departments issued a notice of proposed
rulemaking (‘‘NPRM’’ or ‘‘proposed
rule’’) 40 in anticipation of a potential
surge of migration at the SWB following
the eventual termination of the CDC’s
public health Order. Following careful
consideration of public comments
received, the Departments have made
modifications to the regulatory text
proposed in the NPRM, as described
below. The rationale for the proposed
rule and the reasoning provided in the
proposed rule preamble remain valid,
except as distinguished in this
regulatory preamble.
1. Removing Provisions Implementing
the Proclamation Bar IFR and the TCT
Bar Final Rule
Consistent with the proposed rule,
Circumvention of Lawful Pathways, 88
FR 11704, 11727–28 (Feb. 23, 2023), the
Departments have added amendatory
instructions to remove provisions
enacted to implement the bars to asylum
eligibility established in an interim final
rule (‘‘IFR’’) entitled, Aliens Subject to
a Bar on Entry Under Certain
Presidential Proclamations; Procedures
for Protection Claims, 83 FR 55934
(Nov. 9, 2018) (‘‘Proclamation Bar IFR’’),
and a final rule entitled, Asylum
Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17,
2020) (‘‘TCT Bar Final Rule’’).41
To remove the provisions enacted to
implement the Proclamation Bar IFR
and TCT Bar Final Rule, the
39 Office of Mgmt. & Budget, Exec. Office of the
President, Statement of Administration Policy (Jan.
30, 2023), https://www.whitehouse.gov/wp-content/
uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf; see
also HHS, Fact Sheet: COVID–19 Public Health
Emergency Transition Roadmap (Feb. 9, 2023),
https://www.hhs.gov/about/news/2023/02/09/factsheet-covid-19-public-health-emergency-transitionroadmap.html (‘‘Based on current COVID–19
trends, the Department of Health and Human
Services (HHS) is planning for the federal Public
Health Emergency (PHE) for COVID–19, declared
under Section 319 of the Public Health Service
(PHS) Act, to expire at the end of the day on May
11, 2023.’’).
40 88 FR 11704.
41 The TCT Bar Final Rule amended an earlier IFR
on the same topic. See Asylum Eligibility and
Procedural Modifications, 84 FR 33829 (July 16,
2019). The IFR was vacated prior to the issuance
of the TCT Bar Final Rule. Additionally, where the
Departments refer to the ‘‘Proclamation Bar’’ or
‘‘TCT Bar’’ without including ‘‘IFR’’ or ‘‘Final
Rule,’’ the Departments are referring to the bars as
applied and not to the rulemaking documents that
implemented them.
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31319
Departments have made the following
changes:
• removed and reserved paragraphs 8
CFR 208.13(c)(3) and 1208.13(c)(3),
which previously included the
requirements for the Proclamation Bar
IFR’s applicability;
• removed and reserved paragraphs 8
CFR 208.13(c)(4) and 1208.13(c)(4),
which previously included the
requirements for the TCT Bar Final
Rule’s applicability;
• removed and reserved paragraphs 8
CFR 208.13(c)(5) and 1208.13(c)(5),
which provided that determinations
made with regard to whether an
applicant met one of the exceptions to
the TCT Bar Final Rule would not bind
Federal departments or agencies with
respect to certain later adjudications;
• amended 8 CFR 208.30(e)(5) to
remove paragraphs (ii) and (iii), which
regard application during credible fear
of the Proclamation Bar IFR and TCT
Bar Final Rule, respectively;
• removed reference to 8 CFR
208.30(e)(5)(ii) through (iv) from what
was previously (i) and redesignated (i)
as (e)(5);
• amended 8 CFR 1003.42(d) to
remove paragraphs (1) and (2) and
redesignated paragraph (3) as (d)
because paragraphs (d)(1) and (2)
provided the standard of review for
Proclamation Bar and TCT Bar
determinations made during credible
fear screenings; and
• removed and reserved 8 CFR
1208.30(g)(1), which provided
instructions to IJs regarding the
application of the Proclamation Bar and
the TCT Bar during credible fear
reviews.
2. Applicability of Rebuttable
Presumption After the Two-Year Period
The rule applies to certain
noncitizens who enter during the twoyear period in any asylum application
they submit, regardless of when the
application is filed or if the noncitizen
makes subsequent entries. See 8 CFR
208.13(f) (‘‘For applications filed by
aliens who entered the United States
between May 11, 2023, and May 11,
2025, also refer to the provisions on
asylum eligibility described in
§ 208.33.’’); 8 CFR 1208.13(f) (same); 8
CFR 208.33(a)(1), 1208.33(a)(1)
(providing that the rebuttable
presumption applies to noncitizens who
enter the United States from Mexico at
the southwest land border or adjacent
coastal borders without documents
sufficient for lawful admission between
the effective date and a date 24-months
later and after the end of
implementation of the Title 42 public
health Order with certain exceptions).
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To remove any potential ambiguity
regarding the ongoing applicability of
the lawful pathways rebuttable
presumption, the final rule makes the
presumption’s ongoing applicability
explicit in 8 CFR 208.33(c)(1) and
1208.33(d)(1) by stating that the lawful
pathways condition on eligibility shall
apply to ‘‘any asylum application’’ that
is filed by a covered noncitizen
‘‘regardless of when the application is
filed and adjudicated.’’
The Departments have exempted from
this ongoing application of the
rebuttable presumption certain
noncitizens who enter the United States
during the two-year period while under
the age of 18 and who later seek asylum
as principal applicants after the twoyear period. In the NPRM, the
Departments requested comment on
‘‘[w]hether any further regulatory
provisions should be added or amended
to address the application of the
rebuttable presumption in adjudications
that take place after the rule’s sunset
date.’’ 88 FR at 11708. After reviewing
comments raising concerns about the
impact of the rule on children who
arrive as part of a family unit and who
are thus subject to the decision-making
of their parents, the Departments have
decided to adopt a provision excepting
such children from the rule in certain
circumstances after the two-year period
ends. See 8 CFR 208.33(c)(2),
1208.33(d)(2). The Departments
recognize that children who enter with
their families are generally traveling due
to their parents’ decision-making.
Exempting children from the rebuttable
presumption entirely would mean,
under the rule, that all family units that
include minor children would also be
exempted, which could incentivize
families who otherwise would not make
the dangerous journey to do so. And if
the rule were amended to only exempt
the child, it could inadvertently lead to
the separation of a family in many cases
because every child would have to be
treated separately from their family
during the credible fear screening as
they would not be subject to the
rebuttable presumption but their parents
could be.
Although accompanied children
remain subject to the rebuttable
presumption generally, the Departments
have determined that the presumption
should not apply to them in any
application for asylum they file after the
two-year period, but only if they apply
as a principal (as opposed to a
derivative) applicant. The Departments
believe this exception to the general
applicability provision balances the
interest in ensuring the rebuttable
presumption has an impact on behavior,
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while at the same time recognizing the
special circumstance of children who
enter in a manner that triggers the
rebuttable presumption, likely without
intending to do so or being able to form
an understanding of the consequences.
Specifically, if the Departments were to
extend this exception to all children
after the two-year period, even if they
applied only as a derivative, the
Departments would risk incentivizing
families to seek to prolong their
proceedings to file their asylum
applications after the two-year period
expires, undermining the Departments’
interest in efficient adjudications. In
addition, any family that did so would
be able to avoid the applicability of the
presumption entirely, by virtue of the
rule’s family unity provision. The
Departments have decided not to
include such a broad exemption, in light
of the urgent need to disincentivize a
further surge in irregular migration.
3. Expansion of Applicability to
Adjacent Coastal Borders
As proposed in the NPRM, the rule
would apply to certain noncitizens who
enter the United States at the SWB—that
is, ‘‘along the entirety of the U.S. land
border with Mexico.’’ 88 FR at 11704
n.1. The Departments received
comments that applying the rule only to
those who enter the United States from
Mexico across the U.S.-Mexico land
border would inadvertently incentivize
noncitizens without documents
sufficient for lawful admission to
circumvent the land border by making
a hazardous attempt to reach the United
States by sea. In this final rule, the
Departments have decided to modify 8
CFR 208.33(a)(1) and 8 CFR
1208.33(a)(1) to provide that the rule’s
rebuttable presumption of ineligibility
for asylum applies to noncitizens who
enter the United States from Mexico at
‘‘adjacent coastal borders.’’ The term
‘‘adjacent coastal borders’’ refers to any
coastal border at or near the U.S.Mexico border. This modification
therefore means that the rule’s
rebuttable presumption of ineligibility
for asylum applies to noncitizens who
enter the United States at such a border
after traveling from Mexico and who
have circumvented the U.S.-Mexico
land border.
This modification mirrors the
geographic reach of the CDC’s Title 42
public health Order, which likewise
applied—as relevant here—to certain
covered noncitizens traveling from
Mexico who would otherwise be
introduced into a congregate setting ‘‘at
or near the U.S. land and adjacent
coastal borders.’’ See 86 FR at 42841.
Because the Title 42 public health Order
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did not define the phrase ‘‘adjacent
coastal borders,’’ its meaning was
developed during the public health
Order’s implementation. Specifically, as
implemented by CBP, the term
‘‘adjacent coastal borders’’ was
interpreted to apply to the same
population as the Amended CDC Order
issued in May 2020, which first
introduced the concept of ‘‘coastal’’
application. The Amended Order
applied to ‘‘persons traveling from
Canada or Mexico (regardless of their
country of origin) who would otherwise
be introduced into a congregate setting
in a land or coastal POE or Border Patrol
station at or near the U.S. border with
Canada or Mexico, subject to
exceptions.’’ 42 With regard to persons
traveling from Mexico, in line with the
interpretation above, CBP implemented
the Title 42 public health Order as
covering any coastal border adjacent to
the U.S.-Mexico border reached by an
individual traveling from Mexico and
landing within the United States having
circumvented the U.S.-Mexico land
border. Applying the same geographic
reach that has been applied by CBP for
the past three years to this rule will
avoid the risk that smugglers would
exploit what could be perceived as a
new ‘‘loophole’’ following the lifting of
the Title 42 public health Order to
persuade migrants to make a perilous
crossing to the United States from
Mexico by sea. In DHS’s experience,
that risk may well materialize, as
smugglers routinely prey on migrants
using perceived changes in U.S.
immigration law.43 Any such campaign
by smugglers to persuade more migrants
to circumvent the land border would
result in life-threatening risks for
migrants and DHS personnel, given the
elevated danger associated with
maritime crossings. As just one example
of how dangerous such attempts can be,
the Departments note that in March
2023, two suspected human smuggling
boats from Mexico capsized and eight
42 See Amendment and Extension of Order Under
Sections 362 and 365 of the Public Service Act;
Order Suspending Introduction of Certain Persons
from Countries Where a Communicable Disease
Exists, 85 FR 31503 (May 26, 2020); CBP, CBP
COVID–19 Response: Suspension of Entries and
Imports Concept of Operations 1–3 (May 20, 2020),
https://www.cbp.gov/document/foia-record/title-42.
43 See Tech Transparency Project, Inside the
World of Misinformation Targeting Migrants on
Social Media (July 26, 2022), https://
www.techtransparencyproject.org/articles/insideworld-misinformation-targeting-migrants-socialmedia (‘‘A review of social media groups and pages
identified by migrants showed . . . dubious offers
of coyote or legal services, false claims about
conditions along the route, misinformation about
points of entry at which officials waive the rules,
and baseless rumors about changes to immigration
law.’’).
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people died off the coast near San
Diego, California.44 This incident, as
well as the increases in maritime
migration over the past few years, as
discussed further in Section V of this
preamble, and commenters’ concerns
that the NPRM would have encouraged
migration by sea, as discussed further in
Section IV.B.8.i of this preamble, have
led the Departments to extend the
rebuttable presumption to the adjacent
coastal borders. Specifically, in the
interest of ensuring that this rule is not
used to encourage intending migrants to
undertake attempts that could end in
similar tragedies, the Departments
believe it is important that the text of 8
CFR 208.33(a)(1) and 8 CFR
1208.33(a)(1) make clear that the rule’s
presumption applies equally to
noncitizens who arrive from Mexico on
coasts adjacent to the southwest land
border.
4. Clarification of Meaning of ‘‘Final
Decision’’
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As was proposed in the NPRM, the
rule excepts from the rebuttable
presumption noncitizens who sought
asylum or other protection in another
country through which they traveled
and received a ‘‘final decision’’ denying
that application. See 8 CFR
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C).
The Departments have amended this
paragraph to further define what
constitutes a ‘‘final decision’’ for the
purposes of this exception. With this
change, the final rule specifies that a
‘‘final decision includes any denial by a
foreign government of the applicant’s
claim for asylum or other protection
through one or more of that
government’s pathways for that claim.’’
Id. The provision further states that a
‘‘final decision does not include a
determination by a foreign government
that the noncitizen abandoned the
claim.’’ Id. The Departments have made
this change in response to comments, as
discussed below, and to provide clarity
that a noncitizen must in fact pursue the
claim since a denial based on
abandonment would be insufficient.
44 See Karen Kucher et al., 8 Reported Dead After
2 Suspected Smuggling Boats Crash at Black’s
Beach in San Diego, L.A. Times, Mar. 12, 2023,
https://www.latimes.com/california/story/2023-0312/8-reported-dead-after-2-suspected-smugglingboats-crash-at-blacks-beach-in-san-diego; Wendy
Fry, An Endless Fight: As Border Infrastructure on
Land Improves, Smugglers Take to the Water, San
Diego Tribune, Nov. 6, 2019, https://
www.sandiegouniontribune.com/news/border-bajacalifornia/story/2019-11-06/an-endless-fight-asborder-infrastructure-on-land-improves-smugglerstake-to-the-water.
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5. Exception for Unaccompanied
Children
The NPRM provided that
‘‘[u]naccompanied alien children, as
defined in 6 U.S.C. 279(g)(2), are not
subject to paragraph (a)(1) of this
section.’’ See 88 FR at 11750–51
(proposed 8 CFR 208.33(b), 1208.33(b)).
The Departments have modified the
proposed language to explicitly state
that this exception applies to
noncitizens who were UCs at the time
of entry.45 8 CFR 208.33(a)(2)(i),
1208.33(a)(2)(i).
This added language makes clear that
the UC exception aligns with other
exceptions in this rule, which are based
upon conditions at the time of a
noncitizen’s presentation at a POE, see
8 CFR 208.33(a)(2), 1208.33(a)(2), and
more closely aligns the regulatory text
with the Departments’ stated purpose in
the NPRM that ‘‘unaccompanied
children would be categorically
excepted from the rebuttable
presumption,’’ 88 FR at 11724.
6. Expansion of Family Unity Provision
The NPRM provided that where a
principal applicant is eligible for
statutory withholding of removal or
CAT withholding and would be granted
asylum but for the presumption, and
where an accompanying spouse or child
does not independently qualify for
asylum or other protection from
removal, the presumption shall be
deemed rebutted as an exceptionally
compelling circumstance. See 88 FR at
11752 (proposed 8 CFR 1208.33(d)).
Commenters raised concerns that
excluding asylum applicants who travel
without their families may inadvertently
incentivize families to engage in
irregular migration together so as not to
risk that the principal applicant would
be prevented from later applying for
their family members to join them. This
could involve making a dangerous
journey with vulnerable family
members, such as children.
Accordingly, as discussed in Section
IV.E.7.ii of this preamble, in response to
these comments, the Departments have
expanded the provision to also cover
principal asylum applicants who have a
spouse or child who would be eligible
to follow to join that applicant as
described in section 208(b)(3)(A) of the
INA, 8 U.S.C. 1158(b)(3)(A). See 8 CFR
1208.33(c).
45 Numerous commenters recognized that the
NPRM proposed an exception for UCs, but did not
indicate a clear understanding of whether this
exception applied to those who were UCs at the
time of entry or at the time of adjudication.
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7. Other Changes
In addition to the changes this final
rule makes to the NPRM detailed above,
this final rule also makes other changes
to the regulatory text set out in the
NPRM.
First, the Departments have
reorganized and made other edits to
proposed 8 CFR 208.33(a) and
1208.33(a) to improve clarity for
noncitizens, counsel appearing before
the Departments, other members of the
public, and adjudicators. For example,
the Departments added the exception
for unaccompanied children to 8 CFR
208.33(a)(2)(i) and 1208.33(a)(2)(i)
rather than maintaining it as a
standalone paragraph at 8 CFR 208.33(b)
and 1208.33(b). Similarly, the
Departments added headings and
additional guideposts within 8 CFR
208.33(a) and 1208.33(a). Second, the
Departments revised 8 CFR 208.33 and
1208.33 to move instructions from 8
CFR 208.33 to 8 CFR 1208.33 regarding
IJ review that are better placed in EOIR’s
regulations. For example, the
Departments removed the sentence at
proposed 8 CFR 208.33(c)(2)(ii) stating
that noncitizens may apply for asylum,
withholding of removal, and protection
under the CAT in removal proceedings
and included that at new 8 CFR
1208.33(b)(4). These revisions do not
change the meaning of those provisions.
D. Rule Provisions
The rule contains the following key
provisions:
• The rule imposes a rebuttable
presumption of ineligibility for asylum
upon certain noncitizens who enter the
United States from Mexico at the
southwest land border or adjacent
coastal borders without documents
sufficient for lawful admission as
described in INA 212(a)(7), 8 U.S.C.
1182(a)(7). See 8 CFR 208.33(a)(1),
1208.33(a)(1). The rebuttable
presumption applies to only those
noncitizens whose entry was (1)
between May 11, 2023 and May 11,
2025; (2) subsequent to the end of
implementation of the Title 42 public
health Order; and (3) after the
noncitizen traveled through a country
other than the noncitizen’s country of
citizenship, nationality, or, if stateless,
last habitual residence, that is a party to
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’’) or 1967 Protocol Relating
to the Status of Refugees, Jan. 31, 1967,
19 U.S.T. 6223, 606 U.N.T.S. 268
(‘‘Refugee Protocol’’). See 8 CFR
208.33(a)(1)(i) through (iii),
1208.33(a)(1)(i) through (iii).
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• The rule excepts from the rebuttable
presumption any noncitizen who is an
unaccompanied child as defined in 6
U.S.C. 279(g)(2). See 8 CFR
208.33(a)(2)(i), 1208.33(a)(2)(i).
• The rule also excepts from the
rebuttable presumption a noncitizen if
the noncitizen or a member of the
noncitizen’s family with whom the
noncitizen is traveling (1) was provided
appropriate authorization to travel to
the United States to seek parole,
pursuant to a DHS-approved parole
process; (2) presented at a POE,
pursuant to a pre-scheduled time and
place, or presented at a POE without a
pre-scheduled time and place, if the
noncitizen demonstrates by a
preponderance of the evidence that it
was not possible to access or use the
DHS scheduling system due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle; or (3) sought asylum or other
protection in a country through which
the noncitizen traveled and received a
final decision denying that application.
See id. 208.33(a)(2)(ii), 1208.33(a)(2)(ii).
• The rule allows a noncitizen to
rebut the presumption by demonstrating
by a preponderance of the evidence that
exceptionally compelling circumstances
exist. A noncitizen necessarily rebuts
the presumption if they demonstrate by
a preponderance of the evidence that
the noncitizen, or a member of the
noncitizen’s family with whom the
noncitizen is traveling, (1) faced an
acute medical emergency; (2) faced an
imminent and extreme threat to life or
safety, such as an imminent threat of
rape, kidnapping, torture, or murder; or
(3) satisfied the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11(a). See id.
208.33(a)(3), 1208.33(a)(3). In addition,
as a measure to ensure family unity, the
rule provides that in removal
proceedings pursuant to section 240 of
the INA, 8 U.S.C. 1229a (‘‘section 240
removal proceedings’’), where a
principal asylum applicant is eligible
for statutory withholding of removal or
CAT withholding and would be granted
asylum but for the rebuttable
presumption, and where an
accompanying spouse or child does not
independently qualify for asylum or
other protection from removal or where
the principal asylum applicant has a
spouse or child who would be eligible
to follow to join them if they are granted
asylum, as described in section
208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), the presumption is
deemed rebutted as an exceptionally
compelling circumstance. See 8 CFR
1208.33(c).
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• The rule establishes procedures,
applicable in the expedited removal
context, under which AOs will
determine whether the noncitizen has
made a sufficient showing that the
rebuttable presumption does not apply
or that they meet an exception to or can
rebut the presumption. See id.
208.33(b). If the AO determines that the
rebuttable presumption does not apply
or the noncitizen falls within an
exception or has rebutted the
presumption, the general procedures in
8 CFR 208.30 apply. See id.
208.33(b)(1)(ii). On the other hand, if
the AO determines that the rebuttable
presumption does apply and no
exception or rebuttal ground applies,
the AO will consider whether the
noncitizen has established a reasonable
possibility of persecution or torture with
respect to the identified country or
countries of removal. See id.
208.33(b)(1)(i), 208.33(b)(2).
• The rule provides that an AO’s
adverse determination as to the
applicability of the rebuttable
presumption, whether an exception
applies or the presumption has been
rebutted, and whether the noncitizen
has established a reasonable possibility
of persecution or torture, are all subject
to de novo IJ review. See id.
208.33(b)(2)(iii) through (v), 1208.33(b).
The noncitizen must request such
review by so indicating on a Record of
Negative Fear Finding and Request for
Review by Immigration Judge. See id.
208.33(b)(2)(iv) and (v), 1208.33(b)(1).
• The rule establishes procedures for
such IJ review. Specifically, if the IJ
determines that the noncitizen has made
a sufficient showing that the rebuttable
presumption does not apply to them or
that they meet an exception to or can
rebut the presumption, and that the
noncitizen has established a significant
possibility of eligibility for asylum,
statutory withholding of removal, or
CAT withholding, the IJ issues a
positive credible fear finding and the
case proceeds under existing procedures
at 8 CFR 1208.30(g)(2)(iv)(B). See id.
208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If
the IJ determines that the rebuttable
presumption applies and has not been
rebutted and no exception is applicable,
but the noncitizen has established a
reasonable possibility of persecution or
torture with respect to the identified
country or countries of removal, the IJ
will issue a positive credible fear
finding and DHS will issue a Form I–
862, Notice to Appear, to commence
section 240 removal proceedings. See
id. 208.33(b)(2)(v)(B), 1208.33(b)(2)(ii).
And finally, if the IJ issues a negative
credible fear determination, the case is
returned to DHS for removal of the
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noncitizen. See id. 208.33(b)(2)(v)(C),
1208.33(b)(2)(ii). In such a
circumstance, the noncitizen may not
appeal the IJ’s decision or request that
U.S. Citizenship and Immigration
Services (‘‘USCIS’’) reconsider the AO’s
negative determination, although USCIS
may, in its sole discretion, reconsider a
negative determination. See id.
208.33(b)(2)(v)(C).
• The rule provides that a noncitizen
who is found to be subject to the lawful
pathways condition during expedited
removal proceedings may, if placed in
section 240 removal proceedings, apply
for asylum, statutory withholding of
removal, or CAT protection, or any
other form of relief or protection for
which the noncitizen is eligible during
those removal proceedings. See id.
1208.33(b)(4).
• The rule declines to adopt the
Proclamation Bar IFR on a permanent
basis and removes the language
effectuating the Proclamation Bar.
Specifically, the rule removes and
reserves paragraphs 8 CFR 208.13(c)(3)
and 1208.13(c)(3), which previously
included the requirements for the bar’s
applicability.
• The rule removes regulatory
provisions implementing the TCT Bar
Final Rule. The rule removes and
reserves paragraphs 8 CFR 208.13(c)(4)
and 1208.13(c)(4), which previously
included the requirements for the TCT
Bar Final Rule’s applicability. The rule
also removes and reserves paragraphs 8
CFR 208.13(c)(5) and 1208.13(c)(5),
which provided that determinations
made with regard to whether an
applicant met one of the exceptions to
the TCT Bar Final Rule would not bind
Federal departments or agencies with
respect to certain later adjudications.
Given the removal of the TCT Bar Final
Rule and its implementing provisions,
these provisions are no longer
necessary.
• The rule also amends the CFR to
remove provisions implementing the
Proclamation Bar IFR and TCT Bar Final
Rule during the credible fear process.
The rule removes 8 CFR 208.30(e)(5)(ii)
and (iii), which implemented the
Proclamation Bar IFR and TCT Bar Final
Rule, respectively. The rule also
removes reference to (ii) though (iv)
from what was previously (i) and
redesignates (i) as (e)(5). Similarly, the
rule also amends provisions relating to
IJ standard of review for Proclamation
Bar and TCT Bar determinations by
removing 8 CFR 1003.42(d)(2) and (3),
and redesignates 8 CFR 1003.42(d)(1) as
paragraph (d). Finally, the rule removes
and reserves 8 CFR 1208.30(g)(1), which
provided instructions to IJs regarding
the application of the Proclamation Bar
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and the TCT Bar during credible fear
reviews.
• The rule contains a special
provision providing that the rebuttable
presumption does not apply to an
asylum application filed after May 11,
2025, if the noncitizen was under the
age of 18 at the time of entry, and the
noncitizen is applying for asylum as a
principal applicant. See id. 208.33(c)(2),
1208.33(d)(2).
• The rule contains a severability
clause reflecting the Departments’
intention that the rule’s provisions be
severable from each other in the event
that any aspect of the new provisions
governing the rebuttable presumption is
held to be invalid or unenforceable by
its terms, or as applied to any person or
circumstance. See id. 208.33(d),
1208.33(e).
III. Legal Authority
The Secretary and the Attorney
General jointly issue this rule pursuant
to their shared and respective
authorities concerning asylum, statutory
withholding of removal, and CAT
determinations. The Homeland Security
Act of 2002 (‘‘HSA’’), Public Law 107–
296, 116 Stat. 2135, as amended, created
DHS and transferred to it many
functions related to the administration
and enforcement of Federal immigration
law while maintaining many functions
and authorities with the Attorney
General, including concurrently with
the Secretary.
The INA, as amended by the HSA,
charges the Secretary ‘‘with the
administration and enforcement of [the
INA] and all other laws relating to the
immigration and naturalization of
aliens,’’ except insofar as those laws
assign functions to other agencies. INA
103(a)(1), 8 U.S.C. 1103(a)(1). The INA
also grants the Secretary the authority to
establish regulations and take other
actions ‘‘necessary for carrying out’’ the
Secretary’s authority under the
immigration laws, INA 103(a)(1) and (3),
8 U.S.C. 1103(a)(1) and (3); see also 6
U.S.C. 202.
The HSA charges the Attorney
General with ‘‘such authorities and
functions under [the INA] and all other
laws relating to the immigration and
naturalization of aliens as were
[previously] exercised by the Executive
Office for Immigration Review, or by the
Attorney General with respect to
[EOIR].’’ INA 103(g)(1), 8 U.S.C.
1103(g)(1); see also 6 U.S.C. 521. 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,
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and perform such other acts as the
Attorney General determines to be
necessary for carrying out’’ his
authorities under the INA. INA
103(g)(2), 8 U.S.C. 1103(g)(2).
Under the HSA, the Attorney General
retains authority over the conduct of
section 240 removal proceedings. These
adjudications are conducted by IJs
within DOJ’s EOIR. See 6 U.S.C. 521;
INA 103(g), 8 U.S.C. 1103(g). With
limited exceptions, IJs within DOJ
adjudicate asylum, statutory
withholding of removal, and CAT
protection applications filed by
noncitizens during the pendency of
section 240 removal proceedings,
including asylum applications referred
by USCIS to the immigration court. INA
101(b)(4), 8 U.S.C. 1101(b)(4); INA
240(a)(1), 8 U.S.C. 1229a(a)(1); INA
241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR
1208.2(b), 1240.1(a); see also Dhakal v.
Sessions, 895 F.3d 532, 536–37 (7th Cir.
2018) (describing affirmative and
defensive asylum processes). The Board
of Immigration Appeals (‘‘BIA’’), also
within DOJ, in turn hears appeals from
IJ decisions. See 8 CFR 1003.1(a)(1) and
(b)(3); see also Garland v. Ming Dai, 141
S. Ct. 1669, 1677–78 (2021) (describing
appeals from IJ to BIA). In addition, the
INA provides that the ‘‘determination
and ruling by the Attorney General with
respect to all questions of law shall be
controlling.’’ INA 103(a)(1), 8 U.S.C.
1103(a)(1).
In addition to the separate authorities
discussed above, the Attorney General
and the Secretary share some
authorities. Section 208 of the INA, 8
U.S.C. 1158, authorizes the ‘‘Secretary
of Homeland Security or the Attorney
General’’ to ‘‘grant asylum’’ to a
noncitizen ‘‘who has applied for asylum
in accordance with the requirements
and procedures established by’’ the
Secretary or the Attorney General under
section 208 if the Secretary or the
Attorney General determines that the
noncitizen is a refugee. INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).
Section 208 thereby authorizes the
Secretary and the Attorney General to
‘‘establish[ ]’’ ‘‘requirements and
procedures’’ to govern asylum
applications. Id. The statute further
authorizes them to ‘‘establish,’’ ‘‘by
regulation,’’ ‘‘additional limitations and
conditions, consistent with’’ section
208, under which a noncitizen ‘‘shall be
ineligible for asylum.’’ INA 208(b)(2)(C),
8 U.S.C. 1158(b)(2)(C); see also INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B)
(authorizing the Secretary and the
Attorney General to ‘‘provide by
regulation for any other conditions or
limitations on the consideration of an
application for asylum not inconsistent
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31323
with [the INA]’’).46 The INA also
provides the Secretary and Attorney
General authority to publish regulatory
amendments governing their respective
roles regarding apprehension,
inspection and admission, detention
and removal, withholding of removal,
deferral of removal, and release of
noncitizens encountered in the interior
of the United States or at or between
POEs. See INA 235, 236, 241, 8 U.S.C.
1225, 1226, 1231.
The HSA granted DHS the authority
to adjudicate asylum applications and to
conduct credible fear interviews, make
credible fear determinations in the
context of expedited removal, and to
establish procedures for further
consideration of asylum applications
after an individual is found to have a
credible fear. INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also 6 U.S.C. 271(b)
(providing for the transfer of
adjudication of asylum and refugee
applications from the Commissioner of
Immigration and Naturalization to the
Director of the Bureau of Citizenship
and Immigration Services, now USCIS).
Within DHS, the Secretary has delegated
some of those authorities to the Director
of USCIS, and USCIS AOs conduct
credible fear interviews, make credible
fear determinations, and determine
whether a noncitizen’s asylum
application should be granted. See DHS,
Delegation to the Bureau of Citizenship
and Immigration Services, No. 0150.1
(June 5, 2003); 8 CFR 208.2(a), 208.9,
208.30.
The United States is a party to the
Refugee Protocol, which incorporates
Articles 2 through 34 of the Refugee
Convention. Article 33 of the Refugee
Convention generally prohibits parties
to the Convention from expelling or
returning (‘‘refouler’’) ‘‘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.’’ 120%
Congress codified these obligations in
the Refugee Act of 1980, creating the
precursor to what is now known as
statutory withholding of removal.47 The
Supreme Court has long recognized that
the United States implements its nonrefoulement obligations under Article
33 of the Refugee Convention (via the
46 Under the HSA, the references to the ‘‘Attorney
General’’ in the INA also encompass the Secretary,
either solely or additionally, with respect to
statutory authorities vested in the Secretary in the
HSA or subsequent legislation, including in relation
to immigration proceedings before DHS. 6 U.S.C.
557.
47 Public Law 96–212, 94 Stat. 102 (‘‘Refugee
Act’’).
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Refugee Protocol) through the statutory
withholding of removal provision in
section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), which provides that a
noncitizen may not be removed to a
country where their life or freedom
would be threatened on account of one
of the protected grounds listed in
Article 33 of the Refugee Convention.48
See INA 241(b)(3), 8 U.S.C. 1231(b)(3);
see also 8 CFR 208.16, 1208.16. The INA
also authorizes the Secretary and the
Attorney General to implement statutory
withholding of removal under section
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3).
See INA 103(a)(1) and (3), (g)(1) and (2),
8 U.S.C. 1103(a)(1) and (3), (g)(1) and
(2).
The Departments also have authority
to implement Article 3 of the United
Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100–20, 1465
U.N.T.S. 85 (entered into force for
United States Nov. 20, 1994). The
Foreign Affairs Reform and
Restructuring Act of 1998 (‘‘FARRA’’)
provides the 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, 2681–
822 (8 U.S.C. 1231 note). DHS and DOJ
have implemented the United States’
obligations under Article 3 of the CAT
in the CFR, consistent with FARRA.
See, e.g., 8 CFR 208.16(c) through
208.18, 1208.16(c) through 1208.18;
Regulations Concerning the Convention
Against Torture, 64 FR 8478 (Feb. 19,
1999), as corrected by 64 FR 13881
(Mar. 23, 1999).
This rule does not change the
eligibility requirements for statutory
withholding of removal or CAT
protection. As further discussed below,
the rule applies a ‘‘reasonable
possibility’’ standard in screenings for
statutory withholding of removal and
CAT protection in cases where the
48 See INS v. Aguirre-Aguirre, 526 U.S. 415, 426–
27 (1999); see also INS v. Cardoza-Fonseca, 480
U.S. 421, 440–41 (1987) (distinguishing between
Article 33’s non-refoulement prohibition, which
aligns with what was then called withholding of
deportation and Article 34’s call to ‘‘facilitate the
assimilation and naturalization of refugees,’’ which
the Court found aligned with the discretionary
provisions in section 208 of the INA, 8 U.S.C. 1158).
The Refugee Convention and Protocol are not selfexecuting. E.g., Al-Fara v. Gonzales, 404 F.3d 733,
743 (3d Cir. 2005) (‘‘The 1967 Protocol is not selfexecuting, nor does it confer any rights beyond
those granted by implementing domestic
legislation.’’).
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presumption of asylum ineligibility is
applied and not rebutted. While the
application of this standard is a change
from the prior practice in the expedited
removal context, it is the same standard
used in protection screenings in other
contexts and is consistent with both
domestic and international law. See 8
CFR 208.31.
IV. Public Comments and Responses
The Departments received 51,952
comments on the proposed rule, the
majority of which expressed opposition
to the proposal. A range of
governmental and non-governmental
entities, public officials, and private
persons submitted comments. The
Departments summarize and respond to
the public comments below.
A. General Support
1. General Support
Comment: Many commenters stated
their support for the rule overall.
Commenters emphasized the
importance of border security, stating
that the Government must do what is
necessary to both manage workloads at
the border and stop migrants from
entering the United States without
permission.
Response: Promulgation of this rule is
needed because, once the Title 42
public health Order is lifted, the number
of migrants traveling to the United
States without authorization is expected
to increase significantly, to a level that
risks undermining the Departments’
ability to safely, effectively, and
humanely enforce and administer U.S.
immigration law, including the asylum
system. Such a surge would also place
additional pressure on States, local
communities, and non-governmental
organization (‘‘NGO’’) partners both
along the border and in the interior of
the United States.
To address these issues, the rule
imposes a rebuttable presumption of
asylum ineligibility for certain migrants
who enter the United States outside of
safe, orderly, and lawful pathways and
without first seeking protection in a
third country they have traveled
through en route to the SWB, during a
designated period of time. The rule (1)
incentivizes the use of multiple existing
lawful, safe, and orderly means for
noncitizens to enter the United States to
seek asylum and other forms of
protection; (2) continues to provide core
protections for noncitizens who would
be threatened with persecution or
torture in other countries; and (3) builds
upon ongoing efforts to share the
responsibility of providing asylum and
other forms of protection to deserving
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migrants with the United States’
regional partners.
The successful implementation of the
CHNV parole processes has
demonstrated that an increase in lawful
pathways, when paired with
consequences for migrants who do not
avail themselves of such pathways, can
incentivize the use of such pathways
and undermine transnational criminal
organizations, such as smuggling
operations. The rule, which is fully
consistent with domestic and
international legal obligations, provides
the necessary consequences to maintain
this incentive under Title 8 authorities.
In short, the Departments expect the
rule, coupled with an expansion of
lawful, safe, and orderly pathways, to
reduce the number of noncitizens
seeking to cross the SWB without
authorization to enter the United States.
The benefits of reducing the number
of encounters include protecting against
overcrowding in border facilities;
allowing for the continued effective,
humane, and efficient processing of
noncitizens at and between ports of
entry; and helping to reduce reliance on
dangerous human smuggling networks
that exploit migrants for financial gain.
Even where the rule applies, the
presumption against asylum eligibility
may be rebutted in certain
circumstances, such as where, at the
time of the noncitizen’s entry into the
United States, they or a family member
with whom they are traveling are
experiencing an acute medical
emergency or an extreme and imminent
threat to life or safety, or are a victim of
a severe form of trafficking. Moreover,
DHS will still screen migrants who
cannot overcome the rebuttable
presumption to determine if the migrant
has established a reasonable possibility
of persecution for the purposes of
statutory withholding of removal or a
reasonable possibility of torture for the
purposes of protection under the
regulations implementing the CAT. See
8 CFR 208.33(b)(2)(i). Should a migrant
receive a negative credible fear
determination, they can also seek
review of the determination by an IJ. See
8 CFR 208.33(b)(2)(iii) through (v).
Those who are found to have credible
fear due to a reasonable possibility of
persecution or torture will then have the
opportunity for further consideration of
their protection claims via a section 240
removal proceeding. See 8 CFR
208.33(b)(2)(ii).
2. Need, Effectiveness, and Rationale for
the Rule
Comment: Commenters described the
rule as a common-sense approach to
managing migration at the border and
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discouraging illegal migration, while
others stated that the rule would
contribute to the ‘‘rule of law’’ at the
border. Other commenters noted that a
change such as that made by this rule
is necessary, as it is simply impossible
to admit all migrants who want to enter
the United States. Some commenters
stated that the rule is a reasonable
solution until Congress can take
legislative action to address the issue.
Other commenters supported the rule’s
encouragement for migrants to first seek
protection in third countries they pass
through before requesting asylum at the
SWB and asserted that such a
requirement is standard in international
law; commenters further stated that the
rule would discourage ‘‘asylum
shoppers.’’ Commenters stated that
allowing migrants to cross multiple
countries en route to the United States
before claiming asylum defeats the true
purpose of asylum. Some commenters
stated that migrants know that claiming
asylum allows them entry into the
United States, and thus take advantage
of the process.
Response: As noted above, the
Departments have designed this rule in
response to the number of migrants
expected to travel without authorization
to the United States after the lifting of
the Title 42 public health Order, absent
a policy change such as this one. In that
case, the circumstances likely to occur
include the following: an additional
number of migrants anticipated to arrive
at the border; the severe strain on
resources that this influx of migrants
would cause DHS; and a substantial
resulting impact on U.S. Government
operations, as well as local
communities. DHS’s successful Uniting
for Ukraine (‘‘U4U’’) and CHNV parole
processes—under which DHS coupled a
mechanism for noncitizens from these
countries to seek entry to the United
States in a lawful, safe, and orderly
manner with the imposition of new
consequences for those who cross the
SWB without authorization—have
demonstrated that an increase in the
availability of lawful pathways paired
with consequences for migrants who do
not avail themselves of such pathways
can incentivize the use of lawful
pathways and undermine transnational
criminal organizations, such as
smuggling operations. The Departments
expect similar benefits from this rule,
especially a reduced number of
encounters at the border, which will
help to protect against overcrowding in
border facilities; allow for the continued
effective, humane, and efficient
processing of noncitizens at and
between ports of entry; and reduce
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reliance on dangerous human smuggling
networks that exploit migrants for
financial gain.
The Departments designed the rule to
strike a balance that maintains safe and
humane processing of migrants while
also including safeguards to protect
especially vulnerable individuals. The
rule provides exceptions to the
rebuttable presumption and allows
migrants to rebut the presumption in
exceptionally compelling
circumstances. These exceptions and
opportunities for rebuttal are meant to
ensure that migrants who are
particularly vulnerable, who are in
imminent danger, or who could not
access the lawful pathways provided are
not made ineligible for asylum by
operation of the rebuttable presumption.
Those who are not excepted from and
are unable to rebut the presumption of
ineligibility may still pursue statutory
withholding of removal and protection
under the CAT. In addition, to further
aid migrants, the Departments plan to
continue to work with foreign partners
to expand lawful pathways for
migration, as well as expand the
Departments’ mechanisms for lawful
processing. Thus, the rule will
disincentivize irregular migration and
instead incentivize migrants—including
those intending to seek asylum—to use
lawful, safe, and orderly pathways to
enter the United States, or seek asylum
or other protection in another country
through which they travel.
3. Mitigate Irregular Migration and the
Associated Impacts
Comment: Many commenters
expressed support for the rule for a
variety of reasons. Commenters
supported the change in policy, noting
that this rule would result in a more
efficient use of government resources at
the border. Commenters also supported
the proposed rule’s use of a formal
process for asylum applicants. Some
commenters stated their support for the
rule because the journey to the SWB is
dangerous due to harsh conditions and
smugglers, and this rule would weaken
smugglers and transnational criminal
enterprises and reduce their
exploitation of migrants. Commenters
also stated that incentivizing migrants to
present themselves at POEs would
reduce their risk of exploitation by
human traffickers or other harm when
attempting to cross between POEs.
Commenters commended the
Departments for prioritizing safe and
orderly processing methods for those
seeking refuge. Some commenters
indicated that border security is critical
and expressed concerns that malicious
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31325
actors could enter the United States
more easily during a surge in migration.
Response: The Departments recognize
these commenters’ support for the rule
and agree that maintaining border
security is critical. The Departments
agree that irregular migration is
dangerous and can lead to increased
strain on SWB operations and resources,
increased illegal smuggling activity, and
increased pressure on communities
along the SWB. The United States has
taken several measures to meet the
influx of migrants crossing the SWB and
is taking new steps to address increased
flows throughout the Western
Hemisphere.49
However, the anticipated increase in
the number of migrants following the
lifting of the Title 42 public health
Order threatens to exceed the
Departments’ capacity to safely and
humanely process migrants. By
coupling the rule with additional lawful
pathways and allowing migrants to
schedule their arrival at a SWB POE,
currently via the CBP One app, the rule
will reduce the number of noncitizens
seeking to cross the SWB without
authorization to enter the United States.
This reduction will protect against
overcrowding in border facilities; allow
for the continued effective, humane, and
efficient processing of noncitizens at
and between ports of entry; and help to
reduce reliance on dangerous human
smuggling networks that exploit
migrants for financial gain. The
Departments expect that this rule will
result in decreased strain on border
states, local communities, and NGOs
and, accordingly, allow them to better
absorb releases from CBP border
facilities and provide support to the
migrant community. Ultimately, this
rule will disincentivize irregular
migration and instead incentivize
migrants to use safe, orderly, and lawful
pathways to the United States or to seek
protection in third countries.
4. Positive Impacts on Operations and
Resources
Comment: Commenters supported the
rule, stating that allowing migrants to
remain in the United States at the
government’s expense while waiting for
their asylum claim to be adjudicated is
a waste of government resources.
Commenters said that the rule—
specifically when coupled with the
expanded use of the CBP One app and
the ability for migrants to schedule
appointments—would allow for more
efficient processing at the SWB.
Commenters stated that, by decreasing
49 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
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the number of migrants seeking asylum,
the Departments would adjudicate
asylum claims much faster and decrease
the amount of time migrants must wait
in the United States before receiving a
final decision in their case.
Response: The Departments recognize
these commenters’ support and agree
that the rule will have benefits for both
those granted asylum and the U.S.
immigration system. The rule
encourages noncitizens to use lawful,
safe, and orderly pathways to enter the
United States, or seek asylum or other
protection in another country through
which they travel. The rule is designed
to channel the high numbers of migrants
expected to seek protection in the
United States following the termination
of the Title 42 public health Order into
lawful, safe, and orderly pathways and
ensure they can be processed in an
effective, humane, and efficient manner.
In addition, the Departments anticipate
that the use of the CBP One app—the
current scheduling mechanism that
provides migrants with a means to
schedule a time and place to present
themselves at a SWB POE—will allow
CBP to streamline the processing of
noncitizens at POEs on the SWB and
process significantly more individuals
in a safe and orderly manner.
Adjudication on the merits of an
asylum claim for those who establish
credible fear and are placed into
removal proceedings can be a long
process. Thirty-eight percent of all
noncitizens who entered along the SWB,
received a positive credible fear
determination, and were placed into
proceedings before EOIR between FY
2014 and FY 2019 remained in EOIR
proceedings as of December 31, 2022.50
Further, almost half (47 percent) of
those in EOIR cases who received
positive credible fear determinations
resulting from FY 2019 encounters
(referrals to EOIR) remained in
proceedings as of December 31, 2022.51
Excluding in absentia orders, the mean
completion time for EOIR cases in FY
2022 was 3.7 years.52 Thus, those who
have a valid claim to asylum in the
United States often wait years for a final
relief or protection decision; likewise,
noncitizens who will ultimately be
found ineligible for asylum or other
protection—which occurs in the
majority of cases—often have spent
many years in the United States prior to
being ordered removed.
50 See OIS analysis of OIS Enforcement Lifecycle
data based on data through December 31, 2022.
51 Id.
52 See OIS analysis of DOJ EOIR data based on
data through March 31, 2023.
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This lengthy adjudications process
means that migrants who can establish
credible fear can expect to remain in the
United States for an extended period
regardless of whether they will
ultimately obtain asylum status at an
EOIR hearing on the merits. Allowing a
migrant to remain in the United States
for years before ultimately determining
the migrant is ineligible for asylum or
other protection is inefficient, risks
creating a pull factor for other intending
migrants, and runs counter to principles
of judicial fairness, including the swift
adjudication of claims. As discussed in
the NPRM, see 88 FR at 11737, and
below at Section IV.B.2 of this
preamble, the Departments have
determined that this rule will lead to
increased efficiencies in the asylum
adjudications process so that claims can
be adjudicated without a lengthy delay.
5. Other Support
Comment: Commenters agreed that
the Departments have the legal authority
to restrict asylum eligibility based on a
migrant’s failure to seek protection in a
third country that they have traveled
through on route to the SWB and that
such a policy is consistent with both
domestic and international law.
Commenters stated that the rule was
necessary because most migrants do not
have legitimate asylum claims, noting
low grant rates by EOIR, and are instead
seeking economic opportunities in the
United States. Other commenters
expressed general support for the rule
and stated a belief that asylum seekers
do not have legitimate claims because
they may be coached by NGOs or other
organizations.At least one commenter
stated that if a migrant traveled through
a third country with a legitimate asylum
process on their way to the United
States, DHS should assume that the
migrant is not really in fear for their life;
otherwise, the U.S. asylum system
would be used for economic migration,
the demand for which should be
addressed by other means. Another
commenter said that the proposed rule
encourages asylum-seekers to use the
‘‘front door’’ by presenting at POEs and
fulfills domestic and international legal
obligations by removing eligibility for
asylum for those who fail to do so while
maintaining access to statutory
withholding of removal and protection
under the CAT. The commenter noted
that countries are within their rights to
limit access to asylum. The commenter
also stated that many individuals are
barred from asylum eligibility for
reasons such as fraud, criminal
convictions, and illegal reentry, and that
the proposed rule would add those who
do not avail themselves of asylum in the
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nearest country and do not apply at a
POE to this list, which should limit
further unlawful entries and use of
government resources. Some
commenters supported the rule and
suggested that the Government
disseminate information about the rule
in other countries to ensure migrants
planning to seek asylum are aware of
both the asylum process and the
consequences of non-compliance.
Response: As discussed further below
in Section IV.B.D, the Departments
agree that the rule is consistent with
U.S. obligations under both domestic
and international law, including the
INA; the Refugee Convention; the
Refugee Protocol, which incorporates
Articles 2 through 34 of the Refugee
Convention; and the CAT. While the
Departments appreciate these
commenters’ support for the rule, the
Departments emphasize that this rule is
necessary to prevent the expected
increase in the number of migrants who
would otherwise seek to travel without
authorization to the United States after
the termination of the Title 42 public
health Order, which would risk
undermining the Departments’ ability to
safely, effectively, and humanely
enforce and administer U.S.
immigration law, including the asylum
system. In other words, the Departments
do not rely on the alternative goals or
bases of support for the rule expressed
in the comments summarized above.
The Departments appreciate the
importance of disseminating
information about the rule to the public,
including intending migrants, and are
planning a robust communication effort
in conjunction with and immediately
following the publication of this rule.
B. General Opposition
1. General Opposition
Comment: The Departments received
many comments expressing general
opposition to the rule. Some
commenters expressed opposition to the
rule and encouraged the Administration
to withdraw it, without further
explanation. Commenters also stated,
without explanation, that the rule
would allow future administrations the
ability to decide which nationalities are
afforded protections, instead of making
protections available for everyone in
need. Other commenters stated the rule
creates barriers, not pathways, for
asylum seekers.
Response: The Departments take
seriously the concerns expressed by
commenters who generally oppose the
rule. Because some of these comments
failed to articulate specific reasoning
underlying the general opposition, the
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Departments are unable to provide a
more detailed response to those
comments. In general, the Departments
emphasize that this rule is necessary to
ensure that, after the lifting of the Title
42 public health Order, protection
claims made by noncitizens
encountered at the SWB can be
processed in a manner that is effective,
humane, and efficient. The rule is also
designed to reduce overcrowding at
DHS facilities and reduce migrants’
reliance on exploitive smuggling
networks. The Departments intend this
rule to work in conjunction with other
initiatives that expand lawful pathways
to enter the United States, and thereby
incentivize safe, orderly, lawful
migration over dangerous, irregular
forms of migration. Although some
lawful pathways, which exist separate
from this rule, are available only to
particular nationalities, this rule does
not deny protection on the basis of
nationality. A noncitizen of any
nationality may avoid the rebuttable
presumption by, for instance, presenting
at a POE pursuant to a pre-scheduled
time and place. As discussed in the
NPRM and further below, the rule’s
presumption against asylum eligibility
only applies to those who enter during
a 2-year period, is rebuttable, and
contains multiple exceptions to prevent
undue harm to noncitizens with
meritorious protection claims.
2. Need, Effectiveness, and Rationale for
the Rule
Comment: Commenters asserted that
the Departments’ concerns about a
future surge of migration after the end
of the Title 42 public health Order are
speculative and unsupported. One
commenter said that the surge numbers
were unreliable at best, that entries
between POEs were higher two decades
ago, and that the surge could in part be
the result of attempted suppression of
normal migration. Some commenters
questioned the Departments’ planning
projection of the number of border
encounters it expects when the Title 42
public health Order is lifted as a valid
justification of the NPRM. Another
commenter stated that the numbers of
unauthorized unique individuals
detained at the border are far from an
all-time high or a record, and that
attempts to enter the country undetected
have plummeted. One commenter stated
that the Title 42 public health Order
increased the percentage of individuals
attempting repeated crossings at the
border, which has artificially inflated
CBP’s border apprehension statistics,
and thereby overstated the scale of the
problem at the border. Some
commenters stated that the public is
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unable to properly evaluate the
Departments’ data used to justify the
rule because the ‘‘DHS SWB Encounter
Planning Model generated January 6,
2023’’ cited in the NPRM, e.g., 88 FR at
11705 n.11, does not have a link to the
model and it does not provide
information on methodology, data
sources, and alternative figures.
Response: The Departments strongly
disagree that the concerns stated in the
NPRM regarding an ongoing and
potential further surge of migration are
speculative or unsupported. As noted in
the NPRM, for the 30 days ending
December 24, 2022, total daily
encounters along the SWB consistently
fluctuated between approximately 7,100
and 9,700 per day, averaging
approximately 8,500 per day, with
encounters exceeding 9,000 per day on
12 different occasions during this 30day stretch.53 88 FR at 11704–05. While
commenters are correct that the Title 42
public health Order has increased the
percentage of repeat crossing attempts
relative to the 2010s, since 2022 over 97
percent of extra-regional migrants (i.e.,
migrants not from Mexico or Northern
Central America 54)—the people
representing the greatest processing
challenge—are unique encounters.55
Encounter totals reached an all-time
high in FY 2022, and they remain at
historically high levels even as
encounters of CHNV nationals have
fallen in recent months.56
OIS leads an interagency working
group that produces a roughly bi-weekly
SWB encounter projection used for
operational planning, policy
development, and short-term budget
planning. The model used to produce
encounter projections every two to four
weeks is a mixed-method approach that
combines a statistical predictive model
53 OIS
analysis of OIS Persist Dataset based on
data through March 31, 2023.
54 Northern Central America refers to El Salvador,
Guatemala, and Honduras.
55 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
56 Concrete data on unique versus repeat
encounters are only available since 2010. During
that period, for the years prior to the
implementation of Title 42 expulsions, the
percentage of encounters that were unique
increased each year from 2010–2019. OIS analysis
of OIS Persist Dataset based on data through March
31, 2023. While specific data on numbers of unique
encounters are not available prior to 2010, it is
widely accepted that the years before the 2010, and
particularly the years before 2000, were
characterized by much larger numbers of repeat
encounters, as most encounters were of Mexican
nationals who were permitted to return to Mexico
without being subject to formal removal
proceedings or other enforcement consequences.
See also DHS, FY 2021 Border Security Metrics
Report (Apr. 27, 2022), https://www.dhs.gov/
immigration-statistics/border-security/bordersecurity-metrics-report.
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with subject matter expertise intended
to provide informed estimates of future
migration flow and trends. The mixed
methods approach blends multiple
types of models through an ensemble
approach of model averaging.57 The
model includes encounter data
disaggregated by country and
demographic characteristics going back
to FY 2013, data on apprehensions of
third country nationals by Mexican
enforcement agencies, and economic
data. DHS uses the encounter projection
to generate a range of planning models,
including ‘‘moderately-high’’ planning
models that are based on the 68 percent
upper bound of the forecast interval and
‘‘high’’ planning models based on the 95
percent upper bound of the forecast
interval.
Encounter projections are, of course,
subject to some degree of uncertainty.
International migration is an
exceedingly complex process shaped by
family and community networks, labor
markets, environmental and securityrelated push factors, and rapidly
evolving criminal smuggling networks,
among other factors. Recent
unprecedented changes in migration
flows have further complicated the task
of predicting future migration flows
with precision. As recently as the 2000s,
unauthorized migration to the SWB
consisted almost entirely of single
adults from Mexico.58 Families and UCs
accounted for increasing shares of
unauthorized migrants in the 2010s, as
did migrants from Northern Central
America; and ‘‘extra-regional’’ migrants
have driven increased flows in the
2020s, accounting for an absolute
majority of encounters in FY 2023
57 Blending multiple models and basing
predictions on prior data has been understood to
improve modeling accuracy. See, e.g., Spyros
Makridakis et al., Forecasting in Social Settings:
The State of the Art, 36 Int’l J. Forecasting 15, 16
(2020) (noting that it has ‘‘stood the test of time
[that] combining forecasts improves [forecast]
accuracy’’); The Forecasting Collaborative, Insights
into the Accuracy of Social Scientists’ Forecasts of
Societal Change, Nat. Hum. Behaviour, Feb. 9,
2023, https://doi.org/10.1038/s41562-022-01517-1
(comparing forecasting methods and suggesting that
forecasting teams may materially improve accuracy
by, for instance, basing predictions on prior data
and including scientific experts and
multidisciplinary team members).
58 According to historic OIS Yearbooks of
Immigration Statistics, Mexican nationals
accounted for 97 percent of all administrative
arrests by the legacy Immigration and Nationality
Service from 1981–1999. According to OIS
Production data, Mexican nationals also accounted
for 97 percent of SWB encounters from 2000–2003.
Mexico’s share of SWB border encounters fell to 94
percent in 2004, an all-time low, then averaged 91
percent for the remainder of the 2000s. OIS analysis
of OIS Yearbook on Immigration Statistics, 1981–
1999; OIS Production Data, 2000–2009.
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YTD.59 The OIS working group takes
these recent changes in migration flows
into account in preparing its roughly biweekly encounter projection models.
Demographic changes in migration
flows have introduced new challenges
in the field of border enforcement. For
decades the challenge was to detect and
interdict Mexican nationals seeking to
evade detection and to return them to
Mexico, which generally was
cooperative in accepting back its
nationals across the land border.
Today’s set of challenges is broader; the
United States Government must
humanely process family units and UCs
and consider tens of thousands of
asylum claims, granting relief or
protection where appropriate and
imposing enforcement consequences
(such as removal or return, and in some
cases criminal charges), all with limited
processing resources and challenges
relating to barriers to repatriations for
nationals from certain countries. These
changes have significant implications,
requiring substantial resources from
CBP, ICE, USCIS, EOIR, and HHS.
An additional consideration in how
the Departments utilize encounter
projections for operational planning and
budgeting is that it takes weeks or
months to put new enforcement
resources in place, while removing such
resources takes much less time. For this
reason, DHS generally must be
conservative in its enforcement
planning because the failure to have
adequate resources in place at the start
of a migration surge risks vicious cycles
in which inadequate capacity to
implement critically needed tools to
disincentivize irregular migration,
coupled with persistent and strong
‘‘push factors,’’ contribute to cascading
adverse effects as the enforcement
system becomes overwhelmed. Such
effects include overcrowding in DHS
facilities (which can endanger both
migrants and DHS personnel), more
noncitizens being released into the
interior pending immigration
59 Families and unaccompanied children
accounted for an estimated 11 percent of SWB
encounters in 2013, rising to 62 percent in 2019,
and have averaged 30 percent from 2020 through
March 2023. Data on unaccompanied children were
first collected in 2008 and data on other family
statuses were first collected in 2013, but not
universally collected until 2016. Mexican nationals
accounted for an average of 57 percent of SWB
encounters from 2013–2015, fell to an all-time low
of 24 percent in 2019 (when Northern Central
Americans accounted for 64 percent of the total),
and have averaged 35 percent of encounters from
2021 through March 2023. Extra regional nationals
accounted for an average of 9 percent of SWB
encounters from 2013–2018, 12 percent from 2019–
2020, and account for 52 percent in the first six
months of FY 2023. OIS analysis of OIS Persist
Dataset based on data through March 31, 2023.
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proceedings, and additional flows of
migrants. In the current context of
added uncertainty in the encounter
projection and evolving enforcement
challenges, DHS focuses its operational
planning efforts on the high and
moderately-high planning models rather
than planning for an optimistic scenario
that could leave enforcement efforts
badly under-resourced. As for this
policymaking effort, the Departments
believe the policies in this rule are
justified ‘‘in light of the migration
patterns witnessed in late November
and December of 2022, and the concern
about the possibility of a surge in
irregular migration upon, or in
anticipation of, the eventual lifting of
the Title 42 public health Order.’’ 88 FR
at 11708.
With respect to the suggestion that the
Departments should have subjected the
OIS planning model to more detailed
review by commenters, the Departments
respectfully disagree. In addition to the
Departments’ description of the
planning model in the NPRM, see 88 FR
at 11705 n.11, the Departments
presented a range of the underlying data
clearly demonstrating the scope of the
problem the Departments face. See, e.g.,
88 FR at 11704–05 (‘‘For the 30 days
ending December 24, 2022, total daily
encounters along the SWB consistently
fluctuated between approximately 7,100
and 9,700 per day, averaging
approximately 8,500 per day, with
encounters exceeding 9,000 per day on
12 different occasions during this 30day stretch’’); id. at 11708–14
(describing the historically unique
nature of current migratory trends and
the role of shifting demographics and
other factors on these trends). Although
the Departments did not describe the
planning models in minute detail, the
data make clear the basis for the
proposed rule and no commenters
submitted data suggesting that the
Departments do not currently face, and
will not imminently face, an urgent
circumstance requiring a policy
response.
Comment: One commenter stated that
concerns that NGOs and shelter
networks have or are close to reaching
their ‘‘outer limit’’ of capacity are
unfounded, because according to the
commenter, none of the $800 million
newly allocated for humanitarian
reception had been distributed as of the
NPRM’s publication in late February of
this year. The commenter wrote that
there are numerous ways that the
Administration can work with Congress
and NGO partners to continue to build
shelter capacity and effectively respond
to the needs of arriving migrants and
asylum seekers. Similarly, a commenter
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noted that the Government pays private,
for-profit detention facilities $320/day
to detain noncitizens, but only pays
shelters $25 for a single bed. The
commenter wrote that they had been
asking the Government for more than
two years to provide more funding to
shelters and increase cooperation with
NGOs, to no avail.
Response: The Departments
acknowledge commenters’ concerns
about funds dedicated for NGOs and
shelter networks as they work to
respond to migratory flows and note
that one expected effect of this rule is
to disincentivize irregular migration,
which may in turn result in reduced
demand for certain NGO and shelter
services. With respect to grant funding
generally, as noted in the NPRM, the
Federal Emergency Management Agency
(‘‘FEMA’’) spent $260 million in FYs
2021 and 2022 on grants to nongovernmental and state and local
entities through the Emergency Food
and Shelter Program—Humanitarian
(‘‘EFSP–H’’) to assist migrants arriving
at the SWB with shelter and
transportation. See 88 FR at 11714. In
November 2022, FEMA released $75
million through the program, consistent
with the Continuing Appropriations and
Ukraine Supplemental Appropriations
Act, 2023.60 In addition, the Bipartisan
Year-End Omnibus, which was enacted
on December 29, 2022, directed CBP to
transfer $800 million in funding to
FEMA to support sheltering and related
activities for noncitizens encountered
by DHS. The Omnibus authorized
FEMA to utilize this funding to
establish a new Shelter and Services
Program and to use a portion of the
funding for the existing EFSP–H, until
the Shelter and Services Program is
established.61 On February 28, 2023,
DHS announced a $350 million funding
opportunity for EFSP–H.62 This is the
first major portion of funding that is
being allocated for humanitarian
assistance under the Omnibus funding
60 Public Law 117–180, Division A, Sec. 101(6),
Continuing Appropriations Act, 2023.
61 Public Law 117–328, Division F, Title II,
Security Enforcement, and Investigations, U.S.
Customs and Border Protection, Operations and
Support.
62 See DHS, Press Release, The Department of
Homeland Security Awards $350 Million for
Humanitarian Assistance Through the Emergency
Food and Shelter Program (Feb. 28, 2023), https://
www.dhs.gov/news/2023/02/28/departmenthomeland-security-awards-350-millionhumanitarian-assistance-through; DHS Grant
Opportunity DHS–23–DAD–024–00–03, Fiscal Year
2023 Emergency Food and Shelter National Board
Program—Humanitarian (EFSP) ($350M) (Feb. 28,
2023), https://www.grants.gov/web/grants/viewopportunity.html?oppId=346460.
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approved in December.63 For the new
Shelter and Services Program, FEMA
and CBP have held several public
listening sessions and are developing
plans to release a Notice of Funding
Opportunity prior to September 2023 for
the second major portion of funding
allocated by Omnibus to assist migrants
encountered by DHS.
The Departments emphasize that the
reference to an ‘‘outer limit’’ in the
NPRM was a prediction that the
expected increase in migration at the
border following the end of the Title 42
public health Order, without any other
policy changes, could exceed the
capacity of the Department of State,
local governments, and NGOs to provide
assistance to migrants. 88 FR at 11715.
While commenters are correct that the
$800 million in funding approved in the
recent Omnibus is still being distributed
and allocated, the Departments disagree
that this ongoing funding conflicts with
the statement in the NPRM. In other
words, funding allocated to date, and
funding slated for further allocation
under the Omnibus funding approved in
December, is insufficient to address the
impending further surge of migration
expected after the termination of the
Title 42 public health Order.
Comment: Multiple commenters
stated their opposition to ‘‘deterrenceoriented’’ rules. At least one commenter
stated the NPRM makes clear the
Administration wants to make the
asylum system ‘‘cumbersome and
difficult to navigate’’ to deter potential
asylum seekers from coming to the
United States, stating Vice President
Harris’ comment of ‘‘do not come’’ in
2021 was a message that those fleeing
danger should not seek protection in the
United States. Another commenter
stated the proposed rule would not be
an effective deterrent because of its
similarity to the Migrant Protection
Protocols (‘‘MPP’’) and the Title 42
public health Order in the past, which
the commenter claimed ‘‘outsourced
and exacerbated the situation’’ by
leaving thousands of individuals in
dangerous conditions in Mexican border
cities waiting to see if, or when, they
will get into the United States. Another
commenter stated the rule does not
serve as a deterrent, as evidenced by the
growing numbers of asylum seekers at
the border.
Some commenters disagreed that the
rule would reduce arrivals at the SWB.
63 DHS, Press Release, The Department of
Homeland Security Awards $350 Million for
Humanitarian Assistance Through the Emergency
Food and Shelter Program (Feb. 28, 2023), https://
www.dhs.gov/news/2023/02/28/departmenthomeland-security-awards-350-millionhumanitarian-assistance-through.
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Commenters disagreed with the premise
underlying the proposed rule—that the
rebuttable presumption would
disincentivize migrants from entering
the United States except through a
lawful and orderly pathway and lead to
a reduction in encounters at the SWB.
Another commenter argued that the rule
is providing an opportunity to
smuggling organizations and also
providing an additional tool for
extortion for noncitizens seeking to
enter the United States. Another
commenter stated that there is no
evidence that the NPRM will deter
asylum seekers from crossing the border
and suggested that arrivals at the border
would increase due to suppression of
entries at POEs.
Response: The Departments disagree
that the rule generally seeks to
discourage asylum seekers from coming
to the United States. Rather, the rule
seeks to strike a balance: It is intended
to reduce the level of irregular migration
to the United States, but also to preserve
sufficient avenues for migrants with
valid claims to apply for asylum or
other protection, either in the United
States or in third countries through
which they travel. This rule is also
intended to disincentivize the use of
smugglers. To those ends, the rule
encourages those with meritorious
claims to either apply for asylum or
other protection in the first safe country
they reach or pursue available lawful
pathways to the United States as set
forth in the rule.
The Departments also disagree with
the comparison some commenters made
between this rule and certain past
policies, including MPP and application
of the Title 42 public health Order. The
rule’s operation as a rebuttable
presumption, and the rule’s operation in
conjunction with multiple available
lawful pathways, are two of the multiple
ways in which this rule differs from
certain past policies, including MPP or
expulsions under the Title 42 public
health Order. As it relates to MPP in
particular, the purpose and effect of this
rule is not to return noncitizens to
Mexico pending their removal
proceedings. See INA 235(b)(2)(C), 8
U.S.C. 1225(b)(2)(C). Instead, it is to
incentivize migrants, including those
intending to seek asylum, to use lawful,
safe, and orderly pathways to enter the
United States, or seek asylum or other
protection in another country through
which they travel. Although some
migrants may wait for some period of
time in Mexico before obtaining a CBP
One app appointment and before
attending that appointment, the purpose
and duration of such a stay would be
different than under MPP. Absent this
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rule, DHS anticipates that its ability to
process noncitizens at POEs, as well as
continue to facilitate regular travel and
trade, would be adversely impacted by
the shifting of resources and personnel
from POEs to help process individuals
encountered between POEs.
The Departments disagree with
commenters’ claim that this rule will
not reduce entries and that it will
incentivize irregular migration. The
Departments have shown that an
increase in the availability of lawful
pathways, paired with immediate
consequences for irregular migration,
can incentivize the use of lawful
pathways and thus reduce irregular
migration. See 88 FR at 11705–06.
Furthermore, the Departments disagree
with commenters’ assertion that the rule
will push individuals away from POEs
to cross between POEs. The rule
incentivizes noncitizens who might
otherwise attempt to enter without
inspection between POEs to take
advantage of expanded lawful
pathways. The availability of lawful
pathways, such as the ability to
schedule an appointment through the
CBP One app and the DHS-approved
parole processes, and the rule’s
operation as a rebuttable presumption
are two of the multiple ways in which
this rule differs from certain efforts of
the past Administration.
Comment: Commenters raised
concerns with Departmental data cited
in the NPRM. For example, commenters
referred to two of the Departments’
statements in the NPRM: (1) that 83
percent of the people who were subject
to expedited removal and claimed to
have a credible fear of persecution or
torture from 2014 to 2019 were referred
to an IJ for section 240 proceedings, but
only 15 percent of those cases that were
completed were granted asylum or some
other form of protection, see 88 FR at
11716; and (2) while only 15 percent of
all case completions result in relief or
protection, OIS estimates that 28
percent of cases decided on their merits
are grants of relief, 88 FR at 11716 n.97.
Commenters stated that the 15 percent
figure is misleading, because it is based
on the total percentage of completed
removal cases, and not the total
percentage of cases decided on the
merits of the asylum claim. Commenters
claim that this method artificially
deflates the asylum grant rate and
creates the false impression that many
asylum seekers were ineligible for
asylum even where there was no
decision on their asylum claim.
Commenters also stated that the 28
percent figure itself was too low
because, as described by the
Departments, this figure excludes
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withholding of removal, deferral of
removal, cancellation of removal, and
claimed status reviews.
Commenters also claimed that asylum
policies of the previous Administration
artificially deflated asylum grant rates.
Other commenters stated that it is
logical that the percentage of cases
passing the credible fear interview stage
is far higher than the cases that
eventually qualify for asylum, given that
the credible fear process is supposed to
have a low bar for passage. Another
commenter stated that, by the
Departments’ logic, no asylum applicant
should be entitled to an initial credible
fear determination and full asylum
merits hearing because their claims will
probably be denied given the low
approval rating of asylum.
Response: The Departments cited
relevant Departmental statistics—which
date back to 2014, prior to the
implementation of any policies of the
prior Administration—to demonstrate
the general point that there is a
significant disparity between positive
credible fear determinations and
ultimate relief in section 240 removal
proceedings. See 88 FR at 11716.
Whether one uses the 15-percent figure
or the 28-percent figure, ultimately, the
number of individuals who are referred
to an IJ at the beginning of the expedited
removal process greatly exceeds the
number who are granted asylum or
some other form of relief or protection.
Comment: A commenter stated that
numerous factors beyond merit impact
whether an asylum seeker’s case is
ultimately granted (e.g., access to
counsel, availability of experts,
changing regulations and procedures,
and backlogs that affect the availability
of evidence). Another commenter noted
that many who seek asylum in the
United States ultimately lose their cases
not due to a lack of merit but instead
because of ‘‘our convoluted and
dysfunctional’’ immigration system,
which the commenter claimed is
difficult for asylum seekers to navigate
and results in denial of many asylum
claims on bases unrelated to the merits
of the claim. One commenter asserted
that modifying the legal requirements
for asylum will not stop migrants from
fleeing armed conflict, poverty or other
dangers, because many are unaware of
their right to apply for asylum. Another
commenter stated that the number of
migrants arriving is irrelevant to the
merits of their asylum claims; the
commenter also argued that the rule
would screen out asylum seekers
regardless of the merit of their case.
Response: The Departments
acknowledge commenters’ concerns that
factors unrelated to the merits of the
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claim, such as access to counsel and
unfamiliarity with the asylum process,
could affect the ultimate determination
of an asylum claim, but disagree that
these potential issues are exacerbated by
the rule. As discussed in more detail
later in Section IV.B.5 of this preamble,
this rule does not deprive noncitizens of
access to counsel during credible fear
proceedings. Additionally, all AOs are
trained to conduct interviews in a nonadversarial manner and elicit relevant
testimony from noncitizens. Specific
training for implementation of this rule
will include training on eliciting
testimony related to whether a
noncitizen can establish an exception or
rebut the presumption of asylum
ineligibility; therefore, noncitizens are
not required to be familiar with the rule
to remain eligible for asylum. The
Departments emphasize that in all
credible fear determinations, a
noncitizen’s credible testimony may be
sufficient to overcome or establish an
exception to the presumption against
asylum ineligibility in this rule. INA
208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). As discussed later in
Section IV.D.1.iii of this preamble, the
Departments note that the overall
standard of proof for rebutting or
establishing an exception to the
presumption of asylum ineligibility
during credible fear proceedings
remains the ‘‘significant possibility’’
standard; that standard must be applied
in conjunction with the standard of
proof required for the ultimate
determination (i.e., preponderance of
the evidence that an exception applies
or that the presumption has been
rebutted).
As discussed throughout the NPRM,
the lawful pathways condition, and the
related modification of the withholding
and CAT screening standard applied to
noncitizens subject to the condition,
would improve overall asylum
processing efficiency by increasing the
speed with which asylum claims are
considered. See 88 FR at 11737. By
encouraging noncitizens seeking to
travel to the United States, including
those seeking asylum, to pursue lawful
pathways and processes, the rule
promotes orderly processing and
reduces the number of individuals who
would be placed in lengthy section 240
removal proceedings and released into
the United States pending such
proceedings. Id. at 11736. Moreover, by
reducing the number of noncitizens
permitted to remain in the United States
despite failing to avail themselves of a
safe and lawful pathway to seek
protection, the rule reduces incentives
for noncitizens to cross the SWB, thus
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reducing the anticipated further surge
that is expected to strain DHS resources.
The Departments reiterate that the rule
is not being promulgated to generally
prevent noncitizens from seeking
asylum in the United States but to strike
a balance—reducing the level of
irregular migration to the United States
while providing sufficient avenues for
migrants with valid claims to apply for
asylum or other protection. The rule is
needed because, absent this rule, after
the termination of the Title 42 public
health Order, the number of migrants
expected to travel without authorization
to the United States is expected to
increase significantly, to a level that
risks undermining the Departments’
ability to safely, effectively, and
humanely enforce and administer U.S.
immigration law, including the asylum
system.
Comment: One commenter asserted
that the real purpose of the rule is to
incentivize an increasing number of
migrants to use the CBP One app to
make fraudulent asylum claims. The
same commenter also stated ‘‘that the
proposed rule and the CBP One app will
incentivize increased rates of illegal
immigration into the United States.’’
The commenter further stated that
because there is insufficient capacity to
process all of the asylum claims of those
using the CBP One app, the rule will
simply increase the number of
individuals who are paroled into the
United States, incentivizing further
illegal immigration. Another commenter
argued that current migration levels
result from the current Administration’s
actions to ‘‘weaken border security,
promote the influx of illegal
immigration, and to remove integrity
from the administration of both the legal
immigration process (including asylum
and credible fear measures) and overall
enforcement of the laws.’’ Similarly,
another commenter stated that the root
cause of this crisis was ‘‘the
Administration’s reckless open borders
policies.’’
Response: While the Departments
acknowledge the commenters’ concerns
about increased rates of unauthorized
immigration into the United States, the
Departments disagree that the rule and
use of the CBP One app will incentivize
noncitizens to enter the United States to
make fraudulent asylum claims. If
anything, by adding a rebuttable
presumption of ineligibility, this rule
creates a strong disincentive for
irregular migration relative to the status
quo. The Departments note that no
commenter submitted data suggesting
that the rule will result in an increase
in fraud or misrepresentation. As
explained in Section IV.B.5.iii of this
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preamble, the Departments are
confident that AOs have the training,
skills, and experience needed to assess
credibility and appropriately determine
whether a noncitizen has met an
exception to or rebutted the
presumption of ineligibility for asylum
codified in the rule. Regarding
commenters’ concerns that use of the
CBP One app will increase the number
of individuals who are paroled into the
United States and thus incentivize
irregular migration, the Departments
note that the rule does not provide for,
prohibit, or otherwise set any policy
regarding DHS’s discretionary authority
to make parole determinations for those
who use the CBP One app. Even so, as
outlined in the NPRM and later in
Section IV.E.3.ii of this preamble, the
expanded use of the CBP One app is
expected to create efficiencies that will
enable CBP to safely and humanely
expand its ability to process noncitizens
at POEs, including those who may be
seeking asylum. See 88 FR at 11719.
Notably, the rule, coupled with an
expansion of lawful, safe, and orderly
pathways, is expected to reduce the
number of noncitizens seeking to cross
the SWB without authorization to enter
the United States. Additionally, the
United States is undertaking a range of
efforts to address irregular migration,
including, for instance, working with
partner countries to address the causes
of migration, significantly increasing the
availability of H–2 temporary worker
visas and refugee processing in the
Western Hemisphere, successfully
implementing the CHNV parole
processes, and addressing the
pernicious role of human smugglers. See
88 FR at 11718–21.
The Departments strongly disagree
with commenters who assert that the
current migration levels are a result of
any action by the Departments to
‘‘weaken’’ security at the border. Rather,
as noted in the NPRM, economic and
political instability around the world is
fueling the highest levels of migration
since World War II, including in the
Western Hemisphere. See 88 FR 11704.
Additionally, even while the Title 42
public health Order has been in place,
the total number of encounters at the
SWB reached an all-time high in FY
2022, and they remain at historically
high levels even as encounters of CHNV
nationals have fallen in recent
months.64 See id. at 11704–05. During
this time, the United States has been
working to build on a multi-pronged,
long-term strategy with countries
64 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023; OIS analysis of
historic USBP data.
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throughout the region to support
conditions that would decrease irregular
migration while continuing efforts to
increase immigration enforcement
capacity and streamline processing of
asylum seekers and other migrants. See
88 FR at 11720–23. This rule ensures
that the United States meets its
obligations under both U.S. and
international law while ensuring that
vulnerable populations are able to seek
asylum or other protection through
lawful, safe, and orderly pathways.
Comment: Commenters stated that the
rule is unnecessary because the goals of
discouraging migrants from seeking
asylum and swiftly removing migrants
are invalid. These commenters further
stated that immigration is good; there is
no need to quickly remove asylum
seekers, regardless of backlogs; and that
overwhelmed immigration facilities are
problems created by the Government
that would be solved by welcoming
migrants rather than treating them as a
problem or as dangerous. A few
commenters critiqued the need for the
rule, writing that the proposed rule is
unnecessary and the Administration
should take responsibility for actions
that have created an overloaded
immigration system. Other commenters
questioned whether restrictive border
measures and quickly removing
individuals actually reduce migratory
flows. At least one commenter did not
understand how this rule was a ‘‘good
thing’’ that would change immigration
policy in the United States, which the
commenter described as a ‘‘disaster.’’ A
commenter stated that the proposed rule
is not needed and instead recommended
implementing practical and humane
solutions, including funding and
coordinating with civil society
organizations on the border and
throughout the country. Another
commenter stated that she lives within
100 miles of the border and does not
feel threatened by the influx of migrants
to her community, and thus the rule is
unnecessary.
One commenter stated that the U.S.
immigration system is not broken but
the current laws need to be strictly
enforced, while another commenter
stated that DHS should be strengthened
so it can address each case instead of
lumping people into categories. At least
one commenter stated that there is no
reason why DHS cannot process
applicants more quickly, noting that the
United States received a significant
number of migrants in the early 1900s
with far less technology, so the
government should be able to do so
much more efficiently now with the
sophisticated technology, medical
equipment, fingerprinting, and other
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means available now. Another
commenter stated that the rule would
not fix backlogs in immigration court,
while a number of commenters
suggested that it would actually increase
the backlogs.
A commenter questioned the need for
the rule because the Departments had
not demonstrated that they had
considered other options. Another
commenter requested that the
Departments expressly consider a range
of factors, such as the U.S. economic
outlook and the role of other external
variables (such as climate change) in
driving migration. The commenter
suggested that such factors may
influence migration patterns to such a
degree that the rule is unnecessary or
likely to be ineffective.
Response: The Departments disagree
that the rule is unnecessary. The
Departments reiterate that the goal of
the rule is not to generally discourage
migrants with valid claims from
applying for asylum or other protection,
but rather to encourage the use of
lawful, safe, and orderly pathways into
the United States. The Departments
agree that the United States’ historical
openness to immigration has enriched
our culture, expanded economic
opportunities, and enhanced our
influence in the world. However, the
U.S. immigration system has
experienced extreme strain with a
dramatic increase of noncitizens
attempting to cross the SWB in between
POEs without authorization, reaching an
all-time high of 2.2 million encounters
in FY 2022.65 The Departments believe
that without a meaningful policy
change, border encounters could
dramatically rise to as high as 11,000
per day after the Title 42 public health
Order is lifted.66 As described in the
NPRM, DHS does not currently have the
resources to manage and sustain the
processing of migratory flows of this
scale in a safe and orderly manner, even
with the assistance of modern
technology. See 88 FR at 11712–13. In
response to this urgent situation, the
rule will establish a rebuttable
presumption of asylum ineligibility for
certain noncitizens who fail to take
advantage of the existing and expanded
lawful pathways to enter the United
States, including the opportunity to
schedule a time and place to present at
a SWB POE, where they may seek
asylum or other forms of protection, in
a lawful, safe, and orderly manner, or to
seek asylum or other protection in one
of the countries through which they
65 OIS
analysis of historic USBP data.
analysis of DHS SWB Encounter Planning
Model generated April 18, 2023.
66 OIS
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travel on their way to the United States.
See id at 11706. The Departments
believe that this rule is necessary to
address the anticipated surge in
irregular migration.
The Departments also believe the rule
is necessary to improve the overall
functioning and efficiency of the
immigration system. See INA
208(b)(2)(C) and (d)(5)(B), 8 U.S.C.
1158(b)(2)(C) and (d)(5)(B). Specifically,
the rule would efficiently and fairly
provide relief to noncitizens who are in
the United States and are eligible for
relief, while also efficiently denying
relief and ultimately removing those
noncitizens who are determined to be
ineligible for asylum and do not qualify
for statutory withholding of removal or
protection under the regulations
implementing the CAT. The
Departments acknowledge that despite
the protections preserved by the rule
and the availability of lawful pathways,
the rebuttable presumption adopted in
the rule will result in the denial of some
asylum claims that otherwise may have
been granted, but the Departments
believe that the rule will generally offer
opportunities for those with valid
claims to seek protection. Moreover, the
Departments have determined that the
benefits to the overall functioning of the
system, including deterrence of
dangerous irregular migration and
smuggling, justify the rule. In sum, the
rule permissibly pursues efficient
asylum processing while preserving
core protections, which is within the
Departments’ authority conferred by
section 208 of the INA, 8 U.S.C. 1158.
The Departments acknowledge
commenters’ support for enforcing
existing immigration laws. However, the
Departments do not believe that current
laws and regulations are sufficient to
address the current levels of migratory
flows and the anticipated increase in the
number of migrants who will attempt to
enter the United States following the
lifting of the Title 42 public health
Order. Likewise, a policy is necessary to
ensure lawful, safe, and orderly
processing of those migrants. Absent
further action, POEs will be congested,
migrants will be forced to wait in long
lines for unknown periods of time, and
once processed they will be released
into local communities that are already
at or near their capacity to absorb them.
See 88 FR at 11715. By incentivizing
noncitizens to use lawful pathways, this
rule aims to encourage migrants to
either pursue options that would allow
them to avoid making the journey to the
SWB, or to schedule in advance a time
for arrival at a POE, which will alleviate
additional strain on DHS resources. The
Departments believe it would be
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inappropriate to elect inaction on the
basis of conjecture regarding U.S.
economic outlook and similar factors
and the potential effects of such factors
on the impending surge of irregular
migration.
In response to comments asserting
that the Departments did not consider
other options before promulgating this
final rule, the Departments note that
alternative approaches for managing the
expected surge in migration were
discussed in the NPRM and the
Departments ultimately assessed, and
continue to assess, that the rule is the
best option for responding to the current
situation at the border and the expected
surge in migration after the lifting of the
Title 42 public health Order. See 88 FR
at 11730–32. Concerns regarding
backlogs, government resources and
funding are addressed in Sections
IV.B.5.iv and IV.C.2 of this preamble.
The Departments acknowledge
commenters’ suggestion that DHS
‘‘strengthen’’ its resources to respond to
the anticipated surge in migrants to the
SWB. The Departments note that they
have already deployed additional
personnel, technology, infrastructure,
and resources to the SWB and that
continuing this ‘‘strengthening’’ of the
SWB would require additional
congressional actions, including
significant additional appropriations,
which are outside of the scope of this
rulemaking.
i. Concerns Regarding the Sufficiency of
the Lawful Pathways
Comment: Commenters stated that in
general, the available lawful pathways
are insufficient to meet the significant
demand for migration to the United
States. Commenters stated that
increasing legal pathways for some
should not come at the expense of
restricting access for asylum seekers
seeking protection. Commenters stated
that the existing lawful pathways are
‘‘extremely narrow and unavailable to
many people,’’ and that it is
fundamentally unjust to fault
individuals for seeking safety and
stability in the only way possible.
Commenters stated that migrants who
seek asylum in the United States rather
than another country are doing so
rationally and intentionally and they
would seek asylum in a closer country
if it was truly safe.
Multiple commenters stated that H–2
temporary worker visas are insufficient
substitutes for asylum. One commenter
stated that the Administration is
‘‘misguided’’ in touting its efforts in the
proposed rule to expand two of the most
‘‘exploitative and troubled U.S. work
visa programs—H–2A and H–2B’’
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because these programs are ‘‘deeply
flawed and in desperate need of
reform.’’ The same commenter stated
that expanding temporary work visa
programs like H–2B and H–2A makes
little sense for those seeking asylum
because they do not provide a
permanent pathway to remain in the
United States and would put migrants
in danger by returning them to
dangerous situations after the visa
certification expires. Similarly, other
commenters stated that the H–2
programs do not provide or guarantee
safety for migrants because they are not
permanent or durable solutions and
they do not allow for family unity in the
United States.
Response: The United States is both a
nation of immigrants and a nation of
laws. The Departments are charged with
enforcing those laws and endeavor to do
so humanely. The rule is needed
because, absent this rule, after the
termination of the Title 42 public health
Order, the number of migrants expected
to travel without authorization to the
United States is expected to increase
significantly, to a level that risks
undermining the Departments’ ability to
safely, effectively, and humanely
enforce and administer U.S.
immigration law, including the asylum
system. The rule, coupled with an
expansion of lawful, safe, and orderly
pathways, is expected to reduce the
number of noncitizens seeking to cross
the SWB without authorization to enter
the United States.
Though the Departments acknowledge
that existing lawful pathways may not
be available to every migrant, the
Departments disagree with comments
stating that the existing lawful pathways
are extremely narrow. The United States
Government has been working to
significantly expand access to lawful
pathways and processes for migrants
since January 2021. In addition to the
new processes DHS has implemented
for CHNV nationals, which are
discussed at length in the NPRM, DHS
has been working with other Federal
departments and agencies to increase
access to labor pathways; restart,
streamline, and expand family
reunification parole programs; and
significantly rebuild and expand refugee
processing in the region. See 88 FR at
11718–23.67
For example, DHS has worked with
the Department of State and the
Department of Labor (‘‘DOL’’) to
significantly expand access to the H–2A
and H–2B temporary agricultural and
nonagricultural worker visas in order to
67 See also DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
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help address labor shortages and
provide safe and orderly pathways for
migrants seeking economic opportunity
in the United States. On December 15,
2022, DHS and DOL jointly published a
temporary final rule increasing the total
number of noncitizens who may receive
an H–2B nonimmigrant visa by up to
64,716 for the entirety of FY 2023. See
Exercise of Time-Limited Authority to
Increase the Numerical Limitation for
FY 2023 for the H–2B Temporary
Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers
Seeking to Change Employers, 87 FR
76816 (Dec. 15, 2022). In particular, the
number of H–2 visas issued to nationals
of El Salvador, Honduras, and
Guatemala has increased by 250 percent
between FYs 2020 and 2022: in FY
2022, the Department of State issued
19,295 H–2 visas to those three
countries, compared to just 5,439 in FY
2020.68 The Departments disagree that
expanding use of these programs is
misguided; although improvements are
possible, these programs are established
features of the immigration system and
an appropriate mechanism to support
lawful, safe, and orderly travel to the
United States. Moreover, these programs
represent two of several available lawful
pathways, some of which provide
protection that is not temporary and
does allow for derivative protection for
family members. For example, the
United States Government has restarted
the Central American Minors Refugee
and Parole Program, which provides
certain qualified children who are
nationals of El Salvador, Guatemala, and
Honduras, as well as certain family
members of those children, an
opportunity to apply for refugee status
and possible resettlement in the United
States.69
The United States Government also
provides durable solutions for
humanitarian protection through the
U.S. Refugee Admissions Program for
qualifying applicants. In 2022,
concurrent with the announcement of
the L.A. Declaration, the United States
announced that it intends to refer for
resettlement at least 20,000 refugees
from Latin America and the Caribbean
in FY 2023 and FY 2024, which would
put the United States on pace to more
than triple refugee admissions from the
Western Hemisphere this fiscal year
alone.70 On April 27, 2023, DHS
68 See Department of State, H–2 Visa Data for El
Salvador, Guatemala, and Honduras, FY 2015–
FY2023 Mid-Year (last reviewed Feb. 24, 2023).
69 See USCIS, Central American Minors (CAM)
Refugee and Parole Program, https://www.uscis.gov/
CAM (last visited Apr. 5, 2023).
70 See The White House, Fact Sheet: The Los
Angeles Declaration on Migration and Protection
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announced that it would commit to
welcoming thousands of additional
refugees per month from the Western
Hemisphere—with the goal of doubling
the number of refugees the United States
committed to welcome as part of the
L.A. Declaration.71 The United States
Government also continues to work
with our partners to expand access to
refugee resettlement more broadly
throughout the Western Hemisphere.
For instance, Canada recently
announced that it will take significant
steps to expand safe and orderly
pathways for migrants from the Western
Hemisphere to enter Canada lawfully.
Building on prior commitments, Canada
will provide an additional 15,000
migrants from Latin America and the
Caribbean with access to legal pathways
to Canada; and enter into arrangements
with the United States and like-minded
countries to promote lawful labor
mobility pathways.72
Comments asserting insufficiencies
associated with the CHNV parole
processes and other lawful pathways
identified in the rule are further
addressed in Section IV.3 of this
preamble.
The rule will not impact those who
use these lawful pathways that the
United States is offering for migrants to
obtain entry into the United States.
Additionally, the rule will not apply to
noncitizens who enter the United States
with documents sufficient for
admission. Instead, the rule is meant to
promote the use of these lawful
pathways and disincentivize irregular
migration.
ii. Similarity to Actions of Past
Administration
Comment: Many commenters stated
that the proposed rule is functionally
indistinguishable from prior asylumrelated rules that were issued by the
prior Administration, particularly the
TCT Bar IFR and Final Rule, which have
been enjoined, or would cause similar
harm to asylum seekers. At least one
commenter criticized that the addition
of the ‘‘rebuttable presumption’’ in this
rule is not enough to distinguish it from
previous rules. For example,
U.S. Government and Foreign Partner Deliverables
(June 10, 2022) (‘‘L.A. Declaration Fact Sheet’’),
https://www.whitehouse.gov/briefing-room/
statements-releases/2022/06/10/fact-sheet-the-losangeles-declaration-on-migration-and-protection-us-government-and-foreign-partner-deliverables/.
71 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
72 See DHS, Press Release, United States and
Canada Announce Efforts to Expand Lawful
Migration Processes and Reduce Irregular Migration
(Mar. 24, 2023), https://www.dhs.gov/news/2023/
03/24/united-states-and-canada-announce-effortsexpand-lawful-migration-processes-and.
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commenters described the rule as
‘‘resurrect[ing] Trump-era categorical
bans on groups of asylum seekers.’’
Similarly, some commenters stated that
this rule is similar to the ‘‘asylum bans’’
the past Administration attempted to
advance. Another commenter asserted
that this rule operates similarly to rules
from the prior Administration because it
would operate as a ban for asylum
seekers based on factors that do not
relate to their fear of return and would
result in asylum denials for all who are
unable to establish that they qualify for
exceptions the commenter characterized
as extremely limited. A commenter
claimed that while the Departments
repeatedly assert throughout the NPRM
that the rebuttable presumption is
distinguishable from the TCT Bar, the
opportunity to rebut the presumption
would occur only under the most
extreme scenarios and in excess of what
would ordinarily be sufficient to claim
asylum. Another commenter predicted
that the proposed rule would revive
attempts to ‘‘rig the credible fear
process.’’ While comparing the
rebuttable presumption standards to the
non-refoulement screening standard
used under MPP, the commenter argued
that the proposed rule would impose a
‘‘more likely than not’’ screening
standard that far exceeds the standard
for an asylum grant. The commenter
further stated that the ‘‘deficient’’ nonrefoulement screenings carried out
during MPP foreshadow the dangers
asylum seekers would face under the
proposed rule if finalized.
In comparing this rule to those issued
by the prior Administration,
commenters stated that the previous
rules led to asylum denials, prolonged
detention for many with bona fide
claims, and family separations. At least
one commenter stated that a recent
congressional investigation found that
not one person sent to Guatemala under
the prior Administration’s Asylum
Cooperative Agreements received
asylum; instead, migrants were forced to
return to their originating country. A
commenter also stated that the rule
attempts to differentiate itself from prior
policies via exceptions and alternative
pathways to asylum but that the
exceptions are insufficient because they
would fail to protect the most
vulnerable. Several commenters stated
that asylum bans have been proven to be
ineffective at deterring noncitizens from
seeking safety. One commenter stated
that calling the rule a ‘‘rebuttable
presumption’’ was merely a semantic
difference from prior asylum bans,
which had narrow exceptions.
Response: The Departments
acknowledge these commenters’
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concerns but disagree that the final rule
is indistinguishable from asylum-related
rulemakings and policies issued by the
prior Administration. The TCT Bar IFR
and Final Rule and the Proclamation
Bar IFR, for instance, categorically
barred covered individuals from certain
types of relief. While the TCT Bar Final
Rule only allowed limited exceptions to
its eligibility bar, including for
trafficking victims and other grounds,
this rule includes a number of broader
exceptions and means for rebutting the
presumption. A noncitizen can rebut the
presumption by, for example,
demonstrating exceptionally compelling
circumstances by a preponderance of
the evidence during a full merits
hearing. See 8 CFR 208.33(a)(3); 8 CFR
1208.33(a)(3). A noncitizen can rebut
the presumption if they establish that
they or a member of their family with
whom the noncitizen is traveling meet
any of the three per se grounds for
rebuttal, which provide that, at the time
of entry: (1) they faced an acute medical
emergency; (2) they faced an imminent
and extreme threat to their life or safety;
or (3) they were a ‘‘victim of a severe
form of trafficking in persons’’ as
defined in 8 CFR 214.11. In addition to
the per se grounds for rebuttal, a
noncitizen could also rebut the
presumption in other exceptionally
compelling circumstances. One
exceptionally compelling circumstance
recognized by the rule is included
specifically to avoid family separations.
See 8 CFR 1208.33(c). Protecting against
family separation is one example of how
this rule includes appropriate
safeguards for vulnerable populations.
Depending on individual circumstances,
AOs and IJs may find that certain
especially vulnerable individuals meet
the exceptionally compelling
circumstances standard.
The Departments acknowledge
concerns about opportunities to rebut
the presumption but disagree that the
rule would impose a higher standard for
rebutting the presumption than the
standard to establish asylum eligibility.
The ‘‘significant possibility’’ standard is
the overall assessment applied during
credible fear screenings; that standard
must be applied in conjunction with the
standard of proof required for the
ultimate determination (i.e.,
preponderance of the evidence that the
presumption has been rebutted or an
exception established). As discussed
below in Section IV.E.1 of this
preamble, a noncitizen can satisfy their
burden of proof through credible
testimony alone; the rule does not
require any particular evidence to rebut
or establish an exception to the
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presumption under 8 CFR 208.33(a)(3),
1208.33(a)(3). See INA 208(b)(1)(B)(ii), 8
U.S.C. 1158(b)(1)(B)(ii); INA
235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). Accordingly, the
Departments believe that the means of
rebutting or establishing an exception to
the presumption are not unduly
burdensome.
The Departments have considered the
approaches taken in multiple
rulemaking efforts of the last few years
and now believe that the more tailored,
time-limited approach in this final rule
is better suited to address the increased
migrant flows into the United States
expected after the Title 42 public health
Order terminates. See 88 FR at 11728.
This rule encourages use of lawful, safe,
and orderly pathways to enter the
United States and, unlike those prior
rulemakings, retains a noncitizen’s
ability to be found eligible for asylum
should they enter through an
enumerated lawful pathway or
otherwise overcome the condition
imposed by this rule. The Departments
believe that the rule’s more balanced
approach renders the TCT Bar Final
Rule and the Proclamation Bar IFR
unnecessary, and that those rules
conflict with the approach taken in this
rule.73 As proposed in the NPRM and
discussed at Sections IV.E.9 and IV.E.10
of this preamble, the Departments have
decided to remove those prior rules
from the CFR. See 88 FR at 11728.
The Departments disagree with some
commenters that this final rule will
cause harms similar to those attributed
to the TCT Bar Final Rule and the
Proclamation Bar IFR, which
commenters allege include asylum
denials, prolonged detention, and
family separation. This rule’s scope and
effect are significantly different from the
TCT Bar Final Rule. Unlike the TCT Bar
Final Rule, the presumption would not
completely bar asylum eligibility based
on the availability of protection in a
third country. First, while this rule takes
into account whether individuals sought
asylum or other forms of protection in
third countries while traveling to the
United States, the rule would not
require that all noncitizens make such
an application to be eligible for asylum,
unlike the TCT Bar Final Rule. For
example, if the noncitizen received
authorization to travel to the United
States to seek parole or scheduled an
appointment through the CBP One app
to present themselves at a POE, then the
condition on asylum eligibility would
not apply to that noncitizen regardless
73 Both the TCT Bar Final Rule and the
Proclamation Bar IFR are discussed further in
Sections IV.E.9 and IV.E.10 of this preamble.
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of whether the noncitizen sought
protection in a third country. Second,
while the TCT Bar Final Rule only
allowed limited exceptions to its
eligibility bar, including for trafficking
victims and other grounds, this rule
includes a number of exceptions and
means for rebutting the presumption,
including an exception for trafficking
victims. This rule encourages
noncitizens to use orderly, lawful
pathways to enter the United States, and
it will only become relevant whether the
noncitizens applied for protection in a
third country through which they
traveled in cases in which noncitizens
do not avail themselves of one of the
pathways.
The Departments acknowledge
commenters’ concerns with the
effectiveness of Safe Third Country
Agreements (‘‘STCA’’) or asylum
cooperative agreements. The
Departments acknowledge that
negotiating such agreements is a lengthy
and complicated process that depends
on the agreement of other nations. See
88 FR at 11732. The Departments note
that the only such agreement in effect is
the Canada-U.S. STCA. See generally
Implementation of the 2022 Additional
Protocol to the 2002 U.S.-Canada
Agreement for Cooperation in the
Examination of Refugee Status Claims
from Nationals of Third Countries, 88
FR 18227 (Mar. 28, 2023). The rule does
not implement or change the framework
for negotiating STCAs, which involves
extensive diplomatic negotiations. As
discussed more in Section IV.E.3.iv of
this preamble, the safe-third-country
provision in section 208(a)(2)(A) of the
INA, 8 U.S.C. 1158(a)(2)(A), indicates
that a noncitizen may be removed,
pursuant to ‘‘a safe-third-country
agreement,’’ and the noncitizen may not
apply for asylum ‘‘unless the Attorney
General finds that it is in the public
interest for the alien to receive asylum
in the United States.’’ This rule operates
differently. Under this rule, noncitizens
may apply for asylum and other
protection in the United States. While
the rule would create a rebuttable
presumption, it specifies circumstances
in which that presumption is
necessarily rebutted as well as other
exceptions. By encouraging noncitizens
seeking to travel to the United States,
including those intending to seek
asylum, to use lawful pathways and
processes, the Departments expect the
rule to promote orderly processing,
reduce the anticipated surge that is
expected to strain DHS resources,
reduce the number of individuals who
would be placed in lengthy removal
proceedings pursuant to section 240 of
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the INA and released into the United
States pending such proceedings, allow
for the expeditious removal of
noncitizens who failed to avail
themselves of a safe and lawful pathway
to seek protection, and reduce
incentives for noncitizens to cross the
border using dangerous smuggling
networks. See 88 FR at 11736. Regarding
comments about the ineffectiveness of
the rule to deter migrants from seeking
safety, the rule does not discourage
migrants with valid claims from
applying for asylum or other protection.
The rule encourages those with
meritorious claims to either apply for
asylum or other protection in the first
safe country they find or pursue
available lawful pathways, such as the
U4U and CHNV parole processes—
which early data indicate are deterring
irregular migration from those countries,
see 88 FR at 11706—or presenting at a
POE at a pre-scheduled time and place.
Comment: Some commenters noted
the rise in recidivist encounters
following the end of the prior
Administration despite many efforts to
restrict asylum access and stated that
removals under this rule would increase
rates of recidivism.
Response: The Departments disagree
that removals under this rule will
increase the rate of recidivism. The
Departments note that a range of
external considerations (such as the
COVID–19 pandemic, litigation
resulting in injunctions or vacatur of
those rules prior to or during initial
stages of their implementation,74 and
differences in the operation of the Title
42 public health Order and this rule)
prevent the Departments from drawing
any firm conclusions applicable to this
74 Federal courts have either vacated or enjoined
the Departments from implementing the TCT Bar
IFR and Final Rule, Procedures for Asylum and
Bars to Asylum Eligibility, 85 FR 67202 (Oct. 21,
2020) (‘‘Criminal Asylum Bars Rule’’), and
Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11, 2020) (‘‘Global
Asylum Rule’’). See, e.g., Capital Area Immigrants’
Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C.
2020) (vacating the TCT Bar IFR); E. Bay Sanctuary
Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020)
(‘‘East Bay I’’) (affirming injunction of the TCT Bar
IFR); E. Bay Sanctuary Covenant v. Barr, 519 F.
Supp. 3d 663 (N.D. Cal. 2021) (‘‘East Bay II’’)
(enjoining the TCT Bar Final Rule); Pangea Legal
Servs. v. DHS, 501 F. Supp. 3d 792 (N.D. Cal. 2020)
(enjoining the Criminal Asylum Bars Rule)
(‘‘Pangea I’’); Pangea Legal Servs. v. U.S. Dep’t of
Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal.
2021) (‘‘Pangea II’’) (preliminarily enjoined the
Departments ‘‘from implementing, enforcing, or
applying the [Global Asylum Rule] . . . or any
related policies or procedures.’’); E. Bay Sanctuary
Covenant v. Biden, 993 F.3d 640, 681 (9th Cir. 2021)
(‘‘East Bay III’’); see O.A. v. Trump, 404 F. Supp.
3d 109 (D.D.C. 2019) (recounting the history of the
litigation over the Proclamation Bar IFR and
vacating it).
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rulemaking based solely on recidivism
numbers following the end of the prior
Administration. The application of the
Title 42 public health Order at the
border has had unpredictable impacts
on migration. Because Title 42
expulsions have no consequence, aside
from the expulsion itself, DHS has seen
a substantial increase in recidivism for
individuals processed under Title 42 as
compared to those processed under
Title 8 authorities. In March 2023, for
example, 26 percent of encounters at the
SWB involved individuals who had at
least one prior encounter during the
previous 12 months, compared to an
average 1-year re-encounter rate of 14
percent for FYs 2014–2019.75
Overall, since the start of the
pandemic and the initiation of Title 42
expulsions, 39 percent of all Title 42
expulsions have been followed by a reencounter of the same individual within
30 days versus a 9 percent 30-day reencounter rate for Title 8 repatriations.76
Similarly, the 12-month re-encounter
rates are 51 percent for Title 42
expulsions versus 20 percent for Title 8
repatriations.77 While a portion of the
overall gap between Title 42 and Title
8 re-encounter rates is likely explained
by the fact that many Title 42
expulsions are to Mexico and almost all
Title 8 repatriations are to individuals’
countries of citizenship, it is notable
that a large gap between Title 42 and
Title 8 re-encounter rates is also
observed in the case of Mexican
nationals, all of whom are repatriated to
Mexico.78
This gap is likely, in part, because a
removal under Title 8 carries with it at
least a five-year bar to admission, among
other legal consequences. As a result, it
is the Departments’ assessment that a
return to Title 8 processing of all
noncitizens will likely reduce
recidivism at the border. Moreover, the
Departments believe it would be
unwarranted to conclude that, based on
recidivist apprehensions while the Title
42 public health Order has been in
place, conditions on asylum eligibility
do not discourage attempts to enter the
75 Including CBP enforcement encounters at or
between ports of entry. OIS Persist based on data
through March 31, 2023.
76 Title 8 repatriation, as used here, refers to both
removals (noncitizen required to depart based on a
removal order) and returns (noncitizen required to
depart leaves without a formal order of removal).
77 OIS analysis of OIS Enforcement Lifecycle
based on data through December 31, 2022.
78 For Mexican nationals, since the start of the
pandemic, the 30-day re-encounter rates are 44
percent for Title 42 expulsions versus 15 percent for
Title 8 repatriations, and the 12-month re-encounter
rates are 55 percent for Title 42 expulsions versus
26 percent for Title 8 repatriations. OIS analysis of
OIS Enforcement Lifecycle based on data through
December 31, 2022.
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United States unlawfully. This rule,
which will take effect upon the lifting
of the Title 42 public health Order,
anticipates that those who receive
negative credible fear determinations
will be removed upon issuance of final
orders of removal and be subject to at
least a five-year bar on admission in
addition to having the rebuttable
presumption apply to any subsequent
asylum application the noncitizen may
file in the future.
iii. Unnecessary Given the Asylum
Processing IFR
Comment: Some commenters
questioned why this proposed rule is
necessary given that the Asylum
Processing IFR was adopted less than
one year ago. See Procedures for
Credible Fear Screening and
Consideration of Asylum, Withholding
of Removal, and CAT Protection Claims
by Asylum Officers, 87 FR 18078 (Mar.
29, 2022) (‘‘Asylum Processing IFR’’). In
referencing the Asylum Processing IFR,
one commenter noted that this rule is an
‘‘abrupt change in reasoning from less
than a year ago,’’ which, according to
the commenter, indicates that the rule is
‘‘political’’ rather than based on
reasoned decision making. Some
commenters noted that in the Asylum
Processing IFR, the Departments
explained that applying the TCT Bar
Final Rule at the credible fear stage as
proposed by the past Administration
was inefficient and consumed
considerable resources so there is ‘‘no
basis to suddenly reverse course again.’’
A commenter argued that the proposal
would depart from conclusions DHS
reached within the last year in the
Asylum Processing IFR recommitting
agencies to the statutory ‘‘significant
possibility’’ standard for asylum claims.
One commenter asserted that while the
proposed rule is premised on the idea
that applying a higher ‘‘reasonable
possibility’’ standard can weed out nonmeritorious asylum cases, the
Departments recently acknowledged in
the Asylum Processing IFR that the
higher standard is not effective at
screening out such claims. The same
commenter expressed concern that the
Government’s ‘‘abrupt about-face’’ is not
based on new data, but rather on the
lack of evidence that the reasonable
possibility standard is not effective in
the context in which it is currently
used. Another commenter similarly
wrote that the application of the
reasonable possibility standard at the
credible fear screening stage represents
a ‘‘stark reversal’’ from DHS’s position
in the Asylum Processing IFR that
asylum eligibility bars should not be
applied at the initial screening stage and
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that the ‘‘significant possibility’’
standard should be applied when
screening for all protection claims (i.e.,
asylum, withholding of removal, and
CAT protection). A commenter stated
that the proposed rule introduces
conflict with the Asylum Processing IFR
and expressed concern that
implementation of the new rule would
be difficult for AOs. One commenter
stated that the Departments should
make greater use of the recent 2022
asylum merits interview process, which
would provide a solution to the
problems the Departments asserted in
the NPRM.
Response: The Departments recognize
that under the Asylum Processing IFR
issued in March 2022, certain
noncitizens determined to have a
credible fear are referred to an AO, in
the first instance, for further review of
the noncitizen’s asylum application. See
87 FR at 18078. For noncitizens subject
to that IFR, following a positive credible
fear determination, AOs conduct an
initial asylum merits interview instead
of referring the case directly for removal
proceedings pursuant to section 240 of
the INA. If USCIS does not grant
asylum, the individual is referred to
EOIR for streamlined removal
proceedings pursuant to section 240. In
issuing the Asylum Processing IFR, the
Departments concluded that protection
determinations during the expedited
removal process could be made more
efficient. See 87 FR at 18085. The
purpose of the Asylum Processing IFR
was to simultaneously increase the
promptness, efficiency, and fairness of
the process by which noncitizens who
enter the United States without
appropriate documentation are either
removed or, if eligible, granted relief or
protection. Id. at 18089. Additionally,
the Asylum Processing IFR enables
meritorious cases to be resolved more
quickly, reducing the overall asylum
system backlog, and using limited AO
and IJ resources more efficiently. Id. at
18090. The entire process is designed to
take substantially less time than the
average of over four years it takes to
adjudicate asylum claims otherwise. See
88 FR at 11716. This final rule builds
upon this existing system while
implementing changes, namely that AOs
will apply the lawful pathways
rebuttable presumption during credible
fear screenings.
The Departments disagree with
commenters’ suggestion that the
proposed rule was political and not
based on reasoned decisions. Rather, the
rule’s primary purpose is to incentivize
migrants, including those intending to
seek asylum, to use lawful, safe, and
orderly pathways to enter the United
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States, or seek asylum or other
protection in another country through
which they travel. The rule establishes
procedures for AOs and IJs to follow
when determining whether the
rebuttable presumption applies to a
noncitizen and, if it does, whether the
noncitizen has established any
exceptions to or rebutted the
presumption. See 8 CFR 208.33(b). In
addition, for noncitizens found to be
ineligible for asylum under 8 CFR
208.33, the rule establishes procedures
for AOs to further consider a
noncitizen’s eligibility for statutory
withholding of removal or protection
under the regulations implementing the
CAT. See 8 CFR 208.33(c)(2).
Individuals subject to the lawful
pathways condition will still be placed
into removal proceedings under section
240 if they meet the ‘‘reasonable
possibility’’ of persecution or torture
standard. One of the goals of the
Asylum Processing IFR is to streamline
the expedited removal process, and this
rule is complementary to that goal, but
is also necessary to incentivize lawful,
safe, and orderly migratory flows. This
rule does not foreclose processing
noncitizens through the process
established by the Asylum Processing
IFR.
The Departments acknowledge that
the approach in this rule is different in
certain respects from that articulated in
the Asylum Processing IFR issued in
March 2022. However, the Departments
believe the current and impending
situation on the ground along the SWB
warrants departing in some respects
from the approach generally applied in
credible fear screenings. See 88 FR at
11742. The Asylum Processing IFR was
designed for non-exigent circumstances.
However, as noted in the NPRM,
encounters of non-Mexican nationals at
the SWB between POEs have reached a
10-year high of 1.5 million in FY 2022,79
driven by smuggling networks that
enable and exploit this unprecedented
movement of people. This heightened
migratory flow has overburdened the
current asylum system, resulting in a
growing backlog of cases awaiting
review by AOs and IJs. See 88 FR at
11705. The exigent circumstances giving
rise to this rule arose after the Asylum
Processing IFR was issued and require
departing from the general approach in
the Asylum Processing IFR in specific
ways—i.e., applying the condition on
eligibility during credible fear
screenings, applying the ‘‘reasonable
possibility’’ standards to individuals
who cannot show a ‘‘significant
79 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
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possibility’’ of eligibility for asylum
based on the presumption established in
the rule, requiring an affirmative request
for IJ review of a negative credible fear
determination, and limiting requests for
reconsideration after IJ review and
instead providing for reconsideration
based only on USCIS’s discretion.
The Departments believe that the
condition on eligibility and this rule’s
departures from the Asylum Processing
IFR are reasonable and necessary for the
reasons discussed in the NPRM. See 88
FR at 11744–47. The rule will help
achieve many of the goals outlined in
the Asylum Processing IFR, including
improving efficiency; streamlining the
adjudication of asylum, statutory
withholding of removal, and CAT
protection claims; and reducing the
strain on the immigration courts by
screening out and removing those with
non-meritorious claims more quickly.
See 87 FR 18078.
The Departments note that the rule
does not apply a higher ‘‘reasonable
possibility’’ standard to asylum claims;
rather, the rule applies the statutory
‘‘significant possibility’’ standard to
asylum claims, as explained elsewhere
in this preamble. The rule only applies
the ‘‘reasonable possibility’’ standard to
statutory withholding and CAT claims,
and only if a noncitizen is subject to and
has not established an exception to or
rebutted the presumption at the credible
fear screening. Additionally, the
Asylum Processing IFR did not
conclude that the higher standard was
‘‘not effective’’ at screening out nonmeritorious statutory withholding and
CAT claims, but rather made a policy
determination that the higher standard
was inefficient given the circumstances
of that particular rule. See 87 FR at
18092. The Departments reached a
different policy conclusion after the
Asylum Processing IFR was issued and
believe that this rule is necessary to
address the current and exigent
circumstances described throughout the
NPRM. See 88 FR at 11744–47.
The Departments appreciate
commenters’ support for the asylum
merits interview process, but the
Departments reiterate the discussion
from the NPRM that the asylum merits
interview process should not be used for
noncitizens subject to the presumption.
See 88 FR at 11725–26. This is because
each such proceeding, in which the
noncitizen would only be eligible for
forms of protection that the AO cannot
grant (withholding of removal or CAT
protection), would have to ultimately be
adjudicated by an IJ. Further, the
Departments note that the processes
relating to management of those who
have already established a credible fear
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are different from the processes for
migrants seeking entry into the United
States who are making an initial claim
of fear.
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iv. Unnecessary Given Parole Processes
Comment: Some commenters objected
that although the Departments stated
that they anticipate a surge in CHNV
individuals claiming fear at the SWB
after the termination of the Title 42
public health Order, the proposed rule
also claims that the parole processes for
these populations are working to limit
irregular migration from these countries.
Response: In an effort to address the
significant increase in CHNV migrants
at the SWB, the United States has taken
significant steps to expand safe and
orderly processes for migrants from
these countries to lawfully come to the
United States. Specifically, these
processes provide a lawful and
streamlined way for eligible CHNV
nationals and their family members to
apply to come to the United States
without having to make the dangerous
journey to the SWB.80 Individuals can
request an advance authorization to
travel to the United States to be
considered on a case-by-case basis for a
grant of temporary parole by CBP.
Noting the success of the CHNV parole
processes coupled with enforcement
measures in limiting irregular migration
of CHNV nationals, the Departments
also recognize that there are a number
of factors that could prevent the same
level of success after the lifting of the
Title 42 public health Order absent
additional policy changes. See 88 FR at
11706. These factors include the
presence of large CHNV populations
already in Mexico and elsewhere in the
hemisphere as a result of past migratory
flows and the already large number of
migrants from these countries in the
proximity of the SWB after they were
expelled to Mexico under the Title 42
public health Order. See id. In addition,
as the Departments noted in the NPRM,
the incentive structure created by the
CHNV parole processes relies on the
availability of an immediate
consequence, such as the application of
expedited removal under this rule, for
those who do not have a valid
protection claim or lawful basis to stay
in the United States. See 88 FR at 11731.
The parole processes thus work with
this rule in a complementary manner to
address the expected surge in migration
80 See DHS, Press Release, DHS Continues to
Prepare for End of Title 42; Announces New Border
Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://
www.dhs.gov/news/2023/01/05/dhs-continuesprepare-end-title-42-announces-new-borderenforcement-measures-and.
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after the Title 42 public health Order is
lifted.
v. Unnecessary Given Lack of Access to
Asylum
Comment: Some commenters stated
that the rule would not succeed at
meeting its goal of deterring irregular
immigration since migrants are already
aware, even without the rule, that there
is a low chance of actually receiving
asylum in the United States.
Response: The Departments reiterate
that the rule’s primary goal is to
incentivize migrants, including those
intending to seek asylum, to use lawful,
safe, and orderly pathways to enter the
United States, or seek asylum or other
protection in another country through
which they travel. The rule is intended
to reduce the level of irregular migration
to the United States without
discouraging migrants with valid claims
from applying for asylum or other
protection. Even assuming migrants are
aware of the relative likelihood of
success of their asylum claims, the
Departments do not believe the low
ultimate approval rate for asylum and
other forms of protection, which has
long been the status quo, has served as
a strong disincentive against making
protection claims given the
comparatively high chance of receiving
a positive credible fear determination
(83 percent for FYs 2014–19, see 88 FR
at 11716) after which migrants are able
to wait in the United States to present
their claims, the multi-year backlog of
immigration court cases,81 and the fact
that many migrants who are denied
asylum are not ultimately removed, see
id. Additionally, many noncitizens who
are encountered at the border and
released pending their immigration
proceedings will spend years in the
United States, regardless of the outcome
of their cases. See id. Indeed, most
noncitizens who receive a positive
credible fear determination will be able
to live and work in the United States for
the duration of their removal
proceedings—which, on average, take
almost 4 years.82 This reality provides a
powerful incentive for noncitizens to
make protection claims. Therefore, a
low approval rate for asylum
applications does not necessarily offer
much disincentive against making
protection claims.
81 See TRAC, Immigration Court Asylum Backlog
through February 2023, https://trac.syr.edu/
phptools/immigration/asylumbl/ (last visited Mar.
14, 2023) (average 1,535 days from I–589 filing to
merits hearing).
82 OIS analysis of DOJ EOIR data based on data
through March 31, 2023.
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vi. Ineffective Without Changes to
Withholding of Removal or CAT
Adjudications
Comment: Some commenters stated
that if the process for applying for
statutory withholding of removal or
CAT protection stays the same, the rule
would not be an effective deterrent for
people who do not have a meritorious
claim for asylum who are seeking to
delay their removal from the United
States. One commenter suggested that
because those subject to the rule can
seek protection through statutory
withholding of removal and CAT, even
with this rule in place, they will likely
continue to arrive without using a
lawful pathway. The commenter further
stated that people fleeing unlivable
conditions at home, the overwhelmingly
majority of whom have no real
knowledge of U.S. immigration law, are
unlikely to carefully dissect the rule’s
subtle changes to eligibility standards.
And as long as migrants know there is
the possibility of protection in the
United States—no matter whether
through asylum or another form of
relief—they will likely continue to make
the dangerous trek to the border, where
they will then cross.
Response: The Departments note that
the rule would implement changes to
the existing credible fear screening
process. Specifically, if noncitizens
cannot make a sufficient showing that
the lawful pathways condition on
eligibility for asylum is inapplicable or
that they are subject to an exception or
rebuttal ground, then the AO will screen
the noncitizen for statutory withholding
of removal and protection under the
CAT using the higher ‘‘reasonable
possibility’’ standard. See 8 CFR
208.33(b)(2)(i). This ‘‘reasonable
possibility’’ standard is a change from
the practice currently applied for
statutory withholding of removal and
CAT protection in the credible fear
process. As explained in the NPRM, the
Departments have long applied—and
continue to apply—the higher
‘‘reasonable possibility’’ of persecution
or torture standard in reasonable-fear
screenings because this standard better
predicts the likelihood of succeeding on
the ultimate statutory withholding of
removal or CAT protection application
than does the ‘‘significant possibility’’ of
establishing eligibility for the
underlying protection standard, given
the higher burden of proof for statutory
withholding of removal and CAT
protection. See 88 FR at 11746–47. The
Departments also assess that applying
the ‘‘reasonable possibility’’ of
persecution or torture standard where
the lawful pathways condition renders
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the noncitizen ineligible for asylum will
result in fewer individuals with nonmeritorious claims being placed into
removal proceedings under section 240
of the INA, and more such individuals
being quickly removed. The
Departments believe that using the
‘‘reasonable possibility’’ standard to
screen for statutory withholding and
CAT protection in this context, and
quickly removing individuals who do
not have a legal basis to remain in the
United States, may serve as a
disincentive for migrants who would
otherwise make the perilous journey to
the United States without first
attempting to use a lawful pathway or
seeking protection in a country through
which they travel.
vii. Ineffective Because Exceptions Will
Swallow the Rule
Comment: Some commenters raised
concerns that the rebuttable
presumption of ineligibility could be too
easily overcome or perceived as easy to
overcome, due to the number of
exceptions and means of rebuttal. One
commenter referred to the proposed rule
as ‘‘a facially stricter threshold’’ than
under current practice and said that the
rebuttable presumption was ‘‘a tougher
standard in name only.’’ Another
commenter opined that the proposed
rule would be largely ineffective and
urged the Departments to eliminate
exceptions to the presumption against
asylum eligibility, which they said are
overbroad, easy to exploit, and threaten
to swallow the rule. Similarly, other
commenters stated that there should be
no exceptions to the condition on
asylum. Commenters stated that
migrants would quickly learn the
various exceptions to the presumption
and how to fraudulently claim them to
obtain asylum. One commenter alleged,
without evidence, that various NGOs
and legal organizations coach people on
which ‘‘magic words’’ they must utter to
gain entry into the United States. One
commenter stated that noncitizens may
falsely claim to be Mexican nationals to
circumvent the rule.
One commenter proposed that the
rule’s exceptions be limited to (1) those
who received a final judgment denying
them protection in at least one country
through which they transited; (2)
victims of a severe form of trafficking;
(3) those who have transited only
through countries that are not parties to
the Refugee Convention, the Refugee
Protocol, or CAT; and (4) UCs. Another
commenter proposed that the
Departments should eliminate the CBP
One app exception and should apply
the presumption to UCs. One
commenter stated that the rule should
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require, not encourage, migrants to use
lawful, safe, and orderly pathways.
Response: The Departments
acknowledge these concerns but believe
it is necessary to maintain the
exceptions to and means of rebutting the
presumption of ineligibility for asylum
to prevent undue hardship. The
Departments have limited the means of
rebutting the presumption to
‘‘exceptionally compelling
circumstances,’’ where it would be
unreasonable to require use of the DHS
appointment scheduling system or
pursuit of another lawful pathway. The
rule lists three examples of
exceptionally compelling circumstances
that would be considered at both the
credible fear and merits stages: acute
medical emergencies, imminent and
extreme threats to life or safety, and
victims of severe forms of human
trafficking. See 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). AOs and IJs will assess
the noncitizen’s testimony, along with
any other evidence in the record, to
determine whether the noncitizen meets
an exception to or rebuts the
presumption against asylum eligibility.
INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B);
INA 240(c)(4)(B), 8 U.S.C.
1229a(c)(4)(B); 8 CFR 208.30.
The Departments do not believe that
the rule creates significant incentive for
migrants to falsely pose as Mexican
nationals. Even if successful, this would
only be a plausible strategy for migrants
who are hoping to voluntarily return to
Mexico instead of being placed in
expedited removal. Once in expedited
removal, any incentive to pose as a
Mexican national dissipates quickly. It
will likely be difficult for the noncitizen
to establish a credible fear of
persecution or torture in Mexico, a
country with which they are less
familiar than their actual country of
nationality. The noncitizen will not be
able to seek any assistance from their
consulate without disclosing their true
country of nationality. And it will
become very difficult for the noncitizen
to qualify for asylum or other protection
before an IJ, where they will need to
prove identity.83 Noncitizens who
falsify their nationality could face
serious consequences, as any such false
pretenses would be likely to have an
adverse effect on their credibility and
83 See Matter of O–D–, 21 I&N Dec. 1079, 1081
(BIA 1998) (‘‘A concomitant to such claim is the
burden of establishing identity, nationality, and
citizenship.’’); INA 208(d)(5)(A)(i), 8 U.S.C.
208(d)(5)(A)(i) (‘‘[A]sylum cannot be granted until
the identity of the applicant has been checked.’’);
8 CFR 1003.47 (Identity, law enforcement, or
security investigations or examinations relating to
applications for immigration relief, protection, or
restriction on removal).
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could result in a permanent bar from all
future immigration benefits.84
3. Concerns Related to Impacts on
Asylum Seekers or Conflicts With
Humanitarian Values
i. Belief That the Rule Is Motivated by
Unlawful Intent and Inconsistent With
U.S. Values
Comment: Some commenters
generally asserted that the rule targets
certain nationalities, groups, or types of
claims and that it was motivated by
racial animus; that it has discriminatory
effects; and that it was intended to
address political issues or to mollify
those harboring racial animus.
Commenters stated that issuing this rule
would advance the agendas of antiimmigration groups. At least one
commenter stated that the proposed rule
could fuel existing anti-immigrant and
anti-Latinx sentiments in the United
States by sensationalizing immigration.
Another commenter expressed
opposition to the proposed rule stating
that it would continue to uphold an
‘‘ableist, xenophobic, and white
supremacist’’ notion of accessibility into
the United States. One commenter urged
DHS to consider the impact that
previous white supremacist and racebased policies have had on the U.S.
immigration system. Furthermore, a
commenter opposed the rule concluding
that it continues a ‘‘legacy of structural
racism’’ in U.S. immigration policy.
Commenters compared the rule to
race-based historical immigration laws
in the United States, such as the
Chinese Exclusion Act and other past
immigration actions, including actions
of the prior Administration. Another
commenter compared the rule to
nationality-based quotas instituted by
the Immigration Act of 1924 and stated
that the rule serves a similar purpose of
excluding ‘‘undesirable’’ migrant
populations, while others compared the
rule to limits on migration before,
during, and after World War II,
including turning away Jewish refugees
seeking protection on the ship the St.
Louis. At least one commenter stated
that asylum seekers from countries
located geographically further away
would have a higher burden for no
reason beyond their national origin.
Further, commenters stated that
differentiating between the ‘‘types’’ of
people admitted to the United States or
84 See INA 208(b)(1)(B)(iii), 8 U.S.C.
1158(b)(1)(B)(iii) (credibility determinations in
asylum proceedings); INA 208(d)(6), 8 U.S.C.
1158(d)(6) (frivolous asylum applications); 8 CFR
1003.47(g) (preventing IJs from granting asylum
applications until they can consider complete and
current identity, law enforcement, and security
investigations).
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detained at the border is akin to
authoritarian regime policies that have
prohibited entry to ‘‘undesirables’’ and
‘‘other inconvenient group[s].’’
Some commenters stated that the
proposed rule is inhumane, xenophobic,
and against everything the current
Administration is supposed to stand for.
Other commenters noted that the rule
would only affect migrants seeking to
enter at the SWB, but that migrants
crossing the northern border from
Canada are excluded, which the
commenter called ‘‘inequitable’’ and
evidence of racism. Some commenters
stated that limiting who to help in the
time of a ‘‘global crisis’’ is ‘‘shameful’’
because the United States is one of the
richest countries in the world. Some
commenters stated that with all the
terrible things happening in the world
we should be making it easier and not
harder to seek asylum. An advocacy
group expressed further concern that the
rule may instead reinforce a notion that
immigrants are unwelcome or otherwise
do not belong in the United States.
Another advocacy group expressed
disappointment that words like ‘‘surge’’
in the NPRM could frame asylum
seekers as a problem that needs to be
mitigated or reduced. Some commenters
stated that the rule was only written in
response to political pressure by
political opponents to address the
situation at the SWB, thus placing
migrants in danger for the sake of a
political agenda. One commenter stated
that they expected the United States to
‘‘treat migrants as human beings rather
than playing pieces that could affect
political outcomes.’’
Response: The Departments reject
these commenters’ claims concerning
the Departments’ basis for promulgating
the rule. As explained in the NPRM, 88
FR at 11704, the Departments are
promulgating the rule to address the
following considerations. First, the
reality of large numbers of migrants
crossing the SWB has placed a
substantial burden on the resources of
Federal, State, and local governments.
See 88 FR 11715. While the United
States Government has taken
extraordinary steps to address this
burden, the current level of migratory
movements and the anticipated increase
in the numbers of individuals seeking
entry into the United States following
the lifting of the Title 42 public health
Order, without policy changes, threaten
to exceed the capacity to maintain the
safe and humane processing of
noncitizens who cross the SWB without
authorization. See id at 11704. Second,
this reality allows pernicious smuggling
networks to exploit migrants—putting
migrants’ lives at risk for the smugglers’
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financial gain. Finally, the
unprecedented migratory flow of nonMexican migrants, who are far more
likely to apply for protection,85 has
contributed to a growing backlog of
cases awaiting review by AOs and IJs.
As a result, those who have a valid
claim to asylum may have to wait years
for their claims to be granted, while
individuals who will ultimately be
found ineligible for protection may
spend years in the United States before
being ordered removed. None of these
considerations are racially motivated,
inhumane, or xenophobic.
The Departments reiterate that the
United States Government has
implemented, and will continue to
implement, a number of measures
designed to enhance and expand lawful
pathways and processes for noncitizens
who may wish to apply for asylum to
come to the United States. DHS has
recently created new processes for up to
30,000 CHNV nationals per month to
apply for advance authorization to seek
parole into the United States, enabling
them to travel by air to the United
States.86 DHS and its interagency
partners have also increased H–2B
nonimmigrant visa availability and
refugee processing for countries within
the Western Hemisphere. See 88 FR at
11718. Noncitizens who are not eligible
for these pathways can schedule an
appointment to present at a southwest
land border POE through the CBP One
app and be exempted from the rule.
Finally, the rule does not apply to
migrants crossing into the United States
from Canada because, as discussed in
more detail below, the STCA between
the United States and Canada, along
with the Additional Protocol of 2022,
announced March 24, 2023, already
enable sufficient management of
migration from Canada.87 The
Additional Protocol expands the STCA
to apply to migrants who claim asylum
or other protection after crossing the
U.S.-Canada border between POEs, thus
85 For noncitizens encountered at the SWB in FYs
2014–2019 who were placed in expedited removal,
6 percent of Mexican nationals made fear claims
that were referred to USCIS for adjudication
compared to 57 percent of people from Northern
Central America and 90 percent of all other
nationalities. OIS analysis of Enforcement Lifecycle
data as of December 31, 2022.
86 See 87 FR 63507 (Oct. 19, 2022); DHS,
Implementation of a Parole Process for Haitians, 88
FR 1243 (Jan. 9, 2023); DHS, Implementation of a
Parole Process for Nicaraguans, 88 FR 1255 (Jan. 9,
2023); DHS, Implementation of a Parole Process for
Cubans, 88 FR 1266 (Jan. 9, 2023).
87 See DHS, Press Release, United States and
Canada Announce Efforts to Expand Lawful
Migration Processes and Reduce Irregular Migration
(Mar. 24, 2023), https://www.dhs.gov/news/2023/
03/24/united-states-and-canada-announce-effortsexpand-lawful-migration-processes-and.
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providing another disincentive for
irregular migration.88
Comment: Other commenters stated
that there is a disconnect between
President Biden’s remarks in Poland in
February 2023 regarding accepting and
welcoming refugees and this rule. Some
commenters stated that the proposed
rule is not in line with the American
value of welcoming refugees and asylum
seekers. Many commenters referenced
the Statue of Liberty and the American
tradition of welcoming the poor and
other vulnerable immigrants and quoted
Emma Lazarus’ poem. Commenters
stated that the ability to seek asylum is
a legally recognized right and that the
proposed rule would effectively deny
that right to many asylum seekers, as
well as that the United States should
instead live up to its legal
responsibilities and ideals. Commenters
stated that the need to reduce strain at
the border is an insufficient reason to
support the reduction in asylum access
that would result from the rule.
Response: The Departments
acknowledge that the United States has
a long tradition of accepting and
welcoming refugees and note that in the
past two years, the United States
Government has taken steps to
significantly expand refugee admissions
from Latin America and the Caribbean.
However, simply welcoming migrants
into the United States without a policy
in place to ensure lawful, safe, and
orderly processing of those migrants
would exceed DHS’s already limited
resources and facilities—especially
given the anticipated increase in the
numbers of migrants who will attempt
to enter the United States following the
lifting of the Title 42 public health
Order.
The Departments underscore that the
rebuttable presumption will not apply
to noncitizens who availed themselves
of safe, orderly, and lawful pathways to
enter the United States or sought asylum
or other protection in a third country
and were denied. The rule lists three per
se grounds for rebuttal: if a noncitizen
demonstrates that, at the time of entry,
they or a member of their family as
described in 8 CFR 208.30(c) with
whom the noncitizen is traveling faced
an acute medical emergency; faced an
imminent and extreme threat to their
life or safety; or were a ‘‘victim of a
severe form of trafficking in persons’’ as
defined in 8 CFR 214.11. See 8 CFR
208.33(a)(3), 1208.33(a)(3). The rule also
88 See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h);
Implementation of the 2022 Additional Protocol to
the 2002 U.S.-Canada Agreement for Cooperation in
the Examination of Refugee Status Claims from
Nationals of Third Countries, 88 FR 18227 (Mar. 25,
2023).
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contains a specific exception to the
rebuttable presumption for
unaccompanied children. See 8 CFR
208.33(a)(2)(i), 1208.33(a)(2)(i).
Noncitizens who are subject to the
lawful pathways condition on eligibility
for asylum and who do not qualify for
an exception or rebut the presumption
of the condition’s applicability, remain
eligible to apply for CAT protection or
for statutory withholding of removal,
which implements U.S. nonrefoulement obligations under the 1967
Protocol. See, e.g., Mejia v. Sessions,
866 F.3d 573, 588 (4th Cir. 2017); Cazun
v. U.S. Att’y Gen., 856 F.3d 249, 257
n.16 (3d Cir. 2017).
Exceptionally compelling
circumstances will also be found if,
during section 240 removal proceedings,
the noncitizen is found eligible for
statutory withholding of removal or
CAT withholding, they would be
granted asylum but for the presumption
against asylum, and their accompanying
spouse or child does not independently
qualify for asylum or other protection
against removal or the noncitizen has a
spouse or child who would be eligible
to follow to join them as described in
section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), if they were granted
asylum. See 8 CFR 1208.33(c). As
discussed in the NPRM, the
Departments have determined that
applying the lawful pathways condition
on eligibility for asylum is necessary to
ensure the Departments’ continued
ability to safely, humanely, and
effectively enforce and administer U.S.
immigration laws and to reduce the role
of exploitative and dangerous smuggling
and human trafficking networks.
Comment: Many commenters stated
that if the United States cannot be a safe
place for people being persecuted, then
it is not living up to constitutional and
moral values. A commenter stated that
anyone not of Native American ancestry
is here because our relatives came here
for a better life for themselves and their
family. Some commenters stated that
America is a nation of immigrants,
while others stated that we should
remember our ancestors, as many were
immigrants too, and invoked their
family’s migration to the United States
as examples. A commenter stated that it
is inherently evil to ignore, mistreat, or
in any way harm desperate people
fleeing their homes because they would
likely suffer or even die if they stay.
Commenters described the rule as
inhumane, not in alignment with
Christian or Judeo-Christian morals, and
immoral and contrary to American
values. A commenter stated that the use
of the term ‘‘humane’’ in connection
with the proposed rule was cynical and
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cruel. Another commenter stated that
the rule would inevitably lead to
unnecessary harm and death. One
commenter stated that the rule would
cause survivors and victims of crime to
distrust systems.
Many commenters cited the harms
resulting from the United States’ failure
to provide protection for those fleeing
Nazi persecution, which commenters
said led to the development of the
modern asylum system. Multiple
commenters stated that, as a wealthy
country that claims to be a leader in
democracy, the United States has a
special obligation to make it easy to seek
asylum here, and that the proposed rule
would put barriers in the way of
desperate people. Commenters stated
that the Departments should not forget
the contributions of immigrants to the
United States’ workforce and diversity
and should not deny protection to
people in need. Some commenters
stated that the asylum seekers who
would be denied under the rule would
be contributing members of society that
the country needs. One commenter
stated the rule conflicts with the
American tradition of ‘‘innocent until
proven guilty,’’ another protested ‘‘the
presumption of guilt of undocumented
immigrants which underlies this
proposed rule,’’ and others stated that
refugees should not be treated as
criminals. At least one commenter
stated that the rule would amount to
‘‘cruel and unusual punishment’’ and
other commenters described it as
‘‘cruel’’ or ‘‘wrong’’ and ‘‘un-American.’’
One commenter stated that the rule
imposes an arbitrary punishment on the
very individuals whom the asylum laws
were intended to protect. At least one
commenter stated that the rule should
have a presumption in favor of
applicants. Another commenter said
that one of America’s principles is that
‘‘all men are created equal,’’ noting that
it says ‘‘men’’ and does not refer to U.S.
citizens only.
Response: The Departments disagree
that this rule is inhumane or contrary to
morals and values. For decades, U.S.
law has protected vulnerable
populations from return to a country
where they would be persecuted or
tortured. The Departments note that the
rule is designed to safely, effectively,
and humanely process migrants seeking
to enter the United States, and to reduce
the influence and role of the lawless and
pernicious human smuggling
organizations that put migrants’ lives in
peril for profit. See 88 FR at 11713–14.
The Departments considered the
dangerous journeys made by migrants
who put their lives at risk trying to enter
the United States without authorization.
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The rule is designed to disempower
criminal enterprises that seek to take
advantage of desperate migrants, leading
to untold human suffering and far too
many tragedies. See id. The rule pursues
this goal by encouraging migrants to
seek protection in other countries in the
region and to use lawful pathways and
processes to access the U.S. asylum
system, including pathways and
processes that do not require them to
take a dangerous journey. In order to
ensure that particularly vulnerable
migrants are not unduly affected by the
rule, the Departments have included
exceptions and multiple ways that
migrants may rebut the presumption
and thereby remain eligible for asylum,
as well as access to other protection. A
noncitizen who seeks to apply for
asylum can also schedule their arrival at
a land border POE through the CBP One
app and be exempted from the rule.
Regarding comments stating that the
rule conflicts with ‘‘innocent until
proven guilty,’’ or that the rule attaches
a presumption of guilt to migrants, or
that the rule amounts to ‘‘cruel and
inhumane treatment,’’ the Departments
note that this rule is not intended to
ascribe guilt or innocence or
punishment to anyone but rather to
encourage the use of lawful, safe, and
orderly pathways to enter the United
States. The rule also does not subject
anyone to ‘‘cruel and inhumane
treatment,’’ and indeed ensures that
individuals who fear torture or
persecution can seek statutory
withholding of removal or CAT
protection. Similarly, the Departments
disagree with comments recommending
a presumption in the rule that favors
eligibility for asylum. The Departments
note that asylum eligibility
requirements set forth in section
208(b)(1) of the INA place the burden on
the noncitizen. Creating a presumption
in the rule to favor eligibility for asylum
would remove that burden from the
noncitizen and would not achieve the
Departments’ goals of disincentivizing
migrants from crossing the SWB without
authorization. Finally, as explained in
Section IV.D.1.ii of this preamble, the
rule is fully consistent with the
Departments’ legal authority and
obligations on asylum eligibility
pursuant to section 208 of the INA, 8
U.S.C. 1158.
Comment: Commenters described this
rule as a ‘‘broken promise’’ to fix the
asylum system and stated that President
Biden had criticized the Title 42 public
health Order and indicated that he
would pursue policies that reflect the
United States’ commitment to asylum
seekers and refugees. A commenter
urged the Departments to withdraw the
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rule, reasoning that it would contravene
the Biden Administration’s values by
putting vulnerable migrants at greater
risk for violence without shelter or
protection. Another commenter
expressed concern that the proposed
rule would be antithetical to President
Biden’s prior promises to reduce
migrants’ reliance on smuggling
networks, to reduce overcrowding in
migrant detention facilities, and to
provide effective humane processing for
migrants seeking protections in the
United States. Other commenters stated
that the rule would contravene
President Biden’s promise to uphold
U.S. laws humanely and to preserve the
dignity of ‘‘immigrant families, refugees,
and asylum seekers.’’ One commenter
stated that during the presidential
election, President Biden campaigned to
‘‘restore the soul of America’’ and
cutting off asylum seekers is not part of
that promise. Another commenter urged
that President Biden be held
accountable for the ‘‘promises he made
before his election.’’ A commenter
likewise stated that the proposed rule
would fail to uphold the Biden
Administration’s commitments to
promote regional cooperation and
shared migration management.
Response: Political and economic
instability, coupled with the lingering
adverse effects of the COVID–19 global
pandemic, have fueled a substantial
increase in migration throughout the
world. This global increase is reflected
in the trends on the SWB, where the
United States has experienced a sharp
increase in encounters of non-Mexican
nationals over the past two years, and
particularly in the final months of 2022.
See 88 FR at 11708. DHS was
encountering an average of
approximately 8,800 noncitizens per
day during the first ten days of
December 2022—a new record—and
expects that encounter numbers could
increase to 11,000 per day following the
termination of the Title 42 public health
Order.89 The rule is a response to the
even more urgent situation that the
Departments could face after the lifting
of the Title 42 public health Order. The
Departments believe that these
circumstances warrant this policy,
which will encourage those migrants
who wish to seek asylum to avail
themselves of lawful, safe, and orderly
pathways into the United States.
Consistent with the principle of
establishing a fair, orderly, and humane
asylum system, the United States
Government has implemented a multi89 See DHS Post-Title 42 Planning Model
generated April 18, 2023; see also OIS analysis of
CBP UIP data downloaded January 13, 2023.
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pronged approach to managing
migration throughout North and Central
America. The United States Government
is working closely with international
organizations and the governments in
the region to establish a comprehensive
strategy for addressing the causes of
migration in the region; build,
strengthen, and expand Central and
North American countries’ asylum
systems and resettlement capacity; and
increase opportunities for vulnerable
populations to apply for protection
closer to home. See E.O. 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 (Feb. 2, 2021). These
commitments were further enshrined
and expanded beyond Central and
North America in the June 2022 L.A.
Declaration endorsed by the United
States and 19 nations in the Western
Hemisphere.90 Indeed, the L.A.
Declaration specifically outlines ‘‘the
need to promote the political, economic,
security, social, and environmental
conditions for people to lead peaceful,
productive, and dignified lives in their
countries of origin’’ and states that
‘‘addressing irregular international
migration requires a regional
approach.’’ 91 At the same time, the
United States is expanding efforts to
protect refugees by increasing refugee
admissions and expanding refugee
processing within the Western
Hemisphere. In fact, on April 27, 2023,
DHS announced that it would commit to
welcoming thousands of additional
refugees each month from the Western
Hemisphere—with the goal of doubling
the number of refugees the United States
committed to welcome as part of the
L.A. Declaration.92 Therefore, the
United States is enhancing lawful
pathways for migration to this country
while improving efficiencies within the
U.S. asylum system.
Comment: Commenters stated that the
United States should welcome and not
punish asylum seekers because the
United States is responsible for creating
the conditions and other problems that
have caused many of the migrants
seeking asylum to leave their countries,
such as through American military,
intelligence, political, or economic
90 The White House, Los Angeles Declaration on
Migration and Protection (June 10, 2022), https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/.
91 Id.
92 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
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actions. Commenters also stated that the
United States should not limit access to
asylum for migrants coming from
countries where the United States
Government supported a regime change
that created the circumstances that the
migrants are fleeing. For example, one
commenter referenced the United
States’ support in prior conflicts in
Guatemala and El Salvador and the
current support for the controversial
leadership in El Salvador as reasons the
commenter believed the United States
was the cause of migration. One
commenter stated that the United States
has played a role in creating the
political instability that cause many
Central American refugees to flee and
seek asylum in the United States. Other
commenters expressed a belief that
many migrants are fleeing because of
climate change, to which the United
States has greatly contributed, or
because of challenging conditions in
some countries, including Haiti.
Another commenter argued that the U.S.
war on drugs has contributed to the
circumstances from which migrants are
fleeing to seek asylum at the SWB.
Response: The Departments recognize
commenters’ concerns that numerous
factors may have contributed to
migrants seeking asylum. As noted in
the preceding comment response,
political and economic instability,
coupled with the lingering adverse
effects of the COVID–19 global
pandemic, have fueled a substantial
increase in migration throughout the
world. This global increase is reflected
in the trends on the SWB, where the
United States has experienced a sharp
increase in encounters of non-Mexican
nationals over the past two years, and
particularly in the final months of 2022.
See 88 FR at 11708. This rule addresses
the Departments’ continued ability to
safely, effectively, and humanely
enforce and administer U.S.
immigration law, including the asylum
system, in anticipation of a potential
further surge of migration at the SWB,
regardless of any factors that may have
contributed to migration flows. The
Departments have sought to address this
situation by increasing lawful pathways
while also imposing consequences for
not using those pathways. The
Departments further note that the
United States has worked closely with
its regional partners to prioritize and
implement a strategy that advances safe,
orderly, legal, and humane migration,
including taking measures to address
the root causes of migration, expand
access to lawful pathways, improve the
U.S. asylum system, and address the
pernicious role of smugglers. For
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instance, the United States Government
has implemented new parole processes
for CHNV nationals that have created a
strong incentive for these individuals to
wait where they are to access an orderly
process to come to the United States.93
Additionally, the United States has
expanded refugee processing in the
region which provides another orderly
option for refugees to lawfully enter the
United States. See 88 FR at 11719.
Consistent with these processes, this
rule would further incentivize
noncitizens to avail themselves of other
lawful, safe, and orderly means for
seeking protection in the United States
or elsewhere.
Comment: Some commenters stated
that the United States is applying
inconsistent policy by ending
expulsions of noncitizens under the
Title 42 public health Order while
simultaneously creating new restrictions
on asylum. Commenters stated that the
United States Government should not
use the end of the Title 42 public health
Order as an excuse to resurrect asylum
restrictions. Commenters stated that the
United States has expelled individuals
from ‘‘Central America, Haiti, and . . .
Venezuela,’’ nearly 2.5 million times
while the Title 42 public health Order
has been in place, which, according to
commenters, has led to increasing
numbers of deaths along the border. One
commenter stated that it is ‘‘ludicrous’’
that the Government has acted as if the
pandemic is over except in the context
of welcoming asylum seekers.
Conversely, some commenters stated
that the ending of Title 42 is within the
Administration’s control and is not a
necessary justification for the rule, and
further critiqued the recent actions of
the Departments to prepare for the
termination as causative of the recent
border crisis.
Response: The Departments
respectfully disagree that this action is
inconsistent with the lifting of the Title
42 public health Order. It is important
to note that the CDC’s April 2022
decision to terminate the Title 42 public
health Order and HHS’s separate
decision to not renew the public health
emergency after May 11, 2023, resulting
in the impending termination of the
Title 42 public health Order, were based
on considerations of public health, not
immigration policy. HHS and CDC
exercise authority under Title 42 of the
U.S. Code to make public health
93 See DHS, Press Release, DHS Continues to
Prepare for End of Title 42; Announces New Border
Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://
www.dhs.gov/news/2023/01/05/dhs-continuesprepare-end-title-42-announces-new-borderenforcement-measures-and.
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determinations for a range of purposes.
See 42 U.S.C. 265, 268; section 319 of
the Public Health Service Act; 42 CFR
71.40. Throughout the COVID–19
pandemic, DHS and DOJ have relied
and will continue to rely on the public
health expertise of CDC and HHS, and
DHS will implement relevant CDC
orders to the extent that they remain in
effect.
After the Title 42 public health Order
is lifted, migrants will be subject to Title
8 processing. The Departments
anticipate that in the absence of this
rulemaking, a significant further surge
in irregular migration would then occur.
Such a surge would risk (1)
overwhelming the Departments’ ability
to effectively process, detain, and
remove, as appropriate, the migrants
encountered; and (2) placing additional
pressure on States, local communities,
and NGO partners both along the border
and in the interior of the United States.
This rule will disincentivize irregular
migration and instead incentivize
migrants to take safe, orderly, and
lawful pathways to the United States or
to seek protection in a third country.
ii. Ports of Entry Should Be Open to
Anyone To Make an Asylum Claim
Comment: Commenters stated that
everyone escaping persecution should
be able to seek safety in the United
States by presenting at a POE, and that
migrants should not be required to make
appointments to present themselves or
to seek asylum in third countries where
they may face harm. Another
commenter stated that the rule would
limit asylum to the ‘‘privileged and
connected’’ despite longstanding legal
precedent holding that individuals
should be able to access asylum
regardless of manner of entry. One
commenter stated that even if migrants
have a relatively low chance of
approval, they have a right to enter the
United States and apply for asylum,
because some claims will be successful.
Commenters stated that the United
States denies visas to many people who
face persecution, so those same people
should not be denied asylum for failing
to travel with a visa. For example, at
least one commenter stated that an
average person from Central America
would struggle to get a tourist, student,
or other visa. Another commenter stated
that everyone, regardless of manner of
entry, manner of transit, nationality, or
other arbitrary restriction, should have
the right to seek asylum in the United
States.
Response: As discussed in more detail
in Section IV.D.1 of this preamble, this
rule does not deny anyone the ability to
apply for asylum or other protection in
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the United States; instead, the
Departments have exercised their
authority to adopt additional conditions
for asylum eligibility by adopting a
rebuttable presumption of ineligibility
for asylum in certain circumstances.
The Departments acknowledge and
agree that any noncitizen who is
physically present in the United States
may apply for asylum, but note that
there is no freestanding right to enter or
to be processed in a particular manner.
See U.S. ex rel. Knauff v. Shaughnessy,
338 U.S. 357, 452 (1950) (‘‘At the outset
we wish to point out that an alien who
seeks admission to this country may not
do so under any claim of right.
Admission of aliens to the United States
is a privilege granted by the sovereign
United States Government’’).
Importantly, under this rule, any
noncitizen will be able to present at a
POE, and no individual—regardless of
manner of entry into the United States—
will be turned away or denied the
opportunity to seek protection in the
United States under this rule.
Noncitizens who lack documents
appropriate for admission to the United
States are encouraged and incentivized,
but not required, to make an
appointment using the CBP One app to
present themselves at a POE for
inspection.
The use of the CBP One app will
contribute to CBP’s efforts to expand its
SWB POE migrant processing capacity
well beyond the 2010–2016 daily POE
average,94 resulting in increased access
for noncitizens to POEs. Those who
arrive at a POE without an appointment
via the CBP One app may be subject to
longer wait times for processing at the
POE depending on daily operational
constraints and circumstances. And this
rule does not preclude such noncitizens,
or other noncitizens who cross the
southwest land border or adjacent
coastal borders, from filing an asylum
application. Indeed, in all cases, any
noncitizen who is being processed for
expedited removal may express or
indicate a fear of return during the
expedited removal process, and will be
referred to USCIS for a credible fear
interview, as appropriate. See INA
235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). Also, noncitizens in
section 240 removal proceedings have
the opportunity to present information
asserting fear or concern of potential
removal. See INA 240(c)(4), 8 U.S.C.
1229a(c)(4). Although such individuals
94 See CBP STAT Division, U.S. Customs and
Border Protection (CBP) Enforcement Encounters—
Southwest Border (SBO), Office of Field Operations
(OFO) Daily Average (internal data report, retrieved
Apr. 13, 2023).
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may be presumptively ineligible for
asylum under this rule, they may seek
to establish that they are subject to an
exception or to rebut that presumption,
and they may also still seek statutory
withholding of removal and CAT
protection in the United States, as
outlined in Section IV.E.8 of this
preamble. The Departments also note
that a purpose of this rule is to facilitate
safe and orderly travel to the United
States. Individuals who lack a visa are
generally inadmissible to the United
States, see INA 212(a)(7), 8 U.S.C.
1182(a)(7), and will remain so under
this rule.
iii. Belief That the Rule Will Result in
Denial of Valid Asylum Claims
Comment: Commenters stated that the
rule would result in the denial of valid
asylum claims and described the right to
seek asylum as a human right. One
commenter emphasized that, when
Congress created the credible screening
process, the premise of the screening
was for adjudicators to err on the side
of protection. Multiple commenters
expressed concern that implementing
the proposed rule would increase the
likelihood that asylum seekers would be
refouled or migrants returned to harmful
conditions. One commenter said that
denying a bona fide asylum claim and
putting a would-be applicant at risk of
danger is a greater mistake than making
a positive credible fear determination
that does not result in asylum. At least
one commenter disagreed with the
proposed rule’s assertion that
noncitizens who forgo certain lawful or
orderly procedures are less likely to
have a well-founded fear than those
who do and stated that this assertion is
unsupported.
Commenters stated that the rule
imposes conditions on noncitizens’
access to asylum that have nothing to do
with the merits of their asylum claims
and merely puts up bureaucratic
hurdles. One commenter stated that
people often have no control or choice
in how they get to the United States,
which is a matter of survival. Another
commenter stated that rushed procedure
created by this rule would result in
what the commenter describes as false
negatives, as asylum seekers subjected
to this process would be disoriented
from their days in CBP’s holding
facilities, especially after undergoing a
harrowing journey to the United States
that likely included violence,
persecution, and trauma. Commenters
stated that instead of filtering out
migrants with weak asylum claims, the
rule would stop the most vulnerable
from being able to apply for asylum.
One commenter stated that it may be
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necessary for asylum seekers to cross
the border by unscrupulous means to
escape their persecutors and that this
bolsters their case for asylum rather
than detracts. Commenters stated that
the exceptions to the proposed rule do
little to provide meaningful safeguards
for asylum seekers and would result in
erroneous denials and forced return to
countries where the noncitizen would
face danger. Commenters stated that
asylum seekers who are otherwise
eligible for asylum but banned by the
rule would likely be deported to danger.
Other commenters stated that the
framework of the rebuttable
presumption would have negative
effects and de facto be dispositive of
asylum eligibility before noncitizens
have a ‘‘fair shot at making their case.’’
One commenter wrote that, concerning
the one-year asylum filing deadline,
numerous reports have shown the
impact of such bars on returning
individuals to harm.
Response: The Departments disagree
that the rule creates an unwarranted risk
of denial of valid asylum claims. The
U.S. asylum system is governed by
statute and implementing regulations.
To receive asylum, noncitizens must
establish that (1) they meet the
definition of a ‘‘refugee,’’ under section
101(a)(42) of the INA, 8 U.S.C.
1101(a)(42), (2) they are not subject to a
bar to applying for asylum or a bar to
the granting of asylum, and (3) they
merit a favorable exercise of discretion.
See INA 208(a)(2), 8 U.S.C. 1158(a)(2);
INA 208(b)(1), 8 U.S.C. 1158(b)(1); INA
240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A); 8
CFR 1240.8(d); see also Moncrieffe v.
Holder, 569 U.S. 184, 187 (2013)
(describing asylum as a form of
‘‘discretionary relief from removal’’);
Delgado v. Mukasey, 508 F.3d 702, 705
(2d Cir. 2007) (‘‘Asylum is a
discretionary form of relief . . . . Once
an applicant has established eligibility
. . . it remains within the Attorney
General’s discretion to deny asylum.’’).
Because asylum is a discretionary form
of relief from removal, the assumption
that this rule will result in the risk of
denial of valid asylum claims is
incorrect because the noncitizen bears
the burden of showing both eligibility
for asylum and why the Attorney
General or Secretary should exercise the
discretion to grant relief. See INA
208(b)(1), 8 U.S.C. 1158(b)(1); INA
240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A)(ii);
8 CFR 1240.8(d); Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004).
The Departments acknowledge that
despite the protections preserved by the
rule and the availability of lawful
pathways, the rebuttable presumption
adopted in the rule will result in the
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denial of some asylum claims that
otherwise may have been granted, but
the Departments believe that the rule
will generally offer opportunities for
those with valid claims to seek
protection through asylum, statutory
withholding of removal, or protection
under the CAT. Moreover, the
Departments have determined that the
benefits to the overall functioning of the
system, including deterrence of
dangerous irregular migration and
smuggling, justify the rule.
The rule encourages those with
meritorious claims to either apply for
asylum or other protection in the first
safe country they reach or pursue
available lawful pathways as set forth in
the rule. Noncitizens who apply for and
are denied protection in a third country
are not barred from asylum eligibility
under this rule. The rule will preserve
core asylum protections by permitting
noncitizens subject to the presumption
of asylum ineligibility to rebut it by
showing exceptionally compelling
circumstances that excuse their failure
to pursue lawful pathways or processes.
Furthermore, under the rule,
noncitizens who are ineligible for
asylum due to the lawful pathways
condition remain eligible for protections
from persecution and torture. Indeed,
noncitizens who establish a reasonable
possibility of persecution or torture are
placed in section 240 removal
proceedings where they can apply for
asylum, statutory withholding of
removal, and protection under CAT. 8
CFR 1208.33(b)(2)(ii), (b)(4). Thus, the
rule does not prevent noncitizens from
pursuing asylum nor does the rule
create an unwarranted risk of denial of
valid asylum claims.
iv. Belief That the Rule Will Increase
Smuggling or Trafficking
Comment: Commenters agreed that
human trafficking is a serious concern,
but asserted that this rule would make
the problem worse. Commenters stated
the proposed rule will not result in
asylum seekers relying less on
smuggling networks, but will actually
increase their reliance on smugglers and
increase their vulnerability to
trafficking. One stated that desperate
people turn to traffickers because they
fear being turned away by authorities,
and that the most effective way to
remove traffickers’ leverage is to open
safe and legal pathways for immigration.
Another commenter stated that the
United States should make it easier to
legally enter for work as a way to
discourage trafficking by smugglers
rather than implement the proposed
rule. Some commenters stated human
smuggling and trafficking were
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problems of the Government’s own
making, and by discouraging migrants
from coming to the border in a legal
manner, the rule would increase the
interactions between migrants and
smugglers, as well as increasing the
number of noncitizens without lawful
immigration status in the United States.
Commenters also stated that closing off
the SWB and trapping migrants in
dangerous parts of Mexico for a
prolonged time exposes them to greater
violence, exploitation, and other
dangers, and heightens their risk of
being trafficked. One commenter stated
that in the event that people are unable
to get an appointment through the CBP
One app and are blocked from access to
asylum, smuggling operations and
organized crime in Mexico will only
gain more power, take individuals on
more treacherous routes to evade
detection, and cause USBP to invest
more resources to detain individuals.
Another commenter stated that the rule
would further embolden organized
crime, corrupt state actors, and
criminals, making migrants even more
of a target and placing them at greater
risk of being trafficked. One commenter
stated, without evidence, that the TCT
Bar Final Rule advantaged drug cartels
and criminal organizations that target
vulnerable populations, and asserted
that this rule would have the same
result.
Commenters said that technical
difficulties associated with the CBP One
app have opened new avenues for
exploitation; for example, traffickers
claiming an ability to obtain
appointments, or scams charging fees
for completing a CBP One app
registration. Similarly, one commenter
said that individuals who lack access to
stable Wi-Fi may seek Wi-Fi in
dangerous places, including cities
controlled by cartels. Another
commenter wrote that the need for
migrants to borrow a smartphone from
a third party could create an
opportunity to take advantage of
migrants trapped at the U.S.-Mexico
border to target them for extortion,
sexual violence, or other harm. In
contrast, based on its field monitoring,
a different commenter stated that the
CBP One app has led to a reduction in
instances of fraud and abuse of migrants
who previously relied on local actors to
get on lists to request an exception to
the Title 42 public health Order.
Another commenter expressed
concern that the proposed rule may
discourage migrants from contacting
U.S. law enforcement for fear of
deportation, increasing the likelihood of
trafficking and smuggling. One
comment stated that the rule would
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continue the Administration’s shameful
legacy of facilitating mass trafficking
and smuggling of vulnerable noncitizens
because it is ‘‘all bark and no bite’’ due
to its ‘‘numerous loopholes and
exceptions,’’ unlike the TCT Bar
rulemaking, which the commenter
described as part of a multi-pronged
strategy to secure the border.
Response: The Departments
acknowledge the commenters’ concerns
about smuggling and trafficking, but
disagree with the either/or approach
urged by some commenters. To prevent
migrants from falling victim to
smugglers and traffickers, the
Departments believe it is necessary to
both increase the availability of lawful
pathways for migration and discourage
attempts to enter the United States
without inspection. The Departments
anticipate that the newly expanded
lawful pathways to enter the United
States, in conjunction with the rule’s
condition on asylum eligibility for those
who fail to exercise those pathways,
will ultimately decrease attempts to
enter the United States without
authorization, and thereby reduce
reliance on smugglers and human
traffickers.
DHS has recently created alternative
means for migrants to travel to the
United States via air through the CHNV
parole processes, increased refugee
processing in the Western hemisphere,
and increased admissions of
nonimmigrant H–2 workers from the
region. 88 FR at 11718–20. DHS also
recently announced that it plans to
create new family reunification parole
processes for nationals of El Salvador,
Guatemala, Honduras, and Colombia,
and to modernize the existing Haitian
Family Reunification Parole process and
the Cuban Family Reunification Parole
process.95 In addition, noncitizens’ use
of the CBP One app to schedule
appointments to present at land border
POEs is expected to enhance DHS’s
ability to process such individuals in a
safe, orderly manner. As discussed later
in Section IV.E.3.ii.a of this preamble,
CBP anticipates processing several times
more migrants each day at SWB POEs
than the 2010–16 daily average,96
95 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
96 See CBP STAT Division, U.S. Customs and
Border Protection (CBP) Enforcement Encounters—
Southwest Border (SBO), Office of Field Operations
(OFO) Daily Average (internal data report, retrieved
Apr. 13, 2023); Memorandum for William A.
Ferrara, Exec. Ass’t Comm’r, Off. of Field
Operations, from Troy A. Miller, Acting Comm’r,
CBP, Re: Guidance for Management and Processing
of Undocumented Noncitizens at Southwest Border
Land Ports of Entry (Nov. 1, 2021), https://
www.cbp.gov/sites/default/files/assets/documents/
2021-Nov/CBP-mgmt-processing-non-citizens-swblpoes-signed-Memo-11.1.2021-508.pdf.
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including through the use of the CBP
One app. While the CBP One app
provides noncitizens access to schedule
arrivals at a POE, no CBP officer will
dissuade or prevent any noncitizen who
lacks a scheduled appointment from
applying for admission to the United
States. See INA 235(a)(4), U.S.C.
1225(a)(4); 8 CFR 235.1, 235.4 (decision
to withdraw application for admission
must be made voluntarily).
The Departments disagree that the
CBP One app or accessibility issues
associated with the CBP One app will
increase reliance on smugglers and
traffickers. The CBP One app is a free,
public-facing application that can be
downloaded on a mobile phone. 88 FR
at 11717. As noted in the received
comments, the International
Organization for Migration (‘‘IOM’’) has,
during its recent field monitoring,
observed that the CBP One app has led
to a reduction in instances of fraud and
abuse of migrants who previously relied
on local actors to get on lists to request
an exception to the Title 42 public
health Order, and recommended that
CBP further develop the CBP One app
to prevent glitches and incorporate
improvements suggested by IOM and
other stakeholders. CBP is continuing to
improve the CBP One app and engage
with stakeholders on potential
improvements. The rule also contains
an exception for situations where it was
not possible to access or use the app due
to language barrier, illiteracy, significant
technical failure, or other ongoing and
serious obstacle. 8 CFR 208.33(a)(2)(B),
1208.33(a)(2)(B).
The Departments also disagree with
the assertion that, due to its exceptions
and means of rebuttal, the rule will
facilitate mass trafficking and smuggling
of vulnerable noncitizens. The recently
expanded lawful pathways are designed
to allow migrants to travel directly to
the United States without having to
travel through Central America, where
they might rely on smugglers or
traffickers. In addition, some of the
specific examples of exceptionally
compelling circumstances are designed
to protect victims or those at risk of
trafficking. See 8 CFR 208.33(a)(3)(i)(B)
and (C), 1208.33(a)(3)(i)(B) and (C).
Finally, the Departments do not
believe that the rule will discourage
migrants from contacting U.S. law
enforcement due to fear of deportation,
and thereby place them at further risk of
trafficking and smuggling. Migrants who
enter the United States without
inspection or apprehension by CBP are
already subject to removal, see INA
212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A), and
victims of severe forms of trafficking or
other crimes may be eligible to apply for
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101(a)(15)(T) and (U), 8 U.S.C.
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4. Negative Impacts and Discrimination
Against Particular Groups
i. General Comments on Discrimination
Comment: Commenters raised
concerns that the proposed rule could
have a disproportionate impact on
certain populations that may be
vulnerable, including those without
legal representation, those with limited
English proficiency (‘‘LEP’’), families
and children, victims of domestic and
gender-based violence, victims of
human trafficking, women, the LGBT
community, those with mental
impairments and associated competency
issues, elderly individuals, those with
limited technological literacy, those
with physical disabilities, those with
health problems or who are otherwise in
need of medical attention, people of
color, indigenous groups, survivors of
persecution or torture, and those with
post-traumatic stress disorder (‘‘PTSD’’),
among others.
For example, commenters stated that
those without legal representation or
with limited English proficiency may
have difficulty understanding and
complying with the process proposed by
the rule, which commenters claimed
requires access to technology,
technological proficiency, and an
understanding of the requirements prior
to attempting entry at the SWB.
Likewise, commenters suggested that
groups including survivors of
persecution or torture, the LGBT
community, victims of domestic and
gender-based violence, women, and
noncitizens with mental impairments
and associated competency issues may
have difficulty applying for relief in a
third country, as those countries may
not have sufficiently robust
humanitarian-relief systems to
accommodate the particular issues faced
by these and similar groups. For
instance, many such individuals may
have difficulty recounting the harms
they suffered in their home countries
without specialized procedures, and
some third countries may not recognize
their harms as qualifying for asylum in
the same way that U.S. asylum law
does. Similarly, commenters stated,
some groups may also face particular
discrimination or violence in third
countries based on the same immutable
characteristics for which they were
persecuted in their home countries.
Other commenters highlighted
anecdotally that membership in one
group has often intersected with
membership in another, compounding
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the harm noncitizens have experienced
in transit.
Response: The Departments are
committed to the equal treatment of all
persons. This rule is intended to
promote lawful, safe, and orderly
pathways to the United States and is
intended to benefit particularly
vulnerable groups by removing the
incentive to make a dangerous irregular
migration journey and reducing the role
of exploitative transnational criminal
organizations and smugglers. See 88 FR
at 11707. As detailed in the NPRM,
irregular migration journeys can be
particularly fraught for vulnerable
groups, including those discussed in the
following sections. See 88 FR at 11713
(explaining that women and children
are ‘‘particularly vulnerable to attack
and injury’’ as well as illness along an
important migratory route). The
incentivizing of the lawful pathways
described in the NPRM is intended in
part to encourage vulnerable groups to
avoid such journeys while
simultaneously preserving their ability
to apply for asylum consistent with
existing law and regulations. See, e.g.,
88 FR at 11718 (explaining that the
United States has taken ‘‘meaningful
steps’’ to enhance lawful pathways for
migrants to access protection). In
addition, depending on individual
circumstances, AOs and IJs may find
that certain especially vulnerable
individuals meet the exceptionally
compelling circumstances standard.
ii. Children and Families
Comment: Commenters raised
concerns about the proposed rule’s
impact on children and families. In
general, commenters stated that the
United States has a legal and moral
obligation to act in the best interest of
children by preserving family unity and
should be doing whatever it can to
protect children seeking asylum,
especially after prior family separation
policies at the border. Commenters
generally asserted that the proposed rule
would expose children and families to
continued violence and danger, limit
their right to seek asylum, and deny
children the opportunity to be safe and
protected. Commenters provided
anecdotal examples of migrant families
and children who had been harmed or
killed while waiting at the border to
secure an appointment through the CBP
One app or while attempting to travel to
POEs with available appointments.
Commenters asserted that the proposed
rule would prevent accompanied
children from presenting their own
asylum claims independent of a claim
presented by their parent or guardian.
Commenters were concerned that the
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asylum ineligibility presumption would
encourage families to separate at the
SWB and prevent noncitizens from
petitioning for their eligible derivatives,
which commenters claimed would be a
form of family separation, and described
potential attendant negative
consequences for children and families,
such as trauma, familial instability,
developmental delays, vulnerability to
harm and exploitation, detention,
placement in orphanages, and detention
in inhumane conditions.
Further, commenters asserted that all
children, because of their unique needs
and challenges, deserve additional
procedural protections and childsensitive considerations not included in
the proposed rule. Commenters
highlighted the vulnerability of
children, the fact that children process
trauma differently than adults do, and
children’s varied ability to understand
complex immigration requirements,
stating that the law recognizes the need
for additional protections for children
and to account for their best interests.
Commenters also suggested that the
proposed rule and any detention that it
may require would re-traumatize
children who have already experienced
trauma, including trauma from their
journey to the SWB. Other commenters
suggested that any required detention
may have serious ramifications on a
child’s well-being, mental health, and
development.
Additionally, commenters posited
that the proposed rule could incentivize
entire families to make a potentially
dangerous journey to the United States
together. Commenters stated that prior
to the proposed rule, one family
member might have journeyed alone to
the United States to seek asylum with
the understanding that they would be
able to petition for family members
upon being granted asylum. But under
the proposed rule, those commenters
stated, many families may be
incentivized by what commenters
consider a lack of asylum availability to
undertake an unsafe journey to the SWB
together rather than risk permanent
family separation. Relatedly,
commenters indicated that children
compelled to wait at the SWB with a
member of their family, so as not to be
subject to the NPRM’s condition on
eligibility, may be deprived of access to
other forms of status for which they may
be eligible in the United States, such as
Special Immigrant Juvenile
classification. Commenters urged the
Departments to prioritize processing
family unit applications to keep families
together and expressed that families
deserve a chance to live together in the
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United States to escape violence in their
home countries.
One commenter stated that children
have little control over whether their
parents can pre-schedule their arrival at
a POE or choose to apply for protection
in transit countries, but the proposed
rule would condition asylum eligibility
for the child on whether their parent did
so. Similarly, other commenters stated
that the proposed rule failed to consider
or make an exception for the fact that
children and young people generally
have less control and choice with
respect to their movement and may
depend on the assistance of a parent,
who may have been jailed or killed by
persecutors, or who may themselves
have harmed the child or young person,
to apply and be approved for a visa.
Response: The Departments share
commenters’ concerns about the
vulnerability of children and note that
UCs are entitled to special protections
under the law. See 88 FR at 11724
(citing INA 208(a)(2)(E), 8 U.S.C.
1158(a)(2)(E) (providing that safe-thirdcountry bar does not apply to UCs); INA
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C)
(stating that an AO has initial
jurisdiction over the asylum claims of
UCs); and 8 U.S.C. 1232(d)(8)
(‘‘Applications for asylum and other
forms of relief from removal in which an
unaccompanied alien child is the
principal applicant shall be governed by
regulations which take into account the
specialized needs of unaccompanied
alien children and which address both
procedural and substantive aspects of
handling unaccompanied alien
children’s cases.’’)). The Departments
also recognize commenters’ concerns
that children may be at risk for
exploitation by criminal actors at and
around the SWB, and the Departments
note that UCs are of particular concern.
Because of UCs’ unique vulnerability
and the special protections granted to
them by law, the rule contains a
provision categorically excepting UCs
from the rebuttable presumption of
ineligibility for asylum. 8 CFR
208.33(a)(2)(i), 1208.33(a)(2)(i).
Accordingly, because UCs will not be
subject to the rebuttable presumption of
ineligibility for asylum created by this
rule, the Departments emphasize that
UCs do not need to wait, potentially
vulnerable, in Mexico before seeking
entry to the United States or rely on
smugglers to undertake a potentially
dangerous journey across the SWB.
Further, the Departments expect that the
rule, by creating efficiencies and freeing
up resources due to non-UC migrants
pre-scheduling their arrival at SWB
POEs, will allow for faster, smoother
processing of UCs presenting at the
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SWB. See 88 FR at 11719–20 (describing
anticipated efficiencies from
implementation of pre-scheduling
through the CBP One app). The
Departments believe that the rule
sufficiently recognizes the unique
situation of UCs and provides
appropriate safeguards. For discussion
of the exception to the condition on
asylum eligibility for UCs, and
comments suggesting a similar
exception for accompanied children,
please see Section IV.E.3.v of this
preamble.
The Departments acknowledge
commenter concerns that children may
not have the autonomy to make
decisions about their transit or manner
of entry into the United States. With
those important realities in mind, the
Departments have amended the
language proposed in the NPRM to
ensure that the presumption of asylum
ineligibility will not apply to certain
noncitizens who entered as children
and who file asylum applications after
the date range set forth in 8 CFR
208.33(a)(1)(i) and 1208.33(a)(1)(i)—
specifically, those who are applying as
principal applicants. See 8 CFR
1208.33(d)(2). Further, the Departments
recognize that some children could be
traveling with an adult but still meet the
definition of UC at 6 U.S.C. 279(g)(2),
for example, where the adult is not the
child’s parent or legal guardian. Such
children would also be excepted from
the presumption against asylum
eligibility as UCs. See 8 CFR
208.33(a)(2)(i), 1208.33(a)(2)(i). The
Departments believe that the
aforementioned provisions of the rule
prevent those who entered as children
from facing a continuing impact on
asylum eligibility based upon decisions
that others likely made for them.
As discussed in more detail in Section
IV.E.3.ii.b of this preamble, the
Departments emphasize that family
units traveling together should schedule
their appointments together through the
CBP One app. Families or groups
traveling together who do not register
together on one CBP One app account
may not be accommodated at the same
POE or date. Further, as stated in the
NPRM, when family units are subject to
a credible fear screening, USCIS will
find that the entire family passes the
screening if one family member
establishes a credible fear. 88 FR at
11724; see 8 CFR 208.30(c). Likewise,
when the reasonable possibility
standard applies, USCIS will continue
to process claims from family units in
this way. 88 FR at 11724 (‘‘USCIS will
continue to process family claims in this
manner even when applying the
reasonable possibility standard.’’).
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The Departments also acknowledge
commenter concerns related to the
impact that any potential detention may
have on children and families, as well
as the effects of trauma on children.
However, this rule neither addresses nor
expands detention policies, and
therefore specific concerns related to
detention are outside the scope of this
rule. Further, with respect to the effects
of trauma on children and concerns
about re-traumatization, the
Departments are confident in the ability
of AOs and IJs to follow appropriate
safeguards available for children in
processing with USCIS and the
immigration courts and note that
adjudicators receive training and
guidance related to special
considerations in cases involving
children.97
However, the Departments disagree
with commenters’ contention that
children waiting for an appointment to
present at a POE together with their
family unit will be deprived of Special
Immigrant Juvenile classification.
Whether a noncitizen enters alone or
with a family unit is not dispositive to
the statutory definition of a ‘‘special
immigrant.’’ See INA 101(a)(27)(J), 8
U.S.C. 1101(a)(27)(J) (defining ‘‘special
immigrant,’’ in part, as an immigrant
who is present in the United States
‘‘who has been declared dependent on
a juvenile court located in the United
States or whom such a court has legally
committed to, or placed under the
custody of, an agency or department of
a State, or an individual or entity
appointed by a State or juvenile court
located in the United States,’’ and
whose reunification with one or both of
the immigrant’s parents ‘‘is not viable
due to abuse, neglect, abandonment, or
a similar basis found under State law’’).
Further, the Departments highlight that
nothing in this rulemaking prevents a
noncitizen child from obtaining Special
Immigrant Juvenile classification after
entering the United States, provided
that they are otherwise eligible for such
status.
Moreover, the Departments disagree
with the characterization of this rule as
contributing to family separation rather
97 See, e.g., Department of Justice, EOIR, OPPM
17–03: Guidelines for Immigration Court Cases
Involving Juveniles, Including Unaccompanied
Alien Children (Dec. 20, 2017), https://
www.justice.gov/eoir/file/oppm17-03/download
(recognizing unique circumstances presented by
immigration cases involving children and providing
guidance for those cases); USCIS, RAIO
Directorate—Officer Training: Children’s Claims
(last revised Dec. 20, 2019), https://www.uscis.gov/
sites/default/files/document/foia/Childrens_
Claims_LP_RAIO.pdf [hereinafter USCIS, Children’s
Claims] (providing guidelines for adjudicating
children’s claims).
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than focusing on family unity. The
Departments drafted this rule with the
goal of eliminating the risk of separating
families. As explained above, the rule
has several provisions to ensure that
family units are processed together. For
example, if any noncitizen in a family
unit traveling together meets an
exception to, or is able to rebut, the
asylum ineligibility presumption, the
presumption will not apply to anyone in
the family unit traveling together. 8 CFR
1208.33(a). Similarly, the rule contains
an explicit family unity provision
applicable in removal proceedings. Id.
1208.33(c). The provision states that if
a principal applicant for asylum is
eligible for statutory withholding of
removal or withholding of removal
under the CAT and would be granted
asylum but for the rebuttable
presumption created by this rule, the
presumption ‘‘shall be deemed rebutted
as an exceptionally compelling
circumstance’’ where an accompanying
spouse or child does not independently
qualify for asylum or other protection or
the principal asylum applicant has a
spouse or child who would be eligible
to follow to join that applicant as
described in section 208(b)(3)(A) of the
INA, 8 U.S.C. 1158(b)(3)(A), if the
applicant were granted asylum. Id. This
provision is intended to prevent the
separation of families. Additionally, this
provision is intended to avoid
incentivizing families to engage in
irregular migration together, so as not to
risk that the principal applicant be
prevented from later applying for their
family members to join them. This may
involve making a dangerous journey
with vulnerable family members such as
children.
Further, the rule incentivizes families,
as well as individuals traveling without
their families, to take advantage of the
lawful pathways outlined in this rule,
rather than rely on smugglers or
criminal organizations to facilitate a
potentially dangerous journey. The
rebuttable presumption is intended to
disincentivize making such irregular
journeys. See, e.g., 88 FR at 11730 (‘‘The
proposed rule aims to achieve that shift
in incentives by imposing a rebuttable
presumption of asylum ineligibility.’’).
The Departments believe that the
meaningful pathways detailed in the
rule, combined with the exceptions and
rebuttals to the presumption, provide
sufficient opportunities for individuals
to meet an exception to or rebut the
presumption, which could preclude
asylee status and the ability to later
petition for eligible derivatives. Finally,
commenter concerns related to placing
separated children in orphanages are
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outside the scope of this rulemaking,
but the Departments emphasize that
nothing in this rule would authorize
such a process.
For additional discussion of concerns
related to due process, see Section
IV.B.5 of this preamble. For more
discussion of the family unity provision
applicable in removal proceedings,
please see Section IV.E.7.ii of this
preamble.
iii. Individuals With LEP
Comment: Commenters expressed the
belief that the proposed rule would
function as a complete ban on asylum
for noncitizens who are not sufficiently
proficient or literate in the languages
they would need to use to successfully
navigate available lawful pathway
options. As a foundational issue,
commenters voiced the opinion that due
to language and literacy barriers, many
noncitizens, particularly those who
speak rare languages and those with
limited literacy in their native
languages, would not be able to
understand what lawful pathways are
available to them or the consequences
that may result from not pursuing a
lawful pathway under the proposed
rule. For example, some commenters
stated that many asylum seekers who
are unfamiliar with U.S. immigration
law may not know what steps to take to
preserve their eligibility for asylum.
Commenters also indicated that many
noncitizens would be unable to
meaningfully access the CBP One app
due to inadequate proficiency or literacy
in the app’s supported languages and
therefore would be unable to preschedule their appearance at a POE,
making them subject to the rule’s
presumption of asylum ineligibility.
Commenters provided examples of
individuals who they asserted would be
disproportionately impacted by the rule
and face particular challenges,
including those who speak an Afghan
dialect of the Persian language,
monolingual speakers of indigenous
languages, and members of the AsianPacific Islander community whose
primary languages do not utilize the
Latin script.
Response: Due to the safeguards
crafted into the rule and the success of
similar, recently implemented parole
processes, the Departments disagree
with commenters’ contentions that
language and literacy barriers will
prevent many noncitizens from
foundationally understanding what
lawful pathway options are available to
them.
The Departments acknowledge
commenters’ concerns that some
noncitizens who wish to use the lawful
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pathway of pre-scheduling their arrival
may have language and literacy-related
difficulty with accessing and using the
CBP One app. Accordingly, the rule
provides an exception to application of
the rebuttable presumption of asylum
ineligibility for noncitizens who present
at a POE without a pre-scheduled
appointment who can demonstrate
through a preponderance of the
evidence that, because of a language
barrier or illiteracy, it was not possible
for them to access or use the DHS
scheduling system to pre-schedule an
appointment. 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). AOs will follow
established procedures for interviewing
individuals to determine applicability of
this exception. Similarly, IJs will follow
established procedures for soliciting
testimony and developing the record, as
appropriate.
The Departments also believe the
processes highlighted in this rulemaking
will be navigable for noncitizens—
regardless of language spoken—as
evidenced by the success of the recent,
similar U4U and CHNV parole
processes, both of which are offered to
noncitizens from countries where the
primary language is one other than
English. See, e.g., 88 FR at 11706–07
(noting that the U4U and CHNV parole
processes resulted in vastly fewer
irregular border crossings,
demonstrating that noncitizens from
Ukraine, Cuba, Haiti, Nicaragua, and
Venezuela were able to take advantage
of the U4U and CHNV parole processes).
The success of the U4U and CHNV
parole processes suggests that these
noncitizens are broadly aware of
changes to U.S. immigration processes,
that such information is being
communicated to noncitizens outside
the United States, and that noncitizens
are changing migration behaviors in
response. In addition, the Departments
intend to engage in robust regional
public awareness campaigns to promote
understanding of the rule, building on
ongoing efforts to encourage intending
migrants to avail themselves of lawful
pathways and publicize the perils of
irregular migration. Therefore, the
Departments believe that, irrespective of
language spoken, noncitizens outside of
the United States will become apprised
of the lawful pathway options laid out
in this rule.
iv. Individuals With Mental
Impairments and Associated Mental
Competency Issues
Comment: Commenters raised
concerns about the proposed rule’s
effect on noncitizens who have mental
impairments and associated mental
competency issues. Commenters stated
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that some mental impairments result in
symptoms that would impact an
individual’s ability to apply for asylum
under any circumstances, especially if
access to medical services is
unavailable. Moreover, commenters
stated that downloading, registering for,
and using the CBP One app may be too
difficult for some noncitizens with
mental impairments and associated
mental competency issues. Thus,
commenters recommended exempting
such persons from the rule.
Response: The Departments recognize
the difficulties faced by noncitizens
with mental impairments and associated
competency issues. Under this rule,
AOs and IJs may consider, on a case-bycase basis, whether a noncitizen’s or
accompanying family member’s mental
impairments or associated competency
issues presented an ‘‘ongoing and
serious obstacle’’ to accessing the DHS
scheduling system. 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
In addition, depending on the
noncitizen’s or accompanying family
member’s particular circumstances, any
serious mental impairments or
associated competency issues may
qualify as an ‘‘exceptionally compelling
circumstance’’ sufficient to rebut the
presumption of ineligibility for asylum.
8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i).
Notably, the ‘‘acute medical emergency’’
ground for rebutting the presumption of
asylum ineligibility is not limited to
physical medical ailments but could
include mental health emergencies. 8
CFR 208.33(a)(3)(i)(A),
1208.33(a)(3)(i)(A).
Procedurally, DHS has discretion to
place noncitizens in expedited removal
proceedings or refer noncitizens to EOIR
for section 240 removal proceedings.
Matter of E–R–M- & L–R–M, 25 I&N Dec.
520 (BIA 2011). Therefore, DHS may
choose to refer noncitizens who exhibit
indicia of mental incompetency to EOIR
for removal proceedings under section
240 of the INA, where an IJ may more
fully consider whether the noncitizen
shows 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).
v. Low-Income Individuals
Comment: Commenters asserted that
the proposed rule discriminates against
noncitizens who cannot afford to arrive
in the United States by air or sea and
favors individuals with more financial
resources. In general, commenters
stressed that a noncitizen’s method of
arrival in the United States—whether by
land, air, or sea—should not dictate
their eligibility for asylum and stated
that asylum laws should not have a
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‘‘wealth test’’ for access to protection
from persecution. Pointing to the fact
that the proposed rule would only apply
to noncitizens arriving by land at the
SWB, commenters said that the
proposed rule would have a disparate
impact on individuals, particularly
working-class, non-white migrants, who
do not have the economic means to
purchase a plane ticket or obtain a
visitor visa or passport and may not
have existing supportive relationships
within the United States. Commenters
stated that the lawful pathways
identified in the proposed rule—
including parole programs and use of
DHS scheduling technology—prioritize
individuals with financial means over
those who are indigent.
At least one commenter stated that the
proposed rule would cause migrants
financial hardship, as not all migrants
have the financial resources to travel to
a third country to seek asylum before
attempting to cross the SWB.
Commenters also suggested that the
proposed rule would privilege migrants
with the economic means to maintain a
working smartphone capable of
operating the CBP One app and either
pay for data roaming capability or
remain in an area with internet access.
Commenters also stated that the
proposed rule unfairly benefits
wealthier noncitizens who are more
likely to be able to use an approved
parole process because such noncitizens
may be immediately eligible for
employment authorization while lowincome noncitizens who are not able to
use such a parole process remain
without immediate employment
authorization. Commenters concluded
that the proposed rule would amount to
a de facto ban on asylum that targets
economically disadvantaged noncitizens
without options other than arriving at
the SWB.
Response: As explained in the NPRM,
the Departments are issuing this rule
specifically to address an anticipated
surge of migration at the SWB following
the lifting of the CDC’s Title 42 public
health Order. 88 FR at 11704. Through
this rule, the Departments have decided
to address such a surge one step at a
time, beginning with the SWB, where
the Departments expect a surge to focus
most intensely and immediately. So,
tailoring the rule to apply exclusively to
migrants arriving from Mexico at the
southwest land border or adjacent
coastal borders 98 who meet certain
98 As explained in Section II.C.3 of this preamble,
the Departments have decided to apply this rule to
migrants arriving from Mexico not only at the
southwest land border but also at ‘‘adjacent coastal
borders,’’ which matches the geographic scope of
the CDC’s Title 42 public health Order.
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conditions but not to migrants arriving
via other means is appropriate based on
existing and anticipated conditions at
the SWB, many of which the
Departments outlined in the NPRM. See
id. at 11705–07. Where conditions
necessitate, the Departments can
reevaluate the scope of the rule. Cf. FCC
v. Fox Television Stations, Inc., 556 U.S.
502, 522, 129 S. Ct. 1800, 1815 (2009)
(stating that ‘‘[n]othing prohibits federal
agencies from moving in an incremental
manner’’); City of Las Vegas v. Lujan,
891 F.2d 927, 935 (D.C. Cir. 1989)
(explaining that ‘‘agencies have great
discretion to treat a problem partially’’
including through a ‘‘step toward a
complete solution’’). Indeed, as stated
above, the Departments intend that the
rule will be subject to review to
determine whether the entry dates
provided in 8 CFR 208.33(a)(1)(i) and
1208.33(a)(1)(i) should be extended,
modified, or remain as provided in the
rule.
Commenters who expressed concerns
that this rule would cause financial
hardship to migrants by requiring them
to travel to a third country to seek
asylum before arriving at the SWB
misunderstand the terms of this rule.
The rule does not require any migrant
to travel to a third country to overcome
the rebuttable presumption—indeed, the
rebuttable presumption does not apply
to those who did not travel through a
third country—and seeking protection
in a third country is merely one of
several means to qualify for an
exception to or rebut the presumption.
Moreover, this rule is intended in part
to address existing conditions impacting
low-income individuals by reducing
opportunities for smugglers to recruit
migrants to participate in ‘‘expensive
and dangerous human smuggling
schemes.’’ 88 FR at 11705.
Further, except for those for whom
Mexico is their country of nationality or
last habitual residence, individuals
arriving at the southwest land border or
adjacent coastal borders, whether they
have traveled by land, air, or sea, to
arrive there, necessarily travel through
another country—and, often, more than
one other country—en route to the
United States. Also, while individuals
traveling from their country of
nationality or last habitual residence to
the United States may arrive directly in
the United States without transiting
another country, they generally are not
permitted to board an aircraft or vessel
to a U.S. location without first
demonstrating that they have the travel
documents required for entry into the
United States. See, e.g., INA 211, 8
U.S.C. 1181 (setting forth requirements
for immigrant admission); see also INA
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217, 8 U.S.C. 1187 (visa waiver
requirements); INA 221 through 224, 8
U.S.C. 1201 through 1204 (visas); INA
231, 8 U.S.C. 1221 (establishing air and
vessel manifest requirements including
mandating the collection of passport
numbers); see also 8 CFR 212.5(f)
(providing that DHS may issue ‘‘an
appropriate document authorizing
travel’’ for those seeking to travel to the
United States without a visa).
This rule does not intend to penalize
migrants based on economic status, a
lack of travel documents, lack of phone
or internet access, or exigent
circumstances, nor does it do so in
effect. Indeed, the Departments
recognize that many individuals are
only able to enter the United States via
the SWB due to just such circumstances
and, in recognition of this reality, have
identified several pathways and
processes through which such
individuals may travel to the SWB in a
safe and orderly fashion and, once
present, seek asylum or other
protection. One such pathway or
process includes pre-scheduling their
arrival, which at this time can be
accomplished via the CBP One app.
Without a pre-scheduling system,
migrants seeking to travel to the SWB
may have to wait for an indeterminate
amount of time for CBP to have
resources available to process them. See
88 FR at 11720. Pre-scheduling provides
noncitizens seeking to present at a SWB
POE with a clear understanding of when
CBP expects to process them, which
allows them to plan for safer transit and
reduces opportunities for smugglers and
criminal organizations. See id. at 11707.
Moreover, the rule excepts from
application of the condition on asylum
eligibility those noncitizens who
presented at a POE and can establish,
based on the preponderance of the
evidence, that it was not possible for
them to access or use the DHS
scheduling system, including because
they had insufficient phone or internet
access. See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B) (providing the
presumption does not apply ‘‘if the
alien demonstrates by a preponderance
of the evidence that it was not possible
to access or use the DHS scheduling
system due to . . . significant technical
failure, or other ongoing and serious
obstacle’’).
In response to commenters’ concerns
about differences in eligibility for
employment authorization depending
on whether a migrant entered the
United States following use of the CBP
One app, a DHS-approved parole
process, or some other means, the
Departments acknowledge that the
employment authorization rules may
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vary depending on the pathway that a
noncitizen uses to enter the United
States and how the noncitizen is
processed. This has always been the
case, and although this rule recognizes
certain lawful pathways as a basis to
avoid the rebuttable presumption, such
pathways would exist irrespective of
this rulemaking. The Departments also
note that individuals in expedited
removal proceedings, including those
determined to have a credible fear who
are then paroled from custody, remain
ineligible to apply for employment
authorization on the basis of this
exercise of parole. 8 CFR 235.3(b)(2)(iii),
(b)(4)(ii). The NPRM did not propose to
revise any regulations governing
employment authorization eligibility,
and the final rule does not make any
such changes either.
vi. Allegations of Discrimination on
Race, Ethnicity, or Nationality Grounds
Comment: Commenters raised
concerns that the proposed rule would
have a discriminatory impact based on
nationality and effectively deny
protection to migrants from certain
countries. For example, commenters
alleged that the proposed rule would
have a disproportionately negative
impact on noncitizens from countries in
Africa, the Caribbean, Central America,
and Latin America who do not currently
fall under any large-scale parole
initiatives and are more likely to seek
asylum via arrival at the SWB, with
some commenters describing the rule as
a de facto ban for these populations.
Commenters also stated that noncitizens
from China specifically, and Asia more
generally, would be disproportionately
impacted by the rule as a result of
lasting effects from reduced refugee
admissions under the prior
Administration, which, commenters
said, increased the number of
individuals from these countries seeking
entry to the United States at the SWB.
Likewise, commenters noted that
noncitizens from Afghanistan would be
disproportionately impacted by the rule
due to potential danger in third
countries.
Further, commenters noted that the
Administration has created special
immigration programs for citizens of
certain countries—including Cuba,
Haiti, Nicaragua, Ukraine, and
Venezuela—in response to various
political and humanitarian conditions
in those countries, but has not done so
for citizens of certain other countries.
Commenters questioned why citizens
from these countries are offered special
programs to enter the United States
while citizens from other countries do
not have the same opportunities, which
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31349
commenters claimed was discriminatory
and raised equal protection concerns.
Commenters also raised equal
protection concerns because noncitizens
subject to the rule’s rebuttable
presumption would be treated
differently from those not subject to the
rule based on the date, location, and
manner of their entry into the United
States. As a result, commenters argued
that the rule would have a disparate
impact on asylum applicants from less
affluent countries, who do not have easy
access to air travel or nonimmigrant
visas.
Additionally, commenters asserted
that the rule discriminates based on race
and ethnicity and would have a
disproportionate impact on persons of
certain races and ethnicities for equal
protection purposes. Commenters
pointed to the Government’s response to
Ukrainian refugees as evidence that the
United States is capable of accepting
asylum seekers and refugees and stated
that the difference in treatment between
Ukraine and other countries was racially
motivated.
Lastly, commenters suggested that it
was facially discriminatory to require
migrants from countries other than
Mexico to first apply for asylum in
transit countries, as it would result in
their quick removal and force them to
wait for a number of years before they
could reapply for asylum in the United
States.
Response: The rule does not classify
noncitizens based on race, ethnicity,
nationality, or any other protected trait.
Nor, as elaborated below, are the
Departments issuing the rule with
discriminatory intent or animus. As the
Departments explained in the NPRM,
the rule is intended to address an
anticipated increase in migrants arriving
at the SWB following the lifting of the
Title 42 public health Order and the
resultant strain the anticipated surge
would put on DHS and DOJ resources.
See 88 FR at 11728. As such, the rule’s
scope and applicability are intended to
address this anticipated migration surge.
See generally id.
Additionally, although the rule
imposes a rebuttable presumption of
ineligibility if noncitizens seek to enter
the United States at the SWB outside of
an established lawful pathway and do
not seek protection in a third country
through which they travel en route to
the United States, that presumption
does not constitute a ‘‘de facto ban’’ on
asylum for noncitizens of any race,
ethnicity, or nationality, given the
opportunities to avoid the presumption
and, for those unable to do so, to
establish an exception to or rebut it.
Irrespective of race, ethnicity, or
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nationality, noncitizens will not be
subject to the presumption if they apply
for and are denied asylum or other
protection in a third country they transit
while en route to the United States, but
no noncitizen is required to do so. See
8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). Likewise, regardless
of race, ethnicity, or nationality,
noncitizens will not be subject to the
presumption if they schedule an
appointment to present at a POE using
the CBP One app. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
In addition, irrespective of race,
ethnicity, or nationality, noncitizens
who are subject to the rule’s
presumption will have the opportunity
to rebut it in certain circumstances,
including if at the time of their entry
they or a family member with whom
they traveled was experiencing an acute
medical emergency, an imminent and
extreme threat to life or safety, a severe
form of trafficking, or another
exceptionally compelling circumstance.
8 CFR 208.33(a)(3), 1208.33(a)(3).
Further, noncitizens of every race,
ethnicity, and nationality may apply for
other relevant immigration processes
that are applicable to them. The rule’s
approach balances the needs to address
current and expected circumstances at
the SWB, to avoid unduly negative
consequences for noncitizens, to avoid
unduly negative consequences for the
U.S. immigration system, and to provide
ways for individuals to seek protection
in the United States and other countries
in the region. 88 FR at 11730.
The Departments disagree that the
rule violates the Equal Protection
Clause 99 to the extent that the rule
applies to noncitizens who arrive in the
United States at a particular location, by
a particular method, or after a particular
date. Noncitizens who utilize a lawful
pathway, meet an exception to the rule’s
presumption, or rebut the presumption
will not be subject to the rule’s
condition on eligibility, irrespective of
their country of origin or the method by
which they arrive. The ability to afford
a plane ticket or qualify for a visa is not
a requirement to meet an exception to
or rebut the presumption of ineligibility
99 Although the Equal Protection Clause of the
Fourteenth Amendment does not apply to the
United States Government, the Supreme Court in
Bolling v. Sharpe, 347 U.S. 497, 499 (1954), held
that while ‘‘ ‘equal protection of the laws’ is a more
explicit safeguard of prohibited unfairness than
‘due process of law,’ . . . discrimination may be so
unjustifiable as to be violative of due process.’’ The
Court concluded that ‘‘[i]n view of [its] decision
that the Constitution prohibits the states from
maintaining racially segregated public schools, it
would be unthinkable that the same Constitution
would impose a lesser duty on the Federal
Government.’’ Id. at 500.
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under the rule. And with respect to
concerns about dates of entry, the
Departments note that Federal
immigration laws, including regulations
that impose conditions on asylum,
routinely apply to migrants who arrive
or file their application for relief after,
but not before, a particular effective
date. See, e.g., INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B); 8 CFR 208.4(a) (imposing
filing deadline on asylum applications
filed after April 1, 1997, and tying that
deadline to the applicant’s date of
arrival in the United States); 8 CFR
208.13(b)(3), 1208.13(b)(3) (2020)
(imposing conditions related to internal
relocation, applied per 8 CFR 208.1(a) to
applications filed after the regulatory
effective date of April 1, 1997).100
Further, as detailed in the NPRM, the
United States previously has, and is
still, committed to taking significant
steps to expand pathways and processes
for migrants to enter the country in a
safe and lawful way. 88 FR at 11718–20.
In addition to creating parole processes
for citizens of certain countries, the
United States has announced
‘‘significant increases to H–2 temporary
worker visas and refugee processing in
the Western Hemisphere’’ and worked
closely with other countries in the
region ‘‘to prioritize and implement a
strategy that advances safe, orderly,
legal, and humane migration, including
access to international protection for
those in need, throughout the Western
Hemisphere.’’ Id. at 11718, 11720.
Moreover, the Departments remain
committed to continuing to work with
foreign partners on expanding their
legal options for migrants and
expanding the Departments’ own
mechanisms for processing migrants
who lawfully arrive in the United
States. Id. at 11720, 11722, 11729.
As to certain commenters’ concerns
that the rule discriminates among
noncitizens based on whether their
country of nationality has a parole
process, the Departments did not
promulgate the rule, or design its
applicability and scope, with a
discriminatory purpose or intent.
Instead, the rule is designed to
‘‘encourage migrants to avail themselves
of lawful, safe, and orderly pathways
into the United States, or otherwise to
seek asylum or other protection in
100 This provision was amended by a prior
rulemaking, Procedures for Asylum and
Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 80274, 80281 (Dec.
11, 2020), which was preliminarily enjoined and its
effectiveness stayed before it became effective. See
Pangea II, 512 F. Supp. 3d at 969–70 (preliminarily
enjoining the rule). The district court’s order
remains in effect, and thus the 2020 version of this
provision—the version immediately preceding the
enjoined amendment—is currently effective.
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countries through which they travel,
thereby reducing reliance on human
smuggling networks that exploit
migrants for financial gain.’’ Id. at
11704. As elaborated on later in this
preamble, lawful pathways are available
to noncitizens from all countries, and
country-specific processes are available
without regard to race or ethnicity. See,
e.g., id. at 11704, 11706 (listing and
explaining processes and programs).
Thus, the existence of special processes
and programs for qualifying noncitizens
from certain countries does not
demonstrate that the rule was
promulgated ‘‘for a discriminatory
purpose or intent,’’ as required to show
a violation of the Equal Protection
Clause. United States v. BarcenasRumualdo, 53 F.4th 859, 864 (5th Cir.
2022) (citing Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265–66 (1977)). Moreover,
Congress regularly makes laws that
distinguish among individuals on the
basis of nationality; indeed, the ‘‘whole
of Title 8 of the United States Code,
regulating aliens and nationality, is
founded on’’ such distinctions. Mathews
v. Diaz, 426 U.S. 67, 78 n.12, 80 (1976).
Yet, ‘‘such disparate treatment’’ is not
by itself ‘‘‘invidious.’’’ Id. at 80.
vii. Other Underserved or Vulnerable
Populations
a. Women, Domestic Violence
Survivors, and LGBT Individuals
Comment: Commenters raised
concerns that the rule would have a
disproportionate impact on certain
particularly vulnerable populations,
such as women, including domestic
violence and sexual assault survivors
and younger, pregnant, and indigenous
women, as well as the LGBT
community, and those noncitizens who
are disabled, elderly, or HIV positive,
among others. Commenters stated that
these populations would face
discrimination, violence, extortion, and
persecution in transit countries.
Commenters also asserted that applying
for a parole process and waiting for
approval in one’s home country may not
be a viable option for such groups who
need to leave a dangerous situation
immediately. As a result, commenters
stated that such groups should be
exempted from the rule.
Commenters asserted, for example,
that women and girls would be at high
risk for sexual and gender-based
violence in transit countries or if forced
to wait in Mexico for their scheduled
SWB POE appointments. Similarly,
commenters raised concerns that the
LGBT community would face
persecution, violence, and inadequate
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access to medical care, among other
harms, in transit countries, particularly
if required to wait to schedule an SWB
POE appointment through the CBP One
app or apply for asylum in those
countries. Commenters also noted that it
is unclear if claims related to
persecution based on sexual orientation
and gender identity would be
recognized in many common transit
countries. Additionally, commenters
stated that the rule, particularly the
family unity provision, would exclude
LGBT families, as legal protections such
as marriage or LGBT-inclusive family
protections are unavailable or
inaccessible to LGBT individuals and
families in many countries.
Further, commenters noted that many
of these groups, including domestic
violence survivors, torture survivors,
and those with PTSD, may, as a result
of psychological trauma, have difficulty
recounting traumatic events underlying
their claims during credible fear
screenings—a difficulty that
commenters said would be exacerbated
if members of such groups must also
present evidence about the rebuttable
presumption of asylum ineligibility. As
a result, commenters stated that
traumatized noncitizens would not have
sufficient time to gather their thoughts
or collect relevant evidence. Moreover,
commenters stated that recounting such
incidents may risk retraumatizing such
individuals. Similarly, commenters
asserted that such groups are often
reluctant to speak about what happened
to them and may not express their fear
of return to someone in a third country
who could inform them of their right to
apply for asylum.
Response: The Departments recognize
that certain populations may be
particularly vulnerable during transit to
the United States. Accordingly, the
purpose of the rule is to encourage
migrants, including those who may be
seeking asylum, to pursue safe, orderly,
and lawful pathways to the United
States rather than attempt irregular
migration journeys, which often subject
migrants to dangerous human smuggling
networks. See, e.g., 88 FR at 11713–14
(noting that women face particular
vulnerabilities along certain portions of
the irregular migration route to the
SWB). The rule details multiple
potential pathways and processes
available to many migrants, including
those who seek protection, that do not
involve a dangerous journey to the
United States. See id. at 11718–23.
Notably, amongst those options, the rule
does not require noncitizens to apply for
asylum in third countries where they
may also face persecution or other harm.
Moreover, applying for asylum in a
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third country is only one of multiple
options migrants may pursue. For a
more in-depth examination of thirdcountry safety for migrants, please see
the further discussion of specific third
countries later in this preamble in
Section IV.E.3.iv (‘‘Third Countries’’).
See also 88 FR at 11720–23 (NPRM
discussing ‘‘Increased Access to
Protection and Other Pathways in the
Region’’). Additionally, the Departments
note that the rule provides that its
presumption of asylum ineligibility can
be rebutted by noncitizens, including
those with particular vulnerabilities,
who do not utilize a lawful pathway but
who face imminent and extreme threats
to life or safety, such as an imminent
threat of rape, kidnapping, torture, or
murder, or who were victims of a severe
form of trafficking in persons. See 8 CFR
208.33(a)(3)(i)(B) and (C),
1208.33(a)(3)(i)(B) and (C).
The Departments also recognize that
migrants’ protection claims may be
premised on past traumatic events in
their home countries, which can be
difficult to recount. However, the rule
does not change the credible fear
process that Congress has instituted,
which involves detailing these events to
a DHS officer so that the officer can
make a credible fear determination. See
generally INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); 8 CFR 208.30(d) and (e).
The rule merely adds a condition on
asylum eligibility in the form of a
rebuttable presumption. During the
credible fear screening, noncitizens may
demonstrate why they believe that the
presumption is inapplicable or an
exception or rebuttal ground exists. The
rule does not impose an infeasible
requirement for noncitizens with
meritorious claims to show that the
presumption does not apply, or that
they qualify for an exception or rebuttal
to the presumption, during the credible
fear screening process. See 8 CFR
208.30(d)(4). In addition, AOs and IJs
have conducted credible fear
assessments for many years and are
well-trained in accounting for any
potential trauma that may be relevant.
b. Unrepresented Individuals
Comment: Commenters raised
concerns that unrepresented noncitizens
would not understand the rule’s
requirements, particularly the need to
take affirmative steps outside of the
United States, such as through applying
for protection in a third country or
scheduling an SWB POE appointment
through the CBP One app. Commenters
also expressed that the proposed rule
did not explain how information about
the rule’s requirements would be
disseminated. Similarly, commenters
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stated that unrepresented noncitizens
may have received little or no
information during the screening
process and may not understand their
rights during the process or the
consequences of failing to assert them.
Commenters also asserted that
unrepresented individuals may not
understand the burdens of proof in the
rule and may be unable to present a
legal argument sufficient to overcome its
presumption of ineligibility.
Additionally, commenters were
concerned that the rule would
dramatically increase the likelihood of
denials for relief for unrepresented
noncitizens who are subject to the
asylum ineligibility presumption and
stated that individuals with meritorious
claims are no less deserving of asylum
because they do not have counsel.
Further, commenters pointed to various
statutory provisions that they claimed
showed a recognition by Congress that
unrepresented noncitizens need
assistance to present their claims. As a
result, commenters suggested that
unrepresented noncitizens should be
exempted from the rule or be provided
more resources to navigate the
immigration system.
Response: The Departments recognize
that unrepresented noncitizens can have
additional difficulties navigating the
U.S. immigration system, as compared
to those with counsel. This is to be
expected with respect to any
unrepresented individuals in a legal
setting. As a general matter, the
Departments strongly support efforts for
noncitizens to obtain or confer with
counsel in immigration proceedings.101
However, for those noncitizens who
do not retain counsel, the Departments
do not believe that the rule presents an
overly complicated process for migrants
seeking protection, including asylum.
The rule does not change the right to
confer with a person or persons of the
noncitizen’s choosing in the existing
expedited removal and credible fear
screening processes. See 8 CFR
208.30(d)(4). Rather, the rule simply
adds a determination about the asylum
ineligibility presumption to the credible
fear screening. As such, the
Departments decline to create a
wholesale exception from the rule for
unrepresented noncitizens, which
would significantly reduce the
incentives for using the lawful pathways
described in the rule, as well as
disincentivize obtaining counsel as
needed.
101 See, e.g., EOIR Director’s Memorandum
(‘‘DM’’) 22–01, Encouraging and Facilitating Pro
Bono Legal Services (Nov. 5, 2021), https://
www.justice.gov/eoir/book/file/1446651/download.
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The rule is intended to provide clear
options for migrants, including asylum
seekers, to follow, such as applying for
asylum in a third country or presenting
at an SWB POE at a pre-scheduled time
and place. See generally 8 CFR
208.33(a)(2), 1208.33(a)(2). Noncitizens
may also be able to pursue other
pathways to the United States that
would not trigger the rule’s
presumption, such as an employmentbased visa or refugee admission through
the United States Refugee Admissions
Program (‘‘USRAP’’). 88 FR at 11719
(describing expansions of labor
pathways and increases in USRAP
processing). If unrepresented
noncitizens choose to forgo such
options and instead unlawfully enter
the United States, they will be subject
to the rule’s rebuttable presumption of
asylum ineligibility, with an
opportunity to establish an exception to
or rebut the presumption, including for
exceptionally compelling
circumstances. See 8 CFR 208.33(a)(3),
1208.33(a)(3). For instance, such
noncitizens who present at a POE
without a pre-scheduled appointment
may be excepted from the presumption
if they can demonstrate that they were
unable to access or use the DHS
scheduling system due to ongoing and
serious obstacles, such as a language
barrier, illiteracy, or a significant
technical failure. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
The Departments believe these
processes will be navigable for
unrepresented noncitizens based on the
significant usage and success of other
recent processes for Cuban, Haitian,
Nicaraguan, Ukrainian, and Venezuelan
nationals. See, e.g., 88 FR at 11706,
11711–12 (explaining, for example, that
the Venezuela process has had a
‘‘profound impact’’ and that, in one
measured period, there was an over 95
percent decrease in SWB unlawful
encounters with Venezuelan migrants).
These statistics, along with the success
of the U4U and CNHV parole processes,
show that noncitizens outside the
United States are broadly aware of
information about changes to U.S.
immigration processes and that
noncitizens alter migration behaviors
accordingly, regardless of their
representation status. As for
commenters’ desire for additional
information about how the rule’s
requirements will be communicated, the
Departments note that they have
numerous, non-regulatory tools at their
disposal that they may use to
disseminate information to the public,
as appropriate, including press
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releases,102 policy memoranda, webbased tools,103 and other statements in
public fora, among others. The
Departments further describe their
efforts to communicate the rule’s
requirements to the public in Section
IV.B.5.iv of this preamble.
c. Climate Migration
Comment: Commenters noted that
global migration is increasingly driven
in part by the effects of climate change
and that governments of many migrants’
home countries are unable to stop or
redress such effects. As such,
commenters expressed concerns that the
proposed rule would unlawfully deny
noncitizens from countries
disproportionately affected by climate
change the right to be meaningfully
heard on their asylum claims.
Commenters also asserted that
ecological disasters resulting from
climate change, such as famine and
flooding, would prevent noncitizens
from countries experiencing such
disasters from being able to pursue a
lawful pathway so as not to be subject
to the rule’s rebuttable presumption. As
a result, commenters recommended
expanding asylum eligibility to account
for displacement caused by climate
change.
Response: Comments related to
climate change are generally outside the
scope of this rulemaking, which focuses
on incentivizing migrants to use lawful
pathways to pursue their claims. To the
extent that commenters raised concerns
about the effects of climate change—
such as a severe environmental
disaster—creating a necessity for
noncitizens to enter the United States
outside of the lawful pathways
described in the rule, the Departments
note that the rule includes an exception
to its asylum ineligibility presumption
for ‘‘exceptionally compelling
circumstances.’’ See 8 CFR
208.33(a)(3)(i), 1208.33(a)(3)(i).
Evidence of exceptionally compelling
circumstances will be considered on a
case-by-case basis.104
102 See EOIR, Communications and Legislative
Affairs Division, https://www.justice.gov/eoir/
communications-and-legislative-affairs-division
(last visited Apr. 25, 2023) (‘‘The Communications
and Legislative Affairs Division (CLAD) serves as
the Executive Office for Immigration Review’s
liaison with Congress, the news media, and other
interested parties by communicating accurate and
timely information about the agency’s activities and
programs.’’).
103 See, e.g., EOIR, Immigration Court Online
Resource, https://icor.eoir.justice.gov/en/ (last
visited Apr. 25, 2023) (providing information about
immigration processes in Chinese, Haitian Creole,
Portuguese, Punjabi, and Spanish).
104 The Departments note that, to the extent
commenters have substantive comments related to
the interaction of climate change and immigration
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To the extent that commenters argued
that the rule’s application in the context
of the alleged exigencies of climate
change migration would violate the due
process rights of noncitizens, the
Supreme Court has held that the rights
of noncitizens applying for admission at
the U.S. border are limited to ‘‘only
those rights regarding admission that
Congress has provided by statute.’’ DHS
v. Thuraissigiam, 140 S. Ct. 1959, 1983
(2020).
d. Indigenous People and People of
Color
Comment: Commenters raised
concerns that the rule would have a
particularly detrimental impact on
members of indigenous communities
and people of color. As a result,
commenters recommended exempting
these groups from the rule and for the
Departments to articulate actions taken
to mitigate any disparate impacts on
such groups.
Commenters stated that such
populations would face discrimination,
racism, persecution, prolonged
detention, medical neglect,
homelessness, erasure of indigenous
identity, and other harms in transit
countries. Commenters also believed
that these groups would face difficulty
applying for asylum or related
protection in a third country, due to
discrimination and insufficiently robust
asylum systems, among other reasons.
Additionally, commenters asserted that
persons from predominantly Black
countries had higher rates of visa
denials, which limit their lawful
pathways when compared to other
groups. In support of these contentions,
commenters stated that immigration
court asylum denial rates increased for
these groups while the TCT Bar Final
Rule was in effect.
Further, commenters maintained that
the proposed rule would
disproportionately impact indigenous
migrants and people of color because
such groups often lack the means or
ability to enter the United States other
than by land through the SWB and,
therefore, would be more likely to be
subject to the rule’s rebuttable
presumption of ineligibility. Relatedly,
or asylum law, such as how adjudicators should
consider the effects of climate change in making
asylum determinations, commenters may raise
those concerns as relevant in response to future
potential Departmental rulemakings that address
other substantive asylum provisions. See, e.g.,
Introduction to the Unified Agenda of Federal
Regulatory and Deregulatory Actions—Fall 2022, 88
FR 10966, 11054, 11088–89 (Feb. 22, 2023)
(including a future rulemaking addressing
particular social groups and related definitions and
interpretations for asylum and withholding of
removal).
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commenters maintained that these
populations have disproportionately
low access to the technology
commenters stated is mandated by the
rule, thereby precluding such groups
from taking advantage of the available
lawful pathways. Similarly, commenters
raised a number of concerns with the
CBP One app and its use by indigenous
migrants and people of color, including
language barriers and difficulties
experienced by those with darker skin
tones in taking valid pictures.
Response: As previously stated, the
rule includes various exceptions to the
rebuttable presumption—including for
instances where noncitizens have been
denied asylum or other protection in a
third country or show, by a
preponderance of the evidence, that it
was not possible to access or use the
CBP One app—and the rule allows
noncitizens to rebut the presumption
where they face certain safety issues.
See 8 CFR 208.33(a)(2) and (3),
1208.33(a)(2) and (3). For additional
material addressing commenter
concerns about the CBP One app and
indigenous migrants and people of
color, please see Section IV.E.3.ii.a of
this preamble.
Further, if any noncitizens, including
members of indigenous communities
and people of color, do not believe that
they will be able to meaningfully access
protection in a third country, then those
noncitizens may be excepted from the
presumption of ineligibility by availing
themselves of other lawful pathways to
enter the United States, such as by prescheduling an appointment to present
themselves at a POE, or by obtaining
appropriate authorization to travel to
the United States to seek parole
pursuant to a DHS-approved parole
process. See 8 CFR 208.33(a)(2)(ii),
1208.33(a)(2)(ii). Such noncitizens may
also be able to pursue other pathways to
entering the United States that would
not trigger the rule’s application, such
as an employment-based visa or refugee
admission through USRAP. 88 FR at
11719 (describing expansions of labor
pathways and increases in USRAP
processing). Accordingly, the
Departments believe that the rule
provides sufficient flexibility to account
for issues identified by commenters as
related to indigenous communities and
people of color.
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5. Due Process and Procedural Concerns
i. General Due Process and Procedural
Concerns
Comment: Commenters voiced
general concerns that the rule violates
due process and is thus unconstitutional
or arbitrary. One commenter argued that
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due process standards for asylum cases
should be consistent with criminal
procedure in the United States. At least
one commenter said that the proposed
rule would violate due process in that
it would separate families, restrict
access to asylum, and prohibit the
granting of asylum to those who travel
by land through a safe third country.
Specifically, one commenter argued that
for family members whose asylum cases
are connected, separation obstructs
family members’ opportunities to
present necessary corroborating witness
testimony or access critical evidence in
presenting their claims for relief, which
may violate their constitutional and
statutory rights to present evidence and
can result in inconsistent case timelines
and outcomes that permanently sever
family relationships. Another
commenter said that the rule would
make it easier for the United States
Government to simply deny entry to
asylum seekers and deport migrants
without due process. Other commenters
stated that no asylum seekers should be
prevented from presenting their case to
a judge. Further, commenters said that
the rule would violate due process by
requiring asylum seekers to
affirmatively request IJ review of
negative credible fear findings and
eliminating USCIS reconsideration of
such findings. Commenters also stated
that due process concerns would be
magnified because of the plan to
conduct credible fear interviews within
days or hours of an asylum seeker’s
arrival in custody in what commenters
characterized as notoriously difficult
conditions, such as where they lack
food, water, showers, sleep, and access
to counsel. Another commenter echoed
these concerns regarding conditions for
individuals in CBP custody and stated
that poor conditions were not conducive
to asylum seekers being able to clearly
articulate their claims. Commenters
asserted that these obstacles are so high
as to render success unachievable for
most noncitizens, regardless of the
merits of their claims. Finally, one
commenter stated that the rule would
raise the standard from ‘‘credible’’ to
‘‘reasonable’’ fear and would thereby
give rise to a procedural due process
violation, as it would alter the intended
purpose of the screening interview.
Response: The Departments disagree
that the rule would violate the Due
Process Clause of the Fifth Amendment
or impermissibly restrict access to
asylum. With respect to application of
the rule in the expedited removal
process, the Departments note that the
rule does not have any impact on where
noncitizens may be detained pending
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credible fear interviews. Additionally,
noncitizens who are encountered in
close vicinity to and immediately after
crossing the border and are placed in
expedited removal proceedings,
including those in the credible fear
screening process, have ‘‘only those
rights regarding admission that Congress
has provided by statute.’’ 105
Thuraissigiam, 140 S. Ct. at 1983; see
also Mendoza-Linares v. Garland, 51
F.4th 1146, 1148 (9th Cir. 2022)
(concluding that ‘‘an arriving immigrant
caught at the border . . . ‘has no
constitutional rights regarding his
application’ for asylum’’ (quoting
Thuraissigiam, 140 S. Ct. at 1982)).
Regarding arguments by commenters
that the due process standards that
apply in criminal proceedings should
also apply in the context of asylum and
credible fear interviews, the
Departments first note that Congress has
created, by statute, a process applicable
to individuals in expedited removal that
is significantly different from the
process that applies in criminal cases.
The Departments decline to use this rule
to change the due process rights of
noncitizens, and the rule ensures that
noncitizens receive a fair process
consistent with the law.
As to the allegation that the rule raises
the standard in expedited removal
proceedings from ‘‘credible’’ fear to
‘‘reasonable’’ fear, the Departments note
that the rule does not change the
standard except to the extent that a
noncitizen cannot show a significant
possibility of establishing eligibility for
asylum due to operation of the rule’s
condition on asylum eligibility. In that
circumstance, the AO or IJ will
determine whether the noncitizen has a
reasonable fear of persecution or torture
in the country or countries of removal,
as has long been the process for other
105 Courts also have held that noncitizens do not
have an independently cognizable substantive due
process interest in the receipt of asylum because
asylum is a discretionary form of relief. See, e.g.,
Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008)
(holding that ‘‘an alien who has already filed one
asylum application, been adjudicated removable
and ordered deported, and who has nevertheless
remained in the country illegally for several years,
does not have a liberty or property interest in a
discretionary grant of asylum’’); Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (‘‘Due
process rights do not accrue to discretionary forms
of relief, . . . and asylum is a discretionary form
of relief.’’); Mudric v. Att’y Gen., 469 F.3d 94, 99
(3d Cir. 2006) (holding that an eight-year delay in
processing the petitioner’s asylum application was
not a constitutional violation because the petitioner
‘‘had no due process entitlement to the wholly
discretionary benefits of which he and his mother
were allegedly deprived’’); cf. Munoz v. Ashcroft,
339 F.3d 950, 954 (9th Cir. 2003) (‘‘Since
discretionary relief is a privilege created by
Congress, denial of such relief cannot violate a
substantive interest protected by the Due Process
clause.’’).
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noncitizens who are screened for
eligibility for statutory withholding of
removal and CAT protection and who
are not eligible for asylum, as discussed
in more detail in Section IV.D.1.iii of
this preamble.
Moreover, although the rule changes
some procedures, as discussed
throughout the rule, it leaves much of
the process unaltered. Individuals in the
credible fear process maintain the right
to consult with an attorney or other
person or persons of their choosing
prior to their interview, and such
persons may be present for the
interview itself. 8 CFR 208.30(d)(4).
Asylum seekers also may present
evidence relevant to their claim during
the interview. Id. Additionally, USCIS
provides interpreter services to
noncitizens who are unable to proceed
effectively in English at the agency’s
expense. 8 CFR 208.30(d)(5). And
noncitizens may request review of a
negative fear determination before an IJ.
Compare 8 CFR 208.30(g)(1) (providing
the standard process for requesting IJ
review in credible fear proceedings),
with 8 CFR 208.33(b)(2)(iii) through (v)
(explaining the process for requesting IJ
review for those subject to and unable
to rebut the rule’s presumption).
Although the rule amends the standard
process so that noncitizens must
affirmatively request such review when
asked, rather than the review being
granted upon a failure to respond, IJ
review remains available in all cases
with a negative credible fear
determination. 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)(2). These
procedural safeguards are therefore not
undermined by the rule, which is fully
consistent with the Departments’ legal
authority and obligations.
Furthermore, the rule does not violate
any procedural due process rights
noncitizens may have in section 240
removal proceedings. The rule’s
condition on eligibility will be litigated
in those proceedings before an IJ with
all the attendant procedural rights that
apply in section 240 removal
proceedings. In addition, the rule
provides several procedural protections
to ensure that asylum applicants receive
a full and fair hearing before an IJ and
that the condition on eligibility applies
only to noncitizens properly within the
scope of 8 CFR 208.33(a) and 1208.33(a).
If an AO finds a noncitizen is subject to
the rule’s condition on eligibility, the
noncitizen may request review of that
determination, and an IJ will evaluate
de novo whether the noncitizen is
subject to the presumption and, if so,
whether the noncitizen has established
any exceptions to or rebutted the
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presumption. 8 CFR 208.33(b)(2)(iii)
through (v), 1208.33(b). Furthermore,
even where an IJ denies asylum because
the presumption applies and has not
been rebutted and no exception applies,
if the noncitizen has demonstrated a
reasonable possibility of persecution or
torture in the country or countries of
removal, they will have an opportunity
to apply for statutory withholding of
removal, protection under the CAT
regulations, or any other form of relief
or protection for which the noncitizen is
eligible in section 240 removal
proceedings. 8 CFR 208.33(b)(2)(ii) and
(v)(B), 1208.33(b)(4). These standards
help to ensure—in contrast to
commenters’ concerns—that the
outcome of the process delineated in the
rule is not predetermined and that
noncitizens potentially subject to the
condition on eligibility receive a full
and fair hearing that satisfies any due
process rights they may have.
To the extent commenters raised due
process concerns related to arguments
that the rule would result in separation
of families, these arguments are
addressed above in Section IV.B.4.ii of
this preamble. As elaborated there, for
example, the rule includes provisions
designed to prevent the separation of
families. Moreover, to the extent that
commenters argued that the rule would
separate families and thereby raise due
process concerns by preventing
individuals from presenting evidence,
the Departments note that the rule does
not change the provision on the
treatment of family units with respect to
credible fear screenings, found at 8 CFR
208.30(c), which provides that when
family units are subject to a credible fear
screening, USCIS will find that the
entire family passes the screening if one
family member establishes a credible
fear. Further, the rule contains
provisions to promote family unity both
by making exceptions and providing
rebuttal grounds applicable to family
units traveling together, and by
providing a family unity provision for
those in removal proceedings. See 8
CFR 208.33(a)(2)(ii) and (3)(i),
1208.33(c).
To the extent commenters argued that
these concerns implicate the
constitutional rights of specific groups
of noncitizens, the rule does not deprive
any group of the rights that Congress
provided by statute, and the rule is one
of equal application that does not bar
any particular classes of noncitizens
from seeking asylum or other protection
due to the nature of the harm the
noncitizen has suffered or their race,
religion, nationality, political opinion,
or membership in a particular social
group. See 8 CFR 208.33(a)(1) through
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(3), 1208.33(a)(1) through (3) (defining
scope of rule’s application and creating
condition on eligibility and a rebuttable
presumption rather than a bar).
Additionally, to the extent that
commenters claimed there would be
due process implications because of the
language and certain technical
limitations of the CBP One app, the
same commenters acknowledged that
due process rights are limited to
individuals located on U.S. soil.
Because users of the CBP One app will,
by definition, be located outside of the
United States, the commenters’ CBPOne-app-related due process concerns
are misplaced. Moreover, these
commenters provided no specific
citations to show that the CBP One
app’s limited set of foreign languages or
technical limitations violate any other
Federal law. For instance, the
Departments note that Executive Order
13166, Improving Access to Services for
Persons with Limited English
Proficiency, 65 FR 50121 (Aug. 11,
2000), ‘‘does not create any right or
benefit, substantive or procedural,
enforceable at law or equity by a party
against the United States, its agencies,
its officers or employees, or any
person.’’ Id. at 50121–22.
In addition, notwithstanding the
above, the rule contains multiple means
for particularly vulnerable noncitizens
to potentially overcome the
presumption against eligibility for
asylum where applicable, depending on
the individual’s circumstances. To the
extent that commenters are concerned
about the ability of noncitizens who
have a language barrier, disability,
mental incompetence, or past trauma to
pre-schedule a time and location to
appear at a POE, these noncitizens may
be able to establish an exception to the
presumption if they present at a POE
and establish that ‘‘it was not possible
to access or use the DHS scheduling
system due to a language barrier,
illiteracy, significant technical failure,
or other ongoing and serious obstacle.’’
See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). And among the
‘‘exceptionally compelling
circumstances’’ that may rebut the
presumption against eligibility, the rule
includes acute medical emergencies and
other situations where the noncitizen
faces an imminent and extreme threat to
life or safety at the time of entry. See 8
CFR 208.33(a)(3)(i)(A) and (B),
1208.33(a)(3)(i)(A) and (B). Furthermore,
the Departments note that even if a
noncitizen is found ineligible for
asylum, if they fear persecution on
account of a protected ground, or torture
in another country that has been
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designated as a country of removal, they
may seek statutory withholding of
removal or CAT protection to avoid
being returned to that country.
Finally, to the extent that commenters
expressed concerns about how the fact
of noncitizens’ detention, the conditions
in DHS facilities, and the timing of
credible fear screenings allegedly
impact such screenings and the ability
of noncitizens to meet their burden to
show a credible fear, those concerns are
predominantly addressed below in
Section IV.D.1.iii of this preamble,
where the Departments discuss the
nature of the evidence that may be
available to the AO during credible fear
interviews. As to commenters’ concerns
about the timing of the credible fear
process and where noncitizens are
detained pending credible fear
interviews, these concerns are
misplaced, as the rule does not have any
impact on the steps in the credible fear
process or where noncitizens may be
detained pending credible fear
interviews. To the extent that
commenters have concerns about
detention and conditions in CBP
custody, such concerns are beyond the
scope of this rule, as discussed further
in Section IV.B.5.v of this preamble.
Comment: Commenters expressed a
range of other concerns that the rule
does not establish sufficient procedural
protections for noncitizens subject to
the presumption against eligibility for
asylum. Some commenters expressed
concern that AOs are likely to make
errors in assessing whether applicants
are subject to the rule’s condition on
asylum eligibility. Commenters likewise
asserted that credible fear interviews are
quick screenings, during which
individuals usually lack documentary
evidence for their claims, and that
migrants would not be able to present
evidence of country conditions in
connection with such interviews.
Further, one commenter stated that
expedited removal denies children the
opportunity to make a claim for
protection independent of their parent
or legal guardian, and specifically raised
concerns about CBP agents questioning
children.
Response: The Departments
acknowledge the commenters’ concerns
but disagree that there are insufficient
procedural protections for individuals
subject to the rule. All AOs are trained
in non-adversarial interview techniques
to elicit relevant and useful information.
8 CFR 208.1(b). A noncitizen’s
testimony and evidence available to the
AO may be sufficient to establish an
exception to or rebut the condition on
asylum. AOs are trained to consult
country conditions information. Id. All
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credible fear determinations are
reviewed by a Supervisory AO. 8 CFR
208.30(e)(8). Those who receive
negative determinations may request
review from an IJ. See 8 CFR
208.33(b)(2)(iii) through (v). If the IJ
affirms a negative credible fear
determination, USCIS may also
reconsider the determination at its own
discretion. See 8 CFR 208.33(b)(2)(v)(C).
For those who are initially found subject
to the rule’s condition on asylum
eligibility but who establish a
reasonable possibility of persecution or
torture upon removal, the IJ will make
a de novo determination of whether the
noncitizen is subject to the condition on
asylum eligibility during removal
proceedings. See 8 CFR 208.33(b)(2)(v).
The Departments disagree that the
rule denies children the opportunity to
make a claim for protection
independent of their parent or legal
guardian. As explained above, the rule
does not change the provision on
treatment of family units with respect to
credible fear evaluations, found at 8
CFR 208.30(c). The rule further provides
at 8 CFR 208.33(c)(2) and 1208.33(d)(2)
that its ineligibility presumption does
not apply to an asylum application filed
by a noncitizen after the two-year period
in 8 CFR 208.33(a)(1)(i) and
1208.33(a)(1)(i), if the noncitizen was
under the age of 18 at the time of the
entry referenced in 8 CFR 208.33(a)(1)
and 1208.33(a)(1), respectively, and the
noncitizen is applying as a principal
applicant.
ii. Concerns Regarding Access to
Counsel, Unrepresented Applicants, and
the Ability or Time To Obtain Evidence
and Prepare
Comment: Some commenters stated
that the rule raises serious questions
about access to counsel during the
credible fear process. In addition to the
general comments regarding due process
described and addressed above,
commenters also expressed specific
concerns that the rule violates the Fifth
Amendment’s Due Process Clause
because it allegedly deprives
noncitizens of access to counsel or
decreases their already limited access to
counsel. For instance, some commenters
expressed concern that individuals in
CBP detention facilities lack meaningful
access to counsel to prepare for their
credible fear interviews because it takes
time to find counsel and the rule will
amplify the problems of a fast-tracked
removal process, and because there is a
lack of free or low-cost attorneys in
border areas where credible fear
interviews take place. Other
commenters stated that individuals
awaiting their CBP One app
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appointments abroad lack meaningful
access to counsel to prepare for their
credible fear interviews. These
commenters stated that attorneys
located in the United States face
obstacles to representing individuals
outside the United States due to ethics
concerns and liability insurance
coverage, while asylum seekers awaiting
appointments would be unable to meet
with counsel in person prior to their
appointments, allegedly leading to
representation deficiencies and
difficulty obtaining assistance in
navigating the CBP One app. For
example, citing data from the Human
Trafficking Institute, one commenter
wrote that 80 percent of migrants
awaiting their asylum hearings in the
United States can find representation,
compared to 7.6 percent of migrants
waiting in Mexico.
Other commenters characterized the
rule’s provisions as complicated and
punitive, making access to counsel even
more important and exacerbating the
access-to-counsel issues commenters
identified above. Commenters who are
legal services providers said that the
rule would increase the time and
resources needed to provide adequate
legal advice and representation to
asylum seekers, leading to diversion of
limited resources and increased
pressure on staff. Some commenters
recommended that the United States
Government increase funding for
representation of asylum seekers or
provide migrants with legal counsel and
release them swiftly rather than detain
them, stating that it would assist with
backlogs and protect due process rights.
Multiple commenters remarked that a
person who could retain an attorney is
far more likely to succeed in
immigration court. Commenters said
concerns relating to fast-tracked
immigration proceedings, known as the
‘‘Dedicated Docket,’’ would be
amplified by the addition of a new
evaluation of a rebuttable presumption
against asylum eligibility. Commenters
claimed that those individuals subject to
the rebuttable presumption who pass
the heightened ‘‘significant possibility’’
screening standard applied under the
rule and are placed on the Dedicated
Docket during the resulting section 240
removal proceeding would find it even
more difficult to obtain counsel because
of its accelerated timelines.
Finally, some commenters alleged
that the United States Government
currently restricts access to counsel for
noncitizens in credible fear proceedings.
Commenters similarly claimed that
EOIR’s Immigration Court Practice
Manual (‘‘ICPM’’) denies asylum seekers
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the right to counsel in credible fear
review hearings before IJs.
Response: The rule does not deprive
noncitizens of access to counsel in
violation of the Fifth Amendment’s Due
Process Clause. As explained above, the
Supreme Court has held that the rights
of individuals seeking asylum at the
border are limited to ‘‘only those rights
regarding admission that Congress has
provided by statute.’’ Thuraissigiam,
140 S. Ct. at 1983. And the INA
provides only that a noncitizen ‘‘may
consult with a person or persons of the
alien’s choosing prior to the interview
or any review thereof, according to
regulations prescribed by the Attorney
General,’’ and the statute specifies that
‘‘[s]uch consultation shall be at no
expense to the Government and shall
not unreasonably delay the process.’’
INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv). Thus, due process and
the INA do not guarantee that every
noncitizen in expedited removal
proceedings will have counsel, for
example, if a noncitizen involved in
such proceedings cannot find an
attorney who is willing and able to
provide representation. The rule does
not bar noncitizens in expedited
removal proceedings from exercising
their statutory rights under the INA, and
therefore cannot violate such
noncitizens’ rights to due process. See
Guerrier v. Garland, 18 F.4th 304, 313
(9th Cir. 2021) (Thuraissigiam clarified
that ‘‘the due process rights of
noncitizens who have not ‘effected an
entry’ into the [United States] are
coextensive with the statutory rights
Congress provides’’).
Nor does the rule deprive noncitizens
of access to counsel in violation of the
Fifth Amendment’s Due Process Clause
insofar as it allegedly creates additional
matters for attorneys and noncitizens to
discuss prior to a noncitizen’s credible
fear interview, including when the
noncitizen is outside the United States.
The statutory right to consult, described
above, does not attach until a noncitizen
becomes eligible for a credible fear
interview. See INA 235(b)(1)(B)(iv), 8
U.S.C. 1225(b)(1)(B)(iv) (‘‘An alien who
is eligible for such interview may
consult with a person or persons of the
alien’s choosing prior to the interview
or any review thereof, according to
regulations prescribed by the Attorney
General.’’). And the regulations that
implement expedited removal elaborate
that ‘‘[s]uch consultation shall be made
available in accordance with the
policies and procedures of the detention
facility where the alien is detained[.]’’ 8
CFR 235.3(b)(4)(ii). ‘‘Read together, the
text of these provisions provides
noncitizens with a right to consultation
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while they are detained pending
expedited removal, but also plainly
establish that the consultation right is
subordinate to the expedition that this
removal process is designed to facilitate,
and that the scope of the right to consult
is determined by the facility in which
these noncitizens are detained.’’ Las
Americas Immigrant Advoc. Ctr. v.
Wolf, 507 F. Supp. 3d 1, 25 (D.D.C.
2020) (Jackson, J.). Thus, the INA does
not guarantee, and the Constitution does
not require, that noncitizens who have
not entered the United States must have
an opportunity to consult with any
other individual concerning an
anticipated asylum application.
The Departments decline to amend
existing practices with respect to
credible fear proceedings around a
noncitizen’s ability to obtain and
consult with counsel, including with
regard to the availability of counsel or
time it takes to secure counsel in areas
near the SWB. The Departments
disagree with any implication by
commenters that the Departments have
control over where free or low-cost
immigration attorneys choose to locate
their practices within the United States.
In any event, nothing in the rule alters
a noncitizen’s existing ability to consult
with persons of their choosing prior to
the credible fear interview, see INA
235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv), or prior to IJ review of
a negative credible fear determination,
see 8 CFR 1003.42(c). The Departments
acknowledge commenters’ concerns but
do not believe that the rule makes it
more challenging for detained
noncitizens to access legal
representation. To the extent that
commenters seek improved access to
counsel during the credible fear process
in general, that issue lies outside the
scope of this rulemaking. Commenters’
concerns regarding the Dedicated
Docket similarly fall beyond the scope
of the rulemaking. As discussed later in
Section IV.B.5.iv of this preamble, the
Departments do not believe that the rule
greatly adds to the complexity of U.S.
asylum law or that noncitizens in the
credible fear process will require the
assistance of an attorney to establish an
exception to or rebut the rule’s
presumption against asylum eligibility.
During the credible fear process, AOs
will elicit relevant testimony in a nonadversarial manner to determine
whether the rebuttable presumption
against asylum eligibility applies and, if
so, whether the presumption is rebutted
or any exception exists.106 Therefore,
106 See, e.g., USCIS, RAIO Directorate—Officer
Training: Interviewing: Eliciting Testimony 12 (Dec.
20, 2019), https://www.uscis.gov/sites/default/files/
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noncitizens will not need to be familiar
with every aspect of the rule to
overcome the presumption.
With regard to commenter claims that
EOIR’s ICPM restricts the right to
counsel during credible fear review, the
Departments first note that the contents
of the ICPM are outside of the scope of
this rulemaking. In any event, the ICPM
is consistent with the INA and
regulations, all of which make clear that
noncitizens have the right to consult
with a person or persons of their
choosing prior to a credible fear
interview and any subsequent review.
See ICPM, Chapter 7.4(d)(4)(C) (Nov. 14,
2022); INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv); 8 CFR 1003.42(c).
Beyond such consultation, any ability of
such persons to attend or participate in
a credible fear proceeding is fully
within the discretion of the IJ. See 8
CFR 1003.10(b) (describing IJs’
discretion to take any action consistent
with their authorities under the INA and
regulations that is appropriate and
necessary for the disposition of a case).
Comment: Commenters said that
represented individuals receive relief
more frequently than non-represented
individuals, and expressed concern that
many asylum seekers who lack counsel
would not be able to pass their credible
fear screenings. One commenter
claimed, without specific evidence, that
AOs are less thorough when
adjudicating credible fear cases of
unrepresented noncitizens. Commenters
argued that unrepresented individuals
may not receive meaningful notice
about the CBP One app, asylum
procedures, or the exceptions to the
rule’s condition on eligibility that may
apply in their cases. One commenter
wrote that the rule’s preponderance of
the evidence standard for rebutting the
presumption against asylum eligibility
would create another hurdle for asylum
seekers who lack counsel.
Response: To the extent that
commenters expressed concern that
unrepresented individuals might face
difficulty understanding the credible
document/foia/Interviewing_-_Eliciting_Testimony_
LP_RAIO.pdf [hereinafter USCIS, Eliciting
Testimony] (‘‘In cases requiring an interview,
although the burden is on the applicant to establish
eligibility, equally important is your obligation to
elicit all pertinent information.’’); USCIS, RAIO
Directorate—Officer Training: Interviewing:
Introduction to the Non-Adversarial Interview 13
(Dec. 20, 2019), https://www.uscis.gov/sites/default/
files/document/foia/Interviewing_-_Intro_to_the_
NonAdversarial_Interview_LP_RAIO.pdf
[hereinafter USCIS, Non-Adversarial Interview]
(‘‘You control the direction, pace, and tone of the
interview and have a duty to elicit all relevant
testimony.’’); Comment Submitted by National
Citizenship and Immigration Services Council 119
at 16 (Mar. 27, 2023), https://www.regulations.gov/
comment/USCIS-2022-0016-12267.
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fear process, the INA provides that
‘‘[t]he Attorney General shall provide
information concerning the asylum
interview . . . to aliens who may be
eligible.’’ INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv); 8 CFR 235.3(b)(4)(i).
The rule does not change that
obligation. As for commenters’ concerns
that noncitizens may not receive
adequate notice regarding the CBP One
app or other aspects of the rule, ‘‘the
general rules concerning adequacy of
notice through publication in the
Federal Register apply in the
immigration context.’’ Williams v.
Mukasey, 531 F.3d 1040, 1042 (9th Cir.
2008) (holding that publication of CAT
regulations in the Federal Register
provided notice that due process
required).
As discussed earlier and in Section
IV.B.5.iv of this preamble, the rule does
not affect noncitizens’ current access to
counsel during credible fear
proceedings or significantly increase the
complexity of U.S. asylum law, and
noncitizens should not require the
assistance of an attorney to establish an
exception to or rebut the presumption
against asylum eligibility. Prior to
conducting a credible fear interview, an
AO must verify that the noncitizen ‘‘has
received in writing the relevant
information regarding the fear
determination process’’ and ‘‘has an
understanding of’’ that process. 8 CFR
208.30(d)(2); see also USCIS, Form M–
444, Information About Credible Fear
Interview (May 31, 2022). AOs are
trained to conduct interviews in a nonadversarial manner and elicit relevant
testimony,107 and they will ask relevant
questions to determine whether the
rebuttable presumption against asylum
eligibility applies, so noncitizens need
not be familiar with the rule to remain
eligible for asylum. Regarding the
standard of proof for rebutting the
presumption against asylum eligibility
during credible fear proceedings, as
discussed later in Section IV.D.1.iii of
this preamble, the overall standard
remains the significant possibility
standard, but that standard must be
applied in conjunction with the
standard of proof required for the
ultimate determination on eligibility for
asylum (i.e., preponderance of the
evidence that an exception to the
presumption applies or that the
presumption has been rebutted). Other
concerns about rebutting the rule’s
presumption of ineligibility are
107 See
USCIS, Non-Adversarial Interview; USCIS,
Eliciting Testimony; Comment Submitted by
National Citizenship and Immigration Services
Council 119 at 16 (Mar. 27, 2023), https://
www.regulations.gov/comment/USCIS-2022-001612267.
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addressed in Section IV.E.1 of this
preamble.
iii. CBP Official, AO, and IJ Conduct
and Training
a. CBP Official Conduct and Training
Comment: Some commenters
expressed concerns about the actions of
CBP officials, including with respect to
the use of the CBP One app. Regarding
the CBP One app generally, one
commenter stated that migrants are
often unable to seek asylum at a POE
due to metering policies and that
migrants have no other option to access
safety than to cross the SWB without
permission. Another commenter stated
that the requirement to use the CBP One
app would effectively cap the number of
people who may seek asylum based on
the number of appointments available.
Commenters also stated that the CBP
One app equates to another metering
system imposed by CBP officials,
including causing turnbacks of children,
which Federal courts have found to be
illegal. In particular, one commenter
stated that, even with appointments,
some families are not able to cross the
border, or they receive appointments at
a POE far from their current location,
requiring them to travel long distances
within Mexico. Various commenters
alleged that requiring use of the CBP
One app raises concerns that access to
the system will be based not on wait
time but on luck, technological skills, or
resources to secure an appointment.
Other commenters similarly stated that
the CBP One app has very limited
appointment slots and turns asylum
access into a lottery. And at least one
commenter expressed concern that the
CBP One app does not ask if a migrant
is seeking asylum in the United States,
nor are migrants interviewed by CBP
officials upon arrival to determine if
they have any vulnerabilities that may
show eligibility for asylum.
As for alleged misconduct by CBP
officials, one commenter expressed
concern that CBP officials at POEs have
turned away many asylum seekers
without cause, been affirmatively
hostile to claims of protection, or only
allowed a handful of individuals per
day to present themselves for
processing. The commenter also
suggested that there would not be a
meaningful opportunity under the rule
for asylum seekers to present
themselves and demonstrate that they
were unable to use the CBP One app to
request an appointment. Similarly,
another commenter stated that the rule
would allow CBP officers to turn away
individuals without a smartphone.
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Additionally, commenters alleged that
CBP officials regularly fail to protect the
rights of individuals in expedited
removal proceedings, including through
failing to ask questions related to fear
claims, failing to refer individuals for
credible fear interviews, and subjecting
individuals to harassment, directly or
indirectly.
Other commenters raised concerns
that there are inadequate protections
against rogue CBP officer behavior more
generally, noting that individuals with
appointments in February 2023 were
rejected at POEs, including those with
Title 42 exception appointments being
rejected even though they had valid
appointments. One commenter asserted
that when families expressed concern
about the Title 42 exception process,
CBP officials threatened to call Mexican
police and urged people to depart.
Another commenter noted that CBP
officers use abuse, threats and
intimidation, coercion, and
misrepresentations, make unfounded
claims about capacity restrictions, use
waitlists, and illegally deny access to
the asylum process. Some commenters
alleged that CBP officers harassed and
physically and sexually abused
noncitizens at POEs, stole their
documents, and failed to record
statements by noncitizens expressing a
fear of return. Another commenter
expressed concerns that Mexican
officials, at the request of the United
States Government, improperly
intercepted individuals at its own
southern border so that those
individuals would not come to the
United States.
Response: As an initial matter, the
Departments note that migrants do not
apply for asylum with CBP at a POE. At
POEs, CBP is responsible for the
inspection and processing of all
applicants for admission, including
individuals who may intend to seek
asylum in the United States. 8 CFR
235.1(a) (concerning all applicants for
admission at POEs), 235.3(b)(4)
(concerning individuals processed for
expedited removal and claiming fear of
persecution or torture). CBP’s ability to
process undocumented noncitizens in a
timely manner at land border POEs is
dependent on CBP resources, including
infrastructure and personnel; CBP is
committed to continuing to increase its
capacity to process undocumented
noncitizens at SWB POEs.108 The CBP
108 Memorandum for William A. Ferrara, Exec.
Ass’t Comm’r, Off. of Field Operations, from Troy
A. Miller, Acting Comm’r, CBP, Re: Guidance for
Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of
Entry (Nov. 1, 2021), https://www.cbp.gov/sites/
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One app is one key way that CBP is
streamlining and increasing its capacity
to process undocumented
noncitizens.109 Noncitizens are able to
schedule appointments through the CBP
One app at one of eight POEs along the
SWB, providing noncitizens with
options to choose the POE that works
best for them geographically. The app is
not a method of seeking asylum in the
United States, and CBP officers do not
determine the validity of any claims for
protection. Noncitizens are not required
to make an appointment in the CBP One
app to present at a POE, and CBP policy
provides that in no instance will an
individual be turned away from a POE.
All noncitizens who arrive at a POE will
be inspected for admission into the
United States. See 8 CFR 235.1(a). That
said, those noncitizens who arrive at a
POE without a pre-scheduled
appointment will be subject to the rule’s
presumption of asylum ineligibility
unless they establish the applicability of
an exception to or a ground for rebutting
the presumption.
The Departments disagree that the
CBP One app is a ‘‘metering system,’’
and CBP and DHS have rescinded all
previous metering policies. Following
the termination of the Title 42 public
health Order, CBP will process
noncitizens without documents
sufficient for admission who present at
an SWB land POE in accordance with
its November 2021 memorandum
‘‘Guidance for Management and
Processing of Undocumented
Noncitizens.’’ Moreover, as noted, CBP
remains committed to processing as
many noncitizens at POEs as is
operationally feasible.110
To the extent that commenters’
reference to metering policies relates to
any allegation of misconduct by CBP
officers, and with respect to any other
commenter concerns about such alleged
misconduct, the Departments note that
CBP takes allegations of employee
misconduct very seriously. Under a
uniform system, allegations of
misconduct are documented and
referred to the DHS Office of Inspector
General (‘‘OIG’’) for independent review
and assessment.111 Cases are either
retained by the DHS OIG for
investigation or referred to CBP’s Office
of Professional Responsibility (‘‘OPR’’)
for further handling. Allegations of
misconduct by a CBP employee or
contractor can be sent to CBP OPR’s
Joint Intake Center via email at
JointIntake@cbp.dhs.gov or via phone at
1–877–2INTAKE (246–8253) Option
5.112 Such allegations can also be sent
to the DHS OIG Hotline via OIG’s
website, https://www.oig.dhs.gov/
hotline, or via phone at 1–800–323–
8603. Upon completion of an
investigation, CBP management reviews
all evidence, the CBP Standards of
Conduct, the CBP Table of Offenses and
Penalties, and how the agency has
handled similar misconduct in the past,
in order to determine what, if any,
disciplinary action is appropriate.113
Commenter concerns about the
processing of individuals seeking
exceptions to the Title 42 public health
Order at POEs are misplaced. As an
initial matter, the rule will take effect
only once the Title 42 public health
Order is lifted, at which time CBP will
inspect and process all noncitizens who
arrive at a POE under Title 8. Title 42
is a statutory scheme that operates
separate from Title 8. Thus, concerns
about the Title 42 exception process in
and of itself are not relevant to this
rulemaking. While noncitizens seeking
to enter a POE under Title 8 may
experience some wait times, those wait
times are not equivalent to rejections;
CBP policy provides that in no instance
will an individual be turned away or
‘‘rejected’’ from a POE.
Comment: One commenter stated that
the use of the CBP One app to schedule
an appointment to present at a POE
conflicts with the inspection
requirement in 8 U.S.C. 1225(a)(3),
requiring that all applicants for
admission be inspected by CBP officers.
The commenter specifically referred to
the district court’s order in Al Otro
Lado, Inc. v. McAleenan, 394 F. Supp.
3d 1168 (S.D. Cal. 2019), holding that
this provision applies to migrants who
are approaching a POE but have not yet
entered the United States. The
commenter stated that, because the
default/files/assets/documents/2021-Nov/CBPmgmt-processing-non-citizens-swb-lpoes-signedMemo-11.1.2021-508.pdf.
109 See id.
110 See id.
111 See, e.g., DHS OIG, Hotline Poster, https://
www.oig.dhs.gov/sites/default/files/DHS_OIG_
Hotline-optimized_without_fax.jpg (last visited Apr.
17, 2023); CBP, DHS/CBP/PIA–044, Privacy Impact
Assessment for the Joint Integrity Case Management
System (JICMS) at 1–2 (July 18, 2017), https://
www.dhs.gov/sites/default/files/publications/
privacy-pia-cbp044-jicms-july2017.pdf; CBP, CBP
Pub. No. 1686–0322, Report on Internal
Investigations and Employee Accountability—Fiscal
Year 2021 at 11–12 (Mar. 2022), https://
www.cbp.gov/sites/default/files/assets/documents/
2022-May/fy21-cbp-opr-internal-investigationaccountability_1.pdf.
112 CBP, How to Make a Report, https://
www.cbp.gov/about/care-and-custody/how-makereport (last visited Apr. 17, 2023).
113 See CBP, CBP Pub. No. 1686–0322, Report on
Internal Investigations and Employee
Accountability Fiscal Year 2021 at 17 (2022),
https://www.cbp.gov/sites/default/files/assets/
documents/2022-May/fy21-cbp-opr-internalinvestigation-accountability_1.pdf.
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number of appointments provided does
not approach the demand, the CBP One
app is functionally a system of metering.
Another commenter also asserted that it
was not clear whether noncitizens
without an appointment who approach
a POE would, in fact, be inspected and
processed, or whether they would be
turned away in violation of CBP’s
mandatory duty to inspect and process
noncitizens at POEs.
Response: The Departments
respectfully disagree that the use of the
CBP One app to schedule an
appointment to present at a POE
conflicts with CBP’s duties under 8
U.S.C. 1225(a)(3), unlawfully withholds
access to the asylum process, or
operates as a form of metering (though
the Departments maintain that DHS’s
prior metering policies are lawful). The
Departments acknowledge the district
court’s holding in Al Otro Lado—which
the Government has appealed—but the
use of CBP One app appointments as
contemplated by this rule does not
implicate that holding. CBP’s policy is
to inspect and process all arriving
noncitizens at POEs, regardless of
whether they have used the CBP One
app. In other words, the use of the CBP
One app is not a prerequisite to
approach a POE, nor is it a prerequisite
to be inspected and processed under 8
U.S.C. 1225(a)(3). Individuals without
appointments will not be turned away.
CBP is committed to increasing the
number of noncitizens processed at
POEs and to processing noncitizens in
an expeditious manner.114
In addition, any noncitizen who is
inspected and processed for expedited
removal upon arrival at a POE and who
expresses a fear of return, whether or
not they use the CBP One app, will be
referred to USCIS for a credible fear
interview with an AO. See INA
235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). The AO will determine
whether the presumption applies or
whether the individual can rebut or
establish an exception to the
presumption. CBP officers do not
determine or evaluate the merits of any
claim of fear, nor do they make
determinations on whether the rule’s
presumption applies. See id. (providing
that credible fear interviews are
conducted by AOs).
114 See Memorandum for William A. Ferrara,
Exec. Ass’t Comm’r, Off. of Field Operations, from
Troy A. Miller, Acting Comm’r, CBP, Re: Guidance
for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of
Entry (Nov. 1, 2021), https://www.cbp.gov/sites/
default/files/assets/documents/2021-Nov/CBPmgmt-processing-non-citizens-swb-lpoes-signedMemo-11.1.2021-508.pdf.
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b. AO Conduct and Training
Comment: Several commenters
expressed concern that the rule would
lead to erroneous asylum decisions
made by AOs, given alleged deficiencies
in AO conduct and training.
Commenters asserted that the rule
would lead to asylum decisions that are
too swift. Multiple commenters also
expressed concern that AOs have
conducted inadequate credible fear
screenings and made erroneous
decisions in such screenings, resulting
in errors in adjudicating asylum claims.
For instance, citing an investigation by
the DHS Office for Civil Rights and Civil
Liberties, one commenter alleged that
AOs have misapplied or failed to apply
existing asylum law, ignored relevant
portions of asylum seekers’ testimony,
failed to perform pattern and practice
analysis and consider country
conditions, failed to ask relevant followup questions and develop the record,
and failed to take accurate notes. In
addition, the same commenter said
some AOs can be hostile and
belligerent, and even the best trained
and most effective AOs have limited
time for credible fear interviews.
Another commenter stated that AOs are
ill-equipped to conduct the additional
analysis required by the rule, given
alleged deficiencies in the credible fear
lesson plan, failure of AOs to apply
current legal standards, failure to
provide appropriate language
interpretation, failure to interview
vulnerable populations within agency
guidelines, and interference with access
to counsel.
Some commenters also stated that
AOs are not medical experts and lack
the required expertise to evaluate
whether something is or is not an acute
medical emergency. Another commenter
stated that DHS should train all staff
who interact with LGBT asylum seekers.
Some commenters likewise stated that
the rule should explicitly instruct AOs
to affirmatively elicit information about
whether a person could qualify for an
exception to the rule or rebut its
ineligibility presumption, such as
details about any family or personal
medical emergencies, threats of
violence, difficulties using the CBP One
app, and other matters that bear on the
exceptions and grounds for rebuttal.
One commenter expressed concerns
that noncitizens who are subject to the
rule’s rebuttable presumption of asylum
ineligibility would be deprived of the
right to be meaningfully heard on their
claims because adjudicators applying
the presumption would understand the
rule to favor overall deterrence of
asylum seeking, such that
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decisionmakers would allegedly err on
the side of denying asylum or making
negative credible fear determinations.
This commenter also argued that the
expedited removal system leads to a
systemic, unjustified skepticism
amongst adjudicators toward
meritorious claims.
Response: The Departments
acknowledge these commenter concerns
but disagree that AOs lack the
competence, expertise, or training to
make determinations on whether the
presumption of ineligibility for asylum
applies or an exception or rebuttal
ground has been established. AOs
frequently assess physical and
psychological harm when adjudicating
asylum applications and are trained to
do so in a sensitive manner.115 AOs
already evaluate harm resulting from the
unavailability of necessary medical care
or specific medications when assessing
‘‘other serious harm’’ under 8 CFR
208.13(b)(1)(iii)(B).116 Additionally, all
AOs receive specific training on
adjudicating asylum claims of LGBT
individuals.117 As for commenters’
requests that the rule explicitly instruct
AOs to affirmatively elicit information
about the presumption, such an
instruction is unnecessary, as AOs
conducting credible fear interviews are
already required to specifically ask
questions to elicit all relevant testimony
in a non-adversarial manner.118 This
will necessarily include information
related to whether the rule’s
presumption applies or an exception or
rebuttal ground has been established,
regardless of whether the noncitizen
affirmatively raises these issues.
USCIS takes any allegations of AO
misconduct seriously and is aware of
the ongoing investigation by the DHS
Office of Civil Rights and Civil Liberties
cited by commenters. However, the
Departments strongly disagree with any
claims that AOs systematically exhibit
an unjustified skepticism or
115 For example, AOs adjudicate cases involving
forms of persecution like female genital mutilation,
forced abortion, or forced sterilization. See Matter
of Kasinga, 21 I&N Dec. 357 (BIA 1996); INA
101(a)(42)(B), 8 U.S.C. 1101(a)(42)(B); see also
USCIS, RAIO Directorate—Officer Training,
Gender-Related Claims at 24–28 (Dec. 20, 2019),
https://www.uscis.gov/sites/default/files/document/
foia/Gender_Related_Claims_LP_RAIO.pdf.
116 See USCIS, RAIO Directorate—Officer
Training: Definition of Persecution and Eligibility
Based on Past Persecution, Supp. B at 60 (Dec. 20,
2019), https://www.uscis.gov/sites/default/files/
document/foia/Persecution_LP_RAIO.pdf.
117 See generally USCIS, RAIO Directorate—
Officer Training: Guidance for Adjudicating
Lesbian, Gay, Bisexual, Transgender, and Intersex
(LGBTI) Refugee and Asylum Claims (Dec. 20,
2019), https://www.uscis.gov/sites/default/files/
document/foia/LGBTI_Claims_LP_RAIO.pdf.
118 See generally USCIS, Non-Adversarial
Interview; USCIS, Eliciting Testimony.
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31359
insensitivity toward asylum claims, that
they routinely fail to follow law or
procedure, or that they would do so
when applying this rule. AOs are career
government employees and are selected
based on merit. They undergo special
training on non-adversarial interview
techniques, cross-cultural
communication, interviewing children,
and interviewing survivors of torture
and other severe trauma.119 While the
Departments disagree with the
commenters’ premise, the Departments
also note that government officials are
entitled to the presumption of official
regularity in the way they conduct their
duties. See United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926).
Commenters failed to provide
persuasive evidence of systematic bias
or misapplication of the law or
procedure by AOs.
c. IJ Conduct and Training
Comment: Several commenters
expressed concern with IJ conduct and
their training vis-a`-vis application of the
rule’s condition on asylum eligibility.
One commenter expressed concerns that
noncitizens who are subject to the rule’s
rebuttable presumption of asylum
ineligibility would be deprived of the
right to be meaningfully heard on their
claims because adjudicators applying
the presumption would understand the
proposed rule to favor overall
deterrence, such that IJs would allegedly
err on the side of denial or negative
credible fear findings. The commenter
argued that the expedited removal
system and prior hiring practices within
EOIR lead to a systemic inclination
toward unjustified skepticism among IJs
with respect to meritorious claims.
Commenters also averred that IJs are
not medical experts with the required
expertise to evaluate medical issues
implicated by the rebuttable
presumption. Commenters stated that a
significant number of IJs hired in the
past several years lacked prior
immigration law experience, yet, as IJs,
they make complex legal determinations
in brief credible fear proceedings.
Commenters also asserted that some IJs
have engaged in unprofessional and
119 See 8 CFR 208.1(b); see also USCIS, NonAdversarial Interview; USCIS, Eliciting Testimony;
USCIS, RAIO Directorate—Officer Training: CrossCultural Communication and Other Factors that
May Impede Communication at an Interview (Dec.
20, 2019), https://www.uscis.gov/sites/default/files/
document/foia/CrossCultural_Communication_LP_
RAIO.pdf; USCIS, Children’s Claims; USCIS, RAIO
Directorate—Officer Training: Interviewing
Survivors of Torture and Other Severe Trauma
(Dec. 20, 2019), https://www.uscis.gov/sites/default/
files/document/foia/Interviewing_-_Survivors_of_
Torture_LP_RAIO.pdf [hereinafter USCIS,
Interviewing Survivors of Torture].
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hostile behavior toward asylum seekers
and noted that some IJs have asylum
denial rates of 90 percent or higher.
Additionally, commenters expressed
concern about potential IJ bias or lack of
sufficient training for IJs related to, in
particular, asylum claims of LGBT
individuals.
Response: The Departments
respectfully disagree with commenters’
concerns about IJs’ conduct and
training. IJs, like AOs, are career
employees who are selected through a
competitive process. Likewise, IJs
receive ‘‘comprehensive, continuing
training and support’’ directed at
‘‘promot[ing] the quality and
consistency of adjudications.’’ 8 CFR
1003.0(b)(1)(vii). Relatedly, the Chief
Immigration Judge has the authority to
‘‘[p]rovide for appropriate training of
the immigration judges and other OCIJ
staff on the conduct of their powers and
duties.’’ 8 CFR 1003.9(b)(2). Regulations
also require IJs to ‘‘resolve the questions
before them in a timely and impartial
manner consistent with the [INA] and
regulations.’’ 8 CFR 1003.10(b).
The Departments likewise do not
share commenters’ concerns regarding
newly hired IJs’ professional experience
or ability to make appropriate legal
determinations in the context of
credible fear reviews or section 240
removal proceedings. The Departments
believe that IJs’ diverse professional
backgrounds contribute to their ability
to address complex legal issues in all
cases arising before them. Notably, 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. Upon entry on duty,
new IJs receive extensive training, and
throughout their tenure, all IJs receive
both annual and periodic training on
specialized topics as necessary. IJs are
also expected to maintain
professionalism and competence in the
law.120
Moreover, the Departments disagree
with commenter concerns about IJs’
ability to assess medical records.
Nothing in the rule requires
adjudicators to make a formal medical
diagnosis to determine whether a
noncitizen is exempt from or has
rebutted the rule’s condition on
eligibility. Rather, adjudicators will
make a factual determination regarding
whether certain exigencies, such as an
120 See EOIR, Ethics and Professionalism Guide
for Immigration Judges 2 (Jan. 31, 2011), https://
www.justice.gov/sites/default/files/eoir/legacy/
2013/05/23/EthicsandProfessionalism
GuideforIJs.pdf.
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acute medical emergency, caused a
noncitizen to enter the United States
outside of an available lawful pathway.
8 CFR 208.33(a)(2), 1208.33(a)(2). Given
the IJ’s role as the finder of fact in
proceedings before EOIR, IJs are wellequipped to make such fact-based
determinations.
Further, to the extent that
commenters’ concerns amount to
allegations that IJs are biased or fail to
comport themselves in a manner
consistent with their duties, the
Departments note that IJs are attorneys,
8 CFR 1003.10(a), and must comply
with all ethical conduct and training
requirements for DOJ attorneys. See,
e.g., 5 CFR 2635.101.121 Additionally, as
evidenced by the existence and work of
EOIR’s Judicial Conduct and
Professionalism Unit (‘‘JCPU’’),
‘‘[a]lleged misconduct by [IJs] is taken
seriously by [DOJ] and [EOIR].’’ 122 EOIR
strives to adjudicate every case in a fair
manner and to treat all parties involved
with respect. Individuals or groups who
believe that an IJ or other EOIR
adjudicator has engaged in misconduct
may submit a complaint to EOIR’s JCPU
via mail at Executive Office for
Immigration Review, attn.: Judicial
Conduct and Professionalism Unit, 5107
Leesburg Pike, Suite 2600, Falls Church,
VA 22041 or via email at
judicial.conduct@usdoj.gov.
Additionally, JCPU may launch its own
investigation if information related to
potential misconduct comes to JCPU’s
attention by other means, including
through news reports, Federal court
decisions, and routine reviews of agency
proceedings.123 JCPU will review all
complaints, docket cases alleging
judicial misconduct, gather relevant
materials, and forward the complaint,
relevant documents, and a summary of
JCPU’s preliminary fact-gathering to the
IJ’s supervisor for investigation and
resolution.124 Complaints can be
resolved by dismissal, conclusion,
corrective action, or disciplinary action,
and JCPU will provide written notice to
the complainant when the matter is
closed.125
121 See also ICPM, Chapter 1.3(c) (Nov. 14, 2022)
(‘‘Immigration judges strive to act honorably, fairly,
and in accordance with the highest ethical
standards, thereby ensuring public confidence in
the integrity and impartiality of immigration court
proceedings.’’).
122 See id.
123 See EOIR, Judicial Complaint Process (Feb.
2023), https://www.justice.gov/eoir/page/file/
1100946/download (explaining the steps of the
judicial complaint process).
124 Id.
125 Id.; see also EOIR, Statistics and Reports,
https://www.justice.gov/eoir/statistics-and-reports
(last visited Apr. 19, 2023) (providing IJ complaint
statistics).
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While the Departments disagree with
the commenters’ premise, moreover, the
Departments also note that government
officials are entitled to the presumption
of official regularity in the way they
conduct their duties, Chem. Found., 272
U.S. at 14–15, and commenters failed to
provide persuasive evidence of
systematic bias amongst IJs.
iv. Concerns Regarding Confusion,
Delays, Backlog, and Inefficiencies
Comment: Commenters described the
rule as ‘‘convoluted,’’ ‘‘elaborate,’’ or
‘‘unclear,’’ and expressed concerns that
it would be confusing to migrants and
make it difficult for legal services
organizations to advise clients, partner
organizations, and the communities that
they serve. Commenters said that the
proposed rule would impose a two-tier
approach and additional fact-intensive
queries for credible fear interviews,
thereby increasing interview times and
complexity of credible fear cases and
adding to the burden and confusion of
AOs. Additionally, commenters stated
that prior asylum policy changes have
led to confusion amongst attorneys and
migrants and resulted in erroneous
deportations. Moreover, one commenter
stated that a confusing legal framework
does not prevent and sometimes
promotes an increase of irregular
migration. Another commenter
recommended that the Government
provide guidance or an FAQ document
to accompany and explain the rule’s
exceptions and means of rebuttal.
In addition, commenters expressed
concern that, by adding to the
evidentiary requirements, complexity,
and length of asylum adjudications, the
rule would exacerbate delays and
backlogs, inefficiently prolong the
asylum process for legitimate asylum
seekers, increase erroneous denials,
decrease the number of attorneys
available to help clear backlogs, and
strain limited government resources.
Commenters also pointed to previous
instances where changes in procedure
led to an increased backlog, citing the
Citizenship and Immigrant Services
Ombudsman 2022 annual report to
highlight this dynamic. Another
commenter stated that cases wrongly
referred to the immigration court by the
Asylum Office due to erroneous
applications of the rule would
unnecessarily add to immigration court
backlogs. And commenters stated that
the NPRM failed to provide any
evidence or explanation that the
proposed rule would mitigate backlogs.
In response to these efficiency concerns,
one commenter suggested that the
Departments should pursue alternate
solutions for addressing the USCIS and
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EOIR backlogs, such as more dedicated
dockets, smarter prioritization of cases,
expanded use of administrative closure
or deferred action, or establishing an
independent immigration court. One
commenter likewise maintained that the
Departments, in their efforts to help the
immigration court system function more
efficiently and effectively must still
respect the due process rights of asylum
seekers.
Response: The Departments do not
believe that the rule’s provisions are
unduly confusing or complex. However,
as described in Section II.C.7 of this
preamble, the Departments have
streamlined the regulatory text
significantly to improve clarity, and the
Departments believe this final rule
publication should provide much of the
guidance sought by commenters.
Substantively, the rule simply outlines
a circumstance in which a noncitizen
will be presumed ineligible for asylum,
and includes a list of exceptions to and
means of rebutting the presumption. As
explained in Section IV.B.5.iii.a of this
preamble, AOs conducting credible fear
interviews will specifically ask
questions to elicit all relevant testimony
in a non-adversarial manner, including
with respect to whether the
presumption applies or any exception or
rebuttal ground is applicable in a given
case, regardless of whether the
noncitizen affirmatively raises these
issues. Furthermore, noncitizens who
are found by an AO to be subject to the
condition on eligibility may request
review of that determination, and an IJ
will evaluate de novo whether the
noncitizen is subject to the
presumption, and if so, whether the
noncitizen has established an exception
to or rebutted the presumption. 8 CFR
208.33(b)(1), (2). And even where the
presumption applies and no exception
or rebuttal ground has been established
at the credible fear stage, if the
noncitizen has demonstrated a
reasonable possibility of persecution or
torture, they will have an opportunity to
apply for asylum, statutory withholding
of removal, CAT protection, or any other
form of relief or protection for which the
noncitizen is eligible in removal
proceedings under section 240 of the
INA. See 8 CFR 208.33(b)(2)(ii),
(b)(2)(v)(B); id. 1208.33(b)(4).
In relation to the concern that the
rule’s provisions are unclear or that
additional public-facing materials may
be necessary to clarify and raise
awareness about provisions of the rule,
the Departments intend to execute a
robust communications plan to notify
and inform the public of the rule’s
requirements. This plan entails
engagement with stakeholders,
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including NGOs, international
organizations, legal services
organizations, and others. The
Departments also plan to mount
communications campaigns as
appropriate throughout the Western
Hemisphere in coordination with
interagency partners and partner
governments in order to educate
potential migrants about the rule’s
requirements, including consequences
of failing to use available lawful
pathways.
These efforts are in addition to
preexisting and ongoing
communications efforts, including
publicization of removal and
enforcement statistics, English-,
Spanish-, Portuguese-, and Haitian
Creole-language interviews with media
outlets in the region, and regularly
updated Web resources on which the
Departments can provide additional
information in response to demand from
the public.
The Departments acknowledge
concerns regarding delays, backlogs,
and limited government resources, but
believe that these concerns are
outweighed by the anticipated benefits
of the rule. The rule is expected to
ultimately reduce the number of cases
pending before the immigration courts
and reduce ancillary benefit requests to
USCIS. See 8 CFR 208.7 (employment
authorization for pending asylum
applicants). This would also alleviate
the burden on ICE of removing nondetained noncitizens who receive final
orders of removal at the conclusion of
removal proceedings under section 240
of the INA but who do not comply with
their orders. See, e.g., 8 CFR 241.4(f)(7)
(in considering whether to recommend
further detention or release of a
noncitizen, an adjudicator must
consider ‘‘[t]he likelihood that the alien
is a significant flight risk or may
abscond to avoid removal’’). The
Departments also anticipate that the rule
will redirect migratory flows towards
lawful, safe, orderly pathways in ways
that make it easier to process their
requests for admission. 88 FR at 11729.
The Departments believe that this will
ultimately result in fewer credible fear
cases than would otherwise be
processed, and that these improvements
in efficiency would outweigh a potential
increase in credible fear interview
times. The Departments do not
anticipate that the rule will be applied
frequently in affirmative asylum cases
decided by the Asylum Office, since
only a small percentage of these
applicants enter the United States from
Mexico across the southwest land
border or adjacent coastal borders, apart
from UCs who are not subject to the
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31361
rule.126 When all the effects are
considered on balance, this rule will
serve one of the key goals of the U.S.
asylum system, which is to efficiently
and fairly provide protection to
noncitizens who are in the United States
and have meritorious claims, while also
efficiently denying and ultimately
removing those who are not deemed
eligible for discretionary forms of
protection and do not qualify for
statutory withholding of removal or
protection under the CAT. See 88 FR at
11729.
Comments advocating for other
immigration policy changes or statutory
reforms that could potentially create
efficiencies in immigration proceedings
are outside the scope of this rulemaking.
However, as stated in the NPRM, the
Departments note that EOIR has created
efficiencies by reducing barriers to
access immigration courts. See 88 FR at
11717. In that regard, EOIR has
expanded the Immigration Court
Helpdesk program to several additional
courts, issued guidance on using the
Friend of the Court model to assist
unrepresented respondents, and
reconstituted its pro bono liaison
program at each immigration court. The
above measures promote efficiency as,
where a noncitizen is represented, the IJ
is less likely to have to engage in timeconsuming discussions at hearings to
ascertain whether the noncitizen is
subject to removal and potentially
eligible for any relief. In addition, a
noncitizen’s counsel can assist the
noncitizen in gathering evidence, can
prepare the noncitizen to testify, and
can work with DHS counsel to narrow
the issues the IJ must decide. While
critically important, these process
improvements are not, on their own,
sufficient to respond to the significant
resource needs associated with the
increase in migrants anticipated
following the lifting of the Title 42
public health Order.
To the extent commenters argued that
adjudication timeline concerns
implicate the due process rights of
noncitizens, as explained above, the
Supreme Court has held that the due
process rights of noncitizens applying
for admission at the border are limited
to ‘‘only those rights regarding
admission that Congress has provided
by statute.’’ Thuraissigiam, 140 S. Ct. at
1983. However, upon referral of a fear
126 The annual percentage of affirmative asylum
applicats who entered between POEs and were not
UCs has steadily declined over the past two
decades. The percentage for 2020-22 have been
16.00 percent, 14.85 percent, and 13.92 percent,
respectively. So far in fiscal year 2023, the
percentage has been 9.06 percent. USCIS Data
Collection, Apr. 13, 2023.
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claim, USCIS seeks to issue credible fear
determinations for detained noncitizens
in a timely manner. Furthermore, the
statute that governs expedited removal
provides that upon a noncitizen’s
request for review of an AO’s negative
credible fear determination, an IJ will
review the determination ‘‘in no case
later than 7 days after the date of the
determination.’’ INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). In any event,
because there is no statute guaranteeing
any noncitizen that their expedited
removal or credible fear process will be
completed in a given amount of time,
any failure to meet this obligation is not
in the nature of a due process violation.
See Thuraissigiam, 140 S. Ct. at 1983.
Comment: Commenters expressed
concerns that a lack of notice about the
rule for asylum seekers could lead to
confusion and due process violations.
Some expressed concern that
noncitizens who are traveling to the
United States when the rule becomes
effective would not have sufficient
notice about the CBP One app or the
need to schedule an appointment in
order to seek asylum without being
subject to a rebuttable presumption of
ineligibility. Commenters expressed
concern that individuals who had
contracted with smugglers in transit
would receive disinformation from the
smugglers about lawful pathways,
thereby preventing them from using a
lawful pathway to enter the United
States. Other commenters said that
noncitizens should receive notice of the
rebuttable presumption prior to their
credible fear interviews.
Response: The Departments believe
that comments about lack of notice are
misguided for several reasons. First, as
just discussed, the rule’s requirements
are not unduly confusing or complex,
and the Departments intend to
implement a robust communications
plan to notify and inform the public of
requirements under the rule,
minimizing any potential confusion.
Second, the Departments provided
advance notice of the potential issuance
of this policy by issuing the NPRM on
February 23 of this year, and by
announcing the impending issuance of
such proposed rule in January.127 Third,
any lack of notice would not constitute
a violation of the Fifth Amendment’s
Due Process Clause. As explained
above, the Supreme Court has held that
127 See DHS, Press Release, DHS Continues to
Prepare for End of Title 42; Announces New Border
Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://
www.dhs.gov/news/2023/01/05/dhs-continuesprepare-end-title-42-announces-new-borderenforcement-measures-and.
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the rights of noncitizens applying for
admission at the border are limited to
‘‘only those rights regarding admission
that Congress has provided by statute.’’
Thuraissigiam, 140 S. Ct. at 1983. The
Departments are aware of no statutory
requirement that notice regarding any of
the INA’s provisions be provided to
individuals outside the United States,
including those who may be subject to
expedited removal provisions or
conditions on asylum eligibility upon
arrival. Finally, courts have long held
that ‘‘ignorance of the legal
requirements for filing an asylum
application’’ is ‘‘no excuse’’ for failing
to comply with such requirements,
particularly where, as here, the
enactment of such requirements is
published in the Federal Register.
Alquijay v. Garland, 40 F.4th 1099, 1103
(9th Cir. 2022) (quotation marks
omitted) (citing, e.g., Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA,
559 U.S. 573, 581 (2010)); see Williams
v. Mukasey, 531 F.3d 1040, 1042 (9th
Cir. 2008).
v. Other Procedural Concerns
Comment: Commenters stated that it
would be extremely challenging or
impossible for many asylum seekers to
show that the rule does not apply to
them or to establish an exception to or
rebut the presumption of ineligibility,
despite having bona fide claims.
According to these commenters, the
expedited removal process is extremely
flawed and rife with erroneous removals
due to a number of factors. Asylum
seekers are detained in remote areas (in
abusive and dangerous conditions of
confinement), where attorney access is
limited and they have no chance to
gather evidence. Credible fear
screenings typically occur over the
phone (often with poor call quality and
sporadic connection, with little or no
privacy). The commenters also stated
that the lack of privacy during these
screenings makes it more difficult and
potentially retraumatizing for applicants
to share their stories and make their
cases. One commenter stated that,
although the noncitizen may be in a
private room, there is often a lot of noise
and commotion in the passageways that
can be distracting. One commenter
wrote that trauma severely impacts a
survivor’s ability to coherently and
compellingly present an asylum claim
by negatively affecting memory and
emotional state and causing them to
behave in ways that untrained people
may read as indicating a lack of
credibility. Another commenter stated
that credible fear screenings can trigger
increased traumatic response, rather
than increased disclosure about the
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circumstances of persecution or torture.
The presence of noncitizens’ children
during the interview can be distracting
or deter the person from disclosing
sensitive elements of their persecution
story. Commenters also stated that
language barriers, including Englishonly availability for written notices,
make the process more difficult. One
commenter also stated that translators
may be unfamiliar with certain dialects
and slang. Commenters stated that these
alleged factors would worsen if the
Administration were to pursue its
reported plan to conduct credible fear
interviews within days of asylum
seekers’ arrival in CBP custody, based
on the conditions in CBP custody and
lack of access to counsel, as shown by
the increase in negative credible fear
determinations during the Prompt
Asylum Case Review (‘‘PACR’’) program
and the Humanitarian Asylum Review
Program (‘‘HARP’’).
Response: To the extent commenters
argued that conditions in which
credible fear interviews take place, such
as location, interview procedures, and
surrounding circumstances, implicate
the due process rights of noncitizens, as
explained above, the Supreme Court has
held that the due process rights of
noncitizens applying for admission at
the border are limited to ‘‘only those
rights regarding admission that Congress
has provided by statute.’’
Thuraissigiam, 140 S. Ct. at 1983. As
further explained above, the statute that
governs expedited removal provides
only that the noncitizen may ‘‘consult
with a person or persons of the alien’s
choosing prior to the interview or any
review thereof, according to regulations
prescribed by the Attorney General.
Such consultation shall be at no
expense to the Government and shall
not unreasonably delay the process.’’
INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv).
In any event, the Departments
disagree with these characterizations of
credible fear interviews. With regard to
commenter concerns about lack of
privacy during credible fear interviews,
the Departments note that these
interviews are conducted ‘‘separate and
apart from the general public.’’ 8 CFR
208.30(d). The Departments are mindful
of their duties under 8 CFR 208.6 and
1208.6 to prevent unauthorized
disclosure of records pertaining to any
credible fear determination, and AOs
are required to explain these
confidentiality requirements to
noncitizens prior to credible fear
interviews.128 Noncitizens in credible
128 See USCIS, Non-Adversarial Interview; see
also Form M–444, Information About Credible Fear
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fear proceedings are also informed that
interpreters are sworn to keep their
testimony confidential.129 All AOs
receive training on working with
interpreters, which includes assessing
competency and recognizing other
factors that may affect the accuracy of
interpretation.130 Credible fear
interviews are conducted ‘‘in a
nonadversarial manner, separate and
apart from the general public.’’ 8 CFR
208.30(d). AOs are trained to elicit all
relevant testimony during credible fear
interviews,131 and will not preemptively
issue negative credible fear
determinations due to phone
connectivity issues. All AOs receive
training on interviewing survivors of
torture and other severe trauma.132
Finally, commenters’ concerns related
to the potential for conducting credible
fear interviews while noncitizens are in
CBP custody are outside the scope of
this rule. This rule does not specify
where noncitizens may be held in
custody during credible fear
proceedings. Any decision to conduct
credible fear interviews while the
noncitizen is in CBP custody will take
into account a range of factors,
including operational limitations
associated with the facility, staffing, and
throughput. Additionally, to the extent
that commenters have concerns about
conditions in CBP custody, such
comments are outside the scope of this
rule. DHS notes, however, that it is
committed to providing safe, sanitary,
and humane conditions to all
individuals in custody, and that it is
committed to transferring individuals
out of CBP custody in an expeditious
manner. The Departments further note
that one anticipated effect of this rule is
to alleviate overcrowding in DHS
detention facilities. See 88 FR at 11704.
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6. Recent Regional Migration Initiatives
Comment: Commenters stated that the
rule conflicts with several migration
Interview 1 (May 31, 2022) (‘‘U.S. law has strict
rules to prevent the government from telling others
about what you say in your credible fear
interview.’’).
129 Form M–444, Information About Credible Fear
Interview 2 (May 31, 2022) (‘‘The interpreter will
be sworn to keep the information you discuss
confidential.’’).
130 USCIS, RAIO Directorate—Officer Training,
Interviewing—Working with an Interpreter (Dec. 20,
2019), https://www.uscis.gov/sites/default/files/
document/foia/Interviewing_-_Working_with_an_
Interpreter_LP_RAIO.pdf.
131 USCIS, Eliciting Testimony 12 (‘‘In cases
requiring an interview, although the burden is on
the applicant to establish eligibility, equally
important is your obligation to elicit all pertinent
information.’’); USCIS, Non-Adversarial Interview
13 (‘‘You control the direction, pace, and tone of
the interview and have a duty to elicit all relevant
testimony.’’).
132 USCIS, Interviewing Survivors of Torture.
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declarations and other compacts into
which the United States has recently
entered. For example, at least one
commenter stated that the rule conflicts
with the L.A. Declaration, in which the
United States committed ‘‘to promote
access to protection and complementary
pathways for asylum seekers, refugees,
and stateless persons in accordance
with national legislation and with
respect for the principle of nonrefoulement.’’ 133 One commenter stated
the former presidents of Colombia and
Costa Rica object to the proposed rule
on the basis that it is not in line with
the L.A. Declaration.
Response: The Departments disagree
that the rule conflicts with any recent
regional migration initiatives. The
Departments’ rule is fully consistent
with the United States’ commitments
under the L.A. Declaration, including
our responsibility as a signatory country
to ‘‘manage mixed movements across
international borders in a secure,
humane, orderly, and regular
manner.’’ 134 As described in the NPRM,
political and economic instability,
coupled with the lingering adverse
effects of the COVID–19 global
pandemic, have fueled a substantial
increase in migration throughout the
world. See, e.g., 88 FR at 11708–14.
Current DHS encounter projections
and planning models suggest that
encounters at the SWB could rise to
11,000 encounters per day after the
lifting of the Title 42 public health
Order.135 Absent policy changes, most
non-Mexicans processed for expedited
removal under Title 8 would likely
establish credible fear and remain in the
United States for the foreseeable future
despite the fact that many of them will
not ultimately be granted asylum, a
scenario that would likely incentivize
an increasing number of migrants to the
United States and further increase the
likelihood of sustained high encounter
rates.
The Departments’ promulgation of
this rule is an attempt to avert this
scenario in line with the United States
and other signatory nations’
responsibility to manage migration
responsibly and humanely as described
in the L.A. Declaration. Contrary to
commenters’ assertion, the rule is
consistent with the Collaborative
Migration Management Strategy
133 The White House, Los Angeles Declaration on
Migration and Protection (June 10, 2022), https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/.
134 Los Angeles Declaration.
135 OIS analysis of DHS SWB Encounter Planning
Model generated April 18, 2023.
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(‘‘CMMS’’) 136 and the L.A. Declaration’s
support for a collaborative and regional
approach to migration and forced
displacement, pursuant to which
countries in the hemisphere commit to
implementing programs to stabilize
communities hosting migrants and
asylum seekers, providing increased
regular pathways and protections for
migrants and asylum seekers who reside
in or traveled through their countries,
and humanely enforcing existing
immigration laws.
The rule works in combination with
several other policy actions to secure
the SWB while upholding the principles
enshrined in the L.A. Declaration. These
policy actions include resumption of the
Cuban and Haitian Family Reunification
Parole Programs, the plans to streamline
those programs and extend them to
nationals of certain other countries, the
establishment of regional processing
centers, expansion of refugee
resettlement commitments globally and
in the region, expansion of labor
pathways, including expanded access in
the region to H–2B temporary
nonagricultural worker visas, creation of
the parole processes for CHNV
nationals, the Asylum Processing IFR,
and other processing improvements
geared toward expanding access to
lawful pathways. 88 FR at 11716–19.137
These actions are consistent with the
specific goal laid out in the L.A.
Declaration to collectively ‘‘[e]xpand
access to regular pathways for migrants
and refugees.’’ Together with the rule,
these policy actions will help address
unprecedented migratory flows, the
systemic costs those flows impose on
the immigration system, and the ways in
which a network of increasingly
sophisticated human smuggling
networks cruelly exploit the system for
financial gain.
7. Negative Impacts on the Workforce
and Economy
Comment: Some commenters stated
that the Departments should not enact
restrictions on immigration due to
current labor shortages and the general
benefits of immigration. Commenters
stated that the rule will stifle the flow
of immigration to American
communities, which will suffer because
immigrants are central to community
development, economic prosperity, and
maintaining a strong workforce. A
commenter stated that U.S. history has
shown that immigrants, even those who
136 See The White House, Collaborative Migration
Management Strategy (July 2021), https://
www.whitehouse.gov/wp-content/uploads/2021/07/
Collaborative-Migration-Management-Strategy.pdf.
137 See also DHS, New Actions to Manage
Regional Migration (Apr. 27, 2023).
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arrive here in the weakest of
circumstances, strengthen our country
in the long run. Commenters said that
the U.S. population is stagnating or
shrinking, so the United States should
welcome migrants—especially young
migrants—who can support the
economy, fill jobs, and contribute to
Social Security. A commenter stated
that beginning in 2019, levels of
immigration to the United States
dropped significantly, and that by the
end of 2021 there were close to 2
million fewer working-age immigrants
in the United States than there would
have been if pre-pandemic immigration
continued unchanged, according to
researchers from the University of
California, Davis.
Some commenters opposed the
proposed rule on the ground that
immigrants are willing to work difficult
jobs that many already in the United
States are not willing to take.
Commenters stated that there is
currently a severe shortage of certain
workers in the United States, such as in
the health care, agriculture, and service
industries, and that migrants who
undertake an arduous overland journey
to the United States are likely to work
hard and become productive members
of U.S. society. One commenter noted
that immigrant-owned businesses
account for over 8 million jobs and 1.3
trillion dollars in the U.S. economy.
Another commenter stated that
individuals in the asylum process who
are working with work authorization
contribute about $11 billion to the
economy each year. Commenters also
stated that migrants do not have a
significant negative impact on the wages
of local-born residents and that migrants
contribute more to the U.S. economy
than the cost of community and
government services they use. One
commenter stated that the proposed rule
improperly restricts asylum seekers
being integrated into the workforces of
the States and that State-funded services
for asylum seekers would be put under
strain as a result.
Response: The Departments agree that
immigrants make important
contributions to the U.S. economy.
However, the Departments disagree that
the benefits of immigration render this
rule unnecessary or invalid. The
Departments emphasize that the U.S.
immigration system has experienced
extreme strain with a dramatic increase
of noncitizens attempting to cross the
SWB in between POEs without
authorization, reaching an all-time high
of 2.2 million encounters in FY 2022.
Without a meaningful policy change,
border encounters could dramatically
rise to as high as 11,000 per day after
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the Title 42 public health Order is
lifted,138 and DHS does not currently
have the resources to manage and
sustain the processing of migratory
flows of this scale in a safe and orderly
manner. See 88 FR at 11712–13. This
rule is therefore designed to incentivize
migrants to choose lawful, safe, and
orderly pathways to entering the United
States over dangerous, irregular
pathways.
Over the last several months, DHS has
endeavored to promote and expand
lawful, safe, and orderly pathways. For
instance, in January 2023, DHS
implemented new parole processes for
CHN nationals that built on the
successful process for Venezuelans and
created an accessible, streamlined way
for eligible individuals to travel to and
enter the United States via a lawful and
safe pathway. Through a fully online
process, individuals can seek advance
authorization to travel to the United
States and be considered, on a case-bycase basis, for a temporary grant of
parole for up to two years. Individuals
who are paroled through these processes
can apply for employment authorization
immediately following their arrival to
the United States.139
Furthermore, the United States
Government has significantly expanded
access to the H–2 labor visa programs to
address labor shortages and provide safe
and orderly pathways for migrants
seeking to work in the United States.
For example, on December 15, 2022,
DHS and the Department of Labor
(‘‘DOL’’) jointly published a temporary
final rule increasing the total number of
noncitizens who may receive an H–2B
nonimmigrant visa by up to 64,716 for
the entirety of FY 2023. 87 FR 76816
(Dec. 15, 2022). In 2022, concurrent
with the announcement of the L.A.
Declaration, the United States
announced that it intends to welcome at
least 20,000 refugees from Latin
America and the Caribbean in FY 2023
and FY 2024, which would put the
United States on pace to more than
triple the number of refugee admissions
from the Western Hemisphere this fiscal
year alone.140 On April 27, 2023, DHS
announced that it would commit to
referring for resettlement thousands of
additional refugees per month from the
Western Hemisphere—with the goal of
doubling the number of refugees the
138 OIS analysis of DHS SWB Encounter Planning
Model generated April 18, 2023.
139 See USCIS, Frequently Asked Questions
About the Processes for Cubans, Haitians,
Nicaraguans, and Venezuelans (Mar. 22, 2023),
https://www.uscis.gov/humanitarian/frequentlyasked-questions-about-the-processes-for-cubanshaitians-nicaraguans-and-venezuelans.
140 See L.A. Declaration Fact Sheet.
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United States committed to welcome as
part of the L.A. Declaration.141 The
Departments also note that the United
States admitted significantly more
noncitizens in nonimmigrant status in
fiscal year 2022 (96,700,000) than in
previous years.142
The Departments believe that these
new or expanded lawful pathways, and
particularly employment-based
pathways, are effective ways to address
labor shortages and encourage lawful
migration. The Departments also believe
that, by reducing migrants’ incentives to
use human smugglers and traffickers to
enter the United States, this final rule
will reduce the likelihood that newly
arrived migrants will be subjected to
labor trafficking. The Departments
further reiterate that noncitizens who
avail themselves of any of the lawful,
safe, and orderly pathways recognized
in this rule will not be subject to the
rebuttable presumption.
8. Other Opposition
i. Encourages Migration by Sea or Other
Dangerous Means
Comment: A commenter predicted
that the proposed rule may increase the
number of migrants seeking to travel to
the United States by sea, which is
dangerous and could lead to an increase
in migrant deaths and drownings, and
another suggested that attempted
immigration directly by sea would pose
a significant burden on Coast Guard and
other resources. One commenter
expressed concern that the rule would
incentivize migrants to avoid detection
by CBP, remarking that migrants may
attempt to enter the United States by
crossing the Rio Grande River or along
the Pacific coast, where they face a high
risk of drowning.
Commenters stated that the proposed
rule would do nothing to stem the flow
of migrants to the United States but
would instead force people to seek out
other means of coming to the United
States and leave people with few
choices, including the very choices the
rule purports to wish to avoid. Some
commenters stated that the rule will
result in migrants, who are in a
desperate humanitarian situations or
141 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
142 Compare OIS, Legal Immigration and
Adjustment of Status Report Fiscal Year 2022,
Quarter 4, https://www.dhs.gov/immigrationstatistics/special-reports/legal-immigration, with
OIS, Annual Flow Report: U.S. Nonimmigrant
Admissions: 2021 (July 2022), https://www.dhs.gov/
sites/default/files/2022-07/2022_0722_plcy_
nonimmigrant_fy2021.pdf, and OIS, Annual Flow
Report: U.S. Nonimmigrant Admissions: 2018 (Oct.
2018), https://www.dhs.gov/sites/default/files/
publications/immigration-statistics/yearbook/2018/
nonimmigrant_admissions_2018.pdf.
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fear for their lives, resorting to more
dangerous routes between POEs to enter
the United States. One commenter
stated that these dangerous border
crossings can result in severe injuries,
dehydration, starvation, and drownings
as well as kidnappings and other violent
attacks by cartels and other organized
criminal groups that exert influence at
the U.S.-Mexico border. Another
commenter claimed that data shows that
CBP’s ‘‘prior metering program’’
increased border apprehensions by 36
percent, which suggests that making the
CBP One app mandatory may in fact
increase border crossings and make
them riskier.
Response: First, the Departments
share commenters’ concerns that
noncitizens seeking to avoid the
rebuttable presumption may take
dangerous sea routes, leading to migrant
deaths and drownings. Because
applying the rule only to those who
enter the United States from Mexico
across the southwest land border would
inadvertently incentivize noncitizens
without documents sufficient for lawful
admission to circumvent that land
border by making a hazardous attempt
to reach the United States from Mexico
by sea, the Departments have
determined that it is appropriate to
apply the rebuttable presumption to
those who enter the United States from
Mexico at both the southwest land
border and adjacent coastal borders.
Similar considerations that led the
Departments to pursue this rulemaking
with respect to land arrivals at the SWB
apply in this specific maritime context,
as the anticipated increase in migration
by land could lead migrants attempting
to avoid the rebuttable presumption to
make the final portion of their journey
from Mexico by sea. In light of the
inherent dangers such attempts could
create for migrants and DHS personnel,
and to avoid a significant further
increase in maritime interdictions and
landfall by noncitizens along the
adjacent coastal borders as compared to
the already significant surge that the
Departments have seen in recent years,
the Departments have extended the
rebuttable presumption to apply to
noncitizens who enter the United States
from Mexico at adjacent coastal borders.
8 CFR 208.33(a)(1), 1208.33(a)(1).
Extension of the rebuttable
presumption to noncitizens who enter
the United States from Mexico at
adjacent coastal borders is supported by
the growing number of migrants taking
to sea under dangerous conditions,
which puts lives at risk and stresses
DHS’s resources. The IOM Missing
Migrants Project reported at least 321
documented deaths and disappearances
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of migrants throughout the Caribbean in
2022, signaling the highest recorded
number since it began tracking such
events in 2014 and a 78 percent overall
increase over the 180 documented cases
in 2021.143 Total migrants interdicted at
sea by the U.S. Coast Guard (‘‘USCG’’)
increased by 502 percent between FY
2020 (2,079) and FY 2022 (12,521).144
Interdictions continued to rise in FY
2023 with 8,822 migrants interdicted at
sea through March, almost 70 percent of
the total in FY 2022 within six
months.145 Interdictions occurred
primarily in the South Florida Straits
and the Caribbean Sea.146 The USCG
views its migrant interdiction mission
as a humanitarian effort to rescue those
taking to the sea and to encourage
noncitizens to pursue lawful pathways
to enter the United States. By allocating
additional assets to migrant interdiction
operations and to prevent conditions
that could lead to a maritime mass
migration, the USCG assumes certain
operational risk to other statutory
missions. Recently, some USCG assets
have been reallocated from other key
mission areas, including counter-drug
operations, protection of living marine
resources, and support for shipping
navigation. The Departments expect that
the strategy of coupling expanded
lawful, safe, and orderly pathways into
the United States with this rule’s
application of the rebuttable
presumption to noncitizens who make
landfall at adjacent coastal borders after
traveling through Mexico, would lead to
a reduction in the numbers of migrants
who would otherwise undertake a
dangerous journey to the United States
by sea. By avoiding a further increase in
maritime migration, USCG can in turn
avoid incurring greater risk to its other
statutory missions.
Second, the Departments disagree
with commenters’ concerns that this
rule will incentivize more migrants to
use other dangerous means of entering
the United States, such as concealment
in a vehicle crossing a SWB POE or
crossing between POEs at remote
locations. As noted in Section IV.B.3.iv
of this preamble, the Departments
anticipate that the newly expanded
lawful pathways to enter to the United
States, in conjunction with the rule’s
143 Int’l Org. for Migration, Missing Migrants in
the Caribbean Reached a Record High in 2022 (Jan.
24, 2023), https://www.iom.int/news/missingmigrants-caribbean-reached-record-high-2022.
144 OIS analysis of USCG data through March 31,
2023.
145 Id.
146 Testimony of Jonathan Miller, ‘‘Securing
America’s Maritime Border: Challenges and
Solutions for U.S. National Security’’ at 4 (Mar. 23,
2023), https://homeland.house.gov/media/2023/03/
3.23.23-TMS-Testimony.pdf.
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31365
condition on asylum eligibility for those
who fail to exercise those pathways,
will ultimately decrease attempts to
enter the United States without
authorization, and thereby reduce
reliance on smugglers and human
traffickers.
The Departments further disagree
with the commenter’s claims that the
use of the CBP One app to schedule an
appointment to present at a POE is a
‘‘metering program’’ or that use of the
CBP One app will increase irregular
migration or incentivize riskier irregular
migration routes. CBP will inspect and
process all arriving noncitizens at POEs,
regardless of whether they have used
the CBP One app. In other words, the
use of the CBP One app is not a
prerequisite to approach a POE, nor is
it a prerequisite to be inspected and
processed under the INA. CBP will not
turn away individuals without
appointments. CBP is committed to
increasing the number of noncitizens
processed at POEs and is committed to
processing noncitizens in an
expeditious manner.147
Moreover, the Departments intend for
this rule to work in conjunction with
other initiatives that expand lawful
pathways to enter the United States, and
thereby incentivize safe, orderly, lawful
migration over dangerous, irregular
forms of migration. Noncitizens who
enter the United States in vehicles
without scheduling an appointment to
present at a POE and who are
inadmissible under section 212(a)(7) of
the INA, 8 U.S.C. 1182(a)(7), are subject
to the rebuttable presumption.
Similarly, noncitizens who attempt to
cross the southwest land border
between POEs are subject to the
rebuttable presumption. Likewise,
noncitizens who attempt to enter the
United States from Mexico at adjacent
coastal borders are subject to the
rebuttable presumption. Additionally,
DHS has changed the respective parole
processes for Cubans and Haitians, such
that Cubans and Haitians who are
interdicted at sea after April 27, 2023,
are ineligible for such parole processes.
See Implementation of a Change to the
Parole Process for Cubans, 88 FR 26329
(Apr. 28, 2023); Implementation of a
Change to the Parole Process for
Haitians, 88 FR 26327 (Apr. 28, 2023).
The Departments anticipate that these
147 See Memorandum for William A. Ferrara,
Exec. Ass’t Comm’r, Off. of Field Operations, from
Troy A. Miller, Acting Comm’r, CBP, Re: Guidance
for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of
Entry (Nov. 1, 2021), https://www.cbp.gov/sites/
default/files/assets/documents/2021-Nov/CBPmgmt-processing-non-citizens-swb-lpoes-signedMemo-11.1.2021-508.pdf.
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disincentives, coupled with the newly
expanded pathways for lawful migration
and the rule’s exceptions and means of
rebuttal, will ultimately lead fewer
noncitizens to attempt to enter the
United States in an unsafe manner.
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ii. Inconsistent With Actions of Other
Countries and Harmful to Foreign
Relations
Comment: Commenters stated that the
proposed rule would almost completely
abandon the United States’ commitment
to work with other countries to meet
growing refugee and asylum seeker
protection needs, instead placing the
burden on transit countries.
Commenters stated that many European
countries have opened their borders to
millions of immigrants, and that the
United States should do the same to
help people who are facing desperate
situations at home. Commenters
observed that other countries in Latin
America or the Western hemisphere
have taken in many more migrants and
taken on a greater burden than the
United States. One commenter
expressed concern that other countries
may seek to follow in the United States’
footsteps and enact similar restrictive
asylum measures. Another commenter
stated the rule will not improve foreign
relations with hemispheric partner
nations.
Response: The Departments
acknowledge the comments and
reiterate that the purpose of this rule is
to encourage migrants to choose safe,
orderly, and lawful pathways of
entering the United States, while
preserving the opportunity for
individuals fleeing persecution to
pursue protection-based claims
consistent with the INA and
international law. The rule is needed
because, absent this rule, after the
termination of the Title 42 public health
Order, the number of migrants expected
to travel without authorization to the
United States is expected to increase
significantly, to a level that risks
undermining the Departments’ ability to
safely, effectively, and humanely
enforce and administer U.S.
immigration law, including the asylum
system. This rule is one policy within
a broad range of actions being
implemented to ensure that there is a
regional framework for addressing and
responding to historic levels of
migration within the hemisphere.148
148 See 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/fact-sheet-thebiden-administration-blueprint-for-a-fair-orderlyand-humane-immigration-system/; The White
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The United States Government is
expanding its efforts to protect refugees,
those seeking asylum, and those fleeing
civil conflict. Since FY 2020, the United
States has increased its annual refugee
admissions ceiling eightfold and
expanded refugee processing within the
Western hemisphere.149 On April 27,
2023, DHS and the Department of State
announced that they would commit to
referring for resettlement thousands of
additional refugees per month from the
Western Hemisphere—with the goal of
doubling the number of refugees the
United States committed to welcome as
part of the L.A. Declaration.150
Similarly, DHS and the Department of
State recently announced enhancements
to the Central American Minors Refugee
and Parole Program, which expands
eligibility criteria for those who may
request USRAP access for qualifying
children.151 DHS has also implemented
comprehensive processes to facilitate
the lawful, safe, and orderly migration
of CHNV nationals by introducing the
CHNV parole processes.152
Additionally, DHS has recently
implemented special lawful processes
for nationals of Ukraine.153
iii. Other
Comment: A commenter stated that
the rule would allow noncitizens who
entered the United States after lying on
a visa petition to remain eligible for
asylum while barring those who never
submitted false information and
objected to this outcome as ‘‘absurd.’’
Response: The Departments
acknowledge the commenter’s concern
but reiterate that the purpose of this
rulemaking is to address an anticipated
House, FACT SHEET: Update on the Collaborative
Migration Management Strategy (Apr. 20, 2022),
https://www.whitehouse.gov/briefing-room/
statements-releases/2022/04/20/fact-sheet-updateon-the-collaborative-migration-managementstrategy/; L.A. Declaration Fact Sheet.
149 Compare Presidential Determination on
Refugee Admissions for Fiscal Year 2021, 85 FR
71219 (Nov. 6, 2020) (15,000), with White House,
Memorandum on Presidential Determination on
Refugee Admissions for Fiscal Year 2023 (Sept. 27,
2022), https://www.whitehouse.gov/briefing-room/
presidential-actions/2022/09/27/memorandum-onpresidential-determination-on-refugee-admissionsfor-fiscal-year-2023/ (125,000).
150 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
151 Notice of Enhancements to the Central
American Minors Program, 88 FR 21694 (Apr. 11,
2023).
152 See USCIS, Frequently Asked Questions
About the Processes for Cubans, Haitians,
Nicaraguans, and Venezuelans (Mar. 22, 2023),
https://www.uscis.gov/humanitarian/frequentlyasked-questions-about-the-processes-for-cubanshaitians-nicaraguans-and-venezuelans.
153 See DHS, Uniting for Ukraine (Mar. 21, 2023),
https://www.dhs.gov/ukraine; DHS, Operation
Allies Welcome (Mar. 13, 2023), https://
www.dhs.gov/allieswelcomes.
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further surge of migration at the SWB
following the expiration of the CDC’s
Title 42 public health Order, which may
compromise the Departments’ ability to
process claims for asylum and related
forms of protection in a manner that is
effective, humane, and efficient. The
Departments do not anticipate that
noncitizens who attempt to enter on
nonimmigrant visas obtained through
misrepresentation will contribute to this
surge in any substantial way.
In addition, the Departments disagree
with the premise of this comment.
Willful misrepresentations in
connection with a nonimmigrant visa
application may affect an applicant’s
eligibility for asylum or adjustment of
status. Prior misrepresentations to
immigration officials can affect
credibility determinations, see INA
208(b)(1)(B)(iii), 8 U.S.C.
1158(b)(1)(B)(iii), and may be negative
discretionary factors in asylum and
adjustment of status determinations.154
Applicants for adjustment of status
under section 209(b) of the INA, 8
U.S.C. 1159(b), who have previously
sought to obtain immigration benefits
through fraud or willful
misrepresentation of material fact are
inadmissible under section
212(a)(6)(C)(i) of the INA, 8 U.S.C.
1182(a)(6)(C)(i), unless they obtain a
discretionary waiver of inadmissibility
under section 209(c) of the INA, 8
U.S.C. 1159(c).
Comment: One commenter stated that
the application of the presumption
against asylum eligibility at the credible
fear stage would lead to absurd and
irrational results. As an example, the
commenter stated a noncitizen may
admit to terrorism in their home country
and still receive a positive credible fear
determination, whereas a noncitizen
subject to the rule who fails to rebut the
presumption would receive a negative
determination.
Response: The Departments strongly
dispute the commenter’s suggestion that
noncitizens who admit to terrorism
would receive superior treatment than
noncitizens who are subject to the rule.
Noncitizens subject to the INA’s
terrorism-related inadmissibility
grounds (‘‘TRIG’’), see INA 212(a)(3)(B),
8 U.S.C. 1182(a)(3)(B), may not be
ordered released by an IJ during removal
proceedings irrespective of any relief
154 See Matter of Pula, 19 I&N Dec. 467, 473 (BIA
1987) (finding that the circumvention of
immigration laws can be considered as a negative
discretionary factor in asylum adjudications);
USCIS Policy Manual, Volume 7, Adjustment of
Status, Part A, Adjustment of Status Policies and
Procedures, Chapter 10, Legal Analysis and Use of
Discretion [7 USCIS–PM A.10] (Apr. 21, 2023),
https://www.uscis.gov/policy-manual/volume-7part-a-chapter-10#footnote-31.
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from removal for which they may be
eligible. INA 236(c), 8 U.S.C. 1226(c); 8
CFR 1003.19(h)(2)(i)(C); INA 241(a)(2), 8
U.S.C. 1231(a)(2); INA 236A(a), 8 U.S.C.
1226a(a). Noncitizens subject to TRIG
are ineligible for asylum, statutory
withholding of removal, or withholding
of removal under the CAT, absent a
discretionary exemption from DHS, INA
208(b)(2)(v), 8 U.S.C. 1158(b)(2)(v); INA
241(b)(3)(B)(iv), 8 U.S.C.
1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2);
INA 212(d)(3)(B)(i), 8 U.S.C.
1182(d)(3)(B)(i), as are noncitizens for
whom there are reasonable grounds to
regard as dangers to the security of the
United States, INA 208(b)(2)(iv), 8
U.S.C. 1158(b)(2)(iv); INA
241(b)(3)(B)(iv), 8 U.S.C.
1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2).
Comment: A local government voiced
concern that the five-year re-entry ban if
the asylum seeker violates the rule
creates additional roadblocks for the
most vulnerable individuals.
Response: The five-year ground of
inadmissibility for those ordered
removed following expedited removal
proceedings is based on statute, INA
212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i),
and cannot be changed through
administrative rulemaking. This statute
applies equally to noncitizens who are
not subject to this rule. Despite prior
removal, noncitizens can still seek
statutory withholding of removal or
protection under the CAT within the
five-year period. See INA 241(b)(3), 8
U.S.C. 1231(b)(3); 8 CFR 208.16,
1208.16.
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C. Alternatives and Other General or
Mixed Feedback
1. Address Root Causes of Migration
Comment: A number of commenters
requested additional information on the
Administration’s ongoing efforts to
address the root causes of migration,
and suggested that, instead of
implementing this rule, the United
States should focus on providing
economic, social, and political support
to the countries from which the
migrants are fleeing. Another
commenter stated that long-term
solutions are needed, such as investing
in regional stability and humanitarian
aid that contribute to human security,
addressing the precursors of forced
migration, and diminishing the threats
that put vulnerable communities at risk.
Some commenters suggested that there
should be a comprehensive plan to both
improve the conditions in Latin
American and Caribbean countries by
eliminating U.S. sanctions, as well as
‘‘offering asylum to large groups of
refugees’’ in the United States.
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Commenters also stated that we should
devote more resources to helping people
from countries such as Haiti, Venezuela,
and other Central American countries.
Similarly, commenters stated that the
United States should provide additional
aid to the region and promote
democratic values and good governance
with an eye towards creating
meaningful reforms, particularly in
areas that drive irregular migration such
as corruption and lack of opportunity.
Other commenters stated that in
determining eligibility for asylum, the
proposed rule would fail to consider
significant dangers such as gang
violence, starvation, and natural
disasters. A commenter expressed
further concern that the proposed rule
attempts to control the border by
reducing the number of USBP
encounters with migrants, reasoning
that this approach would not address
the root cause of increased migration.
One commenter stated that, while
deterrence programs may result in
temporary dips in the number of people
presenting or apprehended at the
border, they have no long-term effect
because they do not address the root
causes forcing people from their homes.
Another commenter stated that for many
individuals, fleeing their countries in
haste and without resources is not
optional and they will continue to do so
unless the situation in their countries
changes. Another commenter stated that
the United States should support Latin
and Central American governments’
capacity to strengthen humanitarian
protections and migration management
systems by investing in technical
assistance and institutional capacity and
investing in sustainable infrastructural
needs and social safety nets (including
education, stable employment, public
safety, and economic support) in
Mexico and Central America.
Response: The Departments agree that
the United States must consistently
engage with partners throughout the
Western Hemisphere to address the
hardships that cause people to leave
their homes and come to our border.
The migratory trends at the SWB today
will persist long into the future if the
root causes of migration are not
addressed. The United States has been
engaging with regional partners to
address the root causes of migration, but
this rule is nonetheless necessary to
address a potential surge of migrants at
the SWB in the near term.
In June 2022, the United States
partnered with 19 other countries in the
Western Hemisphere in endorsing the
L.A. Declaration, which asserts ‘‘the
need to promote the political, economic,
security, social, and environmental
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31367
conditions for people to lead peaceful,
productive, and dignified lives in their
countries of origin. Migration should be
a voluntary, informed choice and not a
necessity.’’ 155 In addition, nations
including the United States committed
to implementing programs to stabilize
communities hosting migrants and
asylum seekers, providing increased
lawful pathways and protections for
migrants and asylum seekers residing in
or traveling through their countries, and
humanely enforcing existing
immigration laws.156
Earlier, in July 2021, the United States
began working closely with countries in
Central America to prioritize and
implement a strategy that addresses the
root causes of irregular migration with
the desired end-state being ‘‘a
democratic, prosperous, and safe
Central America, where people advance
economically, live, work, and learn in
safety and dignity, contribute to and
benefit from the democratic process,
have confidence in public institutions,
and enjoy opportunities to create futures
for themselves and their families at
home.’’ 157 At the same time, the United
States also presented the CMMS, which
aims to advance safe, orderly, legal, and
humane migration, including access to
international protection for those in
need throughout North and Central
America.158 On April 27, 2023, DHS and
the Department of State announced
plans to establish regional processing
centers and expand refugee resettlement
commitments in the region.159 Existing
high levels of irregular migration,
however, make clear that such efforts
are, on their own, insufficient in the
near term to fundamentally influence
migrants’ decision-making, to reduce
the risks associated with current levels
of irregular migration and the
anticipated further surge of migrants to
the border after the Title 42 public
health Order is terminated, or to protect
migrants from human smugglers that
profit from their vulnerability. See 88
FR at 11716. The United States will
continue to work with our regional
155 The White House, Los Angeles Declaration on
Migration and Protection (June 10, 2022), https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/.
156 Id.
157 See, e.g., National Security Council, U.S.
Strategy for Addressing the Root Causes of
Migration in Central America 5 (July 2021), https://
www.whitehouse.gov/wp-content/uploads/2021/07/
Root-Causes-Strategy.pdf.
158 See, e.g., The White House, Fact Sheet: The
Collaborative Migration Management Strategy (July
29, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/07/29/fact-sheetthe-collaborative-migration-management-strategy/.
159 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
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partners to manage migration across the
Hemisphere.
2. Prioritize Funding and Other
Resources
Comment: Many commenters urged
the Government to prioritize funding,
other resources, or alternative policies,
reasoning that these would make border
processing and asylum adjudications
more effective and efficient. Some
commenters focused on funding,
suggesting that the Government should
request additional funding from
Congress, that the Departments should
be prioritizing funding and staffing for
the HHS, Office of Refugee
Resettlement, USCIS, and U.S.
immigration courts, or that the
Government should prioritize investing
in community-based alternatives,
including robust funding and expansion
of asylum processing at POEs and
investment in NGOs and civil society
organizations.
Other commenters suggested more
generally that the Government devote
other resources to immigrant arrivals.
For example, one commenter said that
DHS should focus on ‘‘increasing the
number of resources at the SWB to
safely and fairly process the influx of
migration at the border itself,’’ including
creating shelters near the southern
border for noncitizens without family
and friends to support them while they
await processing of their claim. Another
commenter, however, instead suggested
that asylum seekers be transferred to
communities throughout the United
States, along with resources to ensure
that asylum seekers and receiving
communities are supported. One
commenter stated that, instead of the
proposed rule, DHS should train border
officials to identify asylum claims or
assess credible fear. Conversely, another
commenter stated that more AOs, not
CBP officers, are needed to interview
asylum seekers. Commenters also stated
the Departments should address
significant failures in structure,
functioning, and processing through
staffing, budget review, training for AOs
and judges to reduce appeals, training
for DHS attorneys about docket
management, and other means.
Another commenter requested that
DHS consider ‘‘improving border
infrastructure for high volume
facilities,’’ and noted that DHS did not
explain why it lacked the infrastructure,
personnel, and funding to sustain
processing levels of high numbers of
migrants. One commenter expressed
concern that CBP does not have
sufficient resources in sectors along the
SWB to patrol the border and detain
migrants and expressed concern about
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the number of migrants who
successfully evade USBP and enter the
country.
Some commenters suggested
alternative policy proposals to pursue
instead of the proposed rule. For
example, commenters recommended
that DHS widely advertise the need for
sponsors for asylum seekers and
facilitate their applications for
sponsorship. One commenter suggested
providing additional resources to
Mexico and other transit countries to
improve their asylum-processing
capacities.
Response: The Departments
acknowledge commenters’ suggestions
for increasing resources, both financial
and otherwise, to account for migrant
arrivals at the SWB. The Departments
first note that they have already
deployed additional personnel,
technology, infrastructure, and
resources to the SWB and that
additional financial support would
require additional congressional actions,
including significant additional
appropriations, which are outside of the
scope of this rulemaking. The
Departments agree with commenters
that additional resources would provide
benefits for managing the border. The
Departments have, for example,
significantly increased hiring of AOs
and IJs over the past decade.160 AOs and
IJs possess experience in handling
asylum and related adjudications;
receive regular trainings on asylumrelated country conditions and legal
issues, as well as non-adversarial
interviewing techniques; and have ready
access to country-conditions experts.161
However, it is not feasible for the
Departments to quickly hire sufficient
qualified personnel or increase other
resources to efficiently, effectively, and
fairly handle the volume of encounters
projected by May 2023, when a further
surge of migrants to the SWB is
expected following the lifting of the
Title 42 public health Order.
Furthermore, the Departments note
that they are leading ongoing Federal
Government efforts to support NGOs
and local and state governments as they
work to respond to migratory flows
impacting their communities. As noted
in the NPRM, FEMA spent $260 million
in FYs 2021 and 2022 on grants to nongovernmental and state and local
entities through the EFSP–H to assist
160 EOIR, Adjudication Statistics: Immigration
Judge Hiring (Jan. 2023), https://www.justice.gov/
eoir/page/file/1242156/download; Citizenship and
Immigration Services Ombudsman, Annual Report
2020 at 45 (June 30, 2020), https://www.dhs.gov/
sites/default/files/publications/20_0630_cisomb2020-annual-report-to-congress.pdf.
161 See 8 CFR 208.1(b).
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migrants arriving at the SWB with
shelter and transportation. See 88 FR at
11714. In November 2022, FEMA
released $75 million through the
program, consistent with the Continuing
Appropriations and Ukraine
Supplemental Appropriations Act,
2023.162 In addition, the Bipartisan
Year-End Omnibus, which was enacted
on December 29, 2022, directed CBP to
transfer $800 million in funding to
FEMA to support sheltering and related
activities for noncitizens encountered
by DHS. The Omnibus authorized
FEMA to utilize this funding to
establish a new Shelter and Services
Program and to use a portion of the
funding for the existing EFSP–H, until
the Shelter and Services Program is
established.163 On February 28, 2023,
DHS announced a $350 million funding
opportunity for EFSP–H.164 This is the
first major portion of funding that is
being allocated for humanitarian
assistance under the Omnibus funding
approved in December.165 For the new
Shelter and Services Program, FEMA
and CBP have held several public
listening sessions and are developing
plans to release a Notice of Funding
Opportunity prior to September 2023 for
the second major portion of funding
allocated by Omnibus to assist migrants
encountered by DHS.
Additionally, on April 27, 2023, DHS
announced that it has awarded more
than $135 million to communities to
date this fiscal year and will award an
additional $290 million in the coming
weeks.166 The Departments are also
ramping up coordination between state
and local officials and other Federal
agencies to provide resources, technical
assistance, and support, including
through regular information sessions
with stakeholders to ensure that the
program is broadly understood and the
funds are accessible.167 The
Departments will continue to mobilize
162 Public Law 117–180, Division A, sec. 101(6),
131 Stat. 2114, 2115.
163 Public Law 117–328, Division F, Title II,
Security Enforcement, and Investigations, U.S.
Customs and Border Protection, Operations and
Support.
164 See DHS, Press Release, The Department of
Homeland Security Awards $350 Million for
Humanitarian Assistance Through the Emergency
Food and Shelter Program (Feb. 28, 2023), https://
www.dhs.gov/news/2023/02/28/departmenthomeland-security-awards-350-millionhumanitarian-assistance-through; DHS Grant
Opportunity DHS–23–DAD–024–00–03, Fiscal Year
2023 Emergency Food and Shelter National Board
Program—Humanitarian (EFSP) ($350M) (Feb. 28,
2023), https://www.grants.gov/web/grants/viewopportunity.html?oppId=346460.
165 Id.
166 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
167 See id.
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faith-based and non-profit organizations
supporting migrants, including those
providing temporary shelter, food,
transportation, and humanitarian
assistance as individuals await the
outcome of their immigration
proceedings.168
With regard to CBP resources at the
border, CBP continues to increase
facility capacity and to look to new
facilities to further expand capacity. See
88 FR at 11714. In addition, CBP
continues to take steps to facilitate more
efficient processing of encountered
migrants so that agents are able to
remain in the field and patrol the
border. For example, USBP has
deployed non-uniformed Border Patrol
Processing Coordinators (‘‘BPPCs’’),
who can provide crucial support to
USBP facilities, including humanitarian
care to individuals in custody,
transportation, and processing
assistance.169 As of March 15, 2023,
USBP had hired 961 BPPCs, with more
individuals in the hiring process.170
Additionally, CBP has invested in
virtual and mobile processing
technologies, which enables USBP
agents and officers to assist SWB sectors
without needing to be physically
present in these locations.171 All of
these steps enable USBP agents to return
to the field to conduct their law
enforcement duties, while ensuring safe
conditions for individuals in custody.
However, as noted in the NPRM, the
increased numbers of migrants entering
the United States—and the anticipated
surge following the lifting of the Title 42
public health Order—will continue to
strain CBP resources. See 88 FR at
11706. Thus, the Departments believe
that this rule is necessary to
disincentivize migrants from attempting
to enter the United States without
authorization.
The Departments do not agree with
commenters’ suggestions that alternative
policies should be pursued in place of
this rule. For example, advertising the
need for asylum sponsors would not
sufficiently address the anticipated
influx of migration at the SWB. The
Departments have created, and continue
to expand, lawful pathways to enter the
United States, which will be available
alongside this rule to encourage the use
of all lawful pathways and discourage
irregular migration to the United States.
In contrast, were the Departments to
take a hiring-only approach that does
168 See
id.
169 Testimony
of Raul Ortiz, ‘‘Failure by Design:
Examining Sec’y Mayorkas’ Border Crisis’’ (Mar. 15,
2023), https://www.cbp.gov/about/congressionalresources/testimony/Ortiz-CHS-15MAR23.
170 Id.
171 Id.
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not expand lawful pathways or
consequences for unlawful entry, the
Departments estimate that irregular
arrivals would likely increase after the
expiration of the Title 42 public health
Order, adding to the current backlog of
asylum cases. Such a policy would
likely have no immediate effect on
arrivals at the SWB, necessitating
continued surges of DHS resources to
POEs and the SWB to support
processing.
The Departments note that the rule
requires collaboration across the
Departments. CBP, USCIS, and DOJ are
all part of the whole-of-government
approach necessary to address irregular
migration and ensure that the U.S.
asylum system is fair, orderly, and
humane. The Departments acknowledge
comments suggesting that CBP officials
should be trained to conduct credible
fear screenings. The Asylum Processing
IFR clarified that a ‘‘USCIS asylum
officer’’ will conduct the credible fear
interview. 8 CFR 208.30(d). This is
consistent with the INA, which specifies
that only AOs (as opposed to
immigration officers) conduct credible
fear interviews, see INA 235(b)(1)(B)(i),
8 U.S.C. 1225(b)(1)(B)(i); 8 CFR
208.30(d), and make those
determinations, see INA
236(b)(1)(B)(iii), 8 U.S.C.
1225(b)(1)(B)(iii); see also 8 CFR
208.30(c) through (e); 87 FR at 18136.
AOs 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
non-adversarial interviewing
techniques; and have ready access to
country conditions experts. See 87 FR at
18136. As noted above, hiring of
additional AOs is ongoing, and DHS
recently announced that it is surging
AOs to complete credible fear
interviews at the SWB more quickly.172
Comment: Some commenters
suggested that DHS should better utilize
or increase its detention capacity to
account for the anticipated migratory
flow, as an alternative to the approach
adopted in this rule. One commenter
suggested that DHS increase its
detention capacity to account for the
mandatory detention requirements at
section 235(b)(1)(B)(ii) of the INA, 8
U.S.C. 1225(b)(1)(B)(ii), and to better use
the capacity it has, citing unused
detention space in the summer of 2021.
The same commenter noted that section
212(d)(5)(A) of the INA, 8 U.S.C.
1182(d)(5)(A), allows DHS to parole
noncitizens into the United States in
172 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
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limited circumstances, but claimed that
the proposed rule makes parole the
default and detention the exception,
contrary to statute. The commenter
argued that expanded use of detention
would serve as a greater deterrent than
this rule and objected to a reduction in
detention capacity it identified in the
Administration’s FY 2024 budget.
Similarly, another commenter stated
that the Departments should request
from Congress the resources necessary
to expand detention centers’ capacity to
handle the current migratory flow.
Response: To the extent that the
commenters are contending that DHS is
capable of obtaining bedspace sufficient
for detaining all inadmissible
noncitizens predicted to enter the
United States who could potentially be
subject to detention pursuant to section
235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), following the lifting of
the Title 42 public health Order, the
Departments strongly disagree. DHS’s
ability 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. In
addition, there are capacity restrictions
at individual facilities imposed for a
variety of reasons ranging from public
health requirements to court-ordered
limitations that also constrain the
availability of detention space.
The Departments also disagree with
the commenter’s assertion that this rule
makes parole the default. This rule does
not address parole or change DHS’s
detention practices. Rather, this rule
creates a rebuttable presumption
regarding eligibility for asylum.
3. Further Expand Refugee Processing or
Other Lawful Pathways
Comment: Several commenters
suggested increasing access to
protection and improving processes to
encourage noncitizens to seek asylum in
lawful and orderly ways, but without
imposing a condition on eligibility for
asylum for noncitizens who fail to do
so. Commenters suggested that the
United States should expand regional
refugee processing, increase asylum
processing and humanitarian programs,
and expand and create new lawful
pathways, in lieu of pursuing the
proposed rule. One commenter said the
Administration should use Temporary
Protected Status broadly, including for
the countries focused on in the
proposed rule and other countries
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where safe return is impossible. Others
recommended creating viable
alternatives to asylum for lawful
admission to the United States,
including decreasing waits for familybased immigration or increasing and
streamlining migration opportunities
based on skilled labor, citing the
Canadian Federal Skilled Worker
Express Entry policy as a successful
example. Another commenter stated
that the Departments should consider
policies facilitating fast-track arrival in
the United States, including quickly
approved in-country visas and widely
available humanitarian parole, and
streamlining asylum regulations to more
broadly encompass the types of dangers
and persecution migrants are fleeing
today.
Response: The United States has
made and will continue to make
extensive efforts to expand refugee
processing and lawful pathways
generally. See Section IV.B.2.i of this
preamble. For example, on April 27,
2023, DHS and the Department of State
announced they will establish regional
processing centers in several countries
in the Western Hemisphere, including
Guatemala and Colombia, ‘‘to reduce
irregular migration and facilitate safe,
orderly, humane, and lawful pathways
from the Americas.’’ 173 Individuals
from the region will be able to make an
appointment to visit the nearest regional
processing center before traveling,
receive an interview with immigration
specialists, and if eligible, be processed
rapidly for lawful pathways to the
United States, Canada, and Spain,
including USRAP.174 Existing levels of
unlawful migration, however, make
clear that such efforts are, on their own,
insufficient in the near term to change
the incentives of migrants, reduce the
risks associated with current levels of
irregular migration and the anticipated
surge of migrants to the border, and
protect migrants from human smugglers
that profit from their vulnerability. See
88 FR at 11716. The Departments’ recent
experience has shown that an increase
in lawful pathways coupled with
consequences for not using such
pathways can significantly—and
positively—affect behavior and
undermine smuggling networks, as
described in Section II.A of this
preamble. The Departments also note
that while they will consider the
commenters’ specific suggestions for
other lawful pathways or alternatives for
entry to the United States, this rule does
not create, expand, or otherwise
173 DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
174 See id.
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constitute the basis for any lawful
pathways.
4. Require Migrants To Wait in Mexico
or Other Countries
Comment: Some commenters stated
that the United States should
reimplement the MPP, with one stating
that MPP caused a drop in border
crossings. A commenter argued that
reinstating MPP would have all the
benefits that the Departments are
seeking to achieve via the proposed
rule, but without the rule’s downsides,
which the commenter argued include
increasing incentives for irregular
migration. The commenter also stated
that the Departments’ justifications for
ending MPP, including a lack of
infrastructure and cooperation from
Mexico, are insufficient, arguing that if
attempted border crossings are deterred
by MPP then many fewer resources will
be required, and that the Administration
has not sufficiently explained why
Mexico would not be willing to
cooperate with a reimposition of MPP
when it agreed to do so in the recent
past. Another commenter suggested that
MPP should be restarted and the United
States pay for safe housing and food for
migrants who are waiting in Mexico
during their legal proceedings.
Response: The Departments disagree
with commenters’ contentions that the
explanation given in the NPRM
regarding why the Departments are not
reinstituting MPP is insufficient. See 88
FR at 11731. The Secretary of Homeland
Security weighed the full range of
MPP’s costs and benefits, explaining,
among other things, that MPP is not the
best tool for deterring unlawful
migration; that MPP exposes migrants to
unacceptable risks to their physical
safety; and that MPP detracts from the
Executive’s efforts to manage regional
migration. Moreover, given the
Departments’ knowledge and
understanding of their own resources
and infrastructure constraints, as well as
the Government of Mexico’s statement
on February 6, 2023, affirming its
willingness to cooperate in international
agreements relating to refugees
(including the L.A. Declaration) and
endorsing lawful pathways, including
the CHNV processes,175 the
Departments continue to believe that
promulgation of this rule is the
appropriate response to manage and
avoid a significant further surge in
175 Government of Mexico, SRE rechaza
reimplementacio´n de estancias migratorias en
Me´xico bajo la seccio´n 235(b)(2)(C) de la Ley de
EE.UU. (Feb. 6, 2023), https://www.gob.mx/sre/
prensa/sre-rechaza-reimplementacion-de-estanciasmigratorias-en-mexico-bajo-la-seccion-235-b-2-c-dela-ley-de-inmigracion-y-nacionalidad-de-eeuu.
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irregular migration after the Title 42
public health Order is lifted.
As explained in the NPRM,
programmatic implementation of the
contiguous-territory return authority
requires Mexico’s concurrence and
ongoing support and collaboration. See
88 FR at 11731. When DHS was
previously under an injunction
requiring it to re-implement MPP, the
Government of Mexico would only
accept the return of MPP enrollees
consistent with available shelter
capacity in specific regions, and indeed
had to pause the process at times due to
shelter constraints. Notably, Mexico’s
shelter network is already strained from
the high volume of northbound irregular
migration happening today. In February
2023, the Government of Mexico
publicly announced its independent
decision that it would not accept the
return of individuals pursuant to section
235(b)(2)(C) of the INA, 8 U.S.C.
1225(b)(2)(C).176
Additionally, the resources and
infrastructure necessary to use
contiguous-territory return authority at
the scale that would be required given
current and anticipated flows are not
currently available. To employ the
contiguous-territory return authority at a
scale sufficient to meaningfully address
the anticipated migrant flows, the
United States would need to rebuild,
redevelop, and significantly expand
infrastructure for noncitizens to be
processed in and out of the United
States and attend immigration court
hearings throughout the duration of
their removal proceedings. This would
require, among other things, the
construction of substantial additional
court capacity along the border. It
would also require the reassignment of
IJs and ICE attorneys to conduct the
hearings and CBP personnel to receive
and process those who are corning into
and out of the country to attend
hearings.
Comment: Other commenters
suggested numerous ideas that would
require migrants to wait for cases to be
heard outside the United States or to
create additional opportunities to apply
for asylum from outside of the United
States. One commenter suggested that
the United States allow asylum seekers
to present themselves at embassies,
refugee camps, or U.S. military bases to
make their claims without the need to
undertake the dangerous journey to the
U.S. border. A commenter suggested
setting up a controlled process to allow
a fixed number of migrants into the
United States this year, managed
through embassies abroad, and stated
176 Id.
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that it is inhumane to allow migrants to
travel to the border only to turn them
down. The same commenter also stated
that such a controlled process would
stop trafficking, drugs, and criminals
from entering the country.
Commenters suggested implementing
remote teleconferencing technology so
that credible fear interviews could be
conducted over Zoom or another
platform from outside the United States
in lieu of using the CBP One app to
make appointments, with at least one
suggesting that if the migrant’s credible
fear claim is accepted, they be sent an
email stating that the migrant can be
granted humanitarian parole into the
United States for a final asylum hearing.
Another commenter suggested that,
instead of implementing this rule, DHS
should create a virtual application and
video hearing system that would allow
migrants to apply and be processed for
asylum while still abroad. At least one
commenter suggested that migrants be
given a temporary work card and ID and
be required to pay a penalty tax and
U.S. taxes to cover the expenses of
managing immigration services. At least
one commenter suggested creating a
single border crossing dedicated to
processing asylum claims, similar to the
historical practice at Ellis Island.
Response: Pursuant to section
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1),
only noncitizens who are ‘‘physically
present in the United States or who
arrive[] in the United States’’ can apply
for asylum. Similarly, the expedited
removal provisions in section 235(b)(1)
of the INA, 8 U.S.C. 1225(b)(1), apply
only to noncitizens within the United
States. Thus, while credible fear
interviews may be conducted remotely
(i.e., telephonically), such interviews
cannot be conducted for those who are
abroad and have not—as required for
such interviews—entered the United
States, been processed for expedited
removal, and asserted a fear of
persecution or torture or of return to
their country or an intention to apply
for asylum.177 In any event, the intent
of this rule is to address the expected
surge of migration following the lifting
of the Title 42 public health Order on
May 11, 2023. Commenters’ suggestion
that the Departments should create
opportunities for noncitizens who have
not entered the United States to apply
for asylum at U.S. embassies, military
bases, a virtual application abroad, or
other locations, even if legally available,
would not be available in the short-term
or at the scale that would be required
given current and anticipated flows.
Similarly, creating a single border
177 See
INA 235(b)(1), 8 U.S.C. 1225(b)(1).
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crossing dedicated to processing asylum
claims, even if legally permissible,
would not be operationally feasible,
particularly in the short term.
However, as noted elsewhere in this
document, USRAP is expanding its
operations in the Western Hemisphere,
which is the appropriate pathway for
noncitizens outside the United States to
seek admission as a refugee. See INA
207, 8 U.S.C. 1157. On April 27, 2023,
DHS and the Department of State
announced that the United States
Government in cooperation with other
countries of the L.A. Declaration will
establish regional processing centers in
several locations throughout the
Western Hemisphere to reduce irregular
migration.178 The United States
Government will commit to welcoming
thousands of additional refugees per
month from the Western Hemisphere—
with the goal of doubling the number of
refugees the United States as part of the
L.A. Declaration.179 The Departments
also note that Congress has provided
that asylum applicants may receive
employment authorization no less than
180 days subsequent to the filing of
their asylum application. See INA
208(d)(2), 8 U.S.C. 1158(d)(2).
Additionally, it is not within the
Departments’ authority to impose taxes.
5. Additional Measures
Comment: Commenters suggested that
the United States adopt more restrictive
measures instead of this rule, such as
requiring all SWB arrivals to seek
asylum in Mexico first; requiring all
migrants to be returned to their country
of origin for two years to wait for their
cases to be heard; or creating a bar to
asylum for those who are denied asylum
in other countries. Another commenter
recommended that the rule require that
a migrant must seek and be denied
protection in each country through
which they travel, rather than just one
country.
One commenter suggested that the
President should use the authority
provided by section 212(f) of the INA,
8 U.S.C. 1182(f), to suspend the entry of
migrants in order to address the border
crisis. This commenter also suggested
that DHS make efforts to enforce all
deportation orders, expand the use of
expedited removal to the fullest extent
authorized by Congress, and post ICE
agents in courtrooms to immediately
enforce removal orders.
Another commenter suggested the
rule should also apply to the Northern
178 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
179 See id.
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border and the maritime borders of the
United States.
Response: The Departments
acknowledge the commenters’
suggestions but do not believe the
alternatives proposed by the
commenters are suitable to address
operational concerns or meet the
Departments’ policy objectives.
As an initial matter, a categorical
requirement that all individuals arriving
at the SWB seek asylum in Mexico first
would be inconsistent with the United
States’ ongoing efforts to share the
responsibility of providing asylum and
other forms of protection with the
United States’ regional partners. The
United States Government remains
committed to working with regional
partners to jointly address historic
levels of migration in the hemisphere
and will continue to engage with the
governments of Mexico and other
regional partners to identify and
implement solutions. Furthermore,
there may be individuals for whom
Mexico is not a safe alternative.
The Departments disagree with the
commenter’s suggestion that noncitizens
be required to seek and be denied
protection in each country through
which they travel. Mexico or other
countries through which certain
individuals travel en route to the United
States may not be a safe alternative for
particular individuals, as discussed
elsewhere in this preamble, see Sections
IV.B.4.vii and IV.E.3.iv.d–(e). The rule
therefore strikes a balance: It provides
an exception from its presumption of
ineligibility for individuals who seek
and are denied protection in a third
country, but it recognizes that for some
individuals, particular third countries—
or even all third countries—may not be
a viable option. The rule therefore
provides additional exceptions and
rebuttal grounds for the presumption of
ineligibility it creates.
Additionally, U.S. obligations under
international and domestic law prohibit
returning noncitizens to a country
where their life or freedom would be
threatened because of a protected
ground, or where they would be subject
to torture.180 DHS cannot remove a
180 INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR
1208.16, 1208.17. The Departments note that 8 CFR
208.16(b)(3), 1208.16(b)(3) were amended by the by
Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11, 2020), which
was preliminarily enjoined and its effectiveness
stayed before it became effective. See Pangea Legal
Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp.
3d 966, 969–70 (N.D. Cal. 2021) (‘‘Pangea II’’)
(preliminarily enjoining the rule). Similarly, 8 CFR
208.16(e), 1208.16(e) were removed by the Criminal
Asylum Bars Rule, Procedures for Asylum and Bars
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noncitizen without first obtaining a
removal order and cannot remove a
noncitizen to a country about which the
noncitizen has expressed fear of return
without first determining whether they
are entitled to protection pursuant to the
withholding of removal statute and the
regulations implementing the CAT.
The Departments disagree with the
recommendation to establish a bar to
asylum for those who are denied asylum
in other countries. Those denials may be
due to a variety of factors unrelated to
the applicant’s underlying claim, such
as the foreign country’s unique
restrictions on asylum. Furthermore,
such a proposal could discourage
asylum seekers from applying for
asylum in other countries, since a denial
from other countries would result in the
harsher consequence of also being
ineligible for asylum in the United
States.
Regarding the suggestion to suspend
entry pursuant to section 212(f) of the
INA, 8 U.S.C. 1182(f), the Departments
note that suspension of entry requires a
presidential proclamation, which is
beyond the Departments’ authorities.
With this rule, which is fully consistent
with domestic and international legal
obligations, the Departments are
exercising their authorities to address
current and expected circumstances at
the SWB, to avoid unduly negative
consequences for noncitizens, to avoid
unduly negative consequences for the
U.S. immigration system, and to provide
ways for individuals to seek protection
in the United States and other countries
in the region. 88 FR at 11730.
Separate from this rulemaking, DHS
has been increasing and enhancing the
use of expedited removal for those
noncitizens who cannot be processed
under the Title 42 public health
Order.181 The Departments have been
dedicating additional resources,
optimizing processes, and working with
the Department of State and countries in
the region to increase repatriations.182
On April 27, 2023, DHS announced that
the United States, in coordination with
regional partners, has dramatically
to Asylum Eligibility, 85 FR 67202 (Oct. 21, 2020),
which was also preliminarily enjoined. Pangea
Legal Servs. v. U.S. Dep’t of Homeland Sec., 501 F.
Supp. 3d 792, 827 (N.D. Cal. 2020). These orders
remain in effect, and thus the 2020 version of these
provisions—the version immediately preceding the
enjoined amendments—are currently effective. The
current version of 8 CFR 208.16 is effective with
regard to all other provisions of that section.
181 DHS, Press Release, DHS Continue to Prepare
for End of Title 42; Announces New Border
Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://
www.dhs.gov/news/2023/01/05/dhs-continuesprepare-end-title-42-announces-new-borderenforcement-measures-and.
182 See id.
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scaled up the number of removal flights
per week, which will double or triple
for some countries.183 With this increase
in removal flights, migrants who cross
the U.S. border without authorization
and who fail to qualify for protection
should expect to be swiftly removed and
subject to at least a five-year bar to
returning to the United States.184
Regarding the suggestion to expand the
use of expedited removal, the
Departments note that this rule works in
conjunction with expedited removal, as
the rebuttable presumption will be
applied during credible fear interviews
for noncitizens placed in expedited
removal after claiming a fear. To the
extent that the commenter is suggesting
that the Secretary should exercise his
‘‘sole and unreviewable discretion’’ to
extend expedited removal proceedings
to certain other categories of noncitizens
who have not shown that they have
been physically present in the United
States for two years, that suggestion lies
outside the scope of this rulemaking.
See INA 235(b)(1)(A)(iii), 8 U.S.C.
1225(b)(1)(A)(iii).185 Finally, the
Departments note the process for taking
noncitizens into custody for the
execution of removal orders also is
beyond the scope of this rule.
With respect to a commenter’s
suggestion that the rule apply to the
Northern border, the Departments do
not currently assess that application of
the rebuttable presumption to such
entries is necessary at the U.S.-Canada
land border. With limited exceptions,
these noncitizens are ineligible to apply
for asylum in the United States due to
the safe-third-country agreement with
Canada, see INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A); 8 CFR 208.30(e)(6), and
the United States is implementing other
measures to address irregular migration
at that border, such as the Additional
Protocol of 2022 to the STCA between
the United States and Canada. The
Additional Protocol expands the STCA
to apply to migrants who claim asylum
or other protection after crossing the
U.S.-Canada border between POEs.
Under the STCA, migrants who cross
from Canada to the United States, with
183 See DHS, New Actions to Manage Regional
Migration (Apr. 27, 2023).
184 See id.
185 Section 235 of the INA continues to refer to
the Attorney General, but the Homeland Security
Act of 2002 (HSA), Public Law 107–296, 116 Stat.
2135, transferred immigration enforcement
authorities to the Secretary of Homeland Security
and provided that any reference to the Attorney
General in a provision of the INA describing
functions that were transferred from the Attorney
General or other Department of Justice officials to
DHS by the HSA ‘‘shall be deemed to refer to the
Secretary’’ of Homeland Security. 6 U.S.C. 557
(codifying HSA sec. 1517); see also 6 U.S.C. 542
note; 8 U.S.C. 1551 note.
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limited exceptions, cannot pursue an
asylum or other protection claim in the
United States and are instead returned
to Canada to pursue their claim.186
With respect to a commenter’s
suggestion that the rule apply to
maritime borders, the Departments have
determined it is appropriate to extend
the application of the rebuttable
presumption not only to the U.S.Mexico southwest land border, but also
to adjacent coastal borders. The term
‘‘adjacent coastal borders’’ refers to any
coastal border at or near the U.S.Mexico border. This modification
therefore means that the rule’s
rebuttable presumption of ineligibility
for asylum applies to noncitizens who
enter the United States at such a border
after traveling from Mexico and who
have circumvented the U.S.-Mexico
land border. Moreover, the Departments
are also considering and requesting
comment on whether to apply the
rebuttable presumption to noncitizens
who enter the United States at a
maritime border without documents
sufficient for lawful admission during
the same temporary time period,
whether or not they traveled through a
third country, see Section V of this
preamble.
Comment: A commenter also
suggested pursuing STCAs with transit
countries as an alternative to the rule,
stating that the proposed rule’s
reasoning on that point was insufficient.
The commenter noted that the proposed
rule stated that STCAs require long
negotiations, but that the proposed rule
itself is time-limited to noncitizens who
enter within a two-year period. The
commenter also stated that the proposed
rule’s claim that STCAs would provide
lesser protection to noncitizens failed to
account for the costs to states of
allowing such noncitizens to have their
claims adjudicated in the United States.
Response: The Departments agree that
STCAs can be an important tool for
managing the border. For example, on
March 28, 2023, the Departments
announced an update to the preexisting
STCA between the United States and
Canada. See 88 FR at 18227. That rule
implemented a supplement to the U.S.Canada STCA to extend its application
to individuals who cross between the
POEs along the U.S.-Canada shared
border, including certain bodies of
water as determined by the United
States and Canada, and make an asylum
or other protection claim relating to fear
186 See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h); 88
FR 18227; Implementation of the Agreement
Between the Government of the United States of
America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border
Ports-of-Entry, 69 FR 69480 (Dec. 29, 2004).
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of persecution or torture within 14 days
after such crossing. Id.
However, as noted in the NPRM,
development of an STCA is a lengthy
process. 88 FR at 11731. The recent
supplement to the U.S.-Canada STCA
aptly demonstrates this point; the
negotiations that led to the supplement
began in early 2021, over two years
prior to its eventual publication. Id. at
18232. For this reason, the Departments
find that the enactment of this rule is
preferable to pursuing additional STCAs
at this time because the Departments
need a solution in the immediate shortterm to manage the significant increase
in the number of migrants expected to
travel without authorization to the
United States after the termination of
the Title 42 public health Order.
Regarding commenters’ belief that an
STCA could be preferable to this rule
because a STCA would prevent affected
noncitizens from having their claims
adjudicated in the United States, the
Departments reiterate that the goal of
this rule is to incentivize migrants,
including those intending to seek
asylum, to use lawful, safe, and orderly
pathways to enter the United States, or
seek asylum or other protection in
another country through which they
travel, and they expect it to reduce the
number of noncitizens seeking to cross
the SWB without authorization.
Comment: A commenter suggested
amending the rule to prioritize the cases
of noncitizens who follow the lawful
pathways outlined in the NPRM, rather
than implementing the rebuttable
presumption against those who do not.
This commenter argued that doing so
would encourage use of lawful
pathways but not risk returning
noncitizens to countries where they may
be persecuted or tortured.
Response: The Departments agree that
prioritizing the cases of those
noncitizens who follow lawful, safe, and
orderly pathways to entering the United
States may result in some noncitizens
with valid claims to asylum more
quickly being granted asylum. However,
noncitizens who do not follow such
lawful, safe, and orderly pathways,
including those noncitizens ultimately
found ineligible for asylum or other
protection, would continue to wait years
for a decision on their claim for asylum
or other protection. As previously noted
in this preamble, the expectation that
noncitizens will remain in the United
States for a lengthy period during the
adjudication of their claims for asylum
or other protection may drive even more
migration to the United States. Under
this rule, such noncitizens, however,
will remain in the United States for less
time before a final order is entered in
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their case. Furthermore, prioritization
alone will not address the need for
quick processing of those who arrive at
the SWB and the lack of resources to do
so safely and efficiently. Moreover, the
success of the CHNV parole processes
demonstrates that the United States can
effectively discourage irregular
migration by coupling incentives for use
of lawful pathways with disincentives
to cross the SWB irregularly.
Comment: One commenter
recommended the United States
advance dissuasive messaging,
including announcements of legal
action, against relatives, friends, and
criminal organizations that may
promote and finance migration to the
United States. Another commenter
recommended that an education and
awareness campaign across the Western
Hemisphere and a clearer definition of
the ‘‘significant possibility’’ standard
could prove a potent combination of
policies to restore the integrity and
manageability of the U.S. asylum system
at the SWB, while also preserving the
country’s long-standing commitment to
humanitarian values.
Response: The Departments
understand and agree with the need for
robust messaging relating to the dangers
of irregularly migrating to the United
States SWB. Strengthening regional
public messaging on migration is one of
the eight lines of effort outlined in the
CMMS.187 In addition, the Departments
regularly publicize law enforcement
action and efforts against human
trafficking, smuggling, and transnational
criminal organizations that profit from
irregular migration, often in conjunction
with partners in the region.188 The
Departments intend to continue these
efforts once the rule is in place.
The Departments acknowledge the
commenter’s concern regarding the
‘‘significant possibility’’ standard but
disagree that there is a need for
clarifying regulations on the statutory
standard at section 235(b)(1)(B)(v) of the
INA, 8 U.S.C. 1225(b)(1)(B)(v). In the
context of the condition established by
this rule, however, the Departments
have provided additional clarification
regarding the ‘‘significant possibility’’
standard in Section IV.D.1.iii of this
preamble.
187 The White House, FACT SHEET: The
Collaborative Migration Management Strategy (July
29, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/07/29/fact-sheetthe-collaborative-migration-management-strategy/.
188 See, e.g., L.A. Declaration Fact Sheet (‘‘The
United States will announce a multilateral ‘Sting
Operation’ to disrupt human smuggling networks
across the Hemisphere.’’).
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D. Legal Authority and Background
1. Immigration and Nationality Act
i. Section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1)
Comment: Commenters claim that the
proposed rule would violate both the
Refugee Act and the INA. Specifically,
commenters cited the Refugee Act,
which they say both contains principles
of non-refoulement and bars any
distinction, including based on
nationality, for noncitizens who are
‘‘physically present in the United States
or at a land border or port of entry.’’
Refugee Act of 1980, 94 Stat. at 105.
Additionally, commenters stated this
proposed rule goes further by adding
additional requirements that did not
exist in the Refugee Act and do not exist
in the INA. While some commenters
acknowledge and agree that the
proposed rule is within the scope of the
Departments’ authority and is consistent
with the INA, other commenters
expressed concern that the proposed
rule would be contrary to the plain
language of section 208(a)(1) of the INA,
8 U.S.C. 1158(a)(1), which states, ‘‘Any
alien who is physically present in the
United States or who arrives in the
United States (whether or not at a
designated port of arrival and including
an alien who is brought to the United
States after having been interdicted in
international or United States waters),
irrespective of such alien’s status, may
apply for asylum in accordance with
this section or, where applicable,
section 1225(b) of this title.’’
Commenters asserted that the INA does
not require those seeking protection to
apply before entering or at a POE or to
schedule an appointment through a
website or app in order to make an
application, but instead allows
applications from anywhere along the
border. Some commenters described a
fundamental right to apply for asylum
for anyone inside the United States.
Commenters asserted that entering the
United States either through a POE or
across the SWB and asking for asylum
constitutes a ‘‘lawful pathway.’’ Another
asserted that the proposed rule
effectively creates a new legal
framework by which to evaluate asylum
claims in conflict with the statutory
process provided by Congress, while
another commenter stated that the
proposed rule will cause confusion
among asylum seekers. Commenters
stated that the proposed rule would
result in migrants who seek refuge at the
SWB being turned away. At least one
commenter asserted that the proposed
rule violates the Refugee Act because it
violates the right to uniform treatment.
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Another commenter described the
proposed rule as disparate treatment
based on manner of entry, with
particular concern for those who
entered between POEs. Commenters
stated that Congress clearly intended to
allow noncitizens to apply for asylum
regardless of manner of entry without
requiring that a noncitizen first apply
for asylum elsewhere while in transit.
Commenters further asserted that
analyzing an asylum application should
focus on the applicant’s reasonable fear
of persecution rather than their manner
of entry. Commenters similarly stated
that the Departments should not and
cannot categorically deny asylum for
reasons unrelated to the merits of the
claim itself. Commenters also asserted
that, under Matter of Pula, 19 I&N Dec.
467 (BIA 1987), manner of entry may
not be the dispositive factor in deciding
whether a noncitizen is eligible for
asylum. Similarly, commenters argued
that Matter of Pula is binding precedent
and precludes consideration of manner
of entry over all other factors.
Response: This rule is consistent with
U.S. law. As a threshold response, the
rule does not require the Departments to
turn away migrants at the SWB or to
categorically deny all asylum
applications filed by migrants who enter
the United States from Mexico at the
southwest land border or adjacent
coastal borders. Nor does the rule
prohibit any noncitizen from seeking
protection solely because of the manner
or location of entry into the United
States. Rather, the rule is a lawful
condition on eligibility for asylum, as
authorized by section 208(b)(2)(C),
(d)(5)(B) of the INA, 8 U.S.C.
1158(b)(2)(C), (d)(5)(B).
In response to comments that the rule
violates the non-refoulement provision
of the Refugee Act, as stated elsewhere
in this preamble, the United States has
implemented its non-refoulement
obligations through section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), and the
regulations implementing CAT
protections at 8 CFR 208.16(c), 208.17,
208.18, 1208.16(c), 1208.17, 1208.18,
and the conditions provided by this rule
are not a penalty in violation of
international law.
Regarding comments that the Refugee
Act and subsequent amendments to the
INA provide access to applying for
asylum for any noncitizen ‘‘physically
present in’’ or arriving in the United
States, ‘‘whether or not at a designated
port of arrival’’ and regardless of status,
the Departments respond that this rule
is not inconsistent. INA 208(a)(1), 8
U.S.C. 1158(a)(1); see Refugee Act of
1980, 94 Stat. at 105 (providing that the
Attorney General establish ‘‘a procedure
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for an alien physically present in the
United States or at a land border or port
of entry, irrespective of such alien’s
status, to apply for asylum’’); Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 (‘‘IIRIRA’’),
Public Law 104–208, 110 Stat. 3009,
3009–690 (amending INA 208(a)(1), 8
U.S.C. 1158(a)(1), to permit any
noncitizen ‘‘who is physically present
in the United States or who arrives in
the United States (whether or not at a
designated port of arrival . . .)’’ to
apply for asylum ‘‘irrespective of’’ the
noncitizen’s immigration status).
Critically, the rule does not prevent
anyone from applying for asylum.
IIRIRA separated and distinguished the
ability to apply for asylum from the
conditions for granting asylum.
Compare INA 208(a)(1), 8 U.S.C.
1158(a)(1), with INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A); see also INA
208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A)
(establishing procedures for
consideration of asylum applications).
Section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1) retains the ability for most
noncitizens who are physically present
in the United States to apply for asylum
irrespective of whether they arrived in
the United States at a POE, except that
Congress created three categories of
noncitizens who are barred from making
an application. INA 208(a)(2)(A)
through (C), 8 U.S.C. 1158(a)(2)(A)
through (C).189 Separately, Congress
provided ‘‘[c]onditions for granting
asylum,’’ which include six statutory
exceptions to demonstrating eligibility
for asylum as well as authority for the
Departments to promulgate additional
conditions and limitations on eligibility
for asylum. INA 208(b)(2)(A)(i) through
(vi), (C), 8 U.S.C. 1158(b)(2)(A)(i)
through (vi), (C).190 As some
commenters noted, by creating
exceptions to who is eligible to receive
asylum and by authorizing the
Departments to create new exceptions to
189 See INA 208(a)(2)(A) through (C), 8 U.S.C.
1158(a)(2)(A) through (C) (enumerating: (A)
noncitizens who may be removed to a safe third
country pursuant to a bilateral or multilateral
agreement; (B) noncitizens who did not file for
asylum within one year after arriving in the United
States unless they demonstrate the existence of
extraordinary or materially changed circumstances;
and (C) noncitizens who previously applied for
asylum and had that application denied unless they
demonstrate the existence of extraordinary or
materially changed circumstances).
190 See INA 208(b)(2)(A)(i) through (vi), 8 U.S.C.
1158(b)(2)(A)(i) through (vi) (barring asylum for
individuals who: participate in the persecution of
others, have been convicted of a particularly serious
crime, have committed a serious nonpolitical crime
outside the United States, are regarded as a danger
to the security of the United States, have engaged
in certain terrorism-related activities, or were firmly
resettled in another country prior to arriving in the
United States).
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eligibility, Congress saw nothing
inconsistent in barring some individuals
who may apply for asylum from
receiving that relief.191 See R–S–C v.
Sessions, 869 F.3d 1176, 1187 (10th Cir.
2017).
Additionally, under this rule and
contrary to commenter assertions,
manner of entry, standing alone, is
never dispositive. Cf. E. Bay Sanctuary
Covenant v. Biden (‘‘East Bay III’’), 993
F.3d 640, 669–70 (9th Cir. 2021)
(enjoining the Proclamation Bar IFR as
‘‘effectively a categorical ban on
migrants who use a method of entry
explicitly authorized by Congress in
section 1158(a)’’). Rather, the rule
provides that a subset of noncitizens
seeking asylum—i.e., those who travel
through a specified third country, enter
the United States during a two-year
period after the effective date of the
rule, and are not subject to one of four
enumerated categories of excepted
individuals, including those who use an
identified lawful pathway to enter the
United States—are subject to a
rebuttable presumption of ineligibility.
8 CFR 208.33(a)(1) through (3),
1208.33(a)(1) through (3); 88 FR at
11707. This presumption is not
categorical, but rather involves a caseby-case consideration of facts and
factors. Indeed, as discussed in Sections
IV.B.2.ii and IV.D.2 of this preamble, the
narrower application and numerous
exceptions and methods of rebutting the
presumption demonstrate the
differences between the prior,
categorical bars that are now enjoined,
and one of which is vacated. See also
Sections IV.E.9 and IV.E.10 of this
preamble (removing the TCT Bar Final
Rule and the Proclamation Bar IFR from
the CFR).
Furthermore, the rule is within the
scope of the Departments’ authority
because it adds a condition on eligibility
for asylum permitted under section
208(b)(2)(C), (d)(5)(B) of the INA, 8
U.S.C. 1158(b)(2)(C), (d)(5)(B), not a
sweeping categorical bar that would
preclude a grant of asylum solely based
191 One important distinction between the
exceptions enumerated in subsection 208(a)(2) of
the INA, 8 U.S.C. 1158(a)(2), and those enumerated
in 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), is that
noncitizens who may apply for asylum but may be
ineligible due to a (b)(2)(A) bar on eligibility may
seek work authorization while their application is
being adjudicated. 8 CFR 208.7(a)(1). A noncitizen
who is barred from applying, i.e., someone subject
to a subsection (a)(2) bar, cannot obtain work
authorization during this time. Because this rule
does not create a bar on applying for asylum under
section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2),
there is no inconsistency with the provision of
immediate work authorization to noncitizens who
use one of the provided lawful parole processes to
enter the United States and apply for asylum. 88 FR
at 11707 n.26.
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on manner of entry, which some courts
have found to conflict with section
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1).
88 FR at 11735, 11740. Cf. East Bay III,
993 F.3d at 669–70 (concluding that the
Proclamation Bar was ‘‘effectively a
categorical ban’’ on migrants based on
their method of entering the United
States, and that such a categorical bar is
in conflict with section 208(a)(1) of the
INA, 8 U.S.C. 1158(a)(1)). Section
208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), provides that the Attorney
General and Secretary ‘‘may by
regulation establish additional
limitations and conditions, consistent
with [section 208], under which an alien
shall be ineligible for asylum.’’
Similarly, section 208(d)(5)(B) of the
INA, 8 U.S.C. 1158(d)(5)(B), specifies
that the Attorney General and Secretary
‘‘may provide by regulation for any
other conditions or limitations on the
consideration of an application for
asylum,’’ so long as those conditions or
limitations are ‘‘not inconsistent with
this chapter.’’ See INA 208(d)(5), 8
U.S.C. 1158(d)(5) (establishing certain
procedures for consideration of asylum
applications). As the Tenth Circuit
explained, ‘‘carving out a subset of’’
noncitizens seeking asylum and placing
a condition or limitation on their
asylum applications falls within the
limitations allowed by section
208(b)(2)(C), (d)(5)(B) of the INA, 8
U.S.C. 1158(b)(2)(C), (d)(5)(B), and is not
inconsistent with section 208(a)(1) of
the INA, 8 U.S.C. 1158(a)(1). R–S–C, 869
F.3d at 1187 n.9. Precluding such a
regulation would ‘‘render 1158(b)(2)(C)
[and (d)(5)(B)] meaningless, disabling
the Attorney General from adopting
further limitations while the statute
clearly empowers him to do so.’’ Id.
Consistent with this authority, the
Departments have promulgated other
limitations or conditions on asylum
eligibility, including some provisions
that Congress later adopted and codified
in the INA. See Aliens and Nationality;
Refugee and Asylum Procedures, 45 FR
37392, 37392 (June 2, 1980) (imposing
firm resettlement bar); Aliens and
Nationality; Asylum and Withholding of
Deportation Procedures, 55 FR 30674,
30678, 30683 (July 27, 1990)
(promulgating 8 CFR 208.14(c) (1990),
which provided for mandatory
regulatory bars to asylum for those who
have been convicted in the United
States of a particularly serious crime
and who constitute a danger to the
security of the United States while
retaining a prior regulatory bar to
asylum for noncitizens who have been
firmly resettled); Asylum Procedures, 65
FR 76121, 76127 (Dec. 6, 2000)
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(including internal relocation); see also,
e.g., Afriyie v. Holder, 613 F.3d 924,
934–36 (9th Cir. 2010) (discussing
internal relocation). Restraining the
Departments’ authority to promulgate
additional limitations and conditions on
the ability to establish eligibility for
asylum would be contrary to
congressional intent. See Thuraissigiam,
140 S. Ct. at 1966 (recognizing that the
‘‘theme’’ of IIRIRA ‘‘was to protect the
Executive’s discretion from undue
interference by the courts’’) (alteration
and quotation marks omitted); R–S–C,
869 F.3d at 1187 (reasoning that the
‘‘delegation of authority’’ in section
208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), ‘‘means that Congress was
prepared to accept administrative
dilution’’ of section 208(a)(1) of the INA,
8 U.S.C. 1158(a)(1)); see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 444–45
(1987); 88 FR at 11740.
Regarding comments that the
condition created by the rule is
inconsistent with the statute because it
does not relate to whether a noncitizen
qualifies as a refugee, the Departments
respond that bars, limitations, and
conditions on asylum do not necessarily
and need not directly relate to whether
a noncitizen satisfies the definition of a
‘‘refugee’’ within the meaning of section
101(a)(42)(A) of the INA, 8 U.S.C.
1101(a)(42)(A), but instead can embrace
policy considerations that justify a
finding of ineligibility. See, e.g., Zheng
v. Mukasey, 509 F.3d 869, 871 (7th Cir.
2007) (noting that IIRIRA enacted
several provisions, including the oneyear bar, ‘‘intended to reduce delays and
curb perceived abuses in removal
proceedings’’); Ali v. Reno, 237 F.3d
591, 594 (6th Cir. 2001) (recognizing
that asylum law ‘‘was never intended to
open the United States to refugees who
had found shelter in another nation and
had begun to build new lives’’) (internal
marks and quotation omitted); Matter of
Negusie, 28 I&N Dec. 120, 125 (A.G.
2020) (discussing the history of the
persecutor bar, and noting that Congress
intended to make ‘‘certain forms of
immigration relief,’’ including asylum,
‘‘unavailable to persecutors’’).
This rule also does not, contrary to
commenter concerns, violate the
Refugee Act by establishing a nonuniform procedure for applying for
asylum. The rule, consistent with the
Refugee Act’s objective to provide
systematic and comprehensive
procedures, establishes procedures and
conditions to support the lawful,
orderly processing of asylum
applications. 88 FR at 11704, 11728; see
Refugee Act, sec. 101(b), 94 Stat. at 102
(‘‘The objectives of this Act are to
provide a permanent and systematic
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31375
procedure for the admission to this
country of refugees of special
humanitarian concern to the United
States, and to provide comprehensive
and uniform provisions for the effective
resettlement and absorption of those
refugees who are admitted.’’). To be
sure, the rule will not lead to the same
result for each noncitizen: For example,
the rebuttable presumption will not
apply to noncitizens who enter the
United States using a lawful pathway
but will apply to noncitizens who enter
the United States from Mexico at the
southwest land border or adjacent
coastal borders and do not establish an
exception to the presumption or
otherwise rebut the presumption. But
the rule will apply in a uniform way to
all asylum applications filed by
noncitizens who are subject to its terms
during the applicable time period.
The rule is likewise within the
Departments’ broad authority, within
existing statutory bounds, to establish
procedures that are tailored to different
situations. INA 208(d)(1), 8 U.S.C.
1158(d)(1) (requiring the Attorney
General to ‘‘establish a procedure for the
consideration of asylum applications’’).
Notably, asylum applicants navigate
several procedurally different paths
depending on their arrival in the United
States and timing of their applications;
some noncitizens file affirmative
applications with USCIS after arriving
in the United States, and others file
defensive applications after being
placed in expedited removal
proceedings and found to have a
credible fear of persecution. Others
submit defensive applications while in
section 240 removal proceedings.
Contrary to commenter concerns, the
lawful pathways to enter the United
States outlined in this rule do not
eliminate any of these existing
procedures or categorically bar any of
these applications for asylum.
Furthermore, it is not inconsistent
with the INA to provide a lawful
pathway that relies on use of the CBP
One app. The Departments note that it
is not uncommon to implement policies
that encourage the use of new
technologies as they become available to
create efficiencies in processing,
including with respect to asylum
applications, such as new forms, efiling, the use of video teleconference
hearings, and digital audio recording of
hearings.192 See, e.g., Executive Office
192 In 1998, Congress passed the Government
Paperwork Elimination Act, which requires federal
agencies to provide the public with the ability to
conduct business electronically, when practicable,
with the Federal government. See Public Law 105–
277, 1701–10, 112 Stat. 2681, 2681–749 to –751
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for Immigration Review Electronic Case
Access and Filing System, 86 FR 70708
(Dec. 13, 2021) (implementing EOIR’s
electronic case management system);
Immigration Court Practice Manual,
Chapter 4.7 (Apr. 10, 2022) (providing
guidance for video teleconference
hearings); id. at Chapter 4.10(a)
(providing for electronic recording of
hearings). In this rule, the Departments
are implementing a rebuttable
presumption of ineligibility that will
encourage the use of lawful pathways,
including use of the CBP One app,
which the Departments expect will
enable POEs to manage migratory flows
in a safe and efficient manner.
Importantly, those who present at a POE
without a CBP One appointment and
demonstrate that it was not possible to
access or use the CBP One app due to
language barrier, illiteracy, significant
technical failure, or other ongoing and
serious obstacle will not be subject to
the presumption. 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
Further, using the app is not required in
order to qualify for an exception from or
to rebut the presumption, such as where
a noncitizen applied for asylum or other
protection in a third country and
received a final decision denying that
application or where the noncitizen
shows exceptionally compelling
circumstances. Thus, although the rule
encourages increased use of the CBP
One app, which is expected to facilitate
more efficient and streamlined
processing along the SWB, use of the
app is not required.
In response to commenters’ assertions
that crossing the SWB and applying for
asylum is in itself a ‘‘lawful pathway,’’
the Departments reiterate that this rule
does not bar a noncitizen from entering
the United States from Mexico at the
southwest land border or adjacent
coastal borders and subsequently
seeking asylum. 88 FR at 11707.
However, crossing the southwest land
border or adjacent coastal borders
without authorization is not one of the
lawful pathways provided to encourage
and increase safe, orderly transit to the
United States. Thus, noncitizens who
choose to cross the southwest land
border or adjacent coastal borders
without making an appointment to
present at a POE during the period
covered by this rule, and who do not
otherwise qualify for an exception
enumerated in 8 CFR 208.33(a)(2),
(1998). Similarly, in 2002, Congress passed the EGovernment Act of 2002, which promotes
electronic government services and requires
agencies to use internet-based technology to
increase the public’s access to government
information and services. See Public Law 107–347,
116 Stat. 2899 (2002).
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1208.33(a)(2), will have to address the
rebuttable presumption as part of
establishing eligibility for relief, but
they will nevertheless be able to apply
for asylum.
As to commenters’ statements that the
Departments’ reliance on Matter of Pula
is misplaced, the Departments respond
that the rule is consistent with historical
consideration of manner of entry as a
relevant factor in considering an asylum
application. In Matter of Pula, the BIA
identified—as relevant factors as to
whether a noncitizen warrants the
favorable exercise of discretion in
granting asylum—the noncitizen’s
‘‘circumvention of orderly refugee
procedures,’’ including their ‘‘manner of
entry or attempted entry’’; whether they
‘‘passed through any other countries or
arrived in the United States directly’’;
‘‘whether orderly refugee procedures
were in fact available to help’’ in any
transit countries; and whether they
‘‘made any attempts to seek asylum
before coming to the United States.’’
Matter of Pula, 19 I&N Dec. at 473–74.
The BIA explained that section 208(a) of
the INA, 8 U.S.C. 1158(a), required the
Attorney General to establish
procedures for adjudicating applications
filed by any noncitizen, ‘‘irrespective of
such alien’s status,’’ but the BIA did not
preclude consideration of the manner of
entry in assessing whether to grant
asylum. Id. at 472. The BIA also stated
that while the manner of entry could
‘‘be a serious adverse factor, it should
not be considered in such a way that the
practical effect is to deny relief in
virtually all cases.’’ Id. at 473. The BIA
cautioned against placing ‘‘too much
emphasis on the circumvention of
orderly refugee procedures’’ because
‘‘the danger of persecution should
generally outweigh all but the most
egregious of adverse factors.’’ Id. at 473–
74.
The Departments acknowledge that
this rule places more weight on manner
of entry than the Board did in Matter of
Pula. 88 FR at 11736. But in line with
Matter of Pula, the rule also considers
factors other than manner of entry,
including providing a categorical
rebuttal ground for noncitizens who
faced an imminent and extreme threat to
life or safety at the time of entry. Id.; 8
CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). And like Matter of
Pula, this rule provides for
consideration of manner of entry in
assessing eligibility for some asylum
seekers, but this factor is not considered
in ‘‘a way that the practical effect is to
deny relief in virtually all cases.’’ 19
I&N Dec. at 473. Rather, the manner of
entry is only impactful for individuals
who do not enter the United States
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using a lawful pathway, do not establish
an exception to the rebuttable
presumption, and do not rebut the
presumption. 88 FR at 11707, 11735–36.
The Departments also recognize that
the specific analysis discussed in Matter
of Pula (considering manner of entry in
the discretionary decision of whether to
grant asylum) is distinct from how the
rule considers manner of entry (as part
of provisions governing eligibility for
asylum). See Matter of Pula, 19 I&N Dec.
at 472. Nevertheless, Matter of Pula
supports the proposition that it is lawful
to consider, and in some cases rely on,
manner of entry for asylum applicants.
Moreover, adjudicators are not
precluded from considering the same
facts when evaluating both eligibility
and discretion. Indeed, it is possible for
a single fact to be relevant to both
determinations but dispositive as to
only one. See Kankamalage v. INS, 335
F.3d 858, 864 (9th Cir. 2003)
(concluding that a conviction did not
render a noncitizen ineligible for
asylum, but stating that the Board was
‘‘not prohibited from taking into
account Kankamalage’s robbery
conviction when it decides whether or
not to grant asylum as a matter of
discretion’’); Matter of Jean, 23 I&N Dec.
373, 385 (A.G. 2002) (concluding that
even a noncitizen who ‘‘qualifies as a
‘refugee’ ’’ and whose criminal
conviction did ‘‘not preclude her
eligibility’’ for asylum could
nevertheless be ‘‘manifestly unfit for a
discretionary grant of relief’’).
Moreover, the Departments, in
exercising their broad discretion to issue
regulations adopting additional
limitations and conditions on asylum
eligibility, are not bound to consider
manner of entry only as a factor
contributing to whether a particular
noncitizen warrants a favorable exercise
of discretion. The Departments similarly
disagree with the commenter who stated
that the Departments are seeking to
‘‘excuse themselves from complying
with long-established Board precedent
simply because the ‘regulatory regime’
in place today is different than the
regime at the time the Board decided
Matter of Pula.’’ This rule is not in
conflict with Matter of Pula, which
remains the applicable standard for
discretionary determinations. And the
rule takes Matter of Pula as providing
support for the proposition that it is
lawful to consider, and in some cases
rely on, manner of entry for asylum
applicants. 88 FR at 11735–36.
In sum, as with other conditions and
limitations imposed by section 208(b)(2)
of the INA, 8 U.S.C. 1158(b)(2), this rule
is grounded in important policy
objectives, including providing those
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with valid asylum claims an
opportunity to have their claims heard
in a timely fashion, preventing an
increased flow of migrants arriving at
the SWB that will overwhelm DHS’s
ability to provide safe and orderly
processing, and reducing the role of
exploitative transnational criminal
organizations and smugglers. 88 FR at
11704. In seeking to enhance the overall
functioning of the immigration system
and to improve processing of asylum
applications, the Departments are, in the
exercise of the authority to promulgate
conditions and limitations on eligibility
for asylum, placing greater weight on
manner of entry to encourage migrants
to seek protection in other countries in
the region and to use lawful pathways
and processes to enter the United States
and access the U.S. asylum system.
ii. Statutory Bars to Asylum
Comment: Commenters stated that the
proposed rule would be inconsistent
with the statutory firm-resettlement and
safe-third-country bars. See INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi); INA 208(a)(2)(A), 8
U.S.C. 1158(a)(2)(A). Commenters
argued that Congress intended for these
two bars to be the sole means by which
a noncitizen may be denied asylum
based on a relationship with a third
country. Commenters disagreed with the
proposed rule, asserting it would bar
asylum for anyone who travels through
what the United States deems a ‘‘safe
third country.’’ Similarly, another
commenter stated that the proposed rule
would penalize migrants who do not
live adjacent to a safe third country to
which they could travel directly in
order to seek protection.
Response: This rule is within the
Departments’ broad authority to create
new conditions on eligibility for
asylum, and the Departments disagree
that the rule conflicts with any of the
exceptions to a noncitizen’s ability to
apply for asylum or a noncitizen’s
eligibility for asylum under sections
208(a)(2) or (b)(2) of the INA, 8 U.S.C.
1158(a)(2) or (b)(2). The INA’s safethird-country provision prohibits a
noncitizen from applying for asylum if
the noncitizen ‘‘may be removed,
pursuant to a bilateral or multilateral
agreement’’ to a safe third country in
which the noncitizen would not be
subject to persecution and ‘‘would have
access to a full and fair procedure for
determining a claim to asylum or
equivalent temporary protection.’’ INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The
firm-resettlement provision precludes a
noncitizen who ‘‘was firmly resettled in
another country prior to arriving in the
United States’’ from demonstrating
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eligibility for asylum. INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi); see also 8 CFR 208.15
(2020), 1208.15 (2020).193 The two
provisions provide categorical bars to
asylum for noncitizens who have
available, sustained protection in
another country, and help protect
against forum shopping. Sall v.
Gonzales, 437 F.3d 229, 233 (2d Cir.
2006) (per curiam) (noting that the
policy behind the safe-third-country
statutory bar includes the principle that
‘‘[t]he United States offers asylum to
refugees not to provide them with a
broader choice of safe homelands, but
rather, to protect those arrivals with
nowhere else to turn.’’); Rosenberg v.
Yee Chien Woo, 402 U.S. 49, 55, 56
(1971) (noting that the concept of firm
resettlement is historically rooted in the
notion of providing ‘‘a haven for the
world’s homeless people’’ while
encouraging ‘‘other nations to do
likewise.’’); see also Maharaj v.
Gonzales, 450 F.3d 961, 988–89 (9th Cir.
2006) (en banc) (O’Scannlain, J.,
concurring, in part) (recognizing that the
firm-resettlement bar protects against
forum shopping, an issue ‘‘that our
immigration laws have long sought to
avoid.’’); United States v. Malenge, 294
F. App’x 642, 645 (2d Cir. 2008) (noting
that a purpose of the safe-third-country
agreement with Canada was to prevent
forum shopping).
The Departments disagree with
commenters because the INA permits
the Attorney General and Secretary to
create new eligibility conditions and
does not limit this authority based on
the content of the existing statutory
conditions. See Trump, 138 S. Ct. at
2411–12 (recognizing that the INA ‘‘did
not implicitly foreclose the Executive
from imposing tighter restrictions’’ in
‘‘similar’’ areas); E. Bay Sanctuary
Covenant v. Garland, 994 F.3d 962, 979
(9th Cir. 2020) (‘‘East Bay I ’’)
(acknowledging that the INA does not
limit the Departments’ ‘‘authority to the
literal terms of the two safe-place
statutory bars’’); R–S–C, 869 F.3d at
1187 (noting that Congress’s delegation
of authority in section 208(b)(2)(C) of
the INA, 8 U.S.C. 1158(b)(2)(C) ‘‘means
that Congress was prepared to accept
administrative dilution’’ of the right to
193 These provisions were amended by
Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11, 2020), which
was preliminarily enjoined and its effectiveness
stayed before it became effective. See Pangea Legal
Services v. U.S. Dep’t of Homeland Security
(Pangea II), 512 F. Supp. 3d 966, 969–70 (N.D. Cal.
2021). This order remains in effect, and thus the
2020 version of these provisions—the version
immediately preceding the enjoined amendment—
is currently effective.
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seek asylum). Indeed, section
208(b)(2)(C), (d)(5)(B) of the INA, 8
U.S.C. 1158(b)(2)(C), (d)(5)(B), provides
no subject-matter limit, other than
requiring any regulation be ‘‘consistent
with’’ section 208 of the INA, 8 U.S.C.
1158. See R–S–C, 869 F.3d at 1187 n.9.
The condition created by this rule is
consistent with section 208 of the INA,
8 U.S.C. 1158, as a whole, and it is
consistent with the safe-third-country
and firm-resettlement bars in particular.
88 FR at 11736.
Critically, unlike the safe-thirdcountry bar, the rule does not consider
whether the noncitizen could now
safely relocate to a third country, and
unlike the firm-resettlement bar, this
rule does not categorically preclude a
noncitizen from demonstrating
eligibility for asylum because they are
no longer in flight from persecution. Cf.
Ali, 237 F.3d at 594 (noting that the
firm-resettlement bar does not conflict
with Congress’s intent in providing for
asylum relief ‘‘[b]ecause firmly resettled
aliens are by definition no longer
subject to persecution’’) (marks and
citation omitted). Rather, as discussed
in the NPRM, the rule encourages use of
lawful pathways for migrants seeking to
come to the United States, including
noncitizens wishing to seek asylum in
the United States. 88 FR at 11707. The
rule is designed to improve processing
of such asylum applications. Id. at
11704, 11706–07. Noncitizens will not
be subject to the rebuttable presumption
if they travel through a third country
and seek entry into the United States
through a lawful, safe, and orderly
pathway. Id. at 11707; 8 CFR
208.33(a)(2)(ii), 1208.33(a)(2)(ii). They
also will not be subject to the rebuttable
presumption if they seek and are denied
asylum or other protection in a third
country. 88 FR at 11707; 8 CFR
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C).
And unaccompanied children are
excepted from the presumption. 8 CFR
208.33(a)(2)(i), 1208.33(a)(2)(i).
Moreover, even if a noncitizen is subject
to the presumption of ineligibility under
8 CFR 208.33(a)(1), 1208.33(a)(1), the
noncitizen may rebut that presumption
in any of several ways that account for
protecting the safety of those fleeing
imminent harm. 88 FR at 11707; 8 CFR
208.33(a)(3), 1208.33(a)(3). Accordingly,
the rule encourages noncitizens seeking
to enter the United States, including
those seeking asylum who have
transited through a third country before
arriving in the United States, to enter
through lawful, safe, and orderly
pathways by imposing an additional
condition on the asylum eligibility of
individuals who did not avail
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themselves of such pathways. 88 FR at
11706–07. The rule does not preclude
noncitizens who have transited through
third countries without applying for
protection in those countries from
obtaining asylum in the United States.
Id. at 11706–07. In addition, the rule
expressly accounts for migrants who
have been denied a safe haven
elsewhere; if an applicant seeks asylum
in a third country and is denied, the
rebuttable presumption does not apply.
8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C).
Comment: Commenters stated that the
proposed rule would conflict with the
firm-resettlement bar to asylum
eligibility or render the firmresettlement bar superfluous because it
would negate the need to determine
whether the noncitizen has firmly
resettled or whether any potential or
obtained status in a third country would
not be reasonably available or
reasonably retained due to issues such
as processing backlogs in the third
country. Commenters were also
concerned that the proposed rule would
not account for the risk of harm that the
noncitizen might face in the third
country. Commenters stated that the
proposed rule would ignore
congressional intent that the noncitizen
have a more significant relationship
with the third country—i.e., be firmly
resettled in that country rather than be
merely transiting through the country—
to be effectively rendered ineligible for
asylum. Commenters asserted that
requiring individuals to apply for
protection in a third transit country
would create a new hurdle for them
because it could subject them to the
firm-resettlement bar.
Response: As discussed above, the
INA does not limit the Departments’
authority regarding eligibility
conditions relating to a noncitizen’s
conduct in third countries to the
boundaries of the firm-resettlement
statutory bar. Trump, 138 S. Ct. at 2411–
12 (recognizing that the INA ‘‘did not
implicitly foreclose the Executive from
imposing tighter restrictions’’ in
‘‘similar’’ areas); see also East Bay I, 994
F.3d at 979 (noting that the INA does
not limit the Departments’ ‘‘authority to
the literal terms of the two safe-place
statutory bars’’). The Departments
disagree that the rule conflicts with the
firm-resettlement bar, which focuses on
protecting against forum shopping when
a migrant has already found a safe
refuge. INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi); Bonilla v. Mukasey,
539 F.3d 72, 80 (1st Cir. 2008); Ali, 237
F.3d at 594. This rule focuses on
encouraging migrants to use safe,
orderly, and lawful pathways to enter
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the United States. 88 FR at 11707,
11736. Accordingly, the relevant facts
and analysis for considering firm
resettlement and the application of the
rebuttable presumption are materially
different.
Additionally, the rule does not
overlook commenter concerns about the
accessibility to or processing times of
applications in third countries. Even if
noncitizens determine that protection in
a third country is inaccessible or would
take more time than the noncitizens
believe they can wait, the rule provides
other ways that the noncitizen can seek
protection. Seeking protection in a third
country and receiving a denial excepts
a noncitizen from the presumption but
is not a requirement—the noncitizen
may still either enter using a lawful
pathway, pre-schedule an appointment
to present themselves at a POE, or show
one of several other circumstances that
allow an individual to be excepted from
the rule’s rebuttable presumption. 8 CFR
208.33(a)(2), 1208.33(a)(2). The rule also
explicitly protects family unity by
providing that if one member of a family
traveling together is excepted from the
presumption of asylum ineligibility or
has rebutted the presumption then the
other members of the family are
similarly treated as excepted from the
presumption or having rebutted the
presumption. 8 CFR 208.33(a)(2)(ii), (3),
1208.33(a)(2)(ii), (3); 88 FR at 11730.
And if during removal proceedings a
principal applicant is eligible for
statutory withholding of removal or
CAT withholding and would be granted
asylum but for the presumption and has
either an accompanying spouse or child
who would not qualify for asylum or
protection from removal or a spouse or
child who would be eligible to follow to
join them as described in section
208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), if the principal applicant
were granted asylum, the applicant will
be deemed to have established an
exceptional circumstance that rebuts the
presumption. 8 CFR 1208.33(c).
Additionally, any principal asylum
applicants who enter the United States
during the two-year period of the
rebuttable presumption while under the
age of eighteen and apply for asylum
after the two-year period are not subject
to the presumption. 8 CFR 208.33(c)(2),
1208.33(d)(2). Furthermore, the rule
does not affect a noncitizen’s ability to
apply for statutory withholding of
removal and CAT protection. 88 FR at
11730.
The rule also does not render the
firm-resettlement bar superfluous;
instead, this rule and the firmresettlement bar apply independently.
The operative firm-resettlement
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regulations provide that a noncitizen is
barred from receiving asylum in the
United States if they have received an
offer of safe, established permanent
resettlement that is not substantially
and consciously restricted. 8 CFR
208.15, 1208.15 (2020). The firmresettlement bar is divorced from any
inquiry into how or when a noncitizen
enters the United States. INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi); 8 CFR 208.15, 1208.15
(2020). Put differently, the firmresettlement bar applies with equal
force to noncitizens who enter the
United States using an identified lawful
pathway and those who do not. Abdalla
v. INS, 43 F.3d 1397, 1400 (10th Cir.
1994) (‘‘The pertinent regulations
specifically focus on resettlement status
prior to the alien’s entry into this
country . . . . ’’). Conversely, this rule
does not turn exclusively on whether
the noncitizen received an offer of
permanent resettlement in a third
country. 88 FR at 11723. Under the rule,
a migrant’s time in a third country is
primarily relevant in two circumstances:
(1) when a noncitizen travels through a
third country and does not enter the
United States through established
lawful pathways, or (2) if the noncitizen
applied for protection in the third
country and was denied. 8 CFR
208.33(a)(1)(iii), (2)(ii)(C),
1208.33(a)(1)(iii), (2)(ii)(C). In the first
circumstance, the noncitizen is subject
to the rule’s condition on asylum
eligibility unless they can demonstrate
an applicable exception or successfully
rebut the presumption. 8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and
(3). In the second circumstance, the
noncitizen is categorically not subject to
the rebuttable presumption of asylum
ineligibility regardless of whether they
entered the United States through
established lawful pathways. 8 CFR
208.33(a)(2)(ii)(C),1208.33(a)(2)(ii)(C).
But neither circumstance involves
determining whether the noncitizen was
firmly resettled, as defined in 8 CFR
208.15, 1208.15 (2020), before traveling
to the United States.194 Thus, the firmresettlement bar and this rule are simply
different conditions with different
scopes.
In addition, the rule properly
accounts for the risk of harm a
noncitizen might face in the third
country. As at least one commenter in
favor of the rule noted, not all migrants
194 Indeed, the firm-resettlement bar, if applicable
to a particular noncitizen, would not be applied by
an AO in credible fear proceedings and would be
applied only if the noncitizen’s application is
considered by an IJ in section 240 removal
proceedings or an AO during an asylum merits
interview. 8 CFR 208.30(e)(5)(i).
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who travel through third countries are
actively fleeing persecution and some
choose to come to the United States for
other reasons. But should the noncitizen
be fleeing harm, one of the enumerated
grounds that will necessarily rebut the
presumption of asylum ineligibility is
that the noncitizen faced an imminent
and extreme threat to life or safety at the
time of entry into the United States. 8
CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B); 88 FR at 11704,
11707, 11736. In response to the
comment that requiring a noncitizen to
seek protection in a transit country
would add a hurdle to obtaining asylum
in the United States insofar as that
noncitizen may need to address the
firm-resettlement bar, the Departments
note that noncitizens subject to the firmresettlement bar are not in need of
protection in the United States. See Ali,
237 F.3d at 594 (recognizing that asylum
law ‘‘was never intended to open the
United States to refugees who had found
shelter in another nation and had begun
to build new lives’’ (quoting Rosenberg
v. Yee Chien Woo, 402 U.S. 49, 56
(1971)); East Bay I, 994 F.3d at 977
(recognizing ‘‘the ‘core regulatory
purpose of asylum,’ which is ‘to protect
[refugees] with nowhere else to turn,’
because ‘by definition’ an applicant
barred by a safe-place provision has
somewhere else to turn’’ (quoting Matter
of B–R-, 26 I&N Dec. 119, 122 (BIA
2013), overruled on other grounds by
Zepeda-Lopez v. Garland, 38 F.4th 315,
326 (2d Cir. 2022)); Constitution of the
International Refugee Organization, ch.
V, sec. (D)(c), Dec. 15, 1946, 18 U.N.T.S.
20 (determining that a refugee or
displaced person ‘‘will cease to be the
concern of the Organization . . . when
they have . . . become otherwise firmly
established’’). Likewise, the rule does
not deny asylum to a noncitizen who
obtained asylum in a third country (and
therefore presumably has a cognizable
claim to refugee status) but thereafter
comes to the United States and seeks
asylum. That person may seek to enter
through a lawful pathway and file an
asylum application like any other
migrant, at which point they would
likely need to address the firmresettlement bar. Should they enter the
United States from Mexico at the
southwest land border or adjacent
coastal borders without authorization or
at a POE without an appointment and
not otherwise be covered by an
exception, they, like any other
noncitizen in that situation, will be able
to address the rebuttable presumption.
Finally, the Departments disagree that
the rule ignores congressional intent
underlying the firm-resettlement bar. As
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explained above, this rule has the policy
objective of encouraging the use of safe,
orderly, and lawful pathways by
noncitizens, including those seeking
asylum, to enter the United States to
present their claims, 88 FR at 11704,
11707, and is distinct from the firmresettlement bar, which is grounded in
the policy objective of protecting against
forum shopping by migrants who have
already found a safe refuge, East Bay I,
994 F.3d at 977; Bonilla, 539 F.3d at 80;
Ali, 237 F.3d at 595.
Comment: Commenters stated that the
proposed rule would be inconsistent
with or would circumvent the safethird-country bar to applying for asylum
because the safe-third-country bar was
intended to ensure that any third
country was safe and had a fair
procedure for asylum or temporary
protection before requiring that a
noncitizen avail themselves of
protection in that country. Commenters
asserted that the proposed rule
essentially or implicitly declares
Mexico, Guatemala, or other transit
countries to be safe third countries
without obtaining the requisite bilateral
or multilateral agreements. Commenters
also claimed that this proposed rule,
which would apply regardless of
whether the United States has an
agreement with the transit country,
would not adequately consider or
require an individualized determination
as to whether a third country is ‘‘safe’’
for asylum seekers or has an adequate
system for granting protection against
persecution and torture. Instead,
commenters explained that this
proposed rule relies on a third country
being a party to specified international
accords, which commenters stated are
not sufficient to ensure the noncitizen’s
safety and, therefore, would result in
refugees being returned to the countries
where they will be persecuted—in
conflict with the non-refoulement
principles of the Refugee Act. One
commenter specified that the asylum
structures in Mexico, El Salvador,
Honduras, and Guatemala do not meet
the international standard for refugee
protection and thus cannot constitute a
safe third country.
Response: As a threshold matter, the
Departments distinguish the categorical
safe-third-country bar found in section
208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A), from this rule because
this rule, unlike the safe-third-country
bar, is neither a categorical bar on the
ability to apply for asylum nor does it
hinge exclusively on the availability of
protection in a third country. 88 FR at
11723, 11736. While the Departments
believe that protection is available for
many noncitizens in third countries
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through which they transit before
arriving in the United States from
Mexico at the southwest land borders or
adjacent coastal borders, the
Departments have carefully refrained
from making asylum eligibility in the
United States turn exclusively on
whether the noncitizen could have
sought protection in any third country.
Nor does this rule act as or constitute a
third-country agreement for purposes of
section 208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A). 88 FR at 11732. Critically,
the purpose behind this rule is to
encourage noncitizens to take advantage
of existing and expanded safe, orderly,
and lawful pathways for noncitizens to
enter the United States to present
asylum claims. 88 FR at 11704, 11719.
And the rule does not, contrary to
commenters’ suggestions, require a
noncitizen to return to or go to a third
country without evaluating the safety of
that country simply because of their
method of entering the United States.
Cf. East Bay I, 994 F.3d at 977. Rather,
the rule is more limited. The rule
provides that noncitizens who have
traveled through a third country and
enter the United States through a
provided lawful pathway may seek
asylum through an orderly and directed
process. 88 FR at 11707, 11723; see 8
CFR 208.33(a)(2)(ii), 1208.33(a)(2)(ii).
Noncitizens who travel through a third
country that is a party to the Refugee
Convention or Protocol and do not enter
the United States through a provided
lawful pathway, and who do not first
seek (and are denied) protection in that
third country, may still present a claim
for relief and protection based on fear of
persecution—but, in order to be eligible
for asylum, they must first establish an
exception to or rebut a presumption of
ineligibility for asylum. 88 FR at 11707,
11723; see 8 CFR 208.33(a)(3),
1208.33(a)(3). And even if the
noncitizen is subject to the presumption
of ineligibility for asylum, the
noncitizen may still seek and be eligible
for statutory withholding of removal or
CAT protection. 88 FR at 11737; see 8
CFR 208.33(b)(2)(i) and (ii),
1208.33(b)(2)(i) and (ii). Simply put, the
rule imposes a condition on asylum
(and only asylum) eligibility relating to
whether the noncitizen availed
themselves of a lawful pathway, but the
rule does not direct an inquiry as to
whether the noncitizen can or should
return to a third country. 88 FR at
11737–38.
iii. Expedited Removal
Comment: Some commenters stated
that the proposed rule creates a higher
standard of proof (preponderance of the
evidence) for rebutting the presumption
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against asylum, as compared to the
‘‘significant possibility’’ standard for
establishing a credible fear. Commenters
expressed a belief that the rule requires
noncitizens ‘‘to actually establish, at
their credible fear interview, that they
are eligible for asylum’’ (emphasis in
original), not simply that they have a
significant possibility of demonstrating
eligibility. These commenters expressed
concern that the rule could be read to
require AOs to make a finding that a
noncitizen is ineligible for asylum
without assessing the presumption
under the ‘‘significant possibility’’
standard. These commenters further
argued that the touchstone of the
‘‘significant possibility’’ standard was
whether a noncitizen ‘‘could show, after
a full hearing with factual
development,’’ that the presumption
does not apply.
Response: The ‘‘significant
possibility’’ standard is required by
statute, and the rule does not impose a
different standard during the credible
fear process.195 The INA mandates that,
when determining whether a noncitizen
has a ‘‘credible fear,’’ the AO must
determine whether there is a
‘‘significant possibility . . . that the
alien could establish eligibility for
asylum.’’ INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). When it comes to the
rebuttable presumption, the AO will
determine whether there is a significant
possibility that the noncitizen would be
able to show at a full hearing by a
preponderance of the evidence that the
presumption does not apply or that they
195 Previous limitations on asylum eligibility have
used similar regulatory language that does not
explicitly include the phrase ‘‘significant
possibility’’ while also stating in the rules’
preambles that the ‘‘significant possibility’’
standard applied to those limitations. See, e.g.,
Security Bars and Processing, 85 FR 84160, 84175
(Dec. 23, 2020) (‘‘Security Bars Rule’’) (explaining
that ‘‘[t]he rule does not, and could not, alter the
standard for demonstrating a credible fear of
persecution, which is set by statute’’); Asylum
Eligibility and Procedural Modifications, 84 FR
33829, 33837 (July 16, 2019) (‘‘TCT Bar IFR’’)
(providing that ‘‘[t]he asylum officer will ask
threshold questions to elicit whether an alien is
ineligible for a grant of asylum pursuant to the
third-country-transit bar. If there is a significant
possibility that the alien is not subject to the
eligibility bar (and the alien otherwise demonstrates
that there is a significant possibility that he or she
can establish eligibility for asylum), then the alien
will have established a credible fear.’’); Aliens
Subject to a Bar on Entry Under Certain Presidential
Proclamations; Procedures for Protection Claims, 83
FR 55934, 55943 (Nov. 9, 2018) (‘‘Proclamation
Bar’’) (providing that ‘‘[t]he asylum officer will ask
threshold questions to elicit whether an alien is
ineligible for a grant of asylum pursuant to a
proclamation entry bar. If there is a significant
possibility that the alien is not subject to the
eligibility bar (and the alien otherwise demonstrates
sufficient facts pertaining to asylum eligibility),
then the alien will have established a credible
fear.’’).
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meet an exception to or can rebut the
presumption. 8 CFR 208.33(a)(2), (3)(i),
1208.33(a)(2), (3)(i). In other words, the
‘‘significant possibility’’ standard is the
overall assessment applied at the
credible fear stage, but that standard
must be applied in conjunction with the
standard of proof required for the
ultimate merits determination. Although
the ‘‘significant possibility’’ standard
applies when determining the
presumption’s applicability and
whether it has been rebutted, the
Departments expect that noncitizens
rarely would be found exempt from or
to have rebutted the presumption for
credible fear purposes and subsequently
be found not to be exempt from or to
have rebutted the presumption at the
merits stage. The ‘‘significant
possibility’’ standard asks a predictive
question: whether there is a ‘‘significant
possibility’’ that the noncitizen ‘‘could
establish’’ asylum eligibility at a merits
hearing. INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). And given the nature of
the inquiry under this rule’s
presumption, the Departments expect
that AOs or IJs will almost always be
able to determine based on the evidence
before them at the credible fear stage
whether a noncitizen would be unable
to establish asylum eligibility at the
merits stage.
First, the evidence necessary to
determine whether a person is excepted
from or can rebut the presumption
should generally be available to the AO
at the time of the credible fear
interview, whether from the noncitizen
or otherwise. Unlike some of the more
complex factual inquiries required for
other elements of asylum eligibility,
such as nexus or particular social group,
which often require evidence about
country conditions or other evidence,
and often regard events that did not
happen recently, AOs will—except in
exceptional circumstances—be able to
assess eligibility for such exceptions or
rebuttal circumstances at the credible
fear interview through consideration of
the noncitizen’s credible testimony and
available evidence, including
government records relating to their
circumstances at the time of their entry
into the United States.
For instance, a noncitizen should not
generally need testimony from a witness
in their home country or evidence of
country conditions to show that they
faced an acute medical emergency at the
time of entry or that it was not possible
to access or use the CBP One app due
to language barrier, illiteracy, significant
technical failure, or other ongoing and
serious obstacle. See 8 CFR
208.33(a)(2)(ii)(B), (3)(i)(A),
1208.33(a)(2)(ii)(B), (3)(i)(A). In some
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cases, the absence of documentation and
DHS records—such as a record that a
noncitizen was provided appropriate
authorization to travel to the United
States to seek parole—may make it
unlikely that the noncitizen could make
the requisite showing at a full merits
hearing. In other situations, the
noncitizen’s credible testimony may be
sufficient to prove the noncitizen’s
claims, although AOs also may consider
any evidence noncitizens have with
them at the time they entered the United
States from Mexico at the southwest
land border or adjacent coastal borders,
and evidence regarding the State in
which they were encountered at or near
the border. Thus, AOs should have all
the necessary evidence before them
during the credible fear interview to
determine whether a noncitizen will be
exempt from or able to rebut the
presumption, and additional evidence is
not likely to change whether an
exception to or rebuttal of the
presumption applies.
Second, as with factual
determinations, the legal analysis for
determining whether a person is exempt
from or can rebut the presumption is
straightforward because most of the
enumerated grounds for those
determinations are narrow and clearly
defined. There is little gray area in
determining whether a noncitizen
transited through a third country, and
the rule provides clear examples of the
types of threats that constitute an
imminent and extreme threat to life or
safety—that is, an imminent threat of
rape, kidnapping, torture, or murder.
See 8 CFR 208.33(a)(1)(iii), (3)(i)(B),
1208.33(a)(1)(iii), (3)(i)(B). As a result,
the question of whether a noncitizen has
a ‘‘significant possibility’’ of meeting
these standards should not require
much legal analysis after the AO has
considered the evidence before them.
That again differs from other questions
that may arise during a credible fear
inquiry—such as whether the
noncitizen is a member of a cognizable
particular social group—which can be
quite complex; AOs or IJs may
reasonably defer such difficult questions
by finding credible fear. See 8 CFR
208.30(e)(4) (‘‘In determining whether
the alien has a credible fear of
persecution . . . or a credible fear of
torture, the asylum officer shall consider
whether the alien’s case presents novel
or unique issues that merit a positive
credible fear finding . . . in order to
receive further consideration of the
application for asylum and withholding
of removal.’’). Hence, in this unique
context, applying the ‘‘significant
possibility’’ standard will almost always
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lead to a similar conclusion as applying
the ultimate eligibility standard.
However, the Departments
acknowledge that in some rare cases the
outcome from applying the ‘‘significant
possibility’’ standard may differ from
application of the ultimate merits
standard, such that a noncitizen who is
found to have met the ‘‘significant
possibility’’ standard may ultimately be
found after a merits hearing to be
subject to the presumption of
ineligibility. It is the Departments’
expectation that such cases will be rare,
and that applying the ‘‘significant
possibility’’ standard will not differ
meaningfully from application of the
ultimate merits standard in this context.
Comment: Commenters stated that
Congress intended to set a low screening
standard for the credible fear process
and alleged that the proposed rule
raised the screening standard for
statutory withholding of removal and
CAT protection during this process
without providing a justification for
doing so. Commenters argued that
Congress intended the plain language of
the statute, which uses a ‘‘significant
possibility’’ standard for asylum, to also
apply to related fear claims, such as
statutory withholding of removal and
CAT protection.
Response: As a preliminary matter,
this rule does not change the screening
standard for asylum claims. Instead, it
imposes an additional condition on
asylum eligibility: a rebuttable
presumption of asylum ineligibility for
certain noncitizens who neither avail
themselves of a lawful, safe, and orderly
pathway to the United States nor seek
asylum or other protection in a country
through which they travel. 88 FR at
11750; INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). AOs will continue to
apply the statutory ‘‘significant
possibility’’ standard to determine
credible fear. Id. In considering whether
a noncitizen can establish a significant
possibility of eligibility for asylum, the
AO will be required to consider whether
the noncitizen has shown a significant
possibility that they could establish that
the presumption does not apply or that
they meet an exception to or can rebut
the presumption. 88 FR at 11750. Only
after determining that a noncitizen
could not demonstrate a ‘‘significant
possibility’’ of eligibility for asylum
would the AO apply the longestablished ‘‘reasonable possibility’’
standard to assess whether further
proceedings on a possible statutory
withholding or CAT protection claim
are warranted. Id. at 11746, 11750.
In contrast to the establishment of a
statutory ‘‘significant possibility’’
standard to screen for asylum, Congress
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did not specify a statutory standard for
screening statutory withholding of
removal or CAT protection claims in
expedited removal proceedings. See
INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v) (referencing only
‘‘asylum’’). Since 1999, AOs have
applied the ‘‘reasonable possibility’’
standard to statutory withholding of
removal and CAT protection claims in
streamlined proceedings for
reinstatement and administrative
removal where noncitizens are
statutorily ineligible for asylum. See 8
CFR 208.31, 1208.31 (2020) 196
(implementing the reasonable fear
process for noncitizens subject to
administrative removal orders); 8 CFR
241.8(e) (implementing the reasonable
fear process for noncitizens subject to
reinstatement of a prior order of
removal). While the ‘‘reasonable
possibility’’ standard is lower than the
‘‘clear probability’’ standard required to
demonstrate eligibility for statutory
withholding or CAT protection, it is a
more demanding standard than the
‘‘significant possibility’’ standard used
in credible fear proceedings to screen
for asylum. Regulations Concerning the
Convention Against Torture, 64 FR
8474, 8485 (Feb. 19, 1999). At the time
the CAT regulations were implemented,
the goal of the reasonable fear process
was to ensure that the United States
complied with its non-refoulement
obligations under the CAT ‘‘without
unduly disrupting the streamlined
removal processes applicable.’’ Id. at
8479. The justification for using the
reasonable possibility standard was also
explained at the time the reasonable fear
proceedings were created: ‘‘[b]ecause
the standard for showing entitlement to
these forms of protection (a probability
of persecution or torture) is significantly
higher than the standard for asylum (a
well-founded fear of persecution), the
screening standard adopted for initial
consideration of withholding and
deferral requests in these contexts is
also higher.’’ Id. at 8485.
For the purpose of this rule, the
Departments have judged that, in those
cases where an applicant cannot
establish a significant possibility of
eligibility for asylum due to the lawful
pathways condition, the use of the
‘‘reasonable possibility’’ standard to
assess statutory withholding of removal
and CAT claims better reflects the goals
196 These provisions were amended by the Global
Asylum Rule, which was preliminarily enjoined
and its effectiveness stayed before it became
effective. See Pangea II, 512 F. Supp. 3d at 969–70.
This order remains in effect, and thus the 2020
version of these provisions—the version
immediately preceding the enjoined amendments is
currently effective.
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31381
of the rule as a whole. As explained in
the NPRM, while this is a different
judgment than what was made by the
Asylum Processing IFR, the application
of the heightened standard is in line
with the goal of identifying nonmeritorious claims at the screening
stage, allowing the heavily burdened
immigration courts to focus on those
claims most likely to warrant protection.
88 FR at 11742. The Departments
believe that applying the ‘‘reasonable
possibility’’ standard, which is tailored
to statutory withholding of removal and
CAT claims, ‘‘better predicts the
likelihood of succeeding’’ on an
application for statutory withholding of
removal or CAT protection because it
appropriately accounts for the higher
burden of proof. 88 FR at 11746–47. The
use of the standard specific to statutory
withholding and CAT claims, since its
inception, has allowed the United States
to meet its obligations under
international law while simultaneously
balancing the need to expeditiously
identify non-meritorious claims.
Moreover, as stated in the NPRM, the
Departments seek to protect those who
have viable claims while also
considering the ‘‘downstream effects’’
on immigration courts. 88 FR at 11746.
The application of standards tailored to
the type of relief for which the
noncitizen is eligible is designed to
accomplish that goal.
2. TCT Bar and Proclamation Bar
Litigation
Comment: Several commenters argued
that the proposed rule is no different
than the TCT Bar Final Rule and the
Proclamation Bar IFR. Many
commenters submitted only a general
reference to precedent issued in
litigation regarding the Proclamation
Bar IFR and the TCT Bar rules, without
any discussion or consideration of the
distinctions provided in the proposed
rule. Some asserted that the proposed
rule conflicts with or violates the
injunctions issued regarding those rules,
or that the existing injunction should
apply to the proposed rule. Commenters
also asserted that the proposed rule is
similar to the TCT Bar rules and
Proclamation Bar IFR and will cause
confusion. An organization expressed
concern that members of a certified
class for purposes of injunctive relief,
see Al Otro Lado, Inc. v. McAleenan,
No. 17–CV–02366–BAS–KSC, 2022 WL
3142610 (S.D. Cal. Aug. 5, 2022), would
be subject to the rebuttable
presumption. The commenter stated
that application of the rebuttable
presumption to such class members
would likely violate the injunction in
that case because that injunction
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requires that the Departments apply
‘‘pre-Asylum Ban practices for
processing the asylum applications’’ of
class members. See id.
Response: The Departments reiterate
that this rule is materially different from
the TCT Bar IFR and Final Rule and
Proclamation Bar IFR. 88 FR at 11738–
39; see also Section IV.B.2.ii of this
preamble. And contrary to commenter
concerns, there is no risk of confusion
because neither the TCT Bar nor the
Proclamation Bar is in effect. Capital
Area Immigrants’ Rights Coal. v. Trump,
471 F. Supp. 3d 25 (D.D.C. 2020)
(vacating the TCT Bar IFR); East Bay
Sanctuary Covenant v. Barr, 964 F.3d
832 (9th Cir. 2020) (enjoining the TCT
Bar IFR); E. Bay Sanctuary Covenant v.
Barr (‘‘East Bay II’’), 519 F. Supp. 3d
663, 668 (N.D. Cal. 2021) (enjoining the
TCT Bar Final Rule); East Bay III, 993
F.3d at 681; see O.A. v. Trump, 404 F.
Supp. 3d 109 (D.D.C. 2019) (recounting
the history of the litigation over the
Proclamation Bar IFR and vacating
it).197 As discussed later in Sections
IV.E.9 and IV.E.10 of this preamble,
removal of provisions implementing the
TCT Bar Final Rule and the
Proclamation Bar IFR is warranted. But
even separate from the removal of
provisions implementing those rules,
the Departments respond that the
litigation surrounding those rules does
not mean that this distinct rule is
invalid, unenforceable, or arbitrary and
capricious.
The Departments also disagree with
the generalized comparisons between
this rule and the Proclamation Bar IFR
and the TCT Bar rules. 88 FR at 11736.
As stated in the NPRM, this rule is
substantively distinct from the
eligibility bars in those rules. The TCT
Bar rules focused exclusively on the
noncitizen’s travel prior to entering the
United States, see 85 FR at 82261–62,
and the Proclamation Bar IFR imposed
a strict eligibility bar for anyone
entering outside a POE, see 83 FR at
55935. In comparison, this rule is not a
categorical bar on asylum eligibility, but
instead is a rebuttable presumption,
including several exceptions that are
adjudicated on a case-by-case basis, for
197 The district court in O.A. vacated the
Proclamation Bar IFR for similar substantive
reasons to those articulated in East Bay III. O.A. v.
Trump, 404 F. Supp. 3d 109 (D.D.C. 2019). O.A. v.
Trump is subject to a pending appeal that is
presently held in abeyance. O.A. v. Biden, No. 19–
5272 (D.C. Cir. Oct. 11, 2019). Similarly, in Al Otro
Lado, Inc. v. Mayorkas, No. 17–cv–2366, 2022 WL
3970755 (S.D. Cal. Aug. 23, 2022), a different
district court issued an injunction relating to
application of the TCT Bar rules that the
Departments disagree with and have appealed. Al
Otro Lado, Inc. v. Mayorkas, Nos. 22–55988, 22–
56036 (9th Cir. Nov. 7, 2022).
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certain noncitizens who enter the
United States without availing
themselves of any of numerous lawful
pathways during a temporary period of
time. 88 FR at 11707, 11739–40; 8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and
(3). Notably, and contrary to claims by
some commenters, the rule does not
block access to asylum for those who
need it most. Cf. East Bay I, 994 F.3d at
980. The rule contains exceptions to and
ways to rebut the presumption,
including several ways to avoid the
presumption that account for protecting
the safety of those fleeing imminent
harm. In addition, the rule is intended
to better manage already-strained
resources, thereby protecting against
overcrowding in border facilities and
helping to ensure that the processing of
migrants seeking protection in the
United States is done in an effective,
humane, and efficient manner. 88 FR at
11704, 11713–16, 11730. In that vein, as
discussed in Sections IV.E.9 and IV.E.10
of this rule, the TCT Bar IFR and Final
Rule and Proclamation Bar IFR pursued
approaches and policies that differ in
important respects from this rule.
Compare TCT Bar IFR, 84 FR at 33831,
and Proclamation Bar IFR, 83 FR at
55935, with 88 FR at 11706–07.
Moreover, this rule is designed to
address a specific exigency that did not
exist when the TCT Bar rules and
Proclamation Bar IFR were
promulgated. 88 FR at 11705–06.
Second, this rule is not in conflict
with or precluded by existing
injunctions and court precedent relating
to litigation surrounding those rules.
See United States v. Cardales-Luna, 632
F.3d 731, 735 (1st Cir. 2011)
(recognizing that ‘‘a decision dependent
upon its underlying facts is not
necessarily controlling precedent as to a
subsequent analysis of the same
question on different facts and a
different record’’) (marks and citation
omitted); Overseas Shipholding Group,
Inc. v. Skinner, 767 F. Supp. 287, 296
(D.D.C. 1991) (noting that neither the
law of the case nor stare decisis
doctrines applied in ‘‘an entirely
separate rulemaking process’’); cf.
Associated Builders and Contractors,
Inc. v. Brock, 862 F.2d 63, 67 (3d Cir.
1988) (considering the adequacy of
notice of proposed rulemaking and
concluding that an argument was
foreclosed because a prior panel
‘‘applied the law’’ to facts that had ‘‘not
changed’’). Procedurally, the injunctions
issued against the TCT Bar rules and
Proclamation Bar IFR were limited to
the specific facts and specific rules at
issue in those cases and do not bar the
issuance of this materially distinct rule.
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See E. Bay Sanctuary Covenant v. Barr,
385 F. Supp. 3d 922, 960 (N.D. Cal.
2019) (enjoining the Departments ‘‘from
taking any action continuing to
implement’’ the TCT Bar IFR), affirmed
by East Bay I, 994 F.3d at 988; East Bay
II, 519 F. Supp. 3d at 668 (enjoining the
Departments ‘‘from taking any action
continuing to implement the [TCT Bar]
Final Rule’’); E. Bay Sanctuary
Covenant v. Trump, 349 F. Supp. 3d
838, 868 (N.D. Cal. 2018), affirmed by
East Bay III, 993 F.3d at 680–81; see also
California v. Texas, 141 S. Ct. 2104,
2115 (2021) (noting that remedies ‘‘do
not simply operate on legal rules in the
abstract’’) (quotation marks and citation
omitted). Substantively, the opinions in
those cases were limited to categorical
eligibility bars premised on manner of
entry or whether a noncitizen first
sought asylum in another country, and
this rule creates no such categorical bar.
The more nuanced approach in this rule
will have different effects and is
premised on different factual
circumstances and new reasoning,
including an increased focus on
available lawful pathways. 88 FR at
11739.
Regarding the application of the
proposed rule to Al Otro Lado
injunction class members, as noted in
the NPRM, the Departments do not view
the permanent injunction in the Al Otro
Lado litigation—see Al Otro Lado, Inc.
v. Mayorkas, No. 17–CV–02366–BAS–
KSC, 2022 WL 3970755 (S.D. Cal. Aug.
23, 2022)—which they have appealed to
the Ninth Circuit,198 as limiting the
Departments’ discretionary authority to
apply new asylum limitations
conditions consistent with section
208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), to the injunction class.
See, e.g., Milliken v. Bradley, 433 U.S.
267, 281–82 (1977) (‘‘The well-settled
principle that the nature and scope of
the remedy are to be determined by the
violation means simply that federalcourt decrees must directly address and
relate to the [alleged wrongful conduct]
itself.’’); Meinhold v. U.S. Dep’t of Def.,
34 F.3d 1469, 1480 (9th Cir. 1994); see
also, e.g., Thomas v. Cty. of Los Angeles,
978 F.2d 504, 509 (9th Cir. 1992)
(reversing injunction that ‘‘fail[ed] to
specify the act or acts sought to be
restrained as required by’’ Federal Rule
of Civil Procedure 65(d)).199 In any
198 See Al Otro Lado, Inc. v. Mayorkas, Nos. 22–
55988, 22–56036 (9th Cir. Oct. 25, 2022)
199 Further, the commenter’s position that the Al
Otro Lado injunction applies to this rule is
inconsistent with Al Otro Lado Class Counsel’s
website: ‘‘[T]he Biden Administration proposed a
similar rule in February 2023, but the Al Otro Lado
v. Mayorkas court order does not cover the new
rule. The court order only applies to the rule
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event, certain injunction class members
whose cases are reopened or
reconsidered under the Al Otro Lado
injunction because they were removed
following application of the TCT Bar
may follow a DHS-established process
to request ‘‘appropriate authorization to
travel to the United States to seek
parole, pursuant to a DHS-approved
parole process,’’ as outlined in 8 CFR
208.33(a)(2)(ii)(A), 1208.33(a)(2)(ii)(A),
to participate in renewed removal
proceedings. Injunction class members
who follow those procedures would
thus not be subject to the rebuttable
presumption.
Comment: Many commenters noted
that the courts, in addressing the TCT
Bar rules and the Proclamation Bar IFR,
held that the Departments could not
promulgate a regulation that restricts
access to asylum based on manner or
location of entry into the United States
or transit through a third country.
Commenters similarly asserted, citing
the Ninth Circuit’s decision in East Bay
III, that the proposed rule is not
‘‘consistent with’’ section 208(a)(1) of
the INA, 8 U.S.C. 1158(a)(1), and also
violates international law.
Response: The holdings relating to the
TCT Bar rules and the Proclamation Bar
IFR do not undermine this rule. As
discussed in Section IV.D.1.ii of this
preamble, this rule does not conflict
with the INA’s safe-third-country and
firm-resettlement bars. 88 FR at 11736;
see R–S–C, 869 F.3d at 1187 n.9. While
the applicability of the rebuttable
presumption of ineligibility turns in
part on transit through a third country,
8 CFR 208.33(a)(1)(iii), 1208(a)(1)(iii),
the ultimate eligibility decision requires
case-by-case evaluation of whether an
exception applies and whether the
noncitizen rebutted the presumption. 8
CFR 208.33(a)(2) and (3), 1208.33(a)(2)
and (3); cf. East Bay I, 994 F.3d at 982–
83 (indicating that the Departments
cannot rely ‘‘solely’’ on a noncitizen’s
decision not to seek asylum in a third
country in denying their asylum
application in the United States).
Regarding the Proclamation Bar, East
Bay III enjoined a categorical entry bar
as inconsistent with the statutory
provision allowing ‘‘migrants arriving
anywhere along the United States’s
border’’ to apply for asylum. 993 F.3d at
669. Unlike the Proclamation Bar IFR,
this rule involves a rebuttable
presumption that includes
consideration of numerous factors
unrelated to the manner of entry,
implemented on July 16, 2019. See American
Immigration Council, Your Rights Under Al Otro
Lado v. Mayorkas, https://
www.americanimmigrationcouncil.org/al-otro-ladomayorkas (last visited Apr. 21, 2023).
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including transit through a third
country. 88 FR at 11707; 8 CFR
208.33(a)(1)(iii), (2) and (3),
1208.33(a)(1)(iii), (2) and (3). And, as
discussed in Section IV.D.1.i of this
preamble, the rule is consistent with
INA section 208, 8 U.S.C. 1158. See 88
FR at 11707, 11740; 8 CFR 208.33(a)(2),
1208.33(a)(2) (providing for exceptions
to applicability of the rebuttable
presumption); 8 CFR 208.33(a)(3),
1208.33(a)(3) (providing ways to rebut
the presumption of ineligibility). The
provided lawful pathways, third
country transit components, exceptions
to the presumption, and the factintensive, case-by-case analysis for
rebutting the presumption demonstrate
that the condition imposed by this rule
is distinct from the ‘‘categorical ban’’
enjoined in East Bay III, 993 F.3d at
669–70. Notwithstanding this
distinction, the Departments reiterate
that they disagree with the holding in
East Bay III that the Proclamation Bar
IFR was inconsistent with section 208(a)
of the INA, 8 U.S.C. 1158(a). 88 FR at
11739; see E. Bay III, 993 F.3d at 670;
see also Section IV.D.1.i of this
preamble.
The rule also does not violate the
United States’ obligations under
international treaties. As discussed in
Section IV.D.3 of this preamble, the rule
is not a penalty based on manner of
entry and does not violate treaty
commitments regarding nonrefoulement. The Departments also
disagree with the decision in East Bay
III on this point as applied to the
Proclamation Bar IFR. 88 FR at 11739;
see East Bay III, 993 F.3d at 672–75. In
any event, East Bay III does not render
this rule unlawful. In East Bay III, the
Ninth Circuit determined that the
Proclamation Bar IFR ‘‘ensure[d]
neither’’ ‘‘the safety of those already in
the United States’’ nor ‘‘the safety of
refugees,’’ which were the purposes
behind the asylum bars in the INA and
in the Refugee Convention. 993 F.3d at
673. Conversely, as explained in the
NPRM, a purpose of this rule is to
reduce reliance on dangerous routes to
enter the United States used by criminal
organizations and smugglers, thus
protecting the safety of refugees. 88 FR
at 11707. Furthermore, one of the
enumerated categories for rebutting the
presumption in the rule is
demonstrating that the noncitizen faced
an imminent and extreme threat to life
or safety at the time of entry into the
United States. 8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). The Ninth Circuit’s
concerns are therefore not present in
this rule.
Comment: Relying on cases enjoining
the TCT Bar rules and the Proclamation
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Bar IFR, commenters asserted that the
proposed rule is invalid because the
condition in the proposed rule is
unrelated to the merits of the asylum
claim.
Response: The Departments disagree
that the cases involving the TCT Bar
rules demonstrate that this rule is
invalid. As discussed in Section IV.D.1.i
of this preamble, the INA provides the
Departments with the authority to
impose limitations or conditions on
asylum eligibility. INA 208(b)(2)(C),
(d)(5)(B), 8 U.S.C. 1158(b)(2)(C),
(d)(5)(B). But the statute neither
qualifies what types of limitations or
conditions may be imposed—except
insofar as such limitations or conditions
must be consistent with the INA—nor
states that any such limitations or
conditions must relate to whether the
noncitizen has demonstrated or can
demonstrate that they meet the
definition of a refugee under section
101(a)(42)(A) of the INA, 8 U.S.C.
1101(a)(42)(A). Indeed, several of the
statutory restrictions on asylum
eligibility are unrelated to whether the
noncitizen has established that they are
a refugee within the meaning of section
101(a)(42)(A) of the INA, 8 U.S.C.
1101(a)(42)(A). See, e.g., INA
208(b)(2)(A)(i), 8 U.S.C. 1158(b)(2)(A)(i)
(participating in the persecution of
others); INA 208(b)(2)(A)(iv), 8 U.S.C.
1158(b)(2)(A)(iv) (reasonable grounds
for considering the noncitizen a danger
to the security of the United States).
And section 208(b)(2)(C) of the INA, 8
U.S.C. 1158(b)(2)(C), provides for the
promulgation of ‘‘additional limitations
and conditions.’’ (emphasis added). The
existence of exceptions and conditions
that are unrelated to the refugee
definition both demonstrates that it is
lawful for the Departments to
promulgate this condition on asylum
eligibility and undermines the Ninth
Circuit’s limitation on scope of any
regulatory condition. E. Bay I, 994 F.3d
at 979. There is no basis to assume that
Congress intended to circumscribe the
scope of limitations or conditions that
the Departments can promulgate when
the statute does not do so and Congress
itself provided for exceptions unrelated
to the meaning of ‘‘refugee’’ in section
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A).
R–S–C, 869 F.3d at 1187 n.9 (rejecting
a statutory construction that would
circumscribe the type of limitations or
conditions promulgated under section
208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), because such restrictions
‘‘would render [section] 1158(b)(2)(C)
meaningless, disabling the Attorney
General from adopting further
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limitations while the statute clearly
empowers him to do so.’’).
In addition, the rule is not precluded
by either East Bay I or East Bay III.
Neither of these decisions require that a
condition on asylum eligibility relate to
the definition of refugee under section
101(a)(42)(A), 8 U.S.C. 1158(a)(42)(a).
Accordingly, the injunctions and
vacatur decisions relating to the TCT
Bar rules and the Proclamation Bar do
not render this rule unlawful.
3. International Law
Comment: Commenters expressed
concern that the NPRM, if finalized,
would violate the United States’ nonrefoulement obligations under
international law, including Article 33
of the Refugee Convention, which the
commenters generally explained as
prohibiting the return of asylum seekers
to a country where their lives or
freedom would be threatened on
account of a protected ground.
Specifically, commenters voiced
apprehension that the NPRM would
‘‘bar’’ most protection-seeking
noncitizens from being eligible for
asylum, leaving them able to apply only
for statutory withholding of removal or
CAT protection. Commenters predicted
that many noncitizens would not be
able to satisfy the comparatively higher
standards of proof for statutory
withholding and CAT claims and that,
in turn, would lead to the refoulement
of persons who, if not for the NPRM’s
‘‘bar’’ to asylum eligibility, would have
been granted asylum.
Applying similar reasoning, some
commenters raised that the proposed
rule may violate Article 3 of the CAT,
which prohibits state parties from
returning people to a country where
there is sufficient likelihood that they
would be tortured. One commenter
stated that conditioning asylum based
on manner of entry would be in
violation of the CAT.
Commenters also argued the rule
conflicted with other provisions of the
Refugee Convention and Protocol.
Commenters noted that Article 31 of the
Refugee Convention prohibits states
from imposing improper penalties for
irregular entry, which commenters
argued included administrative
penalties and limits on access to
asylum. Commenters also stated the
proposed rule would violate Article 3,
which prohibits non-discrimination,
and Article 16, which protects refugees’
access to the courts. One commenter
stated that the proposed rule is more
expansive than the Refugee
Convention’s exclusion for migrants
who secured residency or status in
another country.
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Relatedly, several commenters
pointed to United Nations High
Commissioner for Refugees (‘‘UNHCR’’)
statements and guidance interpreting
the Refugee Convention and the Refugee
Protocol. Specifically, commenters
pointed to UNHCR guidance
interpreting those documents as
providing that asylum seekers are not
required to apply for protection in the
first country where protection is
available. Further, commenters noted
that UNHCR interprets those documents
as not requiring refugees to be returned
to a country through which they
transited. Commenters further noted
UNHCR’s positions that asylum should
not be refused only on the basis that it
could have been sought in another
country and that asylum seekers should
not be required to seek protection in a
country to which they have no
established links. A commenter also
noted that UNHCR has repeatedly
denounced attempts to impose similar
bans, and that such rules undermine
international human rights and refugee
law, because the right to seek asylum is
a human right regardless of the person’s
origin, immigration status, or manner of
arrival at the border.
Several commenters also argued that
the rule violated the United States’
obligations under other international
documents. Some commenters simply
made a general assertion that the rule
would violate international treaties and
degrade the United States’ international
standing. Several commenters stated
that the proposed rule is contrary to the
Universal Declaration of Human Rights
(‘‘UDHR’’). Commenters argued that the
UDHR protects the right to seek asylum,
and that any restriction or limitation to
access asylum is a violation of the letter
and spirit of the UDHR. Other
commenters stated that the rule violated
the United Nations Convention on the
Rights of the Child (‘‘CRC’’) because it
did not provide for a robust,
individualized assessment of a child’s
asylum claim. One commenter stated
that the rule would place migrant
children and their families at a higher
risk of exploitation and trafficking, in
contravention of obligations pursuant to
the Optional Protocol on the Sale of
Children and the Protocol to Prevent,
Suppress and Punish Trafficking in
Persons, Especially Women and
Children (‘‘The Palermo Protocol’’).
Another commenter contended the rule
violates Article 7 of the International
Covenant on Civil and Political Rights
(‘‘ICCPR’’), which forbids subjecting
individuals to ‘‘torture or to cruel,
inhuman or degrading treatment or
punishment,’’ and violates Article 12,
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which confirms the rights of individuals
to leave any country. Several
commenters claimed that the rule would
violate anti-discrimination principles in
a variety of agreements and declarations
including the ICCPR, International
Convention on the Elimination of All
Forms of Racial Discrimination
(‘‘ICERD’’), the American Declaration on
the Rights and Duties of Man, Vienna
Declaration, and San Jose Action
Statement. Another commenter stated
the proposed rule violates the right to
life, human dignity, and equality before
the law in the ICCPR because the
proposed rule was ‘‘discriminatory’’ and
establishes ‘‘great inequality.’’
Commenters also claimed conflicts with
treaties including Article 6 of the Rome
Statute of International Criminal Court,
which prohibits genocide, and Article
32 of the Geneva Convention.
Response: This rule is consistent with
the United States’ obligations under
international law. Three primary
documents govern the rights of refugees
and corresponding obligations of states
in international law: the Refugee
Convention; the Refugee Protocol,
which incorporates Articles 2 through
34 of the Refugee Convention; and the
CAT. Together, these documents
provide a framework for states to
provide protection to migrants fleeing
persecution or torture and establish the
principle of non-refoulement, which
prohibits states from returning refugees
to territories in specific circumstances.
While the United States is a party to the
Refugee Protocol and the CAT, these
treaties are not directly enforceable in
U.S. law. See INS v. Stevic, 467 U.S.
407, 428 & n.22 (1984); Al-Fara v.
Gonzales, 404 F.3d 733, 743 (3d Cir.
2005) (‘‘The 1967 Protocol is not selfexecuting, nor does it confer any rights
beyond those granted by implementing
domestic legislation.’’). Instead, the
United States has implemented its
obligations through domestic legislation
and implementing regulations, and the
Protocol ‘‘serves only as a useful guide
in determining congressional intent in
enacting the Refugee Act.’’ Barapind v.
Reno, 225 F.3d 1100, 1107 (9th Cir.
2000). The Refugee Convention’s nonrefoulement obligation is contained in
Article 33.1, which prohibits
contracting states from returning a
refugee to a territory ‘‘where his life or
freedom would be threatened’’ on
account of an enumerated ground. The
United States has implemented the nonrefoulement provisions of Article 33.1 of
the Refugee Convention through the
withholding of removal provisions at
section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), rather than through the
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asylum provisions at section 208 of the
INA, 8 U.S.C. 1158. See CardozaFonseca, 480 U.S. at 429, 440–41. The
CAT’s non-refoulement provision is in
Article 3, which prohibits the return of
a person to a country where there are
‘‘substantial grounds for believing’’ the
person will be tortured. The United
States implemented its obligations
under the CAT through regulations. See
Foreign Affairs Reform and
Restructuring Act of 1998 (‘‘FARRA’’),
Public Law 105–277, sec. 2242(b), 112
Stat. 2681, 2631–822 (8 U.S.C. 1231
note); 8 CFR 208.16(c), 208.17, 208.18,
1208.16(c), 1208.17, 1208.18. The rule
does not change or limit eligibility for
statutory withholding of removal or
CAT protection. Instead, applicants
subject to the rule’s rebuttable
presumption will be screened for
eligibility for statutory withholding of
removal and CAT protection under a
reasonable possibility standard. As
explained earlier in Section IV.D.1.iii of
this preamble, the reasonable possibility
standard is the same standard that has
been used to ensure the United States
complies with its non-refoulement
obligations under international law in
withholding-only proceedings for
decades.
The rule’s rebuttable presumption
will limit asylum eligibility for some
noncitizens. But as the Supreme Court
has explained, asylum ‘‘does not
correspond to Article 33 of the
Convention, but instead corresponds to
Article 34,’’ which provides that
contracting countries ‘‘shall as far as
possible facilitate the assimilation and
naturalization of refugees.’’ CardozaFonseca, 480 U.S. at 441 (quotation
marks omitted). Article 34 ‘‘is precatory;
it does not require the implementing
authority actually to grant asylum to all
those who are eligible.’’ Id. Because
application of the presumption does not
affect eligibility for statutory
withholding of removal or protection
under the CAT regulations, the rule is
consistent with U.S. non-refoulement
obligations under the Refugee Protocol
(incorporating, inter alia, Article 33 of
the Refugee Convention) and the CAT.
See R–S–C, 869 F.3d at 1188 n.11
(explaining that ‘‘the Refugee
Convention’s non-refoulement
principle—which prohibits the
deportation of aliens to countries where
the alien will experience persecution—
is given full effect by the Attorney
General’s withholding-only rule’’);
Cazun v. U.S. Att’y Gen., 856 F.3d 249,
257 & n.16 (3d Cir. 2017); Ramirez-Mejia
v. Lynch, 813 F.3d 240, 241 (5th Cir.
2016).
The Departments agree that asylum is
an important protection in international
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law and acknowledge that the right to
seek asylum has been recognized under
the UDHR, Art. 14, G.A. Res. 217A (III),
U.N. Doc. A/810 (1948). The UDHR is a
non-binding human rights resolution of
the UN General Assembly, and thus it
does not impose legal obligations on the
United States. See Sosa v. AlvarezMachain, 542 U.S. 692, 734–35 (2004)
(‘‘[T]he [UDHR] does not of its own
force impose obligations as a matter of
international law.’’). Instead, the right
enshrined in the UDHR—‘‘to seek and to
enjoy in other countries asylum from
persecution,’’ UDHR, Art. 14, G.A. Res.
217A (III), U.N. Doc. A/810 (1948)—is
also reflected in the non-refoulement
provisions of the Refugee Protocol and
the CAT. As previously explained, the
rule does not impact eligibility for
statutory withholding of removal or
CAT protection, and accordingly does
not implicate the United States’ nonrefoulement obligations. Moreover, the
rebuttable presumption in the rule does
not prohibit any person from seeking
asylum, statutory withholding of
removal, or CAT protection. Instead, the
rule creates a condition on eligibility for
asylum by creating a rebuttable
presumption of ineligibility for those
who neither avail themselves of a lawful
pathway to the United States nor apply
for asylum or seek other protection, and
await a decision thereon, in a country
they travel through. The rule similarly
does not bar those seeking asylum from
procedures that protect them from
refoulement. All noncitizens processed
for expedited removal who express a
fear of return are entitled to a credible
fear interview. As with any eligibility
criteria, the presumption will apply in
some cases to limit eligibility for
noncitizens based on the individual
circumstances presented, including at
the credible fear stage. Even in those
cases where the AO determines that the
noncitizen cannot demonstrate a
significant possibility of being granted
asylum because the presumption has
not been rebutted, the noncitizen may
still demonstrate credible fear by
showing a reasonable possibility of
persecution or torture. Similarly, after
applying for asylum before an IJ, if the
presumption has not been rebutted,
noncitizens may still demonstrate
eligibility for statutory withholding of
removal or CAT protection.
The rule is also consistent with the
Refugee Convention and the
corresponding obligations under
international law, including specific
provisions cited by commenters. The
rule does not violate the nondiscrimination requirement in Article 3
of the Refugee Convention. Article 3
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31385
prohibits discrimination on the basis of
‘‘race, religion or country of origin.’’ The
rule does not discriminate on the basis
of any of these protected characteristics.
Instead, it is a rule of equal application
based on the actions of the noncitizen.
The application of the rule is limited to
those circumstances where the
noncitizen who is not excepted from its
coverage has neither utilized an
available lawful pathway nor sought
protection and received a decision
denying protection in a country traveled
through, and cannot demonstrate that
the failure to do was excusable under
the rule or otherwise rebut the
presumptive ineligibility. For the same
reason, the rule does not violate other
anti-discrimination requirements in
international law, including the ICERD,
Dec. 21, 1965, 660 U.N.T.S. 195, 212,
and the ICCPR, Dec. 16, 1966, 999
U.N.T.S. 171.
Neither is the rule inconsistent with
Article 16 of the Refugee Convention.
Article 16 establishes that refugees
should be given ‘‘free access to the
courts,’’ and in the country of a
refugee’s habitual residence, access
should be equivalent to that of a
national. This enshrines the right of the
refugee to sue and be sued in practice—
not merely in name—by removing
barriers to participating in court such as
access to government-provided counsel
(where the government otherwise
provides it), ensuring court fees are not
higher for refugees than nationals, and
prohibiting cautio judicatum solvi, the
practice of requiring a bond for the costs
of litigation as a pre-requisite to filing a
complaint. See Refugee Convention, Art.
16, Travaux Pre´paratoires &
Commentaries. These rights are not
implicated by the rule.
Similarly, the rule is not inconsistent
with Article 31 of the Refugee
Convention, which prohibits states from
‘‘impos[ing] penalties’’ on refugees
based on ‘‘illegal entry or presence.’’ As
the commentary to the Refugee
Convention explains, the term
‘‘penalties’’ in Article 31 refers ‘‘to
administrative or judicial convictions
on account of illegal entry or presence,
not to expulsion.’’ Refugee Convention
Art. 31, commentary; see Cazun v. Att’y
Gen. U.S., 856 F.3d 249, 257 & n.16 (3d
Cir. 2017) (rejecting argument that the
reinstatement bar to asylum was a
‘‘penalty’’ within the meaning of Article
31). The rule does not change any rules
or policies relating to detention or
convictions for unlawful entry or
presence. The Departments
acknowledge that the Ninth Circuit
concluded in East Bay III, 993 F.3d at
674, that the bar to asylum at issue in
that case violated Article 31 of the
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Refugee Convention because it imposed
a ‘‘penalty.’’ As described in the NPRM,
the rule here does not create a
categorical bar to asylum, but instead a
rebuttable presumption, and East Bay III
accordingly does not address the
lawfulness of this rule. 88 FR at 11739.
Moreover, the Ninth Circuit’s
conclusion was erroneous because the
denial of discretionary relief is not a
penalty within the meaning of Article
31. Id.
Some commenters correctly observed
that the Refugee Convention does not
require refugees to apply for asylum in
the first country they pass through. This
rule, however, does not require
noncitizens to apply for asylum in the
first—or any—country through which
they travel. Instead, the rule applies a
rebuttable presumption to certain
noncitizens who failed to avail
themselves of a lawful pathway. One
such pathway is to apply for asylum and
receive a final denial in a transit
country, but it is not the sole lawful
pathway available. Noncitizens who fail
to avail themselves of a lawful pathway
may still rebut the presumption of
ineligibility for asylum. Regardless, the
Convention does not require the United
States to grant asylum to every person
who qualifies as a ‘‘refugee’’ under the
INA; instead, the United States
implements the Convention’s
prohibitions on refoulement through
statutory withholding of removal.
UNHCR has stated that ‘‘the primary
responsibility to provide protection
rests with the State where asylum is
sought.’’ 200 But UNHCR also
acknowledges that ‘‘refugees do not
have an unfettered right to choose their
‘asylum country.’ ’’ 201
In any event, UNHCR’s interpretations
of or recommendations regarding the
Refugee Convention and Refugee
Protocol are ‘‘not binding on the
Attorney General, the BIA, or United
States courts.’’ INS v. Aguirre-Aguirre,
526 U.S. 415, 427 (1999). ‘‘Indeed,
[UNHCR’s Handbook on Procedures and
Criteria for Determining Refugee Status]
itself disclaims such force, explaining
that ‘the determination of refugee status
under the 1951 Convention and the
1967 Protocol . . . is incumbent upon
the Contracting State in whose territory
the refugee finds himself.’ ’’ Id. at 427–
200 UNHCR, Guidance Note on bilateral and/or
multilateral transfer arrangements of asylumseekers, para. 3(i) (May 2013), https://
www.refworld.org/docid/51af82794.html.
201 UNHCR, Legal Considerations Regarding
Access to Protection and a Connection Between the
Refugee and the Third Country in the Context of
Return or Transfer to Safe Third Countries, at 1
(Apr. 2018), https://www.refworld.org/pdfid/
5acb33ad4.pdf.
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28 (quoting Cardoza-Fonseca, 480 U.S.
at 439 n. 22). Such guidance ‘‘may be a
useful interpretative aid,’’ id. at 427, but
it does not create obligations for the
United States.
The rule similarly does not violate the
United States’ obligations under other
international laws and treaties,
including the Geneva Conventions, the
Rome Statute, the ICCPR, the CRC, or
customary international law. First, the
Geneva Conventions, a series of treaties
that regulate the conduct of armed
conflict, have no bearing on the rule.
Commenters pointed to Articles 32 and
33 of the Fourth Geneva Convention,
which prohibit corporal punishment or
mass punishment against protected
persons. Geneva Convention Relative to
the Protection of Civilian Persons in
Time of War (‘‘Fourth Geneva
Convention’’), 12 Aug. 1949, 75 UNTS
287. Under Article 4, ‘‘protected
persons’’ are limited to those who,
during a conflict or occupation, are ‘‘in
the hands of a Party to the conflict or
Occupying Power.’’ As the rule does not
implicate a conflict or occupation, there
is no conflict with the Geneva
Conventions. While at least one
commenter pointed to the definition of
genocide in Article 6 of the Rome
Statute, the United States is not a party
to and has no obligations pursuant to
the Rome Statute. In any event, the rule
plainly does not constitute or involve
genocide in any way. See Rome Statute
of the International Criminal Court,
United Nations Diplomatic Conference
of Plenipotentiaries on the
Establishment of an International
Criminal Court, July 17, 1998, U.N. Doc.
A/CONF.183/9 (1998). Similarly, the
United States has not ratified the CRC
and thus has no obligations under that
instrument, 1577 U.N.T.S. 3, reprinted
in 28 I.L.M. 1448, 1456 (Nov. 20,
1989).202 Again, even if considered
customary international law—although
the United States maintains that it is
not—the CRC requires only that States
take appropriate measures to protect
children who are refugees. See CRC,
Article 22. The rule accounts for the
interests of children through creating
robust screening procedures, exempting
unaccompanied children from the
application of the rule, having a family
unity exception, and exempting certain
noncitizens who enter as children from
ongoing application of the presumption
after the two-year period. Additionally,
the adjudicator may consider on a caseby-case basis whether the child’s
situation presents exceptionally
202 See Status of Ratification, Office of the High
Commissioner for Human Rights, https://indicators.
ohchr.org/.
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compelling circumstances, including
considering the circumstances
surrounding the child’s manner of entry,
thus rebutting the presumption.
4. Recent Executive Orders
Comment: Some commenters stated
without explanation that the rule is
contrary to 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). Other commenters stated that to
restore faith in the U.S. asylum system
as the Executive Order aims to do, the
‘‘government’’ should take various
steps, including ‘‘adequately fund[ing] a
fair asylum system’’ rather than ‘‘wast[e]
money on immigration enforcement that
separates families, traumatizes children,
and tears our communities apart.’’
Commenters further stated that the
Administration should end the use of
expedited removal, increase the scale
and pace of refugee admissions, and
expand lawful pathways for people
‘‘fleeing from countries with failed
government and uncontrolled violence.’’
On the other hand, some commenters
were critical of the rule because they
believed it was not strict enough and,
accordingly, averred that the rule is
consistent with the Executive Order
because it will ‘‘remov[e] barriers to
immigration.’’
Response: As a threshold matter,
Executive Order 14012 does not require
DOJ or DHS to adopt any specific
policies but rather to (1) identify
barriers that impede access to
immigration benefits and fair, efficient
adjudications of these benefits and make
recommendations on how to remove
these barriers; (2) identify any agency
actions that fail to promote access to the
legal immigration system and
recommend steps, as appropriate and
consistent with applicable law, to revise
or rescind those agency actions; (3)
submit a plan describing the steps they
will take to advance these policies; and
(4) submit reports regarding
implementation of those plans. 86 FR
8277. Because Executive Order 14012
does not require the adoption of specific
policies, the actions taken here do not
violate that Executive Order.
To the extent commenters believe that
the rule is inconsistent with Executive
Order 14012, the Departments disagree.
Consistent with Executive Order
14012’s promotion of removing barriers
to accessing immigration benefits and
access to the legal immigration system,
DHS has created multiple parole
processes to provide certain migrants
with pathways to temporarily enter and
remain in the United States. During
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those periods of stay, those noncitizens
may seek asylum and related protection
or other benefits for which they may be
eligible. The rule furthers the policy
discussed in the Executive Order by
encouraging noncitizens to use those
parole processes, as well as the CBP One
app to enter the United States through
a safe, orderly process. This rule also
discourages unlawful border crossings
that overwhelm limited government
resources along the SWB. The
Departments believe that there will be
efficiency gains from having noncitizens
pre-register for appointments—saving
considerable processing time—and from
decreased encounters between POEs
with persons who claim a fear of
persecution or torture, the processing of
whom requires more resources than
processing noncitizens who pursue a
lawful pathway. It is correct that
implementing the rule will increase the
duration of some credible fear
screenings. However, the Departments
expect that fewer individuals with nonmeritorious claims will receive positive
screening determinations, which will
result in a more efficient asylum system
overall.
The Departments acknowledge
commenters’ recommendations to
provide additional funding for the
asylum system and end expedited
removal. Both of those actions are
outside the Departments’ authority and
would require congressional action.
Ending the use of expedited removal in
the absence of congressional action is
outside the scope of this rulemaking.
The Departments have considered
commenters’ recommendation of adding
lawful pathways for people leaving
countries with failed governments. This
rule does not create any lawful
pathways and thus the comment is
outside the scope of this rulemaking.
Comment: Commenters expressed
concern that the rule is inconsistent
with Executive Order 14010, 86 FR
8267, because they believe it contradicts
the instruction to develop policies and
procedures for the safe and orderly
processing of asylum claims at the U.S.
land borders. Commenters stated that
rather than developing policies for the
safe and orderly processing of asylum
claims, the rule instead would restrict
the availability of asylum in a way that
would make it impossible for most
asylum seekers to access the asylum
system. Commenters further asserted
that rather than restoring faith in the
U.S. asylum system, the rule attempts to
‘‘deport refugees to danger based on
manner of entry and transit in
circumvention of existing refugee law
and treaty obligations.’’ Commenters
also suggested that the rule resurrects
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the PACR and HARP programs that the
Executive Order ended.
Commenters also criticized the
Departments for not following ‘‘the
collaborative process called for in’’ the
Executive Order. Specifically,
commenters stated that Departments
have failed to ‘‘follow Executive Order
14010’s mandate to consult with
affected organizations’’ as they are
unaware of any ‘‘consultation or
planning’’ that has occurred between
when the Executive Order was issued
and the publication of the NPRM.
Response: The Departments disagree
with these commenters because the rule,
as directed by Executive Order 14010,
encourages use of lawful pathways to
enter the United States, which will
foster safe, orderly, and more efficient
processing of asylum claims for those
individuals seeking asylum, while
discouraging unlawful border crossings
that overwhelm limited resources and
unfairly delay the adjudication of
meritorious claims for asylum and other
forms of protection. The rule is designed
to incentivize noncitizens to avail
themselves of a lawful pathway to enter
the United States, which allows for
more efficient use of DHS resources. By
incentivizing the pursuit of lawful
pathways, the Departments are
promoting safe and orderly processing
along the SWB as Executive Order
14010 instructs—processing that seeks
to minimize the role of criminal
organizations that prioritize profits over
migrants’ lives.
The Departments disagree with
commenters that the rule resurrects
PACR and HARP. Those programs were
developed by DHS to promptly address
credible fear claims of single adults and
family units while the noncitizens
remained in CBP custody.203 This rule,
in contrast, does not change the timeline
for credible fear screenings. Nor does it
affect where noncitizens are located
during such screenings. Thus,
commenters’ comparisons to PACR and
HARP are misplaced.
Commenters are similarly mistaken
regarding DHS’s responsibilities under
the Executive Order. Commenters are
correct that the Executive Order
instructed the Secretary and Director of
the CDC, ‘‘in coordination with the
Secretary of State, . . . [to] 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
203 See Mem. of Law in Opp’n to Pls.’s Mot. for
Summ. J. & in Supp. of Defs.’ Cross-Mot. for Summ.
J. at 8–11, Las Ams. Immigrant Advoc. Ctr. v. Wolf,
No. 19-cv-3640 (D.D.C. Feb. 6, 2020).
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States land borders, consistent with
public health and safety and capacity
constraints.’’ 86 FR at 8269. DHS has
worked with NGOs to implement the
exceptions to the Title 42 public health
Order and continues to seek
collaboration through seeking comment
on this rule.
Comment: Some commenters stated
that the rule violates Executive Order
14011, Establishment of Interagency
Task Force on the Reunification of
Families, 86 FR 8273 (Feb. 2, 2021), and
amounts to the legalization of family
separation, in contravention of that
Executive Order.
Response: In Executive Order 14011,
President Biden announced the creation
of a task force to identify children who
were separated from their families
between January 20, 2017, and January
20, 2021, and, among other things, to
the greatest extent possible, facilitate
and enable the reunification of those
children with their families. 86 FR at
8273. In doing so, President Biden
stated that his Administration ‘‘will
protect family unity and ensure that
children entering the United States are
not separated from their families, except
in the most extreme circumstances
where a separation is clearly necessary
for the safety and well-being of the child
or is required by law.’’ Id. The rule is
consistent with this policy statement.
The rule includes multiple provisions
aimed at ensuring that families who
enter the United States from Mexico at
the SWB or adjacent coastal borders are
not inadvertently separated. For
example, where an exception or rebuttal
circumstance applies to one member of
a family, it is applied to all members of
the family. See 8 CFR 208.33(a)(2)(ii),
(3)(i), 1208.33(a)(2)(ii), (3)(i). And where
asylum is denied to a noncitizen
because of the presumption of
ineligibility but one member of the
noncitizen’s family who traveled with
the noncitizen obtains protection from
removal through statutory withholding
of removal or CAT, the circumstance
will be deemed exceptionally
compelling for the noncitizen denied
such relief, allowing the family to
remain together. See 8 CFR 1208.33(c).
Finally, as described in Section IV.E.7.ii
of this preamble, the Departments have
expanded the family unity provision to
cover spouses and children who would
be eligible to follow to join the applicant
if that applicant were granted asylum, as
described in section 208(b)(3)(A) of the
INA, 8 U.S.C. 1158(b)(3)(A). 8 CFR
1208.33(c). Such measures were
adopted in accordance with Executive
Order 14011 to ensure that family units
will not be separated as a result of this
rule.
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Comment: Commenters stated that the
Departments should take into account
Executive Order 13985, Advancing
Racial Equity and Support for
Underserved Communities Through the
Federal Government, 86 FR 7009 (Jan.
20, 2021), and the more recent
Executive Order 14091, Further
Advancing Racial Equity and Support
for Underserved Communities Through
the Federal Government, 88 FR 10825
(Feb. 16, 2023), and stated that the
agencies have not considered these
underserved populations and that this
rule is evidence that these Executive
Orders were not considered in the rulemaking process. Commenters more
broadly criticized the rule as ‘‘betraying
promises’’ made in the Executive Orders
because they believe the rule will have
a disproportionate effect on certain
groups of noncitizens and argued that
the rule is generally out of line with the
Executive Orders. Commenters also
suggested that ‘‘[o]verly relying on the
[CBP One] app . . . will significantly
thwart the Biden administration’s stated
commitment to racial justice and
equity.’’ Commenters further stated that
the rule undermines the commitment in
the Executive Orders and ‘‘will
endanger Black, Brown, and Indigenous
asylum seekers.’’ Commenters asserted
that the rule ‘‘will perpetuate systemic
and institutional racism and injustice,’’
noting concerns about the accessibility
of the CBP One app for those who speak
languages other than English, Spanish,
and Haitian Creole; ‘‘the app’s widely
reported misidentification of people of
color’’; the exacerbation of ‘‘existing
discrepancies in outcome[s] for
individuals without legal
representation’’; and the ‘‘further
solidif[ication of] inequities and
injustice in our immigration system.’’
Response: On President Biden’s first
day in office, January 20, 2021, he
issued Executive Order 13985. On
February 16, 2023, he issued Executive
Order 14091, which reiterated the
policy goals detailed in Executive Order
13985 and discussed the ways in which
those policy goals had been furthered
since that Executive Order. Both
Executive Orders describe President
Biden’s policy of ‘‘advancing equity for
all, including communities that have
long been underserved, and addressing
systemic racism in our Nation’s policies
and programs.’’ 88 FR at 10825. As
discussed throughout this preamble, the
Departments have designed the rule to
include a tailored rebuttable
presumption in order to address a
specific problem along the SWB. As
discussed in Section IV.B.4.vi of this
preamble, the Departments do not have
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any discriminatory purpose in adopting
the rule. The Departments have
addressed concerns about the disparate
impact of the rule on various
communities in Section IV.B.4 of this
preamble, the concerns relating to the
CBP One app’s liveness software are
addressed in Section IV.E.3.ii of this
preamble, and concerns about pro se
individuals are discussed in Section
IV.B.5.ii of this preamble. Finally, as
discussed in Section IV.E.3 of this
preamble, the rule provides an
exception to the application of the
rebuttable presumption for those who
appear at a POE without a prescheduled appointment and for whom
scheduling an appointment was
impossible due to a language barrier.
See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B).
5. Other Comments on Legal Authority
Comment: One commenter noted that
the proposed rule ‘‘is not a legislative
act’’ and is instead subject to the
Administrative Procedure Act, but ‘‘the
persons to whom the rule applies are
excluded from appearing within the
USA to challenge the administrative
requirement for exhaustion of
remedies.’’
Response: The Departments agree that
this rule is not a legislative act but
instead the promulgation of agency
regulations pursuant to the APA. The
Departments disagree that the rule
implicates or changes the exhaustion
requirements in administrative law. The
Departments note that the rule does not
apply to noncitizens in other countries;
the rule only applies to noncitizens who
enter the United States and thereafter
file applications for asylum. Put
differently, it will only apply to
noncitizens within the United States,
who are not precluded from filing an
APA challenge by virtue of being
outside of the United States, but who
may be limited in the types of
challenges they can bring to its
application during the credible fear
process under section 242(e) of the INA,
8 U.S.C. 1252(e). The Departments
further note that noncitizens who avail
themselves of a lawful pathway to enter
the United States will not otherwise
need to address the provisions of this
rule, as any subsequently filed asylum
application will not be subject to the
rebuttable presumption. Any noncitizen
subject to the rebuttable presumption
will be able to address its application to
them and any applicable exceptions or
rebuttal grounds before an AO or IJ, and
in any available administrative appeal.
Thus, the commenter’s concern about
being able to bring an APA challenge
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from a foreign jurisdiction are
unfounded.
Comment: Commenters stated that
litigation over and injunctions against
the rule would only exacerbate the
confusion at the SWB.
Response: As explained previously in
Section IV.D of this preamble, the
Departments believe this rule is lawful
and that it should not be subject to an
injunction or otherwise halted in
litigation. To the extent it is possible
that the rule will be halted or enjoined,
the Departments believe the risks are
outweighed by the need to ensure safe
and orderly processing at the SWB.
Comment: Commenters stated that the
proposed rule was silent as to
retroactive applicability and urged the
Departments to ‘‘make an affirmative
pronouncement’’ that the rule will not
apply retroactively. Commenters were
specifically concerned about the rule
applying to ‘‘anyone whose latest entry
into the United States was prior to the
effective date(s) of the rule,’’ which
commenters stated is required by
section 551(4) of the APA, 5 U.S.C.
551(4). Commenters further raised
concerns that application of the rule to
those who enter before its effective date
would ‘‘infringe upon due process
rights.’’
Response: As written, the rule will
not apply to anyone who enters the
United States before the rule is effective.
The Departments believe the NPRM’s
proposed language and the final
language in this rule clearly provide that
the rebuttable presumption may only be
applied to those who enter the United
States between the rule’s effective date
and a date 24 months later. See 8 CFR
208.13(f), 208.33(a)(1)(i), 1208.13(f),
1208.33(a)(1)(i). The Departments
decline to address the applicability or
requirements of due process or the APA
in this regard because the rule is explicit
that it is only potentially triggered by
entries that take place after its effective
date.
Comment: A commenter argued that
the proposal fails to account for
‘‘refugees’’’ reliance interests. The
commenter wrote that refugees have an
interest and right against refoulement
and in the United States upholding
domestic and international refugee law
generally. The commenter argued that
the Departments only have
‘‘circumscribed’’ discretion in
administering asylum, citing INA 208,
8 U.S.C. 1158, and case law on
establishing refugee status, and thus that
refugees have a cognizable reliance
interest in asylum.
Response: As described earlier in
Section IV.D.3 of this preamble, the
United States implements its non-
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refoulement obligations through
statutory withholding of removal, not
asylum. Thus, it is incorrect to suggest
that the non-refoulement obligations can
raise a reliance interest in asylum.
Additionally, asylum is a discretionary
form of relief to which no applicant is
entitled. See INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A) (‘‘The Secretary of
Homeland Security or the Attorney
General may grant asylum . . . .’’).
Although ‘‘longstanding policies may
have ‘engendered serious reliance
interests that must be taken into
account,’’’ Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 222 (2016)
(quoting Fox Television, 556 U.S. at
515), the commenter does not explain in
what way noncitizens who are outside
the United States have relied upon U.S.
asylum law. To the extent noncitizens
outside the United States have any
cognizable reliance interests in the
current rules governing asylum, the
Departments believe those interests
would be outweighed by the interest in
incentivizing noncitizens to pursue safe,
orderly, and lawful pathways to seek
protection, and preventing a potential
surge of migration at the southern
border that threatens to overwhelm the
Departments’ ability to process asylum
claims in a safe and orderly manner.
Comment: Commenters stated that the
rule would violate the Pangea
injunction. See Pangea Legal Servs. v.
DHS, 512 F. Supp. 3d 966 (N.D. Cal.
2021).
Response: The court’s order
preliminarily enjoining the
implementation of Procedures for
Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11,
2020) (‘‘Global Asylum Rule’’) and
related policies in Pangea II, 512 F.
Supp. 3d 966, does not prohibit the
Departments from issuing this rule or
otherwise limit the Departments’
discretionary authority to adopt new
asylum limitations consistent with
section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C). See, e.g., Milliken v.
Bradley, 433 U.S. 267, 281–82 (1974)
(‘‘The well-settled principle that the
nature and scope of the remedy are to
be determined by the violation means
simply that federal-court decrees must
directly address and relate to the
[alleged wrongful conduct] itself.’’);
Meinhold v. U.S. Dep’t of Def., 34 F.3d
1469, 1480 (9th Cir. 1994); see also
Thomas v. Cty. of Los Angeles, 978 F.2d
504, 509 (9th Cir. 1992) (reversing
injunction that ‘‘fail[ed] to specify the
act or acts sought to be restrained as
required by’’ Federal Rule of Civil
Procedure 65(d)).
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E. Comments on the Rule Provisions
1. General Feedback on the Rebuttable
Presumption of Ineligibility
Comment: Commenters expressed
concern that the requirements to
overcome the presumption would
deprive asylum seekers of a meaningful
opportunity to seek protection, subject
them to removal if they could not meet
the elevated standard for statutory
withholding of removal, and put them at
risk of violence or other harmful
conditions. Commenters said that the
proposed rule would require
noncitizens to gather evidence and
present arguments to rebut the
presumption against asylum eligibility,
establish an exception, or prove that
they are not subject to the rule. Some
said it would be difficult or impossible
for noncitizens arriving at the SWB to
do so, given that most are detained
during credible fear proceedings; that
they may lack access to supporting
documentation; that CBP officers may
confiscate their property; and that the
determination is made in a single
interview. Therefore, commenters
stated, the rule would categorically
deny relief, bar asylum, or result in
‘‘automatic ineligibility’’ for most or all
noncitizens who would be subject to it.
Commenters stated that noncitizens
would be at the mercy of the AOs’
credibility assessment and discretion.
Some commenters said there was no
indication that AOs would have to elicit
relevant testimony and suggested this
requirement should be included in the
rule. One commenter wrote that
individuals who have previously
experienced any of the per se
exemptions for rebuttal may still be
experiencing long-lasting effects that
limit their ability to rebut the
presumption in the present. A
commenter stated that children and
families would be unable to rebut the
presumption due to limited language
access, absence of legal counsel, and
having their belongings confiscated.
Some commenters said that the
grounds for rebutting the presumption
against asylum eligibility were too
narrow, limited, or extreme and did not
relate to the merits of an asylum claim;
they recommended that the grounds be
expanded. One commenter stated that
the current examples of exceptionally
compelling circumstances would not
protect the vast majority of refugees who
would qualify for asylum under U.S.
law, including many who enter the
United States without an appointment
due to safety risks, medical issues, and
other protection needs. Some stated that
narrow terms like ‘‘exceptionally
compelling,’’ ‘‘imminent and extreme,’’
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and ‘‘severe’’ made the presumption too
difficult to rebut, while others expressed
concern about the perceived vagueness
of these terms and said the rule
provided inadequate guidance on them.
One commenter wrote that the nature of
the grounds and exceptions make them
inherently difficult to corroborate with
physical evidence. One commenter
expressed concerns that the proposed
means of rebuttal do not reference a
subjective component, such as where
the asylum seeker believed they faced
an acute medical emergency or
imminent and extreme threat. A legal
services provider compared the
proposed rule to the one-year deadline
to apply for asylum and stated that the
one-year deadline allows for even
greater opportunities for rebuttal by
allowing an individual to show a
number of exceptional circumstances
beyond those in the NPRM. Some
commenters expressed concern about
possible lack of clarity in the
evidentiary requirements to rebut the
presumption against asylum eligibility.
Some stated that the lack of definitions
and documentary evidence
requirements in the NPRM would leave
the adjudicator with an inordinate
amount of discretion to decide whether
the presumption had been rebutted.
Some commenters urged the
Departments to reverse the presumption
or apply a rebuttable presumption of
eligibility for torture survivors.
Response: The Departments
acknowledge these concerns but
disagree with them. As discussed
throughout Section IV.B.5 of this
preamble, AOs conducting credible fear
interviews have an affirmative duty to
elicit all testimony relevant to assessing
eligibility for protection, which will
necessarily include testimony relevant
to the rebuttable presumption.204
Similarly, credible fear review by an IJ
‘‘include[s] an opportunity for the alien
to be heard and questioned by the [IJ].’’
INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). In section 240
proceedings, IJs have a duty to develop
the record, which again will necessarily
include facts and testimony relevant to
the rebuttable presumption. 8 CFR
1003.10(b) (‘‘[IJs] shall administer oaths,
receive evidence, and interrogate,
examine, and cross-examine aliens and
any witnesses.’’); Quintero v. Garland,
998 F.3d 612, 626 (4th Cir. 2021). A
noncitizen may be able to satisfy their
burden of proof through credible
testimony alone, INA 208(b)(1)(B)(ii), 8
204 USCIS, Eliciting Testimony; USCIS, NonAdversarial Interview 13 (‘‘You control the
direction, pace, and tone of the interview and have
a duty to elicit all relevant testimony.’’).
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U.S.C. 1158(b)(1)(B)(ii), and the rule
does not require any particular
evidence, including documentary
evidence, to rebut or establish an
exception to the presumption under 8
CFR 208.33(a) and 1208.33(a).
The Departments believe that the
exceptions to and means of rebutting the
presumption are appropriate in scope
and detail and that they need not be
expanded by, for example, incorporating
means of rebuttal similar to the
exceptions to the one-year deadline for
applying for asylum. To the extent that,
at the time of entry, a noncitizen
reasonably believed that they faced an
acute medical emergency or imminent
and extreme threat to life or safety, the
rule permits adjudicators to consider
whether this situation may constitute an
‘‘exceptionally compelling
circumstance[.]’’ 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). As to concerns about
disparate application amongst AOs, all
credible fear determinations undergo
supervisory review to ensure
consistency, 8 CFR 208.30(e)(8), and
noncitizens can request IJ review of a
negative determination, 8 CFR
208.33(b), 1208.33(b). Determinations
made by IJs in section 240 proceedings,
including determinations about the
presumption, are subject to review by
the BIA. See 8 CFR 1003.1(b).
Comments regarding AO and IJ conduct
and training are further addressed in
Section IV.B.5.iii of this preamble. The
Departments decline to ‘‘reverse’’ the
presumption of ineligibility for certain
cases, which would function as an
additional exception to the rule and
undermine the rule’s goal of
incentivizing migrants, including those
intending to seek asylum, to use lawful,
safe, and orderly pathways to enter the
United States or seek asylum or other
protection in another country through
which they travel. However, even if
ineligible for asylum due to the
presumption against asylum eligibility,
noncitizens who establish a reasonable
possibility of persecution or torture, 8
CFR 208.33(b)(2)(i), 1208.33(b)(2)(ii),
remain eligible to apply for statutory
withholding of removal and protection
under the CAT. 8 CFR 208.16.
Comment: Commenters expressed
opposition to the proposed requirement
that noncitizens satisfy the
preponderance of the evidence standard
to rebut the presumption of ineligibility.
Commenters stated that using the
preponderance of the evidence standard
violates section 235(b)(1)(B)(v) of the
INA, 8 U.S.C. 1225(b)(1)(B)(v), by
imposing a different, higher standard
than the ‘‘significant possibility’’
standard. Citing a 1996 statement from
U.S. Senator Orrin Hatch, one
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commenter stated that the application of
the ‘‘preponderance of the evidence’’
standard during the credible fear stage
was considered and rejected by
Congress and that the Departments lack
the authority to resurrect and
implement that standard through
regulation. Some commenters
emphasized that the ‘‘significant
possibility’’ standard is an intentionally
low screening standard for credible fear
interviews established by Congress.
Some commenters stated that the
‘‘preponderance of the evidence’’
standard is even higher than the
‘‘reasonable possibility’’ standard to
show a well-founded fear, which in turn
is higher than the ‘‘significant
possibility’’ standard. Some commenters
stated that the ‘‘preponderance of the
evidence’’ standard imposes too high a
burden on noncitizens in credible fear
proceedings. Commenters said it would
be particularly difficult for detained,
unrepresented individuals to satisfy this
burden or that the rule would be hardest
on disadvantaged noncitizens. One
commenter recommended that this
heightened standard of proof not be
implemented and that the existing
standard of proof be revised for
consistency with international norms to
exclude only cases that are ‘‘manifestly
unfounded or clearly abusive.’’
Response: Commenters’ concerns are
based on an incorrect premise. At the
credible fear stage, AOs will apply the
‘‘significant possibility’’ standard in
assessing whether a noncitizen may
ultimately rebut the presumption of
asylum ineligibility by a preponderance
of the evidence during a full merits
adjudication. Because the ‘‘significant
possibility’’ standard is set by statute,
see INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), the Departments lack
the authority to alter it through
rulemaking. For further discussion of
this issue, see Section IV.D.1.iii of this
preamble.
Comment: Commenters stated that
applying the rule’s presumption of
ineligibility at the credible fear stage is
different from how other eligibility bars
function in credible fear determinations.
Some commenters stated that the
complex means of rebuttal would
require a lengthy, fact-based interview
and ‘‘intensive factual analysis,’’ which
they claimed are not appropriate for
credible fear interviews because those
interviews offer insufficient procedural
protections. Another commenter stated
that the Departments recently
recognized due process problems with
this approach when they rescinded the
requirement that certain mandatory bars
to asylum be considered at the credible
fear screening stage.
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One commenter expressed concern
with the perceived discretion of border
officials during the proposed rebuttable
presumption process, asserting that the
NPRM gave no clear indication of how,
when, or in front of whom the asylum
seeker will have to present their
evidence. One commenter stated that
DHS has a poor track record of making
similar determinations in the past,
citing instances where noncitizens were
erroneously enrolled in the MPP, and
stated that DHS has historically failed to
effectively screen asylum seekers for
certain characteristics and processes.
One commenter stated that, under the
NPRM, AOs would determine whether
individuals presented at the SWB
without documents sufficient for lawful
admission pursuant to section 212(a)(7)
of the INA, 8 U.S.C. 1182(a)(7), but that
AOs do not receive the same training as
CBP officers regarding that section.
Response: The Departments
acknowledge that statutory bars to
asylum eligibility have not historically
applied at the credible fear stage.
However, the Departments have
authority to apply conditions on asylum
eligibility at that stage. The INA
authorizes AOs to assess whether there
is a significant possibility that the
noncitizen could establish eligibility for
asylum, INA 235(b)(1)(v), 8 U.S.C.
1225(b)(1)(v), which may include
additional eligibility conditions that the
Departments establish by regulation, see
88 FR at 11742. Moreover, the
Departments believe that the rebuttable
presumption of ineligibility under this
rule is less complex than the mandatory
bars provided in section 208(b)(2)(A) of
the INA, 8 U.S.C. 1158(b)(2)(A) (barring
from asylum eligibility noncitizens (1)
who have participated in persecution;
(2) who have been convicted of a
particularly serious crime; (3) for whom
there are serious reasons to believe
committed a serious nonpolitical crime;
(4) for whom there are reasonable
grounds to regard as a danger to the
United States; (5) who are described
under certain provisions relating to
terrorist activity; or (6) who were firmly
resettled before coming to the United
States). Also, most of the facts relevant
to the applicability of, exceptions to,
and means of rebutting the presumption
involve circumstances at or near the
time of the noncitizen’s entry. Because
credible fear interviews occur near the
time of entry when the events and
circumstances giving rise to the
presumption’s exceptions and rebuttal
grounds occur, the Departments believe
noncitizens will have a sufficient
opportunity to provide testimony
regarding such events and
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circumstances while they are fresh in
noncitizens’ minds. Furthermore,
delaying application of the presumption
against asylum eligibility until the final
merits stage would undermine the
Departments’ goals of incentivizing
migrants, including those intending to
seek asylum, to use lawful, safe, and
orderly pathways to enter the United
States or seek asylum or other
protection in another country through
which they travel.
This rule provides that AOs and IJs,
not CBP officers, will assess whether
noncitizens are subject to the rule’s
presumption of asylum ineligibility and
can rebut the presumption. 8 CFR
208.33(b), 1208.33(b). Also, the
Departments note that the ‘‘significant
possibility’’ standard applied at the
credible fear stage is lower than the
‘‘more likely than not’’ standard that
was used by DHS to assess whether a
noncitizen could be returned to Mexico
pursuant to the MPP.205 The
Departments disagree that the rule
requires AOs to assess whether
noncitizens are inadmissible under
section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), and subject to expedited
removal. CBP officers will continue to
determine whether a noncitizen is
subject to, and will be placed in,
expedited removal.
Comment: Commenters stated that the
term ‘‘rebuttable presumption’’ as used
in the rule is misleading and inaccurate
and that the rule instead creates an
outright bar with exceptions.
Response: The Departments believe
that the description of the rule’s main
provision as a rebuttable presumption
accurately reflects the operation of that
provision, including the availability of
exceptions and bases to rebut the
presumption. Unlike the TCT Bar Final
Rule, which included only narrow,
categorical exceptions to its application,
under this rule, if the noncitizen is not
exempted from this rule’s application,
the lawful pathways condition may be
rebutted where the noncitizen
demonstrates to the adjudicator’s
satisfaction that exceptionally
compelling circumstances are present.
See 8 CFR 208.33(a)(3), 1208.33(a)(3).
Because a noncitizen to whom the
condition applies and for whom an
exception is not available under 8 CFR
208.33(a)(2), 1208.33(a)(2), may
nevertheless avoid its effect in certain
non-categorical circumstances, the
205 USCIS, PM 602–0169, Policy Memorandum:
Guidance for Implementing Section 235(b)(2)(C) of
the Immigration and Nationality Act and the
Migrant Protection Protocols (Jan. 28, 2019), https://
www.uscis.gov/sites/default/files/document/
memos/2019-01-28-Guidance-for-ImplementingSection-35-b-2-C-INA.pdf.
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Departments believe that referring to it
as a ‘‘rebuttable presumption’’ is
accurate.
2. Grounds for Rebutting the
Presumption
i. Acute Medical Emergency
Comment: Commenters expressed
concerns regarding the acute medical
emergency means of rebuttal. One
commenter asserted that this was a
novel concept under immigration law
and that the NPRM’s description of this
ground of rebuttal made clear that this
standard is designed to be impossible to
meet. Some commenters stated that the
proposed rule failed to provide
definitions or guidance to inform
assessments of what constitutes an acute
medical emergency. Some commenters
wrote that this means of rebuttal should
include non-life-threatening and other
non-medical needs. One commenter,
who is a doctor, stated that the
definition of ‘‘medical emergency’’
should include curable conditions that
would be fatal in the short term and
conditions that could be commonly
treated in the United States to restore
health and function, assuming that
sufficient care would not be available in
the originating country. Commenters
expressed concern regarding how
people living with HIV will be assessed
under this provision, given that their
condition could lead to a lifethreatening emergency without
treatment. Commenters also expressed
concern that the proposed rule gave
inadequate consideration to the unique
attributes of children’s physical and
mental health and noted that signs
differentiating a child with illness from
one with severe illness are quite subtle.
Some commenters also expressed
concern that the proposed rule would
not require that children be assessed by
trauma-informed physicians. Another
commenter expressed concerns that the
rule would not account for potential
emergencies for pregnant women.
Some commenters stated that the
‘‘preponderance of the evidence’’
standard for establishing an acute
medical emergency is too high.
Commenters said that the rule did not
explain how an individual would prove
that their medical issue was ‘‘acute,’’
and one stated that this determination is
possible only after medical care is
already being provided. Some
commenters stated that noncitizens may
lack medical documentation or
knowledge of the severity of their
condition and that AOs and IJs are not
medical experts with the required
expertise to evaluate these types of
medical issues. Other commenters
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stated that the proposed rule does not
specify which officials will be making
this determination or whether any
medical training or expertise would be
required. Commenters expressed
concerns that asking immigration
officials to make medical assessments
would yield inconsistent application of
the rebuttable presumption and
undermine the welfare of asylum
seekers. Commenters expressed concern
that this means of rebutting the
presumption would require noncitizens
to share private details about their
medical histories and bodies with a
stranger on the phone. One commenter
said that an individual may not know
that they are suffering an acute medical
emergency, while another stated that a
noncitizen’s medical condition could
worsen by the time that the AO decides
whether the presumption has been
rebutted. Some commenters added that
the rule should specify what would
occur in scenarios where families rebut
the presumption based on the acute
medical emergency ground and the
individual with the medical emergency
subsequently dies or the individual
lacks access to medical care to address
their medical emergency.
Commenters said that CBP had denied
Title 42 health exceptions to those with
acute medical needs, despite extensive
documentation of their conditions,
which raised the concern that the term
‘‘acute medical emergency’’ would also
be applied stringently under the rule.
Another commenter stated that the rule
would ‘‘restrict access to medical care
and humanitarian aid if asylum seekers
are denied by CBP,’’ which would
impede the gathering of evidence
needed to rebut the presumption of
asylum ineligibility.
Another commenter expressed
concern that an acute medical
emergency may also be easy to feign or
fabricate, though the commenter did not
provide any example of how that could
be done.
Response: The Departments believe
the acute medical emergency means of
rebuttal at 8 CFR 208.33(a)(3)(i)(A) and
1208.33(a)(3)(i)(A), is drafted so that
those noncitizens with acute medical
emergencies can rebut the condition on
asylum eligibility. In general, as stated
in the NPRM, acute medical
emergencies include situations in which
someone faces a life-threatening medical
emergency or faces acute and grave
medical needs that they cannot
adequately address outside of the
United States. See 88 FR at 11723. If a
noncitizen rebuts the presumption
based on the acute medical emergency
of a family member with whom they
were traveling, the noncitizen’s
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eligibility for asylum will not change if
the family member who faced the
medical emergency subsequently passes
away; this is because the language of the
rebuttal circumstance focuses on
whether the family member faced an
acute medical emergency ‘‘at the time of
entry.’’ 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i).
The Departments believe that, in
general, broadening this means of
rebuttal would undermine the purpose
of the rule, which is to incentivize
noncitizens to utilize lawful, safe, and
orderly pathways of migration. A
medical condition that is not an acute
emergency would not ordinarily or
necessarily justify failing to pursue a
lawful pathway. However, while an
acute medical emergency is a per se
example of an exceptionally compelling
circumstance to rebut the presumption
of ineligibility, AOs and IJs may
determine, on a case-by-case basis,
whether less severe health-related
situations also qualify as ‘‘exceptionally
compelling circumstances.’’ See 8 CFR
208.33(a)(3), 1208.33(a)(3).
The Departments also disagree with
comments concerning the ability of AOs
and IJs to properly assess this rebuttal
ground and the ability of noncitizens to
establish it. As discussed in Section
IV.D.1.iii of this preamble, AOs will
apply the ‘‘significant possibility’’
standard during credible fear interviews
to determine whether a noncitizen
would be able to rebut the presumption
because they faced an acute medical
emergency at the time of entry. Again,
the Departments emphasize that
noncitizens may be able to rebut the
presumption of asylum ineligibility
through testimony alone, and the rule
does not require any particular evidence
to rebut the presumption under 8 CFR
208.33(a)(3) and 1208.33(a)(3). AOs are
trained to elicit all relevant testimony in
a non-adversarial manner, which will
necessarily include testimony related to
this ground for rebuttal.206 As discussed
earlier in Section IV.B.5.iii.a of this
preamble, AOs frequently assess
physical and psychological harm when
adjudicating asylum applications and
are trained to do so in a sensitive
manner. As discussed in Section
IV.B.5.iii.c of this preamble, the rule
does not require adjudicators to make a
formal medical diagnosis or analyze
whether a noncitizen meets specific
medical criteria to determine whether a
noncitizen has rebutted the rule’s
condition on eligibility. Instead,
adjudicators will make a factual
determination of whether an acute
medical emergency existed at the time
of entry. 8 CFR 208.33(a)(3)(i)(A),
1208.33(a)(3)(i)(A). To the extent that a
noncitizen experienced such a medical
emergency during their time in CBP
custody, AOs may be able to consult
CBP records. Specifically, if a
noncitizen experiences a medical issue
during their time in CBP custody, CBP
medical staff will evaluate the
noncitizen, and, if appropriate based on
the severity of the issue, refer them to
a local medical facility. This treatment
would be documented.207 Regarding the
concerns raised about sharing private
medical details, noncitizens in credible
fear proceedings, as discussed in
Section IV.B.5.v of this preamble, are
advised of the confidential nature of the
interview. As noted earlier in Sections
IV.B.5.i and IV.E.1 of this preamble,
credible fear determinations undergo
multiple levels of review to ensure
consistency, and decisions made in
section 240 proceedings are subject to
administrative appeal.
The Departments note that, like all
exceptionally compelling
circumstances, AOs in credible fear
proceedings or IJs in immigration court,
not CBP officers at POEs, will determine
whether a noncitizen faced an acute
medical emergency. Accordingly, to the
extent commenters are concerned by
how CBP officers have considered
medical issues in the context of the
application of the Title 42 public health
Order, such concerns are inapplicable to
this rule. Additionally, CBP will process
all noncitizens who arrive and seek
admission at a POE without regard to
whether the presumption may
ultimately be found to apply.
Regarding concerns of fraud, the
commenter did not provide any
explanation or example of how an acute
medical emergency would be easy to
fabricate, and AOs and IJs will assess
the credibility of any claims that the
noncitizen faced an acute medical
emergency. INA 208(b)(1)(B)(2), 8 U.S.C.
1158(b)(1)(B)(2); INA 240(c)(4)(B), 8
U.S.C. 1229a(c)(4)(B); 8 CFR
208.30(e)(2).
206 USCIS, Eliciting Testimony 12 (‘‘In cases
requiring an interview, although the burden is on
the applicant to establish eligibility, equally
important is your obligation to elicit all pertinent
information.’’); USCIS, Non-Adversarial Interview
13 (‘‘You control the direction, pace, and tone of
the interview and have a duty to elicit all relevant
testimony.’’)
Comments: Commenters expressed
concern over the high level of risk
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ii. Imminent and Extreme Threat to Life
and Safety
207 CBP, Directive 2210–004, Enhanced Medical
Support Efforts (Dec. 31, 2019), https://
www.cbp.gov/document/directives/directive-2210004-cbp-enhanced-medical-efforts.
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required to rebut the presumption based
on an imminent and extreme threat to
life and safety. Some commenters stated
this means of rebuttal requires a higher
degree of risk than is required for
eligibility for asylum or statutory
withholding of removal. One
commenter stated that it would require
migrants to ‘‘predict the future’’ in
deciding whether to wait for an
appointment at the border, which can be
dangerous because violence happens
randomly and unexpectedly. Some said
that, if an asylum seeker is forced to
remain in Mexico until a threat is
imminent, it may well be too late to
avoid such harm, thus putting the
person in a ‘‘catch-22.’’ A commenter
stated that the rule appears to exclude
anyone who has already been gravely
harmed while in Mexico but who
cannot prove that another harm is
‘‘imminent,’’ while others
recommended that if an individual
circumvents other pathways to cross the
U.S.-Mexico border due to the severity
of past threats or harms, the ‘‘imminent
and extreme threat’’ ground should
automatically apply. Another
commenter stated that, due to the
complicated and lengthy regulatory
definition of torture, that term should be
replaced with ‘‘severe pain or
suffering.’’
Commenters also expressed concern
about the ability for specific populations
to meet this rebuttal ground.
Commenters stated that the rule forces
LGBT and HIV-positive people, who
already face significant hostility in
Mexico, to put themselves in even
worse danger to satisfy the imminence
requirement of the ‘‘imminent and
extreme’’ ground for rebuttal.
Commenters wrote that this rebuttal
ground should be broadened so that
adjudicators may favorably consider
circumstances involving threats to life
or safety that might not necessarily be
considered imminent or extreme. For
example, one commenter noted that
there are many forms of gender-based
harm that are unlikely to meet the
requirement that the threat to life or
safety is ‘‘imminent and extreme’’
because such forms of harm are not
always highly violent acts. One
commenter wrote that pervasive
discrimination or physical abuse—as,
for example, experienced by LGBT
individuals in Mexico, where
discrimination against such persons is
still commonplace—would not meet the
threshold of ‘‘imminent and extreme
threat to life and safety’’ if experienced
in either a transit country or their home
country. The commenter also stated that
individuals forced to hide their identity
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to avoid discrimination would be
hindered in their ability to meet this
ground for rebuttal.
Commenters expressed concern that
noncitizens would not have sufficient
evidence to show an ‘‘imminent and
extreme’’ threat to rebut the
presumption. Similar to their comment
regarding the ‘‘acute medical
emergency’’ means of rebuttal, one
commenter asserted that the ‘‘imminent
and extreme’’ threat means of rebuttal is
a novel concept under immigration law
and that the description of this ground
of rebuttal in the NPRM made clear that
this standard is designed to be
impossible to meet. One commenter
stated that proving a specific threat may
be near impossible because
individualized threats are frequently
made orally and in person, not in
writing, and hence are not amenable to
proof in a formalized setting. The
commenter also stated that such threats
are usually directly followed by the
harm itself. One commenter wrote that
the most deserving individuals in the
asylum process will be hard-pressed to
produce evidence of an ‘‘imminent
threat’’ because persecution frequently
does not leave documentary evidence. A
few commenters emphasized that
survivors of sexual assault would face
extreme difficulty in obtaining
documentation to meet the evidentiary
burden from another country unless
they had others assisting them; some
survivors, for example, may have only
their own account of the assault. A legal
services provider expressed concern
that survivors of violence would not
necessarily have the proof, language, or
support needed to explain what
imminent danger they faced, leading to
the denial of bona fide asylum claims
and the refoulment of individuals facing
extreme persecution.
Commenters expressed concerns that
the lack of definition of an ‘‘extreme and
imminent threat to life or safety’’ left
adjudicators with an inordinate amount
of discretion. One commenter stated
that asylum seekers in Mexican border
regions so often face a serious risk to
their safety that it is unclear what an
asylum seeker would need to show to
establish an ‘‘imminent and extreme’’
threat to life. Commenters expressed
concern that this ground of rebuttal calls
for a subjective assessment of the
temporality and qualitative extremity of
the threats faced by asylum seekers,
which may exclude many genuine
refugees.
Other commenters stated concerns
that this means of rebuttal was overly
broad or would lead to fraud. One
commenter said that AOs and IJs would
have difficulty determining whether
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someone has fabricated evidence to
support a claim that they faced an
imminent threat to life or safety,
especially when strong evidence exists
that migrants who travel to the U.S.Mexico border by way of smuggling
networks are frequently subject to such
violence. Another commenter stated
that the journey to the southwest border
of the United States is inherently a
journey where migrants will face
extreme threats to life and safety from
beginning to end; adding this means of
rebuttal would thus exempt the entire
population of migrants who have
traveled with the assistance of
smugglers and other criminal
enterprises.
Response: The Departments
acknowledge these concerns but believe
that only imminent and extreme threats
to life or safety should constitute a per
se ground to rebut the presumption of
asylum ineligibility. For threats that are
less imminent or extreme, noncitizens
may attempt to demonstrate on a caseby-case basis that they otherwise
present ‘‘exceptionally compelling
circumstances’’ that overcome the
presumption of ineligibility. Including
lesser threats in the per se grounds for
rebuttal would undermine the
Departments’ goal of incentivizing
migrants to use lawful, safe, and orderly
pathways to enter the United States or
seek asylum or other protection in
another country through which they
travel.
As noted in the NPRM, threats cannot
be speculative, based on generalized
concerns about safety, or based on a
prior threat that no longer posed an
immediate threat at the time of entry. 88
FR at 11707 n.27. The term ‘‘extreme’’
refers to the seriousness of the threat;
the threat needs to be sufficiently grave,
such as a threat of rape, kidnapping,
torture, or murder, to trigger this ground
for rebuttal. Id. Where the noncitizen is
a member of a particularly vulnerable
group (e.g., LGBT or HIV-positive
people), their membership in such a
group may be a relevant factor in
assessing the extremity and immediacy
of the threats faced at the time of entry.
In response to the recommendation that
the word ‘‘torture’’ be replaced with
‘‘severe pain and suffering,’’ the
Departments note that the imminent and
extreme threats to life and safety listed
in the rule are not exhaustive and that
this means of rebuttal may in certain
circumstances encompass imminent and
extreme threats of severe pain and
suffering.
The Departments disagree that
noncitizens will have to ‘‘predict the
future’’ to rebut the presumption against
asylum in this manner. For this per se
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31393
rebuttal ground to apply, the noncitizen
must demonstrate there was an
imminent and extreme threat to life or
safety, not that the feared harm was
actively taking place or certain to occur.
See 8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). The Departments
also note that ‘‘imminent’’ and
‘‘extreme’’ are standards that are
commonly used in asylum
adjudications. See, e.g., Fon v. Garland,
34 F.4th 810, 813 (9th Cir. 2022)
(‘‘[P]ersecution is an extreme concept’’
(quoting Ghaly v. INS, 58 F.3d 1425,
1431 (9th Cir. 1995))); Li v. Att’y Gen.
of U.S., 400 F.3d 157, 164 (3d Cir. 2005)
(‘‘[U]nfulfilled threats must be of a
highly imminent and menacing nature
in order to constitute persecution’’
(citing Boykov v. INS, 109 F.3d 413,
416–17 (7th Cir. 1997))). As already
discussed in Section IV.E.1 of this
preamble, noncitizens may be able to
rebut the presumption against asylum
eligibility through credible testimony
alone. In response to commenter
concerns about inconsistent application
of the rule, the Departments note that an
AO’s decision is subject to supervisory
and potentially IJ review, and
determinations made in section 240
proceedings may be administratively
appealed.
The Departments acknowledge
commenters’ concern about fraud, but
during credible fear screenings, AOs
will assess the credibility of a
noncitizen’s testimony regarding
dangers faced at the time of entry,
which will necessarily include an
evaluation of the whether a claimed
threat is fraudulent. As discussed earlier
in Section IV.D.1.iii of this preamble,
whether a noncitizen is able to establish
an exception to the rule or rebut the
presumption will generally involve a
straightforward analysis, and the
Departments expect that, except in rare
cases, application of the ‘‘significant
possibility’’ standard will not
meaningfully differ from application of
the ultimate merits standard. The
Departments believe that this ground of
rebuttal is sufficiently narrow to prevent
broad application to all citizens who
attempt to enter the United States from
Mexico across the SWB or adjacent
coastal borders.
iii. Other Exceptionally Compelling
Circumstances
Comment: Some commenters stated
that the provision allowing a noncitizen
to show ‘‘exceptionally compelling
circumstances’’ to rebut the
presumption was not sufficiently
defined and hence that applying it
would lead to disparate results amongst
adjudicators. One commenter stated that
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the rule does not clarify whether the
exceptionally compelling circumstance
must be one that prevented the asylum
seeker from scheduling an appointment
or whether it may be an equitable factor
that mitigates in favor of granting
humanitarian protection. Another
commenter expressed concerns that the
adverb ‘‘exceptionally’’ is redundant or
excessive and would result in different
interpretations by adjudicators. The
same commenter stated that applying
the term ‘‘exceptionally compelling
circumstances’’ would also be difficult
because the term is rarely used in
immigration law and is restrictively
defined by the Departments.
While some commenters expressed
concern that requiring noncitizens to
show ‘‘exceptionally compelling
circumstances’’ by a preponderance of
the evidence would be too demanding
of a standard, which they asserted
renders the provision inaccessible to
many asylum seekers and will result in
unfair denials, other commenters
claimed that the standard would, in
practice, allow for any official to create
an exemption for any reason.
Response: The Departments
respectfully disagree with commenters’
concerns about the ‘‘exceptionally
compelling circumstances’’ standard
being insufficiently defined or not
amenable to consistent determinations.
The rule provides that a noncitizen
necessarily demonstrates exceptionally
compelling circumstances if, at the time
of entry, they or a family member with
whom they were traveling (1) had an
acute medical emergency; (2) faced an
imminent and extreme threat to life or
safety; or (3) satisfied the definition of
‘‘victim of a severe form of trafficking in
persons’’ provided in 8 CFR 214.11. See
8 CFR 208.33(a)(3), 1208.33(a)(3). The
non-exhaustive nature of this list
preserves flexibility and ensures that the
rule does not foreclose adjudicators
from considering facts giving rise to
exceptionally compelling
circumstances.
The Departments emphasize that
exceptionally compelling circumstances
are not limited to the examples
enumerated in 8 CFR 208.33(a)(3)(i) and
1208.33(a)(3)(i). In fact, the rule
recognizes additional per se
exceptionally compelling circumstances
in section 240 removal proceedings to,
along with other provisions in the rule,
eliminate the possibility that this rule
will cause separation of family members
who traveled together or long-term
separation that would result by
preventing family members from
following to join principal applicants
who would be granted asylum but for
the presumption. 8 CFR 1208.33(c).
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The Departments also note that AOs
and IJs regularly apply various
standards in the course of their
adjudications, such as the
‘‘extraordinary circumstances’’ standard
to determine whether an asylum
applicant qualifies for an exception to
the one-year filing deadline, see INA
208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), and
the discretionary ‘‘compelling reasons’’
standard to determine whether an
applicant who has suffered past
persecution but lacks a well-founded
fear of future persecution should be
granted asylum in the exercise of
discretion, see 8 CFR
208.13(b)(1)(iii)(A); 1208.13(b)(1)(iii)(A).
Hence, although the Departments
acknowledge the concerns of some
commenters about noncitizens’ ability
to demonstrate ‘‘exceptionally
compelling circumstances,’’ the
Departments believe that the best way to
assess the variety of fact patterns
presented by noncitizens is to use a factspecific approach on a case-by-case
basis. Using this fact-specific approach
on a case-by-case basis is consistent
with other aspects of asylum
adjudication, such as establishing an
exception to the one-year filing
deadline, see INA 208(a)(2)(D), 8 U.S.C.
1158(a)(2)(D), determining whether
harm rises to the level of persecution,
see Stevic, 467 U.S. at 423 n.18, or
determining whether an individual was
harmed on account of a protected
ground, see 8 CFR 208.13(b)(1).
AOs receive extensive training that is
designed to enable them to conduct
non-adversarial interviews, assess
testimony, and exercise their judgment
in a fair and impartial manner.208
Likewise, IJs have extensive experience
and training in applying such concepts
to individual cases.209 Accordingly, the
Departments strongly believe that IJs
and AOs will fairly and competently
examine the facts and circumstances of
208 See
USCIS, Non-Adversarial Interview.
8 CFR 1003.0(b)(1)(vii) (EOIR Director’s
authority to ‘‘[p]rovide for comprehensive,
continuing training and support’’ for IJs); 8 CFR
1003.9(b)(1) and (2) (Chief Immigration Judge’s
authority to issue ‘‘procedural instructions
regarding the implementation of new statutory or
regulatory authorities’’ and ‘‘[p]rovide for
appropriate training of the [IJs] . . . on the conduct
of their powers and duties’’); DOJ EOIR, Legal
Education and Research Services Division (Jan. 3,
2020), https://www.justice.gov/eoir/legal-educationand-research-services-division (‘‘The Legal
Education and Research Services Division (LERS)
develops and coordinates headquarters and
nationwide substantive legal training and
professional development for new and experienced
judges, attorneys, and others within EOIR who are
directly involved in EOIR’s adjudicative functions.
LERS regularly distributes new information within
EOIR that includes relevant legal developments and
policy changes from U.S. government entities and
international organizations.’’).
209 See
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an individual’s case to determine
whether they demonstrated
exceptionally compelling circumstances
to rebut the lawful pathways
presumption of asylum ineligibility. In
response to commenter concerns about
consistency of determinations, credible
fear determinations, as noted above, are
subject to review by a Supervisory AO,
and determinations made in section 240
proceedings are subject to
administrative appeal.
iv. Victim of Severe Form of Trafficking
in Persons
Comment: A number of commenters
stated concern about noncitizens’ ability
to rebut the presumption by satisfying
the definition of a ‘‘victim of a severe
form of trafficking in persons.’’ Some
commenters stated that trafficking
victims cannot be expected to have
evidence prepared to demonstrate, by a
preponderance of the evidence, that
they were trafficked. A few commenters
expressed concern that it would be very
difficult for the population that is
vulnerable to trafficking to rebut the
presumption due to lack of evidence
and the exemption being narrowly
applied. Others stated that the NPRM’s
reference to 8 CFR 214.11, which
defines victims of severe forms of
trafficking, was not sufficiently specific.
Some commenters wrote that this
ground of rebuttal should be broadened
to apply to circumstances in which
individuals may be at risk of trafficking
and to apply regardless of severity. One
commenter stated that the victims of
trafficking rebuttal ground is very
narrow and fails to take into account the
many other forms of gender-based
persecution, including domestic
violence, sexual assault, stalking, female
genital cutting, and forced marriage. A
few other commenters expressed
concerns that officials may retraumatize
individuals in the process of validating
a claim for rebutting the presumption
and may end up returning them to their
traffickers if they find that the
noncitizen did not rebut the
presumption of asylum ineligibility.
One commenter wrote that, because the
severity of human trafficking is hard to
‘‘grade,’’ it is important to apply the
broadest understanding of new trends
and definitions provided under the
universal human rights instruments to
prevent underreporting and insufficient
identification of victims of this human
rights violation.
One commenter wrote that the
definition of ‘‘victim of a severe form of
trafficking’’ is highly technical and
requires a thorough analysis of several
components usually (in the T
nonimmigrant status context, from
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which the definition derives) completed
after review of a complete application
package, including extensive supporting
evidence and briefing prepared by legal
counsel. The same commenter added
that a survivor presenting at the border
under the circumstances described
above is unlikely to be able to meet this
standard. Some commenters stated that
the rule would force trafficking victims
to rebut the presumption at a higher
legal standard—preponderance of the
evidence—rather than ‘‘any credible
evidence’’ as would be required if they
were already in the United States and
applying for T nonimmigrant status.
One commenter stated that the
Departments should remove the
trafficking rebuttal ground because
migrants who voluntarily utilized
smugglers would falsely claim to have
been trafficked to qualify for the
exception.
Response: The Departments
acknowledge commenters’ concerns
about victims of human trafficking but
disagree that the existing rebuttal
ground should be revised or expanded.
As described in the NPRM, see 88 FR
at 11730, the presumption in this rule
is necessarily rebuttable in certain
circumstances, including if, at the time
of entering the United States, the
noncitizen satisfied the definition of
‘‘victim of a severe form of trafficking in
persons’’ provided in 8 CFR 214.11. See
8 CFR 208.33(a)(3)(i)(C),
1208.33(a)(3)(i)(C). The Departments
disagree with the premise that this
rule’s reference to the definition of
‘‘victim of a severe form of trafficking in
persons’’ found in 8 CFR 214.11 is
insufficiently specific. This final rule
relies upon, and is consistent with, the
definition used in the T nonimmigrant
status context, which itself is consistent
with the applicable statutory
definition.210
The Departments also emphasize that
they are not applying the
‘‘preponderance of the evidence’’
standard to trafficking victims who are
initially seeking to rebut the lawful
pathways presumption during credible
fear screenings. The standard of proof
applied in credible fear screening is a
‘‘significant possibility . . . that the
alien could establish eligibility for
asylum,’’ INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), which also applies to
‘‘exceptionally compelling
circumstances.’’ During credible fear
screenings, then, a noncitizen would
have to show a significant possibility
that they could satisfy the definition of
victim of a severe form of trafficking by
210 See 8 CFR 214.11(b) (cross-referencing INA
101(a)(15)(T)(i), 8 U.S.C. 1101(a)(15)(T)(i)).
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a preponderance of the evidence in a
full hearing. The Departments recognize
that many victims of trafficking are
unlikely to possess written evidence of
their trafficking; however, the credible
fear screening process involves eliciting
testimony from individuals seeking
protection and does not require
noncitizens to provide written
statements or other documentation. See
INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B);
8 CFR 208.30(d). Moreover, the
Departments note that, in addition to
receiving extensive training in
substantive law and procedure, AOs are
also trained to identify and interview
vulnerable individuals, including
victims of trafficking.211 For merits
adjudications, both AOs 212 and IJs 213
receive training and have experience
assessing evidence and the credibility of
noncitizens who appear before them for
interviews or hearings, even in the
absence of other documentation. Indeed,
the INA explicitly provides that
‘‘testimony of the applicant may be
sufficient to sustain the applicant’s
burden without corroboration.’’ INA
208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii).
With respect to the commenter’s
suggestion that the Departments should
remove the trafficking-victims ground
for rebuttal because the commenter
believed that noncitizens who are
smuggled will falsely claim they are
trafficked, the Departments strongly
believe it is important to treat trafficking
as an exceptionally compelling
circumstance. The Departments
included this provision to allow this
211 See USCIS, RAIO Directorate—Detecting
Possible Victims of Trafficking Lesson Plan (Dec.
20, 2019), https://www.uscis.gov/sites/default/files/
document/foia/Trafficking_LP_RAIO.pdf; see also
USCIS, Asylum Division Training Programs (Dec.
19, 2016), https://www.uscis.gov/humanitarian/
refugees-and-asylum/asylum/asylum-divisiontraining-programs.
212 USCIS, RAIO Directorate—Officer Training:
Decision Making (Dec. 20, 2019), https://
www.uscis.gov/sites/default/files/document/foia/
Decision_Making_LP_RAIO.pdf.
213 See 8 CFR 1003.0(b)(1)(vii) (EOIR Director’s
authority to ‘‘[p]rovide for comprehensive,
continuing training and support’’ for IJs); 8 CFR
1003.9(b)(1) and (2) (Chief Immigration Judge’s
authority to issue ‘‘procedural instructions
regarding the implementation of new statutory or
regulatory authorities’’ and ‘‘[p]rovide for
appropriate training of the [IJs] . . . on the conduct
of their powers and duties’’); DOJ EOIR, Legal
Education and Research Services Division (Jan. 3,
2020), https://www.justice.gov/eoir/legal-educationand-research-services-division (‘‘[LERS] develops
and coordinates headquarters and nationwide
substantive legal training and professional
development for new and experienced judges,
attorneys, and others within EOIR who are directly
involved in EOIR’s adjudicative functions. LERS
regularly distributes new information within EOIR
that includes relevant legal developments and
policy changes from U.S. government entities and
international organizations.’’).
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31395
vulnerable population to rebut the
lawful pathways presumption and seek
protection in the United States. The
Departments note that the commenter
did not include any reliable evidence or
data to support their allegation that
individuals who are smuggled will
falsely claim to be trafficked. In
addition, the TCT Bar IFR also included
a limited exception for victims of severe
forms of trafficking, and the
Departments are unaware of evidence
that it was abused while that IFR was in
effect.
Commenters’ suggestions regarding
broadening the grounds to rebut the
presumption are addressed below in
Section IV.E.3 of this preamble.
3. Exceptions to the Presumption
i. Proposed Exceptions for Migrants
Facing Danger in Third Countries
Comment: Commenters expressed
concern that the rule contains no
exceptions for asylum seekers who
would face danger in transit countries
even though many asylum seekers are at
serious risk in common transit
countries. Multiple commenters
suggested that the exemption for
imminent threat of rape, kidnapping,
torture, or murder should be expanded
to include general threats of violence, as
many individuals within the asylum
process would be forced to stay in
Mexico or other countries where general
threats of violence are much more
common and put their lives or safety at
risk. Another commenter stated that,
when asylum seekers are waiting in
some of the most dangerous towns and
cities in the world, they face real threats
that the rule should recognize as an
exception to the presumption.
Several commenters noted that the
members of one family, when using the
Title 42 exception process, tried to
travel more than 1200 miles across
Mexico and were kidnapped and taken
hostage during that travel, only to be
expelled from the United States when
they sought help from the USBP.
Another commenter noted that
movement along the U.S.-Mexico border
is notoriously difficult and unsafe. In
contrast, one commenter stated that
reports of localized violence in certain
areas of Mexico are not indicative of the
conditions in Mexico as a whole.
Response: The Departments
acknowledge the concerns raised by
commenters and reiterate that
noncitizens who face an extreme and
imminent threat to life or safety in
Mexico at the time of entry can rebut the
presumption of asylum ineligibility, see
8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B), without needing to
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qualify for any additional exception. In
addition, the rule provides that they
may rebut the presumption by showing
that, at the time of entry, they faced an
acute medical emergency or were
victims of a severe form of trafficking.
See 8 CFR 208.33(a)(3)(i)(A) and (C),
1208.33(a)(3)(i)(A) and (C). However,
the Departments decline to enumerate
additional, broader ways to rebut the
presumption, such as a ground based on
general threats of violence; and the
Departments likewise believe that they
need not enumerate additional
exceptions to the presumption. In the
absence of other exceptionally
compelling circumstances, see 8 CFR
208.33(a)(3)(i), 1208(a)(3)(i), the
Departments believe that danger in
Mexico generally would justify failing to
pre-schedule a time and place to appear
at a POE and eschewing lawful and
orderly pathways for entering the
United States only when it amounts to
an extreme and imminent threat to life
or safety. For noncitizens who face
dangers in other countries besides
Mexico, or who face less imminent and
extreme threats in Mexico, there
ordinarily remain reasonable
opportunities to take advantage of other
lawful pathways contemplated by the
rule. To the extent a noncitizen’s
individual circumstances make lawful
pathways unavailable, or otherwise
warrant rebuttal of the presumption,
noncitizens may attempt to demonstrate
as much on a case-by-case basis under
the ‘‘exceptionally compelling
circumstances’’ means of rebuttal.
Noncitizens may choose to apply for
asylum or other protection in a different
country where they do not face dangers
or schedule appointments to appear at
a SWB POE using the CBP One app.
CHNV nationals may also apply for
advanced authorization for parole while
outside their country of nationality.
With regard to concerns about traveling
along the U.S.-Mexico border to access
available CBP One app appointments,
CBP intends to increase the number of
available appointments when the Title
42 public health Order is lifted, as
detailed in Section IV.E.3.ii.a of this
preamble. As detailed in Section
IV.E.3.ii.b of this preamble, CBP is
implementing updates to the CBP One
app process that will enable noncitizens
to request a preferred POE to schedule
an appointment, thus helping
noncitizens avoid unpredictable travel
along the U.S.-Mexico border.
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ii. Concerns About the Exception for
Scheduled Arrivals at Ports of Entry
a. General Comments Regarding the CBP
One App
Comment: One commenter, a legal
services provider, expressed concern
about the future impact of the CBP One
app based on their experiences with the
use of the app in the context of seeking
Title 42 exceptions. Specifically, the
commenter stated that the use of the app
had barred ‘‘thousands’’ from seeking
exceptions to the Title 42 public health
Order. This commenter stated that,
before January 2023, it was able to
schedule appointments for its clients
with POEs directly, without using the
app. The organization said that this
process was ‘‘orderly and calm’’ and
that clients rarely waited more than four
to six weeks for an appointment. The
organization stated that, following the
implementation of the scheduling
capability, many of their clients had
been unable to secure appointments,
and the process takes longer. The
organization stated that CBP did not
provide notice that the CBP One app
would be the sole way to seek
exceptions to Title 42.
Response: To the extent that
commenters have concerns about the
processing of individuals seeking
exceptions to the Title 42 public health
Order at POEs, including concerns
about the number of appointments
available under the Title 42 exception
process, these concerns are outside the
scope of this rule. This rule is designed
to manage the anticipated increase in
the number of individuals expected to
travel to the United States without
documents sufficient for lawful
admission following the termination of
the Title 42 public health Order and
will take effect once the Title 42 public
health Order is lifted. At that time, CBP
will inspect and process all noncitizens
who arrive at a POE under Title 8
authorities, which include the INA, as
required by statute. Title 42 is a separate
statutory scheme that operates
separately from Title 8.
Additionally, following the
termination of the Title 42 public health
Order, CBP intends to increase the
number of available appointments in the
CBP One app and is committed to
processing as many noncitizens as is
operationally feasible. Further, in no
instance will CBP turn a noncitizen
away from a POE, regardless of whether
they utilize the CBP One app.
Comment: Commenters expressed
concern about the security of the
personally identifiable information
(‘‘PII’’) that users submit through the
CBP One app. A commenter asserted
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that the CBP One app poses serious
privacy concerns regarding the
collection, storage, and use of private
personal information and alleged that
requiring use of the CBP One app is
‘‘another means of enlarging what is an
already expansive surveillance
infrastructure that relentlessly targets
immigrant communities.’’ A commenter
also stated that, while the Departments
have previously indicated that use of
the CBP One app is voluntary, the rule
will significantly expand use of the app,
with the result that it will be the only
way for certain noncitizens to seek
asylum in the United States and thus
that ‘‘many people do not have a
genuine choice in whether to consent.’’
Commenters questioned the wisdom of
encouraging migrants to disclose
personal details while in transit in
temporary shelters and non-secure
settings.
Particularly in light of a recent ICE
data breach, commenters expressed
concern about what measures CBP and
DHS will take to secure the PII that
applicants will have to provide in order
to secure an appointment through the
CBP One app. The commenters
expressed concern that a similar breach
regarding CBP One app data could place
applicants waiting for appointments
outside the United States at a greater
risk than individuals affected by the
recent breach, who were primarily in
the United States. Commenters alleged
that this risk could have a chilling effect
on otherwise meritorious applications.
Commenters expressed a range of PIIrelated concerns regarding the use of the
CBP One app in the context of asylum
seekers and asylum applications. For
example, a commenter expressed
concern that use of the CBP One app
and the need to rely on publicly
accessible internet connections may
violate 8 CFR 208.6, which establishes
limits on the disclosure to third parties
of information contained in or
pertaining to records related to credible
fear determinations, asylum
applications, and similar records.
Another commenter similarly noted that
use of the app may be tracked by
government officials or persecutors,
placing migrants in further danger.
A commenter also expressed concern
that the lack of privacy may be
particularly harmful for those fleeing
domestic violence and that use of a
smart device to access the CBP One app
may permit GPS tracking and put the
noncitizen at heightened risk of being
located by their abuser, as well as put
them at risk of financial abuse. A
commenter expressed concern that
information provided by migrants
through the CBP One app could be
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shared with law enforcement agencies
beyond CBP, which are not bound by
CBP privacy and information-sharing
policies. A few commenters expressed
concern with requiring the use of a
Login.gov account because the
underlying provider for that site has a
history of data breaches.
Response: The Departments disagree
with the statement that migrants must
use, or are unable to meaningfully
consent to using, the CBP One app.
While noncitizens who present at a POE
without scheduling an appointment
using the CBP One app will be subject
to the rebuttable presumption unless
otherwise excepted, noncitizens are not
required to use the app in order to be
processed at a POE.214 The Departments
note that the rebuttable presumption
does not apply to noncitizens who
either were provided authorization to
travel to the United States to seek parole
pursuant to a DHS-approved parole
process or who sought asylum or other
protection in a country through which
they traveled and received a final
decision denying that application. 8
CFR 208.33(a)(2)(ii)(A) and (C),
1208.33(a)(2)(ii)(A) and (C). The
presumption also does not apply to
noncitizens who arrive at a port of entry
without scheduling an appointment if
the scheduling system was not possible
to access or use due to language barrier,
illiteracy, significant technical failure,
or other ongoing and serious obstacle. 8
CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B).
For those who choose to utilize the
CBP One app to schedule an
appointment, CBP has taken steps to
protect users’ information. First, in
accordance with DHS policy, apps
developed by DHS—including the CBP
One app—must meet certain baseline
privacy and security requirements.215
These requirements include appspecific privacy and notice policies;
limitations on the collection of sensitive
content, including PII; and appropriate
encryption for the transmission of
data.216 The app was reviewed for
compliance prior to development and is
reviewed again every time a change is
made that impacts the collection and
use of PII.217 All CBP systems have
214 See, e.g., CBP, DHS/CBP/PIA–076, Privacy
Impact Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 18 (Jan. 19, 2023),
https://www.dhs.gov/sites/default/files/2023-01/
privacy-pia-cbp076-advance-collection-forundocumented-individuals-jan2023_0.pdf.
215 See DHS, Instruction 047–01–003 (Rev. 00.1),
Privacy Policy for DHS Mobile Applications 7–10
(Dec. 14, 2018), https://www.dhs.gov/publication/
privacy-policy-dhs-mobile-applications.
216 Id.
217 See id. at 10.
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undergone comprehensive testing and
evaluation to assess the respective
security features and have been granted
an Authority to Operate (‘‘ATO’’).218 In
particular, the app serves only as a tool
for the collection of information.219
Once the information is received, CBP
temporarily retains the submitted CBP
One app photographs of undocumented
individuals within the Automated
Targeting System (‘‘ATS’’). Upon an
individual’s arrival at a POE, the
advance information is imported into a
Unified Secondary (‘‘USEC’’) event.220
The information is then verified by an
officer and stored as part of standard
CBP processes.221 All data in ATS and
USEC is treated and retained in
accordance with the relevant retention
schedules.222 These systems are subject
to continuous evaluation of security
protocols so that CBP may quickly
respond if there is a change in the risk
posture in any of the systems. The
information CBP collects via the CBP
One app and transmits to downstream
systems is the same information CBP
already collects when a noncitizen
encounters a CBP officer at a POE—it is
simply collected earlier to make
processing at the POE more orderly and
efficient.223 CBP has published a
Privacy Impact Assessment (‘‘PIA’’) for
the CBP One app generally and a
standalone, function-specific PIA for the
collection of advance information from
certain undocumented noncitizens.224
218 See DHS, DHS 4300A Sensitive Systems
Handbook 47 (Nov. 15, 2015), https://www.dhs.gov/
publication/dhs-4300a-sensitive-systems-handbook.
219 See CBP, DHS/CBP/PIA–068, Privacy Impact
Assessment for CBP OneTM Mobile Application 4
(Feb. 19, 2021), https://www.dhs.gov/sites/default/
files/2023-01/privacy-pia-cbp068cbpmobileapplication-jan2023.pdf. CBP has
updated this impact assessment multiple times
since February 19, 2021.
220 See id. at 15.
221 See CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 11–12, 21 (Jan. 19,
2023), https://www.dhs.gov/sites/default/files/202301/privacy-pia-cbp076-advance-collection-forundocumented-individuals-jan2023_0.pdf.
222 See CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 10, 13 (Jan. 19,
2023), https://www.dhs.gov/sites/default/files/202301/privacy-pia-cbp076-advance-collection-forundocumented-individuals-jan2023_0.pdf.
223 See id. at 17–18.
224 CBP, DHS/CBP/PIA–068, Privacy Impact
Assessment for CBP OneTM Mobile Application
(Feb. 19, 2021), https://www.dhs.gov/sites/default/
files/2023-01/privacy-pia-cbp068cbpmobileapplication-jan2023.pdf; CBP, DHS/CBP/
PIA–076, Privacy Impact Assessment for the
Collection of Advance Information from Certain
Undocumented Individuals on the Land Border
(Jan. 19, 2023), https://www.dhs.gov/sites/default/
files/2023-01/privacy-pia-cbp076-advancecollection-for-undocumented-individuals-jan2023_
0.pdf.
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With regard to the commenters’
concerns regarding privacy notices
related to biometrics and facial
recognition technology, CBP takes such
concerns seriously. In the referenced
GAO audit, GAO–20–568, GAO made
five recommendations to CBP, with
which CBP concurred. Three of the
recommendations were related to
privacy considerations, including (1)
ensuring privacy notices are complete
and current, (2) ensuring notices are
available at all locations using facial
recognition technology, and (3)
developing and implementing a plan to
audit its program partners for privacy
compliance.225 At the time of the
publication of the NPRM, all of these
privacy-related recommendations had
been implemented, and the
recommendations were closed by
GAO.226 CBP has since created a new
website that outlines the locations (air,
land, and seaports) where CBP uses
facial comparison technology, and CBP
continues to take steps to ensure that
appropriate notice is provided to
travelers.227
With regard to commenters’ concerns
about Login.gov, the Departments note
that Login.gov is owned and operated by
the General Services Administration
(‘‘GSA’’),228 and thus the Departments
have no control over the data privacy or
data security considerations of that
platform. However, the Departments
note that GSA has a system security
plan for Login.gov, and Login.gov has an
ATO.229
Comment: At least one commenter
raised a concern that the CBP One app
is an untested pilot program.
Response: The Departments
respectfully disagree. The CBP One app
was initially launched in October 2020
to serve as a single portal to access CBP
services.230 In May 2021, CBP updated
the app to provide the ability for certain
NGOs to submit information to CBP on
225 See GAO, Facial Recognition: CBP and TSA
are Taking Steps to Implement Programs, but CBP
Should Address Privacy and System Performance
Issues 72–73 (Sept. 2020), https://www.gao.gov/
assets/gao-20-568.pdf.
226 GAO, Facial Recognition: CBP and TSA are
Taking Steps to Implement Programs, but CBP
Should Address Privacy and System Performance
Issues, https://www.gao.gov/products/gao-20-568
(reporting on the changes that CBP made that
resulted in closure of the recommendations).
227 CBP, Say Hello to the New Face of Speed,
Security and Safety: Introducing Biometric Facial
Comparison, https://biometrics.cbp.gov/ (last
visited May 1, 2023).
228 See GSA, Privacy Impact Assessment for
Login.gov 1, 5 (Mar. 17, 2023), https://www.gsa.gov/
cdnstatic/Logingov_PIA_March2023.pdf.
229 See id. at 27.
230 CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-appsdirectory/cbpone.
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behalf of an undocumented noncitizen
and schedule a time for such
undocumented noncitizens to present at
a POE to be considered for an exception
from the Title 42 public health Order.231
This functionality included submitting
individuals’ information in advance,
including a photo, and scheduling a
date and time to present at a POE.232 In
April 2022, CBP expanded the ability
for noncitizens to directly submit
information and schedule appointments
to present at a land border POE to
noncitizens seeking to enter the United
States under the U4U process.233 To
further expand the accessibility of the
CBP One Title 42 exception process, in
January 2023, the advance information
submission and scheduling process was
made publicly available to all
undocumented noncitizens seeking to
travel to a land POE to be considered for
an exception to the Title 42 public
health Order.234 Significant
enhancements and changes to the CBP
One app have been and will continue to
be made in response to user and
stakeholder feedback.235
Comment: Commenters stated that the
CBP One app is not workable. For
example, commenters stated that there
are more migrants seeking asylum than
there are appointments available, that
the number of appointments was
entirely too limited, that the rule does
not provide for a minimum number of
appointments, and that after a final rule
is issued, demand for appointments
would only increase. Another
commenter noted that the INA does not
limit the number of people who may
arrive at a POE, nor does the rule
provide information about how the
government will apportion daily
appointments. This commenter also
noted that the number of appointments
at the border is currently ‘‘capped,’’ but
that this limitation is not legally binding
and could be increased. At least one
commenter said it would be ‘‘inherently
unjust to demand’’ that individuals use
an information system that cannot
handle the number of people expected
to use it. Commenters argued that
231 CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 4 (Jan. 19, 2023),
https://www.dhs.gov/publication/dhscbppia-076collection-advance-information-certainundocumented-individuals-land.
232 Id.
233 CBP, DHS/CBP/PIA–068, Privacy Impact
Assessment for CBP OneTM Mobile Application 16–
17 (Feb. 19, 2021), https://www.dhs.gov/
publication/dhscbppia-068-cbp-one-mobileapplication.
234 Id. at 17–18.
235 CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-appsdirectory/cbpone.
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requiring use of this system will create
a backlog and require people to wait for
their appointments for a significant
period of time in Mexico.
Other commenters raised concerns
about flaws in the CBP One app and
suggested it would empower smugglers.
Commenters noted that the CBP One
app was created for other purposes and
not as an appointment system for
asylum seekers. A commenter noted that
some individuals have to create a new
account every day because of flaws in
the app. Another commenter asserted
that there is a significant risk that
appointments will be resold, pointing to
a lack of security within the app that
would permit such resale. Commenters
also stated that CBP indicated that
criminal groups were creating
fraudulent appointments to obtain
information and funds from asylum
seekers seeking entry to the United
States. A commenter stated that
requiring use of the CBP One app has
already led to increased exploitation by
criminal groups and others who seek to
take advantage of migrants and is likely
to push individuals to travel by more
dangerous routes. Another commenter
noted that the availability of
appointments only at certain POEs had
led to migrants traversing dangerous
parts of Mexico to travel to a POE for
their appointment. The commenter
stated that traversing Mexico was
particularly difficult because
transportation companies and Mexican
authorities impede migrants’ ability to
travel through Mexico. Another
commenter recommended the creation
of a process parallel to the CBP One app
process for highly vulnerable migrants
to be considered for entry into the
United States in an expedited manner.
At least one commenter stated that the
CBP One app should allow for
prioritization based on vulnerability.
Another commenter stated that
smugglers will have more power
because of the limited number of
appointments, as people will pay
smugglers to find alternate routes into
the United States.
Response: The Departments
acknowledge that there are currently
many migrants waiting to present at a
POE and that demand for CBP One app
appointments may exceed the number
of appointments that can reasonably be
made available on a given day.
However, CBP is committed to
processing as many individuals at POEs
as operationally feasible, based on
available resources and capacity, while
executing CBP’s mission to protect
national security and facilitate lawful
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trade and travel.236 While the Title 42
public health Order remains in effect,
the CBP One app is being used to
schedule appointments for individuals
who are seeking to present at a land
POE to be considered for an exception
from the Title 42 public health Order.
During this time, the number of
appointments available has been
limited. However, when the Title 42
public health Order is lifted, CBP
intends to increase the number of
available appointments and anticipates
processing several times more migrants
each day at SWB POEs than the 2010
through 2016 daily average, including
through use of the CBP One app.237
While CBP recognizes and
acknowledges that demand for
appointments may exceed the number
of appointments that can reasonably be
made available on a given date, there
has been a large number of migrants
waiting in Mexico to enter the United
States since long before the introduction
of the app, and CBP expects that use of
the app will help facilitate the
processing of such individuals. The CBP
One app is a scheduling tool that
provides efficiencies and streamlines
processing at POEs. Additionally, while
CBP acknowledges that some
noncitizens who are unable to schedule
an appointment might conceivably turn
to smuggling or more dangerous routes,
CBP is implementing changes to the
CBP One app to permit noncitizens to
select a preferred arrival POE in an
effort to mitigate any perceived need to
travel to another location. Additionally,
CBP is transitioning scheduling in the
CBP One app to a daily appointment
allocation process to allow noncitizens
additional time to complete the process.
This process change will allow
noncitizens to submit a request for an
appointment, and available
appointments will then be allocated to
those who made such a request, and the
app will now provide a 23-hour period
236 Memorandum for William A. Ferrara, Exec.
Ass’t Comm’r, Off. of Field Operations, from Troy
A. Miller, Acting Comm’r, CBP, Re: Guidance for
Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of
Entry (Nov. 1, 2021), https://www.cbp.gov/sites/
default/files/assets/documents/2021-Nov/CBPmgmt-processing-non-citizens-swb-lpoes-signedMemo-11.1.2021-508.pdf.
237 See CBP STAT Division, U.S. Customs and
Border Protection (CBP) Enforcement Encounters—
Southwest Border (SBO), Office of Field Operations
(OFO) Daily Average (internal data report, retrieved
Apr. 13, 2023); Memorandum for William A.
Ferrara, Exec. Ass’t Comm’r, Off. of Field
Operations, from Troy A. Miller, Acting Comm’r,
CBP, Re: Guidance for Management and Processing
of Undocumented Noncitizens at Southwest Border
Land Ports of Entry (Nov. 1, 2021), https://
www.cbp.gov/sites/default/files/assets/documents/
2021-Nov/CBP-mgmt-processing-non-citizens-swblpoes-signed-Memo-11.1.2021-508.pdf.
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for individuals allotted appointments to
complete the scheduling process and
confirm their appointments. In addition
to the increased number of
appointments made available after the
end of the Title 42 public health Order,
it is anticipated that these changes will
reduce the likelihood of noncitizens
seeking to travel by alternate routes.
The capacity to process migrants at
POEs and the utilization of the CBP One
app to secure appointments are separate
and distinct issues. Officers will process
all individuals who present at a POE
regardless of a CBP One app
appointment. Although a noncitizen
who presents at a POE without an
appointment may be subject to the
rebuttable presumption under this rule,
they will be able to present any
protection claims, as well as any
evidence to rebut the presumption or
establish an exception to its
application—including evidence related
to their inability to access the CBP One
app due to language barrier, illiteracy,
significant technical failure, or other
ongoing and serious obstacle—during
either expedited removal or section 240
removal proceedings, with an AO or IJ,
as applicable. Processing times will vary
based on capacity and available
resources, and those without a CBP One
app appointment may be subject to
longer wait times before being processed
by a CBP officer.
With regard to commenters’
suggestions regarding the prioritization
of vulnerable individuals, the
Departments decline to adopt such a
process. As an initial matter, the
Departments reiterate that the CBP One
app is a method of facilitating entry into
the United States. Once individuals are
present in the United States at a POE,
CBP must inspect and process all
noncitizens, regardless of vulnerability.
See, e.g., INA 235(a)(3), 8 U.S.C.
1225(a)(3); 8 CFR 235.1(a). While in
some cases an individual who is
particularly vulnerable may warrant
more expeditious processing, such
prioritization and processing does not
occur until the individual is physically
present in the United States. In other
words, while an individual’s
vulnerability may, in some cases, be a
factor in the noncitizen’s processing
disposition at the time of processing,
this vulnerability is not validated or
taken into account prior to a migrant’s
arrival in the United States in the
context of the CBP One app.
Comment: Commenters raised
concerns about limitations on where
and when an appointment can be made
using the CBP One app. One commenter
noted that the geofencing portion of the
app does not perform accurately, as
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indicated by individuals who are
present in Mexico receiving error
messages saying they are not. Another
commenter noted that, since the
geofencing limits where people can be
to make appointments, they have no
option but to make a dangerous journey
before they even begin a lawful process;
the commenter urged instead that
individuals be permitted to schedule
appointments prior to embarking on
their journey to ensure that
appointments are provided in a fair
manner. At least one commenter
expressed concern that individuals
would use Virtual Private Networks to
do an end run around the geofencing.
Another commenter stated that the app
allows for scheduling appointments up
to 13 days in advance, but that
individuals accessing the app from their
home countries may not be able to make
it to the United States in 13 days.
Similarly, a commenter stated that,
although the rule contemplated
expanding CBP One access to locations
beyond the SWB, such an expansion
would not alleviate the risk of harm that
migrants face, as it would not be
possible for the migrant to schedule a
date and time to present at a POE before
leaving their home country, and
migrants seeking to access the app from
their home countries would lack access
to NGOs and other entities at the SWB
that could provide assistance.
Response: At this time, the ability to
schedule an appointment through the
CBP One app is available only to
migrants located in central and northern
Mexico.238 The geofenced area allows
migrants to remain in shelters and other
support networks instead of
congregating at the border in unsafe
conditions, facilitating a safe and
orderly presentation at POEs. The app
does not facilitate travel to Mexico in
order to schedule an appointment to
present at a POE. Individuals outside
northern and central Mexico are
encouraged to use various pathways
available to lawfully travel to the United
States, and they will be able to use the
app once they are in the geofenced area
and thus closer to the United States.
CBP is aware of reports of users
attempting to circumvent the geofenced
area and has taken steps to prevent this
from occurring. CBP has also received
reports of users who were in Mexico in
close proximity to the SWB, but whose
phones were showing that they were
238 See CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 6 n.24 (Jan. 19,
2023), https://www.dhs.gov/sites/default/files/202301/privacy-pia-cbp076-advance-collection-forundocumented-individuals-jan2023_0.pdf.
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within the United States, thus
generating error messages. To address
this issue, CBP adjusted the geofencing
to accommodate individuals located in
Mexico in close proximity to the SWB.
Comment: Some commenters stated
that requiring people to wait in Mexico
until their appointment date is
dangerous, as indicated, for example, by
the number of violent attacks on
migrants who have been turned back
under the Title 42 public health Order
since President Biden took office and
the dangers that individuals faced in
Mexico during MPP. One commenter
expressed concern that the rule
included no exception to the rebuttable
presumption for asylum seekers’
inability to secure a timely opportunity
to present themselves, even though CBP
One appointments have been
‘‘extremely difficult to access’’ and have
taken weeks or months to secure.
Another commenter noted that the firstcome, first-served scheduling design is
haphazard, and that there is no priority
for migrants who have been waiting for
longer periods of time.
Another commenter cited a Human
Rights First study that found that there
were 1,544 reported cases of violence
against asylum seekers—including two
murders—during the first two years of
MPP. One commenter stated that the
delays caused by the CBP One app
increase the dangers for those waiting
for a POE appointment in Mexico.
Commenters stated that asylum seekers
who are unable to secure appointments
through the CBP One app will be forced
to remain indefinitely at the border in
dangerous conditions, including
conditions where they have no access to
or must rely on third parties for safe
housing, food, electricity, internet, or
stable income, all while continuing to
try to make an appointment. One
commenter noted that this was
particularly problematic for those with
chronic or serious health problems
because access to health care in areas
where individuals must wait is limited.
Commenters expressed concern that
criminal organizations, including
cartels, could exploit individuals during
the period that they must remain in
northern Mexico waiting for an
appointment. Another commenter
expressed concern that those
individuals in Mexico awaiting an
appointment are at risk of deportation to
their home countries, where they could
experience persecution.
A commenter also stated that the
United States Government should
engage with the Government of Mexico
to ensure that noncitizens waiting in
Mexico for a CBP One app appointment
have documents authorizing a
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temporary stay in Mexico for that
purpose and that the lack of official
documents regarding status in Mexico
leaves noncitizens at risk of fraud and
abuse. Another commenter
recommended that CBP provide
instruction on the use of the app to
personnel in Mexico.
Response: The Departments
acknowledge that individuals seeking to
make an appointment to present at a
POE will generally need to wait in
Mexico prior to their appointment. The
Departments also acknowledge that, in
some cases, the conditions in which
such individuals wait may be
dangerous. However, noncitizens are
currently waiting in northern Mexico,
and, as addressed in the NPRM, the
Departments anticipate that larger
numbers of individuals will seek to
enter the United States after the lifting
of the Title 42 public health Order. See
88 FR at 11705. Therefore, as noted in
the NPRM, the Departments have
concluded that this anticipated influx
warrants the implementation of a more
transparent and efficient system for
facilitating orderly processing into the
United States. Although the use of the
CBP One app may, as commenters
noted, sometimes cause delays, the
Departments believe that, on balance,
the benefits of the more transparent and
efficient system created by use of the
app outweigh the drawbacks and that
use of the app will ultimately inure to
noncitizens’ benefit by allowing the
Departments to more expeditiously
resolve their claims. CBP has conducted
extensive outreach and communication
with stakeholders who may be able to
assist noncitizens in accessing the CBP
One app to register and schedule an
appointment, including shelters and
other entities in Mexico.
The Departments also note that
migrants are not categorically required
to preschedule an appointment to
present at a POE, and all migrants who
arrive at a POE, regardless of whether
they have an appointment, will be
inspected and processed. Migrants who
present without an appointment may be
subject to the presumption, but, among
other exceptions, the presumption will
not apply for those for whom it was not
possible to access or use the DHS
scheduling system due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle. 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). Additionally,
migrants who demonstrate
‘‘exceptionally compelling
circumstances,’’ such as an imminent
and extreme threat to their life or safety,
an acute medical emergency, or status as
a victim of a severe form of trafficking,
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may rebut the presumption, in
accordance with 8 CFR
208.33(a)(3)(i)(A) through (C),
1208.33(a)(3)(i)(A) through (C).
b. CBP One App Accessibility
Comment: Commenters expressed a
range of concerns regarding the
accessibility of the CBP One app for
migrants seeking to enter the United
States.
Many commenters stated the CBP One
app is not available to all migrants,
especially those who do not have
smartphones, reliable internet access, or
passports, and that all appointments are
claimed almost immediately because the
supply is insufficient. Multiple
commenters suggested that many lowincome individuals do not have access
to a working phone or the internet in
their home country, making use of the
CBP One app infeasible. Commenters
stated that many oppressive regimes
limit access to the internet and asked
how the Departments planned to
provide access to the CBP One app to
migrants in such countries. Relatedly, at
least one commenter conveyed,
anecdotally, that some migrants with
limited economic means are forgoing
food so that they can purchase enough
data to attempt to make an appointment
on the CBP One app to cross the SWB
and seek asylum in the United States.
Some commenters noted that many
migrants become victims of crime while
traveling to the United States, and their
phones may be stolen, lost, or broken.
Another commenter pointed out that
some individuals may have phones but
cannot afford to pay for telephone
services for the phone. A commenter
stated that it was unreasonable to place
the burden on migrants to obtain
internet and broadband access, as some
migrants must choose between
‘‘sustenance and digital access.’’ The
commenter stated that this requirement
perpetuated the crisis of unequal access
to justice. At least one commenter noted
that individuals may dispose of their
cell phones out of concern that those
they fear could track them using that
phone and so no longer have a
smartphone to use the CBP One app.
One commenter suggested finding
donors to provide phones for families to
schedule appointments.
Others stated concerns with relying
on a web and mobile application
because technology can fail. At least one
commenter stated that the Departments
should not rely only on the CBP One
app because cellular signals along the
SWB are inconsistent and Wi-Fi options
are limited, and some migrants, such as
Afghans who travel through South and
Central America, do not have local
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connectivity. At least one commenter
asked how having a cell phone with
good coverage so a migrant can obtain
an appointment relates to the merits of
their asylum claim, while another stated
that migrants without internet access
would effectively be held to a higher
standard than those with internet
access, which many would not be able
to overcome due to the lack of legal
representation in initial screenings.
Another commenter stated that the
rule did not provide sufficient
information on how the Government
conducted a study of the number of
migrants who may have smartphones.
Another asserted that the study had a
sampling bias since it only surveyed
individuals seeking a Title 42 exception,
which they claimed required the use of
the CBP One app. A commenter
provided data comparing the
percentages of smartphone ownership in
Mexico, Cuba, Haiti, Nicaragua, and
Venezuela, which, they stated, showed
that while Mexico and Haiti had a high
percentage of users, Nicaragua and
Venezuela did not. On the other hand,
at least one commenter noted that cell
phones, including smartphones, are
very common and that as a result people
should be able to apply for CBP One app
appointments.
Other commenters noted that people
who cannot use the application would
be at a serious risk of being turned away
at the border and disagreed with the
Departments’ statements to the contrary.
A commenter claimed that CBP has
yet to implement a desktop version of
the app and has provided little clarity
on whether and when such a version
would be available. The commenter also
stated that many migrants lack regular
access to desktop computers.
Response: The Departments disagree
that the CBP One app is a barrier to
seeking asylum. The Departments also
disagree with the contention that this
rule sets up a linkage between access to
an adequate cell phone or internet and
the merits of an individual’s asylum
claim. Rather, the CBP One app is a tool
that DHS has established to process the
flow of noncitizens seeking to enter the
United States in an orderly and efficient
fashion. CBP intends to increase the
number of available appointments when
the Title 42 public health Order is lifted
and anticipates processing several times
more migrants each day at the SWB
POEs than the 2010–2016 daily average,
including through use of the CBP One
app.239 Further, noncitizens who
239 See CBP, CBP STAT, U.S. Customs and Border
Protection (CBP) Enforcement Encounters—
Southwest Border (SBO), Office of Field Operations
(OFO) Daily Average (internal data report, retrieved
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present at a POE without using the CBP
One app are not automatically barred
from asylum.240 The determination of
whether the rebuttable presumption
applies will be determined by an AO
during the credible fear process or by an
IJ in section 240 removal proceedings, at
which time the noncitizen can
demonstrate it was not possible to use
the CBP One app due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle. CBP officers will not be
making determinations about whether
the rebuttable presumption is
applicable.
The CBP One app is free to use and
publicly available. As noted in the
NPRM, a limited study conducted at
two POEs in December 2022 found that
individuals had a smartphone in 93 out
of 95 Title 42 exception cases. At the
time of this survey, migrants were not
required to utilize the CBP One app to
schedule an appointment to be
considered for a Title 42 exception; that
requirement was implemented in
January 2023.241 Additionally,
independent studies demonstrate that
approximately two-thirds of individuals
worldwide had smartphones by 2020.242
The Departments acknowledge that
other studies provided by commenters
show varying rates of smartphone access
among migrants, that not all migrants
may have access to a smartphone or be
able to easily use the CBP One app, and
that lack of smartphone access may
hinder a migrant’s ability to use the CBP
One app. However, individuals who do
not have a smartphone or who have
other phone-related problems can seek
assistance from trusted partners, who
may be able to share their phones or
provide translation or technical
assistance if needed to submit
Apr. 13, 2023); Memorandum for William A.
Ferrara, Exec. Ass’t Comm’r, Off of Field
Operations, CBP, from Troy A. Miller, Acting
Comm’r, CBP, Guidance for Management and
Processing of Undocumented Noncitizens at
Southwest Border Land Ports of Entry (Nov. 1,
2021), https://www.cbp.gov/sites/default/files/
assets/documents/2021-Nov/CBP-mgmt-processingnon-citizens-swb-lpoes-signed-Memo-11.1.2021508.pdf.
240 In addition, under this rule, any noncitizen
will be able to present at a POE, and CBP will not
turn away any individuals—regardless of manner of
entry into the United States—or deny them the
opportunity to seek admission to the United States.
However, those who arrive at a POE without an
appointment via the CBP One app may be subject
to longer wait times for processing depending on
daily operational constraints and circumstances.
241 See CBP, CBP OneTM Mobile Application (Apr.
10, 2023), https://www.cbp.gov/about/mobile-appsdirectory/cbpone.
242 Allan Jay, Number of Smartphone and Mobile
Phone Users Worldwide in 2022/2023:
Demographics, Statistics, Predictions (Mar. 16,
2023), https://financesonline.com/number-ofsmartphone-users-worldwide/.
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information in advance. In addition,
CBP has conducted extensive
engagement with NGOs and
stakeholders and has received feedback
and information about the challenges
associated with the use of the CBP One
app. Throughout these engagements,
access to smartphones has been raised,
although not as a significant concern for
most individuals. CBP is aware that
NGOs provide support and assistance
with access to mobile devices and
internet connectivity. CBP notes that
from January 12, 2023, when
appointment scheduling launched,
through the end of March 2023, over
74,000 noncitizens have scheduled an
appointment via the CBP One app.243
Nevertheless, CBP acknowledges
there can be connectivity gaps and
unreliable Wi-Fi in central and northern
Mexico. CBP reiterates that the use of
the app to schedule an appointment to
present at a POE is geofenced to only
those migrants who are present in
central and northern Mexico, and so
commenters’ concerns regarding
internet censorship in other countries
are misplaced. However, in response to
feedback about connectivity issues, on
February 18 and 23, 2023, CBP released
updates to the CBP One app to improve
the submission and scheduling process
for individuals with lower bandwidth.
In addition, based on user and
stakeholder feedback, CBP will
transition CBP One scheduling to a
daily appointment allocation process to
allow noncitizens additional time to
complete the process. This process
change will allow noncitizens to submit
a request for an appointment, and then
available appointments will be allocated
to those who made such a request.
Individuals who are issued an
appointment will have a 23-hour period
to complete the scheduling process and
confirm their appointment. Each day,
unconfirmed appointments will be
reallocated among the current pool of
registrations. This change will reduce
the burden on the noncitizen to have
connectivity at the precise moment of
the daily appointment release, as is
currently the case. This process will
also enable noncitizens to request a
preferred POE at which to schedule an
appointment. Future and ongoing
enhancements to the app are expected
based on user and stakeholder feedback
to ensure equity in the scheduling
process.
The Departments acknowledge
concerns about the availability of a
243 CBP, CBP Releases March 2023 Monthly
Operational Update (Apr. 17, 2023), https://
www.cbp.gov/newsroom/national-media-release/
cbp-releases-march-2023-monthly-operationalupdate.
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desktop app for scheduling
appointments. There is currently a
desktop version of the CBP One app,244
but it is not currently available for
noncitizens to submit advance
information. CBP is updating the
desktop capability to provide the ability
for undocumented noncitizens to
register via the desktop version. This
update is expected to be available in
summer 2023. However, CBP does not
have plans to enable users to schedule
an appointment using the desktop
version of the CBP One app because the
desktop version does not allow for
specific requirements that CBP has
determined are needed such as
geofencing and a live photo. This
scheduling functionality will only be
available via a mobile device.
CBP notes that commenters’ concerns
about access to the CBP One app are
misplaced. Noncitizens seeking to
schedule an appointment to present at
a land POE are not required to have a
passport.245 Other functions of the CBP
One app, including the Advance Travel
Authorization (‘‘ATA’’) functionality
used as part of the CHNV parole
processes, require an individual to
provide their passport information.246
Comment: One commenter expressed
concerns that the Departments relied on
use of the CBP One app among the
Venezuelan population as part of the
CHNV parole processes to justify use of
the CBP One exception in this rule. In
particular, the commenter asserted that
the use of the app among the
Venezuelan population seeking to travel
to the United States to seek parole was
not a good indicator of the app’s use
among other populations of migrants,
many of whom were less technically
savvy and required more assistance with
the app.
Response: This commenter’s concern
is misplaced because the Departments
have not relied on any data regarding
Venezuelan migrants’ access to CBP One
in this rule. The Departments
acknowledge and agree that use of the
CBP One app in the ATA context is not
comparable to the use of the app to seek
an appointment to present at a POE and
note that the ATA process is separate
and distinct from the use of the CBP
One app to schedule an appointment to
present at a POE.
Comment: Commenters also stated
that use of the CBP One app is
particularly difficult for families who
244 See CBP, DHS/CBP/PIA–068, Privacy Impact
Assessment for CBP OneTM Mobile Application 15
(2023), https://www.dhs.gov/sites/default/files/
2023-01/privacy-pia-cbp068-cbpmobileapplicationjan2023.pdf.
245 See id. at 15 n.18.
246 See id. at 21–22.
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may be unable to make appointments
together. Another commenter stated that
families may not have time to register
together before all of the appointments
are taken. Other commenters noted that
family separation may occur because of
both stress and confusion. Another
commenter noted that CBP officers told
individuals that they had the option of
leaving children behind, trying to get
another appointment, or sending
children alone, underscoring that the
CBP One app increases the likelihood
that families will separate themselves in
order to get appointments or to enter the
United States. At least one commenter
noted that there should be an adequate
number of appointments set aside for
families. Commenters also stated that
the CBP One app is insufficient as a
lawful pathway because it does not
allow families to register together. One
commenter, a legal services provider,
stated that it had raised concerns to CBP
about the length of time that families
were waiting to seek an appointment.
The commenter stated that CBP told the
entity that the delay for families was
likely a result of criminal groups making
fraudulent appointments, which the
commenter concluded was evidence
that expansion of the CBP One app
would increase exploitation of migrants.
One legal services clinic stated that it
had been informed by a CBP Field
Office on the SWB in March 2023 that
officers had not interviewed any
families with more than six members,
which was concerning given the number
of larger families waiting to enter. A
commenter stated that children should
not be held responsible, through their
eligibility for asylum, for whether their
parents used the CBP One app to enter.
One commenter noted that in February
2023 a family was not permitted to enter
because the appointment did not list the
children’s names.
Response: CBP acknowledges the
concerns regarding the ability of
families to submit appointments
together and has been working to
address such concerns. Following the
initial implementation, CBP received
feedback that the app was timing out
during the registration process of
families with babies or young children
and determined that this was caused by
delays in the third-party liveness
verification (that is, the process to verify
that each person listed is, in fact, a live
person). In February 2023, CBP updated
the workflow in the app to address this
issue by removing liveness detection as
part of the registration process. Users
are now only required to take a still
photo of each traveler at the time of
registration, the same action as if taking
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any photo from a mobile device, which
only takes a few seconds. Following this
update to remove liveness detection
from the registration process, CBP has
received feedback from NGOs that there
are fewer reported errors.
CBP has also consolidated
appointment slots to increase the
number of available appointments at the
same time, where feasible, making it
easier for family units to get an
appointment together. For example, if a
POE previously had two separate
appointment times with 10
appointments each, they might have
been combined to create one
appointment time with 20 slots, making
it easier to accommodate larger groups.
CBP continues to advise users and
NGOs that one member of the family
should create a registration on behalf of
the entire family. While each member of
a family must have a unique
appointment, one member of a family
can create the submission on behalf of
the entire family group and complete
the scheduling process, including the
photo capture, to secure appointments
for all registered family members.
Functionally, this is similar to buying
airline tickets. A designated person
accesses the website, the website
ensures there are seats for the indicated
number of people, and the designated
person provides the details for each
individual to complete the purchase. At
this stage, only the individual
submitting the registration on the
family’s behalf is required to provide a
live photograph.
Following the rollout of these
enhancements, as of April 18, 2023, CBP
data show that, for appointments
scheduled from March 8, 2023, through
May 1, 2023, groups make up an average
of 83 percent of the CBP One scheduled
appointments. Families or groups who
do not register together on one CBP One
account may not be accommodated at
the same POE or on the same date. The
Departments acknowledge that
challenges remain for larger families,
but the Departments believe that these
changes have significantly ameliorated
the concerns raised by commenters that
family groups have been unable to
obtain appointments.
CBP shares commenters’ concerns
about fraud and exploitation and has
taken several steps to try to mitigate
such issues. Specifically, the app uses 1to-1 facial matching, meaning that it
compares still photos submitted by
users during the registration process to
subsequent photos submitted by the
same users while scheduling an
appointment. This photo matching
helps to ensure that the individual
making an appointment is the same
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person who registered for the
appointment. Additionally, the app’s
liveness detection verifies that a person
submitting an appointment is, in fact, a
live person. Finally, users have a
limited number of submissions per
Login.gov authenticated identity,
helping to prevent one individual from
submitting bulk appointment requests.
With respect to the comment stating
that children should not be held
responsible for whether their parents
used the CBP One app to enter, the
Departments note that they have
exempted from this ongoing application
of the rebuttable presumption
noncitizens who entered the United
States during the two-year period while
under the age of 18 and who later seek
asylum as principal applicants after the
two-year period. 8 CFR 208.33(c)(2),
1208.33(d)(2).
Comment: Commenters noted that the
app is only available in English,
Spanish, and Haitian Creole, which
limits accessibility for many, such as
speakers of indigenous languages or
other languages outside this limited list.
A commenter referred to a study that, in
January 2021, identified more than forty
different languages spoken by
individuals with pending MPP
proceedings, which, according to the
commenter, rendered it ‘‘alarming’’ that
the app was available in only three. One
commenter stated that, as of January
2023, the app was not available in
Creole. Other commenters expressed
concern about those who may be
illiterate who are still seeking to access
the app, including those who may not
be literate in one of the languages
available on the app. At least one
commenter noted that Login.gov is also
only available in English, Spanish, and
French, noting that based on at least one
report these are not the most common
languages and that third party assistance
does not adequately address this
concern. Another commenter stated that
due to limited resources and high
demand, it is not clear whether nonprofit service providers will be able to
help asylum seekers overcome the CBP
One app’s language barriers.
Commenters also expressed concern
about specific portions of the CBP One
app that they stated are only available
in English. Specifically, commenters
stated that the CBP One app’s advisals
regarding the terms and conditions of
use and the repercussions of fraud or
willful misrepresentation are presented
exclusively in English. Other
commenters said that all answers
entered into the app must be in English,
resulting in many individuals requiring
assistance, including Spanish and
Haitian Creole speakers, even though
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the CBP One app is available in their
native language. Other commenters
noted that the app’s error messages are
only in English, even if the user selects
a different language, which makes using
the app difficult for asylum seekers who
cannot understand English. Commenters
expressed that the limited availability of
interpreters and the time required to
enter information using interpreters
added to difficulties in obtaining
appointments through the CBP One app
for non-English speakers. Commenters
maintained that translating the CBP One
app into additional languages would not
resolve access issues for individuals
with no or limited literacy.
Commenters also expressed concern
about migrants’ ability to meet the
language barrier exception. One
commenter stated that asylum seekers
will struggle to meet the language
barrier exception because the rule does
not provide a clear process for how they
can demonstrate that they were unable
to use the CBP One app due to language
issues. The commenter stated it is
unclear whether the asylum seekers
must show that they sought help from
a third party before presenting
themselves at a POE. One commenter
stated that the rule does not explain
how noncitizens with language, literacy,
or technology issues can access this
exception.
Response: As commenters noted, the
CBP One app is currently available in
English, Spanish, and Haitian Creole.
The addition of Haitian Creole, on
February 1, 2023, was based on
stakeholder feedback. The translation of
terms and conditions into all three
languages was added on April 6, 2023.
Initial analysis conducted in March
2023 indicated the current three
languages account for 82 percent of the
application users, with the next most
common language being Russian, at 9
percent. Currently, CBP has not received
any requests to make the app available
in Russian. However, CBP will continue
to consider the inclusion of additional
primary languages, which will be made
available based on analysis of
populations encountered at the border
and user feedback. Additionally, outside
entities, including NGOs, or other
persons may provide assistance with the
appointment scheduling process in the
CBP One app.
CBP is also implementing the
translation of all drop-down menus as
well as allowing for special characters,
which is expected to be complete by
May 11, 2023. This update will also
allow users to input answers in the
three available languages. While most of
the error messages are translated, CBP
acknowledges that not all messages are
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translated, as a few system errors stem
from different sources that do not have
translation capabilities. However, CBP
also has detailed user guides—which
are available in English and Spanish
(and Haitian Creole by the end of May
2023)—fact sheets—which are available
in English, Spanish, Haitian Creole,
Portuguese, and Russian—and video
introductions available for free on the
CBP.gov website, which provide visual
overviews on how to submit
information in advance.247
With regard to Login.gov, that website
is an independent authentication
service for government mobile
applications, and therefore CBP has no
authority to make changes to it.
However, CBP has submitted a request
to GSA to consider adding Haitian
Creole as an additional language.
The Departments acknowledge
commenters’ concerns about application
of the exception to the rebuttable
presumption of asylum ineligibility for
those who can demonstrate that it was
not possible to access or use the CBP
One app due to language barrier,
illiteracy, or another serious and
ongoing obstacle, 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B),
and such concerns are discussed further
in Section IV.E.3.ii.d of this preamble.
Comment: Commenters stated that the
CBP One app is inaccessible for many
migrants, particularly the most
vulnerable. A commenter stated that
they had done volunteer work with
asylum seekers from a few African
countries and from many Spanishspeaking countries, and that reliance on
the CBP One app is unfair because it
assumes that migrants have a level of
literacy, electricity, and time that are
often unavailable to those desperately
seeking safety. Another commenter
noted that those with mental
impairments or physical impairments,
including arthritis, may not be able to
use the CBP One app. One commenter
stated that there is no rebuttal available
for people with educational, mental, or
psychological disabilities or who are
unable to secure a timely appointment.
One commenter stated that the proposed
rule does not provide reasonable
accommodations related to difficulties
of using the CBP One app for people
with disabilities, which the commenter
asserted violated section 504 of the
Rehabilitation Act, 29 U.S.C. 701 et seq.
Response: CBP acknowledges that
certain individuals may have difficulty
accessing the CBP One app. However,
CBP has taken several steps to facilitate
awareness of and access to the app. In
247 CBP, CBP OneTM Mobile Application, https://
www.cbp.gov/about/mobile-apps-directory/cbpone.
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particular, CBP has conducted extensive
engagement with NGOs and
stakeholders and has provided several
opportunities to non-profit and
advocacy organizations to provide
feedback and receive information about
the use of the CBP One app. Such
entities may also serve as a resource for
technological, humanitarian, and other
assistance to migrants accessing the app.
Management at POEs where the app is
being utilized are also in regular contact
with these support organizations to
address any issues and concerns in real
time.
Additionally, the CBP One app is
undergoing a compliance review under
section 508 of the Rehabilitation Act of
1973, which is expected to be
completed by the end of May 2023. CBP
expects a final certification by the end
of August 2023. There are also several
assistive technologies that can be
utilized to translate the app
independently, such as free apps that
provide screen readers, magnification,
and translation.
c. CBP One Technological Issues and
Functionality
Comment: Commenters expressed
concerns that the CBP One app has
multiple glitches and problems, most
notably that it allegedly does not
capture or register darker skin tones and
does not allow some individuals to
upload their photos, instead displaying
error messages. Some commenters
referred to studies that demonstrated
racial bias in facial recognition
technology. One commenter stated that
certain disabilities or conditions,
including blindness and autism,
prevented users from effectively
capturing a live photograph for the app.
A commenter expressed concern that
transgender individuals may present
differently at the border than they did
at the time their photograph was taken.
Response: The Departments are
committed to equal access to the CBP
One app for individuals of all races and
ethnicities. At this time, CBP has not
found any indication of meaningful
discrepancies in app functionality based
on skin tone. The predominant reason
for error messages during the photo
process was the volume of submissions
at one time with low connectivity and
bandwidth of other technological
platforms that supported the app. To
ensure equity for all nationalities in the
photo process, CBP is continuing to
assess and study the software’s
performance.
For additional context, there are two
photo capture technologies utilized in
the CBP One process: the Traveler
Verification Service (‘‘TVS’’) and
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‘‘liveness detection.’’ TVS is a facial
recognition technology that allows a
CBP One submitter’s photo to be
compared against subsequent submitted
photos to ensure it is the same
individual each time a photo is
submitted.248 This system is utilized at
two different points in the process: (1)
during the process of scheduling an
appointment, to verify that the photo
submitted matches the photo previously
provided during registration; and (2)
upon a noncitizen’s arrival at a POE,
where officers take another photo of the
individual as part of the inspection
process and verify that that photo
matches the photograph submitted at
the time of scheduling. However, there
are alternative methods to verify that the
individual presenting at the POE
matches the individual who scheduled
through CBP One if facial matching is
not possible. For example, an officer can
enter the unique confirmation number
provided by the CBP One application or
biographic data.249 Additionally, CBP
has partnered with the National
Institute of Standards and Technology,
the DHS Science and Technology
Directorate, and the DHS Office of
Biometric Identity Management to
assess and test facial recognition
technology and algorithms as part of
efforts to improve the effectiveness of
the process.250 Additional information
is publicly available in the TVS Privacy
Impact Assessment.251
CBP One also relies on ‘‘liveness
detection.’’ The vast majority of
feedback CBP has received regarding
issues identifying people of color were
identified as related to liveness
detection during the registration
process. As explained in more detail
below, CBP One previously utilized
liveness detection during both the
registration and scheduling processes.
For context, the CBP One app utilizes
third-party software to verify ‘‘genuine
248 See CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 10 (2023), https://
www.dhs.gov/sites/default/files/2023-01/privacypia-cbp076-advance-collection-for-undocumentedindividuals-jan2023_0.pdf; CBP, DHS/CBP/PIA–
056, Privacy Impact Assessment for the Traveler
Verification Service (2018), https://www.dhs.gov/
publication/dhscbppia-056-traveler-verificationservice.
249 See CBP, DHS/CBP/PIA–076, Privacy Impact
Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 10–11 (2023),
https://www.dhs.gov/sites/default/files/2023-01/
privacy-pia-cbp076-advance-collection-forundocumented-individuals-jan2023_0.pdf.
250 See CBP, DHS/CBP/PIA–056, Privacy Impact
Assessment for the Traveler Verification Service
15–16 (2018), https://www.dhs.gov/publication/
dhscbppia-056-traveler-verification-service.
251 See generally id.
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presence’’ or ‘‘liveness’’ during
registration and scheduling an
appointment.252 The liveness
verification confirms the user is a live
person and is not taking a photo of a
photo or video.253 Such verification
ensures that appointments are given to
bona fide individuals and family
groups, rather than brokers or
middlemen who might seek to book
appointments in bulk and then sell
them to migrants.
When the scheduling capability was
initially implemented in January 2023,
CBP originally required users to take a
live photograph at the time they input
their biographic information to register
for the app, and, if they were unable to
schedule an appointment at the same
time, they were required to take a live
photograph again at the time they
scheduled an appointment. This
requirement took significant bandwidth,
which resulted in many users
experiencing difficulty. However, based
on feedback from users and
stakeholders, and consistent with its
security protocols, CBP has determined
the liveness check is no longer required
during the registration process and
implemented this change in February
2023. Therefore, while users are
required to submit a photo at the time
of registration, this photo does not need
to be a live photo. Rather, the user is
only required to submit a live photo at
the time of scheduling an appointment,
so that the liveness check and facial
matching only occur during the
scheduling of the appointment. When
scheduling an appointment on behalf of
a family or group, only one member of
that family group is required to submit
a live photograph. At that time, the CBP
One app utilizes the live photo and
facial matching technology to match the
photo submitted during scheduling to
the original photo submitted upon
initial registration to verify that both
photos are of the same person. Thus, an
individual must only present similarly
in photographs at the time of
252 See, e.g., CBP, DHS/CBP/PIA–076, Privacy
Impact Assessment for the Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border 23 (2023), https://
www.dhs.gov/sites/default/files/2023-01/privacypia-cbp076-advance-collection-for-undocumentedindividuals-jan2023_0.pdf; see also DHS, News
Release: DHS S&T Awards IPROOV $198K to Pilot
Genuine Presence Detection and Anti-Spoofing
Capability (Nov. 6, 2020), https://www.dhs.gov/
science-and-technology/news/2020/11/06/newsrelease-st-award-genuine-presence-detection-andanti-spoofing.
253 DHS, News Release: DHS S&T Awards
IPROOV $198K to Pilot Genuine Presence Detection
and Anti-Spoofing Capability (Nov. 6, 2020),
https://www.dhs.gov/science-and-technology/news/
2020/11/06/news-release-st-award-genuinepresence-detection-and-anti-spoofing.
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registration and the time of submission.
Following this change, as well as others
made during February 2023 to increase
bandwidth, CBP has received feedback
that there are fewer errors.
In addition, with regard to concerns
about disparities based on skin tone, the
third-party vendor has conducted their
own equality study, which was
provided to CBP, and concluded that
across their global platform, differences
in performance between ethnicities are
on the order of tenths of a percent. As
of the end of March 2023, Haitians are
one of the top three nationalities using
the CBP One app.254 Regarding concerns
about the ability of the app to capture
a live photograph from individuals with
certain disabilities or conditions,
including blindness and autism, such
individuals are not required to submit a
live photograph if they are part of a
family or group, as another member of
that family or group can submit the live
photograph on their behalf. In the event
that an individual is unable to submit a
live photograph as part of the
submission process, they are
encouraged to seek assistance from
another person to take the photo for
them. In addition, CBP consistently
evaluates the registration and
scheduling process, including the use of
live photographs, and will continue to
make enhancements and adjust the
process based on feedback and
operations.
Comment: Commenters noted a range
of technology-related concerns with the
CBP One app. Commenters described
the CBP One app as very difficult to use,
stating that it often crashes or is prone
to glitches. Another commenter stated
that there have been reports of the CBP
One app freezing when noncitizens try
to send confirmation of their interview
dates. Some commenters noted that
those seeking to enter the United States
may not have the technical ability to
navigate the app. A commenter noted
that, although the Departments stated in
the NPRM that CBP had conducted
‘‘extensive testing’’ of the app’s
technical capabilities, such statement
was not supported by any publicly
available studies or information.
Commenters also recommended that
CBP develop timely and effective
mechanisms to receive and address
reports of errors in the CBP One app.
Response: The Departments recognize
commenters’ frustration with the CBP
One app. As noted above in Section
IV.E.3.ii.a of this preamble, CBP systems
254 See CBP, CBP Releases March 2023 Monthly
Operational Update (Apr. 17, 2023), https://
www.cbp.gov/newsroom/national-media-release/
cbp-releases-march-2023-monthly-operationalupdate.
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undergo comprehensive testing and
evaluation to assess the respective
security features as part of the process
of being granted an ATO.255 The
advanced information and scheduling
capabilities addressed in this rule in
particular have undergone various
rounds of testing prior to and post
deployment. CBP also conducted
limited user testing both internally and
in partnership with an NGO partner.
The primary issues identified by users
since the app’s implementation have
been caused by issues that cannot be
fully identified in a testing
environment.
CBP continues to make improvements
to the app based on stakeholder
feedback, including updates to enhance
usability in low bandwidth and
connectivity scenarios, and to
streamline the submission and
scheduling process. CBP primarily
receives reports of errors or other
concerns through three mechanisms.
The first and primary mechanism is the
CBP One email inbox,256 to which users
may send an inquiry or concern about
any capability within the CBP One app.
Since CBP One has many capabilities
and functionalities, and is available to a
diverse audience, the inbox initially
responds by asking the author to select
the appropriate topic pertaining to their
specific issue. Emails related to the
ability to schedule appointments at
POEs are addressed by one of three
teams: CBP Customer Service, CBP’s
Office of Information Technology, or the
CBP One team within CBP’s Office of
Field Operations. CBP also receives
reports of errors or issues through
recurrent briefings and sessions with
NGOs. Third, CBP personnel both at
local POEs and within CBP
Headquarters receive direct email
communications from NGOs.
The reported issues are a result of the
volume of activity and the strain this
may put on local bandwidth and
connectivity. In an effort to improve app
performance in low or limited
bandwidth and connectivity situations,
CBP determined the live photo could be
removed as part of the registration
process. This change was implemented
in February 2023, and based on
feedback from NGOs and stakeholders,
it has reduced the number of reported
errors users experienced. CBP is actively
working to improve application hangup-error logging and reporting to better
255 See DHS, DHS 4300A Sensitive Systems
Handbook 47 (2015), https://www.dhs.gov/
publication/dhs-4300a-sensitive-systems-handbook.
256 See CBP, CBP OneTM Mobile Application (Apr.
10, 2023), https://www.cbp.gov/about/mobile-appsdirectory/cbpone.
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inform on user complaints and
application improvements.
d. Exception for Certain Failures To PreSchedule a Time and Place To Present
at a POE 257
Comment: Commenters provided
comments on the proposed exception to
the presumption for individuals who
present at a POE and demonstrate that
it was not possible to access or use the
CBP One app due to language barrier,
illiteracy, significant technical failure,
or another serious and ongoing obstacle.
Regarding the ‘‘illiteracy’’ and
‘‘language barrier’’ provisions,
commenters questioned how
noncitizens would prove that they
cannot understand any of the languages
offered by the CBP One app, and
whether testimony about their language
proficiency would suffice as evidence
for an exemption. One commenter said
the proposed rule does not provide a
standard for how officials will
determine asylum seekers’ language
proficiency, which could lead to
erroneous denials. Another commenter
said it is unclear whether asylum
seekers with language barriers must
show that they sought help from a third
party before presenting themselves at a
POE. A commenter expressed concern
that refugees who have basic
communication skills in English or
Spanish, but who cannot read or write
proficiently in either of those languages,
would wrongly be found to not have a
language barrier that would exempt
them from the requirement to use the
app. Another commenter wrote that the
exemptions based on illiteracy and
language barriers are reasonably clear
but the rule should clarify that literacy
in the dominant language of a country
should not be presumed for citizens of
that country because, for example, many
indigenous people in Guatemala do not
speak Spanish. One commenter
expressed concern that individuals with
limited English proficiency would face
difficulty establishing this exception
due to the unavailability of qualified
interpreters and recommended that if
the Government cannot obtain
interpreters for individuals, they should
257 This section describes comments and
responses related to the exception to the rebuttable
presumption for noncitizens who present at a POE
without having pre-scheduled a time and place for
an appointment. 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). Currently, as explained in the
NPRM, the only available system for scheduling
such an appointment is the CBP One app. 88 FR
at 11723. Accordingly, this section’s comments and
responses are focused on the use of the CBP One
app for this exception, although the exception
would apply similarly to any other scheduling
system developed for this purpose.
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be placed directly in section 240
removal proceedings.
Multiple commenters said the
proposed rule fails to clearly define
what constitutes a ‘‘significant technical
failure.’’ Several commenters said the
proposed rule did not outline how
individuals could document technical
difficulties such as app malfunctions or
inaccessibility. A commenter said it
may not be possible to screenshot the
app to document a glitch if the app is
frozen and producing this evidence
would be hard for migrants in detention
where they may not have access to their
phones. Another commenter asked if
this exception would include inability
to afford a smartphone, having a phone
stolen or broken, or inability to access
stable Wi-Fi. Another commenter stated
that additional usage of the CBP One
app after the Title 42 public health
Order is terminated would likely
exacerbate technical problems, leading
migrants to irregularly cross the border
and claim that the rebuttable
presumption does not apply due to
technical difficulties.
One commenter stated that the
Departments should update the
regulatory text to specify that
‘‘significant technical failure’’ refers to
an inability of the DHS scheduling
system to provide, on the date that the
noncitizen attempted to use it, an
appointment for entry within the two
weeks after such attempt, together with
the failure of that system, when access
to it is sought at the POE at which the
noncitizen has presented, to provide an
appointment at that POE within the
following two weeks. A commenter
similarly recommended that, for the first
12–18 months after the lifting of the
Title 42 public health Order, the
Departments should assess the
application of the exception based on a
‘‘more liberal’’ standard than the
preponderance of the evidence, based
on an assumption that the CBP One app
is likely to have numerous technical
failures.
Commenters stated that the proposed
rule failed to clearly define what
constitutes an ‘‘ongoing and serious
obstacle.’’ Commenters questioned
whether a failed attempt to make an
appointment using the CBP One app is
likely to be considered sufficient. A
commenter also stated that the
Departments should specify certain
foreseeable obstacles in the regulations
as ongoing and serious obstacles, such
as mental impairments or physical
conditions that affect one’s ability to use
a smartphone. One commenter
questioned whether the dangers that
marginalized asylum seekers face in
parts of central and northern Mexico
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would be deemed an ongoing and
serious obstacle. Another commenter
said the Departments should provide a
list of anticipated obstacles to prevent
arbitrary and inconsistent
determinations and recommended that
the list ‘‘include, for example, mental
impairments; physical impairments
such as severe arthritis of the hands that
prevent the use of a cell phone or other
device to access the CBP One app; lack
of access to such a device coupled with
poverty such that the noncitizen could
not reasonably purchase such a device;
and a continuing lack of appointments
in the near future to enter at the POE at
which the noncitizen has presented.’’
One commenter recommended that if
the app is crashing or the available
appointments are so limited near where
the asylum seeker is located that they
cannot promptly obtain an appointment,
then the affected asylum seeker should
not have the burden of proving the
impossibility of accessing the system.
That commenter proposed that USCIS
should assign an official to monitor the
app and capacity of processing facilities
and post on a public website whether
the app was functioning and the
availability of appointments. According
to that commenter, this public
information, showing that the app was
functioning and that prompt entry
appointments were available, would
create a presumption that no significant
failure had occurred. Similarly, another
commenter suggested that the exception
should also take into account the
potential for human error, specifically
referring to a situation in which a
migrant believes they have an
appointment, the app failed to register
that appointment, and a CBP officer
permits the individual to enter the POE.
The commenter stated that, in such a
case, the migrant ‘‘should not be
punished when they are following the
rules’’ and should not be required to
show that there were significant
technical failures. The commenter
suggested amending the regulatory text
so that the rebuttable presumption
would not apply if the noncitizen shows
‘‘that it was not possible to access or use
the DHS scheduling system due to
language barrier, illiteracy, significant
technical failure, or human error.’’ The
commenter also recommended
amending the regulatory text to include
a statement that ‘‘such evidence may
include data on the performance of the
CBP One app which DHS will make
publicly available as well as records of
problems reported by users.’’
Commenters also noted potential
procedural concerns with application of
this exception. Some commenters stated
that it will be difficult for noncitizens to
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meet the burden of demonstrating this
exception, since the issue will arise in
credible fear interviews when people
are not likely to be represented. One
commenter said it was impossible for
asylum seekers to show they meet this
exception because it would require
them to prove a negative. Another
commenter stated that CBP often
confiscates people’s phones while they
are in CBP custody or people may have
borrowed phones to access the app,
meaning that they would not have
access to the evidence they need to
prove they encountered obstacles using
the CBP One app.
Commenters said it is unclear who
will determine if this exception applies
and expressed concern that some
individuals would be turned away
without the chance to seek asylum. One
commenter wrote that it was unclear if
the failure of an individual to indicate
that they qualify for an exemption
would be counted against them when an
AO reviews their case. Another
commenter recommended the creation
of a standardized form of questions for
officials to use when determining
whether individuals should be
exempted from the CBP One
appointment requirement. One
commenter wrote that the NPRM failed
to consider the practicality of
conducting the analysis for this
exception at the credible fear interview
stage.
Some commenters expressed concern
that the exception is too broad or easy
to exploit. One commenter stated that
applying the significant possibility
standard for this exception could result
in ‘‘carte blanche’’ acceptance of
testimony that such an obstacle was
present and thereby undermine the
intent of the rulemaking. Others said
that this exception was broad and easy
to exploit because it could encompass a
wide variety of difficult-to-verify claims,
such as losing one’s mobile phone,
losing access to cell service, and being
unable to pay for a new mobile phone
or data plan. One commenter also said
that the CBP One app’s publicized
technical issues would make it easy to
claim the exception. Another
commenter stated that, based on the
app’s rating in the app store, the app
almost appeared to be ‘‘designed to
fail,’’ to permit noncitizens to take
advantage of the exception. Another
commenter expressed general support
for the inclusion of exceptions but
predicted confusion and that migrants
would prefer to present at a POE with
an exception given the frequency of
instances where it is not possible to
access or use the DHS scheduling
system. One commenter disagreed with
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the proposed exception relating to
language barriers to accessing the CBP
One app, asserting that migrants would
take advantage of this exception to
appear at a POE without an
appointment. Another commenter stated
that the rule ‘‘impermissibly’’ shifts the
burden onto DHS to refute a
noncitizen’s assertion that it was not
possible to use the app and therefore
expressed concern about ‘‘exploitation’’
of the standard.
Some commenters recommended that
the Departments should expand the
exception for failure to use the CBP One
app when it is not possible to do so to
include noncitizens who enter the
United States without inspection, rather
than only applying to noncitizens who
present at a POE.
Response: The rule provides the same
exception set forth in the NPRM to the
applicability of the rebuttable
presumption if the noncitizen presented
at a POE and demonstrates by a
preponderance of the evidence that it
was not possible to access or use the
CBP One app due to language barriers,
illiteracy, significant technical failure,
or other ongoing and serious obstacle.
See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). This exception
captures a narrow set of circumstances
in which it was truly not possible for
the noncitizen to access or use the CBP
One app. See 88 FR at 11723 n.173.
The Departments appreciate the
commenters’ suggestions about the
scope of the exceptions in 8 CFR
208.33(a)(2)(ii)(B) and
1208.33(a)(2)(ii)(B). With regard to the
‘‘illiteracy’’ exception, the Departments
acknowledge and agree that citizenship
is not necessarily a proxy for literacy in
a particular language, and there is no
presumption in the CBP One app or in
this rule regarding a particular migrant’s
language. The Departments note,
however, that individuals may seek
assistance, including translation
assistance, in using the app. And, to the
extent that an individual is unable to
access the app due to their language
barriers, they may be excepted from the
presumption, as discussed earlier in this
preamble. The Departments decline to
specify precise ways by which a
noncitizen must prove, or particular
language standards by which an AO or
IJ must assess, that the noncitizen
qualifies for a language barrier or
illiteracy exception. This is to preserve
flexibility and account for the unique
circumstances of certain noncitizens
who are illiterate or who face language
barriers. Exceptions under this part of
the rule will be assessed on a case-bycase basis.
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The Departments also acknowledge
that the parameters of the exception do
not include a specific definition of
‘‘significant technical failure’’ and thank
the commenter for their suggested
definition. However, the Departments
decline to add this definition to the
regulatory text, as the Departments
believe that there may be any number of
ways that an individual could show a
‘‘significant technical failure.’’ The
Departments also note that this
exception is intended to cover technical
failures of the app itself—e.g., the app
is not available due to a CBP network
or server issue causing it to crash—
rather than a situation in which a
migrant is unable to schedule an
appointment due to high demand or one
where there is a fleeting, temporary
technical error. In such a situation, the
Departments encourage noncitizens to
continue seeking to schedule an
appointment, but, to the extent that they
are prevented from doing so because of
exigent circumstances, they may be able
to show that they have experienced
another ‘‘ongoing and serious obstacle,’’
such that they are excepted from the
presumption. The Departments likewise
decline to amend the regulatory text to
take into account human error or
specific data on the performance of the
CBP One app. As noted above, there
may be any of number of ways to show
a significant technical issue, or, as
described in more detail below, an
‘‘ongoing and serious obstacle,’’ which
may be specific to the individual user.
As noted below, the determination of
whether the presumption applies will
be made on a case-by-case basis.
The Departments appreciate
commenters’ concerns about what
constitutes an ‘‘ongoing and serious
obstacle.’’ The Departments agree that
an individual with a mental or physical
impairment may have difficulty
accessing the app but decline to add a
new categorical exception to the
regulatory text for individuals with
mental or physical impairment. This is
in part because the Departments do not
intend to limit the exception to a
specified category or group of
conditions, and AOs and IJs will
determine the application of the
exception on an individualized basis.
The Departments also decline to create
further rules regarding which situations
will generally or categorically qualify
for this exception, including on the
basis of failed attempts to make an
appointment through the CBP One app.
This will preserve flexibility and
account for the unique circumstances
that noncitizens may face while
attempting to schedule an appointment
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to appear at different POEs at different
times. Exceptions under this part of the
rule will be assessed on a case-by-case
basis.
The Departments respectfully disagree
with commenters’ concerns as to
noncitizens’ ability to establish this
exception. First, with regard to the
commenters’ concerns about access to
counsel in credible fear interviews, that
issue is discussed earlier in Section
IV.B.5.ii of this preamble. The
Departments decline to alter the burden
of proof required for a migrant to show
that it truly was not possible for them
to access the CBP One app. As an initial
matter, the Departments note that
noncitizens outside of the United States
have no freestanding right to enter, and
no right to enter in a particular manner
or at a particular time. See, e.g.,
Shaughnessy, 338 U.S. at 542. The CBP
One app does not alter this longstanding
principle, but rather is intended to
incentivize and facilitate an orderly
flow of travel into the United States.
Thus, the Departments decline to
change the burden of proof from the
noncitizen to the Government or adopt
a more liberal standard for noncitizens
who enter the United States during the
initial months after the rule takes effect.
Concerns about who will assess
whether the exception applies are
misguided. The rule tasks AOs and IJs,
not CBP officers, with determining
whether a noncitizen meets this
exception to the rule. 8 CFR 208.33(b)(1)
(‘‘The asylum officer shall first
determine whether the alien is covered
by the presumption . . . .’’); id.
1208.33(b)(2) (‘‘The immigration judge
shall first determine whether the alien
is covered by the presumption . . . .’’).
So too are concerns as to an inability to
access physical evidence to prove the
exception while in custody. Noncitizens
may be able to establish that they meet
the exception through testimony so long
as it is credible, persuasive, and refers
to specific facts to establish the
exception. INA 208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). A noncitizen also does
not need to affirmatively raise this issue
to qualify for the exception; adjudicators
are trained to elicit testimony relevant
to establishing a credible fear, as
described in Section IV.B.5 of this
preamble. However, if a noncitizen fails
to disclose a technical failure or other
obstacle when questioned about their
failure to schedule an appointment
using the CBP One app, this could
potentially affect the credibility of their
testimony if they later claim an
exception in subsequent proceedings.
The Departments also disagree with
commenters who claimed this exception
is too broad or easy to exploit. The
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31407
Departments disagree with the assertion
that this exception will cause
noncitizens to appear at a POE without
an appointment. Noncitizens are not
required to make an appointment in the
CBP One app to present at a POE, and
in no instance will an individual be
turned away from a POE. All
noncitizens who arrive at a POE will be
inspected for admission into the United
States. 8 CFR 235.1(a). Those, however,
who present at a POE without making
an appointment in the CBP One app,
and do not meet another exception, will
be subject to the presumption. For the
exception to apply, the noncitizen must
do more than merely assert that they
could not access the scheduling system
for one of the identified reasons,
without further explanation. Rather,
AOs and IJs will assess whether the
noncitizen has demonstrated that they
meet the exception on a case-by-case
basis as part of the credible fear process
or in section 240 removal proceedings.
Additionally, the Departments note the
app is not intended or designed to
‘‘fail,’’ and that AOs and IJs will
evaluate on a case-by-case basis whether
a noncitizen has shown that it was not
possible to access the app due to
language barriers, illiteracy, significant
technical failure, or other ongoing
serious obstacle.
Finally, the Departments decline to
expand this exception to noncitizens to
enter the United States without
inspection instead of presenting at a
POE. The Departments believe this
would undermine the rule’s purpose of
incentivizing migrants to use lawful,
safe, and orderly pathways to enter the
United States. In cases where it was
truly not possible for a noncitizen to
access or use the CBP One app due to
one of the rule’s enumerated reasons,
the Departments believe it would be
preferrable to incentivize that
noncitizen to seek admission at a POE
rather than attempt a potentially
dangerous entry between POEs. The
latter could require the assistance of
smugglers or traffickers and could place
further strain on DHS resources in
apprehending the noncitizen and
commencing removal proceedings.
iii. Adequacy of Parole
Comment: While many commenters
expressed support for the parole
processes referenced in the NPRM,
many also expressed a range of concerns
about the role of the parole processes in
the rule’s rebuttable presumption. A
commenter stated that the parole
processes only account for small
numbers of potential asylum seekers.
One commenter stated that the parole
programs have little bearing on asylum
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access at the SWB or the Departments’
stated goal to reduce border
apprehensions. The commenter also
stated that those who have the time and
means to use these parole programs are
not the same people who flee and
approach the SWB. Another stated that
the parole processes should not be the
only way for migrants to come to the
United States and petition for asylum.
Another commenter stated that while
Afghan migrants might be able to apply
for humanitarian parole, the wait for the
applications to be processed is too long
for those who are living in danger in
their country, and alleged that nearly 90
percent of humanitarian parole
applications filed from outside the
United States in the last year were
denied.
Commenters stated that the CHNV
parole processes are flawed because (1)
they are limited to CHNV nationals; (2)
they have a monthly cap, limiting the
number of people who may enter the
United States each month; (3) they
require applicants to hold unexpired
passports, which is uncommon for most
citizens of Latin America and the
Caribbean because of financial
constraints; (4) they require a U.S.-based
contact with the financial wherewithal
to sponsor the applicant, which favors
wealthy applicants and those with a
broader network of support in the
United States; (5) the applicant will
need additional financial resources to
afford a plane ticket and to meet
vaccination and other requirements; and
(6) humanitarian parole is not a
substitute for asylum. Commenters
stated that government officials may
confiscate passports or target passport
applicants at government offices, and
noncitizens may not be able to wait for
a passport or for receipt of advanced
authorization due to the risk of harm or
death. One commenter stated that huge
backlogs related to the parole program
have overwhelmed Haiti’s passport
system.
One commenter stated that the rule’s
impact on those who have been preapproved by CBP to present for parole
at POEs under section 212(d)(5) of the
INA, 8 U.S.C. 1182(d)(5), due to urgent
humanitarian reasons or significant
public benefit is unknown because the
rule does not clarify whether those preapproved to present for parole by port
officials will face the presumption of
asylum ineligibility.
Another commenter expressed
concern that the CHNV parole processes
would simply add to the population of
migrants present in the United States
without status, which according to the
commenter would impose a burden on
American taxpayers, and that the parole
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processes simply ‘‘kicks the can down
the road.’’
Response: The parole processes
established for CHNV nationals are
available lawful pathways—though not
the only available lawful pathways—for
qualifying individuals seeking to come
to the United States. Each month, DHS
issues advance travel authorizations for
up to 30,000 CHNV nationals to travel
to the United States to be considered by
CBP on a case-by-case basis for a
temporary grant of parole for a period of
up to two years. Once the individuals
have arrived in the United States, they
may apply for immigration benefits for
which they may be eligible, including
asylum and other humanitarian
protections. The Departments recognize
that the parole processes are not
universally available, even to the
covered populations; in addition, the
parole processes established for CHNV
nationals and Ukrainians are distinct
from applying for asylum and are not a
substitute for applying for asylum.
Although noncitizens who are eligible
for these processes may apply for
asylum after being paroled into the
United States, there is no requirement
that they do so. These processes do,
however, represent one lawful, safe, and
orderly pathway available to certain
CHNV nationals seeking to enter the
United States.
Similarly, while DHS recognizes that
several commenters have raised
concerns about the adequacy of the
parole processes, this rule’s reference to
the parole processes is not intended to
suggest that the parole processes are an
alternative to or replacement for asylum.
Rather, the parole processes are lawful,
safe, and orderly pathways that the
Departments wish to encourage in light
of the urgent circumstances presented.
Eligible noncitizens may use these
processes to seek entry into the United
States, and, thereafter, apply for asylum
if desired. Moreover, with respect to the
commenters’ concern about the ongoing
status of CHNV parolees—including
obstacles they face in seeking parole and
the impact that allowing parolees into
the country will have on taxpayers—
such concerns are outside the scope of
this rulemaking because the parole
processes exist separate and apart from
this rule. To the extent that this
rulemaking encourages noncitizens to
use those parole processes and
thereafter apply for asylum, rather than
migrating irregularly, parolees who do
so may remain in the United States to
await the adjudication of any pending
asylum application, and during that
time may be eligible for employment
authorization. See 8 CFR 274a.12(c)(11)
(employment authorization available for
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duration of parole); id. 274a.12(c)(8)
(employment authorization available for
asylum applicants).
With respect to the commenter’s
suggestion that the CHNV parole
processes have little bearing on the
Departments’ goal of reducing irregular
migration, the Departments note that
these processes have substantially
reduced the number of encounters
between POEs. For instance, between
the announcement of the CHN processes
on January 5, 2023, and January 21,
2023, the number of daily encounters
between POEs of CHN nationals
dropped from 928 to 73, a 92 percent
decline.258 CHN encounters between
POEs continued to decline to an average
of fewer than 17 per day in March
2023.259 The Departments offer further
metrics in support of these processes’
efficacy in Section II of this preamble.
While CHNV and Ukrainian nationals
who lack a supporter cannot take
advantage of these parole processes,
such individuals can present at a POE
by using a DHS scheduling mechanism
to schedule a time to arrive at POEs at
the SWB and not be subject to the
presumption of ineligibility. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). If
the noncitizen can establish that the
scheduling mechanism is not possible to
access or use due to a language barrier,
illiteracy, significant technical failure,
or other ongoing and serious obstacle,
then the noncitizen can present at a POE
to seek asylum without a pre-scheduled
appointment, and not be subject to the
presumption of ineligibility. Id. This
process is available to all noncitizens
seeking protection, regardless of their
nationality.
With respect to the commenters’
concern about individuals ‘‘preapproved’’ by CBP to present at the
SWB, the Departments note that the
rebuttable presumption does not apply
to any noncitizen who presents at a land
POE, pursuant to a pre-scheduled time
and place. See 8 CFR 208.33(a)(2)(ii)(B),
1208.33 (a)(2)(ii)(B). This is not limited
to those who schedule a time through
the CBP One app. Therefore, in the rare
circumstance that noncitizens have
scheduled a time to present at such a
POE through another means, they would
not be subject to the rebuttable
presumption. Additionally, the
Departments reiterate that the
presumption does not apply to a
noncitizen who has been provided
appropriate authorization to travel to
seek parole pursuant to a DHS-approved
parole process, including the CHNV
258 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
259 Id.
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processes. See 8 CFR 208.33(a)(2)(ii)(A),
1208.33 (a)(2)(ii)(A).
Comment: Commenters recognized
that the parole processes had positive
results in the decrease of CHNV
nationals encountered at the SWB, but
predicted that the deterrence would
decrease as more applicants are denied.
Commenters also stated that the
requirement to travel directly to the
United States by air may for some
noncitizens be more challenging than
traveling to the SWB, and raised the
concern that the rebuttable presumption
would apply to individuals who have
received advance travel authorization
under the CHNV processes, if those
individuals arrive at the SWB rather
than traveling directly by air. A
commenter asserted that such a
‘‘disqualification’’ would be based on a
‘‘technicality,’’ not on any material
facts.
Commenters cited statistics stating
that since January 2023, Haitian
nationals had 11,300 approved paroles,
but only 5,100 of those traveled to the
United States. Commenters noted that
parolees would add to the backlog of
asylum applicants.
Response: With respect to
commenters’ caution that the magnitude
of the CHNV processes’ impact on
unauthorized arrivals at the SWB may
change over time, as discussed in
Section II of this preamble, the CHNV
parole processes have remained
effective since the rollout of the
Venezuela process in October. The
Departments disagree that this will
necessarily change as more applicants
are denied, because any intending
migrant who cannot access the CHNV
parole processes may still be dissuaded
from migrating irregularly because even
those applicants who are denied
authorization to travel under those
processes may respond to the
disincentives to irregular migration
made possible by those processes and
this rule. The Departments
acknowledge, however, that since midApril, there has been an increase in
Venezuelan migrants crossing between
POEs at the SWB, while others continue
making the treacherous journey through
the Darie´n Gap to reach the United
States—even as encounters of Cubans,
Nicaraguans, and Haitians remain near
their lowest levels this year.260 The
Departments believe that this increase
in Venezuelan migration has been
driven in part by the current limited
availability of CBP One appointments
260 See Reyes Mata III & Nick Miroff, Surge of
Migrants Strains U.S. Capacity Ahead of May 11
Deadline, Wash. Post. Apr. 28, 2023, https://
www.washingtonpost.com/nation/2023/04/28/
border-migrants-biden-title-42/.
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and misinformation campaigns by
smugglers, in the aftermath of the fire in
a Mexican government facility that
killed a number of Venezuelan migrants
in March.261 Although the number of
CBP One app appointments available
has been limited while the Title 42
public health Order has been in place,
as detailed in Section IV.E.3.ii.a of this
preamble, when the Title 42 public
health Order is lifted, CBP intends to
increase the number of available
appointments. In addition, as discussed
in more detail in Section II.A of this
preamble, DHS and the Department of
State announced new measures on April
27, 2023, that are expected to
significantly expand lawful pathways,
which, along with the expanded ability
to present at a land POE pursuant to a
pre-scheduled time and place, are
expected to further reduce the overall
volume of irregular migration. The
Departments also note that there has not
been a similar rise in encounters of CHN
nationals, and believe that the rule’s
approach of incentivizing the use of
safe, orderly, and lawful pathways
while imposing a meaningful
consequence for those who fail to do so
and cannot otherwise rebut the
presumption against asylum eligibility
will reduce the number of noncitizens
seeking to cross the SWB without
authorization.
With respect to commenters’ objection
regarding the CHNV parole processes’
stated requirements with respect to air
travel to an interior POE, the
Departments are aware that some
noncitizens may have trouble securing
air travel, but also note the potentially
significant costs associated with
irregular migration, including
substantial fees that some migrants pay
to smugglers and cartels to facilitate
such travel.262 The specific
requirements for participation in the
CHNV parole processes are outside the
scope of this rulemaking, but DHS is
actively monitoring the effects of the
261 See, e.g., id.; Nicole Acevedo & Albinson
Linares, Misinformation Fuels False Hopes Among
Migrants after Deadly Fire in Mexico, NBC News,
Mar. 30, 2023, https://www.nbcnews.com/news/
latino/misinformation-fuels-false-hopes-migrantsmexico-fire-rcna77398 (‘‘Over 1,000 migrants lined
up outside international bridges to El Paso, Texas,
on Wednesday afternoon [March 29, 2023] after
false information spread on social media and by
word of mouth that the U.S. would allow them to
enter the country.’’).
262 See, e.g., Ariel G. Ruiz Soto et al., Charting a
New Regional Course of Action: The Complex
Motivations and Costs of Central American
Migration (Nov. 2021), https://
www.migrationpolicy.org/sites/default/files/
publications/mpi-wfp-mit_migration-motivationscosts_final.pdf.
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processes and may make adjustments as
necessary.
The Departments also acknowledge
that parolees who apply for asylum will
add to the number of pending asylum
applications; however, as discussed in
Section II of this preamble, the net effect
of the CHNV parole processes has been
to significantly reduce rates of irregular
migration and avoid a corresponding
increase in the immigration court
backlog.
Comment: A commenter stated that
the Departments must consider how
they would ensure that those migrants
who use a parole program to enter the
United States, such as Venezuelans or
Nicaraguans, are not falling prey to
scams. The commenter stated that there
is reporting that those who do not have
friends or relatives in the United States
are going online to try to find sponsors,
and stated that ‘‘there are posts online
demanding up to $10,000.00 USD for
financial sponsorship.’’ The commenter
stated that if the Departments require
use of the parole processes, the
Departments should make efforts to
‘‘end the financial abuse of potential
parolees,’’ similar to efforts to end
human smuggling.
Response: As an initial matter, the
specific requirements for participation
in the CHNV parole processes are
outside the scope of this rulemaking. In
any event, the Departments recognize
that immigration processes can be
complex and that applicants,
petitioners, and requestors are at risk of
becoming victims of scams or fraud. The
United States Government takes
immigration scams and fraud seriously
and is engaged in regular efforts to
combat such behavior.263 Additionally,
the Departments conduct public-facing
communications to advise all applicants
to ensure that they only accept legal
advice on immigration matters from an
attorney or an accredited representative
working for a DOJ-recognized
organization.264 The Departments also
provide information to help applicants
avoid immigration scams.265
DHS notes in public communications
that access to the parole processes is
free; neither the U.S.-based supporter
nor the beneficiary is required to pay
the United States Government a fee to
263 See, e.g., USCIS, Fraud Detection and
National Security Directorate (last updated June 15,
2022), https://www.uscis.gov/about-us/
organization/directorates-and-program-offices/
fraud-detection-and-national-security-directorate.
264 See, e.g., USCIS, Find Legal Services (last
updated Mar. 27, 2023), https://www.uscis.gov/
scams-fraud-and-misconduct/avoid-scams/findlegal-services.
265 See, e.g., USCIS, Avoid Scams (last updated
Feb. 17, 2023), https://www.uscis.gov/scams-fraudand-misconduct/avoid-scams.
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file the Form I–134A or to be considered
for travel authorization, or parole.266
DHS also provides a list of resources for
victims of abuse, violence, or
exploitation, as well as advice for
protecting against immigration
scams.267
Comment: One commenter noted the
pending litigation regarding the CHNV
parole processes and stated that the
proposed rule presumes that the
processes will continue to exist. If the
parole processes are ultimately found to
be unlawful, the commenter asserted
that an injunction would nullify a
central premise of the rule. The
commenter also noted that the rule
extends into the first several months of
the next administration, which may end
the parole processes. Another
commenter argued that the parole
processes are overbroad and contrary to
statute, and that it is ‘‘improper’’ for the
Departments to cite the parole processes
as effective tools in support of the rule.
Response: The parole processes that
DHS established in 2022 and 2023 for
Ukrainian and CHNV nationals provide
lawful pathways for individuals seeking
to enter the United States. The
Departments recognize that there is
currently litigation over the CHNV
parole processes. See Texas v. DHS, No.
6:23–cv–00007 (S.D. TX filed Jan. 24,
2023). The Departments are vigorously
defending the processes as permitted
under section 212(d)(5) of the INA, 8
U.S.C. 1182(d)(5), and believe that the
CHNV parole processes are permitted
under the statute, for the reasons
described in the Federal Register
notices announcing each process.
Should this litigation result in an
injunction or other hold on any parole
process, the Departments do not believe
that such an injunction or hold would
affect the application of this rule.
The parole processes established for
CHNV nationals do not represent the
only available options for noncitizens
seeking entry to the United States. If
these parole processes are enjoined,
Ukrainian and CHNV nationals would
still be able to avoid the rebuttable
presumption if they present at a POE
pursuant to a pre-scheduled time and
place. See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). Moreover, if the
noncitizen establishes that the
mechanism for scheduling was not
possible to access or use due to a
language barrier, illiteracy, significant
technical failure, or other ongoing and
serious obstacle, then the noncitizen can
266 See USCIS, Processes for Cubans, Haitians,
Nicaraguans, and Venezuelans (last updated Mar.
22, 2023), https://www.uscis.gov/CHNV.
267 Id.
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present at a POE without a prescheduled appointment and would not
be subject to the presumption of
ineligibility for asylum. Id. Similarly,
these noncitizens would also be
excepted from the presumption of
ineligibility if they sought asylum or
other protection in a country through
which they traveled and received a final
decision denying that application. 8
CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). The Departments
believe that these alternative pathways
for a noncitizen to be excepted from or
rebut the presumption against asylum
eligibility are sufficient, such that the
rule would be justified even if the
CHNV parole processes were to end.
The rule incentivizes migrants,
including those intending to seek
asylum, to use lawful, safe, and orderly
pathways, not simply the CHNV parole
processes, to enter the United States, or
seek asylum or other protection in
another country through which they
travel and thus reduce the number of
noncitizens seeking to cross the SWB
without authorization to enter the
United States.
As stated at 8 CFR 208.33(d) and
1208.33(e), the Departments intend for
the provisions of this rule to be
severable from each other such that if a
court holds that any provision is invalid
or unenforceable as to a particular
person or circumstance, the
presumption will remain in effect as to
any other person or circumstance. See
also 88 FR 11726–27. This intention for
maximum severability extends to the
parole processes themselves, which are
authorized separate from this
rulemaking and would exist even in the
absence of 8 CFR 208.33(a)(2)(ii)(A),
1208.33(a)(2)(ii)(A).
iv. Third Countries
a. 1951 Convention and 1967 Protocol
Signatories Alone Insufficient
Comment: A commenter stated that
migrants may not be able to apply for
protection in third countries if such
countries do not have functioning
asylum systems. A commenter
suggested that the Departments revise
the rule to except noncitizens who
demonstrate that the country or
countries through which the noncitizen
traveled, that are party to the 1951
Convention or 1967 Protocol, did not
provide a minimally safe, orderly,
expeditious, and effective protection
process in the noncitizen’s
circumstances. Another noted that
while many countries in South and
Central America are taking on a
significant portion of the burden of
migration in the Western Hemisphere,
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many of these countries cannot be
considered ‘‘safe’’ for asylum seekers.
Numerous commenters expressed a
belief that the conditions and options in
most or all third countries are
insufficient to provide true or
reasonable alternatives to seeking
protection in the United States.
Commenters stated that government
records and NGO reports both make it
clear that ‘‘these countries have not
developed working asylum systems and
that, for many migrants, it would be
pointless and life-threatening to stay
and apply.’’ Commenters noted that
these conditions are the reason many
migrants are fleeing and seeking to come
to the United States in the first place.
Further, some commenters noted that
while Costa Rica has a successful
asylum system, Costa Rica has
significantly more asylum seekers per
capita than the United States, and
expressed a belief that Costa Rica is
unlikely to be able to absorb more.
Response: The Departments do not
agree with the commenter’s suggestion
to add an exception for noncitizens who
demonstrate that a country did not
provide an adequate protection process
in that noncitizen’s circumstances. First,
the rule provides for several exceptions
to, and means to rebut, the condition on
asylum eligibility beyond having sought
and been denied asylum or other
protection in a third country. Second,
the rule does not require that a
noncitizen seek protection in any
particular country. Finally, a noncitizen
who seeks protection in a country
through which they traveled, believes
that the protection process was unfair in
that country, and receives a final
decision denying asylum or other
protection from that country would still
qualify for an exception to the
presumption against asylum
ineligibility.
The Departments do not agree with
the generalizations that the nations
through which a noncitizen might
transit, including Mexico and countries
in South and Central America, lack
functioning asylum systems and
invariably cannot be considered safe for
those who apply for asylum in those
countries. Many of these countries have
taken substantial and meaningful steps
in recent years that demonstrate their
willingness to provide protection to
those who need it, which is reflected in
their international commitments and
their efforts as described later in this
response. To be relevant for the
rebuttable presumption analysis, the
country through which the noncitizen
transited must be a party to the Refugee
Convention or Protocol. Noncitizens
traveling through the Western
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Hemisphere have many options in this
regard; of the countries in North,
Central, and South America, only one is
not party to the Convention or the
Protocol.268 Several countries through
which noncitizens may transit have also
joined the non-binding Cartagena
Declaration on Refugees (‘‘Cartagena
Declaration’’).269 Delegations from
Belize, Colombia, Costa Rica, El
Salvador, Guatemala, Honduras,
Mexico, Nicaragua, Panama, and
Venezuela joined the Declaration on
November 22, 1984.270 Among other
things, the Cartagena Declaration
includes a pledge to promote the
adoption of national laws and
regulations facilitating the application
of the 1951 Convention and the 1967
Protocol.271 The Cartagena Declaration
also expands the definition of ‘‘refugee’’
to include those fleeing ‘‘generalized
violence, foreign aggression, internal
conflicts, massive violation of human
rights or other circumstances which
have seriously disturbed public
order.’’ 272 This ‘‘refugee’’ definition is
more expansive than that in U.S. law,
see 8 U.S.C. 1101(a)(42)(A), thus
providing some who may apply for
protection, such as asylum, with more
grounds on which to make their claim
than they would have in the United
States.
Nations throughout the Hemisphere
are continuously demonstrating their
commitment to providing protection to
refugees, migrants, and asylum seekers.
Colombia, Belize, and Mexico have
made significant strides in developing
their asylum systems and expanding
protections for migrants. In 2021,
Colombia adopted legislation that
allows Venezuelans to apply for
temporary protection status, which
grants Venezuelans 10-year residency
and allows them to access public
education, health care, and
employment.273 By February 2022,
about 2.4 million Venezuelans had
268 See Maja Janmyr, The 1951 Refugee
Convention and Non-Signatory States: Charting a
Research Agenda, 33 Int’l J. Refugee L. 188, 189
(2021); UNHCR, States Parties, Including
Reservations and Declarations, to the 1951 Refugee
Convention, https://www.unhcr.org/us/media/
38230 (last visited Apr. 25, 2023).
269 See Cartagena Declaration on Refugees,
Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama,
Nov. 19–22, 1984, https://www.oas.org/dil/1984_
cartagena_declaration_on_refugees.pdf.
270 Id.
271 Id.
272 Id.
273 Int’l Crisis Group, Hard Times in a Safe
Haven: Protecting Venezuelan Migrants in
Colombia (Aug. 2022), https://www.crisisgroup.org/
latin-america-caribbean/andes/colombiavenezuela/hard-times-safe-haven-protectingvenezuelan.
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applied for that status, and Colombian
migration authorities had approved
nearly 1.4 million by July 2022.274
Belize offers an amnesty program for
registered asylum seekers and certain
irregular migrants that provides
permanent residence and a path to
citizenship.275 The Government of
Mexico has made exceptional strides to
improve conditions for asylum seekers,
migrants, and refugees within its
borders. Mexico’s Federal Public
Defender’s Office offers legal counseling
and support to asylum seekers and
migrants who have filed claims with
Mexico’s Commission for Refugee
Assistance (‘‘COMAR’’) and has
increased both its specialized staff and
visits to migration stations.276 Mexico
has also committed to integrating 20,000
refugees into the Mexican labor market
over the next three years and is
expanding labor opportunities for
Central American workers.277
Comment: Commenters stated that it
is inhumane to require asylum seekers
to first seek protection in third countries
because they are particularly vulnerable
in those countries to harms like
exploitation, kidnapping, assault, rape,
robbery, or extortion. Commenters noted
that many transit countries struggle with
high levels of violence, corruption, and
ineffective judicial or political systems,
citing a range of facts to illustrate
political and other concerns in many
transit countries, including the trial of
Mexican officials for conspiracy with
cartels and the extradition of the former
Honduran president to face charges in
the United States. One commenter
asserted that requiring victims of
persecution to expose their personal
information to possibly corrupt or
hostile governments is ‘‘an extension of
the persecution they fled in the first
place,’’ while another stated that the act
of applying for asylum in a third
country would make migrants targets of
the governments they are fleeing.
Commenters also noted that most
immigrants to the United States only
travel through countries that also have
a large number of emigrants seeking to
274 Id.
275 Government of Belize, Amnesty Background
Information (Dec. 7, 2022), https://
immigration.gov.bz/amnesty-backgroundinformation.
276 Comprehensive Regional Protection and
Solutions Framework, MIRPS in Mexico (Aug.
2022), https://mirps-platform.org/en/mirps-bycountry/mirps-in-mexico.
277 Government of Mexico, Secretary of External
Relations, Mexico to Expand Labor Mobility
Programs and Integrate Refugees into its Labor
Market (June 10, 2022), https://www.gob.mx/sre/
prensa/mexico-to-expand-labor-mobility-programsand-integrate-refugees-into-its-labormarket?idiom=en.
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31411
enter the United States, which the
commenter believes demonstrates that
those countries are not safe.
Response: The Departments recognize
that certain noncitizens may feel unsafe
seeking protection in certain nations
through which they might transit,
including Mexico and countries in
South and Central America, due to the
concerns commenters describe.
However, as discussed above, the
Departments do not agree with
generalizations that these countries are
universally unsafe and cannot provide
protection to asylum seekers. The
Departments also note that the rule does
not require any noncitizen to seek
protection in a country where they do
not feel safe. Applying for, and being
denied, asylum or other protection in a
third country is one exception to the
rebuttable presumption, but noncitizens
who choose not to pursue this path may
instead seek authorization to travel to
the United States to seek parole
pursuant to a DHS-approved process, or
present at a POE at a pre-scheduled time
or place (or demonstrate that it was not
possible to do so for a reason covered
by the rule). See 8 CFR 208.33(a)(2)(ii),
1208.33(a)(2)(ii).
Noncitizens may also rebut the
presumption by showing that
exceptionally compelling circumstances
exist, including an acute medical
emergency or an imminent and extreme
threat to life or safety at the time of
entry. 8 CFR 208.33(a)(3), 1208.33(a)(3).
Although the Departments expect that
many migrants seeking protection will
be able to access asylum or other
protection in at least one transit
country, they recognize that not every
country will be safe for every migrant
and have provided other exceptions and
means for rebutting the presumption to
account for those circumstances.
Although noncitizens may prefer to
apply for asylum in the United States,
it is not unreasonable to expect that they
would pursue other safe options.278
b. Concerns About Length of Process
and Documentation Provided by Third
Countries
Comment: Several commenters stated
that third countries are not efficient in
providing proper documentation for
asylum seekers, thus increasing wait
times and creating additional issues in
overcoming the presumption at the
SWB. Another raised concerns that
278 See UNHCR, Legal Considerations Regarding
Access to Protection and a Connection Between the
Refugee and the Third Country in the Context of
Return or Transfer to Safe Third Countries 1 (Apr.
2018), https://www.refworld.org/pdfid/
5acb33ad4.pdf (‘‘[R]efugees do not have an
unfettered right to choose their ‘asylum country.’ ’’).
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requiring migrants to first apply and be
rejected for asylum in a third country
could force them to wait for that third
country’s asylum adjudication for
months before they can continue their
journey to the SWB. One commenter
stated that the proposed regulations
require a noncitizen to produce
documentation (paper or electronic) to
show denial of asylum in a third
country, which the commenter stated is
contrary to the INA’s specification that
noncitizens may establish asylum
eligibility though testimony alone. One
commenter expressed concern that the
Departments have given no assurances
that a denial of asylum in another
country will not be used against an
asylum applicant here in the United
States, where our asylum eligibility
guidelines are many times more
stringent.
Response: To determine if an
applicant has met their burden to
demonstrate that they sought asylum or
protection in a third county and were
denied, adjudicators may weigh an
applicant’s credible testimony with
other evidence. See INA 208(b)(1)(B)(ii),
8 U.S.C. 1158(b)(1)(B)(ii). Even when an
applicant’s testimony is credible, an
adjudicator may, where appropriate,
request evidence to corroborate this
credible testimony, including
documentation of the final denial. In
that case, the applicant is not required
to provide the evidence if they do not
have the evidence and cannot
reasonably obtain it. Id.
Regarding commenters’ statements
that requiring migrants to seek asylum
in third countries will increase wait
times, the Departments believe that wait
times would likely be significantly
longer in the absence of this rulemaking.
For those who are unwilling or unable
to seek asylum or other protection in a
third country and wait for a final
decision, the Departments note that
there are multiple ways to avoid or
rebut the rule’s presumption of
ineligibility, only one of which involves
seeking asylum or other protection in a
third country. See 8 CFR 208.33(a)(2)
and (3), 1208.33(a)(2) and (3).
Noncitizens who do not feel comfortable
or safe applying for asylum outside the
United States may avoid the rebuttable
presumption by seeking parole under
one of the authorized parole processes
or using the CBP One app to present
themselves at a pre-scheduled time at a
POE. See id. 208.33(a)(2)(ii)(A) and (B),
1208.33(a)(2)(ii)(A) and (B).
Additionally, noncitizens may rebut the
presumption in exceptionally
compelling circumstances, including
where they faced an immediate and
extreme threat to life and safety at the
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time of their entry into the United
States. 8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). Those who are not
excepted from and are unable to rebut
the presumption of ineligibility may
still pursue statutory withholding of
removal and protection under the CAT.
With respect to the comment the
Departments have given no assurances
that a denial of asylum in another
country will not be used against an
asylum applicant here in the United
States, the Departments note that AOs
and IJs will consider the noncitizen’s
fear of returning to their country of
origin on a case-by-case basis through
the noncitizen’s credible testimony and
other relevant evidence demonstrating a
fear of persecution.
c. Concerns About Differential
Treatment of Migrants
Comment: Commenters raised
concerns about unintended inequitable
treatment of migrants under the rule.
For example, commenters raised
concerns that the rule arbitrarily
disfavors migrants who live farther
away, stating that it would be unfair to
penalize those who do not have the
good fortune of living in a nation close
enough to the United States that they do
not have to pass through a third country
in their journey to the SWB. Another
commenter noted that migrants who
travel through third countries en route
to the United States have necessarily
traveled a lengthy distance, which may
suggest that their claims are in fact more
likely than others’ to be meritorious.
Similarly, commenters noted that a
migrant who does not live close to a
country that provides strong protections
may not realize until after they passed
through a third country that they should
have applied for asylum in that country,
and that many migrants cannot afford
what may be a months-long process of
applying for protection in a third
country.
Some commenters stated that the
United States should not summarily
deny asylum claims based on whether
migrants have passed through another
‘‘safe third country,’’ as the third
country may not have been safe for each
individual migrant, especially for
vulnerable populations. At least one
commenter stated that requiring
migrants to seek asylum in third
countries on their journey to the SWB
is counterintuitive if the migrant has
relatives or another support system in
the United States. One commenter also
noted that individuals with conditions
that may cause cognitive difficulties or
deficits, such as post-traumatic stress
disorder, depression, or head trauma,
may not be able to find the medical
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services that would allow them to
participate in the asylum process of a
country through which they transited,
even if those countries had a
functioning asylum system.
Response: The rule’s primary purpose
is to incentivize migrants, including
those intending to seek asylum, to use
lawful, safe, and orderly pathways to
enter the United States, or seek asylum
or other protection in another country
through which they travel. Migrants
who do not avail themselves of such a
lawful pathway or seek protection in a
country through which they travel will
be subject to a rebuttable presumption
of ineligibility for asylum. That said, the
Departments recognize that many
migrants face challenging circumstances
in their home countries and en route to
the United States, and appreciate that
not every country will be viable for
every migrant, including those who may
apply for asylum or other protection,
depending upon their individual
circumstances. With regards to concerns
that migrants may not receive sufficient
notice of the exception to seek and be
denied asylum or other protection in a
transit country, the Departments note
that this is only one of multiple
exceptions and means of rebuttal that
the rule allows. As discussed in Section
IV.B.5.iv of this preamble, the rule does
not deprive noncitizens of notice in
violation of the Fifth Amendment Due
Process Clause.
With respect to concerns about
‘‘requiring’’ migrants to seek protection
in a third country when they have
relatives already in the United States,
the Departments reiterate that the rule
does not require any migrant to seek
protection elsewhere; there are multiple
ways to avoid or rebut that presumption
of ineligibility, only one of which
involves seeking asylum or other
protection in a third country. Eligible
noncitizens who cannot safely apply for
asylum outside the United States may
(while residing in any country) seek
parole under an authorized parole
process. Alternatively, they may use the
CBP One app to present themselves at
a pre-scheduled time at a POE.
Additionally, the presumption may be
rebutted in exceptionally compelling
circumstances, such as by
demonstrating that one faces an acute
medical emergency or imminent and
extreme threat to life or safety at the
time of entry, or by satisfying the
definition of a victim of a severe form
of trafficking in persons under 8 CFR
214.11(a). 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). Those who are not
excepted from and are unable to rebut
the presumption of ineligibility may
still pursue statutory withholding of
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removal and protection under the CAT.
The Departments are not aware,
however, of any evidence establishing a
direct link between distance traveled
and validity of protection claims.
Finally, the Departments note that a
location that may be unsafe for one
person may not only be safe for, but may
offer a much-needed refuge to, others.
For example, some countries in the
region may have a larger number of
individuals who leave the country to
seek protection elsewhere than who
seek protection in the country, perhaps
because those specific individuals
experience a targeted threat of violence
or fear of persecution in that country. At
the same time, such a country may
demonstrably provide protection for
other individuals or groups of
individuals, particularly those
originating from third countries, who
consider the country to be a safe option
where they can be free from persecution
or torture. To the extent commenters
raise concerns about the ability of
certain individuals to participate in the
asylum processes of third countries, the
Departments note that, as discussed
above, many regional partners have
protection frameworks that are in some
respects more expansive than those of
the United States. As detailed in the
preamble to the NPRM, see 88 FR at
11720–23, many countries in the region
have significantly increased protection
options to address the unprecedented
movement of migrants throughout the
hemisphere. Finally, humanitarian
protection is not the only available
lawful pathway to intending migrants.
In some instances, employment-based
migration may be the best option for
migrants for whom economic issues are
a key factor motivating them (which
studies have shown are a high
percentage of those moving through the
region).279
Further discussion of the potential
effects of this rule with respect to
specific groups is contained in Section
IV.B.4 of this preamble.
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d. Concerns About Conditions and
Asylum Process in Third Countries
Generally
Comment: Commenters stated that
lawful pathways in third countries do
not necessarily promote family unity,
279 See, e.g., Ariel G. Ruiz Soto et al, Charting a
New Regional Course of Action: The Complex
Motivations and Costs of Central American
Migration, 18 (Nov. 2021), https://
www.migrationpolicy.org/sites/default/files/
publications/mpi-wfp-mit_migration-motivationscosts_final.pdf (reporting that 92 percent of
respondents to a UN World Food Programme
household survey ‘‘cited economic reasons related
to their livelihoods as being key motivating factors’’
for migration).
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and that opportunities for family unity
depend on the specific pathway.
Response: The Departments
acknowledge that countries in the
region have differing asylum systems
and requirements. However, this rule
does not require that noncitizens apply
for asylum or other protection in a
specific third country in order to
preserve family unity. Rather, such an
application is one of multiple options
for noncitizens under the rule. DHSapproved parole processes represent
another set of options available to some
noncitizens. Additionally, any
noncitizen may present at a POE via an
appointment that includes a prescheduled time and place or may
present at a POE without a prescheduled time and place and be
excepted from the presumption if the
noncitizen demonstrates by a
preponderance of the evidence that it
was not possible to access or use the
DHS scheduling system due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle. The Departments also note the
discussion in Section IV.E.3.ii.b of this
preamble of CBP’s ongoing efforts to
improve CBP One app functionality for
families.
Comment: Numerous commenters
stated that the third country exception
would cause serious bodily harm to
noncitizens, lengthening the amount of
time noncitizens spend in unsafe transit
countries, and exposing them to further
risks of persecution, torture, and death
in third countries. Multiple commenters
expressed concern that the rule ignores
the realities asylum seekers face,
including violence, persecution, and
inadequacy of asylum systems in third
countries, and reflects a
misunderstanding of the conditions of
noncitizens fleeing persecution.
Multiple other commenters stated that
applying for asylum and awaiting a
subsequent denial in a third country is
nearly impossible for noncitizens.
Several commenters argued that
requiring noncitizens to apply for
asylum in third countries and wait for
a decision would prolong their journey
to safety. Another commenter stated that
it was unreasonable to require
noncitizens to wait for extended periods
of time in third countries and suggested
that the Departments revise the rule to
except noncitizens who waited for six
months or more without a decision.
Similarly, a commenter stated that the
third country exception was a way to
delay the safety and stability of
noncitizens. A commenter also stated
that prior ‘‘safe third country’’ policies
relating to Guatemala, among other
places, forced asylum seekers into
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dangerous situations in third countries.
A commenter said that although the
NPRM states that preventing human
trafficking is a consideration for the
rule, the third country exception would
drive people further into traffickers’
hands. Numerous commenters provided
narrative examples of noncitizens who
had successfully gained asylum in the
United States, and added that it would
not have been possible for them to gain
asylum if the third country exception
was enacted.
Response: Regarding comments
stating that ‘‘safe third country’’ and
similar policies force those who might
otherwise apply for asylum in the
United States into dangerous situations
in third countries, the Departments
recognize that not all third countries
will be safe for all noncitizens seeking
asylum and acknowledge that some
migrants may feel that the dangers noted
by commenters, or the risk that a
particular country’s asylum system
would be unduly delayed or leave them
vulnerable to refoulement, make
applying for protection in that country
untenable. However, the rule does not
require any noncitizen to seek
protection in any particular country and
therefore the Departments likewise
decline to add an exception for
noncitizens who waited for a certain
period of time in a third country
without a final decision.
The Departments also strongly
disagree that the third country
exception will heighten risks of human
trafficking. Rather, the Departments
expect that the rule will reduce reliance
on dangerous human smuggling
networks that exploit migrants for
financial gain, including via human
trafficking. If a noncitizen does not
believe it would be safe to apply for
asylum or related protection in any
third country, they may avoid the
presumption against asylum eligibility
by availing themselves of any of the
other available lawful pathways, or, if
applicable, they may be able to rebut the
presumption of ineligibility by
demonstrating exceptionally compelling
circumstances.
Comment: Some commenters oppose
the rule because they believe it
encourages individuals to remain in
countries where they may not be safe
and are closer to their feared
persecutor(s) to avoid being disqualified
from asylum should they try to enter at
the SWB. For example, one commenter
cited the experiences of individuals
who are being imminently threatened by
gangs and have to flee and therefore are
unable to remain in their country to
apply for a lawful pathway to the
United States. Similarly, many
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commenters stated that it was unfair
and unrealistic to expect noncitizens to
seek asylum in areas that are unsafe and
do not have meaningful protections for
refugees.
Response: The Departments disagree
that the rule encourages noncitizens to
remain in dangerous conditions or
remain close to their feared persecutors
so as to preserve their chance to be
eligible for asylum in the United States.
The Departments understand that in
some cases it would be dangerous for a
noncitizen to remain in their home
country while they seek a safe, orderly,
and lawful pathway into the United
States, but note that eligible migrants
who have already left their country of
origin may apply for the CHNV
processes, and all migrants may, if
within the appropriate area in Mexico,
schedule an appointment to present at
a POE. Moreover, the Departments note
that lawful pathways such as applying
for asylum in a country they transited
through or scheduling an appointment
through the CBP One app to present at
a POE are recognized by the rule and are
available to migrants who have already
left their country of origin. The
Departments do not agree that this rule
creates a strong incentive for those
facing danger to remain in their home
countries.
e. Concerns About Conditions and
Asylum Process in Mexico Specifically
Comment: Several commenters
expressed concerns about the adequacy
of the asylum process in Mexico in
particular. For example, one commenter
stated that they had worked as a lawyer
with migrants in Mexico for a year, and
that COMAR is extremely overwhelmed
and lacks the staff and funds to process
the hundreds of thousands of asylum
applications they have received from
people in Mexico in the past few years.
The commenter stated that they had
personally witnessed the inability to
receive a timely decision, or even to get
access to COMAR in order to file an
application in many parts of Mexico.
The commenter also stated that Mexican
civil society cannot meet the legal and
social service needs of hundreds of
thousands of asylum seekers, because
such organizations are underfunded and
under-resourced and cannot begin to
meet the basic humanitarian and legal
needs of the many people in need of
protection who transit through Mexico.
Other commenters stated that COMAR
is underfunded and that immigration
advocates have documented
mismanagement and instances of
denials of meritorious claims.
One commenter stated that Mexico’s
asylum system is not prepared to
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actually grant asylum to refugees from
South and Central American countries,
stating that conditions for refugees in
Mexico are ‘‘harsh’’ and that Mexico
does not provide refugees with ‘‘legal
residence or adequate legal rights to
keep them free of exploitation.’’
A commenter stated that unless an
applicant is granted a transfer request by
COMAR, they cannot leave the
geographical area where they applied
for asylum. The commenter added that
many applicants move due to safety or
economic concerns, and as a result,
their cases are considered abandoned.
The commenter stated that an
abandoned case would not be
considered a denial under Mexican law,
and that a person who abandoned their
application would not qualify under the
NPRM. A commenter stated that they
have not seen evidence that the
Departments have reviewed the ability
of asylum seekers to obtain protection in
Mexico and that failure to do so would
lead to arbitrary and capricious
rulemaking.
Response: The Departments recognize
that managing migration is a collective
responsibility and, as part of a whole-ofgovernment approach, requires working
closely with countries throughout the
region to prioritize and implement a
strategy that advances safe, orderly,
legal, and humane migration throughout
the Western Hemisphere. With regard to
Mexico’s ability to handle asylum
claims, as stated in the NPRM, 88 FR at
11721, Mexico is the third highest
recipient of asylum claims in the world;
in 2022, COMAR reported receiving
118,478 applicants for refugee status.280
Of applications completed in 2021,
COMAR granted asylum in 72 percent of
cases; an additional two percent of
applicants were granted complementary
protection (a form of protection
available to those who are not eligible
for refugee status).281 Of applications
completed in 2022, COMAR granted
asylum in 61 percent of cases; an
additional two percent of applicants
were granted complementary
protection.282 The average case takes 8–
12 months to adjudicate.283 With United
280 Government of Mexico, La COMAR en
Nu´meros, Diciembre 2022 (Jan. 16, 2023), https://
www.gob.mx/cms/uploads/attachment/file/792337/
Cierre_Diciembre-2022__31-Dic.__1.pdf.
281 See id.; UNHCR, Asylum Capacity Support
Group, Mexico: Granting Complementary
Protection, https://acsg-portal.org/tools/mexicogranting-complementary-protection/ (last visited
Apr. 26, 2023).
282 Government of Mexico, La COMAR en
Nu´meros, Diciembre 2022 (Jan. 16, 2023), https://
www.gob.mx/cms/uploads/attachment/file/792337/
Cierre_Diciembre-2022__31-Dic.__1.pdf.
283 Refugees Int’l, Mexico’s Use of Differentiated
Asylum Procedures: An Innovative Approach to
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States Government funding and the
support of international organizations,
Mexico has also substantially increased
its Local Integration Program, which
relocates individuals granted asylum to
safe areas of Mexico’s industrial
corridor and integrates them into such
areas. These individuals are then
matched with jobs and provided
apartments, and their children are
enrolled in local schools. In May 2022,
the program reached the milestone of
reintegrating 20,000 asylum seekers in
Mexico.284 And in June 2022, Mexico
committed to support local labor
integration for an additional 20,000
asylees over the next three years.285 The
Government of Mexico has announced
substantial increases to its labor visa
programs over the past two years to help
those seeking protection enter the labor
market.286 The Departments
acknowledge that, like the United
States, Mexico has a significant asylum
backlog. Nonetheless, it remains a viable
option for many seeking protection in
Mexico.287
As it relates to the comment regarding
abandoned claims, the Departments
note that, as discussed in Section
IV.E.3.iv.f of this preamble, under this
rule, a final decision does not include
a determination by a foreign government
that the noncitizen abandoned the
claim. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). A noncitizen who
has abandoned their asylum claim in
Mexico would not qualify, on that basis,
for an exception to the rebuttable
presumption. Such noncitizens may
nonetheless qualify for another
exception to the rebuttable presumption
or be able to rebut the presumption. For
these reasons, the Departments have
declined to revise the rule in response
to this comment.
Comment: Other commenters stated
that towns along Mexico’s northern
border are not equipped to provide food,
shelter, health care, and sanitation
services to migrants waiting for an
Asylum Processing (July 20, 2021), https://
www.refugeesinternational.org/reports/use-ofdifferentiated-asylum-procedures-an-innovativeapproach-to-asylum-processing-#_ftn5.
284 UNHCR, Ma
´ s de 20.000 Reubicaciones como
Parte de los Esfuerzos de Integracio´n de Personas
Refugiadas en Me´xico (May 25, 2022), https://
www.acnur.org/noticias/press/2022/5/628e4b524/
mas-de-20000-reubicaciones-como-parte-de-losesfuerzos-de-integracion-de.html.
285 See L.A. Declaration Fact Sheet.
286 See id.
287 See Global Compact on Refugees, Mexico,
https://globalcompactrefugees.org/gcr-action/
countries/mexico (last visited Mar. 9, 2023);
Government of Mexico, Law on Refugees,
Complementary Protection, and Political Asylum,
Article 28, January 27, 2011, https://
www.diputados.gob.mx/LeyesBiblio/pdf/
LRPCAP.pdf.
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asylum hearing. Commenters also stated
that migrant camps in Mexico are
dangerous, unsanitary, and negatively
impact migrants’ mental health. A
commenter stated that organized crime
operates across Central America and
Mexico with impunity, and that a target
of organized crime fleeing one location
would likely be found and targeted in
Mexico as well. Another commenter
stated that persecutors have followed
asylum seekers into Mexico and harmed
them there.
Commenters also stated conditions in
Mexico are unsafe, especially for asylum
seekers. Specifically, commenters stated
that the proposed rule would cause
additional harm for migrants forced to
wait in Mexico before applying for
asylum in the United States due to the
risk of rape, murder, kidnapping,
extortion, robbery, and other violence;
violent detention by Mexican
government officials; denial of medical
care for serious illnesses; displacement
and homelessness; discrimination or
harassment due to race, gender, and
sexual orientation; abusive employment
arrangements; and denial of access to
basic services and protections due to
language barriers. One commenter
expressed concern that migrants in
Mexico face discrimination from drug
cartels and other criminals as well as
from Mexican authorities, including
police and immigration officials. Some
commenters pointed to advisories
issued by the U.S. Department of State
warning U.S. citizens not to travel to
areas in Mexico, and stated that there
are many examples of migrants being
seriously harmed while waiting for
asylum in Mexico or for the chance to
enter the United States.
Commenters also stated that these
risks were further heightened for
members of vulnerable groups, such as
women and children, Black, brown, and
indigenous persons, and LGBT persons.
Response: The Departments recognize
commenters’ concerns about potential
harm to migrants in Mexico, particularly
for members of vulnerable groups, but
again note that more than 100,000
individuals felt safe enough to apply for
asylum in Mexico in 2022. The
Departments also emphasize that the
rule does not require any noncitizen to
apply for asylum or other protection in
Mexico or any other country. Applying
for and being denied protection in
Mexico is only one of multiple ways to
be excepted from or rebut the
presumption of ineligibility for asylum.
See 8 CFR 208.33(a)(2) and (3),
1208.33(a)(2) and (3). The rule also
provides that the presumption of
asylum ineligibility can be rebutted by
noncitizens who do not utilize a lawful
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pathway but who face an imminent and
extreme threat to life or safety, such as
an imminent threat of rape, kidnapping,
torture, or murder or who were victims
of a severe form of trafficking in
persons. See 8 CFR 208.33(a)(3)(i)(A)
through (C), 1208.33(a)(3)(i)(A) through
(C).
For further discussion of this rule and
vulnerable populations, please see
Section IV.B.4 of this preamble.
Comment: A commenter expressed
concern that Mexican asylum seekers
would have to wait for an appointment
with CBP in the same country where
they are experiencing persecution.
Response: This concern is based on a
misunderstanding of the rule. The
rebuttable presumption only applies to
noncitizens who travel through a
country other than their country of
citizenship, nationality, or, if stateless,
last habitual residence, and that is a
party to the Refugee Convention or
Protocol, and thereafter enter the United
States from Mexico at the SWB or
adjacent coastal borders without
documents sufficient for lawful
admission. See 8 CFR 208.33(a)(1),
1208.33(a)(1). Mexican nationals would
not have traveled through a country
other than Mexico en route to the SWB,
and therefore are not subject to the
rebuttable presumption. See 8 CFR
208.33(a)(1)(iii), 1208.33(a)(1)(iii).
f. Final Decision of Foreign Government
is Undefined
Comment: Commenters asked how
U.S. officials would know the
adjudication and appeal processes of
third countries, such that they could
confirm that a noncitizen’s application
for asylum or other protection in a third
country had been denied in a final
decision. Commenters stated that a
requirement for a final decision could
introduce years of uncertainty
depending on the backlogs and
resources of third countries. One
commenter stated that proving the
denial of protection in a third country
may be entirely impossible in the
context of a credible fear interview.
Response: The Departments agree that
further clarity on the meaning of the
term ‘‘final decision’’ will help
noncitizens understand, and IJs and
AOs apply, this provision. The
Departments are therefore revising 8
CFR 208.33(a)(2)(ii)(C) and
1208.33(a)(2)(ii)(C) to except from the
rebuttable presumption noncitizens who
‘‘[s]ought asylum or other protection in
a country through which the noncitizen
traveled and received a final decision
denying that application. A final
decision includes any denial by a
foreign government of the applicant’s
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31415
claim for asylum or other protection
through one or more of that
government’s pathways for that claim. A
final decision does not include a
determination by a foreign government
that the noncitizen abandoned the
claim.’’
The Departments also acknowledge
that, like the United States, many
countries have asylum backlogs that
contribute to significant wait times for
applicants. However, this rule does not
require noncitizens to apply for asylum
in a third country and wait for a final
decision before applying for asylum in
the United States; rather, that is simply
one of the lawful pathways recognized
by the rule. As an alternative to
applying for asylum in a third country
and seeking a final decision before
migrating to the United States,
noncitizens can utilize the CBP One app
to pre-schedule an appointment to
present at a POE or seek parole pursuant
to a lawful parole process (such as the
CHNV parole processes). See 8 CFR
208.33(a)(2)(ii)(A) and (B),
1208.33(a)(2)(ii)(A) and (B). The rule
also allows noncitizens to whom the
presumption applies to rebut it in
exceptionally compelling
circumstances. 8 CFR 208.33(a)(3),
1208.33(a)(3).
The Departments acknowledge that
each of the lawful pathways outlined in
the rule is subject to limitations,
including, e.g., capacity constraints,
limitations on eligibility, and
geographic availability. The
Departments further acknowledge that
the pathways’ combined limitations
could constrain some individuals’
ability to access pathways at a given
time or place, and that some of those
individuals may also not be able to
establish an exception to, or rebut, the
presumption. However, the Departments
have concluded that the interests of
migrants and the immigration system as
a whole, including the asylum system,
are best promoted by incentivizing
noncitizens to pursue safe, orderly, and
lawful pathways to enter the United
States rather than failing to take
adequate actions to respond to a
potential further surge of irregular
migrations at the SWB that threatens to
overwhelm the immigration system and
prevent orderly processing of claims for
protection.
Comment: Commenters stated that the
proposed exception for those who
sought and were denied asylum or
‘‘other protection’’ was unduly vague,
because the term ‘‘other protection’’ is
undefined. Commenters stated that if a
migrant applied for and was denied an
immigration status other than asylum,
they would not necessarily know such
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denial would qualify them for an
exception to the rebuttable
presumption. Commenters further stated
that the absence of a definition would
result in inconsistent application of the
exception.
Response: The preamble of the NPRM
described the United States’ efforts
throughout the region to prioritize and
implement a strategy that advances safe,
orderly, legal, and humane migration,
including access to international
protection. Such efforts are put forward
in three policy-setting documents: the
U.S. Strategy for Addressing the Root
Causes of Migration in Central
America; 288 the CMMS; 289 and the L.A.
Declaration. The NPRM provided a
detailed discussion of increased access
to protection and other pathways in the
region, specifically identifying available
programs and processes in Mexico,
Guatemala, Belize, Costa Rica,
Colombia, Ecuador, and Canada. See 88
FR at 11720–23. While these countries
provide an opportunity for individuals
to apply for asylum or refugee status,
they also offer other protection that is
not dependent on the applicant meeting
the definition of a refugee as provided
by the Refugee Convention. For
example, Mexico offers protection to
individuals whose lives are in danger or
where there are well-founded reasons to
believe that they would be in danger of
being subjected to torture or other cruel,
inhuman, or degrading treatment or
punishment.290 Colombia, Costa Rica,
and Ecuador have also offered other
protection via regularization programs
for individuals of specific
nationalities.291
288 The White House, U.S. Strategy for Addressing
the Root Causes of Migration in Central America
(July 2021), https://www.whitehouse.gov/wpcontent/uploads/2021/07/Root-Causes-Strategy.pdf.
289 The White House, Collaborative Migration
Management Strategy (July 2021), https://
www.whitehouse.gov/wp-content/uploads/2021/07/
Collaborative-Migration-ManagementStrategy.pdf?utm_medium=email&utm_
source=govdelivery.
290 Government of Mexico, Law on Refugees,
Complementary Protection, and Political Asylum,
Article 28, January 27, 2011, https://
www.diputados.gob.mx/LeyesBiblio/pdf/
LRPCAP.pdf.
291 UNHCR, Temporary Protection Status in
Colombia (November 2021) (Dec. 3, 2021), https://
reliefweb.int/report/colombia/temporary-protectionstatus-colombia-november-2021-0; Costa Rica,
Special Temporary Category for Nationals of Cuba,
Costa Rica and Nicaragua with Pending or Denied
Refugee Claims (Apr. 17, 2023), https://
www.migracion.go.cr/Paginas/
Categor%C3%ADa%20Migratorias%20
(Extranjer%C3%ADa)/Categor%C3%ADa-EspecialTemporal.aspx; Reuters, Ecuador Begins
Regularization Process for Thousands of
Venezuelan Migrants Sept. 1, 2022, https://
www.reuters.com/world/americas/ecuador-beginsregularization-process-thousands-venezuelanmigrants-2022-09-01/.
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Because such protection and other
pathways in the region are countryspecific and, as exemplified by the
increased access to protection in the
region as a result of the CMMS and L.A.
Declaration, are subject to change, the
Departments have determined that
appropriate pathways and other
protections are best determined on a
case-by-case basis, considering the
evidence presented relating to the
nature and basis of the noncitizen’s
application for protection in the third
country. Nevertheless, the Departments
note that the ‘‘final decision denying
asylum or other protection’’ is intended
to include denials of asylum and other
forms of humanitarian protection
related to fear of returning to one’s
home country as well as other
temporary protections akin to that of
temporary protected status under
section 244 of the INA, 8 U.S.C. 1254a.
Comment: Commenters stated that the
proposed rule gives preference to
applicants who were denied asylum by
another country over those who did not
apply or who did apply and received
asylum. Commenters stated that the
proposed rule would not filter out
people with weak asylum claims, as
commenters believe the Departments
intend, but would rather prevent the
most vulnerable people from seeking
asylum altogether.
Response: The Departments disagree
with the assertions that this rule
necessarily gives preference to
applicants who were denied asylum by
another country over those who do not
apply and disagree that the rule would
prevent the most vulnerable people
from seeking asylum altogether. The
rule imposes consequences on certain
noncitizens who enter the United States
without availing themselves of a lawful
pathway for entering the United States.
Seeking protection and receiving a final
decision in a country through which a
noncitizen traveled is one of the lawful
pathways recognized by the rule, but it
is not the only lawful pathway
available. A noncitizen who does not
seek protection in a third country may
nonetheless establish an exception to
the presumption—just as a noncitizen
who has sought and been denied such
protection would—by presenting at a
POE at a pre-scheduled time, or by
pursuing a DHS-approved parole
process.
The rule incentivizes intending
migrants to pursue lawful pathways as
part of a regional approach to migration
management, including by incentivizing
migrants to seek protection in countries
through which they travel. With respect
to any concern that noncitizens denied
protections in a third country are less
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deserving of protection here, the
Departments do not agree that a denial
in a third country necessarily means
that the applying individual would not
merit protection under U.S. law.
In addition, the Departments do not
agree that the rule necessarily gives
preference to applicants who have been
denied asylum in another country.
Rather, the rule incentivizes migrants to
avail themselves of lawful alternatives
to irregular migration and see them
through to completion (e.g., receiving a
final decision in another country).
Those noncitizens meeting that
requirement who are ultimately granted
asylum or other protections in other
countries would have no need to
continue on to the United States and
may, in many cases, be subject to the
firm resettlement bar to asylum, and
thus, in the Departments’ view, such
noncitizens need not be excepted from
the rebuttable presumption. However,
those who have been denied may still
have a need for protection in the United
States. Therefore, the Departments
believe that maintaining asylum
eligibility in the United States for those
who have been denied asylum in third
countries is appropriate and supports
the larger goal of incentivizing
noncitizens to pursue available lawful
pathways, as part of an effort to build a
regional approach to migration
management.
Moreover, as noted above, there are
additional lawful pathways to which
noncitizens could avail themselves to
avoid application of the rebuttable
presumption as well as multiple
circumstances in which the
presumption of asylum ineligibility
could be rebutted. See 8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and
(3). The Departments acknowledge that
each of the lawful pathways outlined in
the rule is subject to limitations and that
the pathways’ combined limitations
could constrain any individual’s ability
to access them at a given time or place.
However, the Departments have
concluded as a matter of policy that the
interests of migrants and the
immigration system as a whole are best
promoted by incentivizing noncitizens
to pursue safe, orderly, and lawful
pathways to enter the United States
rather than failing to take adequate
actions to respond to a potential further
surge of irregular migration at the SWB
that threatens to overwhelm the
immigration system and prevent orderly
processing of claims for protection.
g. Pursuit of Lawful Pathways May be
Improperly Used as Evidence
Comment: Some commenters
expressed concern that taking time to
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pursue lawful pathways may be used as
evidence that noncitizens who do not
flee their country immediately do not
have a legitimate well-founded fear of
persecution.
Response: The Departments disagree
that the rule will increase the likelihood
of adverse determinations against those
noncitizens who choose to remain in
their home countries while seeking
access to one of the enumerated lawful
pathways. As noted elsewhere in this
section, this rule does not discourage
any person from fleeing a dangerous
circumstance, and in fact highlights the
options potentially available to persons
who do so. Moreover, such migrants
may still provide relevant evidence to
support their eligibility for asylum,
including a well-founded fear of future
persecution, notwithstanding their
decision to remain in their country to
seek a lawful pathway to the United
States. See 88 FR at 11737; see also 8
CFR 208.13. In short, despite assertions
made by some commenters, this rule
will not result in the elimination of
claims for asylum based on a wellfounded fear of future persecution, even
for applicants who spend some amount
of time in their country of origin
attempting to access an orderly and
lawful pathway to the United States.
AOs and IJs will still consider the
noncitizen’s fear of returning to their
country of origin on a case-by-case basis
through the noncitizen’s credible
testimony and other relevant evidence
demonstrating a fear of persecution.
v. Unaccompanied Children
Comment: Commenters disagreed
with the exception for UCs, stating that
children need their parents to keep
them safe during their journey to the
SWB and that the proposed rule would
discourage whole families from seeking
asylum together. Some commenters
stated that the UC exception would
encourage family separation, arguing
that families often separate as a
perceived means to obtain protection for
their children. Specifically, commenters
stated that excepting UCs from the
rebuttable presumption would
incentivize families to send their
children on a dangerous journey to the
SWB unaccompanied, leading to a surge
in the number of UCs arriving at the
SWB. Similarly, commenters expressed
that in lieu of waiting together in
Mexico, many families may choose, or
be ‘‘forced’’ by the lack of sufficient
appointment slots for family members
or concerns related to their children’s
safety, to send their children
unaccompanied to the SWB while
waiting to schedule their own
appointment through the CBP One app.
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Commenters pointed to reports of such
voluntary separations under MPP and
the Title 42 public health Order and
said that the proposed rule would lead
to similar outcomes, and that
implementing a policy that would
foment such separations would be
inhumane and unacceptable.
Commenters stated that family
separations can cause severe emotional
trauma to children and may increase the
risk that a child will be exploited or
trafficked.
Some commenters suggest that the
Departments should remove the UC
exception and instead award a higher
priority to family unit applications, as
this would keep family units together,
grant asylum to those that qualify, and
disincentivize sending UCs to the SWB.
Other commenters asserted that
accompanied children should also
qualify for an exception, since the
exception for UCs creates a perverse
incentive to send children alone to the
border if families are not first successful
together. Another noted that children
arriving with their families do not
choose where to cross the border or
whether to first obtain an appointment,
nor do they choose whether to first
apply for asylum in another country,
especially when fleeing danger.
Response: The Departments fully
agree with commenters that keeping
families unified and avoiding family
separation and the associated trauma is
an important goal, but disagree that the
rule, including the exception for UCs,
will increase separations of families and
result in more UCs arriving in the
United States. See, e.g., E.O. 14011,
Establishment of Interagency Task Force
on the Reunification of Families, 86 FR
8273 (Feb. 5, 2021). As noted in the
preamble of the NPRM, applicability of
the rebuttable presumption will be
considered during the credible fear
process for those noncitizens processed
for expedited removal, as well as
applied to merits adjudications. 88 FR at
11707. Pursuant to section 235 of the
Trafficking Victims Protection
Reauthorization Act of 2003 (‘‘TVPRA’’),
UCs whom DHS seeks to remove cannot
be processed for expedited removal and,
thus, are never subject to the credible
fear process. 8 U.S.C. 1232(a)(5)(D). As
UCs are already excluded from
expedited removal, the Departments do
not expect—based on their experience
implementing current law concerning
expedited removal and asylum—that
this exclusion of UCs from the
rebuttable presumption would serve as
a significant incentive for families to
send their children unaccompanied to
the United States.
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In addition, under this rule, families
may avail themselves of lawful
pathways and processes to enter the
United States to avoid application of the
rebuttable presumption. The rule also
states that if one member of a family
travelling together, including both
parents and children, is excepted from
the presumption or has rebutted the
presumption, all members of the family
are treated as excepted from or as
having rebutted the presumption. 8 CFR
208.33(a)(2)(ii) and (3)(i),
1208.33(a)(2)(ii) and (3)(i); 88 FR at
11730 (providing that ‘‘if one member of
a family traveling together is excepted
from the presumption that the condition
applies or has rebutted the presumption,
then the other members of the family as
described in 8 CFR 208.30(c) are
similarly treated as excepted from the
presumption or as having rebutted the
presumption’’); see 8 CFR 208.30(c)(2)
(‘‘The asylum officer in the officer’s
discretion may also include other
accompanying family members who
arrived in the United States
concurrently with a principal
[applicant] in that [applicant’s] positive
fear evaluation and determination for
purposes of family unity.’’).
To the extent commenters suggest that
all children, including those traveling
with a parent or legal guardian, be
excluded from applicability of the rule,
the Departments agree that children may
have limited agency in their manner of
arrival in the United States. The
Departments have therefore added a
provision to the rule that allows
principal asylum applicants who were
under the age of 18 at the time of entry
to avoid the condition on asylum
eligibility for applications if they file as
principal applicants after May 11, 2025,
as discussed in more detail at Section
II.C.2 of this preamble. 8 CFR
208.33(c)(2), 1208.33(d)(2). However,
the Departments do not wish to create
an incentive for adults to arrive at the
border with children falsely claiming to
be a family unit in order to be excepted
from the rule or for parents or legal
guardians to bring their children with
them on the dangerous journey to the
United States when they otherwise
would not do so, and therefore decline
to add an exception for all accompanied
minors. The Departments seek to
encourage families that may choose to
travel to the United States together to
travel via a lawful pathway rather than
by entrusting smugglers or criminal
organizations to facilitate a potentially
dangerous journey.
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vi. Other General Comments on
Exceptions
4. Other General Comments on the
Rebuttable Presumption
Comment: Several commenters stated
that the exceptions to the rebuttable
presumption are too narrow and,
therefore, would preclude many
noncitizens from obtaining asylum. One
commenter suggested creating a broad
fourth exception that would exempt
particularly vulnerable demographics
from the rebuttable presumption, much
like the proposed rule already exempts
unaccompanied children. Another
commenter suggested creating an
exception for the elderly, who are
significantly less likely to be repeat
unauthorized crossers.
Response: The Departments believe
that the rule will generally offer
opportunities for those with valid
claims to seek protection, and decline to
add additional exceptions to the rule.
The Departments believe that the
existing exceptions to application of the
rebuttable presumption against asylum
eligibility at 8 CFR 208.33(a)(2) and
1208.33(a)(2) provide the desired
incentive for noncitizens seeking to
enter the United States do so via safe,
orderly, and lawful pathways, and that
additional exceptions, particularly
broad exceptions such as those
suggested by commenters, would be
contrary to the purpose of the rule.
Regardless of whether certain
populations may be more or less likely
to be repeat, unauthorized border
crossers, the Departments believe that
all noncitizens seeking to enter the
United States should do so via safe,
orderly, and lawful pathways if
possible.
The Departments also note that in
addition to the enumerated exceptions,
the rule includes means of rebutting the
presumption against asylum eligibility
at 8 CFR 208.33(a)(3) and 1208.33(a)(3)
where exceptionally compelling
circumstances exist, including where at
the time of entry the noncitizen or a
member of their family with whom they
are traveling faced an acute medical
emergency, faced an imminent and
extreme threat to life or safety, or were
a victim of a severe form of trafficking
in persons. The Departments believe
that together, the exceptions and
grounds for rebuttal strike the correct
balance between incentivizing use of
safe, orderly, and lawful pathways for
entry into the United States while also
recognizing that in certain limited
circumstances use of these pathways
may not be feasible.
Comment: At least one commenter
suggested that the Departments should
permit an applicant to override the
lawful pathways condition if they
establish a reasonable possibility of
persecution or torture.
Response: To best effectuate the
policy aims underpinning this
rulemaking, the Departments believe
that even those noncitizens who
establish a reasonable fear of
persecution or torture generally should
remain subject to this asylum eligibility
condition. Such noncitizens remain
eligible for statutory withholding of
removal or for CAT protection,
consistent with U.S. non-refoulement
obligations under the Refugee
Convention and Protocol and Article 3
of the CAT. See Mejia v. Sessions, 866
F.3d 573, 588 (4th Cir. 2017); Cazun v.
U.S. Att’y Gen., 856 F.3d 249, 257 n.16
(3d Cir. 2017). Additionally, as
discussed in Section IV.E.7.ii of this
preamble, the Departments have
included protections for family
members of principal asylum applicants
who are eligible for statutory
withholding of removal or CAT
protection and would be granted asylum
but for the lawful pathways rebuttable
presumption, where an accompanying
spouse or child would not qualify for
asylum or other protection from removal
on their own or where the principal
asylum applicant has a spouse or child
who would be eligible to follow to join
that applicant as described in section
208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), if the applicant were
granted asylum. In that context, the
Departments have determined that the
possibility of separating the family
would constitute an exceptionally
compelling circumstance that rebuts the
lawful pathways presumption of
ineligibility for asylum. See 8 CFR
1208.33(c).
Comment: One commenter stated that
the United States and Mexico should
establish certain parameters for nonMexicans waiting in Mexico for an
appointment or for entry by other
means, which must take into account
safety, security, and humanitarian
conditions in the locations where
asylum seekers may be forced to wait.
The commenter suggested that those
parameters should include permission
to remain lawfully in Mexico while
awaiting appointments and ensuring
relevant standards of protection and
treatment under the Refugee Convention
and international human rights
standards.
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Response: It would be the
Government of Mexico’s prerogative to
establish any such parameters. The
Departments remain committed to
continuing to work with foreign
partners on expanding their legal
options for migrants and expanding the
Departments’ mechanisms for
processing migrants who lawfully arrive
in the United States. See 88 FR at 11720.
5. Screening Procedures and Review
i. Requests for Reconsideration
Comment: Some commenters opposed
eliminating noncitizens’ ability to seek
reconsideration of a negative fear
determination by USCIS and contended
that the proposed rule would eliminate
AO reconsideration of negative credible
fear determinations. Commenters stated
that the use of reconsiderations is
needed to safeguard the rights of and
due process for asylum seekers where
the AO in the first instance issues an
erroneous decision. Commenters stated
that reconsideration has shielded
asylum seekers from deportation to
persecution and torture for decades, and
observed that between FYs 2019–21
requests for reconsideration resulted in
569 reversals of negative credible fear
determinations. One commenter stated
that even one reversal in the request for
reconsideration process is significant
enough. One commenter wrote that,
contrary to the proposed rule’s ‘‘theory
that’’ requests for reconsideration ‘‘are a
waste of resources because so few are
granted,’’ their experience was that so
few are granted because migrants cannot
adequately state their fear in the initial
interview nor access assistance with the
process. Another commenter said the
elimination of the possibility of
reconsideration leaves an applicant’s
fate entirely to the quality and
circumstances of the initial interview.
Another commenter stated that the
Departments should not use USCIS’s
‘‘abysmal grant rate to justify
eliminating this critical opportunity for
justice and to right a wrong in an
asylum seeker’s application for
protection.’’ Another commenter
expressed concern that this proposed
rule would apply only to people who
receive negative credible fear
determinations due to this proposed
rule, thereby creating different sets of
procedural rules for asylum seekers
denied under this proposed rule and
those denied for other reasons.
Response: At the outset, the
Departments note that contrary to some
commenters’ assertions, the rule does
not eliminate reconsideration of
negative credible fear determinations. If
the IJ upholds the AO’s negative
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determination, USCIS can still exercise
its discretion to reconsider a negative
determination. See 8 CFR
208.33(b)(2)(v)(C). The rule does
eliminate the ability to request such
reconsideration for noncitizens deemed
ineligible for asylum by operation of the
rebuttable presumption. While the
Departments acknowledge concerns
about eliminating a noncitizen’s ability
to request reconsideration in this
context, they believe it is important to
efficiently resolve credible fear cases
that are subject to the rebuttable
presumption against asylum eligibility.
The rule’s effectiveness in channeling
migration into safe and orderly
pathways depends in part on the
efficient resolution of credible fear
cases, and the inclusion of further
review procedures in this context would
unnecessarily prolong the credible fear
process.
In response to concerns about
fairness, the Departments note that there
remain multiple safeguards to ensure
that the process is fair and to guard
against inadvertent error for those
subject to the rule. All credible fear
determinations undergo initial review
by a Supervisory AO. 8 CFR
208.30(e)(8). If the supervisor concurs
with the negative determination, the
noncitizen can request review of that
determination by an IJ. See 8 CFR
208.33(b)(2)(iii) through (v). Those who
are found subject to the presumption
against asylum eligibility but who are
still placed in section 240 removal
proceedings can seek a de novo decision
regarding the presumption. See 8 CFR
1208.33(b)(4). Furthermore, the
Departments note that few requests for
review of negative credible fear
determinations ultimately result in the
reversal of those determinations. See 87
FR at 18132; 88 FR at 11747. The
Departments assess that, in light of the
safeguards in place and the low rate of
reversal, efficiency interests outweigh
the interest in providing further
opportunity to request reconsideration;
the Departments therefore respectfully
disagree with the commenter stating
that even one reversal would be
significant enough to warrant the ability
to request reconsideration. Regarding
the claim that few requests for
reconsideration are granted due to
noncitizens’ lack of opportunity to state
their fear during the initial interview
and lack of assistance with the process,
the commenter offered only anecdotal
evidence for this. Moreover, this
assertion does not change the
Departments’ assessment that providing
further opportunity to request
reconsideration carries insufficient
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benefits to justify its costs. To the extent
that commenters argued that these
limits on reconsideration implicate the
due process rights of noncitizens, as
explained previously in Section IV.B.5.i
of this preamble, the Supreme Court has
held that the due process rights of
noncitizens applying for admission at
the border are limited to ‘‘only those
rights regarding admission that Congress
has provided by statute.’’
Thuraissigiam, 140 S. Ct. at 1983 (citing
INA 235(b)(1)(B)(ii) and (v), 8 U.S.C.
1225(b)(1)(B)(ii) and (v)). The INA
provides no statutory right to
reconsideration of an AO’s negative
credible fear determination. See INA
235(b)(1), 8 U.S.C. 1225(b)(1).
The Departments acknowledge that
noncitizens who are not subject to the
presumption are subject to different
rules for reconsideration. See 8 CFR
208.30(g)(1)(i). However, the
Departments note that the decision to
reconsider a negative credible fear
determination under that rule is still
subject to USCIS discretion and is also
time limited. Id. By contrast, there are
no time limits for USCIS to reconsider
negative determinations in cases subject
to this rule. 8 CFR 208.33(b)(2)(v)(C).
And due to the exigent circumstances
discussed throughout this rule,
including in Sections II.A and IV.B.2 of
this preamble, the Departments believe
it necessary to limit requests for
reconsideration in cases subject to this
rule.
ii. ‘‘Significant Possibility’’ Standard
and Mechanisms for Evaluating Asylum
and Withholding of Removal
Comment: Some commenters alleged
that the rule would elevate the
‘‘significant possibility’’ standard
established by Congress to the
‘‘reasonable possibility’’ standard,
which is much harder for asylum
seekers to meet. One commenter stated
that the complexity of the presumption
of ineligibility will require ‘‘intensive
factual analysis’’ during credible fear
interviews and stated that application of
the reasonable possibility standard for
screenings for withholding of removal
or CAT protection violates the Global
Asylum Rule injunction. Other
commenters suggest that it will be ‘‘an
extremely onerous undertaking’’ for the
Departments to apply a ‘‘reasonable
fear’’ standard in cases where the lawful
pathways condition applies, which
could lead to more complex and
resource-intensive credible fear
screening interviews with a ‘‘high risk
of error that would send bona fide
refugees back to danger.’’ Another
commenter stated that, by applying the
‘‘reasonable possibility’’ standard to
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31419
cases subject to the rule, the rule would
essentially turn the credible fear
interview, which is intended to be a
low-bar screening, into an asylum
merits hearing for these individuals.
One commenter said that procedural
and judicial errors are likely to increase
as AOs are asked to apply the more
onerous ‘‘reasonable possibility’’
standard.
A commenter stated that the rule may
not be necessary as long as statutory
withholding of removal and protection
under CAT are available, as migrants
would not distinguish between asylum,
withholding, and CAT protection and
instead would arrive at the SWB with
the intention of seeking whatever relief
is available to them. Other commenters
expressed concern that those who
cannot rebut the presumption would
then be forced to meet a more difficult
standard to be able to present a claim to
lesser protections in the form of
statutory withholding of removal or
CAT protection. One commenter stated
that the fact that the Departments have
long applied the higher standard in
reasonable fear screenings is
‘‘inapposite,’’ reasoning that the rule is
not about reasonable fear screenings,
which impact those who were
previously ordered removed and then
re-entered without inspection.
Response: To the extent commenters
suggest that the ‘‘reasonable possibility’’
standard will apply at the credible fear
stage to asylum claims under this rule,
they are incorrect. The statutory
‘‘significant possibility’’ standard will
continue to apply to such asylum
claims. See Section IV.D.1.iii of this
preamble. The rule would apply a
‘‘reasonable possibility’’ standard only
to screen for claims of withholding of
removal and CAT protection, and only
where a noncitizen has failed to
establish a significant possibility that
they would be able to show at a full
hearing by a preponderance of the
evidence that the presumption does not
apply or that they meet an exception to
or can rebut the presumption of
ineligibility. See 88 FR at 11724.
That said, the Departments
acknowledge commenters’ concerns that
certain noncitizens will be subject to a
higher burden of proof for statutory
withholding of removal and CAT
protection. The Departments
acknowledge that use of the ‘‘reasonable
possibility’’ standard is a change from
the practice currently applied in the
expedited removal context as articulated
in the Asylum Processing IFR; however,
it is the same standard used in other
protection screening contexts. See 8
CFR 208.31; see also 88 FR 11742–44.
Notably, this higher screening standard
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accords with the higher standard a
noncitizen must meet for statutory
withholding of removal and protection
under CAT in section 240 removal
proceedings, 8 U.S.C. 1229a. See INS. v.
Cardoza-Fonseca, 480 U.S. 421 (1987).
As explained in the NPRM, the
Departments therefore believe that the
‘‘reasonable possibility’’ standard
‘‘better predicts the likelihood of
succeeding on the ultimate statutory
withholding or CAT protection
application than the ‘significant
possibility’ of establishing eligibility for
the underlying protection standard,
given the higher burden of proof.’’ 88 FR
at 11746–47. The application of
standards tailored to the type of relief or
protection that the noncitizen is eligible
for will not foreclose an opportunity for
those with meritorious claims to seek
protection.
While the INA specifies the
‘‘significant possibility’’ standard for the
purpose of screening for potential
asylum eligibility in credible fear
proceedings, INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v), the INA does
not specify a standard to be used in
screening for potential eligibility for
statutory withholding of removal or
CAT protection. Congress did not
require the same eligibility standards for
asylum, statutory withholding of
removal, and protection under the CAT
in the ‘‘credible fear’’ screening process.
See INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also The Foreign
Affairs Reform and Restructuring Act of
1998 (‘‘FARRA’’), Public Law 105–277,
112 Stat. 2681–822. Thus, the
Departments have determined that,
where the rebuttable presumption of
asylum ineligibility applies and has not
been rebutted, applying the ‘‘reasonable
possibility’’ of persecution or torture
standard to screen claims for statutory
withholding of removal and CAT
protection would better advance the
Departments’ systemic goal of
processing protection claims in a
manner that is efficient, orderly, and
safe.
The Departments acknowledge that in
multiple rulemaking efforts in recent
years, the Departments promulgated
divergent standards for screening for
potential eligibility for asylum as
compared with statutory withholding of
removal and CAT protection, along with
variable standards for individuals
barred from certain types of protection,
which are currently not in effect.292 In
292 See Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934, 55939, 55943 (Nov.
9, 2018) (‘‘Proclamation Bar IFR’’); Asylum
Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019) (‘‘Third Country Transit (TCT)
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June 2020, the Departments published
the Global Asylum Rule, which
amended provisions relating to the
expedited removal and credible fear
screening process, including raising the
standards of proof for screening all
claims for statutory withholding of
removal and CAT protection to a
‘‘reasonable possibility’’ of persecution
or torture and applying all mandatory
bars to asylum and statutory
withholding of removal during the
credible fear screening. See Global
Asylum Rule, 85 FR at 80277–78. The
Global Asylum Rule continues to be the
subject of lawsuits challenging the rule
on multiple grounds.293 Most of the
changes to the credible fear process in
expedited removal made by the Global
Asylum Rule were superseded by the
Asylum Processing IFR. As explained in
the NPRM, the considerations that led to
those decisions do not apply here. See
88 FR at 11744. This rule implements
the new condition on eligibility in
credible fear screenings through a standalone provision rather than a catch-all
as the Departments sought to do through
the Global Asylum Rule. Moreover, the
Departments have determined that it
would be appropriate to apply the
lawful pathways condition on asylum
eligibility during the credible fear
screening stage such that the
‘‘reasonable possibility’’ of persecution
or torture standard would then be used
to screen the remaining applications for
statutory withholding of removal and
CAT protection. See id.
The Departments disagree with
commenters’ assertions that applying a
higher burden of proof to screen for
statutory withholding of removal and
CAT protection where the presumption
of asylum ineligibility applies and is not
rebutted will result in errors. AOs and
IJs have long applied, and continue to
apply, the ‘‘reasonable possibility’’ of
persecution or torture standard
successfully to noncitizens who are
subject to administrative removal orders
under section 238(b) of the INA, 8
Bar IFR’’); Asylum Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17, 2020) (‘‘TCT
Bar Final Rule’’); Procedures for Asylum and
Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 36264 (June 15,
2020) (‘‘Global Asylum NPRM’’); Procedures for
Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, 85 FR 80274 (Dec. 11,
2020) (‘‘Global Asylum Rule’’); Security Bars and
Processing, 85 FR 84160 (Dec. 23, 2020) (‘‘Security
Bars Rule’’).
293 See Pangea Legal Servs. v. U.S. Dep’t of
Homeland Sec., 501 F. Supp. 3d 792 (N.D. Cal.
2020); Immigration Equality v. U.S. Dep’t of
Homeland Sec., No. 3:20–cv–09258 (N.D. Cal. filed
Dec. 21, 2020); Human Rights First v. Mayorkas, No.
1:20-cv-3764 (D.D.C. filed Dec. 21, 2020); Tahirih
Justice Ctr. v. Mayorkas, No. 1:21–cv–00124 (D.D.C.
filed Jan. 14, 2021).
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U.S.C. 1228(b), or reinstated orders
under section 241(a)(5) of the INA, 8
U.S.C. 1231(a)(5). See generally 8 CFR
208.31 and 1208.31. There is therefore
no reason to conclude that AOs and IJs
will not be able to appropriately apply
that standard successfully in the context
of this rule.
The Departments disagree with
commenters’ suggestion that the rule
will increase irregular migration
because noncitizens will still travel to
the United States to pursue any avenue
of relief available to them. The rule’s
primary purpose is to incentivize
migrants, including those intending to
seek asylum, to use lawful, safe, and
orderly pathways to enter the United
States, or seek asylum or other
protection in another country through
which they travel. The rule, coupled
with an expansion of lawful, safe, and
orderly pathways, is expected to reduce
the number of noncitizens seeking to
cross the SWB without authorization to
enter the United States. The rule is
intended to reduce the level of irregular
migration to the United States without
discouraging migrants with valid claims
from applying for asylum or other
protection. The Departments believe the
rule will generally offer opportunities
for those with valid claims to seek
protection.
The Departments’ application of a
higher standard for statutory
withholding and CAT protection in
‘‘reasonable fear’’ screenings, see 8 CFR
208.31 and 1208.31, is not inapposite in
the context of this rule, where a
noncitizen does not meet an exception
to or rebut the presumption of asylum
ineligibility. As in the ‘‘reasonable fear’’
context, this standard would be applied
only where noncitizens are ineligible for
asylum—and because the standard for
showing entitlement to statutory
withholding and CAT protection (a
probability of persecution or torture) is
significantly higher than the standard
for asylum (well-founded fear of
persecution), the Departments have
determined that the screening standard
adopted for initial consideration of
withholding and deferral requests in
these contexts should also be higher.
In promulgating this rule, the
Departments considered and drew upon
the established framework for
considering the likelihood of a grant of
statutory withholding of removal or
CAT protection in the reasonable-fear
context. See 88 FR at 11743. The
Departments have authority to establish
screening procedures and standards for
statutory withholding of removal and
CAT protection. See INA 103(a)(1), 8
U.S.C. 1103(a)(1). The Departments have
frequently invoked these authorities to
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establish or modify procedures in
expedited removal proceedings. See id.
Noncitizens who establish a reasonable
fear of persecution or torture would still
be able to seek protection in
proceedings before IJs. See CFR
1208.33(b)(2)(ii).
Comment: One commenter supported
the Departments’ assessment that
applying the higher standard would
lead to fewer noncitizens with nonmeritorious claims being placed in
section 240 removal proceedings, and
that using this standard would further
systemic goals without violating
statutory or international obligations.
However, the commenter recommended
that DHS raise the screening standard
from ‘‘significant possibility’’ to
‘‘reasonable possibility’’ for statutory
withholding of removal and CAT
protection during all credible fear
interviews. The commenter reasoned
that such an approach would be
consistent with the INA, the FARRA,
and U.S. non-refoulement obligations,
and would reduce ‘‘historic and
unsustainable strains’’ on the U.S.
asylum system by deterring
unauthorized immigration into the
United States.
Response: The Departments decline to
apply the ‘‘reasonable possibility’’
standard to screen all withholding of
removal and CAT claims. The
Departments believe that continuing to
use the ‘‘significant possibility’’
standard to screen for all three types of
claims—asylum, statutory withholding
of removal, and CAT protection—when
the noncitizen is excepted from or has
overcome the presumption would avoid
AOs and IJs applying divergent
standards to the same sets of facts in a
credible fear interview, thus simplifying
the screening process for those
noncitizens.
The commenter did not provide any
explanation or evidence regarding how
applying a higher standard during the
credible fear screening to all claims for
protection will reduce fraudulent
claims. While the Departments
acknowledge the commenter’s concern,
the Departments emphasize that the
rule’s primary intent is not to identify
fraudulent asylum claims, but rather to
reduce the level of irregular migration to
the United States without discouraging
migrants with valid claims from
applying for asylum or other protection.
6. Effective Date, Temporary Period, and
Further Action
Comments: Commenters raised
concerns regarding the effective date of
the rule and the two-year temporary
duration of the rule. Several
commenters expressed a concern that
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the two-year period is unexplained.
Some commenters argued that two years
was too short of a time period to assess
the effectiveness of the program.
Another commenter stated that the twoyear temporary duration of the rule
allowed for sufficient time to assess the
effects of the rule and to deter migrants.
Some commenters questioned why the
rule would expire after two years and
requested further explanation, stating
that if the Departments believe it is
sound policy, it is not clear why the
changes are not permanent. Others
stated that the two-year period was too
long for a ‘‘temporary’’ program
designed to address ‘‘exigent
circumstances,’’ and stated that the
Departments should have considered a
much shorter duration, such as 30 days
or 90 days, reconsideration every 6
months, or a sunset before the end of
2025. Another commenter stated that
the Departments should specify
conditions that would trigger the
expiration of the rule. Commenters also
expressed concern that the rule does not
sufficiently lay out the criteria for
determining whether the rule should be
extended at the end of the 24-month
period, or that the criteria are highly
subjective. Commenters also noted that
previous immigration policies,
including MPP and those stemming
from the Title 42 public health Order,
have been difficult to sunset.
Response: The Departments intend for
the rule to address the surge in
migration that is anticipated to follow
the lifting of the Title 42 public health
Order. For that reason, and consistent
with the Departments’ initial assessment
as stated in the NPRM, see 88 FR at
11727, the rule will only cover those
who enter during a specific time period,
applying to those who enter the United
States at the SWB during the 24-month
period following the rule’s effective
date. The Departments believe that a 24month period provides sufficient time to
implement and assess the effects of the
policy contained in this rule. In
addition, the Departments believe that a
24-month period is sufficiently long to
impact the decision-making process for
noncitizens who might otherwise
pursue irregular migration and make the
dangerous journey to the United States,
while a shorter duration, or one based
on specified conditions, would likely
not have such an effect.
During this time, the United States
will continue to build on the multipronged, long-term strategy with our
foreign partners throughout the region
to support conditions that would
decrease irregular migration, work to
improve refugee processing and other
immigration pathways in the region,
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and implement other measures as
appropriate, including continued efforts
to increase immigration enforcement
capacity and streamline processing of
asylum seekers and other migrants.
Recognizing, however, that there is not
a specific event or demarcation that
would occur at the 24-month mark, the
Departments will closely monitor
conditions during this period in order to
review and make a decision, consistent
with the requirements of the APA,
whether additional rulemaking is
appropriate to modify, terminate, or
extend the rebuttable presumption and
the other provisions of this rule. Such
review and decision would consider all
relevant factors, including the
following: current and projected
migration patterns, including the
number of migrants seeking to enter the
United States or being encountered at
the SWB; resource limitations,
including whether the number of
noncitizens seeking or expected to seek
to enter the United States at the SWB
exceeds or is likely to exceed the
Departments’ capacity to safely,
humanely, and efficiently administer
the immigration system, including the
asylum system; the availability of
lawful, safe, and orderly pathways to
seek protection in the United States and
partner nations; and foreign policy
considerations. The Departments expect
to consider their experience under the
rule to that point, including the effects
of the rebuttable presumption on those
pursuing asylum claims. In addition, the
Departments expect to consider changes
in policy views and imperatives,
including foreign policy objectives, in
making any decision regarding the
future of the rule. The Departments do
not believe that establishment of
specific metrics for renewal ex ante
would be appropriate, given the
dynamic nature of the circumstances at
the SWB and the multifaceted domestic
and foreign policy challenges facing the
Departments.
Comment: Commenters expressed
concern about the rationale for adopting
the two-year duration and potential
extensions of the rule in subsequent
administrations. Some commenters
stated that the Departments’ rationale
for the two-year temporary duration was
pretextual, with the true motivations
being political and partisan in nature.
One commenter disagreed with allowing
the rule to be effective after the end of
the current presidential term because it
could be indefinitely extended, and
another similarly stated that the fact that
the rule is ‘‘temporary’’ does not mean
that a subsequent presidential
administration could not renew it.
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Commenters stated that, by sunsetting
the rule after the end of the current
presidential term, the Departments were
inviting such a result.
Response: The Departments disagree
that the rationale for the 24-month
duration of the rule is political, partisan,
or pretextual in nature. The rule’s
primary purpose is to incentivize
migrants, including those intending to
seek asylum, to use lawful, safe, and
orderly pathways to enter the United
States, or seek asylum or other
protection in another country through
which they travel. The rule is needed
because, absent this rule, after the
termination of the Title 42 public health
Order, the number of migrants expected
to travel without authorization to the
United States is expected to increase
significantly, to a level that risks
undermining the Departments’ ability to
safely, effectively, and humanely
enforce and administer U.S.
immigration law, including the asylum
system. The 24-month duration of the
rule is discussed in more detail in
Section IV.E.6 of this preamble.
Comment: Commenters questioned
how the temporary nature of the rule
would practically work, noting the
range of new procedures, training, and
other Notices required to start and stop
such a large program. These
commenters hypothesized that the time
spent training and making other updates
for implementation would directly cut
into the limited time the rule would be
in effect, reducing its effectiveness.
Response: The Departments agree that
implementation of the rule requires
training and guidance, and are taking
steps to ensure that it can be
implemented in a timely, fair, and
efficient manner after it goes into effect.
The Departments are confident that the
new procedures required can be put into
effect with minimal disruption or delay
in both merits adjudications and
credible fear screenings.
Comment: Commenters stated that
although the rule proposed a two-year
effective period, it would have a
permanent impact. A few commenters
expressed concern about the potential
for two identical asylum seekers to be
treated differently based on whether
they seek asylum before or after the
sunset date of the rule. One commenter
urged the Departments to provide clarity
regarding adjudications that take place
after the rule’s sunset date for
individuals that entered prior to the
sunset date.
Response: The Departments
appreciate commenters’ concerns that
the rule, which would only apply to
those entering during a specified, timelimited date range, could lead to
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confusion, and appreciate the
opportunity to clarify how it will be
implemented. The Departments also
recognize that due to the nature of the
rule, noncitizens who enter during the
specified date range will be subject to its
terms while those who enter before or
after the period will not. However, the
Departments disagree that the effects of
the condition should be time-limited in
duration. The rule was designed to
apply to anyone who entered during the
specified time period in order to avoid
the possibility of individuals entering
without documents sufficient for lawful
admission during the time period
covered by the rule, then waiting out the
condition imposed by the rule before
applying for asylum, thereby
contributing to the existing immigration
court backlog and rendering the rule
ineffective in its aims of reducing
unauthorized arrivals to the SWB and
encouraging utilization of available
lawful pathways. To clarify to
noncitizens and adjudicators that the
rebuttable presumption has continuing
effect, the Departments added language
to the regulations stating that the
rebuttable presumption will continue to
apply to all asylum applications filed by
people who enter in the specified
manner during the 24-month period
regardless of when the application is
filed and adjudicated. See 8 CFR
208.33(c)(1), 1208.33(d)(1). To further
clarify, and in response to commenters’
concerns in relation to individuals who
enter as minors in a family unit who
may have entered during the rule’s
effective period through no fault or
agency of their own, the Departments
have added language to the rule to
ensure children brought to the United
States during the 24-month effective
period are not subject to the lawful
pathways rebuttable presumption of
asylum ineligibility in the rule if they
file an application for asylum as a
principal applicant after expiration of
the 24-month period. 8 CFR
208.33(c)(2), 1208.33(d)(2).
Comment: Several commenters stated
that the rule is contrary to international
law, and that its temporary nature, or
the emergency rationale behind it, do
not justify or excuse such a violation.
Response: For discussion of the rule’s
compliance with international law and
U.S. treaty obligations, please see
Section IV.D.3 of this preamble.
7. EOIR Proceedings
i. EOIR IJ Credible Fear Review
Procedures
Comment: Commenters objected to
the provision in the proposed rule that
would require noncitizens to
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affirmatively request IJ review of
negative credible fear determinations,
which differs from existing procedures
where review is given to those who do
not affirmatively decline review.
Commenters stated that IJ review of
negative credible fear determinations is
an important safeguard that is
guaranteed by statute, pointing to data
detailing how many negative credible
fear determinations were overturned by
IJs. Commenters stated that this change
favors expedience over access to
protection in the United States and
would inevitably result in an increase in
deportations to countries where asylum
seekers have a credible fear of return.
Commenters stated that negative
credible fear determinations should
automatically receive IJ review unless
the noncitizen affirmatively declines it,
as expecting a noncitizen to know to
affirmatively ask for an IJ’s review is
unrealistic and effectively denies the
noncitizen the opportunity for a judicial
review. Commenters explained that
many individuals may not request
review, or know to request review, even
if asked whether they wish to seek
further review before an IJ, for a variety
of reasons. The provided reasons
included unfamiliarity with the
immigration system; lack of counsel or
education; inability to identify legal
errors by the AO; language issues; time
in custody; mental health conditions;
confusion; trauma; and deference to
authority; among others. Further,
commenters also stated that changing
the explanations of the right to IJ review
would not serve as a sufficient
safeguard.
Commenters also stated that the
Departments did not give a reasoned
justification for this policy change and
that the rationale in the NPRM for
requiring noncitizens to affirmatively
request IJ review contradicts the Asylum
Processing IFR, which, after the Global
Asylum Final Rule implemented a
requirement that noncitizens
affirmatively request review, reinstated
the default rule that negative
determinations would be automatically
referred for IJ review absent explicit
declination by the noncitizen.
Moreover, commenters asserted that this
rule change would cause confusion as
DHS officers would be required to apply
the automatic credible fear review
provision differently for asylum seekers
with negative credible fear
determinations based on the rebuttable
presumption in this rule, as compared
to determinations made on another
basis. Commenters also expressed
concern that the NPRM did not include
statistics regarding automatic IJ credible
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fear review, including how many
asylum seekers succeeded in their
review without having articulated a
desire for IJ review to the AO, or how
many IJ credible fear reviews were
expeditiously resolved after the IJ
explained the asylum seeker’s rights and
the asylum seeker chose to not pursue
further review.
Separately, regarding credible fear
reviews more generally, commenters
stated that it was unclear whether an IJ
could review the asylum ineligibility
presumption during a credible fear
review. Commenters also stated that the
proposed rule would cause a significant
increase in negative credible fear
reviews at EOIR, and that such reviews
would require more adjudication time
due to application of the rebuttable
presumption. Moreover, commenters
stated that the proposed rule would
allow IJs to engage in speculation by
looking outside of the record of
proceedings during the credible fear
review.
Commenters also proposed an
additional hearing, prior to or
concurrent with the IJ review, assessing
whether a noncitizen’s documents were
sufficient for lawful admission pursuant
to section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7). In contrast, other
commenters proposed generally
eliminating IJ review of credible fear
determinations, asserting this would
reduce the backlog of cases within the
immigration system and would reduce
the pull factor created by lengthy
adjudications. Similarly, other
commenters stated that IJ review is not
necessary if a noncitizen knowingly
declines review, so long as the
Departments provide expanded rights
advisals and explain the consequences
of declining such review.
Response: As stated in the NPRM, the
Departments acknowledge that the
procedure for IJ review of negative
credible fear determinations established
by this rule differs from the credible fear
review procedures implemented by the
Asylum Processing IFR. See 88 FR at
11744 (‘‘[U]nlike the process adopted by
the Asylum Processing IFR, noncitizens
must affirmatively elect immigration
judge review of a negative credible fear
determination when that choice is
presented to them; noncitizens who fail
or refuse to indicate a request for
immigration judge review will not be
considered to have requested such
review.’’). While the Departments
believe that ‘‘the need for expedition
under the current and anticipated
exigent circumstances’’ weighs in favor
of requiring noncitizens to affirmatively
request IJ review of a negative credible
fear determination, they will also ‘‘seek
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to ensure noncitizens are aware of the
right to review and the consequences of
failure to affirmatively request such
review.’’ Id. at 11747.294
In particular, if a noncitizen receives
a negative credible fear determination
after failing to rebut the presumption or
to establish a ‘‘reasonable possibility’’ of
persecution or torture, the rule requires
AOs to provide noncitizens ‘‘with a
written notice of decision and inquire
whether the alien wishes to have an
immigration judge review the negative
credible fear determinations.’’ 8 CFR
208.33(b)(2)(iii). The Departments
believe that such notice sufficiently
ensures that noncitizens who desire IJ
review have the opportunity to elect it
under this rule. Currently, USCIS
explains to noncitizens that they may
request review of a negative credible
fear determination with an IJ, and that
failure to do so may result in removal
from the United States. USCIS also
explains to noncitizens their right to
consultation during the credible fear
process, and provides noncitizens with
a list of free or low-cost legal services
providers whom they may wish to
contact.295 To ensure that noncitizens—
including, among others, noncitizens
who are unfamiliar with the
immigration system, have suffered
trauma, are without counsel, or are
unable to read or speak English—
understand what review is available to
them, DHS ‘‘intends to change the
explanations it provides to noncitizens
subject to the . . . rule to make clear to
noncitizens that the failure to
affirmatively request review will be
deemed a waiver of the right to seek
such review.’’ 88 FR at 11747. These
explanations will be provided by
trained asylum office staff through an
interpreter in a language understood by
the noncitizen. See 8 CFR 208.30(d)(5).
As a result, the Departments believe that
it is reasonable to conclude that
noncitizens who do not request IJ
review after receiving sufficient notice,
see 8 CFR 208.30(d)(5), and the
enhanced explanations described above
do not wish for additional review. See
88 FR at 11747. The Departments note
that, at the time that the Asylum
Processing IFR was being considered,
the Departments were assessing
procedures that would require
affirmative requests for IJ review
through the lens of the Global Asylum
Final Rule, which did not include a
294 Regarding commenters’ data requests, the
Departments note that EOIR does not maintain data
regarding how many IJ credible fear reviews were
initiated after a noncitizen failed to request such
review.
295 See USCIS Form M–444, Information About
Credible Fear Interview.
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planned rollout of enhanced
explanations for noncitizens. Under this
rule, DHS is now planning different
protocols for implementing the
requirement that noncitizens
affirmatively request review by
providing the above-described
explanations coupled with enhanced
notice procedures. The Departments
also do not believe this change will
cause unnecessary confusion for DHS
officers and staff, as they are well
trained in expedited removal and
credible fear procedures. See, e.g., 8
CFR 208.1(b) (‘‘Training of asylum
officers’’).
Separately, in response to more
general comments about the IJ credible
fear review process, the Departments
clarify that IJs apply a de novo standard
during credible fear reviews, including
on the question whether the asylum
ineligibility presumption applies. See 8
CFR 1208.33(b)(1) (stating that ‘‘the
immigration judge shall evaluate the
case de novo’’). More generally, the
Departments do not believe that the
application of the rebuttable
presumption presents a risk of creating
significant inefficiencies during the IJ
credible fear review process that would
warrant amending the rule, as IJs have
significant experience conducting
credible fear reviews and applying
asylum-related standards. Additionally,
IJs will be able to review relevant
evidence provided at the initial credible
fear interview before the AO in making
any determinations regarding the
rebuttable presumption. As discussed
above, the Departments anticipate that
any increases in the time that it takes to
review a negative credible fear decision
will be outweighed by other efficiencies
created by this rule. The Departments
disagree with commenters that the rule
allows IJs to engage in ‘‘speculation’’
during credible fear reviews, as the
relevant evidentiary standards in
credible fear reviews predate this
regulation. See 8 CFR 1003.42(d)(1)
(explaining that the IJ may take into
account ‘‘such other facts as are known
to the immigration judge’’).
In response to other commenters, the
Departments also decline to completely
eliminate IJ credible fear review, which
is provided by statute and acts as an
important safeguard during the
expedited removal process. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (‘‘The Attorney
General shall provide by regulation and
upon the alien’s request for prompt
review by an immigration judge of a
determination . . . that the alien does
not have a credible fear of
persecution.’’). Similarly, the
Departments decline to add additional
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hearings regarding inadmissibility
determinations, which are properly
determined within existing procedures.
See INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i) (requiring DHS officer
to determine document-related
inadmissibility during the expedited
removal process).
Comment: Commenters raised a
number of concerns about IJ credible
fear review proceedings generally,
including the sufficiency and reliability
of the evidentiary record before the AO,
the abbreviated nature of IJ credible fear
reviews in light of the complexity of the
issues presented, the lack of counsel or
limited participation of counsel in IJ
credible fear reviews, the level of
deference IJs demonstrate towards to the
AO’s determination, and the lack of
appeal of an IJ negative credible fear
determination, among others.
Response: As an initial matter, the
Departments note that this rule does not
alter the existing IJ credible fear review
process, and comments regarding
unaltered existing processes are outside
the scope of this rule. Regardless, with
respect to commenters who
characterized the existing credible fear
screening and review process as
deficient or contrary to due process, the
Departments note that Congress has
established an expedited removal
process that includes neither BIA
review nor judicial review and requires
any IJ review of credible fear
determinations to be prompt. See INA
235(b)(1)(B)(iii)(III), (C), 8 U.S.C.
1225(b)(1)(B)(iii)(III), (C). Additionally,
existing regulations outline a robust
process for IJ review of credible fear
determinations. See 8 CFR 1003.42,
1208.30 (describing IJ review of credible
fear determinations). Please also see
discussion in Section IV.B.5 of this
preamble responding to comments on
the effects of the rule on due process.
As to the sufficiency and reliability of
the record of determination, the
Departments disagree with commenter
contentions that this document does not
provide a sufficient record for IJ review.
The INA sets forth that the record of
determination ‘‘shall include a summary
of the material facts as stated by the
applicant, such additional facts (if any)
relied upon by the officer, and the
officer’s analysis of why, in light of such
facts, the [noncitizen] has not
established a credible fear of
persecution.’’ INA 235(b)(1)(B)(iii)(II), 8
U.S.C. 1225(b)(1)(B)(iii)(II). Further, as
the record of determination is a
government-created document, it is
generally presumed to be reliable in the
absence of evidence to the contrary. See
Matter of J–C–H–F-, 27 I&N Dec. 211,
212 (BIA 2018) (citing Espinoza v. INS,
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45 F.3d 308, 310 (9th Cir. 1995)).
Should the reliability of a record of
determination be challenged before the
IJ, the IJ will consider the arguments
raised as to its reliability. Cf. id. at 215–
16 (setting forth the framework for IJ
review when the reliability of a border
interview is challenged); see also Ye v.
Lynch, 845 F.3d 38, 45 (1st Cir. 2017)
(requiring a totality-of-thecircumstances-based inquiry as to
reliability of a DHS document); Zhang v.
Holder, 585 F.3d 715, 725–26 (2d Cir.
2009) (requiring a factor-based inquiry
as to reliability of a DHS document).
Moreover, during review of a negative
credible fear determination, IJs are
authorized to ‘‘receive into evidence any
oral or written statement which is
material and relevant to any issue in the
review.’’ 8 CFR 1003.42(c). Accordingly,
noncitizens who believe that their
credible fear interview is inaccurately
described or who wish to provide
additional testimony, context, or
explanation have the opportunity to do
so before an IJ. Furthermore, as an
additional procedural precaution for
noncitizens, the IJ review of a negative
credible fear determination itself is
subject to preservation-of-records
requirements, as the IJ must create a
Record of Proceeding in which to
memorialize their review. See 8 CFR
1003.42(b).
As stated in the NPRM and consistent
with existing practice, IJs will continue
to evaluate such credible fear
determinations using a de novo
standard of review. See 8 CFR
1003.42(d)(1), 1208.33(b)(1) (‘‘[T]he
immigration judge shall evaluate the
case de novo, as specified in paragraph
(b)(2) of this section.’’); 88 FR at 11726.
This includes reviewing an AO’s
determinations about the applicability
of the presumption of asylum
ineligibility and whether the
presumption was rebutted. See 8 CFR
1208.33(b). Under 8 CFR 1208.33(b)(1),
the IJ shall review de novo ‘‘[w]here an
asylum officer has issued a negative
credible fear determination pursuant to
8 CFR 208.33(b), and the alien has
requested immigration judge review of
that credible fear determination.’’ 8 CFR
208.33(b)(2)(v) (‘‘Immigration judges
will evaluate the case as provided in 8
CFR 1208.33(b).’’). In such an instance,
de novo review serves to protect
noncitizens from incorrect or
unwarranted negative credible fear
determinations that may have in part
relied upon the rebuttable presumption.
Further, with respect to commenter
concerns about timelines in credible
fear review proceedings, the expedited
removal statute requires ‘‘prompt
review.’’ INA 235(b)(1)(B)(iii)(III), 8
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U.S.C. 1225(b)(1)(B)(iii)(III).
Additionally, the statute states that
‘‘[r]eview shall be concluded as
expeditiously as possible, to the
maximum extent practicable within 24
hours, but in no case later than 7 days
after the date of the [negative credible
fear] determination.’’ Id.
Moreover, the Departments will not
depart from existing procedures
regarding IJ review of credible fear
determinations to allow appeals from
the IJs’ review of such determinations.
Prior to this rule, IJ decisions at the
credible fear review stage were not
reviewable, and this rule maintains that
posture. See 8 CFR 1003.42(f) (2020) 296
(‘‘No appeal shall lie from a review of
an adverse credible fear determination
made by an immigration judge.’’);
208.33(b)(2)(v)(C) (‘‘No appeal shall lie
from the immigration judge’s decision
and no request for reconsideration may
be submitted to USCIS.’’). Such
processes are in accordance with the
INA. See INA 235(b)(1)(C), 8 U.S.C.
1225(b)(1)(C) (providing that removal
orders issued under this section are not
subject to administrative appeal other
than review by an IJ). However, the
Departments note that per the rule,
USCIS retains the discretion to
reconsider negative determinations. See
8 CFR 208.33(b)(2)(v)(C) (‘‘Nevertheless,
USCIS may, in its sole discretion,
reconsider a negative determination.’’).
Because noncitizens can request IJ
review of a negative credible fear
determination, and USCIS retains
discretion to reconsider negative
determinations, the Departments
continue to believe, as explained in the
NPRM, that the rule appropriately
balances the availability of review and
the efficient use of limited agency
resources. See 88 FR at 11747.
In sum, the Departments believe that
the established process for IJ review of
credible fear determinations provides
sufficient opportunity for noncitizens to
present the necessary evidence,
including testimony, relevant for
evaluating the applicability of the
presumption of asylum ineligibility
created by this rule.
ii. Section 240 Removal Proceedings
Comment: Commenters stated that the
rule would create confusion in section
240 removal proceedings, as the rule
states that a noncitizen who is subject
296 This provision was amended by the Global
Asylum Rule, which was preliminarily enjoined
and its effectiveness stayed before it became
effective. See Pangea II, 512 F. Supp. 3d at 969–70.
This order remains in effect, and thus the 2020
version of this provision—the version immediately
preceding the enjoined amendment—is currently
effective.
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to the presumption but demonstrates a
‘‘reasonable possibility’’ of persecution
or torture may apply for asylum during
subsequent removal proceedings.
Commenters also expressed concern
that under the proposed rule, an IJ
might re-adjudicate the condition on
eligibility in section 240 removal
proceedings despite an AO initial
determination during the credible fear
process that the presumption of
ineligibility was not applicable or was
rebutted. Commenters stated that it
would be unfair to require asylum
applicants to repeatedly demonstrate
that they are able to rebut the
presumption before different
adjudicators, suggesting an AO’s
determination that the presumption is
inapplicable should be final for all
future proceedings.
Response: The Departments reiterate
that noncitizens who are subject to the
presumption of asylum ineligibility
during a credible fear determination, but
who demonstrate a ‘‘reasonable
possibility’’ of persecution or torture,
can apply for asylum during any
subsequent removal proceedings. See 8
CFR 1208.33(b)(4). However, the
provisions of this rule governing the
presumption of asylum ineligibility will
still apply, and an IJ will apply the
relevant provisions de novo during
removal proceedings. See generally 8
CFR 1208.33.
The Departments do not believe that
it is unfair for IJs to consider the
presumption of asylum ineligibility de
novo where the AO already determined
that the presumption did not apply or
was rebutted. The IJ’s determination
would be based on all available
evidence after the noncitizen is given
the opportunity to present and examine
such evidence. See INA 240(b)(4)(B), 8
U.S.C. 1229a(b)(4)(B) (explaining a
noncitizen’s evidentiary rights in
section 240 removal proceedings). The
Departments thus decline to deviate
from existing practice in section 240
removal proceedings requiring IJs to
determine asylum eligibility de novo
once a matter is referred to EOIR after
a positive credible fear determination.
See, e.g., 8 CFR 1208.13(a) (‘‘The fact
that the applicant previously
established a credible fear of
persecution for purposes of section
235(b)(1)(B) of the Act does not relieve
the alien of the additional burden of
establishing eligibility for asylum.’’).
Comment: Commenters provided
generally positive feedback on the
inclusion of a family unity provision but
raised concerns about the operation of
the provision itself. Commenters were
concerned that the family unity
provision was insufficient because it
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would not apply to asylum applicants
traveling without their families,
including cases where family members
are unable to travel together due to
immediate danger, among other factors.
Commenters stated that individual
asylum applicants would be subject to
the asylum ineligibility presumption
and, as a result, would be unable to
petition for eligible derivatives outside
the United States if they are only able
to receive statutory withholding of
removal or CAT protection, providing
anecdotal examples. In turn,
commenters stated, this would result in
family separation with spouses and
children left in dangerous situations in
their home country, unable to join their
family members in the United States.
Therefore, commenters suggested that
the family unity provision should be
expanded to individual asylum
applicants who meet the provision’s
requirements if they have eligible
derivatives abroad. Commenters also
proposed that the rule include
‘‘families’’ as a general exception to
application of the rebuttable
presumption of ineligibility for asylum.
Commenters explained that, for the
provision as currently drafted to apply,
the noncitizen would have to first
qualify for statutory withholding of
removal or CAT withholding, which
have higher standards of proof than
asylum. Commenters stated that this
would result in families with legitimate
asylum claims being denied relief
because they may be unable to meet the
higher standards required for statutory
withholding of removal or CAT
withholding. Additionally, commenters
claimed that this provision would create
an inefficient and costly process, where
noncitizens would be required to gather
and present a significant amount of
evidence on statutory withholding of
removal and CAT withholding to meet
their higher standards and IJs would
have to adjudicate those forms of relief
or protection separately before applying
the exception, rather than potentially
granting asylum in the first instance.
Commenters noted that in removal
proceedings, the family unity exception
requires a determination that the
noncitizen is eligible for withholding of
removal or CAT withholding and that
they would be granted asylum but for
the presumption. Commenters also
raised concerns that many applicants
will face harm while those issues are
adjudicated. Commenters raised further
concerns that the family unity provision
would only apply where no members of
a family qualify for withholding of
removal or CAT withholding, thus
resulting in removal orders for entire
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families who qualified for those forms of
protection. Lastly, commenters
expressed concern that the provision
does not address family unity concerns
where family members traveling
together may not qualify as derivatives
due to their relationship status.
Commenters explained that this would
result in the rebuttable presumption of
asylum ineligibility applying and,
assuming certain non-derivative family
members cannot meet the standards for
statutory withholding of removal or
CAT withholding, de facto separation.
Commenters also expressed confusion
about whether the family unity
provision could work retroactively to
grant asylum to individuals with
statutory withholding of removal if their
spouse or child subsequently journeyed
to the United States and underwent
adjudication. Further, commenters
stated that the proposed rule leaves
outstanding questions about what
independent relief would disqualify
families from availing themselves of the
family unity provision.
One commenter claimed that the
family unity provision would
incentivize the smuggling of children
and suggested eliminating it entirely.
Separately, some commenters claimed
that the provision would increase the
incentives for family migration.
Response: The Departments fully
agree with commenters that keeping
families unified and avoiding family
separation is an important goal. See,
e.g., E.O. 14011, Establishment of
Interagency Task Force on the
Reunification of Families, 86 FR 8273
(Feb. 5, 2021). This rule has been
designed to eliminate the possibility
that the rule’s presumption will result
in the separation of families.
With respect to family units traveling
together, if any noncitizen in that family
unit traveling together meets an
exception to or is able to rebut the
asylum ineligibility presumption, the
presumption will not apply to anybody
in the family traveling together. 8 CFR
208.33(a)(2)(ii), 208.33(a)(3)(i); see also
88 FR at 11749. Additionally, even
where no family members that are
traveling together meet an exception or
are able to rebut the presumption, the
rule includes a family unity provision
that sets forth a unity-based
‘‘exceptionally compelling
circumstance’’ to rebut the asylum
ineligibility presumption for certain
noncitizens in order to avoid separating
asylum applicants from potential
derivative beneficiaries. 8 CFR
1208.33(c). More specifically, under this
family unity provision, where a
principal asylum applicant is subject to
the presumption but is eligible for
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statutory withholding of removal or
CAT withholding,297 and would be
granted asylum but for the presumption,
and where an accompanying spouse or
child does not independently qualify for
asylum or other protection from
removal, the presumption shall be
deemed rebutted as an exceptionally
compelling circumstance. See 8 CFR
1208.33(c). Such principal applicants
and their accompanying derivatives can
then proceed with their asylum claims
consistent with general asylum
procedures. See INA 208(b)(3), 8 U.S.C.
1158(b)(3).
Additionally, in light of commenters’
concerns, the Departments have
expanded this provision to also cover
principal applicants who have a spouse
or children who would be eligible to
follow to join that applicant as
described in section 208(b)(3)(A) of the
INA, 8 U.S.C. 1158(b)(3)(A). 8 CFR
1208.33(c). As commenters noted,
excluding asylum applicants who travel
without their families may inadvertently
incentivize families to engage in
irregular migration together so as not to
risk that the principal applicant would
be prevented from later applying for
their family members to join them. This
may involve making a dangerous
journey with vulnerable family
members, such as children. The
expansion to the provision would apply
only to migrants who are subject to the
presumption, who are ultimately found
eligible for statutory withholding of
removal or CAT withholding, and who
have spouses or children who would be
eligible to follow to join them in the
United States.
However, the Departments decline to
modify the rule to categorically exempt
families from the rebuttable
presumption of asylum eligibility. Given
the existing and expanded protections
in the rule, such a change is not
necessary to ensure family unity. And
the Departments have determined that
making such a change would
297 The family unity provision at 8 CFR
1208.33(c) is not triggered by eligibility for deferral
of removal under the CAT because a noncitizen
only eligible for that form of CAT must be subject
to a bar to CAT withholding, which would also bar
the noncitizen from asylum. See 8 CFR 1208.17(a)
(providing that someone who is eligible for CAT
withholding but who is subject to the mandatory
bars to statutory withholding of removal at 8 CFR
1208.16(d)(2) and (3) shall be granted CAT deferral);
8 CFR 1208.16(d)(2) (providing that an application
for CAT withholding will be denied if the
noncitizen is subject to a bar to statutory
withholding of removal under section 241(b)(3)(B)
of the INA, 8 U.S.C. 1231(b)(3)(B)). Compare INA
241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (providing
mandatory bars to statutory withholding of
removal), with INA 208(b)(2), 8 U.S.C. 1158(b)(2)
(providing mandatory bars to asylum). Thus, such
a noncitizen would never be ineligible for asylum
solely due to the rebuttable presumption.
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significantly diminish the effectiveness
of the rule and incentivize families to
migrate irregularly. See 88 FR at 11708–
09 (describing the significant increase in
families seeking asylum in the United
States). Further, the Departments do not
want to create an incentive for adults to
present at the SWB with children
fraudulently claiming to be a family
unit.298
Overall, the Departments have
designed the family unity provision at 8
CFR 1208.33(c) and the other
protections against family separation to
ensure that the rule does not cause the
separation of families. With regard to
the family unity provision, the
Departments believe that requiring the
lead asylum applicant to first establish
eligibility for protection under the
higher standards of proof for statutory
withholding of removal or CAT
withholding before qualifying for the
family unity provision serves as an
incentive to choose a lawful pathway.
Choosing a lawful pathway would
enable applicants to remain eligible for
asylum, which requires a lower burden
of proof and includes the ability to
include derivatives on their application
or utilize follow-to-join procedures set
forth in section 208(b)(3)(A) of the INA,
8 U.S.C. 1158(b)(3)(A).
To the extent that commenters claim
that some family members who traveled
together may have, but for the
presumption, qualified for asylum but
not statutory withholding of removal,
and therefore would not qualify for the
family unity exception if subject to the
rebuttable presumption of asylum
ineligibility, the Departments reiterate
that the family unity provision in 8 CFR
1208.33(c) is but one protection for
family units included in this rule. For
example, the rule includes options for
families to stay together if any member
of a family traveling together: uses an
available lawful pathway (8 CFR
208.33(a)(2)(ii), 1208.33(a)(2)(ii));
establishes an exception from or rebuts
the presumption of ineligibility (8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and
(3)); or, if they do not pursue a lawful
pathway and are unable to establish an
298 See Tech Transparency Project, Inside the
World of Misinformation Targeting Migrants on
Social Media (July 26, 2022), https://
www.techtransparencyproject.org/articles/insideworld-misinformation-targeting-migrants-socialmedia (‘‘A review of social media groups and pages
identified by migrants showed . . . dubious offers
of coyote or legal services, false claims about
conditions along the route, misinformation about
points of entry at which officials waive the rules,
and baseless rumors about changes to immigration
law.’’); ICE, Press Release, ICE HSI El Paso, USBP
Identify More than 200 ‘Fraudulent Families’ in
Last 6 Months (Oct. 17, 2019), https://www.ice.gov/
news/releases/ice-hsi-el-paso-usbp-identify-more200-fraudulent-families-last-6-months.
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exception from or rebut the
presumption, meets the higher standard
required for statutory withholding of
removal or CAT withholding. Notably,
exceptions from and rebuttals to the
presumption consider circumstances
involving both the noncitizen and
members of the noncitizen’s family with
whom they are traveling, for example,
whether the noncitizen or a member of
the noncitizen’s family faced an acute
medical emergency at the time of entry.
See 8 CFR 1208.33(a)(2) and (3),
208.33(a)(2) and (3). To reiterate, the
rule also includes options for family
members who do not pursue a lawful
pathway and are unable to rebut the
presumption to stay together or reunite
if a principal asylum applicant is
eligible for statutory withholding of
removal or CAT withholding and would
be granted asylum but for the
presumption, if either (1) an
accompanying spouse or child does not
also independently qualify for asylum
or other protection from removal, or (2)
if the principal asylum applicant has a
spouse or child who would be eligible
to follow to join that applicant if granted
asylum. These protections together
ensure that the rule does not lead to the
separation of families. The Departments
strongly encourage noncitizens,
including asylum-seeking families, to
choose lawful pathways.
However, to the extent that some
families may not use a lawful pathway,
and are unable to rebut the
presumption, the Departments believe
that many noncitizens with approvable
asylum claims would present claims for
statutory withholding of removal or
CAT protection on the same set of
underlying facts, although the standards
that apply to asylum, statutory
withholding of removal, and CAT
protection each differ from one another
in some respects. See Regulations
Concerning the Convention Against
Torture, 64 FR 8478, 8485 (Feb. 19,
1999) (‘‘Additionally, use of the Form I–
589 will obviate the need for two
separate forms that, in many cases, will
elicit similar information. In many cases
in which the alien applies both for
asylum and withholding of removal
under the Act and for withholding
under the Convention Against Torture,
the underlying facts supporting these
claims will be the same.’’); Yousif v.
Lynch, 796 F.3d 622, 629 (6th Cir. 2015)
(‘‘An asylum claim and a withholding
claim require consideration of ‘the same
factors’ and proof of the same
underlying facts about an applicant’s
probable persecution.’’).
Separately, the Departments disagree
with commenters that the family unity
provision would encourage family
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migration or child smuggling. The
strong incentives of the lawful pathways
described in the rule, coupled with the
disincentive of the rebuttable
presumption of asylum ineligibility, are
designed to encourage noncitizens,
including families, to pursue lawful
pathways. For example, after
implementation of the Venezuelan
parole process for eligible Venezuelan
nationals and their families, migratory
flows with respect to this group fell
dramatically. See 88 FR at 11712, 11718.
Based on this trend and the
implementation of other initial parole
processes implementations discussed in
the NPRM, the Departments believe that
the rule will reduce irregular family
migration as well as child smuggling as
part of an overall reduction in irregular
migration.
To the extent that commenters raised
concerns that the family unity provision
is inefficient in operation, the
Departments believe that the benefits
from inclusion of the provision
outweigh any potential inefficiencies.
The Departments also note that asylum,
statutory withholding of removal, and
CAT withholding are forms of relief and
protection that generally rely on the
same set of underlying facts. See Yousif,
796 F.3d at 629. Therefore, IJs who
determine that a noncitizen is eligible
for statutory withholding of removal or
CAT withholding will be able to apply
the family unity provision and
efficiently consider whether to exercise
their discretion to grant asylum on the
same facts. Additionally, in response to
commenter concerns about noncitizens
facing harm while the family unity
exception is being adjudicated, the
Departments note that this rule does not
amend existing follow-to-join
procedures.
8. Adequacy of Withholding of Removal
and CAT
Comment: Commenters stated that
statutory withholding of removal and
CAT protection are insufficient
alternative forms of protection for
individuals who would be ineligible for
asylum pursuant to the proposed rule,
asserting that these forms of protection
are more difficult to obtain and provide
fewer benefits than asylum.
For example, commenters stated that
such forms of protection are not
sufficiently available to all those who
require protection. Specifically,
commenters stated that statutory
withholding of removal and CAT
protection require applicants to meet a
higher burden of proof than asylum, as
they would need to demonstrate that it
is ‘‘more likely than not’’ that they
would face persecution or torture.
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Commenters stated that, because of this
higher burden of proof, an applicant
may be otherwise eligible for asylum,
but be removed because they are unable
to meet the burden for statutory
withholding of removal or CAT
protection. As a result, commenters
alleged that an individual may be
returned to a country where they would
face persecution or death.
Commenters also stated that, even if
an applicant were able to meet the
higher burden of proof for statutory
withholding of removal or CAT
protection, the individual would not
then be accorded the same benefits as
asylees. For example, commenters
expressed concern regarding the
prohibition on international travel for
recipients of statutory withholding of
removal and CAT protection.
Commenters noted that, unlike
recipients of asylum, these individuals
do not have access to travel documents
and are unable to travel abroad.
Commenters also noted that recipients
of statutory withholding of removal and
CAT protection remain in a tenuous
position because they are not granted
lawful status, or any path to citizenship,
to remain in the United States
indefinitely. Commenters explained that
recipients of statutory withholding of
removal or CAT protection remain
permanently subject to a removal order
and may have their status terminated at
any time. Commenters stated that the
constant prospect of deportation or
removal creates uncertainty for
recipients of statutory withholding of
removal or CAT protection, which can
lead to community instability in the
United States. Commenters stated that
this uncertainty would prevent such
noncitizens from processing the trauma
that predicated their migration to the
United States.
Similarly, commenters stated that
recipients of statutory withholding of
removal or CAT protection may be
limited from fully participating in U.S.
society. Commenters raised specific
concerns about statutory withholding
and CAT protection recipients’ lack of
access to public benefits, services, and
healthcare. Commenters were also
concerned about such individuals’ need
to apply annually and pay for work
authorization and the impact that this
requirement may have on related
benefits, such as the ability to obtain a
driver’s license.
Commenters also claimed that
granting statutory withholding of
removal or CAT protection instead of
asylum under the proposed rule would
fail to ensure family unity. Commenters
alleged that individuals who are granted
statutory withholding of removal or
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CAT protection would be unable to
reunite with family in the United States
because these forms of relief do not
allow the recipient to petition for
derivative beneficiaries. Due to this,
commenters stated that the proposed
rule would institute another policy of
family separation that permanently
separates noncitizens from their family
members. Commenters also stated that
family members applying for statutory
withholding of removal are not able to
request that their cases be consolidated
and adjudicated together like asylum
applicants can and stated that moving
separately through the legal system
makes them more likely to have uneven
results for different family members,
which may result in some members
being ordered removed while others
remain protected in the United States.
Some commenters stated that they have
experience with clients who have been
permanently separated from family
members, including young children,
because they were granted statutory
withholding of removal or CAT
protection instead of asylum.
Commenters further raised concerns
about the effect the proposed rule would
have on availability of bond to those
subject to the presumption of asylum
ineligibility. Commenters asserted that
adjudicators are less likely to grant bond
to those who are eligible only for
statutory withholding of removal or
CAT protection as overly high flight
risks due to the comparatively higher
standards of proof. Commenters also
expressed confusion over whether,
under the proposed rule, individuals
subject to the presumption of
ineligibility will be treated as having
entered without inspection, leaving
them eligible for bond, or as arriving
aliens, leaving them ineligible for bond.
Response: As described in the NPRM,
the purpose of this rule is to discourage
irregular migration by encouraging
migrants, including those who may seek
asylum, to use lawful, safe, and orderly
pathways to the United States. See
generally 88 FR at 11706–07. To do so,
the rule includes a number of
exceptions to the rebuttable
presumption of ineligibility for asylum
for prospective asylum applicants
outside the United States, including
whether they or a member of their
family with whom they traveled (1)
sought asylum or other protection in
third countries through which they first
transit, to avoid the need to continue an
often-perilous journey to the United
States in pursuit of protection unless
absolutely necessary; (2) obtained
appropriate authorization to travel to
the United States to seek parole
pursuant to a DHS-approved parole
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process; or (3) presented at a POE
pursuant to a pre-scheduled date and
time or presented at the POE without an
appointment but established that it was
not possible to access or use the DHS
scheduling system for a specified
reason. See 8 CFR 208.33(a)(2),
1208.33(a)(2). In other words, this rule
provides numerous ways in which
noncitizens covered by this rule may
pursue asylum. And to the extent that
a noncitizen may not be able to pursue
a lawful pathway due to exceptionally
compelling circumstances, they may be
able to rebut the presumption. See 8
CFR 208.33(a)(3), 1208.33(a)(3).
With respect to noncitizens, or family
members with whom they traveled, who
do not avail themselves of a lawful
pathway or otherwise rebut the
presumption, the Departments recognize
that the standards for eligibility for
statutory withholding of removal and
CAT protection are each higher than
that for asylum, as they require
demonstrating it is more likely than not
that noncitizens will be persecuted or
tortured in another country, whereas
asylum requires a lesser well-founded
fear.299 See 64 FR at 8485. Indeed, that
difference in standards aligns with
several objectives of this rule: to
encourage noncitizens to avail
themselves of the lawful pathways
described above, where possible, as well
as to discourage irregular migration,
promote orderly processing at POEs,
and ensure that protection from removal
is still available for those who satisfy
the applicable standards for mandatory
protection under statutory withholding
of removal or the regulations
implementing CAT. See, e.g., 88 FR at
11729 (‘‘The Departments assess that the
Government can reduce and redirect
such migratory flows by coupling an
incentive for migrants to pursue lawful
pathways with a substantial
disincentive for migrants to cross the
land border unlawfully.’’). The higher
ultimate standards of proof for statutory
withholding of removal and CAT
protection therefore serve as a
disincentive for noncitizens to forgo the
lawful pathways detailed in this rule, as
noncitizens would risk having to satisfy
those comparatively higher standards in
the first instance if the presumption
applied to their case and were
unrebutted.300
299 As a general matter, the Departments note that
this rule does not change any of the long-time
standards relating to statutory withholding of
removal and CAT protection outside of the initial
credible fear screening stage.
300 In response to commenters, the Departments
note that they cannot quantify how many
noncitizens subject to the asylum ineligibility
presumption can qualify for statutory withholding
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Similarly, the Departments recognize
the comparatively fewer benefits of
statutory withholding of removal and
CAT protection as compared to asylum,
including the following: (1) no
permanent right to remain in the United
States; (2) the inability to adjust status
to become a lawful permanent resident
and, relatedly, later naturalize as a U.S.
citizen; (3) the inability to travel abroad;
and (4) the need to affirmatively apply
for, and annually renew, work
authorization documents.301 However,
as explained above, the Departments
promulgated this rule with the intention
to encourage noncitizens to utilize a
lawful pathway rather than a pathway
that may limit them to statutory
withholding of removal or CAT
protection and their more limited
benefits. The Departments also note the
lack of derivative protection for
statutory withholding of removal and
CAT protection recipients.302 Compare
INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A)
(providing for derivative asylum status
for spouses and children), with INA
241(b)(3), 8 U.S.C. 1231(b)(3) (no
derivative status for spouses and
children under statutory withholding of
removal), and 8 CFR 1208.16(c)(2) (no
derivative status for spouses and
children under the CAT).303 The
Departments are cognizant of these
limitations and acknowledge the
importance of family unity. See, e.g.,
E.O. 14011, Establishment of
Interagency Task Force on the
Reunification of Families, 86 FR 8273
(Feb. 5, 2021) (‘‘It is the policy of my
of removal or CAT protection, as those are case-bycase, fact-specific determinations.
301 See, e.g., American Immigration Council, The
Difference Between Asylum and Withholding of
Removal at 2 (Oct. 2020), https://www.american
immigrationcouncil.org/sites/default/files/research/
the_difference_between_asylum_and_withholding_
of_removal.pdf; 8 CFR 274a.12(a) (explaining need
for withholding recipients to affirmatively apply for
work authorization).
302 The Departments note that, although there is
no derivative protection under statutory
withholding of removal or CAT, certain U.S.-based
qualifying parents or legal guardians, including
those granted withholding of removal, may petition
for qualifying children and eligible family members
to be considered for refugee status and possible
resettlement in the United States. See USCIS,
Central American Minors (CAM) Refugee and
Parole Program, https://www.uscis.gov/CAM (last
visited Apr. 5, 2023).
303 The Departments note that applicants will not
be prevented from petitioning for family members
because of this rule. Under the expanded family
unity provision at 8 CFR 1208.33(c), any applicant
who is found eligible for statutory withholding of
removal or CAT withholding and who would be
granted asylum but for the presumption will be
deemed to have rebutted the presumption if they
have a spouse or child who would be eligible to
follow to join them, as described in section
208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), and
may pursue follow-to-join procedures if granted
asylum.
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Administration to respect and value the
integrity of families seeking to enter the
United States.’’). To that end, as
discussed in further detail at Section
IV.E.7.ii in this preamble, this rule
contains numerous measures to avoid
the separation of family members,
including applying any exceptions or
rebuttals to the presumption to the
entire family unit traveling together, as
well as a ‘‘family unity’’ provision
applicable in removal proceedings to
ensure that the rule does not result in
family separations when granting relief
in the United States. See 8 CFR
1208.33(c) (‘‘Family unity and removal
proceedings.’’).
Separately, because this rule does not
impact procedures for bond eligibility or
consideration, commenter concerns
with respect to these issues are outside
of the scope of this rulemaking.
Nevertheless, the Departments note that
bond determinations will continue to be
made on a case-by-case basis in
accordance with the governing statutes
and regulations. Similarly, this
rulemaking does not impact
determinations of whether to
consolidate cases, although the
Departments note that consolidation of
cases is not limited to those who are
pursuing or are eligible for asylum, and
that such determinations are made at
the IJ’s discretion. See ICPM, Chapter
4.21(a) and (b) (Nov. 14, 2022) (‘‘The
immigration court may consolidate
cases at its discretion or upon motion of
one or both of the parties, where
appropriate. For example, the
immigration court may grant
consolidation when spouses or siblings
have separate but overlapping
circumstances or claims for relief.’’).
9. Removal of Provisions Implementing
the TCT Bar Final Rule
i. Support for Removal of Provisions
Implementing the TCT Bar Final Rule
Comment: The Departments received
several comments expressing opposition
to the TCT Bar Final Rule and
supporting removal of regulatory
provisions implementing that rule.
Some commenters expressed opposition
to the TCT Bar Final Rule without
explanation, while others asserted that
the TCT Bar Final Rule conflicts with
the INA and that the Departments
lacked authority to promulgate the TCT
Bar Final Rule. Commenters also
objected to the TCT Bar as inconsistent
with fundamental protections of refugee
law, including the right to seek asylum,
the principle of non-refoulement, and
the prohibition against penalties for
irregular entry. Commenters supporting
the removal of provisions implementing
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that rule also faulted the Departments
for not including proposed regulatory
text removing the TCT Bar from the
CFR. Many commenters who urged the
Departments to withdraw the proposed
rule did so while requesting that the
Departments rescind the TCT Bar Final
Rule.
Commenters suggested that the TCT
Bar Final Rule is inconsistent with the
INA because it conflicts with the safethird-country exception to applying for
asylum under section 208(a)(2)(A) of the
INA, 8 U.S.C. 1158(a)(2)(A), and noted
that courts have enjoined the rule,
finding it inconsistent with the INA.
Commenters further noted that the court
in East Bay Sanctuary Covenant v. Barr,
385 F. Supp. 3d 922, 945 (N.D. Cal.
2019), concluded that ‘‘Congress
requires reasonable assurances that any
so-called ‘safe’ third country is actually
safe, in line with the long-held
understanding that categorical bars on
asylum must be limited to people who
have somewhere else to turn.’’
Commenters also objected to the TCT
Bar as inconsistent with fundamental
protections of refugee law, including the
right to seek asylum, the principle of
non-refoulement, and the prohibition
against penalties for irregular entry.
Commenters agreed with removal of
provisions implementing that rule and
expressed concern that the TCT Bar
Final Rule imposes a sweeping,
categorical ban on asylum. Commenters
further raised concerns that, while in
effect, the TCT Bar disproportionately
impacted people of color and Black and
brown migrants. At least one commenter
claimed that the TCT Bar Final Rule
discourages noncitizens from reporting
crimes. Many commenters expressed
concern over the TCT Bar Final Rule’s
effect on children, both accompanied
and unaccompanied, and some
commenters stated that the TCT Bar
Final Rule does not adequately explain
why the Departments omitted an
exemption for UCs.
Response: The Departments
acknowledge these commenters’
support. Although the Departments did
not include proposed regulatory text in
the NPRM, the Departments have
included amendatory text in this final
rule, which will result in the TCT Bar’s
removal from 8 CFR 208 and 1208.
Since the TCT Bar Final Rule was
promulgated and then enjoined, the
Departments have reconsidered its
approach and have determined that they
prefer the tailored approach of the
rebuttable presumption enacted by this
rule to the categorical bar that the TCT
Bar IFR and Final Rule adopted. Even if
the rebuttable presumption had not
been adopted, the Departments would
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seek to remove provisions implementing
the TCT Bar Final Rule as the
Departments no longer agree with the
approach taken in that rule.
Additionally, in order to use the TCT
Bar Final Rule, the Departments would
have to continue litigating various
appeals defending the policy, which the
Departments now disagree with. Thus,
the Departments consider the removal of
provisions implementing that rule to be
severable from the provisions of 8 CFR
208.13(f), 208.33, 1208.13(f), and
1208.33.
As discussed in Section IV.D.2 of this
preamble, the TCT Bar IFR and Final
Rule were enacted to address
circumstances along the SWB. In the
TCT Bar IFR, the Departments stated
that increases in the number of
noncitizens encountered along or near
the SWB corresponds with an increase
in the number of noncitizens claiming
fear of persecution or torture, and that
the processing of credible fear and
asylum applications in turn ‘‘consumes
an inordinate amount of the limited
resources of the Departments.’’ 84 FR at
33831. The Departments also stated that
the increase in credible fear claims has
been complicated by a demographic
shift in the noncitizen population
crossing the southwest border from
Mexican single adult males to
predominantly Central American family
units and UCs. See id. at 33838. The
Departments explained that while
Mexican single adults who are not
eligible to remain in the United States
can be immediately repatriated to
Mexico, often without requiring
detention or lengthy court proceedings,
it is more difficult to expeditiously
repatriate family units and UCs who are
not from Mexico or Canada. See id. The
Departments also explained that, over
the past decade, the overall percentage
of noncitizens subject to expedited
removal who, as part of the initial
screening process, were referred for a
credible fear interview on claims of a
fear of return has jumped from
approximately 5 percent to more than
40 percent, and that the number of cases
referred to DOJ for proceedings before
an IJ also rose sharply, more than
tripling between 2013 and 2018. See id.
at 33831. In the TCT Bar IFR, the
Departments further stated that the
growing number of noncitizens seeking
protection in the United States and
changing demographics created an
untenable strain on agency resources.
See id. at 33838–39. The TCT Bar IFR
stated that in FY 2018, USCIS received
99,035 credible fear claims, a 175
percent increase from five years earlier
and an 1,883 percent increase from ten
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years earlier. See id. at 33838. In an
attempt to address these increases in
fear claims, the TCT Bar IFR reduced
the availability of asylum to nonMexicans entering or attempting to enter
at the SWB by requiring most asylum
seekers who transited through a third
country to first seek protection in that
transit country, subject to limited
exceptions, and without recognizing
other avenues for allowing migrants to
access the U.S. asylum system.
In response to the TCT Bar IFR, the
Departments received 1,847 comments.
The commenters who expressed support
for that rule indicated that it was an
appropriate tool for processing
noncitizens arriving at the SWB and
would help close ‘‘loopholes’’ they
asserted exist in the asylum process. See
TCT Bar Final Rule, 85 FR at 82262.
Those who expressed opposition to that
rule raised concerns that the rule (1)
was in conflict with the INA and U.S.
obligations under international law; (2)
imposed a sweeping and categorical ban
on asylum; and (3) effectively denied
asylum seekers the right to be
meaningfully heard with respect to their
asylum claims. See id. at 82263, 82270,
82275.
The Departments subsequently issued
the TCT Bar Final Rule to address the
comments received on the TCT Bar IFR.
See id. at 82260. In the TCT Bar Final
Rule, the Departments affirmed that
they promulgated the IFR based on
several policy objectives, including the
following: (1) directing prompt relief to
noncitizens who are unable to obtain
protection from persecution elsewhere
and noncitizens who are victims of a
severe form of trafficking in persons; (2)
the need to reduce the incentive for
noncitizens with ‘‘meritless or nonurgent asylum claims’’ to seek entry to
the United States; (3) relieving stress on
immigration enforcement and
adjudicatory authorities; (4) curtailing
human smuggling; (5) strengthening the
negotiating power of the United States
regarding migration issues, including
the flow of noncitizens into the United
States; and (6) addressing humanitarian
and security concerns along the SWB.
See id. at 82285.
As also discussed in Section IV.D.2 of
this preamble, a Federal district court
vacated the TCT Bar IFR on June 30,
2020, in Capital Area Immigrants’
Rights Coal. v. Trump, 471 F. Supp. 3d
25 (D.D.C. 2020). Additionally, in
parallel litigation, on July 6, 2020, the
Ninth Circuit Court of Appeals upheld
an order enjoining the IFR. See E. Bay
Sanctuary Covenant v. Barr, 964 F.3d
832 (9th Cir. 2020). After the TCT Bar
Final Rule was issued, in February
2021, the U.S. District Court for the
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Northern District of California also
enjoined the Departments from
implementing the TCT Bar Final Rule in
its entirety. See East Bay II, 519 F. Supp.
3d at 668 (‘‘Defendants are hereby
ordered and enjoined . . . from taking
any action continuing to implement the
Final Rule and ordered to return to the
pre-Final Rule practices for processing
asylum applications.’’). Thus, the TCT
Bar Final Rule is not in effect. As
discussed in Section IV.D.2 of this
preamble, the injunction rested on a
finding that the final rule is inconsistent
with both the safe-third-country and
firm-resettlement provisions of section
208 of the INA. See id. at 667–68; INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A); INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi). The court also stated
that the TCT Bar Final Rule exacerbated
the risk that asylum seekers and
migrants would suffer violence and
deprived asylum seekers of procedural
safeguards meant to protect them from
arbitrary denials of their asylum claims.
See East Bay II, 519 F. Supp. 3d at 664.
The Departments have removed
regulatory text implementing the TCT
Bar Final Rule from the CFR because the
Departments no longer support the TCT
Bar Final Rule as a means of addressing
capacity and other issues at the SWB.
Throughout the NPRM and this rule, the
Departments have explained that, absent
this rule, the lifting of the Title 42
public health Order is expected to lead
to a surge of migration at the SWB. At
the same time, the Departments
recognize the opportunity afforded to
migrants via the provided lawful
pathways, as well as the unique
vulnerabilities of asylum applicants, the
high stakes involved in the adjudication
of applications for asylum, and the
fundamental importance of ensuring
that noncitizens with a fear of return
have access to the U.S. asylum system,
subject to certain exceptions. See, e.g.,
INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987) (explaining that removing a
noncitizen to their home country ‘‘is all
the more replete with danger when the
[noncitizen] makes a claim that [the
noncitizen] will be subject to death or
persecution if forced to return. . . .’’);
Quintero, 998 F.3d at 632 (‘‘[N]eedless
to say, these cases per se implicate
extremely weighty interests in life and
liberty, as they involve [noncitizens]
seeking protection from persecution,
torture, or even death.’’); 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.’’).
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These concerns are echoed in E.O.
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. See,
e.g., E.O. 14010, 86 FR at 8267 (Feb. 5,
2021) (‘‘Securing our borders does not
require us to ignore the humanity of
those who seek to cross them.’’).
Accordingly, the Departments believe
that when evaluating changes to the
asylum system, as well as processing at
the POEs, the potential adverse impacts
to legitimate asylum seekers should be
carefully considered, as they have been
in this rule. The Departments believe
that this rule is better suited to address
current circumstances than the TCT Bar
Final Rule’s categorical ban on asylum
for nearly anyone who traveled through
a third country without applying for
asylum in that third country.
The Departments recognize that the
TCT Bar was in effect for nine months,
and although multiple factors influence
migration trends over time, the
Departments’ review does not indicate
that the bar had a dramatic effect on the
number of noncitizens seeking to cross
the SWB between POEs.304 Given the
success of the CHNV parole processes,
which paired lawful pathways with
consequences for not pursuing such
pathways, in decreasing encounters, the
Departments believe that the TCT Bar’s
lack of such alternative pathways may
have contributed to its failure to
304 The Departments note that apprehensions
along the SWB did not dramatically decrease while
the TCT Bar IFR was in effect between September
11, 2019, and June 30, 2020. See CBP, Southwest
Border Migration FY 2019, https://www.cbp.gov/
newsroom/stats/sw-border-migration/fy-2019 (last
visited Mar. 22, 2023); CBP, Southwest Land Border
Encounters, https://www.cbp.gov/newsroom/stats/
southwest-land-border-encounters (last visited Mar.
22, 2023). Encounters along the SWB increased
dramatically starting in January 2019 until early
May 2019, when they began to fall significantly.
CBP, Southwest Border Migration FY 2019, https://
www.cbp.gov/newsroom/stats/sw-border-migration/
fy-2019 (last visited Mar. 22, 2023). The TCT Bar
IFR, although issued on July 16, 2019, did not go
into full effect until September 11, 2019, after
encounters had already dropped from a high of
144,116 in May to 52,546 in September. Id.
Encounters continued to trend downward more
slowly from October 2019 to March 2020 when
concerns over COVID–19 led to the suspension of
MPP and the Title 42 public health Order and a
steep decline of encounters to a low in April 2020.
CBP, Southwest Land Border Encounters, https://
www.cbp.gov/newsroom/stats/southwest-landborder-encounters (last visited Mar. 22, 2023).
Thereafter, encounters increased steadily for the
rest of the FY with no noticeable change after the
TCT Bar IFR was enjoined and stopped being
applied on June 30, 2020. Given this data, the
Departments have no reason to believe that the TCT
Bar IFR had any noticeable impact on encounters
along the SWB while it was in effect.
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dramatically decrease encounters
between POEs. This informs the
Departments’ reasoning for adopting the
more tailored approach in this rule—
that is, pairing safe, orderly, and lawful
pathways for entering the United States
with negative consequences for forgoing
those pathways, along with exceptions
and means of rebutting the presumption
against asylum eligibility where certain
circumstances are present. Additionally,
the fact that the TCT Bar has not been
in effect for approximately three years
undermines any assertion of reliance
interests on the bar.
ii. Opposition To Removal of Provisions
Implementing the TCT Bar Final Rule
Comment: Some commenters
expressed general opposition to the
removal of provisions implementing the
TCT Bar Final Rule. Commenters stated
that ‘‘the concepts of limiting eligibility
for asylum based on means of entry and
criteria surrounding that entry are
appropriate methods of controlling
migrant flows at the southwest border’’
and that the TCT Bar achieved this
without including ‘‘myriad of
exceptions to effectively render it
meaningless.’’ Some commenters
maintained the TCT Bar Final Rule was
legally permissible and politically
warranted based on factual conditions at
the SWB. Commenters similarly urged
the Departments to adopt on a
permanent basis an amended version of
the rule that would mirror the TCT Bar
Final Rule’s provisions, stating that this
would better serve the NPRM’s stated
goal of ‘‘distribut[ing] the asylum
burden to countries that are able to
provide protection against persecution
within the Western Hemisphere.’’
Commenters averred that this would
limit asylum eligibility to those with the
greatest need for protection and that the
‘‘maintenance of effective deterrence
policies is essential to stemming the
flow of illegal immigration into the
United States.’’
Response: The Departments note
these commenters’ general opposition to
rescinding the TCT Bar and their
support for enforcing the Nation’s
immigration laws. The Departments
believe that this rule results in the right
incentives to avoid a significant further
surge in irregular migration after the
Title 42 public health Order is lifted,
and that the approach taken in this rule
is substantially more likely to succeed
than the approach taken in the TCT Bar
Final Rule. Specifically, the successful
implementation of the CHNV parole
processes has demonstrated that an
increase in lawful pathways, when
paired with consequences for migrants
who do not avail themselves of such
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pathways, can positively affect migrant
behavior and undermine transnational
criminal organizations, such as
smuggling operations. This rule, which
is fully consistent with domestic and
international legal obligations, provides
the necessary consequences to maintain
this incentive under Title 8 authorities.
In short, the rule aims to disincentivize
irregular migration and instead
incentivize migrants to take safe,
orderly, and lawful pathways to the
United States or to seek protection in a
third country.
As compared to the TCT Bar Final
Rule, this rule has been more carefully
tailored to mitigate the potential for
negative impact of the rule on migrants
to the extent feasible while also
recognizing the reality of unprecedented
migratory flows, the systemic costs that
those flows impose on the immigration
system, and the ways in which
increasingly sophisticated smuggling
networks cruelly exploit the system for
financial gain. The Departments remain
committed to ensuring that those who
apply for asylum or seek protection who
most urgently need protection from
persecution are able to have their claims
adjudicated in a fair, impartial, and
timely manner and believe that this
rule, including the removal of
provisions implementing the TCT Bar
Final Rule, will be a more effective and
efficient means of doing so.
Comment: Commenters averred that
the rule would be too lenient in
comparison to the TCT Bar Final Rule
and would lead to ‘‘open borders.’’ They
claimed that the presumption of asylum
ineligibility is not sufficiently stringent
and therefore would be far less effective
at disincentivizing unlawful migration.
Response: The Departments believe
that the rule strikes the right balance in
terms of incentivizing the use of lawful,
safe, and orderly pathways to enter the
United States while imposing negative
consequences on a failure to do so. As
has been shown with the CHNV parole
processes, pairing such policies together
can lead to meaningful decreases in the
flow of irregular migration to the SWB.
10. Declining to Permanently Adopt the
Proclamation Bar IFR
In addition to the 51,952 comments
on this NPRM, the Departments
received a total of 3,032 comments on
the Proclamation Bar IFR and posted
3,000 of those comments. Of the 32
comments not posted, 30 were
commenters’ duplicates, one was
untimely and did not address
substantive or novel issues not already
covered by other timely comments, and
one was an internal test comment. Most
of the comments came from one of three
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mass-mail campaigns, containing the
same or closely related variations of the
same standard language. While 18
comments supported the IFR
specifically or the prior
Administration’s efforts generally, the
vast majority of the comments opposed
the IFR. Below, the Departments address
these comments in addition to the
comments relating to removal of
provisions implementing the
Proclamation Bar IFR received in
response to the NPRM.
i. Support for Not Permanently
Adopting the Proclamation Bar
Comment: Many commenters
expressed general opposition to the
Proclamation Bar IFR or support for
removing provisions implementing that
rule without providing any reasoning.
Some commenters simply stated that
their comments ‘‘express [their] strong
opposition to the new Interim Final
Rule.’’ Some commenters, in stating
their general opposition to the
Proclamation Bar IFR, also made
unrelated, general criticisms regarding
the prior administration’s immigration
policies. Commenters supporting the
removal of provisions implementing the
Proclamation Bar IFR also faulted the
Departments for not including proposed
regulatory text removing that rule from
the CFR. Many commenters who urged
the Departments to withdraw the
proposed rule did so while requesting
that the Departments rescind the
Proclamation Bar IFR.
Commenters expressed concern that
the Proclamation Bar IFR violates
multiple laws. Specifically, commenters
stated that the Proclamation Bar IFR
violates multiple sections of the Act:
INA 208(a), 8 U.S.C. 1158(a) (eligibility
to apply for asylum); INA 235(b)(1), 8
U.S.C. 1225(b)(1) (inspection of
noncitizens arriving in the United States
and certain other noncitizens who have
not been admitted or paroled); INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C)
(additional limitations on granting
asylum); INA 208(a)(2)(C), 8 U.S.C.
1158(a)(2)(C) (previous asylum
exception to authority to apply for
asylum); INA 208(b)(3)(C), 8 U.S.C.
1158(b)(3)(C) (codifying the TVPRA).
Some commenters asserted that only
Congress may act to amend the law and
that the prior administration
circumvented the legislative process by
issuing the Proclamation Bar IFR.
Commenters also argued that the
Proclamation Bar IFR violates 5 U.S.C.
706(2)(A) in that it was promulgated in
a manner inconsistent with the APA,
and that it violates multiple provisions
of the U.S. Constitution. In particular,
commenters argued that the
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Proclamation Bar IFR violates due
process rights, equal protection, and
separation of powers; exceeds Executive
authority; was promulgated with
discriminatory intent; is similar to
deterrence-focused policies that have
been held unconstitutional; and is
unlawful on the basis that the
appointment of the then-Acting
Attorney General violated the
Appointments Clause. Commenters
contended that the Proclamation Bar
IFR also violates the APA by being
arbitrary and capricious, in that it
conditions asylum on a factor unrelated
to persecution. Numerous commenters
claimed that the Proclamation Bar IFR
violates the APA’s notice-and-comment
requirements and that the good cause
and foreign affairs exceptions do not
apply. One commenter claimed that the
Proclamation Bar IFR would, in fact,
have federalism impacts, contrary to the
Departments’ federalism impact
assessment, and some commenters
disagreed with the Departments’
position that it is not subject to the
Congressional Review Act because its
effect is less than $100 million.
Commenters also expressed concern
that the Proclamation Bar IFR violates
international law, customary
international law, and the Refugee Act.
Commenters noted that the court in
East Bay III held that the Proclamation
Bar directly conflicts with section 208(a)
of the INA, 8 U.S.C. 1158(a), because
‘‘[i]t is effectively a categorical ban on
migrants who use a method of entry
explicitly authorized by Congress.’’
Commenters further noted the Ninth
Circuit’s holding in East Bay III that the
fact ‘‘[t]hat a refugee crosses a land
border instead of a port-of-entry says
little about the ultimate merits of her
asylum application.’’ They further cited
East Bay I as holding that there is ‘‘no
basis to support ‘categorically
disbelieving’ non-citizens, or declaring
them ‘not credible,’ simply because of
their manner of entry’’ when applying
the ‘‘reasonable possibility’’ standard to
those who are determined ineligible for
asylum.
Commenters voiced numerous policy
concerns about the Proclamation Bar
IFR. Specifically, commenters criticized
the Proclamation Bar IFR as they believe
that it relies on insufficient data or
improperly interpreted data; exacerbates
trauma by forcing migrants to remain
indefinitely outside of the U.S. border in
inhumane conditions; punishes those
who lack the means to access designated
POEs and the luxury to choose how and
when they enter the United States;
potentially increases risk of harm to
children by narrowing safe options;
forecloses legitimate asylum claims by
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imposing an initial higher standard of
proof on individuals who enter between
POEs; fails to address the root causes of
migration, for which some commenters
believe the United States is at least in
part responsible; violates religious and
moral obligations; and is a ‘‘shameful
abdication of the United States’
obligation to serve as a haven for those
individuals who meet the
internationally agreed upon definition
of a refugee.’’ Further, commenters
stated that, contrary to its purpose, the
Proclamation Bar IFR would not
encourage admission at POEs due to
safety and procedural concerns at the
SWB and would impede state and local
services and non-governmental
organizations by undermining policies
and programs, imposing substantial
additional costs, and discouraging
engagement. Commenters also voiced
concern that the Proclamation Bar IFR
would harm U.S. diplomatic efforts and
undermine the United States’
international credibility by inflaming
tensions and hindering diplomatic
relations with Mexico and other nations,
as well as encouraging other nations to
abandon their humanitarian protection
practices. Commenters expressed their
belief that the Proclamation Bar IFR is
cruel, unnecessary, and overly harsh
and was issued ‘‘under the guise of
streamlining the asylum process’’ but
was actually intended to intimidate
asylum seekers from entering the United
States ‘‘out of fear that their presence in
the United States guarantees
inadmissibility.’’ Additionally,
commenters indicated that statutory
withholding of removal and CAT
protection are insufficient forms of
relief.
Response: The Departments
appreciate the commenters’ submissions
and agree that removal of provisions
implementing the Proclamation Bar IFR
is sound policy and accords with this
Administration’s priorities. Although
the Departments did not include
proposed regulatory text in the NPRM,
the Departments have included
amendatory text in this final rule, which
will result in the Proclamation Bar’s
removal from 8 CFR 208 and 1208.
Since the Proclamation Bar IFR was
promulgated, the Departments have
reconsidered their approach and have
determined that they prefer the tailored
approach of the rebuttable presumption
enacted by this rule to the categorical
bar that the Proclamation Bar IFR
adopted. Even if the rebuttable
presumption were not paired with the
decision not to adopt the Proclamation
Bar permanently, the Departments
would decline to permanently adopt the
Proclamation Bar IFR and would
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remove the bar’s language from the
regulatory text as the Departments no
longer view it as their preferred policy
choice and are not inclined to continue
defending the Proclamation Bar IFR in
court in order to be able to implement
it at some indeterminate point in the
future. Thus, the Departments consider
the decision not to adopt the
Proclamation Bar on a permanent basis
and to remove the bar’s language from
the CFR to be severable from the
provisions of 8 CFR 208.13(f), 208.33,
1208.13(f), and 1208.33.
The Proclamation Bar IFR was
promulgated to address circumstances
along the SWB. In the Proclamation Bar
IFR, the Departments stated that ‘‘[i]n
recent weeks, United States officials
have each day encountered an average
of approximately 2,000 inadmissible
aliens at the southern border.’’ 83 FR at
55935. They further noted ‘‘large
caravans’’ of noncitizens, primarily from
Central America, attempting to make
their way to the United States, ‘‘with the
apparent intent of seeking asylum after
entering the United States unlawfully or
without proper documentation.’’ Id. The
Departments noted that nationals of
Central American countries were more
likely to enter between POEs rather than
present at a POE. Id. The Departments
enacted the Proclamation Bar IFR to
‘‘channel inadmissible aliens to ports of
entry, where such aliens could seek to
enter and would be processed in an
orderly and controlled manner.’’ Id. The
Departments also stated that the
Proclamation Bar IFR would ‘‘facilitate
the likelihood of success in future
negotiations’’ with Mexico. Id. at 55951.
Rather than barring entry on its own,
the Proclamation Bar IFR only barred
entry between POEs when a presidential
proclamation or other presidential order
under section 212(f) or 215(a)(1) of the
INA, 8 U.S.C. 1182(f) or 1185(a)(1),
suspended entry along the SWB. 83 FR
at 55952–53. Any exceptions to the
operation of the bar would be set out in
the presidential proclamation or order
and were not within the Departments’
control. Id. at 5934 (‘‘It would not apply
to a proclamation that specifically
includes an exception for aliens
applying for asylum, nor would it apply
to aliens subject to a waiver or
exception provided by the
proclamation.’’).
The Proclamation Bar IFR was
preliminarily enjoined soon after it
became effective and was eventually
vacated. See generally O.A. v. Trump,
404 F. Supp. 3d 109 (D.D.C. 2019)
(recounting the history of the litigation
over the Proclamation Bar IFR and
vacating it). The Departments appealed
the vacatur, and that case has been
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stayed since February 24, 2021, to allow
for rulemaking by the agencies. O.A. v.
Biden, No. 19–5272 (DC Cir. filed Oct.
11, 2019).
As stated in the NPRM, the
Departments have reconsidered the
Proclamation Bar IFR and decline to
adopt it permanently. See 88 FR at
11728. As an initial matter, the
Proclamation Bar IFR conflicts with the
tailored approach taken in this rule
because, in combination with the
proclamation the President issued, the
Proclamation Bar IFR barred from
asylum all individuals who entered the
United States along the SWB unless
they presented themselves at a POE. See
83 FR at 55935 (‘‘The interim rule, if
applied to a proclamation suspending
the entry of aliens who cross the
southern border unlawfully, would bar
such aliens from eligibility for asylum
and thereby channel inadmissible aliens
to ports of entry, where such aliens
could seek to enter and would be
processed in an orderly and controlled
manner.’’). The Departments do not
believe barring all noncitizens who
enter between POEs along the SWB is
the proper approach in the current
circumstances and have instead decided
to pair safe, orderly, and lawful
pathways for entry into the United
States with negative consequences for
not taking those pathways, with
exceptions and means of rebutting the
presumption against asylum eligibility.
Even if the rule’s rebuttable
presumption were not finalized and
given effect, the Departments would
nevertheless remove provisions
implementing the Proclamation Bar IFR.
The bar’s categorical nature did not
allow for case-by-case judgments to
determine whether it should apply,
which the Departments consider
important to ensure that such bars are
applied fairly. The Departments believe
that this consideration further supports
removing the regulatory language
implementing the Proclamation Bar IFR.
Finally, U.S. negotiations with Mexico
have changed, and the Departments no
longer believe that the Proclamation Bar
IFR is necessary for those negotiations.
ii. Opposition to Not Adopting the
Proclamation Bar IFR Permanently
Comment: Some commenters
expressed general support for the
Proclamation Bar IFR. Commenters
stated that the prior Administration had
not done enough to deter irregular
migration, resulting in the undermining
of compliance with U.S. laws, the rule
of law, and national security and safety.
Response: The Departments
acknowledge commenters’ concerns
regarding national security and safety
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and note the commenters’ support for
the Proclamation bar IFR. Nevertheless,
the Departments, after due
consideration, believe this rule to be
more appropriate as a matter of policy
and law. This rule serves to encourage
the safe and orderly processing of
migrants at the SWB and is consistent
with the United States’ legal obligations
under the INA, international treaties,
and all relevant legal sources. Because
these particular comments failed to
articulate specific reasoning underlying
expressions of general support for the
Proclamation Bar IFR, the Departments
are unable to provide a more detailed
response.
F. Statutory and Regulatory
Requirements
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1. Administrative Procedure Act
i. Length of Comment Period
Comment: Commenters raised
concerns that this rule violated the
APA’s requirements, as set forth in 5
U.S.C. 553(b) through (d). Commentors
stated that the 30-day comment period
was not sufficient, arguing that the
Departments should extend the
comment period to at least 60 days or
should reissue the rule with a new 60day comment period. Numerous
commenters requested additional time
to comment, citing the complex nature
of the NPRM, its length, and the impact
of the rule on asylum-seekers and
commenters. Other commenters, such as
legal services organizations, noted that
they have a busy workload and that 30
days was not a sufficient period to
prepare the fulsome comment they
would have prepared had the comment
period provided more time. For
example, a legal services organization
indicated that it would have provided
additional information about asylum
seekers the organization has assisted in
the past and data about the population
the organization serves but that it did
not have time to do so. Other
organizations stated they also would
have included information on issues
such as their clients’ experiences with
the CBP One app and experiences in
third countries en route to the United
States and would have consulted with
experts. Another organization stated
that it had to choose between providing
comments on the rule and helping
migrants prepare for the rule’s
implementation, and another
organization stated that it was unable to
provide fulsome comments because the
comment period coincided with the
implementation of the CBP One app as
a means by which its clients could seek
exceptions to the Title 42 public health
Order. Commenters argued that the
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Departments selected a 30-day comment
period to reduce the volume of negative
comments that will be filed in order to
justify disregarding national sentiment
against the rule.
Commenters asserted that the 30-day
comment period is ‘‘risking that public
comments will not be seriously
considered before the rule is
implemented,’’ and additional time is
needed to meet APA requirements that
agencies provide the public with a
‘‘meaningful opportunity’’ to comment.
These comments referenced Executive
Orders 12866, Regulatory Planning and
Review, 58 FR 51735 (Sept. 30, 1993)
and 13563, Improving Regulation and
Regulatory Review, 76 FR 3821 (Jan. 18,
2011), which recommend a comment
period of not less than 60 days ‘‘in most
cases,’’ and case law, such as
Prometheus Radio Project v. FCC, 652
F.3d 431 (3d. Cir. 2011), and Centro
Legal de la Raza v. EOIR, 524 F. Supp.
3d 919 (N.D. Cal. 2021).
Commenters disagreed with the
Departments’ reliance on the impending
termination of the Title 42 public health
Order in May 2023 and the expected
potential surge in migration that would
result as justification for the 30-day
comment period. These commenters
emphasized that the Administration
itself sought to formally end the Title 42
public health Order nearly a year ago
and stated that the Departments have
had sufficient time to prepare for the
policy’s end. For example, commenters
cited to the December 13, 2022,
statement issued by Secretary Mayorkas
regarding the planning for the end of the
Title 42 public health Order.305
Some commenters requested
extension of the comment period due to
reported technical difficulties with
submitting comments and stated that
technical problems had effectively
shortened the comment period to less
than 30 days or reduced the public’s
ability to fully participate in the
rulemaking process. For example, one
commenter stated that they had learned
that there was a technical outage or
other error in the application
programming interface (‘‘API’’)
technology used to allow third-party
organizations to submit comments
through regulations.gov. This
commenter expressed a belief that an
unknown number of comments had
been ‘‘discarded’’ without the
commenters’ knowledge. Another
305 DHS, Statement by Secretary Mayorkas on
Planning for End of Title 42 (Dec. 13, 2022), https://
www.dhs.gov/news/2022/12/13/statementsecretary-mayorkas-planning-end-title-42#:∼:text=
%E2%80%9CNonetheless%2C%20we%20know
%20that%20smugglers,United%20States%20will
%20be%20removed.
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commenter referenced an individual
who had technical errors when trying to
submit a comment online.306 This
commenter also noted that there was an
alert banner on regulations.gov at 9:30
a.m. eastern time on March 27, 2023,
that stated ‘‘Regulations.gov is
experiencing delays in website loading.
We apologize for the inconvenience.
While we are working on a fix, please
try to refresh when you encounter slow
responses or error messages.’’ Overall,
these commenters referenced possible
technical errors with the submission of
comments from as early as March 20,
2023, through the close of the comment
period on March 27, 2023.
Finally, commenters further stated
that the comment period for the USCIS
fee schedule NPRM 307 (from January 4,
2023, through March 13, 2023)
overlapped with the comment period for
the NPRM in this rulemaking, which
caused challenges for commenting on
this rule in the 30-day comment period.
In addition, commenters stated that the
30-day comment period did not provide
commenters who do not regularly work
in immigration law with sufficient time
to fully analyze the effects of the rule,
and that the Departments should extend
the 30-day comment period to provide
sufficient time for respectful observance
of Ramadan, which began during the
comment period.308
Response: The Departments believe
the comment period was sufficient to
allow for meaningful public input, as
evidenced by the almost 52,000 public
comments received, including
numerous detailed comments from
interested organizations.
The comment period spanned 33
days, from February 23, 2023, through
March 27, 2023. The January 5, 2023,
announcement of the impending
306 This commenter also referenced a second
individual who was able to eventually submit a
timely comment but who posted a photo on twitter
that the commenter described as a screenshot of an
error screen from regulations.gov. https://
twitter.com/argrenier/status/
1639989637413490689/photo/1. The Departments
note that this photo is actually a screenshot from
a different website (federalregister.gov) and not
regulations.gov, which is the website the
instructions in the NPRM told the public to use to
submit a comment. Id.
307 See U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements, 88 FR
402 (Jan. 4, 2023); U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain
Other Immigration Benefit Request Requirements;
Extension of Comment Period, 88 FR 11825 (Feb.
24, 2023) (extending the comment period until
March 13, 2023).
308 This commenter also stated the Departments
should extend the comment period due to the
holidays of Passover and Easter, but both Passover
(April 5 through April 13, 2023) and Easter (April
9, 2023 or later) do not occur in whole or in part
during the rule’s comment period.
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issuance of the proposed rule 309 also
provided an opportunity for public
discussion of the general contours of the
policy.310 In addition, commenters
could begin to familiarize themselves
with the rule before the rule was
published during the period before the
comment period opened when the rule
was on public inspection.
The APA does not require a specific
comment period length, see 5 U.S.C.
553(b), (c), and although Executive
Orders 12866 and 13563 recommend a
comment period of at least 60 days, a
60-day period is not required. Much of
the litigation on this issue has focused
on the reasonableness of comment
periods shorter than 30 days, often in
the face of exigent circumstances. See,
e.g., N. Carolina Growers’ Ass’n, Inc. v.
United Farm Workers, 702 F.3d 755, 770
(4th Cir. 2012) (analyzing the
sufficiency of a 10-day comment
period); Omnipoint Corp. v. FCC, 78
F.3d 620, 629–30 (D.C. Cir. 1996)
(concluding 15 days for comments was
sufficient); NW. Airlines, Inc. v.
Goldschmidt, 645 F.2d 1309, 1321 (8th
Cir. 1981) (finding 7-day comment
period sufficient).
The Departments are not aware of any
case law holding that a 30-day comment
period is categorically insufficient.
Indeed, some courts have found 30 days
to be a reasonable comment period
length. For example, the D.C. Circuit has
stated that, although a 30-day period is
often the ‘‘shortest’’ period that will
satisfy the APA, such a period is
generally ‘‘sufficient for interested
persons to meaningfully review a
proposed rule and provide informed
comment,’’ even when ‘‘substantial rule
changes are proposed.’’ Nat’l Lifeline
Ass’n v. FCC, 921 F.3d 1102, 1117 (D.C.
Cir. 2019) (citing Petry v. Block, 737
F.2d 1193, 1201 (D.C. Cir. 1984)). The
Departments recognize, however, that
some courts have held that a 30-day
comment period was likely insufficient
in certain circumstances. See, e.g.,
Centro Legal de la Raza v. EOIR, 524 F.
Supp. 3d 919, 955 (N.D. Cal. 2021)
(holding that DOJ’s 30-day notice-andcomment period was likely insufficient
for a rule that implemented extensive
309 DHS, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement
Measures and Additional Safe and Orderly
Processes (Jan. 5, 2023), https://www.dhs.gov/news/
2023/01/05/dhs-continues-prepare-end-title-42announces-new-border-enforcement-measures-and.
310 See, e.g., Al Jazeera, US Rights Groups Slam
Bidens ‘Unacceptable’ Asylum Restrictions, Jan. 6,
2023, https://www.aljazeera.com/news/2023/1/6/
us-rights-groups-slam-bidens-unacceptable-asylumrestrictions; UN, New US Border Measures ‘Not in
Line with International Standards’, Warns UNHCR,
Jan. 6, 2023, https://news.un.org/en/story/2023/01/
1132247.
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changes to the immigration court system
and noting, inter alia, the arguments by
commenters that they could not fully
respond during the comment period, the
effect of the COVID–19 pandemic, and
allegations of ‘‘staggered rulemaking’’);
Pangea Legal Servs. v. DHS, 501 F.
Supp. 3d 792, 818–22 (N.D. Cal. 2020)
(holding that the plaintiffs had at a
minimum shown ‘‘serious questions
going to the merits’’ of whether the 30day comment period for a different
asylum-related rulemaking was
insufficient and noting, inter alia, the
‘‘magnitude’’ of the rule, that the
comment period ‘‘spanned the year-end
holidays,’’ the comment periods of other
rules by DHS, the number of comments
received, and allegations of ‘‘staggered
rulemaking’’).
Here, even assuming these cases were
correctly decided, the Departments have
concluded that the concerns raised in
those circumstances are not borne out.
First, the significant number of detailed
and thorough public comments is
evidence that the comment period here
was sufficient for the public to
meaningfully review and provide
informed comment. See, e.g., Little
Sisters of the Poor Saints Peter & Paul
Home v. Penn., 140 S. Ct. 2367, 2385
(2020) (‘‘The object [of notice and
comment], in short, is one of fair
notice.’’ (citation and quotation marks
omitted)). Second, the 30-day comment
period did not span any Federal
holidays, and while commenters noted
that the Muslim month of Ramadan
began during the comment period, the
Departments find that there is no
evidence that the occurrence of the
month of Ramadan during the comment
period would substantively impact the
ability of Ramadan observants to submit
a timely comment. Third, because the
Departments had not recently published
other related rules on this topic or that
affect the same portions of the CFR that
would affect commenters’ ability to
comment, this rule does not present
staggered rulemaking concerns. The last
asylum-related rulemaking, the Asylum
Processing IFR, was published on March
27, 2022, and was effective on May 31,
2022. 87 FR 18078.311 Accordingly,
commenters did not have to contend
with the interplay of intersecting rules
and related policy changes when
drafting their comments. And though
the Departments recognize that the
USCIS fee rule’s comment period
partially overlapped with this rule’s
311 In addition, the Departments published a final
rule extending the U.S.-Canada STCA on March 28,
2023, but that rule did not have any impact on the
subject of this rule as it applies to the U.S.-Canada
land border. 88 FR 18227.
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comment period, this overlap does not
render this rule’s comment period
unreasonable. The comment period for
that rule—which addresses different
subjects and portions of the CFR than
this rule—opened on January 4, 2023,
50 days before opening of this rule’s
comment period, and ended on March
13, 2023, 14 days prior to the close of
this comment period.
Finally, the Departments also believe
that the 30-day comment period was
preferable to a longer comment period
since this rule involves concerns about
the Departments’ ability to safely,
effectively, and humanely enforce and
administer the asylum system and
immigration laws given the surge of
migrants that is expected to occur upon
the lifting of the Title 42 public health
Order if this rule were not in place. Cf.,
e.g., Haw. Helicopter Operators Ass’n v.
FAA, 51 F.3d 212, 214 (9th Cir. 1995)
(noting that the agency had good cause
to not engage in notice and comment
rulemaking at all because the rule was
needed to protect public safety as
demonstrated by numerous then-recent
helicopter crashes). By proceeding with
a comment period shorter than 60 days,
the Departments were able to receive
comments, review comments, and
prepare a final rule to be promulgated
in time for the May 11, 2023, expiration
of the public health emergency and the
corresponding expiration of the Title 42
public health Order. A 60-day comment
period, on the other hand, would have
run until April 24, 2023, and a final rule
would have been impossible to prepare
in the 17 days from April 24 to May 11,
2023. Having this rule in place for the
expiration of the Title 42 public health
Order will disincentivize the expected
surge of irregular migration and instead
incentivize migrants to take safe,
orderly, and lawful pathways to the
United States or to seek protection in
third countries in the region. The rule
will thus prevent a severe strain on the
immigration system, as well as protect
migrants from the dangerous journey to
the SWB and the human smugglers that
profit on their vulnerability. Contrary to
some commenters’ allegations, the
Departments did not select a 30-day
comment period to limit public
involvement on the rule.
The Departments disagree with
commenters’ statements that the
Departments’ reliance on the end of the
Title 42 public health Order is inapt
because ending Title 42 was a
government choice, and the
Departments should have had time to
prepare without a 30-day comment
period. First, the Departments note that
the Title 42 public health Order is
ending based on factual developments,
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and the Departments do not control
either those factual developments or the
decision to recognize those factual
developments by terminating the public
health Order. Second, litigation and the
resulting injunctions over ending the
Title 42 public health Order have made
it difficult for the Departments to
predict an exact end date. See, e.g.,
Arizona v. Mayorkas, 143 S. Ct. 478
(2022) (granting States’ application for
stay pending certiorari and preventing
the District Court for the District of
Columbia from giving effect to its order
setting aside and vacating the Title 42
public health Order); Louisiana v. CDC,
603 F. Supp. 3d 406 (W.D. La. 2022)
(granting States’ motion for a
preliminary injunction prohibiting
enforcement of the CDC’s order
terminating Title 42). Accordingly, it
was not until the Administration
announced 312 its plan to have the
public health emergency that underpins
the Title 42 public health Order extend
until May 11, 2023, and then expire that
the end of the Title 42 public health
Order changed from speculative to more
concrete. The Departments then
published the NPRM in short order, 24
days after the Administration’s
statement of intent. Finally, as
discussed in the NPRM and elsewhere
in this preamble, the CHNV parole
processes that the Departments
developed in October 2022 (Venezuela)
and January 2023 (Cuba, Haiti, and
Nicaragua) have shown significant
success in reducing encounters and
encouraging noncitizens to seek lawful
pathways to enter the United States.
This rule adopts a similar design as
these programs—coupling the
incentives of lawful pathways with
disincentives for failing to pursue those
pathways—based, in part, on the
successes of those programs in
decreasing irregular migration. Because
those successes were not seen until as
late as January 2023, commenters are
incorrect that the Departments could
have published it long before February
2023. Once the NPRM was published, it
was reasonable to include a 30-day
comment period in light of the
impending end of Title 42 public health
Order.
Finally, the Departments have
investigated commenters’ allegations of
technical errors that led to comments
being ‘‘discarded’’ or not submitted with
the eRulemaking Program at the GSA. A
GSA representative explained the
following:
312 Office of Mgmt. & Budget, Exec. Office of the
President, Statement of Administration Policy (Jan.
30, 2023), https://www.whitehouse.gov/wp-content/
uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf.
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• The API, which allows the
electronic submission of comments to
regulations.gov by third-party software,
was operating normally from March 20,
2023, to March 28, 2023.
• Commenters are incorrect that any
submitted comments were ‘‘discarded’’
as comments that are received are not
discarded.
• While some users reported errors on
the submission of API comments, all
unsuccessful transactions were
successfully resubmitted within a
maximum of 30 minutes.
• In addition, the eRulemaking
Program accommodated one
commenting organization with a
temporary increase to the API posting
rate limit so that the organization could
submit approximately 26,000 comments
by the close of the comment period.
• None of the help desk call logs
reflect a call related to this rule nor a
discussion indicating an unresolved
error when posting comments.
Accordingly, the Departments do not
believe that any technical errors
prevented commenters from submitting
comments within the 30-day comment
period.
Overall, the Departments find that the
time afforded by a 30-day comment
period to prepare a final rule prior to the
expiration of the Title 42 public health
Order, which would not have been
possible with a longer comment period,
outweighs the arguments raised in
support of a longer comment period by
commenters. Commenters have
provided numerous and detailed
comments regarding the NPRM, and the
Departments appreciate their effort to
provide thorough commentary for the
Departments’ consideration during the
preparation of this final rule.
ii. Insufficient Consideration of Public
Comments
Comments: Commenters stated that
the timeline for the rule risks that the
Departments will not seriously consider
public comments before implementing a
final rule and gives the appearance that
the Departments have predetermined
the outcome of the NPRM. Many
commenters stated that the short time
span between the scheduled close of the
comment period (at the end of March
27, 2023) and the anticipated issuance
of the final rule (no later than May 12,
2023) suggested that the Departments
would not meaningfully consider public
comments. Commenters stated that the
Departments should have issued a
proposed rule earlier than February
2023 to give the Departments more time
to carefully consider comments received
and revise policy plans prior to the
issuance of a final rule.
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Response: The Departments have
included an extensive discussion of
comments received as part of this
preamble. The Departments strongly
disagree with the commenters’
assertions that the Departments failed to
meaningfully consider public comments
in issuing this final rule. The
Departments’ receptivity to public
comments is demonstrated by, for
instance:
• The extensive and substantive
discussion of public comments in this
preamble;
• Multiple revisions made by the
Departments to the policy contained in
the NPRM, including clarifications of
policy requested by commenters, a
reorganization of the regulatory text for
clarity, and other policy changes that
are responsive to public comments; and
• The Departments’ choice to seek
public comment in the first instance,
notwithstanding that this rulemaking
involves a foreign affairs function of the
United States and addresses an
emergency situation for which the
Departments would have good cause to
bypass notice and comment.313
iii. Delayed Effective Date
Comments: Commenters stated that
they anticipated that the Departments
would issue the final rule in violation
of the APA’s requirement of a 30-day
delayed effective date for substantive
rules.314 Commenters stated that by
delaying so long in issuing the NPRM,
the Departments had forfeited any
argument for ‘‘good cause’’ to make the
final rule effective immediately.
Commenters noted that there has been
litigation for years over the ongoing
viability of Title 42 public health
Order—itself an inherently temporary
measure—and the April 2022 Title 42
termination Order. Commenters stated
that the Departments could have
conducted a notice-and-comment
rulemaking with a 30-day delayed
effective date had they begun this
rulemaking sooner.
Response: As discussed in Section
V.A. of this preamble, the Departments
are invoking the foreign affairs and good
cause exceptions for bypassing a 30-day
delayed effective date. See 5 U.S.C.
553(a)(1) and (d). The Departments have
determined that immediate
implementation of this rule is necessary
to fortify bilateral relationships and
avoid exacerbating a projected surge in
migration across the region following
the lifting of the Title 42 public health
Order.
313 See 5 U.S.C. 553(a)(1), (b)(B); see also Section
VI.A. of this preamble.
314 See 5 U.S.C. 553(d).
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Case law suggesting that an agency’s
delay can effectively forfeit the agency’s
‘‘good cause’’ relates primarily to the
separate good cause exception
applicable to notice-and-comment
rulemaking requirements under 5 U.S.C.
553(b)(B).315 Such case law has no
bearing on the foreign affairs exemption
under 5 U.S.C. 553(a)(1). In addition, it
is not dispositive as to the good cause
exception at 5 U.S.C. 553(d), which
serves ‘‘different policies’’ and ‘‘can be
invoked for different reasons.’’ 316
Specifically, the 30-day delayedeffective-date requirement ‘‘is intended
to give affected parties time to adjust
their behavior before the final rule takes
effect,’’ 317 but in this context, affected
parties have been subject to the Title 42
public health Order for years, and
cannot reasonably argue that they
require an additional 30 days to adjust
their behavior to the new approach
taken in this rule.
Even if the forfeiture doctrine is
applied in this context, however, the
Departments have pursued this
rulemaking without delay, and in fact
have proceeded as rapidly as possible
under the circumstances. As discussed
at length in the NPRM, this rulemaking
addresses a range of dynamic
circumstances, including major recent
shifts in migration patterns across the
hemisphere, altered incentives at the
SWB created by the application of the
Title 42 public health Order (which has
carried no immigration consequences
and resulted in many migrants trying
repeatedly to enter the United States),
and ongoing litigation regarding the
Title 42 public health Order.318 The
Departments have sought to address
these circumstances in a variety of
ways, including the six-pillar strategy
outlined in the April 2022 DHS Plan for
Southwest Border Security and
Preparedness; the issuance of the
Asylum Processing IFR, 87 FR 18078;
the expansion of lawful pathways
throughout the region and via the CHNV
315 See, e.g., Envt’l. Def. Fund v. EPA, 716 F.2d
915, 921–22 (D.C. Cir. 1983) (holding that because
the agency ‘‘failed to demonstrate that outside time
pressures forced the agency to dispense with APA
notice and comment procedures . . . the agency’s
action . . . [fell] outside the scope of the good cause
exception’’); Nat’l Ass’n of Farmworkers Org. v.
Marshall, 628 F.2d 604, 622 (D.C. Cir. 1980)
(rejecting a good cause argument for bypassing
notice and comment because the time pressure
cited by the agency ‘‘was due in large part to the
[agency’s] own delays’’).
316 Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1485 (9th Cir. 1992) (The ‘‘30-day waiting
period in no way relates to the notice and comment
requirement, but the federal courts have not always
been careful to maintain the distinction’’ (internal
citation and quotation omitted)).
317 Id.
318 See 88 FR at 11708–14.
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processes; and the introduction of the
CBP One app, among other measures.
The Departments’ issuance of the
proposed rule while the litigation over
the Title 42 public health Order was
ongoing, and within weeks of the
Administration’s announcement
regarding the impending termination of
that Order, reflects the high priority that
the Departments have placed on issuing
this rulemaking promptly via a notice
and comment process.
2. Paperwork Reduction Act (‘‘PRA’’)
Comment: A commenter stated that
the Departments had not posted to the
public docket any proposed revisions to
the collection of information under
Office of Management and Budget
(‘‘OMB’’) Control Number 1651–0140,
Collection of Advance Information from
Certain Undocumented Individuals on
the Land Border. The commenter stated
that such revision appeared particularly
important given the NPRM’s proposed
codification of the required use of the
CBP One app to access regular Title 8
asylum processing. The commenter
stated that, as a consequence of the
failure to post the proposed revisions,
they were unable to comment on the
proposed changes to the collection of
information. A commenter expressed
concern that CBP sought emergency
approval to collect advance information
on undocumented noncitizens and
bypassed the standard notice and
comment process.
Response: With respect to
commenters’ stated concerns about the
public docket, the Departments note
that like all proposed revisions to
collections of information, the proposed
revisions described in the NPRM were
available for review throughout the
comment period on OMB’s website at
https://www.reginfo.gov, under the
Information Collection Review tab.319
The Departments did not also post these
comments to the public docket, but are
unaware of any attempt by the
commenter to request a copy of the
proposed changes by using the contact
information listed in the NPRM.
The Departments maintain that the
nature of the proposed change to the
collection of information was clear to
commenters, as the proposed change
was described at length in the NPRM
and was the subject of many comments.
The Supporting Statement that was
available on OMB’s website (and was
the only document related to the
information collection for which the
319 See OMB, ICR Documents: CLEAN Supporting
Statement 1651–0140 Advance Information
Collection NPRM Changes, https://www.reginfo.gov/
public/do/PRAViewDocument?ref_nbr=2023021651-001 (last visited Mar. 29, 2023).
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Departments had proposed revisions)
described an NPRM that, if finalized,
‘‘would change the consequences, for
some noncitizens and for a temporary
period of time, of not using CBP One to
schedule an appointment to present
themselves at a POE.’’ 320 The
Supporting Statement explained that
such noncitizens would ‘‘be subject to a
rebuttable presumption of asylum
ineligibility, unless the noncitizen
demonstrates by a preponderance of the
evidence that it was not possible to
access or use CBP One due to a language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle; or that the noncitizen is
otherwise not subject to the rebuttable
presumption.’’ 321 The Supporting
Statement further clarified that ‘‘[t]here
is no change to the information being
collected under this collection or the
use of the information by CBP, but this
change would alter the consequences of
not using the collection, and thus
increases the estimated annual number
of responses in the collection.’’ 322
Regarding the concern with using the
emergency PRA approval process for the
collection of information via the CBP
One app, CBP notes that, although the
initial collection was approved on an
emergency basis,323 the relevant PRA
approval for the collection that is being
used for this rule (OMB Control Number
1651–0140) was subsequently done
using the normal PRA process, which
included two Federal Register notices
and an opportunity for public
comment.324 Further, this collection is
being revised again through this rule,
and the public was given additional
opportunity to comment on the
information collection in this
rulemaking. See 88 FR at 11749–50.
Members of the public are welcome to
submit comments to OMB on the
collection of information via https://
www.reginfo.gov for a period of 30 days
following issuance of this final rule.
Comment: A commenter expressed
that the NPRM is not in compliance
with the APA because the CBP One app
320 Id.
321 Id.
322 Id.
323 See OIRA, OIRA Conclusion, OMB Control No.
1651–0140, Collection of Advance Information from
Certain Undocumented Individuals on the Land
Border (May 3, 2021), https://www.reginfo.gov/
public/do/PRAViewICR?ref_nbr=202104-1651-001.
324 See 86 FR 73304 (Dec. 27, 2021); 87 FR 53667
(Sept. 28, 2021). See also OIRA, OIRA Conclusion,
OMB Control No. 1651–0140, Collection of Advance
Information from Certain Undocumented
Individuals on the Land Border (Dec. 18, 2022),
https://www.reginfo.gov/public/do/
PRAViewICR?ref_nbr=202112-1651-001. The OIRA
Conclusion includes citations and links to the
notices published in the Federal Register, as well
as the comments received in response.
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has not gone through the normal noticeand-comment period required by the
APA. The commenter stated that the
Departments had not clearly described
the app in a way that would provide the
public with the necessary information to
understand how the app works and that
a noncitizen’s failure to use the app
when presenting themselves at a port of
entry has serious implications on
immigration relief.
Response: The Departments disagree
with the contention that the use of the
CBP One app, whether separate from or
as described in this rule, fails to comply
with the APA. The CBP One app serves
as a single portal to a variety of CBP
services.325 Because there is not an
overarching CBP One information
collection, CBP has sought OMB
approval under the PRA of each
information collection contained in the
CBP One app, pursuant to standard
procedures. Regarding the particular use
of the CBP One app that is described in
this rulemaking—i.e., the use of the app
as the current ‘‘DHS scheduling system’’
described in 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B), to collect
information from certain undocumented
individuals on the land border—the
PRA information referenced above, and
available to the public, provided
information sufficient to understand
how the app works, and how it would
work in connection with this
rulemaking. Similarly, the Departments
provided a description of the
presumption and its application,
including to those who do not utilize
CBP One, in the NPRM and invited
comment thereon.
3. Impacts, Costs, and Benefits
(Executive Orders 12866 and 13563)
Comment: A few commenters
expressed that the Departments have not
met their obligations under Executive
Order 12866 and Executive Order
13563. A commenter requested that the
Departments investigate and develop
quantitative estimates regarding a range
of potential regulatory effects, such as
estimates of the rule’s potential impact
on family unity, the lifetime cost of
work permit renewals for those who are
granted withholding of removal instead
of asylum under the rule; the impact of
life-long inability to travel
internationally for those granted
withholding of removal rather than
asylum; and the potential costs on
States and localities of vastly increasing
the class of individuals ineligible for
public benefits, services, and healthcare.
325 See CBP, CBP OneTM Mobile Application,
https://www.cbp.gov/about/mobile-apps-directory/
cbpone (last visited Apr. 26, 2023).
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Another commenter requested that the
Departments consider the downstream
impacts of the rule on other noncitizens
and their U.S. citizen family members
who might be affected by additional
backlogs in immigration court. A legal
services provider expressed concern
with the Departments’ ‘‘evident
implication’’ that the rebuttable
presumption will not impact asylum
seekers beyond their loss of a path to
citizenship and inability to petition for
family members to join them in the
United States; the commenter cited
challenges with retaining counsel and
lost opportunities to collect evidence or
consult family before an asylum
decision is made. Some commenters
stated that the rule’s analysis of its costs
and benefits is deficient because the
rule lacked detailed estimates or further
specifics with respect to costs for the
Departments, the States, and other
parties. Commenters stated that for this
reason, the regulatory analysis in
Section VI.A. of the NPRM’s preamble
failed to satisfy the requirements of
Executive Order 12866.
Response: The Departments
respectfully maintain that the regulatory
analysis accompanying the NPRM
adequately described the costs and
benefits associated with this
rulemaking. The concerns raised by the
commenters have been addressed
qualitatively in the preambles to the
NPRM and this final rule. The
Departments recognize that the rule will
result in costs and benefits for the
individual noncitizens who are subject
to it, as well as a range of potential
indirect effects on other persons and
entities.326 The Departments have
further described these costs and
benefits throughout this preamble. The
Departments have also further revised
the Executive Order 12866 discussion in
Section VI.B. of this preamble to address
some of the concerns described by the
commenters, including concerns related
to work permit renewal.327
Although the Departments have
discussed the relevant policy
considerations associated with this
rulemaking at length, the Departments
note that neither Executive Order 12866,
nor any other executive order or law,
requires more detailed quantitative
analysis in these circumstances. The
326 See Section VI.B of this preamble for a further
discussion of the rule’s costs and benefits.
327 The Departments note that some, but not all,
of the commenters that pressed for additional
quantitative analysis expressed strong support for
the TCT Bar IFR and Final Rule, which did not
contain an Executive Order 12866 analysis due to
their nexus to a foreign affairs function of the
United States. See 84 FR at 33843 (IFR); 85 FR at
82289 (final rule).
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fact that preparation of a regulatory
impact analysis under Executive Order
12866 is a matter of Executive Branch
discretion is underscored by the terms
of Executive Order 12866, section 10:
Nothing in this Executive order shall affect
any otherwise available judicial review of
agency action. This Executive order is
intended only to improve the internal
management of the Federal Government and
does not create any right or benefit,
substantive or procedural, enforceable at law
or equity by a party against the United States,
its agencies or instrumentalities, its officers
or employees, or any other person.
Courts have recognized the internal,
managerial nature of this and other
similarly worded executive orders, and
have concluded that actions taken by an
agency to comply with such executive
orders are not subject to judicial review.
See Cal-Almond, Inc. v. USDA, 14 F.3d
429, 445 (9th Cir. 1993) (citing State of
Mich. v. Thomas, 805 F.2d 176, 187 (6th
Cir. 1986)).
i. Quantitative Impacts on Federal and
State Governments
Comment: A group of State Attorneys
General stated that the proposed rule
‘‘completely ignores the increased costs
to the States of higher levels of unlawful
aliens precipitated by’’ the NPRM.
Quoting the proposed rule, the
commenters stated that the Departments
‘‘falsely claim[ed] that ‘[t]he costs of the
proposed rule primarily are borne by
migrants and the Departments.’ ’’ See 88
FR at 11748. Commenters further stated
that States have significant reliance
interests in the Federal Government’s
enforcement of the immigration laws
and that the Departments should
withdraw the rule because the
Departments did not consider this
reliance in the proposed rule.
Commenters stated that the rule would
cause additional noncitizens to enter the
United States where they would cause
the States to expend additional funds on
law enforcement, education, and
healthcare than the States otherwise
would have spent.
In support of this assertion,
commenters stated that irregular
migration imposes significant costs on
States. Commenters cited a study that
stated ‘‘the net cost of illegal
immigration to U.S. taxpayers is now
$150.7 billion.’’ Commenters provided
specific examples of costs that the State
of Indiana has incurred or could incur
to provide services to noncitizens,
including costs to provide English
Language Learner Services and other
education services. Commenters stated
that as many as 5,000 family units that
had been encountered and granted
parole pursuant to the parole + ATD
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policy settled in Indiana between July
2021 and February 2022. On the other
hand, a state administrative agency
wrote that immigrants and refugees are
integral to that State’s economy and
generate $2.8 billion of business income
and contribute over $21.4 billion in
Federal, State, and local taxes, annually.
The commenter wrote that immigrants
and refugees have successfully rebuilt
their lives and made positive social and
economic contributions to the State by
revitalizing neighborhoods and adding
to the cultural vitality of the State and
its communities.
Response: The Departments
respectfully disagree with the
characterization of the rule as
precipitating higher levels of irregular
migration. As discussed in the preamble
to the proposed rule, see, e.g., 88 FR at
11705–06, and in Section I of this
preamble, in the absence of this rule, the
Departments would anticipate a
significant further surge in irregular
migration after the Title 42 public
health Order is lifted. This rule is
expected to reduce irregular migration,
not increase it.
This rule imposes a rebuttable
presumption of asylum ineligibility for
certain migrants who enter the United
States at the southwest land border or
adjacent coastal borders after traveling
through a third country during a
designated period. This rule excepts
from its rebuttable presumption
noncitizens who enter the United States
pursuant to a lawful pathway, but the
rule does not newly introduce or
authorize any lawful pathways to enter
the United States. While it is true that
the rule excepts from the rebuttable
presumption those who use some lawful
pathways, such pathways would exist
irrespective of this rule. Indeed, as
stated in the NPRM, the term ‘‘lawful
pathways’’ refers to the ‘‘range of
pathways and processes by which
migrants are able to enter the United
States or other countries in a lawful,
safe, and orderly manner and seek
asylum and other forms of protection.’’
88 FR at 11706 n.15. One such lawful
pathway is entry pursuant to the CHNV
parole processes; such processes were
established prior to and separate from
the publication of the NPRM. In other
words, the commenters have conflated
the lawful pathways accounted for in
this rule with the rule itself.
The Departments further note the
evidence that the introduction of lawful
pathways, particularly when coupled
with a consequence for failing to use
such processes, has significantly
reduced levels of irregular migration.
For instance, as noted in the proposed
rule, in the week prior to the
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announcement of the Venezuela parole
process on October 12, 2022, encounters
of Venezuelan nationals between POEs
at the SWB averaged over 1,100 a day
from October 5–11. About two weeks
after the announcement, encounters of
Venezuelan nationals averaged under
200 per day between October 18 and
24.328 The low trend continued with a
daily average of 106 in March 2023.329
Similarly, the number of CHN nationals
encountered dropped significantly in
the wake of the January 2023
announcement of new processes for
those countries. Between the
announcement of the new processes on
January 5, 2023, and January 21, the
number of daily encounters between
POEs of CHN nationals dropped from
928 to 73, a 92 percent decline.330
Encounters between POEs of CHN
nationals continued to decline to a daily
average of fewer than 17 per day in
March 2023.331 These reductions in
encounters have been sustained for
months while the Title 42 public health
Order has remained in effect.
With respect to commenters’
statement that States have significant
reliance interests in the Federal
Government’s enforcement of the
immigration laws, this rule does not set
any policy against enforcement of the
immigrations laws. Commenters’
objections to other enforcement policies,
or any lack thereof, have little
relationship to this rule, which, as
previously stated, creates a rebuttable
presumption of asylum ineligibility for
certain migrants who enter the United
States at the southwest land border or
adjacent coastal borders after traveling
through a third country during a
designated period. The Departments are
unaware of any existing policies altered
by this rule in which States have a
substantial reliance interest. For
example, States cannot have substantial
reliance interests in the Proclamation
Bar IFR or TCT Bar Final Rule because
neither rule is being enforced.
Ultimately, the commenters’
objections are not to the proposed rule,
but to the lawful pathways themselves,
as well as to other aspects of the
immigration system. The Departments
believe that withdrawing the proposed
rule would not achieve the
Departments’ or the commenters’ goals.
328 USBP encountered an average of 225
Venezuelans per day in November 2022 and 199 per
day in December 2022. OIS analysis of OIS Persist
Dataset based on data through March 31, 2023. Data
are limited to USBP encounters to exclude those
being paroled in through POEs.
329 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
330 Id.
331 Id.
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Comment: Another group of State
Attorneys General stated that if, as a
consequence of the rule, noncitizens
endure additional trauma seeking
asylum in a third country or waiting at
the SWB in potentially dangerous
conditions for a CBP One appointment,
such noncitizens will require more
State-funded services, such as services
related to healthcare, education, and
legal assistance.
Response: The Departments
acknowledge that various levels of
government provide services to
noncitizens for a range of purposes. The
Departments have further revised the
Executive Order 12866 discussion in
Section VI.B of this preamble to note the
potential effects on such entities.
Comment: Commenters stated that
while the Departments acknowledge the
cost and other impact that irregular
migration has had on DHS operations,
States and border communities, and
NGOs, the Departments did not
adequately consider the costs borne by
other Federal agencies not directly
associated with immigration
enforcement. For example, commenters
stated that some health programs
(Medicaid; the Children’s Health
Insurance Program; the Supplemental
Nutrition Assistance Program; and the
Women, Infants, and Children program)
and tax credits are available to
noncitizens without employment
authorization. Commenters also stated
that UCs are eligible for a large number
of Federal benefits immediately upon
their entry. Commenters also stated that
the expanded usage of humanitarian
parole results in costs associated with
providing parolees Federal benefits.
Response: The Departments agree that
a high volume of irregular migration can
have significant implications for other
Federal agencies that provide services or
assistance to migrants. For the reasons
stated in the first comment response in
Section IV.F.3.i of this preamble,
however, the Departments do not
believe it is reasonable to expect that the
rule would result in an increase in
irregular migration. This rule is
designed to reduce levels of irregular
migration, and to channel migrants into
lawful, safe, and orderly pathways. In
the absence of this rule, the
Departments would anticipate a
significant further surge in irregular
migration after the Title 42 public
health Order is lifted. This rule will
reduce irregular migration and any costs
associated with such migration, rather
than increasing such migration and
costs.
Comment: Some commenters also
stated that the rule fails to adequately
consider and address the administrative
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costs that the Departments would incur
in order to implement the rule.
Regarding USCIS, these commenters
stated that the Departments failed to
consider, for instance, the following
costs: new trainings, possible future
hiring needs that could result from the
rule, and possible collateral costs to
petitioners before USCIS who could
have adjudications delayed due to
downstream delays. Some commenters
expressed concern that USCIS, as a feefunded agency, might have insufficient
resources to implement the rule, and
hypothesized that USCIS might seek to
ask Congress for an appropriation to
cover implementation costs, which
would shift the burden of the cost to
U.S. taxpayers. These commenters cited
the requirements of the Anti-Deficiency
Act and past reductions in USCIS fee
revenues in support of the commenters’
prediction of an appropriations request.
Regarding CBP, commenters stated
that the Departments failed to consider,
for instance, costs for training staff on
the CBP One app and for app
maintenance and updates.
Regarding ICE, commenters stated
that if, as a result of the rule, more
noncitizens receive negative credible
fear determinations and request IJ
review, there is a risk of overcrowding
and other operational complications as
bed space runs out for new arrivals. The
commenters stated that this could
increase the money paid by the U.S.
taxpayer unnecessarily.
Regarding EOIR, these commenters
stated that the Departments failed to
consider, for instance, the following
costs: training of IJs and staff; form
updates; and an increase to the court
backlog if adjudications take longer.
Response: The Departments agree that
various agencies will expend resources
to implement this rule. The discussion
in Section VI.B of this preamble
explains that the rule will require
additional time for AOs and IJs, during
fear screenings and reviews,
respectively, to inquire into the
applicability of the presumption and
whether the presumption has been
rebutted. Similarly, the rule will require
additional time for IJs during section
240 removal proceedings. However, as
discussed in the proposed rule and
elsewhere in this preamble, in the
absence of this rule, the Departments
would anticipate a significant further
surge in irregular migration after the
Title 42 public health Order is lifted,
which would require the expenditure of
significant resources. This rule is
therefore anticipated to substantially
reduce net burdens on the Departments,
including at the agencies referenced by
the commenters.
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4. Regulatory Flexibility Act (‘‘RFA’’)
Comment: At least one commenter
disagreed with the certification in the
NPRM that the proposed rule would not
have a significant economic impact on
a substantial number of small entities.
See 88 FR at 11748. Some legal services
providers gave examples of how the rule
would impact their organization and
workloads, without objecting to the RFA
certification. But at least one commenter
disputed the certification and wrote that
as a nonprofit organization that helps
asylum seekers prepare for credible fear
interviews, IJ reviews, and merits
hearings, the commenter would
experience a significant time and cost
burden associated with the new rule,
such as the additional time spent
gathering evidence from foreign
countries, appearing at interviews and
hearings, and explaining the law and
outcome to clients and pro se
respondents. The commenter stated
that, as a consequence of the rule, the
commenter would therefore be forced to
serve fewer individuals, significantly
reducing the number of people who
would have access to legal services. The
commenter further stated that due to the
increased time burden, individuals
would have to pay the commenter
increased fees or donors would have to
chip in more for each person.
Response: Consistent with
longstanding case law, a regulatory
flexibility analysis is not required when
a rule has only indirect effects on small
entities, rather than directly regulating
those entities. See, e.g., Mid-Tex Elec.
Co-op., Inc. v. FERC, 773 F.2d 327, 342–
43 (D.C. Cir. 1985) (‘‘[A]n agency may
properly certify that no regulatory
flexibility analysis is necessary when it
determines that the rule will not have a
significant economic impact on a
substantial number of small entities that
are subject to the requirements of the
rule . . . . Congress did not intend to
require that every agency consider every
indirect effect that any regulation might
have on small businesses in any stratum
of the national economy.’’).332 This rule
332 See also Cement Kiln Recycling Coal. v. EPA,
255 F.3d 855, 869 (D.C. Cir. 2001) (‘‘The statute
requires that the agency conduct the relevant
analysis or certify ‘no impact’ for those small
businesses that are ‘subject to’ the regulation, that
is, those to which the regulation ‘will apply’. . . .
The rule will doubtless have economic impacts in
many sectors of the economy. But to require an
agency to assess the impact on all of the nation’s
small businesses possibly affected by a rule would
be to convert every rulemaking process into a
massive exercise in economic modeling, an
approach we have already rejected.’’ (citing MidTex, 773 F.2d at 343)); White Eagle Co-op. Ass’n v.
Conner, 553 F.3d 467, 480 (7th Cir. 2009) (‘‘[S]mall
entities directly regulated by the proposed
[rulemaking]—whose conduct is circumscribed or
mandated—may bring a challenge to the RFA
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does not directly regulate any
organizations; the rule imposes a
rebuttable presumption of asylum
ineligibility for certain migrants who
enter the United States at the southwest
land border or adjacent coastal borders
after traveling through a third country
during a designated period. The RFA
does not require the Departments to
estimate the rule’s potential indirect
effects on legal service organizations,
law firms, and other service providers
whose clients may be subject to the rule.
Because this rule does not regulate
small entities themselves, the
Departments reaffirm their conclusion
that no regulatory flexibility analysis is
necessary.
5. Other Regulatory Requirements
Comment: A group of State Attorneys
General disputed the statement in the
proposed rule, made pursuant to
Executive Order 13132, Federalism, 64
FR 43255 (Aug. 4, 1999), that the
proposed rule would not have a
substantial direct effect on the States,
the relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. See 88 FR at
11749.
Response: The Departments maintain
that this rule will not have a substantial
direct effect on the States, the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. This rule’s only
direct effects relate to asylum applicants
and those being processed at the SWB.
For the same reason, this final rule will
not impose substantial direct
compliance costs (indeed, any direct
compliance costs) on State and local
governments, or preempt State law.
Accordingly, in accordance with section
6 of Executive Order 13132, this rule
requires no further agency action or
analysis.
Comment: A group of State Attorneys
General stated that the Departments
should withdraw the rule because it
would impose significant unfunded
mandates on the States but the
Departments did not assess the impact
on the States or their constituent local
governments under the Unfunded
Mandates Reform Act of 1995
(‘‘UMRA’’). Commenters disagreed with
the Department’s statement in the
proposed rule that the rule would not
analysis or certification of an agency. . . .
However, when the regulation reaches small
entities only indirectly, they do not have standing
to bring an RFA challenge.’’).
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impose an unfunded mandate because
‘‘[a]ny downstream effects on such
entities would arise solely due to their
voluntary choices, and the voluntary
choices of others, and would not be a
consequence of an enforceable duty
imposed’’ by the rule. 88 FR 11748.
Commenters cited cases regarding
standing to sue in Federal court, such as
Department of Commerce v. New York,
139 S. Ct. 2551 (2019) and City &
County of San Francisco v. USCIS, 944
F.3d 773, 787 (9th Cir. 2019), arguing
that if the fact patterns in those cases
were sufficient to establish standing,
they are sufficient to trigger the UMRA’s
requirements. Quoting 2 U.S.C. 1534(a),
commenters stated that UMRA also
requires that ‘‘[e]ach agency . . .
develop an effective process to permit
elected officers of State, local, and tribal
governments . . . to provide meaningful
and timely input in the development of
regulatory proposals containing
significant Federal intergovernmental
mandates.’’ The comments stated that
the Departments never allowed elected
leaders in their States to provide any
such input.
Response: Case law on standing does
not dictate UMRA’s scope. The
Departments maintain that the NPRM
preamble’s discussion of UMRA was
correct. This rule does not contain a
Federal mandate, or a significant
Federal intergovernmental mandate,
because it does not impose any
enforceable duty upon any other level of
government or private sector entity. Any
downstream effects on such entities
would arise solely due to their
voluntary choices, and the voluntary
choices of others, and would not be a
consequence of an enforceable duty
imposed by the rule. Similarly, any
costs or transfer effects on State and
local governments would not result
from a Federal mandate contained in
this rule, as that term is defined under
UMRA.
G. Out of Scope
Comment: Commenters submitted a
number of comments that were outside
the scope of the rulemaking. For
instance, some commenters stated that
the United States should create a path
to citizenship for undocumented
immigrants; that the Government should
otherwise engage in legislative
immigration reform; that all noncitizens
with disabilities should be eligible for
asylum; that minors should not be
released to individuals without lawful
status; that the Government should
focus on disparities among IJs in asylum
grant rates; that the United States
should expand resources focused on the
development of civil society and
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governments in the Northern Triangle;
that countries from which asylum
applicants flee should help fund
humanitarian aid for their citizens who
resettle in the United States; that POEs
are already overwhelmed so asylumseekers should be allowed to enter in
other places; that the Government needs
to focus on granting ‘‘Dreamers’’
citizenship; that the Government should
call on the military to forcibly repel
migrants from the border; that the
United States should end birthright
citizenship; that the American
workforce is becoming automated,
putting American citizens out of work;
that the United States should subsidize
the implementation of machinery that
would fill the jobs that normally
‘‘attract’’ migrants (e.g., agricultural
work); that migrant children are being
forced into child labor; that the U.S.
birthrate is low and we need more
workers to maintain Social Security and
Medicare; that the United States is
selling land to China, and India is
buying oil from Russia; that the United
States should systematically fund
research that evaluates the racial
disparities that exist in the efficiency
with which Ukrainian humanitarian
parole applications have been reviewed
and evaluated versus those of Afghan
applicants; that American taxpayers are
suffering the effects of the border crisis,
particularly in schools; that the United
States should expand legal immigration;
that asylum seekers will receive in
absentia removal orders due to
difficulties in contacting asylum seekers
for court hearings; that they objected to
the number of noncitizens present in the
United States without lawful status.
Response: Such comments address
matters well beyond the scope of the
proposed rule and do not require further
response.
Comment: Several commenters made
statements related to CBP custody
conditions, noting for instance that they
are overcrowded, lack adequate access
to hygiene, lack adequate space so that
families are separated by gender, are
cold, lack adequate bedding, have lights
on at night, and do not have adequate
showers. At least one commentor noted
that CBP facilities should have more
child friendly reception areas.
Response: The Department
acknowledges the commenters’
concerns. However, this rule does not
have any impact on whether or how
individuals are in custody or detained,
and these comments are outside the
scope of the rulemaking.
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V. Request for Comments on Proposed
Extension of Applicability to All
Maritime Arrivals
In addition to the changes made in
this final rule described in Section
IV.B.8.i of this preamble, the
Departments are considering and
request comment on whether to apply
the rebuttable presumption to
noncitizens who enter the United States
without documents sufficient for lawful
admission during the same temporary
time period at a maritime border,333
whether or not they traveled through a
third country. Such a modification
would expand the scope of the rule’s
rebuttable presumption in two ways:
both geographically (covering all entries
by sea, not just those entering the
United States from Mexico at coastal
borders adjacent to the SWB) and with
regard to the class of persons potentially
subject to the rebuttable presumption
(by covering persons who enter the
United States by sea even if they did not
travel through a country other than their
country of citizenship, nationality, or, if
stateless, last habitual residence, that is
a party to the 1951 United Nations
Convention relating to the Status of
Refugees or the 1967 Protocol relating to
the Status of Refugees). In addition, the
Departments are also considering and
request comment on whether to expand
the scope of the rule’s rebuttable
presumption geographically to
noncitizens who enter the United States
without documents sufficient for lawful
admission during the same temporary
time period at any maritime border,
while continuing to limit the
presumption’s applicability to those
who traveled through another country
before reaching the United States.
Finally, the Departments are
considering and request comment on
whether to expand the scope of the
presumption to noncitizens who enter
the United States by sea, but to limit the
scope of that expansion to noncitizens
who departed from the Caribbean or
other regions that present a heightened
risk of maritime crossings.
The Departments are considering
extending the rule’s rebuttable
presumption to maritime arrivals to
encourage any migrants intending to
reach the United States by sea to instead
avail themselves of lawful, safe, and
orderly pathways into the United States,
333 The STCA and Additional Protocol controls
and applies as to individuals who cross the U.S.Canada land border between POEs, including
certain bodies of water along or across the U.S.Canada land border, as described in 88 FR 18227,
18234. The Departments’ use of ‘‘at a maritime
border’’ includes individuals who enter the United
States by sea, as in the Atlantic and Pacific coasts
of the United States.
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or otherwise to seek asylum or other
protection in another country. As
discussed in more detail below, DHS
has recently experienced high levels of
maritime interdictions, primarily of
Cuban and Haitian nationals in the
Caribbean, and is concerned that rates of
attempted entries to the United States
by sea may soon increase to levels that
would greatly stress DHS’s available
resources and may lead to devastating
loss of life and other consequences. The
Departments expect that extending the
strategy of coupling an expansion of
lawful, safe, and orderly pathways into
the United States with this rule’s
consequence for noncitizens who do not
avail themselves of one of those options
would lead to a reduction in the
numbers of migrants who would
otherwise undertake a dangerous sea
journey to the United States.
A. Maritime Migration Continues To
Increase, With Devastating
Consequences for Migrants
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Total migrants interdicted at sea by
the U.S. Coast Guard (‘‘USCG’’)
increased by 502 percent between FY
2020 (2,079) and FY 2022 (12,521).334
Interdictions continued to rise in FY
2023 with 8,822 migrants interdicted at
sea through March, almost 70 percent of
the total in FY 2022 within six
months.335 Interdictions occurred
primarily in the South Florida Straits
and the Caribbean Sea.336
Individuals departing from Cuba and
Haiti make up the vast majority of
maritime interdictions. Maritime
migration from Cuba increased by
nearly 600 percent in FY 2022, with
5,740 Cuban nationals interdicted at sea,
compared to 827 in FY 2021.337
Similarly, maritime migration from
Haiti more than tripled in FY 2022, with
4,025 Haitian nationals interdicted at
sea, compared to 1,205 in FY 2021 and
398 in FY 2020.338 In the first six
months of FY 2023, Cuban interdictions
were nearly equal to the Cuban FY 2022
total, comprising 62 percent of all FY
2023 interdictions at sea; Haitian
interdictions were over 60 percent of the
Haitian FY 2022 total, comprising
around 30 percent of all FY 2023
interdictions at sea.339
334 OIS analysis of USCG data through March 31,
2023.
335 Id.
336 Testimony of Jonathan Miller, ‘‘Securing
America’s Maritime Border: Challenges and
Solutions for U.S. National Security’’ at 4 (Mar. 23,
2023), https://homeland.house.gov/media/2023/03/
3.23.23-TMS-Testimony.pdf.
337 OIS analysis of USCG data through March 31,
2023.
338 Id.
339 Id.
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Meanwhile, USBP apprehensions of
noncitizens who made landfall in
southeast coastal sectors have also been
increasing rapidly.340 There were 5,978
such apprehensions in FY 2022, nearly
triple the number of apprehensions in
FY 2021 (2,045). And in FY 2023 to
date, there have already been 6,364
USBP apprehensions of noncitizens
who made landfall in southeast coastal
sectors, more than the total for all of FY
2022.341 Cuban and Haitian nationals
made up 76 percent of these
apprehensions in FY 2022 and 84
percent of apprehensions so far in FY
2023.
Several large group interdictions of
Cubans and Haitians have caused
challenges for the USCG in recent
months. On January 22, 2023, the USCG
interdicted a sail freighter suspected of
illegally transporting migrants with
nearly 400 Haitians aboard,
necessitating repatriations of eligible
individuals back to the Bahamas.342
Days later, on January 25, the USCG
interdicted and repatriated another 309
Haitians to Haiti.343 USCG interdicted
yet another large group of Haitians on
February 15, resulting in the
repatriation of all 311 Haitian migrants
in that group,344 and another group of
206 Haitians were repatriated on March
2 following two successive, separate
interdictions on February 22 and 28.345
On January 12, 2023, USCG repatriated
177 Cubans from 7 separate
interdictions.346 USCG repatriated an
additional 67 Cubans between February
23–24 following prior interdictions.347
340 Includes Miami, Florida; New Orleans,
Louisiana; and Ramey, Puerto Rico sectors.
341 OIS analysis of OIS Persist Dataset based on
data through March 31, 2023.
342 David Goodhue and Jacqueline Charles, Coast
Guard stops boat with 400 Haitians off the Bahamas
and likely headed to Florida, Miami Herald, Jan. 23,
2023, https://www.miamiherald.com/news/nationworld/world/americas/haiti/article271514157.html.
343 USCG, Coast Guard Repatriates 309 People to
Haiti (Jan. 31, 2023), https://www.news.uscg.mil/
Press-Releases/Article/3281802/coast-guardrepatriates-309-people-to-haiti.
344 USCG, Coast Guard Repatriates 311 People to
Haiti (February 20, 2023), https://
www.news.uscg.mil/Press-Releases/Article/
3302743/coast-guard-repatriates-311-people-tohaiti/.
345 USCG, Coast Guard Repatriates 206 People to
Haiti (March 2, 2023), https://www.news.uscg.mil/
Press-Releases/Article/3314530/coast-guardrepatriates-206-people-to-haiti/.
346 USCG, Coast Guard Repatriates 177 People to
Cuba (Jan. 12, 2023), https://www.news.uscg.mil/
Press-Releases/Article/3265898/coast-guardrepatriates-177-people-to-cuba/.
347 USCG, Coast Guard Repatriates 29 People to
Cuba (Feb. 23, 2023), https://www.news.uscg.mil/
Press-Releases/Article/3306722/coast-guardrepatriates-29-people-to-cuba/; USCG, Coast
Guard Repatriates 38 People to Cuba (Feb. 24,
2023), https://www.news.uscg.mil/Press-Releases/
Article/3306850/coast-guard-repatriates-38-peopleto-cuba/.
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31441
Interdictions in the maritime
environment can pose unique hazards to
life and safety. On March 23, 2023, Rear
Admiral Jo-Ann Burdian, Assistant
Commandant for Response Policy,
testified before a Congressional panel,
stating: ‘‘Over the last year and a half,
the Coast Guard observed an increase in
irregular maritime migration, above
historical norms, across our southern
maritime border. This is a difficult
mission for our crews. . . . For
example, patrolling the waters of the
South Florida Straits can be compared
to patrolling a land area the size of
Maryland with seven police cars limited
to traveling at 15 miles per hour. It
requires exceptional tactical
coordination between aircraft, ships,
boats, and supporting partners
ashore.’’ 348 Rear Admiral Burdian
further stated that it is not uncommon
for migrants encountered at sea to be
non-compliant, threatening their own
lives and those of other migrants on
board to deter a Coast Guard rescue.349
Additional challenges of maritime
migration operations include ensuring
adequate sanitation, security, and
providing for food, medical, and shelter
needs of migrants.350
Interdicting Haitian sail freighters
poses unique challenges to DHS crews
and migrants. See 88 FR at 26328. These
types of vessels are often overloaded
with more than 150 migrants onboard,
including small children. Id. Because
these vessels do not have sufficient
safety equipment, including life jackets,
emergency locator beacons, or life rafts
in the event of an emergency, there is a
great risk to human life if these vessels
overturn or sink because such an
overturning or sinking would create a
situation where there could be hundreds
of noncitizens in the water, many of
whom may not know how to swim. Id.
Often, noncitizens interdicted on these
vessels have been at sea for several days,
are dehydrated, need medical attention,
or are otherwise experiencing elevated
levels of stress. Id. These factors
increase the risk to DHS personnel who
rescue these migrants from these vessels
because the number of migrants
outnumber DHS crews. Id. DHS
encounters with sail freighters are not
uncommon, and because of sail freighter
capacity to carry several hundred
migrants, they can exceed the holding
capacity of USCG cutters patrolling
348 Testimony of Rear Admiral Jo-Ann F. Burdian,
Assistant Commandant for Response Policy,
‘‘Securing America’s Maritime Border: Challenges
and Solutions for U.S. National Security’’ (Mar. 23,
2023), https://homeland.house.gov/media/2023/03/
2023-03-23-TMS-Testimony.pdf.
349 Id.
350 Id.
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southeastern maritime smuggling
vectors, increasing the risk not only to
the migrants, but to cutter crews as well.
Id. While maritime interdictions
declined somewhat in February 2023,
DHS assesses that the weather played a
significant role in this reduced maritime
movement in the Caribbean. Id. Through
much of February, weather conditions
were unfavorable for maritime ventures,
particularly on smaller vessels. Id.
However, DHS assesses that this was
only temporary. Increasing levels of
maritime interdictions put lives at risk
and stress DHS’s resources, and the
increase in migrants taking to sea, under
dangerous conditions, has led to
devastating consequences.
Human smugglers and irregular
migrant populations continue to use
unseaworthy, overly crowded vessels,
piloted by inexperienced mariners,
without any safety equipment—
including, but not limited to, personal
flotation devices, radios, maritime
global positioning systems, or vessel
locator beacons. In FY 2022, the USCG
recorded 107 noncitizen deaths,
including those presumed dead, as a
result of irregular maritime migration. In
January 2022, the USCG located a
capsized vessel with a survivor clinging
to the hull.351 USCG crews interviewed
the survivor, who indicated there were
34 others on the vessel who were not in
the vicinity of the capsized vessel and
the survivor.352 The USCG conducted a
multi-day air and surface search for the
missing migrants, eventually recovering
five deceased migrants, while the others
were presumed lost at sea.353 In
November 2022, USCG and CBP rescued
over 180 people from an overloaded
boat that became disabled off of the
Florida Keys.354 They pulled 18 Haitian
migrants out of the sea after they
became trapped in ocean currents while
trying to swim to shore.355
IOM’s Missing Migrants Project
reported at least 321 documented deaths
and disappearances of migrants
throughout the Caribbean in 2022,
signaling the highest recorded number
since they began tracking such events in
351 Adriana Gomez Licon, Situation ‘dire’ as Coast
Guard seeks 38 missing off Florida, Associated
Press, Jan. 26, 2022, https://apnews.com/article/
florida-capsized-boat-live-updatesf251d7d279b6c1fe064304740c3a3019.
352 Id.
353 Adriana Gomez Licon, Coast Guard suspends
search for migrants off Florida, Associated Press,
Jan. 27, 2022, https://apnews.com/article/floridalost-at-sea-79253e1c65cf5708f19a97b6875ae239.
354 Ashley Cox, More than 180 people rescued
from overloaded vessel in Florida Keys, CBS News
CW44 Tampa, Nov. 22, 2022, https://
www.cbsnews.com/tampa/news/more-than-180people-rescued-from-overloaded-vessel-in-floridakeys/.
355 Id.
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2014.356 Most of those who perished or
went missing in the Caribbean were
from Haiti and Cuba.357 This data
represents a tragic 78 percent overall
increase over the 180 deaths in the
Caribbean documented in 2021,
underscoring the perils of the
journey.358
B. A Further Increase in Maritime
Migration is Reasonably Foreseeable
The Departments assess that maritime
migration is likely to increase absent
policy changes such as those being
considered. For instance, Haiti
continues to experience security and
humanitarian crises caused by rampant
gang violence, food and fuel shortages,
a resurgence of cholera, and an August
2021 earthquake that killed 2,000
people.359 And Cuba is undergoing its
worst economic crisis since the
1990s 360 due to the lingering impact of
the COVID–19 pandemic, reduced
foreign aid from Venezuela because of
that country’s own economic crisis, high
food prices, and U.S. economic
sanctions.361 These crises will likely
continue to fuel irregular maritime
migration.
Although the establishment of the
CHNV parole processes has significantly
reduced SWB encounters with Cuban
and Haitian nationals as described
above in Section II.A, maritime
interdictions of Cuban and Haitian
nationals in the Caribbean have
increased in recent years and persist at
high levels, as just described. Unlike
noncitizens encountered at the SWB,
noncitizens who reach the United States
directly by sea without traveling from
Mexico or Canada have not been subject
to the CDC’s Title 42 public health
Order.362 Instead, they are (and will
continue to be) processed under Title 8,
which as described above may entail
years spent in the United States before
a final order of removal is issued. DHS
recently announced that in response to
the increase in maritime migration and
356 IOM, Missing Migrants in the Caribbean
Reached a Record High in 2022 (Jan. 24, 2023),
https://www.iom.int/news/missing-migrantscaribbean-reached-record-high-2022.
357 Id.
358 Id.
359 See, e.g., CRS, Haiti: Recent Developments and
U.S. Policy, R47394 (Jan. 23, 2023), https://
crsreports.congress.gov/product/pdf/R/R47394.
360 The Economist, Cuba is Facing Its Worst
Shortage of Food Since 1990s (July 1, 2021), https://
www.economist.com/the-americas/2021/07/01/
cuba-is-facing-its-worst-shortage-of-food-since-the1990s.
361 CRS, Cuba: U.S. Policy in the 117th Congress
(Sept. 22, 2022), https://crsreports.congress.gov/
product/pdf/R/R47246.
362 See 86 FR at 42841 (Order applies only to
certain persons ‘‘traveling from Canada or
Mexico’’).
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interdictions, and to disincentivize
migrants from attempting the dangerous
journey to the United States by sea,
individuals who have been interdicted
at sea after April 27, 2023, are ineligible
for the parole processes for Cubans and
Haitians. 88 FR 26327; 88 FR 26329.
The Departments expect that this step
will help but that, in light of the
complicated mix of factors driving
maritime migration, more is needed to
discourage maritime migration and
encourage the use of safe, lawful,
orderly processes.
C. Effects on Resources and Operations
USCG and its partners have surged
assets to address the recent increase in
maritime migration, but the increased
flow of migrants overall led to a lower
interdiction effectiveness rate (that is,
the percentage of detected
undocumented migrants of all
nationalities who were interdicted by
USCG and partners via maritime
routes).363 Between FY 2018 and FY
2020, USCG approached or exceeded its
75 percent effectiveness target.364 In FY
2021 and FY 2022, effectiveness
dropped to 47.2 percent and 56.6
percent, respectively, despite a surge
response that resulted in 17 percent
more interdictions in FY 2022 than in
FY 2021.365 That is, even though the
USCG interdicted more migrants
overall, those interdictions were a
smaller percentage of total detected
migrants on maritime routes than the
USCG had interdicted between FY 2018
and 2019. A further surge in maritime
migration risks further decreasing
effectiveness (and thereby reducing
deterrence of dangerous journeys by sea)
and, as described below, would
exacerbate USCG’s overall capacity
challenges and increase the risk to other
key mission areas, such as counter-drug
operations.
The United States Government’s
response to maritime migration in the
Caribbean region is governed by
executive orders, presidential directives,
and resulting framework and plans that
outline interagency roles and
responsibilities. Homeland Security
Task Force–Southeast (‘‘HSTF–SE’’) is
primarily responsible for DHS’s
response to maritime migration in the
Caribbean Sea and the Straits of Florida.
Operation Vigilant Sentry is the DHS
interagency operational plan for
responding to maritime migration in the
Caribbean Sea and the Straits of
363 DHS, U.S. Coast Guard Budge Overview,
Fiscal Year 2024 Congressional Justification, at
USCG–3.
364 Id.
365 Id.
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Florida.366 The primary objectives of
HSTF–SE are to protect the safety and
security of the United States, deter and
dissuade noncitizens from attempting
the dangerous journey to the United
States by sea, achieve U.S. humanitarian
objectives, maintain the integrity of the
U.S. immigration system, and prevent
loss of life at sea through mobilizing
DHS resources, reinforced by other
Federal, State, and local assets and
capabilities.
The USCG supports HSTF–SE and
views its migrant interdiction mission
as a humanitarian effort to rescue those
taking to the sea and to encourage
noncitizens to pursue lawful pathways
to enter the United States. By allocating
additional assets to migrant interdiction
operations and to prevent conditions
that could lead to maritime mass
migration, the USCG assumes certain
operational risk to other statutory
missions. Some USCG assets were
diverted from other key mission areas,
including counter-drug operations,
protection of living marine resources,
and support for shipping navigation.
See 88 FR at 26329. A reduction in
maritime migration would reduce the
operational risk to USCG’s other
statutory missions.
Maritime encounters also strain other
DHS resources. For instance, during
times of increased encounters in the
maritime environment, the U.S. Border
Patrol executes lateral decompression
flights for processing. Once the Title 42
public health Order is lifted, based on
DHS encounter projections and
throughput models, southwest border
sectors will likely lose the ability to
accept decompression flights from
coastal border sectors. This in turn
would result in overcrowding in coastal
border sectors’ short-term holding
facilities and impact local communities
not prepared to receive migrants.
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D. Lawful, Safe, and Orderly Pathways
As discussed in detail earlier in this
preamble, the United States has taken
significant steps to expand safe and
orderly options for migrants, including
migrants from the Caribbean region, to
lawfully enter the United States. The
United States has, for example,
increased and will continue to increase
refugee processing in the Western
Hemisphere; country-specific and other
available processes for individuals
366 Homeland Security Task Force–Southeast,
published through the U.S. Embassy in Cuba,
Homeland Security Task Force Southeast partners
increase illegal migration enforcement patrols in
Florida Straits, Caribbean (Sept. 6, 2022), https://
cu.usembassy.gov/homeland-security-task-forcesoutheast-partners-increase-illegal-migrationenforcement-patrols-in-florida-straits-caribbean/.
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seeking parole for urgent humanitarian
reasons or significant public benefit,
including the Cuba, Haiti, Nicaragua,
and Venezuela parole processes; and
opportunities to lawfully enter the
United States for the purpose of
seasonal employment. In addition, the
United States has resumed the Cuban
Family Reunification Program and
resumed and increased participation in
the Haitian Family Reunification
Program.
The Departments are also aware that
many individuals migrating out of
island nations, such as Cuba and Haiti,
do so via air travel.367 For many
individuals, travel by air to a third
country may be an additional option for
obtaining asylum or other protection.
The Departments acknowledge,
however, that there may be individuals
for whom air travel is not an option. The
Departments welcome data, other
information, or comments on access to
air travel and whether any aspect of this
rule’s presumption should be adjusted
to account for differences among
individuals in access to air travel.
E. Alternatives Under Consideration
The Departments are considering
whether the rebuttable presumption
should apply to noncitizens who enter
the United States without documents
sufficient for lawful admission during
the same temporary time period at any
maritime border, whether or not they
traveled through a third country. Under
this approach, the presumption would
apply to any covered noncitizen who
reached the United States by sea,
including Cuban or Haitian nationals
traveling directly to the United States
from Cuba or Haiti. The Departments
acknowledge, however, that eliminating
the third-country travel component for
367 See, e.g., Reuters, Nicaragua eliminates visa
requirement for Cubans, Nov. 23, 2021, https://
www.reuters.com/world/americas/nicaraguaeliminates-visa-requirement-cubans-2021-11-23/;
Ed Augustin, Stars align for Cuban migrants as
record numbers seek better life in US, Guardian,
June 12, 2022, https://www.theguardian.com/world/
2022/jun/12/cuban-migrants-us-record-numbersmigration (‘‘The U.S. Coast Guard has intercepted
nearly 2,000 Cubans since October [2021]. But far
more are flying to the Latin American mainland
before journeying up to the U.S.-Mexico border:
114,000 have crossed into the U.S. since October
[2021], according to U.S. Customs and Border
Protection—1% of the island’s entire population.’’);
Julie Watson et al., Charter business thrives as USexpelled Haitians flee Haiti, AP, June 14, 2022,
https://apnews.com/article/covid-health-travelcaribbean-2e5f32f8781a06e74ef7ea7ec639785f;
Julie Watson et al., Haitian trip to Texas border
often starts in South America, AP, Sept. 21, 2021,
https://apnews.com/article/technology-mexicotexas-caribbean-united-states-ac7f598bafd44
b3f95b786d2d800f3ce (‘‘Nearly all Haitians reach
the U.S. on a well-worn route: Fly to Brazil, Chile
or elsewhere in South America [then] move through
Central America and Mexico.’’).
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those arriving by sea would be a
departure from the rest of the rule. The
Departments are therefore considering
whether this departure may be
independently justified. The
Departments believe that this additional
measure could be warranted in light of
the extreme hazard to both migrants and
DHS personnel associated with
maritime migration; the deterrence it
would afford migrants who might
undertake this dangerous journey to
enter the United States irregularly and
thus supplement interdiction efforts; the
availability of lawful, safe, and orderly
pathways for the primary populations at
issue; and the safeguards incorporated
into the rule. Applying the rule’s
rebuttable presumption of asylum
ineligibility to persons who reach the
United States by sea would not impose
a categorical bar to asylum. To the
contrary, the rule would still exempt
noncitizens from the presumption if,
instead of making a dangerous journey
by sea, they arrived at the United States
through a lawful pathway. It would also
exempt certain noncitizens who arrive
by sea, including unaccompanied
children, and provide multiple ways for
noncitizens to rebut the presumption,
including in circumstances where—at
the time the noncitizen entered the
United States—the noncitizen or a
member of their family with whom they
were traveling faced an imminent and
extreme threat to life or safety. The
Departments request comment on how
the various means of rebutting the
presumption—including facing an
‘‘acute medical emergency,’’ ‘‘imminent
and extreme threat to life and safety,’’
and ‘‘especially compelling
circumstances’’—should apply to
noncitizens who reach the United States
by sea. See 8 CFR 208.33(a)(3)(i); 8 CFR
1208.33(a)(3)(i).
The Departments are also considering
whether to extend the geographic scope
of the rule to certain noncitizens who
enter the United States by sea, without
regard to whether they departed from
Mexico, while retaining the requirement
that a noncitizen have traveled through
another country on their way to the
United States. This narrower
application of the rule would limit
covered noncitizens to those who, by
and large, could have sought asylum or
other protection in that other country.
However, this alternative would mean
that Cuban and Haitian nationals who
reach the United States by sea directly
from their country of origin would not
fall within the rule’s compass.
As another alternative, the
Departments are considering whether to
extend the scope of the presumption to
certain noncitizens who enter the
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United States by sea, but only if they
departed from the Caribbean or another
region that presents a heightened risk of
maritime crossings. This alternative may
be more tailored to the specific
geographic regions that have caused the
increase in maritime interdictions in
recent months, but it would not expand
the rule to other regions that could be
a source of maritime crossings in the
future.
Finally, if rates of maritime migration
rise substantially prior to the end of this
comment period or prior to the issuance
of a final rule that responds to these
comments, the Departments intend to
take appropriate action, consistent with
the APA, which may include issuance
of a temporary or interim final rule that
implements one of the proposed
modifications.
VI. Regulatory Requirements
A. Administrative Procedure Act
This final rule is consistent with the
notice-and-comment rulemaking
requirements described at 5 U.S.C.
553(b) and (c). For the reasons
explained below, the Departments have
determined that this rule is exempt from
the 30-day delayed-effective-date
requirement at 5 U.S.C. 553(d).
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1. Foreign Affairs Exemption
This rule is exempt from the APA’s
delayed-effective-date requirement
because it involves a ‘‘foreign affairs
function of the United States.’’ 368 5
U.S.C. 553(a)(1). Courts have held that
this exemption applies when the rule in
question ‘‘is clearly and directly
involved in a foreign affairs
function.’’ 369 In addition, although the
text of the APA does not require an
agency invoking this exemption to show
that such procedures may result in
‘‘definitely undesirable international
consequences,’’ some courts have
required such a showing.370 This rule
satisfies both standards.
The United States must work with
foreign partners to address migration in
the Western Hemisphere region, and
this rule is clearly and directly related
to, and responsive to, ongoing
discussions with and requests by key
foreign partners in the Western
Hemisphere region in two ways. First,
such partners have encouraged the
368 Although the Departments have voluntarily
complied with the APA’s notice and comment
requirements, this rule is exempt from such
requirements pursuant to the foreign affairs
exception as well, for the same reasons that are
described in this section.
369 See, e.g., Mast Indus. v. Regan, 596 F. Supp.
1567, 1582 (C.I.T. 1984) (cleaned up).
370 See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437
(2d Cir. 2008).
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United States to take action to address
unlawful migration to the SWB, which
is particularly necessary now in light of
the anticipated lifting of the Title 42
public health Order.371 And by
responding to these requests, the rule
facilitates a key foreign policy goal—
fostering a hemisphere-wide approach
of addressing migration on a regionwide
basis. Though the specific details of
these discussions are not appropriate for
extensive elaboration here due to the
sensitive nature of government-togovernment discussions, such partners
have expressed concern that the lifting
of the Title 42 public health Order—
which provided an immediate
consequence for many of those
attempting to cross the SWB
irregularly—may be misperceived by
migrants as an indication that the U.S.
border is open, which, in turn, could
spur a surge of irregular migrant flows
through their countries as migrants seek
to enter the United States. One foreign
partner opined that the formation of
caravans in the spring of 2022 were
spurred by rumors of the United States
Government terminating the Title 42
public health Order and then the
officially announced plans to do so.
Such increases in irregular migration
would further strain limited
governmental and nongovernmental
resources in partner nations. Already,
partner nations have expressed
significant concerns about the ways in
which recent flows are challenging their
own local communities and
immigration infrastructure; they have
expressed serious concerns that a
dramatic increase in migrant flows
could be overwhelming.
Some partner countries also have
emphasized the possibility that criminal
human smuggling organizations may
seek to intentionally misrepresent the
end of the Title 42 public health Order
as leading to the opening of the U.S.Mexico border in order to persuade
would-be migrants to participate in
expensive and dangerous human
smuggling schemes. Such activity
would put migrants’ lives in danger and
also contribute to the above-referenced
adverse consequences associated with
increased irregular migratory flows.
In connection with such discussions,
a number of countries have lauded the
sharp reductions in irregular migration
associated with the aforementioned
CHNV processes—which, like this rule,
imposed consequences for irregular
371 See,
e.g., Am. Ass’n of Exps. & Imps. v. United
States, 751 F.2d 1239, 1249 (Fed. Cir. 1985)
(exemption applies where a rule is ‘‘linked
intimately with the Government’s overall political
agenda concerning relations with another
country’’).
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migration alongside the availability of a
lawful, safe, and orderly process for
migrants to travel directly to the United
States. Following the implementation of
the Venezuela process in October 2022,
some countries requested that the
United States implement similar
policies for other nationalities, which
DHS did in January 2023. At the same
time, however, partner nations have
raised concerns that any changes to
these processes or the circumstances in
which they operate—including the
perception that there will be no
consequences for irregular entry once
the Title 42 public health Order is no
longer in place—will undermine their
success.372
Implementation of this rule will
therefore advance top foreign policy
priorities of the United States, by
responding to the aforementioned
discussions with and feedback from
foreign partners and demonstrating U.S.
partnership and commitment to the
shared goals of stabilizing migratory
populations and addressing migration
collectively as a region, both of which
are essential to maintaining strong
bilateral and multilateral
relationships.373 As noted earlier in this
preamble and in the proposed rule,
recent surges in irregular migration,
including overland migration through
the Darie´n Gap, have affected a range of
regional neighbors, including Mexico,
Colombia, Costa Rica, Peru, Ecuador,
and Panama. See, e.g., 88 FR 11710–11.
A further spike in migration following
the lifting of the Title 42 public health
Order risks severely straining relations
with the countries in the region, as each
would be compelled to turn away from
more sustainable policy goals, and
employ its limited resources to address
the humanitarian needs of a significant
influx of irregular migrants.
Further, as described above, the
United States faces constraints in
removing nationals of certain
countries—including Venezuela,
Nicaragua, Cuba, and Haiti—to their
home countries. With limited
exceptions, such nationals can only be
removed to a third country as a result.
International partners have conveyed
that their willingness to receive
increased returns of migrants was
contingent on expanding the model
provided by the Venezuela process,
which decreased irregular migration
throughout the hemisphere by
372 See, e.g., Alfredo Corchado, Ahead of Title
42’s end, U.S.-Mexico Negotiations called ‘intense,’
‘round-the-clock,’ Dallas Morning News, Dec. 13,
2022, https://www.dallasnews.com/news/2022/12/
13/ahead-of-title-42s-end-us-mexico-negotationscalled-intense-round-the-clock/.
373 See L.A. Declaration Fact Sheet.
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increasing options for lawful pathways
and adding consequences for
noncitizens who bypass those
opportunities to travel irregularly to the
United States.374
In short, delaying issuance and
implementation of this rule, including
for purposes of incorporating a 30-day
delayed effective date, would be
inconsistent with the foreign policy
imperative to act now. Such delay
would not only forfeit an opportunity to
fortify bilateral relationships, but would
fail to address, and potentially
exacerbate, DHS’s projections of a surge
in migration across the region following
the lifting of the Title 42 public health
Order. From a U.S. foreign policy
perspective, such outcomes would have
undesirable international consequences.
The Departments’ invocation of the
foreign affairs exemption here is
consistent with recent precedent. For
example, in 2017, DHS published a
notice eliminating an exception to
expedited removal for certain Cuban
nationals, which explained that the
change in policy was consistent with
the foreign affairs exemption because
the change was central to ongoing
negotiations between the two
countries.375 DHS similarly invoked the
foreign affairs exemption more recently,
in connection with the CHNV parole
processes.376
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2. Good Cause
This rule is also exempt from the
APA’s delayed-effective-date
requirement because the Departments
have for good cause found that a delay
associated with that requirement would
be impracticable and contrary to the
public interest.377 The Title 42 public
health Order is ending due to
developments over which the
Departments do not exercise any direct
control. It would be impossible to
incorporate a 30-day delayed effective
date and issue a rule prior to the
374 See The White House, Mexico and United
States Strengthen Joint Humanitarian Plan on
Migration (May 2, 2023) (committing to increase
joint actions to counter human smugglers and
traffickers, address root causes of migration, and
continue to combine expanded lawful pathways
with consequences for irregular migration).
375 See DHS, Eliminating Exception To Expedited
Removal Authority for Cuban Nationals
Encountered in the United States or Arriving by
Sea, 82 FR 4902 (Jan. 17, 2017).
376 See 88 FR 1266 (Jan. 9, 2023); 88 FR 1243 (Jan.
9, 2023); 88 FR 1255 (Jan. 9, 2023); DHS,
Implementation of Changes to the Parole Process for
Venezuelans, 188 FR 1282 (Jan. 9, 2023); 87 FR
63507 (Oct. 19, 2022).
377 5 U.S.C. 553(d)(3). Although the Departments
have voluntarily complied with the APA’s notice
and comment requirements, this rule is exempt
from such requirements pursuant to the good cause
exception at 5 U.S.C. 553(b)(B) as well, for reasons
that are described in this section.
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expiration of the Title 42 public health
Order in that abbreviated time frame. As
described above, such a delay would
greatly exacerbate an urgent border and
national security challenge that DHS has
already taken multiple additional
measures to address, and would miss a
critical opportunity to reduce and divert
the additional flow of irregular
migration that is expected following
lifting of the Title 42 public health
Order.378
First, a 30-day delay of the effective
date would be impracticable and
contrary to the public interest because it
would likely result in a significant
further increase in irregular migration.
As noted above, in recent years, the
Departments, in coordination with other
Executive Branch agencies and regional
neighbors, have undertaken numerous
measures to address such increases,
which have been implemented via
rulemakings,379 voluntary processes
paired with incentives against irregular
migration,380 and a wide range of
significant resource surges and
operational changes. A significant
further increase in irregular migration,
exacerbated by an influx of migrants
from countries such as Venezuela,
Nicaragua, and Cuba, with limited
removal options, and coupled with
DHS’s limited options for processing,
378 The good cause exception to the 30-day
effective date requirement is easier to meet than the
good cause exception for forgoing notice and
comment rulemaking. See Riverbend Farms, Inc. v.
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992)
(noting ‘‘good cause [is] more easily found as to
[the] 30-day waiting period’’ than the exception to
notice and comment procedures)); Am. Fed’n of
Gov’t Emps., AFL–CIO v. Block, 655 F.2d 1153,
1156 (D.C. Cir. 1981); U.S. Steel Corp. v. EPA, 605
F.2d 283, 289–90 (7th Cir. 1979). An agency can
show good cause for eliminating the 30-day delayed
effective date when it demonstrates either urgent
conditions the rule seeks to correct or unavoidable
time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104
(8th Cir. 1977).
379 See, e.g., 87 FR 18078 (Mar. 29, 2022)
(amending regulations to allow U.S. immigration
officials to more promptly consider the asylum
claims of individuals encountered at or near the
SWB while ensuring the fundamental fairness of the
asylum process); 87 FR 30334 (May 18, 2022)
(authorizing an additional 35,000 supplemental H–
2B visas for the second half of FY 2022, of which
11,500 were reserved for nationals of Central
American countries and Haiti); 87 FR 4722 (Jan. 28,
2022) (authorizing an additional 20,000 H–2B visas
for FY 2022, of which 6,500 were reserved for
nationals of Central American countries, with the
addition of Haiti); 87 FR 76818 (Dec. 15, 2022)
(authorizing nearly 65,000 additional visas, of
which 20,000 are reserved for nationals of Central
American countries and Haiti).
380 See, e.g., DHS, Implementation of a Parole
Process for Venezuelans, 87 FR 63507 (Oct. 19,
2022) (parole process for certain Venezuelan
nationals and their immediate family members);
DHS, Implementation of the Uniting for Ukraine
Parole Process, 87 FR 25040 (Apr. 27, 2022) (parole
process for certain Ukrainian nationals and their
immediate family members).
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detaining, or quickly removing such
migrants, would unduly impede DHS’s
ability to fulfill its critical and varied
missions.
Such challenges were evident in the
days following the November 15, 2022,
court decision vacating the Title 42
public health Order.381 Within two days
of the court’s decision, total encounters
at the SWB reached 9,583 in a single
day on November 17, 2022, a 17 percent
increase from the day before.382 The
baseline number of encounters
decreased in March 2023, from April
2022, and also consisted of a much
lower share of nationals from countries
that have stopped or limited returns of
their own nationals.383 A delayed
effective date could result in a
substantial increase in irregular
migration across multiple national
borders, including our own.384 As
detailed above, these levels of irregular
migration risk overwhelming DHS’s
ability to effectively process, detain, and
remove, as appropriate, the migrants
encountered. This, in turn, would result
in potentially dangerous overcrowding
at CBP facilities. The attendant risks to
public safety, health, and welfare
provide good cause to issue this rule
without delay.385
The Departments expect that this
effect would be particularly pronounced
if noncitizens know that there is a
specific 30-day period between the
termination of the Title 42 public health
Order and the effective date of this rule.
That gap would incentivize even more
irregular migration by those seeking to
enter the United States before the
process would take effect. It has long
been recognized that agencies may use
the good cause exception where
significant public harm would result
from using standard APA procedures.386
381 See Huisha-Huisha v. Mayorkas, --- F. Supp.
3d ----, 2022 WL 16948610 (D.D.C. Nov. 15, 2022).
382 OIS analysis of Persist Dataset based on data
through March 31, 2023.
383 Id.
384 DHS SWB Encounter Planning Model
generated April 18, 2023.
385 See, e.g., Hawaii Helicopter Operators Ass’n v.
FAA, 51 F.3d 212, 214 (9th Cir. 1995) (concluding
agency’s ‘‘concern about the threat to public safety’’
justified notice and comment waiver).
386 See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d
87, 94–95 (D.C. Cir. 2012) (noting that the ‘‘good
cause’’ exception ‘‘is appropriately invoked when
the timing and disclosure requirements of the usual
procedures would defeat the purpose of the
proposal—if, for example, announcement of a
proposed rule would enable the sort of financial
manipulation the rule sought to prevent [or] in
order to prevent the amended rule from being
evaded’’ (cleaned up)); DeRieux v. Five Smiths, Inc.,
499 F.2d 1321, 1332 (Temp. Emer. Ct. App. 1975)
(‘‘[W]e are satisfied that there was in fact ‘good
cause’ to find that advance notice of the freeze was
‘impracticable, unnecessary, or contrary to the
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If, for example, advance notice of a
coming price increase would
immediately produce market
dislocations and lead to serious
shortages, advance notice (and
comment) need not be given.387 A
number of cases follow this logic in the
context of economic regulation.388
The same logic applies here, where
the Departments are responding to
exceedingly serious challenges at the
border, and a gap between the
termination of the Title 42 public health
Order and the implementation of this
rule would significantly increase the
incentive, on the part of migrants and
others (such as smugglers), to engage in
actions that would compound those
very challenges. The Departments’
experience has been that in some
circumstances when public
announcements have been made
regarding changes in our immigration
laws and procedures that would restrict
access to immigration benefits to those
attempting to enter the United States
along the U.S.-Mexico land border, there
have been dramatic increases in the
numbers of noncitizens who enter or
attempt to enter the United States.
Smugglers routinely prey on migrants
using perceived changes in domestic
immigration law.389 And those sudden
public interest’ within the meaning of
§ 553(b)(B). . . . Had advance notice issued, it is
apparent that there would have ensued a massive
rush to raise prices and conduct ‘actual
transactions’—or avoid them—before the freeze
deadline.’’ (cleaned up)).
387 See, e.g., Nader v. Sawhill, 514 F.2d 1064,
1068 (Temp. Emer. Ct. App. 1975) (‘‘[W]e think
good cause was present in this case based upon [the
agency’s] concern that the announcement of a price
increase at a future date could have resulted in
producers withholding crude oil from the market
until such time as they could take advantage of the
price increase.’’).
388 See, e.g., Chamber of Commerce of U.S. v.
SEC., 443 F.3d 890, 908 (D.C. Cir. 2006) (‘‘The
[‘good cause’] exception excuses notice and
comment in emergency situations, where delay
could result in serious harm, or when the very
announcement of a proposed rule itself could be
expected to precipitate activity by affected parties
that would harm the public welfare.’’ (citations
omitted)); Mobil Oil Corp. v. Dep’t of Energy, 728
F.2d 1477, 1492 (Temp. Emer. Ct. App. 1983) (‘‘On
a number of occasions . . . this court has held that,
in special circumstances, good cause can exist
when the very announcement of a proposed rule
itself can be expected to precipitate activity by
affected parties that would harm the public
welfare.’’).
389 See Nick Miroff and Carolyn Van Houten, The
Border is Tougher to Cross Than Ever. But There’s
Still One Way into America, Wash. Post (Oct. 24,
2018); See Tech Transparency Project, Inside the
World of Misinformation Targeting Migrants on
Social Media (July 26, 2022), https://
www.techtransparencyproject.org/articles/insideworld-misinformation-targeting-migrants-socialmedia (‘‘A review of social media groups and pages
identified by migrants showed . . . dubious offers
of coyote or legal services, false claims about
conditions along the route, misinformation about
points of entry at which officials waive the rules,
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influxes overload scarce government
resources dedicated to border
security.390
For instance, on February 28, 2020,
the Ninth Circuit lifted a stay of a
nationwide injunction of MPP, a
program implementing the Secretary’s
contiguous return authority under 8
U.S.C. 1225(b)(2)(C).391 Almost
immediately, hundreds of migrants
began massing at POEs across the SWB
attempting to immediately enter the
United States, creating a severe safety
hazard that forced CBP to temporarily
close POEs in whole or in part.392 Many
others requested immediate entry into
the country through their counsel, while
others overwhelmed Border Patrol
agents by attempting to illegally cross
the SWB, with only some being
apprehended successfully.393 Absent
the immediate and resource-intensive
action taken by CBP, the number of
migrants gathered at the border, whether
at or between the POEs, could have
increased dramatically, especially
considering there were approximately
25,000 noncitizens who were in removal
proceedings pursuant to MPP without
scheduled court appearances, as well as
others in Mexico that could have
become aware of CBP’s operational
limitations and sought to exploit
them.394 And while CBP officers took
action to resolve the sudden influx of
migrants at multiple ports and prevent
further deterioration of the situation at
the border, they were diverted away
from other critical missions, including
detecting and confiscating illicit
materials, and guarding efficient trade
and travel.395
By contrast, as detailed above,
immediate implementation of the parole
process for Venezuelans was associated
with a drastic reduction in irregular
migration by Venezuelans. Had the
parole process, and the consequence
that accompanied it (i.e., the return to
Mexico of Venezuelan nationals
encountered irregularly entering the
United States without authorization
between POEs) been announced weeks
prior to its implementation, it likely
would have had the opposite effect,
and baseless rumors about changes to immigration
law.’’).
390 Declaration of Enrique Lucero ¶¶ 6–8, Dkt. 95–
3, Innovation Law Lab v. Wolf, No. 19–15716 (9th
Cir. Mar. 3, 2020); Declaration of Robert E. Perez,
¶ 15, Dkt. 95–2, Innovation Law Lab, No. 19–15716.
391 See Innovation Law Lab v. Wolf, 951 F.3d
1073, 1095 (9th Cir. 2020), vacated as moot sub
nom. Innovation Law Lab v. Mayorkas, 5 F.4th 1099
(9th Cir. 2021).
392 See Declaration of Robert E. Perez, ¶¶ 4–15,
Dkt. 95–2, Innovation Law Lab, No. 19–15716.
393 Id. ¶¶ 4, 8.
394 Id. ¶ 14.
395 Id. ¶ 15.
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resulting in many hundreds and
thousands of Venezuelan nationals
attempting to cross the border between
the POEs before the process went into
effect. See 87 FR at 63516.
The Departments’ determination here
is consistent with past practice. For
example, in addition to the parole
process for Venezuelans described
above, DHS concluded in January 2017
that it was imperative to give immediate
effect to a rule designating Cuban
nationals arriving by air as eligible for
expedited removal because ‘‘[p]repromulgation notice and comment
would . . . endanger[ ] human life and
hav[e] a potential destabilizing effect in
the region.’’ 396 DHS cited the prospect
that ‘‘publication of the rule as a
proposed rule, which would signal a
significant change in policy while
permitting continuation of the exception
for Cuban nationals, could lead to a
surge in migration of Cuban nationals
seeking to travel to and enter the United
States during the period between the
publication of a proposed and a final
rule.’’ 397 DHS found that ‘‘[s]uch a
surge would threaten national security
and public safety by diverting valuable
Government resources from
counterterrorism and homeland security
responsibilities. A surge could also have
a destabilizing effect on the region, thus
weakening the security of the United
States and threatening its international
relations.’’ 398 DHS concluded that ‘‘a
surge could result in significant loss of
human life.’’ 399 Here, the Departments
announced the proposed rule while a
prior restrictive policy remained in
place, but given the impending
termination of the Title 42 public health
Order, there is insufficient time for a
delayed effective date.
Second, a delayed effective date is
contrary to the public interest given that
the anticipated termination of the Title
42 public health Order has drastically
altered the framework governing
processing of migrants. Courts find good
cause satisfied where the immediate
issuance of a rule is necessary to
prevent public harm where a previously
existing regulatory structure has been
set aside by the courts.400 A similar
396 DHS, Eliminating Exception to Expedited
Removal Authority for Cuban Nationals Arriving by
Air, 82 FR 4769, 4770 (Jan. 17, 2017).
397 Id.
398 Id.
399 Id.; accord, e.g., Department of State, Visas:
Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81
FR 5906, 5907 (Feb. 4, 2016) (finding the good
cause exception applicable because of similar shortrun incentive concerns).
400 See, e.g., United States v. Dean, 604 F.3d
1275, 1277–80 (11th Cir. 2010); Mid-Tex Elec.
Coop., Inc. v. FERC, 822 F.2d 1123, 1124 (D.C. Cir.
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circumstance exists here: the Title 42
public health Order is ending based on
factual developments, and the
Departments do not control either those
factual developments or the decision to
recognize those factual developments by
terminating the public health Order.
Until May 11, 2023, the Title 42 public
health Order requires DHS to expel
hundreds of thousands of migrants
without processing them under Title 8.
Once the Title 42 public health Order is
lifted, however, the Government must
pivot, quickly, to process all migrants
under its Title 8 authorities, at a time
when the number of migrants seeking to
cross the SWB without lawful
authorization to do so is expected to
surge significantly. The Departments
therefore find good cause to forgo a
delayed effective date in order to
prevent the adverse consequences
resulting from the termination of the
Title 42 public health Order.
The Departments reiterate that they
have only invoked the foreign affairs
and good cause exceptions for the
delayed-effective-date requirement. The
Departments have solicited public
comments and have given careful
attention to comments that were
received during the comment period, as
reflected in Section III of this preamble.
B. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory
Review)
Executive Order 12866, Executive
Order 13563, and Executive Order
14094, Modernizing Regulatory Review,
88 FR 21879 (Apr. 6, 2023) direct
agencies to assess the costs, benefits,
and transfers of available alternatives,
and, if regulation is necessary, to select
regulatory approaches that maximize
net benefits, including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity. Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility.
The Office of Information and
Regulatory Affairs of OMB reviewed the
rule as a significant regulatory action
under section 3(f)(4) of Executive Order
12866, as amended.
The expected effects of this rule are
discussed above. The rule is expected to
result in significantly reduced
1987), Nat’l Fed’n of Fed. Emps. v. Devine, 671 F.2d
607, 608 (D.C. Cir. 1982), Block, 655 F.2d at 1154;
Bayou Lawn & Landscape Servs. v. Johnson, 173 F.
Supp. 3d 1271, 1284 (N.D. Fla. 2016) (collecting
cases).
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incentives for irregular migration and
illegal smuggling activity, and will help
avert a significant further surge in
irregular migration after the Title 42
public health Order is lifted. The rule
will likely decrease the number of
asylum grants and likely reduce the
amount of time that noncitizens who are
ineligible for asylum and who lack a
reasonable fear of persecution or torture
would be present in the United States.
Noncitizens who establish a reasonable
fear of persecution or torture would still
be able to seek protection in
proceedings before IJs.
The benefits of the rule are expected
to include large-scale reductions in
strains on limited national resources;
preservation of the Departments’
continued ability to safely, humanely,
and effectively enforce and administer
the immigration laws; a reduction in the
role of exploitative transnational
criminal organizations and smugglers;
and improved relationships with, and
enhanced opportunities to coordinate
with and benefit from the migration
policies of, regional neighbors. Some of
these benefits accrue to migrants who
wish to pursue safe, orderly, lawful
pathways and processes, such as the
ability to schedule a time to apply for
admission at a POE. These migrants’
ability to present their claims might
otherwise be hampered by the severe
strain that a further surge in irregular
migration would impose on the
Departments.
The direct costs of the rule are borne
by migrants and the Departments. To
the extent that any migrants are made
ineligible for asylum under the
presumptive condition established by
the rule but would have received
asylum in the absence of this rule, such
an outcome would entail the denial of
asylum and its attendant benefits,
although such persons may continue to
be eligible for statutory withholding of
removal and withholding under the
CAT. Unlike asylees, noncitizens
granted these more limited forms of
protection do not have a path to
citizenship and cannot petition for
certain family members to join them in
the United States.401 Such migrants may
also be required to apply for work
authorization more frequently than an
asylee would. Migrants who choose to
wait in Mexico for a CBP One
401 As discussed previously in Section IV.E.7.ii of
this preamble, the rule includes a specific provision
to ensure that applicants who in section 240
removal proceedings who have a spouse or child
who would be eligible to follow to join them under
section 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A), will be
able to rebut the presumption if the presumption is
the only reason for denying their asylum
application.
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appointment, rather than migrating
irregularly across the southwest land
border or adjacent coastal borders, also
may incur some costs that are discussed
earlier in this preamble, including
potential safety risks for some migrants.
The Departments note, in this regard,
that noncitizens who establish
‘‘exceptionally compelling
circumstances,’’ including an imminent
and extreme threat to life or safety or an
acute medical emergency, can rebut the
presumption against asylum eligibility.
8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). The Departments
further note that there are also potential
benefits for migrants who choose to wait
in Mexico for a CBP One appointment
(for instance, avoiding a dangerous
cross-border journey and interactions
with smugglers).
The rule will also require additional
time for AOs and IJs, during fear
screenings and reviews, respectively, to
inquire into the applicability of the
presumption and whether the
presumption has been rebutted.
Similarly, the rule will require
additional time for IJs during section
240 removal proceedings. However, as
discussed throughout this preamble, the
rule is expected to result in significantly
reduced irregular migration.
Accordingly, the Departments expect
the additional time spent by AOs and IJs
on the rebuttable presumption to be
mitigated by a comparatively smaller
number of credible fear cases than AOs
and IJs would otherwise have been
required to handle in the absence of the
rule.
Other entities, such as legal service
organizations and private attorneys, will
also incur some indirect costs as a result
of the rule, such as familiarization costs
and costs associated with assisting
noncitizens who may be subject to the
rule. There are other potential
downstream effects of the rule,
including effects on NGOs and state and
local entities that interact with
noncitizens, such as by providing
services to such persons or receiving tax
revenues from them. The nature and
scale of such effects will vary by entity
and should be considered relative to the
baseline condition that would exist in
the absence of this rule. As compared to
the baseline condition, this rule is
expected to reduce irregular migration.
The lawful, safe, and orderly
pathways described earlier in this
preamble are authorized separately from
this rule but are expected to yield
significant benefits for noncitizens who
might otherwise seek to migrate
irregularly to the United States. For
instance, the ability to schedule a time
to arrive to apply for admission at POEs
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is expected to significantly improve
CBP’s ability to process noncitizens at
POEs, and available parole processes
allow prospective irregular migrants to
avoid a dangerous and expensive
overland journey in favor of an arrival
by air to the United States. To the extent
that such pathways and this rule result
in a substantial reduction in irregular
migration, the benefits of such pathways
may also accrue to the various entities
that incur costs as a consequence of
irregular migration.
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C. Regulatory Flexibility Act
The RFA requires Federal agencies to
consider the potential impact of
regulations on small entities during the
development of their rules. See 5 U.S.C.
601 et seq. ‘‘Small entities’’ are small
businesses, not-for-profit organizations
that are not dominant in their fields,
and governmental jurisdictions with
populations of less than 50,000. Id.
601(6). This rule does not directly
regulate small entities and is not
expected to have a direct effect on small
entities. Rather, the rule regulates
individuals, and individuals are not
defined as ‘‘small entities’’ by the RFA.
Id. While some employers could
experience costs or transfer effects,
these impacts would be indirect. In the
proposed rule, the Departments certified
that the proposed rule would not have
a significant economic impact on a
substantial number of small entities.
The Departments nonetheless welcomed
comments regarding potential impacts
on small entities. The Departments
discuss comments from small entities
earlier in the preamble, including in
connection with the RFA. No such
comments identified small entities that
are subject to the rule within the
meaning of the RFA. Accordingly, and
for the same reasons stated in the
proposed rule, the Departments certify
that this rule will not have a significant
economic impact on a substantial
number of small entities.
D. Unfunded Mandates Reform Act of
1995
UMRA is intended, among other
things, to curb the practice of imposing
unfunded Federal mandates on State,
local, and Tribal governments. Title II of
UMRA requires each Federal agency to
prepare a written statement assessing
the effects of any Federal mandate in a
proposed or final agency rule that may
directly result in a $100 million or more
expenditure (adjusted annually for
inflation) in any one year by State, local,
and Tribal governments, in the
aggregate, or by the private sector. 2
U.S.C. 1532(a). The inflation-adjusted
value of $100 million in 1995 was
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approximately $177.8 million in 2021
based on the Consumer Price Index for
All Urban Consumers (CPI–U).402
The term ‘‘Federal mandate’’ means a
Federal intergovernmental mandate or a
Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6). A ‘‘Federal
intergovernmental mandate’’ in turn is 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 id. 658(5). And
the term ‘‘Federal private sector
mandate’’ refers to 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 id. 658(7).
This rule does not contain a Federal
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 the
entity’s voluntary choices, and the
voluntary choices of others, and would
not be a consequence of an enforceable
duty imposed by this proposed rule.
Similarly, any costs or transfer effects
on State and local governments would
not result from a Federal mandate as
that term is defined under UMRA. The
requirements of title II of UMRA,
therefore, do not apply, and the
Departments have not prepared a
statement under UMRA.
E. Congressional Review Act
OMB has determined that this rule is
not a major rule as defined by section
804 of the Congressional Review Act. 5
U.S.C. 804. This rule will not result in
an annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets. The rule will be
submitted to Congress and GAO
consistent with the Congressional
Review Act’s requirements no later than
its effective date.
F. Executive Order 13132 (Federalism)
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
402 See BLS, Historical Consumer Price Index for
All Urban Consumers (CPI–U): U.S. City Average,
All Items by Month (Dec. 2021), https://
www.bls.gov/cpi/tables/supplemental-files/
historical-cpi-u-202112.pdf.
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on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, the Departments believe
that this proposed rule would not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement.
G. Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform, 61 FR 4729 (Feb. 5,
1996).
H. Family Assessment
The Departments have reviewed this
rule in line with the requirements of
section 654 of the Treasury and General
Government Appropriations Act, 1999,
enacted as part of the Omnibus
Consolidated and Emergency
Supplemental Appropriations Act,
1999. The Departments have reviewed
the criteria specified in section
654(c)(1), by evaluating whether this
regulatory action (1) impacts the
stability or safety of the family,
particularly in terms of marital
commitment; (2) impacts the authority
of parents in the education, nurture, and
supervision of their children; (3) helps
the family perform its functions; (4)
affects disposable income or poverty of
families and children; (5) only
financially impacts families, if at all, to
the extent such impacts are justified; (6)
may be carried out by State or local
governments or by the family; or (7)
establishes a policy concerning the
relationship between the behavior and
personal responsibility of youth and the
norms of society. If the agency
determines a regulation may negatively
affect family well-being, then the agency
must provide an adequate rationale for
its implementation.
The Departments have determined
that the implementation of this rule will
not impose a negative impact on family
well-being or the autonomy or integrity
of the family as an institution. Under
the rule, adjudicators would consider
the circumstances of family members
traveling together when determining
whether noncitizens are not subject to
the presumption in §§ 208.33(a)(1) and
1208.33(a). The presumption will not
apply to a noncitizen if the noncitizen
or a member of the noncitizen’s family
who is traveling with the noncitizen
establishes one of the conditions in
§ 208.33(a)(1)(i) through (iii). Similarly,
the presumption in paragraph (a)(1) of
those sections would be rebutted if the
noncitizen demonstrates that, at the
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time of entry, the noncitizen or a
member of the noncitizen’s family who
is traveling with the noncitizen was
subject to one of the circumstances
enumerated in paragraph (a)(3).
Additionally, to protect against family
separation, the Departments have
determined that a principal applicant
establishes an exceptionally compelling
circumstance that rebuts the
presumption of ineligibility for asylum
where the principal asylum applicant is
eligible for statutory withholding of
removal or CAT withholding and would
be granted asylum but for the lawful
pathways rebuttable presumption, and
where denial of asylum on that ground
alone would lead to the applicant’s
family being or remaining separated
because an accompanying spouse or
child would not qualify for asylum or
other protection from removal on their
own, or the principal asylum applicant
has a spouse or child who would be
eligible to follow to join that applicant
if the applicant were not subject to the
presumption. See E.O. 14011,
Establishment of Interagency Task Force
on the Reunification of Families, 86 FR
8273, 8273 (Feb. 5, 2021) (‘‘It is the
policy of my Administration to respect
and value the integrity of families
seeking to enter the United States.’’).
I. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This rule does not have ‘‘tribal
implications’’ because it does not have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
E.O. 13175, Consultation and
Coordination With Indian Tribal
Governments, 65 FR 67249 (Nov. 6,
2000). Accordingly, Executive Order
13175 requires no further agency action
or analysis.
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J. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq. the
Departments must submit to OMB, for
review and approval, any collection of
information contained in a rule, unless
otherwise exempt. See Public Law 104–
13, 109 Stat. 163 (May 22, 1995). The
proposed rule proposed a revision to a
collection of information under OMB
Control Number 1651–0140, Collection
of Advance Information from Certain
Undocumented Individuals on the Land
Border. Comments pertinent to the
collection of information are discussed
earlier in this preamble.
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As discussed in Section IV.E.3.ii.b of
this preamble, CBP will transition CBP
One scheduling to a daily appointment
allocation process to allow noncitizens
additional time to complete the process.
CBP has revised the burden estimate for
this collection consistent with this
change. CBP continues to make
improvements to the app based on
stakeholder feedback.
Overview of information collection:
(1) Type of Information Collection:
Revision of a Currently Approved
Collection.
(2) Title of the Form/Collection:
Collection of Advance Information from
Certain Undocumented Individuals on
the Land Border.
(3) Agency form number, if any, and
the applicable component of DHS
sponsoring the collection: CBP.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract:
Primary: Individual undocumented
noncitizens. Under this collection, CBP
collects certain biographic and
biometric information from
undocumented noncitizens prior to
their arrival at a POE, to streamline their
processing at the POE. The requested
information is that which CBP would
otherwise collect from these individuals
during primary and/or secondary
processing. This information is
provided by undocumented noncitizens,
directly or through NGOs and
International Organizations. Providing
this information reduces the amount of
data entered by CBP officers and the
corresponding time required to process
an undocumented noncitizen.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: This information collection is
divided into three parts. The estimated
annual number of respondents for the
registration in the CBP One app is
500,000 and the estimated time burden
per response is 12 minutes. The
estimated annual number of
respondents for the daily opt-in for
appointments is 500,000 and the
estimated time burden per response is 1
minutes. The estimated annual number
of respondents for the confirmation of
appointment in the app is 456,250 and
the estimated time burden per response
is 3 minutes.
(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 372,813 hours.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
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31449
cost burden associated with this
collection of information is $7,605,385.
List of Subjects
8 CFR Part 208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 1208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
Regulatory Amendments
DEPARTMENT OF HOMELAND
SECURITY
Accordingly, for the reasons set forth
in the preamble, the Secretary of
Homeland Security amends 8 CFR part
208 as follows:
PART 208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
1. The authority citation for part 208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Pub. L. 110–229; 8
CFR part 2; Pub. L. 115–218.
2. Amend § 208.13 by removing and
reserving paragraphs (c)(3), (4), and (5);
adding and reserving paragraph (e); and
adding paragraph (f), to read as follows:
■
§ 208.13
Establishing asylum eligibility.
*
*
*
*
*
(c) * * *
(3)–(5) [Reserved]
*
*
*
*
*
(e) [Reserved]
(f) Lawful pathways condition. For
applications filed by aliens who entered
the United States between May 11,
2023, and May 11, 2025, also refer to the
provisions on asylum eligibility
described in § 208.33.
§ 208.30
[Amended]
3. Amend § 208.30(e)(5) by:
a. Amending paragraph (e)(5)(i) by
removing the phrase ‘‘paragraphs
(e)(5)(ii) through (iv), or’’ from the first
sentence;
■ b. Removing paragraphs (e)(5)(ii) and
(iii); and
■ c. Redesignating paragraph (e)(5)(i) as
(e)(5).
■
■
4. Add subpart C, consisting of
§ 208.33, to read as follows:
■
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Subpart C—Lawful Pathways and
Asylum Eligibility for Certain Aliens
Who Entered Between May 11, 2023,
and May 11, 2025
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§ 208.33 Lawful pathways condition on
asylum eligibility.
Notwithstanding any contrary section
of this part, including §§ 208.2, 208.13,
and 208.30—
(a) Condition on eligibility. (1)
Applicability. A rebuttable presumption
of ineligibility for asylum applies to an
alien who enters the United States from
Mexico at the southwest land border or
adjacent coastal borders without
documents sufficient for lawful
admission as described in section
212(a)(7) of the Act and whose entry
was:
(i) Between May 11, 2023, and May
11, 2025,
(ii) Subsequent to the end of
implementation of the Title 42 public
health Order issued on August 2, 2021,
and related prior orders issued pursuant
to the authorities in sections 362 and
365 of the Public Health Service Act (42
U.S.C. 265, 268) and the implementing
regulation at 42 CFR 71.40, and
(iii) After the alien traveled through a
country other than the alien’s country of
citizenship, nationality, or, if stateless,
last habitual residence, that is a party to
the 1951 United Nations Convention
relating to the Status of Refugees or the
1967 Protocol relating to the Status of
Refugees.
(2) Exceptions to applicability of the
rebuttable presumption. The rebuttable
presumption described in paragraph
(a)(1) of this section does not apply if:
(i) The alien was, at the time of entry,
an unaccompanied alien child as
defined in 6 U.S.C. 279(g)(2); or
(ii) The alien, or a member of the
alien’s family as described in § 208.30(c)
with whom the alien is traveling:
(A) Was provided appropriate
authorization to travel to the United
States to seek parole, pursuant to a DHSapproved parole process;
(B) Presented at a port of entry,
pursuant to a pre-scheduled time and
place, or presented at a port of entry
without a pre-scheduled time and place,
if the alien demonstrates by a
preponderance of the evidence that it
was not possible to access or use the
DHS scheduling system due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle; or
(C) Sought asylum or other protection
in a country through which the alien
traveled and received a final decision
denying that application. A final
decision includes any denial by a
foreign government of the applicant’s
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claim for asylum or other protection
through one or more of that
government’s pathways for that claim. A
final decision does not include a
determination by a foreign government
that the alien abandoned the claim.
(3) Rebuttal of the presumption. (i) An
alien subject to the presumption
described in paragraph (a)(1) of this
section can rebut the presumption by
demonstrating by a preponderance of
the evidence that exceptionally
compelling circumstances exist,
including if the alien demonstrates that,
at the time of entry, the alien or a
member of the alien’s family as
described in § 208.30(c) with whom the
alien is traveling:
(A) Faced an acute medical
emergency;
(B) Faced an imminent and extreme
threat to life or safety, such as an
imminent threat of rape, kidnapping,
torture, or murder; or
(C) Satisfied the definition of ‘‘victim
of a severe form of trafficking in
persons’’ provided in § 214.11(a) of this
chapter.
(ii) An alien who demonstrates by a
preponderance of the evidence any of
the circumstances in paragraph (a)(3)(i)
of this section shall necessarily rebut
the presumption in paragraph (a)(1) of
this section.
(b) Application in credible fear
determinations—(1) Initial
determination. The asylum officer shall
first determine whether the alien is
covered by the presumption in
paragraph (a)(1) of this section and, if
so, whether the alien has rebutted the
presumption in accordance with
paragraph (a)(3) of this section.
(i) If the alien is covered by the
presumption in paragraph (a)(1) of this
section and fails to rebut the
presumption in accordance with
paragraph (a)(3) of this section, then the
asylum officer shall enter a negative
credible fear determination with respect
to the alien’s asylum claim and continue
to consider the alien’s claim under
paragraph (b)(2) of this section.
(ii) If the alien is not covered by the
presumption in paragraph (a)(1) of this
section or has rebutted the presumption
in accordance with paragraph (a)(3) of
this section, the asylum officer shall
follow the procedures in § 208.30.
(2) Additional procedures. (i) In cases
in which the asylum officer enters a
negative credible fear determination
under paragraph (b)(1)(i) of this section,
the asylum officer will assess whether
the alien has established a reasonable
possibility of persecution (meaning a
reasonable possibility of being
persecuted because of their race,
religion, nationality, membership in a
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particular social group, or political
opinion) or torture, with respect to the
identified country or countries of
removal identified pursuant to section
241(b) of the Act.
(ii) In cases described in paragraph
(b)(2)(i) of this section, if the alien
establishes a reasonable possibility of
persecution or torture with respect to
the identified country or countries of
removal, the Department will issue a
Form I–862, Notice to Appear.
(iii) In cases described in paragraph
(b)(2)(i) of this section, if an alien fails
to establish a reasonable possibility of
persecution or torture with respect to
the identified country or countries of
removal, the asylum officer will provide
the alien with a written notice of
decision and inquire whether the alien
wishes to have an immigration judge
review the negative credible fear
determinations.
(iv) The alien must indicate whether
he or she desires such review on a
Record of Negative Fear Finding and
Request for Review by Immigration
Judge.
(v) Only if the alien requests such
review by so indicating on the Record
of Negative Fear shall the asylum officer
serve the alien with a Notice of Referral
to Immigration Judge. The record of
determination, including copies of the
Notice of Referral to Immigration Judge,
the asylum officer’s notes, the summary
of the material facts, and other materials
upon which the determination was
based shall be provided to the
immigration judge with the negative
determination. Immigration judges will
evaluate the case as provided in 8 CFR
1208.33(b). The case shall then proceed
as set forth in paragraphs (b)(2)(v)(A)
through (C) of this section.
(A) Where the immigration judge
issues a positive credible fear
determination under 8 CFR
1208.33(b)(2)(i), the case shall proceed
under 8 CFR 1208.30(g)(2)(iv)(B).
(B) Where the immigration judge
issues a positive credible fear
determination under 8 CFR
1208.33(b)(2)(ii), DHS shall issue a Form
I–862, Notice to Appear, to commence
removal proceedings under section 240
of the Act.
(C) Where the immigration judge
issues a negative credible fear
determination, the case shall be
returned to DHS for removal of the
alien. No appeal shall lie from the
immigration judge’s decision and no
request for reconsideration may be
submitted to USCIS. Nevertheless,
USCIS may, in its sole discretion,
reconsider a negative determination.
(c) Continuing applicability of
condition on eligibility. (1) Subject to
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paragraph (c)(2) of this section, the
condition on asylum eligibility in
paragraph (a)(1) of this section shall
apply to any asylum application filed by
an alien who entered the United States
during the time and in the manner
specified in paragraph (a)(1) of this
section and who is not covered by an
exception in paragraph (a)(2) of this
section, regardless of when the
application is filed and adjudicated.
(2) The conditions on asylum
eligibility in paragraph (a)(1) of this
section shall not apply to an asylum
application filed by an alien described
in paragraph (c)(1) of this section if the
asylum application is filed after May 11,
2025, the alien was under the age of 18
at the time of the entry referenced in
paragraph (c)(1) of this section, and the
alien is applying for asylum as a
principal applicant.
(d) Severability. The Department
intends that any provision of this
section held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstance, should
be construed so as to continue to give
the maximum effect to the provision
permitted by law, unless such holding
is that the provision is wholly invalid
and unenforceable, in which event the
provision should be severed from the
remainder of this section and the
holding should not affect the remainder
of this section or the application of the
provision to persons not similarly
situated or to dissimilar circumstances.
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth
in the preamble, the Attorney General
amends 8 CFR parts 1003 and 1208 as
follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
5. The authority citation for part 1003
continues to read as follows:
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■
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182,
1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
section 203 of Pub. L. 105–100, 111 Stat.
2196–200; sections 1506 and 1510 of Pub. L.
106–386, 114 Stat. 1527–29, 1531–32; section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
326 to –328.
§ 1003.42
[Amended]
6. Amend § 1003.42 by removing
paragraphs (d)(2) and (3) and
redesignating paragraph (d)(1) as
paragraph (d).
■
VerDate Sep<11>2014
18:01 May 15, 2023
Jkt 259001
PART 1208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
7. The authority citation for part 1208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Pub. L. 110–229; Pub.
L. 115–218.
8. Amend § 1208.13 by removing and
reserving paragraphs (c)(3), (4), and (5),
and by adding paragraph (f), to read as
follows:
■
§ 1208.13
Establishing asylum eligibility.
*
*
*
*
*
(c) * * *
(3)–(5) [Reserved]
*
*
*
*
*
(f) Lawful pathways condition. For
applications filed by aliens who entered
the United States between May 11,
2023, and May 11, 2025, also refer to the
provisions on asylum eligibility
described in § 1208.33.
§ 1208.30
[Amended]
9. Amend § 1208.30 by removing and
reserving paragraph (g)(1).
■ 10. Add subpart C, consisting of
§ 1208.33, to read as follows:
■
Subpart C—Lawful Pathways and
Asylum Eligibility for Certain Aliens
Who Entered Between May 11, 2023,
and May 11, 2025
§ 1208.33 Lawful pathways condition on
asylum eligibility.
Notwithstanding any contrary section
of this part, including §§ 1208.2,
1208.13, and 1208.30—
(a) Condition on eligibility. (1)
Applicability. A rebuttable presumption
of ineligibility for asylum applies to an
alien who enters the United States from
Mexico at the southwest land border or
adjacent coastal borders without
documents sufficient for lawful
admission as described in section
212(a)(7) of the Act and whose entry
was:
(i) Between May 11, 2023, and May
11, 2025,
(ii) Subsequent to the end of
implementation of the Title 42 public
health Order issued on August 2, 2021,
and related prior orders issued pursuant
to the authorities in sections 362 and
365 of the Public Health Service Act (42
U.S.C. 265, 268) and the implementing
regulation at 42 CFR 71.40, and
(iii) After the alien traveled through a
country other than the alien’s country of
citizenship, nationality, or, if stateless,
last habitual residence, that is a party to
the 1951 United Nations Convention
relating to the Status of Refugees or the
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Fmt 4701
Sfmt 4700
31451
1967 Protocol relating to the Status of
Refugees.
(2) Exceptions to applicability of the
rebuttable presumption. The rebuttable
presumption described in paragraph
(a)(1) of this section does not apply if:
(i) The alien was, at the time of entry,
an unaccompanied alien child as
defined in 6 U.S.C. 279(g)(2); or
(ii) The alien, or a member of the
alien’s family as described in § 208.30(c)
with whom the alien is traveling:
(A) Was provided appropriate
authorization to travel to the United
States to seek parole, pursuant to a DHSapproved parole process;
(B) Presented at a port of entry,
pursuant to a pre-scheduled time and
place, or presented at a port of entry
without a pre-scheduled time and place,
if the alien demonstrates by a
preponderance of the evidence that it
was not possible to access or use the
DHS scheduling system due to language
barrier, illiteracy, significant technical
failure, or other ongoing and serious
obstacle; or
(C) Sought asylum or other protection
in a country through which the alien
traveled and received a final decision
denying that application. A final
decision includes any denial by a
foreign government of the applicant’s
claim for asylum or other protection
through one or more of that
government’s pathways for that claim. A
final decision does not include a
determination by a foreign government
that the alien abandoned the claim.
(3) Rebuttal of the presumption. (i)
The presumption in paragraph (a)(1) of
this section can be rebutted if an alien
demonstrates by a preponderance of the
evidence that exceptionally compelling
circumstances exist, including if the
alien demonstrates that, at the time of
entry, the alien or a member of the
alien’s family as described in § 208.30(c)
with whom the alien is traveling:
(A) Faced an acute medical
emergency;
(B) Faced an imminent and extreme
threat to life or safety, such as an
imminent threat of rape, kidnapping,
torture, or murder; or
(C) Satisfied the definition of ‘‘victim
of a severe form of trafficking in
persons’’ provided in 8 CFR 214.11(a).
(ii) An alien who demonstrates by a
preponderance of the evidence any of
the circumstances in paragraph (a)(3)(i)
of this section shall necessarily rebut
the presumption in paragraph (a)(1) of
this section.
(b) Application in credible fear
determinations. (1) Where an asylum
officer has issued a negative credible
fear determination pursuant to 8 CFR
208.33(b), and the alien has requested
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immigration judge review of that
credible fear determination, the
immigration judge shall evaluate the
case de novo, as specified in paragraph
(b)(2) of this section. In doing so, the
immigration judge shall take into
account the credibility of the statements
made by the alien in support of the
alien’s claim and such other facts as are
known to the immigration judge.
(2) The immigration judge shall first
determine whether the alien is covered
by the presumption at 8 CFR
208.33(a)(1) and 1208.33(a)(1) and, if so,
whether the alien has rebutted the
presumption in accordance with 8 CFR
208.33(a)(3) and 1208.33(a)(3).
(i) Where the immigration judge
determines that the alien is not covered
by the presumption, or that the
presumption has been rebutted, the
immigration judge shall further
determine, consistent with § 1208.30,
whether the alien has established a
significant possibility of eligibility for
asylum under section 208 of the Act,
withholding of removal under section
241(b)(3) of the Act, or withholding of
removal under the Convention Against
Torture. Where the immigration judge
determines that the alien has
established a significant possibility of
eligibility for one of those forms of relief
or protection, the immigration judge
shall issue a positive credible fear
finding. Where the immigration judge
determines that the alien has not
established a significant possibility of
eligibility for any of those forms of relief
or protection, the immigration judge
shall issue a negative credible fear
finding.
(ii) Where the immigration judge
determines that the alien is covered by
the presumption and that the
presumption has not been rebutted, the
immigration judge shall further
determine whether the alien has
established a reasonable possibility of
persecution (meaning a reasonable
possibility of being persecuted because
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18:01 May 15, 2023
Jkt 259001
of their race, religion, nationality,
political opinion, or membership in a
particular social group) or torture.
Where the immigration judge
determines that the alien has
established a reasonable possibility of
persecution or torture, the immigration
judge shall issue a positive credible fear
finding. Where the immigration judge
determines that the alien has not
established a reasonable possibility of
persecution or torture, the immigration
judge shall issue a negative credible fear
finding.
(3) Following the immigration judge’s
determination, the case will proceed as
indicated in 8 CFR 208.33(b)(2)(v)(A)
through (C).
(4) If, under 8 CFR 208.33(b)(2), DHS
issues a Form I–862, Notice to Appear,
to commence removal proceedings
under section 240 of the Act, the alien
may apply for asylum, withholding of
removal under section 241(b)(3) of the
Act, withholding of removal under the
Convention Against Torture, or any
other form of relief or protection for
which the alien is eligible during those
removal proceedings.
(c) Family unity and removal
proceedings. In removal proceedings
under section 240 of the Act, where a
principal asylum applicant is eligible
for withholding of removal under
section 241(b)(3) of the Act or
withholding of removal under
§ 1208.16(c)(2) and would be granted
asylum but for the presumption in
paragraph (a)(1) of this section, and
where an accompanying spouse or child
as defined in section 208(b)(3)(A) of the
Act does not independently qualify for
asylum or other protection from removal
or the principal asylum applicant has a
spouse or child who would be eligible
to follow to join that applicant as
described in section 208(b)(3)(A) of the
Act, the presumption shall be deemed
rebutted as an exceptionally compelling
circumstance in accordance with
paragraph (a)(3) of this section.
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Fmt 4701
Sfmt 9990
(d) Continuing applicability of
condition on eligibility. (1) Subject to
paragraph (d)(2) of this section, the
condition on asylum eligibility in
paragraph (a)(1) of this section shall
apply to any asylum application filed by
an alien who entered the United States
during the time and in the manner
specified in paragraph (a)(1) of this
section and who is not covered by an
exception in paragraph (a)(2) of this
section, regardless of when the
application is filed and adjudicated.
(2) The conditions on asylum
eligibility in paragraph (a)(1) of this
section shall not apply to an asylum
application filed by an alien described
in paragraph (d)(1) of this section if the
asylum application is filed after May 11,
2025, the alien was under the age of 18
at the time of the entry referenced in
paragraph (d)(1) of this section, and the
alien is applying for asylum as a
principal applicant.
(e) Severability. The Department
intends that any provision of this
section held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstance, should
be construed so as to continue to give
the maximum effect to the provision
permitted by law, unless such holding
is that the provision is wholly invalid
and unenforceable, in which event the
provision should be severed from the
remainder of this section and the
holding should not affect the remainder
of this section or the application of the
provision to persons not similarly
situated or to dissimilar circumstances.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
Dated: May 8, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023–10146 Filed 5–10–23; 8:45 am]
BILLING CODE 9111–97–P; 4410–30–P
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]]>Agencies
[Federal Register Volume 88, Number 94 (Tuesday, May 16, 2023)]
[Rules and Regulations]
[Pages 31314-31452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10146]
[[Page 31313]]
Vol. 88
Tuesday,
No. 94
May 16, 2023
Part II
Department of Homeland Security
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8 CFR Part 208
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1003 and 1208
Circumvention of Lawful Pathways; Final Rule
Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Rules
and Regulations
[[Page 31314]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2744-23; Docket No: USCIS 2022-0016]
RIN 1615-AC83
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1208
[A.G. Order No. 5660-2023]
RIN 1125-AB26
Circumvention of Lawful Pathways
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Final rule; request for comments on expanded applicability in
maritime context.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (``DHS'') and the
Department of Justice (``DOJ'') are issuing a final rule in
anticipation of a potential surge of migration at the southwest border
(``SWB'') of the United States following the termination of the Centers
for Disease Control and Prevention's (``CDC'') public health Order. The
rule encourages migrants to avail themselves of lawful, safe, and
orderly pathways into the United States, or otherwise to seek asylum or
other protection in another country through which they travel, thereby
reducing reliance on human smuggling networks that exploit migrants for
financial gain. The rule does so by introducing a rebuttable
presumption of asylum ineligibility for certain noncitizens who neither
avail themselves of a lawful, safe, and orderly pathway to the United
States nor seek asylum or other protection in a country through which
they travel. In the absence of such a measure, which would apply only
to those who enter at the southwest land border or adjacent coastal
borders during a limited, specified date range, the number of migrants
expected to travel without authorization to the United States would be
expected to increase significantly, to a level that risks undermining
the Departments' continued ability to safely, effectively, and humanely
enforce and administer U.S. immigration law, including the asylum
system, in the face of exceptionally challenging circumstances. Coupled
with an expansion of lawful, safe, and orderly pathways into the United
States, the Departments expect the rule to lead to a reduction in the
number of migrants who seek to cross the SWB without authorization to
enter, thereby reducing the reliance by migrants on dangerous human
smuggling networks, protecting against extreme overcrowding in border
facilities, and helping to ensure that the processing of migrants
seeking protection in the United States is done in an effective,
humane, and efficient manner. In addition, the Departments are
requesting comment on whether applicability of the rebuttable
presumption should be extended to noncitizens who enter the United
States without documents sufficient for lawful admission during the
same temporary time period at a maritime border.
DATES:
Effective date: This rule is effective on May 11, 2023.
Comment period for solicited comments: Comments on expanded
applicability in maritime context identified in Section V of this
preamble must be submitted on or before June 15, 2023. The electronic
Federal Docket Management System will accept comments before midnight
eastern time at the end of that day.
ADDRESSES:
Docket: To view comments on the proposed rule that preceded this
rule, search for docket number USCIS 2022-0016 on the Federal
eRulemaking Portal at https://www.regulations.gov.
Comment period for solicited additional comments: You may submit
comments on the specific issue identified in Section V of this preamble
via the electronic Federal Docket Management System at https://www.regulations.gov, to DHS Docket Number USCIS 2022-0016. 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 rulemaking 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 or USB drives. The Departments are not accepting mailed
comments at this time. If you cannot submit your comment by using
https://www.regulations.gov, please contact the 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 toll-free call) for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Director, Border and Immigration Policy,
Office of Strategy, Policy, and Plans, U.S. Department of Homeland
Security; telephone (202) 447-3459 (not a toll-free call).
For Executive Office for Immigration Review (``EOIR''): Lauren
Alder Reid, Assistant Director, Office of Policy, EOIR, Department of
Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703)
305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on the specific
issue identified in Section V of this preamble by submitting relevant
written data, views, or arguments. To provide the most assistance to
the Departments, comments should explain the reason for any
recommendation and include data, information, or authority that
supports the recommended course of action. Comments must be submitted
in English, or an English translation must be provided. 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 rulemaking and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must submit it to DHS
Docket Number USCIS 2022-0016. All submissions may be posted, without
change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to the
Departments. The Departments may withhold information provided in
comments from public viewing that they determine may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at https://www.regulations.gov.
II. Executive Summary
A. Purpose of Action
Economic and political instability around the world is fueling the
highest
[[Page 31315]]
levels of migration since World War II, including in the Western
Hemisphere. Analysis by the DHS Office of Immigration Statistics
(``OIS'') found that even while CDC's Title 42 public health Order \1\
has been in place, encounters at our SWB \2\--referring to the number
of times U.S. officials encounter noncitizens \3\ attempting to cross
the SWB of the United States without authorization to do so--reached an
all-time high in 2022, driven in large part by an unprecedented exodus
of migrants at different times from countries such as Brazil, Colombia,
Cuba, Ecuador, Haiti, Nicaragua, Peru, and Venezuela.\4\ The U.S.
Border Patrol (``USBP'') completed 221,710 encounters between ports of
entry in December 2022, second only to May 2022 (224,371 encounters)
for the most monthly encounters since at least Fiscal Year (``FY'')
2000 (the period for which detailed records are available), and very
likely the most ever.\5\ Daily encounters between Ports of Entry
(``POEs'') averaged 7,152 for December 2022 and exceeded 8,000 per day
11 times during the month, as compared to average daily encounters of
1,977 for all of 2000-2019 and average daily encounters of 1,265 in the
immediate pre-pandemic period, 2014-2019.\6\ Smuggling networks enable
and exploit this unprecedented movement of people, putting migrants'
lives at risk for smugglers' financial gain.\7\ Meanwhile, the current
asylum system--in which a high number of migrants are initially
determined eligible to pursue their claims, even though most ultimately
are not granted asylum in the subsequent EOIR removal proceedings \8\--
has contributed to a growing backlog of cases awaiting review by asylum
officers (``AOs'') and immigration judges (``IJs''). The practical
result of this growing backlog is that those with meritorious claims
may have to wait years for their claims to be granted, while
individuals who are ultimately denied protection may spend years in the
United States before being issued a final order of removal.\9\ As the
demographics of border encounters have shifted in recent years to
include larger numbers of non-Mexicans--who are far more likely to
assert asylum claims--and as the time required to process and remove
noncitizens ineligible for protection has grown (during which
individuals may become eligible to apply for employment authorization),
the deterrent effect of apprehending noncitizens at the SWB has become
more limited.\10\
---------------------------------------------------------------------------
\1\ See Public Health Determination and Order Regarding
Suspending the Right to Introduce Certain Persons from Countries
Where a Quarantinable Communicable Disease Exists, 87 FR 19941,
19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 public
health Orders, which ``suspend[ ] the right to introduce certain
persons into the United States from countries or places where the
quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-
19'').
\2\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB,'' ``the southern
border,'' ``U.S.-Mexico border,'' or ``the land border with
Mexico.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. The ``southern border'' is
both a land and maritime border extending from beyond California to
the west to beyond Florida to the east. This rule applies along the
entirety of the U.S. land border with Mexico, referred to in the
regulatory text as the ``southwest land border,'' but the
Departments use different terms in the preamble to describe the
border. This is in large part to reflect the source material
supporting the rule, but the Departments believe that the factual
circumstances described in the preamble call for applying the rule
across the entirety of the U.S. land border with Mexico, referred to
throughout as the ``SWB.'' As discussed in greater detail below, the
Departments believe that the factual circumstances described in this
preamble call for applying the rule to coastal borders adjacent to
that land border as well; accordingly, this final rule applies to
those who enter the United States from Mexico, whether at the
southwest land border or adjacent coastal borders.
\3\ For purposes of this discussion, the Departments use the
term ``noncitizen'' to be synonymous with the term ``alien'' as it
is used in the Immigration and Nationality Act. See INA 101(a)(3), 8
U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020).
\4\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023; OIS analysis of historic U.S. Border Patrol data.
\5\ OIS analysis of OIS Production data based on data through
March 31, 2023.
\6\ OIS analysis of OIS Production data for fiscal year (``FY'')
2000-March 2023 and OIS Yearbook data for FY 1925-FY 1999. As
discussed further below, daily encounters between ports of entry
fell sharply in January 2023 following the launch of the Cuba,
Haiti, and Nicaragua parole processes, and daily encounters between
ports of entry at the SWB averaged just over 5,200 a day the 30 days
ending April 10, 2023. OIS analysis of Unified Immigration Portal
(UIP) data pulled on April 13, 2023.
\7\ Miriam Jordan, Smuggling Migrants at the Border Now a
Billion-Dollar Business, N.Y. Times, July 25, 2022, https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html.
\8\ See EOIR, Executive Office for Immigration Review
Adjudication Statistics: Asylum Decision and Filing Rates in Cases
Originating with a Credible Fear Claim (Jan. 16, 2023), https://www.justice.gov/eoir/page/file/1062976/download. The EOIR
adjudication outcome statistics report on the total number of cases
originating with credible fear claims resolved on any ground in a
FY, without regard to whether an asylum claim was adjudicated. The
asylum grant rate is a percentage of that total number of cases.
\9\ OIS analysis of EOIR data as of March 31, 2023.
\10\ For noncitizens encountered at the SWB in FY 2014-FY 2019
who were placed in expedited removal, nearly 6 percent of Mexican
nationals made fear claims that were referred to U.S. Citizenship
and Immigration Services for adjudication, compared to nearly 57
percent of people from Northern Central America (i.e., El Salvador,
Guatemala, and Honduras), and just over 90 percent of all other
nationalities. OIS analysis of Enforcement Lifecycle data as of
December 31, 2022. Of note, according to OIS analysis of historic
EOIR and CBP data, there is a clear correlation since FY 2000
between the increasing time it takes to complete immigration
proceedings, which results in a lower share of noncitizens being
removed, and the growth in non-Mexican encounters at the SWB. Both
trends accelerated in the 2010s, as non-Mexicans became the majority
of border encounters, and they have accelerated further since FY
2021, as people from countries other than Mexico and Northern
Central America now account for the largest numbers of border
encounters.
---------------------------------------------------------------------------
While the CDC's Title 42 public health Order has been in effect,
migrants who do not have proper travel documents have generally not
been processed into the United States; they instead have been expelled
to Mexico or to their home countries under the Order's authority
without being processed under the authorities set forth in Title 8 of
the United States Code, which includes the Immigration and Nationality
Act (``INA'' or ``the Act''). When the Order is lifted, however, the
United States Government will process all migrants into the United
States under Title 8 authorities, as required by statute. At that time,
the number of migrants seeking to cross the SWB without authorization
is expected to increase significantly, unless other policy changes are
made. Such challenges were evident in the days following the November
15, 2022, court decision that, had it not been stayed on December 19,
2022, would have resulted in the lifting of the Title 42 public health
Order effective December 21, 2022.\11\ Leading up to the expected
termination date, migrants gathered in various parts of Mexico,
including along the SWB, waiting to cross the border once the Title 42
public health Order was lifted.\12\ According to internal Government
sources, smugglers were also expanding their messaging and recruitment
efforts, using the expected lifting of the Title 42 public health Order
to claim that the border was open, thereby seeking to persuade would-be
migrants to participate in expensive and dangerous human smuggling
schemes. In the weeks between the November 2022 announcement that the
Title 42 public health Order would be lifted, and the December 19,
2022, stay order that kept the Title 42 public health Order in place,
encounter rates jumped from an average of just under 7,700 per week
(early November) to nearly 8,800 per
[[Page 31316]]
week (mid-December), a change not predicted by normal seasonal
effects.\13\
---------------------------------------------------------------------------
\11\ See Huisha-Huisha v. Mayorkas, No. 21-100, 2022 WL 16948610
(D.D.C. Nov. 15, 2022), cert. and stay granted, Arizona v. Mayorkas,
143 S. Ct. 478 (2022).
\12\ See, e.g., Leila Miller, Asylum Seekers Are Gathering at
the U.S.-Mexico Border. This Is Why, L.A. Times, Dec. 23, 2022,
https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion.
\13\ Month over month change from November to December for all
of FY 2013-FY2022 averaged negative 2 percent. OIS analysis of OIS
Persist Dataset based on data through March 31, 2023.
---------------------------------------------------------------------------
While a number of factors make it particularly difficult to
precisely project the numbers of migrants who would seek to cross the
SWB without authorization or present at a U.S. POE without documents
sufficient for admission after the lifting of the Title 42 public
health Order, DHS encounter projections and planning models from early
April suggest that encounters could rise to 11,000 per day, absent
policy changes and absent a viable mechanism for removing Cuban,
Haitian, Nicaraguan, and Venezuelan (``CHNV'') nationals who do not
have a valid protection claim.\14\ As discussed in greater detail
below, data indicate that recently announced enforcement processes, as
applied to CHNV nationals, which couple new parole processes with
prompt returns of those who attempt to cross the SWB without utilizing
these processes, are effectively deterring irregular migration \15\
from those countries to the United States, thus yielding a substantial
decrease in encounter numbers for nationals of CHNV countries.\16\
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\14\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023. The complexity of international migration limits the
Department's ability to precisely project border encounters under
the best of circumstances. The current period is characterized by
greater than usual uncertainty due to ongoing changes in the major
migration source countries (i.e., the shift from Mexico and Northern
Central America to new countries of origin, discussed further
below), the growing impact of climate change on migration, political
instability in several source countries, the evolving recovery from
the COVID-19 pandemic, and uncertainty generated by border-related
litigation, among other factors.
OIS leads an interagency SWB Encounter Projections Working Group
that generates encounter projections every two to four weeks, with
ongoing refinements to the model based on feedback from the working
group and model diagnostics. The enterprise encounter projection
utilizes a mixed method blended model that combines a Bayesian
structural time series statistical model produced by OIS with
subject matter expert input to account for real-time policy
developments and pending litigation, among other factors, that are
not captured by the statistical model. The blended model is run
through a standard statistical process (Monte Carlo simulations) to
generate 68 percent and 95 percent confidence intervals for each of
33 separate demographic groupings. In light of the greater-than-
usual uncertainty at the current time, the Departments' planning
models are designed to prepare the Departments for all reasonably
likely eventualities, and therefore focus on the upper bounds of the
blended model's 68 and 95 percent confidence intervals. As noted in
Section IV.B.2 of this preamble, in the current context, the
Departments must focus their planning efforts on the high and
moderately high planning models rather than plan to an optimistic
scenario that could leave enforcement efforts badly under-resourced
and harm efforts to provide a safe and orderly process.
\15\ In this preamble, ``irregular migration'' refers to the
movement of people into another country without authorization.
\16\ In the week prior to the announcement of the parole
processes (ending October 12, 2022, for Venezuela and January 6,
2023, for Cuba, Haiti, and Nicaragua), the daily average of CHNV
encounters was nearly 2,000 between POEs. A month after the parole
announcements, daily encounters of CHNV nationals averaged just
under 300 encounters. In the most recent seven days ending April 10,
2023, CHNV daily encounters averaged 195. OIS analysis of OIS
Persist dataset based on data through March 31, 2023, and OIS
analysis of CBP UIP data downloaded April 13, 2023.
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However, DHS will no longer have a means to promptly expel migrants
without a legal basis to stay in the United States following the
termination of the Title 42 public health Order, which means that an
important disincentive associated with the parole processes would no
longer be present. In addition, there are a number of factors that
could contribute to these gains being erased after the lifting of the
Title 42 public health Order, including the presence of several large
diaspora populations in Mexico and elsewhere in the hemisphere, the
unprecedented recent growth in migration from countries of origin not
previously typical, the already large number of migrants in proximity
to the SWB, and the general uncertainty surrounding the expected impact
of the termination of the Title 42 public health Order on the movement
of migrants. Thus, the high end of the estimated encounter rate remains
a possibility for which the Departments need to prepare. In the absence
of the policy changes included in the rule, most non-Mexicans processed
for expedited removal under Title 8 would likely establish credible
fear and remain in the United States for the foreseeable future despite
the fact that many of them will not ultimately be granted asylum,\17\ a
scenario that would likely incentivize an increasing number of migrants
to the United States and further increase the likelihood of sustained,
high encounter rates.
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\17\ See Section III.C of the preamble to the notice of proposed
rulemaking, Circumvention of Lawful Pathways, 88 FR 11704, at 11715-
11716 (Feb. 23, 2023). Overall, 63 percent of non-Mexicans placed in
expedited removal from 2014-2019 made fear claims, and 85 percent of
those claiming fear (54 percent of all those placed in expedited
removal) established fear or were otherwise placed in section 240
removal proceedings as a result of their fear claim. These rates are
likely to be higher after May 11, 2023, because of the growing
prevalence of extra-regional nationals (i.e., noncitizens not from
Mexico or Northern Central America), who are more likely than those
from Northern Central American countries to make fear claims and to
establish fear. OIS analysis of OIS Enforcement Lifecycle data based
on data through February 28, 2023.
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A sustained, high encounter rate risks overwhelming the
Departments' ability to effectively process, detain, and remove, as
appropriate, the migrants encountered. This would put an enormous
strain on already strained resources, risk overcrowding in already
crowded USBP stations and border POEs in ways that pose significant
health and safety concerns, and create a situation in which large
numbers of migrants--only a small proportion of whom are likely to be
granted asylum--are subject to exploitation and risks to their lives by
the networks that support their movements north.
In response to this urgent and extreme situation, the Departments
are issuing a rule that--
incentivizes migrants to use lawful, safe, and orderly
means for noncitizens to enter the United States to seek asylum and
other forms of protection;
provides core protections for noncitizens who would be
threatened with persecution or torture in other countries; and
builds upon ongoing efforts to share the responsibility of
providing asylum and other forms of protection to eligible migrants
with the United States' regional partners.
At the same time, the rule addresses the reality of unprecedented
migratory flows, the systemic costs those flows impose on the
immigration system, and the ways in which increasingly sophisticated
smuggling networks cruelly exploit the system for financial gain.
Specifically, this rule establishes a presumptive condition on asylum
eligibility for certain noncitizens who fail to take advantage of the
existing and expanded lawful pathways \18\ to enter the United States,
including the opportunity to schedule a time and place to present at a
POE, and thus seek asylum or other forms of protection in a lawful,
safe, and orderly manner, or to seek asylum or other protection in one
of the countries through which they travel on their way to the United
States.
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\18\ The terms ``lawful pathways'' and ``lawful, safe, and
orderly pathways,'' as used in this preamble, refer to the range of
pathways and processes by which migrants are able to enter the
United States or other countries in a lawful, safe, and orderly
manner and seek asylum and other forms of protection as described in
this rule.
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This effort draws, in part, on lessons learned from the successful
Venezuela parole process,\19\ as well as the similar processes for
Cubans, Haitians, and Nicaraguans,\20\ under which DHS
[[Page 31317]]
coupled a mechanism for noncitizens from these countries to seek entry
into the United States in a lawful, safe, and orderly manner, with the
imposition of new consequences for those who cross the border without
authorization to do so--namely returns to Mexico.\21\ Prior to the
implementation of these processes, the Government of Mexico had not
been willing to accept the return of such nationals; the Government of
Mexico's independent decision to allow such returns was predicated, in
primary part, on the implementation of these processes.
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\19\ See DHS, Press Release, DHS Announces New Migration
Enforcement Process for Venezuelans (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans; see also DHS, Implementation of a Parole
Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
\20\ See DHS, Press Release, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
\21\ While the Title 42 public health Order has been in place,
those returns have been made under Title 42. As noted below, after
the Title 42 public health Order is lifted, affected noncitizens may
instead be subject to return or removal to Mexico under Title 8. See
The White House, Mexico and United States Strengthen Joint
Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ [hereinafter The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023)];
Government of Mexico, M[eacute]xico y Estados Unidos fortalecen Plan
Humanitario Conjunto sobre Migraci[oacute]n (May 2, 2023), https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published.
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A week before the announcement of the Venezuela parole process on
October 12, 2022, Venezuelan encounters between POEs at the SWB
averaged over 1,100 a day from October 5-11. About two weeks after the
announcement, Venezuelan encounters averaged under 200 per day between
October 18 and 24.\22\ U.S. Customs and Border Protection (``CBP'')
encountered an average of 106 Venezuelans between POEs per day in March
2023, about one-tenth the number of encounters prior to the
announcement of the parole process.\23\ Similarly, the number of Cuban,
Haitian, and Nicaraguan (``CHN'') nationals encountered between POEs
dropped significantly in the wake of the introduction of the new
processes, which coupled a lawful, safe, and orderly way for such
nationals to seek parole in the United States with consequences (in the
form of prompt returns to Mexico) for those who crossed the SWB without
authorization. Between the announcement of these processes on January
5, 2023, and January 21, 2023, the number of daily encounters between
POEs of CHN nationals dropped from 928 to 73, a 92 percent decline.\24\
CHN encounters between POEs continued to decline to an average of fewer
than 17 per day in March 2023.\25\ DHS estimates that the drop in CHNV
encounters in January through March was almost four times as large as
the number of people permitted entry under the parole processes.\26\
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\22\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\23\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\24\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\25\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\26\ In December 2022, prior to the announcement of the CHN
parole processes, the OIS Enterprise Encounter Projection predicted
273,000 total encounters of CHNV nationals in January through March
2023, a projection equivalent to 265,000 unique encounters given
CHNV repeat encounter rates. During that same period, following the
enactment of the CHN parole processes, unique SWB encounters
(excluding scheduled arrivals via the CBP One app) of CHNV nationals
was 20,204-245,000 fewer unique encounters than had been predicted.
By comparison, a total of 61,967 CHNV nationals entered the United
States pursuant to the CHNV parole processes during the same period.
OIS analysis of OIS Persist Dataset based on data through March 31,
2023, and of CBP OFO CHNV Advance Travel Authorization reports.
---------------------------------------------------------------------------
This rule, which draws on these successful processes, and which
will apply only to those who enter during a limited, specified date
range at the southwest land border or adjacent coastal borders, will
discourage irregular migration by encouraging migrants to use lawful,
safe, and orderly pathways and allowing for swift returns of migrants
who bypass such pathways, even after the termination of the Title 42
public health Order. It responds to the expected increase of migrants
seeking to cross the SWB following the termination of the Title 42
public health Order that would occur in the absence of a policy shift
by encouraging reliance on lawful, safe, and orderly pathways, thereby
shifting the incentives that otherwise encourage migrants to make a
dangerous journey to the SWB. It is also responsive to the requests of
foreign partners that have lauded the sharp reductions in irregular
migration associated with the aforementioned process for Venezuelans
and have urged that the United States continue and build on this kind
of approach, which couples processes for individuals to travel directly
to the United States with consequences at the land border for those who
do not avail themselves of these processes. The United States has, as
noted above, already extended this model to Cuba, Haiti, and Nicaragua,
and the Government of Mexico and the United States recently announced a
set of additional measures on migration, including the United States'
continued commitment to welcoming CHNV nationals under these parole
processes and Mexico's commitment to continue to accept back migrants
on humanitarian grounds after May 11, 2023.\27\ The Departments assess
that continuing to implement and build on this approach is critical to
the United States' ongoing engagements with regional partners, in
particular the Government of Mexico, regarding migration management in
the region.\28\
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\27\ The White House, Mexico and United States Strengthen Joint
Humanitarian Plan on Migration (May 2, 2023).
\28\ See also The White House, Joint Statement by President
Biden and Prime Minister Trudeau (Mar. 24, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/24/joint-statement-by-president-biden-and-prime-minister-trudeau/
(reaffirming commitment of United States and Canada to a
collaborative regional approach to migration centered on expanding
legal pathways and humane border management, including deterrence of
irregular migration).
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Consonant with these efforts, over the past two years, the United
States has taken significant steps to expand safe and orderly options
for migrants to lawfully enter the United States. The United States
has, for example, increased and will continue to increase--
refugee processing in the Western Hemisphere;
country-specific and other available processes for
individuals seeking parole for urgent humanitarian reasons or
significant public benefit on a case-by-case basis; and
opportunities to lawfully enter the United States for the
purpose of seasonal employment.
In addition, once the Title 42 public health Order is terminated,
the United States will expand implementation of the CBP One\TM\ mobile
application (``CBP One app''),\29\ an innovative mechanism for
noncitizens to schedule a time to arrive at POEs along the SWB, to
allow an increasing number of migrants who may wish to claim asylum to
request an available time and location to present and be inspected and
processed at certain POEs, in accordance with operational limitations
at each POE.\30\ Use of this app keeps
[[Page 31318]]
migrants from having to wait in long lines of unknown duration at the
POEs, and enables the POEs to manage the flows in a safe and efficient
manner, consistent with their footprint and operational capacity, which
vary substantially across the SWB. Once present in the United States,
those who use this mechanism can make claims for asylum and other forms
of protection and are exempted from this rule's rebuttable presumption
on asylum eligibility. They are vetted and screened, and assuming no
public safety or national security concerns, may be eligible to apply
for employment authorization as they await resolution of their
cases.\31\
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\29\ The Departments note that unless otherwise specified,
references to the CBP One app refer to usage of the CBP One tool,
which can be accessed via the smartphone application. Although there
is a desktop version of the CBP One app, it does not currently allow
users to submit their information in advance. CBP is developing the
capability to use the desktop version for this purpose.
\30\ As of January 12, 2023, this mechanism is currently
available for noncitizens seeking to cross SWB land POEs to request
a humanitarian exception from the Title 42 public health Order. See
CBP, Fact Sheet: Using CBP OneTM to Schedule an
Appointment (last modified Jan. 12, 2023), https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english. Once the Title 42
public health Order is terminated, and the POEs open to all migrants
who wish to seek entry into the United States, this mechanism will
be broadly available to migrants in central and northern Mexico,
allowing them to request an available time and location to present
and be inspected and processed at certain POEs.
\31\ Under current employment authorization regulations, there
is no waiting period before a noncitizen parolee in this
circumstance may apply for employment authorization, except where
the noncitizen is in expedited removal proceedings, including after
a positive credible fear determination, and paroled from custody.
See 8 CFR 274a.12(c)(11), 235.3(b)(2)(iii), (b)(4)(ii).
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Moreover, on April 27, 2023, DHS and the Department of State
announced several new measures to further reduce irregular migration
across the Western Hemisphere, significantly expand lawful pathways for
protection, and facilitate the safe, orderly, and humane processing of
migrants.\32\ These new measures include--
---------------------------------------------------------------------------
\32\ See DHS, Fact Sheet, U.S. Government Announces Sweeping New
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration [hereinafter DHS, New
Actions to Manage Regional Migration (Apr. 27, 2023)].
---------------------------------------------------------------------------
creating family reunification parole processes for El
Salvador, Guatemala, Honduras, and Colombia, as well as modernizing the
longstanding Haitian Family Reunification Parole process and the Cuban
Family Reunification Parole process;
committing to referring for resettlement thousands of
additional refugees per month from the Western Hemisphere, with the
goal of doubling the number of refugees the United States committed to
welcome as part of the Los Angeles Declaration on Migration and
Protection (``L.A. Declaration'');
establishing regional processing centers in key locations
throughout the Western Hemisphere to reduce irregular migration;
launching an aggressive anti-smuggling campaign targeting
criminal networks in the Dari[eacute]n Gap and combating smuggler
misinformation;
surging AOs to complete credible fear interviews at the
SWB more quickly; and
ramping up coordination between state and local officials
and other federal agencies to provide resources, technical assistance,
and support.\33\
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\33\ See id.
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These measures will be implemented in close coordination with
regional partners, including the governments of Mexico, Canada,
Colombia, and Guatemala, as well as the government of Spain.\34\
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\34\ See id.; see also The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023)
(committing to increase joint actions to counter human smugglers and
traffickers, address root causes of migration, and continue to
combine expanded lawful pathways with consequences for irregular
migration).
---------------------------------------------------------------------------
Available pathways provide lawful, safe, and orderly mechanisms for
migrants to enter the United States and make their protection claims.
Consistent with the CHNV processes, this rule also imposes consequences
on certain noncitizens who fail to avail themselves of the range of
lawful, safe, and orderly means for entering the United States and
seeking protection in the United States or elsewhere. Specifically,
this rule establishes a rebuttable presumption that certain noncitizens
who enter the United States without documents sufficient for lawful
admission are ineligible for asylum, if they traveled through a country
other than their country of citizenship, nationality, or, if stateless,
last habitual residence, unless they were provided appropriate
authorization to travel to the United States to seek parole pursuant to
a DHS-approved parole process; presented at a POE at a pre-scheduled
time or demonstrate that the mechanism for scheduling was not possible
to access or use due to language barrier, illiteracy, significant
technical failure, or other ongoing and serious obstacle; or sought
asylum or other protection in a country through which they traveled and
received a final decision denying that application. Unaccompanied
children (``UC'') are excepted from this presumption.\35\ This
presumption may be rebutted, and would necessarily be rebutted if, at
the time of entry, the noncitizen or a member of the noncitizen's
family with whom they are travelling had an acute medical emergency,
faced an imminent and extreme threat to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder,\36\ or
satisfied the definition of ``victim of a severe form of trafficking in
persons'' provided in 8 CFR 214.11(a). The presumption also may be
rebutted in other exceptionally compelling circumstances.
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\35\ The term ``unaccompanied child'' as used in this rule is
the same as ``unaccompanied alien child,'' which is defined at 6
U.S.C. 279(g)(2) to mean ``a child who--(A) has no lawful
immigration status in the United States; (B) has not attained 18
years of age; and (C) with respect to whom--(i) there is no parent
or legal guardian in the United States; or (ii) no parent or legal
guardian in the United States is available to provide care and
physical custody.''
\36\ The term ``imminent'' refers to the immediacy of the
threat; it makes clear that the threat cannot be speculative, based
on generalized concerns about safety, or based on a prior threat
that no longer poses an immediate threat. The term ``extreme''
refers to the seriousness of the threat; the threat needs to be
sufficiently grave, such as a threat of rape, kidnapping, torture,
or murder, to trigger this ground for rebuttal.
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The rebuttable presumption is a ``condition[ ]'' on asylum
eligibility, INA 208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and
(d)(5)(B), that applies in affirmative and defensive asylum application
merits adjudications, as well as during credible fear screenings.
Individuals who are subject to and do not rebut the presumption remain
eligible for statutory withholding of removal and protection under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'').\37\
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\37\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114.
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With the ability to schedule a time and place to arrive at POEs and
the availability of other orderly and lawful pathways, this system is
designed to (1) protect against an unmanageable flow of migrants
arriving at the SWB; (2) further ongoing efforts to share the
responsibility of providing asylum and other forms of protection with
the United States' regional partners; (3) ensure that those with valid
asylum claims have an opportunity to seek protection, whether in the
United States or elsewhere; (4) enable the Departments to continue
administering the immigration laws fairly and effectively; and (5)
reduce the role of exploitative transnational criminal organizations
and smugglers.
The rule applies to noncitizens who enter the United States without
authorization from Mexico at the southwest land border or adjacent
coastal borders on or after the date of termination of the Title 42
public health Order and before a specified date, 24 months from the
rule's effective date. However, the rule will continue to apply to such
noncitizens who entered the United States during the 24-month time
frame in their Title 8 proceedings and in any subsequent asylum
applications, except for those applications filed after the two-year
period by those who entered the United
[[Page 31319]]
States as minors and who apply as principal applicants. The Departments
intend that the rule will be subject to review to determine whether the
entry dates provided in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i)
should be extended, modified, or remain as provided in the rule.
B. Effective Date
Issuance of this rule is justified in light of the migration
patterns witnessed in recent months, and the concern about the
possibility of a surge in irregular migration upon, or in anticipation
of, the lifting of the Title 42 public health Order. The Departments
seek to underscore that migrants will not be able to cross the border
without authorization to enter without consequence upon the eventual
lifting of the Order. Under this rule, the Departments will use their
Title 8 authorities to process, detain, and remove, as appropriate,
those who enter the United States from Mexico at the southwest land
border or adjacent coastal borders without authorization and do not
have a valid protection claim.
The Departments are issuing this rule without the 30-day delayed
effective date typically required by the Administrative Procedure Act
(``APA'') \38\ because the Departments have determined that it is
necessary to implement the rule when the Title 42 public health Order
is lifted. The lifting of the Order could occur as a result of several
different litigation and policy developments, including the vacatur of
the preliminary injunction entered in Louisiana v. CDC, 603 F. Supp. 3d
406 (W.D. La. 2022), appeal pending, No. 22-30303 (5th Cir. June 15,
2022); the lifting of the stay entered by the Supreme Court in Arizona
v. Mayorkas, 143 S. Ct. 478 (2022); or ``the expiration of the
Secretary of HHS' declaration that COVID-19 constitutes a public health
emergency,'' Public Health Reassessment and Order Suspending the Right
to Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, 86 FR 42828, 42829 (Aug. 5, 2021). The
expiration of the declaration by the Secretary of Health and Human
Services (``HHS'') that COVID-19 constitutes a public health emergency
is expected to occur on May 11, 2023, in light of the recent
announcement that ``[a]t present, the Administration's plan is to
extend'' the public health emergency to May 11 and then allow it to
expire ``on that date.'' \39\ The Departments have thus sought to move
as expeditiously as possible, while also allowing sufficient time for
public comment.
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\38\ See 5 U.S.C. 553(d). The Departments further address this
requirement in Section VI.A of this preamble.
\39\ Office of Mgmt. & Budget, Exec. Office of the President,
Statement of Administration Policy (Jan. 30, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf; see also HHS, Fact Sheet: COVID-19 Public Health
Emergency Transition Roadmap (Feb. 9, 2023), https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html (``Based on current COVID-19 trends, the
Department of Health and Human Services (HHS) is planning for the
federal Public Health Emergency (PHE) for COVID-19, declared under
Section 319 of the Public Health Service (PHS) Act, to expire at the
end of the day on May 11, 2023.'').
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C. Changes From Proposed Rule to Final Rule
On February 23, 2023, the Departments issued a notice of proposed
rulemaking (``NPRM'' or ``proposed rule'') \40\ in anticipation of a
potential surge of migration at the SWB following the eventual
termination of the CDC's public health Order. Following careful
consideration of public comments received, the Departments have made
modifications to the regulatory text proposed in the NPRM, as described
below. The rationale for the proposed rule and the reasoning provided
in the proposed rule preamble remain valid, except as distinguished in
this regulatory preamble.
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\40\ 88 FR 11704.
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1. Removing Provisions Implementing the Proclamation Bar IFR and the
TCT Bar Final Rule
Consistent with the proposed rule, Circumvention of Lawful
Pathways, 88 FR 11704, 11727-28 (Feb. 23, 2023), the Departments have
added amendatory instructions to remove provisions enacted to implement
the bars to asylum eligibility established in an interim final rule
(``IFR'') entitled, Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018) (``Proclamation Bar IFR''), and a final rule
entitled, Asylum Eligibility and Procedural Modifications, 85 FR 82260
(Dec. 17, 2020) (``TCT Bar Final Rule'').\41\
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\41\ The TCT Bar Final Rule amended an earlier IFR on the same
topic. See Asylum Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019). The IFR was vacated prior to the issuance of
the TCT Bar Final Rule. Additionally, where the Departments refer to
the ``Proclamation Bar'' or ``TCT Bar'' without including ``IFR'' or
``Final Rule,'' the Departments are referring to the bars as applied
and not to the rulemaking documents that implemented them.
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To remove the provisions enacted to implement the Proclamation Bar
IFR and TCT Bar Final Rule, the Departments have made the following
changes:
removed and reserved paragraphs 8 CFR 208.13(c)(3) and
1208.13(c)(3), which previously included the requirements for the
Proclamation Bar IFR's applicability;
removed and reserved paragraphs 8 CFR 208.13(c)(4) and
1208.13(c)(4), which previously included the requirements for the TCT
Bar Final Rule's applicability;
removed and reserved paragraphs 8 CFR 208.13(c)(5) and
1208.13(c)(5), which provided that determinations made with regard to
whether an applicant met one of the exceptions to the TCT Bar Final
Rule would not bind Federal departments or agencies with respect to
certain later adjudications;
amended 8 CFR 208.30(e)(5) to remove paragraphs (ii) and
(iii), which regard application during credible fear of the
Proclamation Bar IFR and TCT Bar Final Rule, respectively;
removed reference to 8 CFR 208.30(e)(5)(ii) through (iv)
from what was previously (i) and redesignated (i) as (e)(5);
amended 8 CFR 1003.42(d) to remove paragraphs (1) and (2)
and redesignated paragraph (3) as (d) because paragraphs (d)(1) and (2)
provided the standard of review for Proclamation Bar and TCT Bar
determinations made during credible fear screenings; and
removed and reserved 8 CFR 1208.30(g)(1), which provided
instructions to IJs regarding the application of the Proclamation Bar
and the TCT Bar during credible fear reviews.
2. Applicability of Rebuttable Presumption After the Two-Year Period
The rule applies to certain noncitizens who enter during the two-
year period in any asylum application they submit, regardless of when
the application is filed or if the noncitizen makes subsequent entries.
See 8 CFR 208.13(f) (``For applications filed by aliens who entered the
United States between May 11, 2023, and May 11, 2025, also refer to the
provisions on asylum eligibility described in Sec. 208.33.''); 8 CFR
1208.13(f) (same); 8 CFR 208.33(a)(1), 1208.33(a)(1) (providing that
the rebuttable presumption applies to noncitizens who enter the United
States from Mexico at the southwest land border or adjacent coastal
borders without documents sufficient for lawful admission between the
effective date and a date 24-months later and after the end of
implementation of the Title 42 public health Order with certain
exceptions).
[[Page 31320]]
To remove any potential ambiguity regarding the ongoing applicability
of the lawful pathways rebuttable presumption, the final rule makes the
presumption's ongoing applicability explicit in 8 CFR 208.33(c)(1) and
1208.33(d)(1) by stating that the lawful pathways condition on
eligibility shall apply to ``any asylum application'' that is filed by
a covered noncitizen ``regardless of when the application is filed and
adjudicated.''
The Departments have exempted from this ongoing application of the
rebuttable presumption certain noncitizens who enter the United States
during the two-year period while under the age of 18 and who later seek
asylum as principal applicants after the two-year period. In the NPRM,
the Departments requested comment on ``[w]hether any further regulatory
provisions should be added or amended to address the application of the
rebuttable presumption in adjudications that take place after the
rule's sunset date.'' 88 FR at 11708. After reviewing comments raising
concerns about the impact of the rule on children who arrive as part of
a family unit and who are thus subject to the decision-making of their
parents, the Departments have decided to adopt a provision excepting
such children from the rule in certain circumstances after the two-year
period ends. See 8 CFR 208.33(c)(2), 1208.33(d)(2). The Departments
recognize that children who enter with their families are generally
traveling due to their parents' decision-making. Exempting children
from the rebuttable presumption entirely would mean, under the rule,
that all family units that include minor children would also be
exempted, which could incentivize families who otherwise would not make
the dangerous journey to do so. And if the rule were amended to only
exempt the child, it could inadvertently lead to the separation of a
family in many cases because every child would have to be treated
separately from their family during the credible fear screening as they
would not be subject to the rebuttable presumption but their parents
could be.
Although accompanied children remain subject to the rebuttable
presumption generally, the Departments have determined that the
presumption should not apply to them in any application for asylum they
file after the two-year period, but only if they apply as a principal
(as opposed to a derivative) applicant. The Departments believe this
exception to the general applicability provision balances the interest
in ensuring the rebuttable presumption has an impact on behavior, while
at the same time recognizing the special circumstance of children who
enter in a manner that triggers the rebuttable presumption, likely
without intending to do so or being able to form an understanding of
the consequences. Specifically, if the Departments were to extend this
exception to all children after the two-year period, even if they
applied only as a derivative, the Departments would risk incentivizing
families to seek to prolong their proceedings to file their asylum
applications after the two-year period expires, undermining the
Departments' interest in efficient adjudications. In addition, any
family that did so would be able to avoid the applicability of the
presumption entirely, by virtue of the rule's family unity provision.
The Departments have decided not to include such a broad exemption, in
light of the urgent need to disincentivize a further surge in irregular
migration.
3. Expansion of Applicability to Adjacent Coastal Borders
As proposed in the NPRM, the rule would apply to certain
noncitizens who enter the United States at the SWB--that is, ``along
the entirety of the U.S. land border with Mexico.'' 88 FR at 11704 n.1.
The Departments received comments that applying the rule only to those
who enter the United States from Mexico across the U.S.-Mexico land
border would inadvertently incentivize noncitizens without documents
sufficient for lawful admission to circumvent the land border by making
a hazardous attempt to reach the United States by sea. In this final
rule, the Departments have decided to modify 8 CFR 208.33(a)(1) and 8
CFR 1208.33(a)(1) to provide that the rule's rebuttable presumption of
ineligibility for asylum applies to noncitizens who enter the United
States from Mexico at ``adjacent coastal borders.'' The term ``adjacent
coastal borders'' refers to any coastal border at or near the U.S.-
Mexico border. This modification therefore means that the rule's
rebuttable presumption of ineligibility for asylum applies to
noncitizens who enter the United States at such a border after
traveling from Mexico and who have circumvented the U.S.-Mexico land
border.
This modification mirrors the geographic reach of the CDC's Title
42 public health Order, which likewise applied--as relevant here--to
certain covered noncitizens traveling from Mexico who would otherwise
be introduced into a congregate setting ``at or near the U.S. land and
adjacent coastal borders.'' See 86 FR at 42841. Because the Title 42
public health Order did not define the phrase ``adjacent coastal
borders,'' its meaning was developed during the public health Order's
implementation. Specifically, as implemented by CBP, the term
``adjacent coastal borders'' was interpreted to apply to the same
population as the Amended CDC Order issued in May 2020, which first
introduced the concept of ``coastal'' application. The Amended Order
applied to ``persons traveling from Canada or Mexico (regardless of
their country of origin) who would otherwise be introduced into a
congregate setting in a land or coastal POE or Border Patrol station at
or near the U.S. border with Canada or Mexico, subject to exceptions.''
\42\ With regard to persons traveling from Mexico, in line with the
interpretation above, CBP implemented the Title 42 public health Order
as covering any coastal border adjacent to the U.S.-Mexico border
reached by an individual traveling from Mexico and landing within the
United States having circumvented the U.S.-Mexico land border. Applying
the same geographic reach that has been applied by CBP for the past
three years to this rule will avoid the risk that smugglers would
exploit what could be perceived as a new ``loophole'' following the
lifting of the Title 42 public health Order to persuade migrants to
make a perilous crossing to the United States from Mexico by sea. In
DHS's experience, that risk may well materialize, as smugglers
routinely prey on migrants using perceived changes in U.S. immigration
law.\43\ Any such campaign by smugglers to persuade more migrants to
circumvent the land border would result in life-threatening risks for
migrants and DHS personnel, given the elevated danger associated with
maritime crossings. As just one example of how dangerous such attempts
can be, the Departments note that in March 2023, two suspected human
smuggling boats from Mexico capsized and eight
[[Page 31321]]
people died off the coast near San Diego, California.\44\ This
incident, as well as the increases in maritime migration over the past
few years, as discussed further in Section V of this preamble, and
commenters' concerns that the NPRM would have encouraged migration by
sea, as discussed further in Section IV.B.8.i of this preamble, have
led the Departments to extend the rebuttable presumption to the
adjacent coastal borders. Specifically, in the interest of ensuring
that this rule is not used to encourage intending migrants to undertake
attempts that could end in similar tragedies, the Departments believe
it is important that the text of 8 CFR 208.33(a)(1) and 8 CFR
1208.33(a)(1) make clear that the rule's presumption applies equally to
noncitizens who arrive from Mexico on coasts adjacent to the southwest
land border.
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\42\ See Amendment and Extension of Order Under Sections 362 and
365 of the Public Service Act; Order Suspending Introduction of
Certain Persons from Countries Where a Communicable Disease Exists,
85 FR 31503 (May 26, 2020); CBP, CBP COVID-19 Response: Suspension
of Entries and Imports Concept of Operations 1-3 (May 20, 2020),
https://www.cbp.gov/document/foia-record/title-42.
\43\ See Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of social
media groups and pages identified by migrants showed . . . dubious
offers of coyote or legal services, false claims about conditions
along the route, misinformation about points of entry at which
officials waive the rules, and baseless rumors about changes to
immigration law.'').
\44\ See Karen Kucher et al., 8 Reported Dead After 2 Suspected
Smuggling Boats Crash at Black's Beach in San Diego, L.A. Times,
Mar. 12, 2023, https://www.latimes.com/california/story/2023-03-12/8-reported-dead-after-2-suspected-smuggling-boats-crash-at-blacks-beach-in-san-diego; Wendy Fry, An Endless Fight: As Border
Infrastructure on Land Improves, Smugglers Take to the Water, San
Diego Tribune, Nov. 6, 2019, https://www.sandiegouniontribune.com/news/border-baja-california/story/2019-11-06/an-endless-fight-as-border-infrastructure-on-land-improves-smugglers-take-to-the-water.
---------------------------------------------------------------------------
4. Clarification of Meaning of ``Final Decision''
As was proposed in the NPRM, the rule excepts from the rebuttable
presumption noncitizens who sought asylum or other protection in
another country through which they traveled and received a ``final
decision'' denying that application. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). The Departments have amended this paragraph to
further define what constitutes a ``final decision'' for the purposes
of this exception. With this change, the final rule specifies that a
``final decision includes any denial by a foreign government of the
applicant's claim for asylum or other protection through one or more of
that government's pathways for that claim.'' Id. The provision further
states that a ``final decision does not include a determination by a
foreign government that the noncitizen abandoned the claim.'' Id. The
Departments have made this change in response to comments, as discussed
below, and to provide clarity that a noncitizen must in fact pursue the
claim since a denial based on abandonment would be insufficient.
5. Exception for Unaccompanied Children
The NPRM provided that ``[u]naccompanied alien children, as defined
in 6 U.S.C. 279(g)(2), are not subject to paragraph (a)(1) of this
section.'' See 88 FR at 11750-51 (proposed 8 CFR 208.33(b),
1208.33(b)). The Departments have modified the proposed language to
explicitly state that this exception applies to noncitizens who were
UCs at the time of entry.\45\ 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
---------------------------------------------------------------------------
\45\ Numerous commenters recognized that the NPRM proposed an
exception for UCs, but did not indicate a clear understanding of
whether this exception applied to those who were UCs at the time of
entry or at the time of adjudication.
---------------------------------------------------------------------------
This added language makes clear that the UC exception aligns with
other exceptions in this rule, which are based upon conditions at the
time of a noncitizen's presentation at a POE, see 8 CFR 208.33(a)(2),
1208.33(a)(2), and more closely aligns the regulatory text with the
Departments' stated purpose in the NPRM that ``unaccompanied children
would be categorically excepted from the rebuttable presumption,'' 88
FR at 11724.
6. Expansion of Family Unity Provision
The NPRM provided that where a principal applicant is eligible for
statutory withholding of removal or CAT withholding and would be
granted asylum but for the presumption, and where an accompanying
spouse or child does not independently qualify for asylum or other
protection from removal, the presumption shall be deemed rebutted as an
exceptionally compelling circumstance. See 88 FR at 11752 (proposed 8
CFR 1208.33(d)). Commenters raised concerns that excluding asylum
applicants who travel without their families may inadvertently
incentivize families to engage in irregular migration together so as
not to risk that the principal applicant would be prevented from later
applying for their family members to join them. This could involve
making a dangerous journey with vulnerable family members, such as
children. Accordingly, as discussed in Section IV.E.7.ii of this
preamble, in response to these comments, the Departments have expanded
the provision to also cover principal asylum applicants who have a
spouse or child who would be eligible to follow to join that applicant
as described in section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A). See 8 CFR 1208.33(c).
7. Other Changes
In addition to the changes this final rule makes to the NPRM
detailed above, this final rule also makes other changes to the
regulatory text set out in the NPRM.
First, the Departments have reorganized and made other edits to
proposed 8 CFR 208.33(a) and 1208.33(a) to improve clarity for
noncitizens, counsel appearing before the Departments, other members of
the public, and adjudicators. For example, the Departments added the
exception for unaccompanied children to 8 CFR 208.33(a)(2)(i) and
1208.33(a)(2)(i) rather than maintaining it as a standalone paragraph
at 8 CFR 208.33(b) and 1208.33(b). Similarly, the Departments added
headings and additional guideposts within 8 CFR 208.33(a) and
1208.33(a). Second, the Departments revised 8 CFR 208.33 and 1208.33 to
move instructions from 8 CFR 208.33 to 8 CFR 1208.33 regarding IJ
review that are better placed in EOIR's regulations. For example, the
Departments removed the sentence at proposed 8 CFR 208.33(c)(2)(ii)
stating that noncitizens may apply for asylum, withholding of removal,
and protection under the CAT in removal proceedings and included that
at new 8 CFR 1208.33(b)(4). These revisions do not change the meaning
of those provisions.
D. Rule Provisions
The rule contains the following key provisions:
The rule imposes a rebuttable presumption of ineligibility
for asylum upon certain noncitizens who enter the United States from
Mexico at the southwest land border or adjacent coastal borders without
documents sufficient for lawful admission as described in INA
212(a)(7), 8 U.S.C. 1182(a)(7). See 8 CFR 208.33(a)(1), 1208.33(a)(1).
The rebuttable presumption applies to only those noncitizens whose
entry was (1) between May 11, 2023 and May 11, 2025; (2) subsequent to
the end of implementation of the Title 42 public health Order; and (3)
after the noncitizen traveled through a country other than the
noncitizen's country of citizenship, nationality, or, if stateless,
last habitual residence, that is a party to 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'') or 1967 Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268
(``Refugee Protocol''). See 8 CFR 208.33(a)(1)(i) through (iii),
1208.33(a)(1)(i) through (iii).
[[Page 31322]]
The rule excepts from the rebuttable presumption any
noncitizen who is an unaccompanied child as defined in 6 U.S.C.
279(g)(2). See 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
The rule also excepts from the rebuttable presumption a
noncitizen if the noncitizen or a member of the noncitizen's family
with whom the noncitizen is traveling (1) was provided appropriate
authorization to travel to the United States to seek parole, pursuant
to a DHS-approved parole process; (2) presented at a POE, pursuant to a
pre-scheduled time and place, or presented at a POE without a pre-
scheduled time and place, if the noncitizen demonstrates by a
preponderance of the evidence that it was not possible to access or use
the DHS scheduling system due to language barrier, illiteracy,
significant technical failure, or other ongoing and serious obstacle;
or (3) sought asylum or other protection in a country through which the
noncitizen traveled and received a final decision denying that
application. See id. 208.33(a)(2)(ii), 1208.33(a)(2)(ii).
The rule allows a noncitizen to rebut the presumption by
demonstrating by a preponderance of the evidence that exceptionally
compelling circumstances exist. A noncitizen necessarily rebuts the
presumption if they demonstrate by a preponderance of the evidence that
the noncitizen, or a member of the noncitizen's family with whom the
noncitizen is traveling, (1) faced an acute medical emergency; (2)
faced an imminent and extreme threat to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder; or (3)
satisfied the definition of ``victim of a severe form of trafficking in
persons'' provided in 8 CFR 214.11(a). See id. 208.33(a)(3),
1208.33(a)(3). In addition, as a measure to ensure family unity, the
rule provides that in removal proceedings pursuant to section 240 of
the INA, 8 U.S.C. 1229a (``section 240 removal proceedings''), where a
principal asylum applicant is eligible for statutory withholding of
removal or CAT withholding and would be granted asylum but for the
rebuttable presumption, and where an accompanying spouse or child does
not independently qualify for asylum or other protection from removal
or where the principal asylum applicant has a spouse or child who would
be eligible to follow to join them if they are granted asylum, as
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A),
the presumption is deemed rebutted as an exceptionally compelling
circumstance. See 8 CFR 1208.33(c).
The rule establishes procedures, applicable in the
expedited removal context, under which AOs will determine whether the
noncitizen has made a sufficient showing that the rebuttable
presumption does not apply or that they meet an exception to or can
rebut the presumption. See id. 208.33(b). If the AO determines that the
rebuttable presumption does not apply or the noncitizen falls within an
exception or has rebutted the presumption, the general procedures in 8
CFR 208.30 apply. See id. 208.33(b)(1)(ii). On the other hand, if the
AO determines that the rebuttable presumption does apply and no
exception or rebuttal ground applies, the AO will consider whether the
noncitizen has established a reasonable possibility of persecution or
torture with respect to the identified country or countries of removal.
See id. 208.33(b)(1)(i), 208.33(b)(2).
The rule provides that an AO's adverse determination as to
the applicability of the rebuttable presumption, whether an exception
applies or the presumption has been rebutted, and whether the
noncitizen has established a reasonable possibility of persecution or
torture, are all subject to de novo IJ review. See id.
208.33(b)(2)(iii) through (v), 1208.33(b). The noncitizen must request
such review by so indicating on a Record of Negative Fear Finding and
Request for Review by Immigration Judge. See id. 208.33(b)(2)(iv) and
(v), 1208.33(b)(1).
The rule establishes procedures for such IJ review.
Specifically, if the IJ determines that the noncitizen has made a
sufficient showing that the rebuttable presumption does not apply to
them or that they meet an exception to or can rebut the presumption,
and that the noncitizen has established a significant possibility of
eligibility for asylum, statutory withholding of removal, or CAT
withholding, the IJ issues a positive credible fear finding and the
case proceeds under existing procedures at 8 CFR 1208.30(g)(2)(iv)(B).
See id. 208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that
the rebuttable presumption applies and has not been rebutted and no
exception is applicable, but the noncitizen has established a
reasonable possibility of persecution or torture with respect to the
identified country or countries of removal, the IJ will issue a
positive credible fear finding and DHS will issue a Form I-862, Notice
to Appear, to commence section 240 removal proceedings. See id.
208.33(b)(2)(v)(B), 1208.33(b)(2)(ii). And finally, if the IJ issues a
negative credible fear determination, the case is returned to DHS for
removal of the noncitizen. See id. 208.33(b)(2)(v)(C),
1208.33(b)(2)(ii). In such a circumstance, the noncitizen may not
appeal the IJ's decision or request that U.S. Citizenship and
Immigration Services (``USCIS'') reconsider the AO's negative
determination, although USCIS may, in its sole discretion, reconsider a
negative determination. See id. 208.33(b)(2)(v)(C).
The rule provides that a noncitizen who is found to be
subject to the lawful pathways condition during expedited removal
proceedings may, if placed in section 240 removal proceedings, apply
for asylum, statutory withholding of removal, or CAT protection, or any
other form of relief or protection for which the noncitizen is eligible
during those removal proceedings. See id. 1208.33(b)(4).
The rule declines to adopt the Proclamation Bar IFR on a
permanent basis and removes the language effectuating the Proclamation
Bar. Specifically, the rule removes and reserves paragraphs 8 CFR
208.13(c)(3) and 1208.13(c)(3), which previously included the
requirements for the bar's applicability.
The rule removes regulatory provisions implementing the
TCT Bar Final Rule. The rule removes and reserves paragraphs 8 CFR
208.13(c)(4) and 1208.13(c)(4), which previously included the
requirements for the TCT Bar Final Rule's applicability. The rule also
removes and reserves paragraphs 8 CFR 208.13(c)(5) and 1208.13(c)(5),
which provided that determinations made with regard to whether an
applicant met one of the exceptions to the TCT Bar Final Rule would not
bind Federal departments or agencies with respect to certain later
adjudications. Given the removal of the TCT Bar Final Rule and its
implementing provisions, these provisions are no longer necessary.
The rule also amends the CFR to remove provisions
implementing the Proclamation Bar IFR and TCT Bar Final Rule during the
credible fear process. The rule removes 8 CFR 208.30(e)(5)(ii) and
(iii), which implemented the Proclamation Bar IFR and TCT Bar Final
Rule, respectively. The rule also removes reference to (ii) though (iv)
from what was previously (i) and redesignates (i) as (e)(5). Similarly,
the rule also amends provisions relating to IJ standard of review for
Proclamation Bar and TCT Bar determinations by removing 8 CFR
1003.42(d)(2) and (3), and redesignates 8 CFR 1003.42(d)(1) as
paragraph (d). Finally, the rule removes and reserves 8 CFR
1208.30(g)(1), which provided instructions to IJs regarding the
application of the Proclamation Bar
[[Page 31323]]
and the TCT Bar during credible fear reviews.
The rule contains a special provision providing that the
rebuttable presumption does not apply to an asylum application filed
after May 11, 2025, if the noncitizen was under the age of 18 at the
time of entry, and the noncitizen is applying for asylum as a principal
applicant. See id. 208.33(c)(2), 1208.33(d)(2).
The rule contains a severability clause reflecting the
Departments' intention that the rule's provisions be severable from
each other in the event that any aspect of the new provisions governing
the rebuttable presumption is held to be invalid or unenforceable by
its terms, or as applied to any person or circumstance. See id.
208.33(d), 1208.33(e).
III. Legal Authority
The Secretary and the Attorney General jointly issue this rule
pursuant to their shared and respective authorities concerning asylum,
statutory withholding of removal, and CAT determinations. The Homeland
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as
amended, created DHS and transferred to it many functions related to
the administration and enforcement of Federal immigration law while
maintaining many functions and authorities with the Attorney General,
including concurrently with the Secretary.
The INA, as amended by the HSA, charges the Secretary ``with the
administration and enforcement of [the INA] and all other laws relating
to the immigration and naturalization of aliens,'' except insofar as
those laws assign functions to other agencies. INA 103(a)(1), 8 U.S.C.
1103(a)(1). The INA also grants the Secretary the authority to
establish regulations and take other actions ``necessary for carrying
out'' the Secretary's authority under the immigration laws, INA
103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6 U.S.C. 202.
The HSA charges the Attorney General with ``such authorities and
functions under [the INA] and all other laws relating to the
immigration and naturalization of aliens as were [previously] exercised
by the Executive Office for Immigration Review, or by the Attorney
General with respect to [EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1);
see also 6 U.S.C. 521. 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. INA 103(g)(2), 8 U.S.C. 1103(g)(2).
Under the HSA, the Attorney General retains authority over the
conduct of section 240 removal proceedings. These adjudications are
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g), 8
U.S.C. 1103(g). With limited exceptions, IJs within DOJ adjudicate
asylum, statutory withholding of removal, and CAT protection
applications filed by noncitizens during the pendency of section 240
removal proceedings, including asylum applications referred by USCIS to
the immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA
240(a)(1), 8 U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8
CFR 1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532,
536-37 (7th Cir. 2018) (describing affirmative and defensive asylum
processes). The Board of Immigration Appeals (``BIA''), also within
DOJ, in turn hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1)
and (b)(3); see also Garland v. Ming Dai, 141 S. Ct. 1669, 1677-78
(2021) (describing appeals from IJ to BIA). In addition, the INA
provides that the ``determination and ruling by the Attorney General
with respect to all questions of law shall be controlling.'' INA
103(a)(1), 8 U.S.C. 1103(a)(1).
In addition to the separate authorities discussed above, the
Attorney General and the Secretary share some authorities. Section 208
of the INA, 8 U.S.C. 1158, authorizes the ``Secretary of Homeland
Security or the Attorney General'' to ``grant asylum'' to a noncitizen
``who has applied for asylum in accordance with the requirements and
procedures established by'' the Secretary or the Attorney General under
section 208 if the Secretary or the Attorney General determines that
the noncitizen is a refugee. INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).
Section 208 thereby authorizes the Secretary and the Attorney General
to ``establish[ ]'' ``requirements and procedures'' to govern asylum
applications. Id. The statute further authorizes them to ``establish,''
``by regulation,'' ``additional limitations and conditions, consistent
with'' section 208, under which a noncitizen ``shall be ineligible for
asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the
Attorney General to ``provide by regulation for any other conditions or
limitations on the consideration of an application for asylum not
inconsistent with [the INA]'').\46\ The INA also provides the Secretary
and Attorney General authority to publish regulatory amendments
governing their respective roles regarding apprehension, inspection and
admission, detention and removal, withholding of removal, deferral of
removal, and release of noncitizens encountered in the interior of the
United States or at or between POEs. See INA 235, 236, 241, 8 U.S.C.
1225, 1226, 1231.
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\46\ Under the HSA, the references to the ``Attorney General''
in the INA also encompass the Secretary, either solely or
additionally, with respect to statutory authorities vested in the
Secretary in the HSA or subsequent legislation, including in
relation to immigration proceedings before DHS. 6 U.S.C. 557.
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The HSA granted DHS the authority to adjudicate asylum applications
and to conduct credible fear interviews, make credible fear
determinations in the context of expedited removal, and to establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); see also 6 U.S.C. 271(b) (providing for the transfer of
adjudication of asylum and refugee applications from the Commissioner
of Immigration and Naturalization to the Director of the Bureau of
Citizenship and Immigration Services, now USCIS). Within DHS, the
Secretary has delegated some of those authorities to the Director of
USCIS, and USCIS AOs conduct credible fear interviews, make credible
fear determinations, and determine whether a noncitizen's asylum
application should be granted. See DHS, Delegation to the Bureau of
Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); 8 CFR
208.2(a), 208.9, 208.30.
The United States is a party to the Refugee Protocol, which
incorporates Articles 2 through 34 of the Refugee Convention. Article
33 of the Refugee Convention generally prohibits parties to the
Convention from expelling or returning (``refouler'') ``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.'' 120%
Congress codified these obligations in the Refugee Act of 1980,
creating the precursor to what is now known as statutory withholding of
removal.\47\ The Supreme Court has long recognized that the United
States implements its non-refoulement obligations under Article 33 of
the Refugee Convention (via the
[[Page 31324]]
Refugee Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which
provides that a noncitizen may not be removed to a country where their
life or freedom would be threatened on account of one of the protected
grounds listed in Article 33 of the Refugee Convention.\48\ See INA
241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA
also authorizes the Secretary and the Attorney General to implement
statutory withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3). See INA 103(a)(1) and (3), (g)(1) and (2), 8 U.S.C.
1103(a)(1) and (3), (g)(1) and (2).
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\47\ Public Law 96-212, 94 Stat. 102 (``Refugee Act'').
\48\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999);
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987)
(distinguishing between Article 33's non-refoulement prohibition,
which aligns with what was then called withholding of deportation
and Article 34's call to ``facilitate the assimilation and
naturalization of refugees,'' which the Court found aligned with the
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158).
The Refugee Convention and Protocol are not self-executing. E.g.,
Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967
Protocol is not self-executing, nor does it confer any rights beyond
those granted by implementing domestic legislation.'').
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The Departments also have authority to implement Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20,
1994). The Foreign Affairs Reform and Restructuring Act of 1998
(``FARRA'') provides the 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, 2681-822 (8 U.S.C. 1231 note).
DHS and DOJ have implemented the United States' obligations under
Article 3 of the CAT in the CFR, consistent with FARRA. See, e.g., 8
CFR 208.16(c) through 208.18, 1208.16(c) through 1208.18; Regulations
Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999),
as corrected by 64 FR 13881 (Mar. 23, 1999).
This rule does not change the eligibility requirements for
statutory withholding of removal or CAT protection. As further
discussed below, the rule applies a ``reasonable possibility'' standard
in screenings for statutory withholding of removal and CAT protection
in cases where the presumption of asylum ineligibility is applied and
not rebutted. While the application of this standard is a change from
the prior practice in the expedited removal context, it is the same
standard used in protection screenings in other contexts and is
consistent with both domestic and international law. See 8 CFR 208.31.
IV. Public Comments and Responses
The Departments received 51,952 comments on the proposed rule, the
majority of which expressed opposition to the proposal. A range of
governmental and non-governmental entities, public officials, and
private persons submitted comments. The Departments summarize and
respond to the public comments below.
A. General Support
1. General Support
Comment: Many commenters stated their support for the rule overall.
Commenters emphasized the importance of border security, stating that
the Government must do what is necessary to both manage workloads at
the border and stop migrants from entering the United States without
permission.
Response: Promulgation of this rule is needed because, once the
Title 42 public health Order is lifted, the number of migrants
traveling to the United States without authorization is expected to
increase significantly, to a level that risks undermining the
Departments' ability to safely, effectively, and humanely enforce and
administer U.S. immigration law, including the asylum system. Such a
surge would also place additional pressure on States, local
communities, and non-governmental organization (``NGO'') partners both
along the border and in the interior of the United States.
To address these issues, the rule imposes a rebuttable presumption
of asylum ineligibility for certain migrants who enter the United
States outside of safe, orderly, and lawful pathways and without first
seeking protection in a third country they have traveled through en
route to the SWB, during a designated period of time. The rule (1)
incentivizes the use of multiple existing lawful, safe, and orderly
means for noncitizens to enter the United States to seek asylum and
other forms of protection; (2) continues to provide core protections
for noncitizens who would be threatened with persecution or torture in
other countries; and (3) builds upon ongoing efforts to share the
responsibility of providing asylum and other forms of protection to
deserving migrants with the United States' regional partners.
The successful implementation of the CHNV parole processes has
demonstrated that an increase in lawful pathways, when paired with
consequences for migrants who do not avail themselves of such pathways,
can incentivize the use of such pathways and undermine transnational
criminal organizations, such as smuggling operations. The rule, which
is fully consistent with domestic and international legal obligations,
provides the necessary consequences to maintain this incentive under
Title 8 authorities. In short, the Departments expect the rule, coupled
with an expansion of lawful, safe, and orderly pathways, to reduce the
number of noncitizens seeking to cross the SWB without authorization to
enter the United States.
The benefits of reducing the number of encounters include
protecting against overcrowding in border facilities; allowing for the
continued effective, humane, and efficient processing of noncitizens at
and between ports of entry; and helping to reduce reliance on dangerous
human smuggling networks that exploit migrants for financial gain. Even
where the rule applies, the presumption against asylum eligibility may
be rebutted in certain circumstances, such as where, at the time of the
noncitizen's entry into the United States, they or a family member with
whom they are traveling are experiencing an acute medical emergency or
an extreme and imminent threat to life or safety, or are a victim of a
severe form of trafficking. Moreover, DHS will still screen migrants
who cannot overcome the rebuttable presumption to determine if the
migrant has established a reasonable possibility of persecution for the
purposes of statutory withholding of removal or a reasonable
possibility of torture for the purposes of protection under the
regulations implementing the CAT. See 8 CFR 208.33(b)(2)(i). Should a
migrant receive a negative credible fear determination, they can also
seek review of the determination by an IJ. See 8 CFR 208.33(b)(2)(iii)
through (v). Those who are found to have credible fear due to a
reasonable possibility of persecution or torture will then have the
opportunity for further consideration of their protection claims via a
section 240 removal proceeding. See 8 CFR 208.33(b)(2)(ii).
2. Need, Effectiveness, and Rationale for the Rule
Comment: Commenters described the rule as a common-sense approach
to managing migration at the border and
[[Page 31325]]
discouraging illegal migration, while others stated that the rule would
contribute to the ``rule of law'' at the border. Other commenters noted
that a change such as that made by this rule is necessary, as it is
simply impossible to admit all migrants who want to enter the United
States. Some commenters stated that the rule is a reasonable solution
until Congress can take legislative action to address the issue. Other
commenters supported the rule's encouragement for migrants to first
seek protection in third countries they pass through before requesting
asylum at the SWB and asserted that such a requirement is standard in
international law; commenters further stated that the rule would
discourage ``asylum shoppers.'' Commenters stated that allowing
migrants to cross multiple countries en route to the United States
before claiming asylum defeats the true purpose of asylum. Some
commenters stated that migrants know that claiming asylum allows them
entry into the United States, and thus take advantage of the process.
Response: As noted above, the Departments have designed this rule
in response to the number of migrants expected to travel without
authorization to the United States after the lifting of the Title 42
public health Order, absent a policy change such as this one. In that
case, the circumstances likely to occur include the following: an
additional number of migrants anticipated to arrive at the border; the
severe strain on resources that this influx of migrants would cause
DHS; and a substantial resulting impact on U.S. Government operations,
as well as local communities. DHS's successful Uniting for Ukraine
(``U4U'') and CHNV parole processes--under which DHS coupled a
mechanism for noncitizens from these countries to seek entry to the
United States in a lawful, safe, and orderly manner with the imposition
of new consequences for those who cross the SWB without authorization--
have demonstrated that an increase in the availability of lawful
pathways paired with consequences for migrants who do not avail
themselves of such pathways can incentivize the use of lawful pathways
and undermine transnational criminal organizations, such as smuggling
operations. The Departments expect similar benefits from this rule,
especially a reduced number of encounters at the border, which will
help to protect against overcrowding in border facilities; allow for
the continued effective, humane, and efficient processing of
noncitizens at and between ports of entry; and reduce reliance on
dangerous human smuggling networks that exploit migrants for financial
gain.
The Departments designed the rule to strike a balance that
maintains safe and humane processing of migrants while also including
safeguards to protect especially vulnerable individuals. The rule
provides exceptions to the rebuttable presumption and allows migrants
to rebut the presumption in exceptionally compelling circumstances.
These exceptions and opportunities for rebuttal are meant to ensure
that migrants who are particularly vulnerable, who are in imminent
danger, or who could not access the lawful pathways provided are not
made ineligible for asylum by operation of the rebuttable presumption.
Those who are not excepted from and are unable to rebut the presumption
of ineligibility may still pursue statutory withholding of removal and
protection under the CAT. In addition, to further aid migrants, the
Departments plan to continue to work with foreign partners to expand
lawful pathways for migration, as well as expand the Departments'
mechanisms for lawful processing. Thus, the rule will disincentivize
irregular migration and instead incentivize migrants--including those
intending to seek asylum--to use lawful, safe, and orderly pathways to
enter the United States, or seek asylum or other protection in another
country through which they travel.
3. Mitigate Irregular Migration and the Associated Impacts
Comment: Many commenters expressed support for the rule for a
variety of reasons. Commenters supported the change in policy, noting
that this rule would result in a more efficient use of government
resources at the border. Commenters also supported the proposed rule's
use of a formal process for asylum applicants. Some commenters stated
their support for the rule because the journey to the SWB is dangerous
due to harsh conditions and smugglers, and this rule would weaken
smugglers and transnational criminal enterprises and reduce their
exploitation of migrants. Commenters also stated that incentivizing
migrants to present themselves at POEs would reduce their risk of
exploitation by human traffickers or other harm when attempting to
cross between POEs. Commenters commended the Departments for
prioritizing safe and orderly processing methods for those seeking
refuge. Some commenters indicated that border security is critical and
expressed concerns that malicious actors could enter the United States
more easily during a surge in migration.
Response: The Departments recognize these commenters' support for
the rule and agree that maintaining border security is critical. The
Departments agree that irregular migration is dangerous and can lead to
increased strain on SWB operations and resources, increased illegal
smuggling activity, and increased pressure on communities along the
SWB. The United States has taken several measures to meet the influx of
migrants crossing the SWB and is taking new steps to address increased
flows throughout the Western Hemisphere.\49\
---------------------------------------------------------------------------
\49\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
---------------------------------------------------------------------------
However, the anticipated increase in the number of migrants
following the lifting of the Title 42 public health Order threatens to
exceed the Departments' capacity to safely and humanely process
migrants. By coupling the rule with additional lawful pathways and
allowing migrants to schedule their arrival at a SWB POE, currently via
the CBP One app, the rule will reduce the number of noncitizens seeking
to cross the SWB without authorization to enter the United States. This
reduction will protect against overcrowding in border facilities; allow
for the continued effective, humane, and efficient processing of
noncitizens at and between ports of entry; and help to reduce reliance
on dangerous human smuggling networks that exploit migrants for
financial gain. The Departments expect that this rule will result in
decreased strain on border states, local communities, and NGOs and,
accordingly, allow them to better absorb releases from CBP border
facilities and provide support to the migrant community. Ultimately,
this rule will disincentivize irregular migration and instead
incentivize migrants to use safe, orderly, and lawful pathways to the
United States or to seek protection in third countries.
4. Positive Impacts on Operations and Resources
Comment: Commenters supported the rule, stating that allowing
migrants to remain in the United States at the government's expense
while waiting for their asylum claim to be adjudicated is a waste of
government resources. Commenters said that the rule--specifically when
coupled with the expanded use of the CBP One app and the ability for
migrants to schedule appointments--would allow for more efficient
processing at the SWB. Commenters stated that, by decreasing
[[Page 31326]]
the number of migrants seeking asylum, the Departments would adjudicate
asylum claims much faster and decrease the amount of time migrants must
wait in the United States before receiving a final decision in their
case.
Response: The Departments recognize these commenters' support and
agree that the rule will have benefits for both those granted asylum
and the U.S. immigration system. The rule encourages noncitizens to use
lawful, safe, and orderly pathways to enter the United States, or seek
asylum or other protection in another country through which they
travel. The rule is designed to channel the high numbers of migrants
expected to seek protection in the United States following the
termination of the Title 42 public health Order into lawful, safe, and
orderly pathways and ensure they can be processed in an effective,
humane, and efficient manner. In addition, the Departments anticipate
that the use of the CBP One app--the current scheduling mechanism that
provides migrants with a means to schedule a time and place to present
themselves at a SWB POE--will allow CBP to streamline the processing of
noncitizens at POEs on the SWB and process significantly more
individuals in a safe and orderly manner.
Adjudication on the merits of an asylum claim for those who
establish credible fear and are placed into removal proceedings can be
a long process. Thirty-eight percent of all noncitizens who entered
along the SWB, received a positive credible fear determination, and
were placed into proceedings before EOIR between FY 2014 and FY 2019
remained in EOIR proceedings as of December 31, 2022.\50\ Further,
almost half (47 percent) of those in EOIR cases who received positive
credible fear determinations resulting from FY 2019 encounters
(referrals to EOIR) remained in proceedings as of December 31,
2022.\51\ Excluding in absentia orders, the mean completion time for
EOIR cases in FY 2022 was 3.7 years.\52\ Thus, those who have a valid
claim to asylum in the United States often wait years for a final
relief or protection decision; likewise, noncitizens who will
ultimately be found ineligible for asylum or other protection--which
occurs in the majority of cases--often have spent many years in the
United States prior to being ordered removed.
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\50\ See OIS analysis of OIS Enforcement Lifecycle data based on
data through December 31, 2022.
\51\ Id.
\52\ See OIS analysis of DOJ EOIR data based on data through
March 31, 2023.
---------------------------------------------------------------------------
This lengthy adjudications process means that migrants who can
establish credible fear can expect to remain in the United States for
an extended period regardless of whether they will ultimately obtain
asylum status at an EOIR hearing on the merits. Allowing a migrant to
remain in the United States for years before ultimately determining the
migrant is ineligible for asylum or other protection is inefficient,
risks creating a pull factor for other intending migrants, and runs
counter to principles of judicial fairness, including the swift
adjudication of claims. As discussed in the NPRM, see 88 FR at 11737,
and below at Section IV.B.2 of this preamble, the Departments have
determined that this rule will lead to increased efficiencies in the
asylum adjudications process so that claims can be adjudicated without
a lengthy delay.
5. Other Support
Comment: Commenters agreed that the Departments have the legal
authority to restrict asylum eligibility based on a migrant's failure
to seek protection in a third country that they have traveled through
on route to the SWB and that such a policy is consistent with both
domestic and international law. Commenters stated that the rule was
necessary because most migrants do not have legitimate asylum claims,
noting low grant rates by EOIR, and are instead seeking economic
opportunities in the United States. Other commenters expressed general
support for the rule and stated a belief that asylum seekers do not
have legitimate claims because they may be coached by NGOs or other
organizations.At least one commenter stated that if a migrant traveled
through a third country with a legitimate asylum process on their way
to the United States, DHS should assume that the migrant is not really
in fear for their life; otherwise, the U.S. asylum system would be used
for economic migration, the demand for which should be addressed by
other means. Another commenter said that the proposed rule encourages
asylum-seekers to use the ``front door'' by presenting at POEs and
fulfills domestic and international legal obligations by removing
eligibility for asylum for those who fail to do so while maintaining
access to statutory withholding of removal and protection under the
CAT. The commenter noted that countries are within their rights to
limit access to asylum. The commenter also stated that many individuals
are barred from asylum eligibility for reasons such as fraud, criminal
convictions, and illegal reentry, and that the proposed rule would add
those who do not avail themselves of asylum in the nearest country and
do not apply at a POE to this list, which should limit further unlawful
entries and use of government resources. Some commenters supported the
rule and suggested that the Government disseminate information about
the rule in other countries to ensure migrants planning to seek asylum
are aware of both the asylum process and the consequences of non-
compliance.
Response: As discussed further below in Section IV.B.D, the
Departments agree that the rule is consistent with U.S. obligations
under both domestic and international law, including the INA; the
Refugee Convention; the Refugee Protocol, which incorporates Articles 2
through 34 of the Refugee Convention; and the CAT. While the
Departments appreciate these commenters' support for the rule, the
Departments emphasize that this rule is necessary to prevent the
expected increase in the number of migrants who would otherwise seek to
travel without authorization to the United States after the termination
of the Title 42 public health Order, which would risk undermining the
Departments' ability to safely, effectively, and humanely enforce and
administer U.S. immigration law, including the asylum system. In other
words, the Departments do not rely on the alternative goals or bases of
support for the rule expressed in the comments summarized above.
The Departments appreciate the importance of disseminating
information about the rule to the public, including intending migrants,
and are planning a robust communication effort in conjunction with and
immediately following the publication of this rule.
B. General Opposition
1. General Opposition
Comment: The Departments received many comments expressing general
opposition to the rule. Some commenters expressed opposition to the
rule and encouraged the Administration to withdraw it, without further
explanation. Commenters also stated, without explanation, that the rule
would allow future administrations the ability to decide which
nationalities are afforded protections, instead of making protections
available for everyone in need. Other commenters stated the rule
creates barriers, not pathways, for asylum seekers.
Response: The Departments take seriously the concerns expressed by
commenters who generally oppose the rule. Because some of these
comments failed to articulate specific reasoning underlying the general
opposition, the
[[Page 31327]]
Departments are unable to provide a more detailed response to those
comments. In general, the Departments emphasize that this rule is
necessary to ensure that, after the lifting of the Title 42 public
health Order, protection claims made by noncitizens encountered at the
SWB can be processed in a manner that is effective, humane, and
efficient. The rule is also designed to reduce overcrowding at DHS
facilities and reduce migrants' reliance on exploitive smuggling
networks. The Departments intend this rule to work in conjunction with
other initiatives that expand lawful pathways to enter the United
States, and thereby incentivize safe, orderly, lawful migration over
dangerous, irregular forms of migration. Although some lawful pathways,
which exist separate from this rule, are available only to particular
nationalities, this rule does not deny protection on the basis of
nationality. A noncitizen of any nationality may avoid the rebuttable
presumption by, for instance, presenting at a POE pursuant to a pre-
scheduled time and place. As discussed in the NPRM and further below,
the rule's presumption against asylum eligibility only applies to those
who enter during a 2-year period, is rebuttable, and contains multiple
exceptions to prevent undue harm to noncitizens with meritorious
protection claims.
2. Need, Effectiveness, and Rationale for the Rule
Comment: Commenters asserted that the Departments' concerns about a
future surge of migration after the end of the Title 42 public health
Order are speculative and unsupported. One commenter said that the
surge numbers were unreliable at best, that entries between POEs were
higher two decades ago, and that the surge could in part be the result
of attempted suppression of normal migration. Some commenters
questioned the Departments' planning projection of the number of border
encounters it expects when the Title 42 public health Order is lifted
as a valid justification of the NPRM. Another commenter stated that the
numbers of unauthorized unique individuals detained at the border are
far from an all-time high or a record, and that attempts to enter the
country undetected have plummeted. One commenter stated that the Title
42 public health Order increased the percentage of individuals
attempting repeated crossings at the border, which has artificially
inflated CBP's border apprehension statistics, and thereby overstated
the scale of the problem at the border. Some commenters stated that the
public is unable to properly evaluate the Departments' data used to
justify the rule because the ``DHS SWB Encounter Planning Model
generated January 6, 2023'' cited in the NPRM, e.g., 88 FR at 11705
n.11, does not have a link to the model and it does not provide
information on methodology, data sources, and alternative figures.
Response: The Departments strongly disagree that the concerns
stated in the NPRM regarding an ongoing and potential further surge of
migration are speculative or unsupported. As noted in the NPRM, for the
30 days ending December 24, 2022, total daily encounters along the SWB
consistently fluctuated between approximately 7,100 and 9,700 per day,
averaging approximately 8,500 per day, with encounters exceeding 9,000
per day on 12 different occasions during this 30-day stretch.\53\ 88 FR
at 11704-05. While commenters are correct that the Title 42 public
health Order has increased the percentage of repeat crossing attempts
relative to the 2010s, since 2022 over 97 percent of extra-regional
migrants (i.e., migrants not from Mexico or Northern Central America
\54\)--the people representing the greatest processing challenge--are
unique encounters.\55\ Encounter totals reached an all-time high in FY
2022, and they remain at historically high levels even as encounters of
CHNV nationals have fallen in recent months.\56\
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\53\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\54\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\55\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\56\ Concrete data on unique versus repeat encounters are only
available since 2010. During that period, for the years prior to the
implementation of Title 42 expulsions, the percentage of encounters
that were unique increased each year from 2010-2019. OIS analysis of
OIS Persist Dataset based on data through March 31, 2023. While
specific data on numbers of unique encounters are not available
prior to 2010, it is widely accepted that the years before the 2010,
and particularly the years before 2000, were characterized by much
larger numbers of repeat encounters, as most encounters were of
Mexican nationals who were permitted to return to Mexico without
being subject to formal removal proceedings or other enforcement
consequences. See also DHS, FY 2021 Border Security Metrics Report
(Apr. 27, 2022), https://www.dhs.gov/immigration-statistics/border-security/border-security-metrics-report.
---------------------------------------------------------------------------
OIS leads an interagency working group that produces a roughly bi-
weekly SWB encounter projection used for operational planning, policy
development, and short-term budget planning. The model used to produce
encounter projections every two to four weeks is a mixed-method
approach that combines a statistical predictive model with subject
matter expertise intended to provide informed estimates of future
migration flow and trends. The mixed methods approach blends multiple
types of models through an ensemble approach of model averaging.\57\
The model includes encounter data disaggregated by country and
demographic characteristics going back to FY 2013, data on
apprehensions of third country nationals by Mexican enforcement
agencies, and economic data. DHS uses the encounter projection to
generate a range of planning models, including ``moderately-high''
planning models that are based on the 68 percent upper bound of the
forecast interval and ``high'' planning models based on the 95 percent
upper bound of the forecast interval.
---------------------------------------------------------------------------
\57\ Blending multiple models and basing predictions on prior
data has been understood to improve modeling accuracy. See, e.g.,
Spyros Makridakis et al., Forecasting in Social Settings: The State
of the Art, 36 Int'l J. Forecasting 15, 16 (2020) (noting that it
has ``stood the test of time [that] combining forecasts improves
[forecast] accuracy''); The Forecasting Collaborative, Insights into
the Accuracy of Social Scientists' Forecasts of Societal Change,
Nat. Hum. Behaviour, Feb. 9, 2023, https://doi.org/10.1038/s41562-022-01517-1 (comparing forecasting methods and suggesting that
forecasting teams may materially improve accuracy by, for instance,
basing predictions on prior data and including scientific experts
and multidisciplinary team members).
---------------------------------------------------------------------------
Encounter projections are, of course, subject to some degree of
uncertainty. International migration is an exceedingly complex process
shaped by family and community networks, labor markets, environmental
and security-related push factors, and rapidly evolving criminal
smuggling networks, among other factors. Recent unprecedented changes
in migration flows have further complicated the task of predicting
future migration flows with precision. As recently as the 2000s,
unauthorized migration to the SWB consisted almost entirely of single
adults from Mexico.\58\ Families and UCs accounted for increasing
shares of unauthorized migrants in the 2010s, as did migrants from
Northern Central America; and ``extra-regional'' migrants have driven
increased flows in the 2020s, accounting for an absolute majority of
encounters in FY 2023
[[Page 31328]]
YTD.\59\ The OIS working group takes these recent changes in migration
flows into account in preparing its roughly bi-weekly encounter
projection models.
---------------------------------------------------------------------------
\58\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 97 percent of all
administrative arrests by the legacy Immigration and Nationality
Service from 1981-1999. According to OIS Production data, Mexican
nationals also accounted for 97 percent of SWB encounters from 2000-
2003. Mexico's share of SWB border encounters fell to 94 percent in
2004, an all-time low, then averaged 91 percent for the remainder of
the 2000s. OIS analysis of OIS Yearbook on Immigration Statistics,
1981-1999; OIS Production Data, 2000-2009.
\59\ Families and unaccompanied children accounted for an
estimated 11 percent of SWB encounters in 2013, rising to 62 percent
in 2019, and have averaged 30 percent from 2020 through March 2023.
Data on unaccompanied children were first collected in 2008 and data
on other family statuses were first collected in 2013, but not
universally collected until 2016. Mexican nationals accounted for an
average of 57 percent of SWB encounters from 2013-2015, fell to an
all-time low of 24 percent in 2019 (when Northern Central Americans
accounted for 64 percent of the total), and have averaged 35 percent
of encounters from 2021 through March 2023. Extra regional nationals
accounted for an average of 9 percent of SWB encounters from 2013-
2018, 12 percent from 2019-2020, and account for 52 percent in the
first six months of FY 2023. OIS analysis of OIS Persist Dataset
based on data through March 31, 2023.
---------------------------------------------------------------------------
Demographic changes in migration flows have introduced new
challenges in the field of border enforcement. For decades the
challenge was to detect and interdict Mexican nationals seeking to
evade detection and to return them to Mexico, which generally was
cooperative in accepting back its nationals across the land border.
Today's set of challenges is broader; the United States Government must
humanely process family units and UCs and consider tens of thousands of
asylum claims, granting relief or protection where appropriate and
imposing enforcement consequences (such as removal or return, and in
some cases criminal charges), all with limited processing resources and
challenges relating to barriers to repatriations for nationals from
certain countries. These changes have significant implications,
requiring substantial resources from CBP, ICE, USCIS, EOIR, and HHS.
An additional consideration in how the Departments utilize
encounter projections for operational planning and budgeting is that it
takes weeks or months to put new enforcement resources in place, while
removing such resources takes much less time. For this reason, DHS
generally must be conservative in its enforcement planning because the
failure to have adequate resources in place at the start of a migration
surge risks vicious cycles in which inadequate capacity to implement
critically needed tools to disincentivize irregular migration, coupled
with persistent and strong ``push factors,'' contribute to cascading
adverse effects as the enforcement system becomes overwhelmed. Such
effects include overcrowding in DHS facilities (which can endanger both
migrants and DHS personnel), more noncitizens being released into the
interior pending immigration proceedings, and additional flows of
migrants. In the current context of added uncertainty in the encounter
projection and evolving enforcement challenges, DHS focuses its
operational planning efforts on the high and moderately-high planning
models rather than planning for an optimistic scenario that could leave
enforcement efforts badly under-resourced. As for this policymaking
effort, the Departments believe the policies in this rule are justified
``in light of the migration patterns witnessed in late November and
December of 2022, and the concern about the possibility of a surge in
irregular migration upon, or in anticipation of, the eventual lifting
of the Title 42 public health Order.'' 88 FR at 11708.
With respect to the suggestion that the Departments should have
subjected the OIS planning model to more detailed review by commenters,
the Departments respectfully disagree. In addition to the Departments'
description of the planning model in the NPRM, see 88 FR at 11705 n.11,
the Departments presented a range of the underlying data clearly
demonstrating the scope of the problem the Departments face. See, e.g.,
88 FR at 11704-05 (``For the 30 days ending December 24, 2022, total
daily encounters along the SWB consistently fluctuated between
approximately 7,100 and 9,700 per day, averaging approximately 8,500
per day, with encounters exceeding 9,000 per day on 12 different
occasions during this 30-day stretch''); id. at 11708-14 (describing
the historically unique nature of current migratory trends and the role
of shifting demographics and other factors on these trends). Although
the Departments did not describe the planning models in minute detail,
the data make clear the basis for the proposed rule and no commenters
submitted data suggesting that the Departments do not currently face,
and will not imminently face, an urgent circumstance requiring a policy
response.
Comment: One commenter stated that concerns that NGOs and shelter
networks have or are close to reaching their ``outer limit'' of
capacity are unfounded, because according to the commenter, none of the
$800 million newly allocated for humanitarian reception had been
distributed as of the NPRM's publication in late February of this year.
The commenter wrote that there are numerous ways that the
Administration can work with Congress and NGO partners to continue to
build shelter capacity and effectively respond to the needs of arriving
migrants and asylum seekers. Similarly, a commenter noted that the
Government pays private, for-profit detention facilities $320/day to
detain noncitizens, but only pays shelters $25 for a single bed. The
commenter wrote that they had been asking the Government for more than
two years to provide more funding to shelters and increase cooperation
with NGOs, to no avail.
Response: The Departments acknowledge commenters' concerns about
funds dedicated for NGOs and shelter networks as they work to respond
to migratory flows and note that one expected effect of this rule is to
disincentivize irregular migration, which may in turn result in reduced
demand for certain NGO and shelter services. With respect to grant
funding generally, as noted in the NPRM, the Federal Emergency
Management Agency (``FEMA'') spent $260 million in FYs 2021 and 2022 on
grants to non-governmental and state and local entities through the
Emergency Food and Shelter Program--Humanitarian (``EFSP-H'') to assist
migrants arriving at the SWB with shelter and transportation. See 88 FR
at 11714. In November 2022, FEMA released $75 million through the
program, consistent with the Continuing Appropriations and Ukraine
Supplemental Appropriations Act, 2023.\60\ In addition, the Bipartisan
Year-End Omnibus, which was enacted on December 29, 2022, directed CBP
to transfer $800 million in funding to FEMA to support sheltering and
related activities for noncitizens encountered by DHS. The Omnibus
authorized FEMA to utilize this funding to establish a new Shelter and
Services Program and to use a portion of the funding for the existing
EFSP-H, until the Shelter and Services Program is established.\61\ On
February 28, 2023, DHS announced a $350 million funding opportunity for
EFSP-H.\62\ This is the first major portion of funding that is being
allocated for humanitarian assistance under the Omnibus funding
[[Page 31329]]
approved in December.\63\ For the new Shelter and Services Program,
FEMA and CBP have held several public listening sessions and are
developing plans to release a Notice of Funding Opportunity prior to
September 2023 for the second major portion of funding allocated by
Omnibus to assist migrants encountered by DHS.
---------------------------------------------------------------------------
\60\ Public Law 117-180, Division A, Sec. 101(6), Continuing
Appropriations Act, 2023.
\61\ Public Law 117-328, Division F, Title II, Security
Enforcement, and Investigations, U.S. Customs and Border Protection,
Operations and Support.
\62\ See DHS, Press Release, The Department of Homeland Security
Awards $350 Million for Humanitarian Assistance Through the
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through; DHS Grant Opportunity DHS-
23-DAD-024-00-03, Fiscal Year 2023 Emergency Food and Shelter
National Board Program--Humanitarian (EFSP) ($350M) (Feb. 28, 2023),
https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460.
\63\ DHS, Press Release, The Department of Homeland Security
Awards $350 Million for Humanitarian Assistance Through the
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through.
---------------------------------------------------------------------------
The Departments emphasize that the reference to an ``outer limit''
in the NPRM was a prediction that the expected increase in migration at
the border following the end of the Title 42 public health Order,
without any other policy changes, could exceed the capacity of the
Department of State, local governments, and NGOs to provide assistance
to migrants. 88 FR at 11715. While commenters are correct that the $800
million in funding approved in the recent Omnibus is still being
distributed and allocated, the Departments disagree that this ongoing
funding conflicts with the statement in the NPRM. In other words,
funding allocated to date, and funding slated for further allocation
under the Omnibus funding approved in December, is insufficient to
address the impending further surge of migration expected after the
termination of the Title 42 public health Order.
Comment: Multiple commenters stated their opposition to
``deterrence-oriented'' rules. At least one commenter stated the NPRM
makes clear the Administration wants to make the asylum system
``cumbersome and difficult to navigate'' to deter potential asylum
seekers from coming to the United States, stating Vice President
Harris' comment of ``do not come'' in 2021 was a message that those
fleeing danger should not seek protection in the United States. Another
commenter stated the proposed rule would not be an effective deterrent
because of its similarity to the Migrant Protection Protocols (``MPP'')
and the Title 42 public health Order in the past, which the commenter
claimed ``outsourced and exacerbated the situation'' by leaving
thousands of individuals in dangerous conditions in Mexican border
cities waiting to see if, or when, they will get into the United
States. Another commenter stated the rule does not serve as a
deterrent, as evidenced by the growing numbers of asylum seekers at the
border.
Some commenters disagreed that the rule would reduce arrivals at
the SWB. Commenters disagreed with the premise underlying the proposed
rule--that the rebuttable presumption would disincentivize migrants
from entering the United States except through a lawful and orderly
pathway and lead to a reduction in encounters at the SWB. Another
commenter argued that the rule is providing an opportunity to smuggling
organizations and also providing an additional tool for extortion for
noncitizens seeking to enter the United States. Another commenter
stated that there is no evidence that the NPRM will deter asylum
seekers from crossing the border and suggested that arrivals at the
border would increase due to suppression of entries at POEs.
Response: The Departments disagree that the rule generally seeks to
discourage asylum seekers from coming to the United States. Rather, the
rule seeks to strike a balance: It is intended to reduce the level of
irregular migration to the United States, but also to preserve
sufficient avenues for migrants with valid claims to apply for asylum
or other protection, either in the United States or in third countries
through which they travel. This rule is also intended to disincentivize
the use of smugglers. To those ends, the rule encourages those with
meritorious claims to either apply for asylum or other protection in
the first safe country they reach or pursue available lawful pathways
to the United States as set forth in the rule.
The Departments also disagree with the comparison some commenters
made between this rule and certain past policies, including MPP and
application of the Title 42 public health Order. The rule's operation
as a rebuttable presumption, and the rule's operation in conjunction
with multiple available lawful pathways, are two of the multiple ways
in which this rule differs from certain past policies, including MPP or
expulsions under the Title 42 public health Order. As it relates to MPP
in particular, the purpose and effect of this rule is not to return
noncitizens to Mexico pending their removal proceedings. See INA
235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C). Instead, it is to incentivize
migrants, including those intending to seek asylum, to use lawful,
safe, and orderly pathways to enter the United States, or seek asylum
or other protection in another country through which they travel.
Although some migrants may wait for some period of time in Mexico
before obtaining a CBP One app appointment and before attending that
appointment, the purpose and duration of such a stay would be different
than under MPP. Absent this rule, DHS anticipates that its ability to
process noncitizens at POEs, as well as continue to facilitate regular
travel and trade, would be adversely impacted by the shifting of
resources and personnel from POEs to help process individuals
encountered between POEs.
The Departments disagree with commenters' claim that this rule will
not reduce entries and that it will incentivize irregular migration.
The Departments have shown that an increase in the availability of
lawful pathways, paired with immediate consequences for irregular
migration, can incentivize the use of lawful pathways and thus reduce
irregular migration. See 88 FR at 11705-06. Furthermore, the
Departments disagree with commenters' assertion that the rule will push
individuals away from POEs to cross between POEs. The rule incentivizes
noncitizens who might otherwise attempt to enter without inspection
between POEs to take advantage of expanded lawful pathways. The
availability of lawful pathways, such as the ability to schedule an
appointment through the CBP One app and the DHS-approved parole
processes, and the rule's operation as a rebuttable presumption are two
of the multiple ways in which this rule differs from certain efforts of
the past Administration.
Comment: Commenters raised concerns with Departmental data cited in
the NPRM. For example, commenters referred to two of the Departments'
statements in the NPRM: (1) that 83 percent of the people who were
subject to expedited removal and claimed to have a credible fear of
persecution or torture from 2014 to 2019 were referred to an IJ for
section 240 proceedings, but only 15 percent of those cases that were
completed were granted asylum or some other form of protection, see 88
FR at 11716; and (2) while only 15 percent of all case completions
result in relief or protection, OIS estimates that 28 percent of cases
decided on their merits are grants of relief, 88 FR at 11716 n.97.
Commenters stated that the 15 percent figure is misleading, because it
is based on the total percentage of completed removal cases, and not
the total percentage of cases decided on the merits of the asylum
claim. Commenters claim that this method artificially deflates the
asylum grant rate and creates the false impression that many asylum
seekers were ineligible for asylum even where there was no decision on
their asylum claim. Commenters also stated that the 28 percent figure
itself was too low because, as described by the Departments, this
figure excludes
[[Page 31330]]
withholding of removal, deferral of removal, cancellation of removal,
and claimed status reviews.
Commenters also claimed that asylum policies of the previous
Administration artificially deflated asylum grant rates. Other
commenters stated that it is logical that the percentage of cases
passing the credible fear interview stage is far higher than the cases
that eventually qualify for asylum, given that the credible fear
process is supposed to have a low bar for passage. Another commenter
stated that, by the Departments' logic, no asylum applicant should be
entitled to an initial credible fear determination and full asylum
merits hearing because their claims will probably be denied given the
low approval rating of asylum.
Response: The Departments cited relevant Departmental statistics--
which date back to 2014, prior to the implementation of any policies of
the prior Administration--to demonstrate the general point that there
is a significant disparity between positive credible fear
determinations and ultimate relief in section 240 removal proceedings.
See 88 FR at 11716. Whether one uses the 15-percent figure or the 28-
percent figure, ultimately, the number of individuals who are referred
to an IJ at the beginning of the expedited removal process greatly
exceeds the number who are granted asylum or some other form of relief
or protection.
Comment: A commenter stated that numerous factors beyond merit
impact whether an asylum seeker's case is ultimately granted (e.g.,
access to counsel, availability of experts, changing regulations and
procedures, and backlogs that affect the availability of evidence).
Another commenter noted that many who seek asylum in the United States
ultimately lose their cases not due to a lack of merit but instead
because of ``our convoluted and dysfunctional'' immigration system,
which the commenter claimed is difficult for asylum seekers to navigate
and results in denial of many asylum claims on bases unrelated to the
merits of the claim. One commenter asserted that modifying the legal
requirements for asylum will not stop migrants from fleeing armed
conflict, poverty or other dangers, because many are unaware of their
right to apply for asylum. Another commenter stated that the number of
migrants arriving is irrelevant to the merits of their asylum claims;
the commenter also argued that the rule would screen out asylum seekers
regardless of the merit of their case.
Response: The Departments acknowledge commenters' concerns that
factors unrelated to the merits of the claim, such as access to counsel
and unfamiliarity with the asylum process, could affect the ultimate
determination of an asylum claim, but disagree that these potential
issues are exacerbated by the rule. As discussed in more detail later
in Section IV.B.5 of this preamble, this rule does not deprive
noncitizens of access to counsel during credible fear proceedings.
Additionally, all AOs are trained to conduct interviews in a non-
adversarial manner and elicit relevant testimony from noncitizens.
Specific training for implementation of this rule will include training
on eliciting testimony related to whether a noncitizen can establish an
exception or rebut the presumption of asylum ineligibility; therefore,
noncitizens are not required to be familiar with the rule to remain
eligible for asylum. The Departments emphasize that in all credible
fear determinations, a noncitizen's credible testimony may be
sufficient to overcome or establish an exception to the presumption
against asylum ineligibility in this rule. INA 208(b)(1)(B)(ii), 8
U.S.C. 1158(b)(1)(B)(ii). As discussed later in Section IV.D.1.iii of
this preamble, the Departments note that the overall standard of proof
for rebutting or establishing an exception to the presumption of asylum
ineligibility during credible fear proceedings remains the
``significant possibility'' standard; that standard must be applied in
conjunction with the standard of proof required for the ultimate
determination (i.e., preponderance of the evidence that an exception
applies or that the presumption has been rebutted).
As discussed throughout the NPRM, the lawful pathways condition,
and the related modification of the withholding and CAT screening
standard applied to noncitizens subject to the condition, would improve
overall asylum processing efficiency by increasing the speed with which
asylum claims are considered. See 88 FR at 11737. By encouraging
noncitizens seeking to travel to the United States, including those
seeking asylum, to pursue lawful pathways and processes, the rule
promotes orderly processing and reduces the number of individuals who
would be placed in lengthy section 240 removal proceedings and released
into the United States pending such proceedings. Id. at 11736.
Moreover, by reducing the number of noncitizens permitted to remain in
the United States despite failing to avail themselves of a safe and
lawful pathway to seek protection, the rule reduces incentives for
noncitizens to cross the SWB, thus reducing the anticipated further
surge that is expected to strain DHS resources. The Departments
reiterate that the rule is not being promulgated to generally prevent
noncitizens from seeking asylum in the United States but to strike a
balance--reducing the level of irregular migration to the United States
while providing sufficient avenues for migrants with valid claims to
apply for asylum or other protection. The rule is needed because,
absent this rule, after the termination of the Title 42 public health
Order, the number of migrants expected to travel without authorization
to the United States is expected to increase significantly, to a level
that risks undermining the Departments' ability to safely, effectively,
and humanely enforce and administer U.S. immigration law, including the
asylum system.
Comment: One commenter asserted that the real purpose of the rule
is to incentivize an increasing number of migrants to use the CBP One
app to make fraudulent asylum claims. The same commenter also stated
``that the proposed rule and the CBP One app will incentivize increased
rates of illegal immigration into the United States.'' The commenter
further stated that because there is insufficient capacity to process
all of the asylum claims of those using the CBP One app, the rule will
simply increase the number of individuals who are paroled into the
United States, incentivizing further illegal immigration. Another
commenter argued that current migration levels result from the current
Administration's actions to ``weaken border security, promote the
influx of illegal immigration, and to remove integrity from the
administration of both the legal immigration process (including asylum
and credible fear measures) and overall enforcement of the laws.''
Similarly, another commenter stated that the root cause of this crisis
was ``the Administration's reckless open borders policies.''
Response: While the Departments acknowledge the commenters'
concerns about increased rates of unauthorized immigration into the
United States, the Departments disagree that the rule and use of the
CBP One app will incentivize noncitizens to enter the United States to
make fraudulent asylum claims. If anything, by adding a rebuttable
presumption of ineligibility, this rule creates a strong disincentive
for irregular migration relative to the status quo. The Departments
note that no commenter submitted data suggesting that the rule will
result in an increase in fraud or misrepresentation. As explained in
Section IV.B.5.iii of this
[[Page 31331]]
preamble, the Departments are confident that AOs have the training,
skills, and experience needed to assess credibility and appropriately
determine whether a noncitizen has met an exception to or rebutted the
presumption of ineligibility for asylum codified in the rule. Regarding
commenters' concerns that use of the CBP One app will increase the
number of individuals who are paroled into the United States and thus
incentivize irregular migration, the Departments note that the rule
does not provide for, prohibit, or otherwise set any policy regarding
DHS's discretionary authority to make parole determinations for those
who use the CBP One app. Even so, as outlined in the NPRM and later in
Section IV.E.3.ii of this preamble, the expanded use of the CBP One app
is expected to create efficiencies that will enable CBP to safely and
humanely expand its ability to process noncitizens at POEs, including
those who may be seeking asylum. See 88 FR at 11719. Notably, the rule,
coupled with an expansion of lawful, safe, and orderly pathways, is
expected to reduce the number of noncitizens seeking to cross the SWB
without authorization to enter the United States. Additionally, the
United States is undertaking a range of efforts to address irregular
migration, including, for instance, working with partner countries to
address the causes of migration, significantly increasing the
availability of H-2 temporary worker visas and refugee processing in
the Western Hemisphere, successfully implementing the CHNV parole
processes, and addressing the pernicious role of human smugglers. See
88 FR at 11718-21.
The Departments strongly disagree with commenters who assert that
the current migration levels are a result of any action by the
Departments to ``weaken'' security at the border. Rather, as noted in
the NPRM, economic and political instability around the world is
fueling the highest levels of migration since World War II, including
in the Western Hemisphere. See 88 FR 11704. Additionally, even while
the Title 42 public health Order has been in place, the total number of
encounters at the SWB reached an all-time high in FY 2022, and they
remain at historically high levels even as encounters of CHNV nationals
have fallen in recent months.\64\ See id. at 11704-05. During this
time, the United States has been working to build on a multi-pronged,
long-term strategy with countries throughout the region to support
conditions that would decrease irregular migration while continuing
efforts to increase immigration enforcement capacity and streamline
processing of asylum seekers and other migrants. See 88 FR at 11720-23.
This rule ensures that the United States meets its obligations under
both U.S. and international law while ensuring that vulnerable
populations are able to seek asylum or other protection through lawful,
safe, and orderly pathways.
---------------------------------------------------------------------------
\64\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023; OIS analysis of historic USBP data.
---------------------------------------------------------------------------
Comment: Commenters stated that the rule is unnecessary because the
goals of discouraging migrants from seeking asylum and swiftly removing
migrants are invalid. These commenters further stated that immigration
is good; there is no need to quickly remove asylum seekers, regardless
of backlogs; and that overwhelmed immigration facilities are problems
created by the Government that would be solved by welcoming migrants
rather than treating them as a problem or as dangerous. A few
commenters critiqued the need for the rule, writing that the proposed
rule is unnecessary and the Administration should take responsibility
for actions that have created an overloaded immigration system. Other
commenters questioned whether restrictive border measures and quickly
removing individuals actually reduce migratory flows. At least one
commenter did not understand how this rule was a ``good thing'' that
would change immigration policy in the United States, which the
commenter described as a ``disaster.'' A commenter stated that the
proposed rule is not needed and instead recommended implementing
practical and humane solutions, including funding and coordinating with
civil society organizations on the border and throughout the country.
Another commenter stated that she lives within 100 miles of the border
and does not feel threatened by the influx of migrants to her
community, and thus the rule is unnecessary.
One commenter stated that the U.S. immigration system is not broken
but the current laws need to be strictly enforced, while another
commenter stated that DHS should be strengthened so it can address each
case instead of lumping people into categories. At least one commenter
stated that there is no reason why DHS cannot process applicants more
quickly, noting that the United States received a significant number of
migrants in the early 1900s with far less technology, so the government
should be able to do so much more efficiently now with the
sophisticated technology, medical equipment, fingerprinting, and other
means available now. Another commenter stated that the rule would not
fix backlogs in immigration court, while a number of commenters
suggested that it would actually increase the backlogs.
A commenter questioned the need for the rule because the
Departments had not demonstrated that they had considered other
options. Another commenter requested that the Departments expressly
consider a range of factors, such as the U.S. economic outlook and the
role of other external variables (such as climate change) in driving
migration. The commenter suggested that such factors may influence
migration patterns to such a degree that the rule is unnecessary or
likely to be ineffective.
Response: The Departments disagree that the rule is unnecessary.
The Departments reiterate that the goal of the rule is not to generally
discourage migrants with valid claims from applying for asylum or other
protection, but rather to encourage the use of lawful, safe, and
orderly pathways into the United States. The Departments agree that the
United States' historical openness to immigration has enriched our
culture, expanded economic opportunities, and enhanced our influence in
the world. However, the U.S. immigration system has experienced extreme
strain with a dramatic increase of noncitizens attempting to cross the
SWB in between POEs without authorization, reaching an all-time high of
2.2 million encounters in FY 2022.\65\ The Departments believe that
without a meaningful policy change, border encounters could
dramatically rise to as high as 11,000 per day after the Title 42
public health Order is lifted.\66\ As described in the NPRM, DHS does
not currently have the resources to manage and sustain the processing
of migratory flows of this scale in a safe and orderly manner, even
with the assistance of modern technology. See 88 FR at 11712-13. In
response to this urgent situation, the rule will establish a rebuttable
presumption of asylum ineligibility for certain noncitizens who fail to
take advantage of the existing and expanded lawful pathways to enter
the United States, including the opportunity to schedule a time and
place to present at a SWB POE, where they may seek asylum or other
forms of protection, in a lawful, safe, and orderly manner, or to seek
asylum or other protection in one of the countries through which they
[[Page 31332]]
travel on their way to the United States. See id at 11706. The
Departments believe that this rule is necessary to address the
anticipated surge in irregular migration.
---------------------------------------------------------------------------
\65\ OIS analysis of historic USBP data.
\66\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023.
---------------------------------------------------------------------------
The Departments also believe the rule is necessary to improve the
overall functioning and efficiency of the immigration system. See INA
208(b)(2)(C) and (d)(5)(B), 8 U.S.C. 1158(b)(2)(C) and (d)(5)(B).
Specifically, the rule would efficiently and fairly provide relief to
noncitizens who are in the United States and are eligible for relief,
while also efficiently denying relief and ultimately removing those
noncitizens who are determined to be ineligible for asylum and do not
qualify for statutory withholding of removal or protection under the
regulations implementing the CAT. The Departments acknowledge that
despite the protections preserved by the rule and the availability of
lawful pathways, the rebuttable presumption adopted in the rule will
result in the denial of some asylum claims that otherwise may have been
granted, but the Departments believe that the rule will generally offer
opportunities for those with valid claims to seek protection. Moreover,
the Departments have determined that the benefits to the overall
functioning of the system, including deterrence of dangerous irregular
migration and smuggling, justify the rule. In sum, the rule permissibly
pursues efficient asylum processing while preserving core protections,
which is within the Departments' authority conferred by section 208 of
the INA, 8 U.S.C. 1158.
The Departments acknowledge commenters' support for enforcing
existing immigration laws. However, the Departments do not believe that
current laws and regulations are sufficient to address the current
levels of migratory flows and the anticipated increase in the number of
migrants who will attempt to enter the United States following the
lifting of the Title 42 public health Order. Likewise, a policy is
necessary to ensure lawful, safe, and orderly processing of those
migrants. Absent further action, POEs will be congested, migrants will
be forced to wait in long lines for unknown periods of time, and once
processed they will be released into local communities that are already
at or near their capacity to absorb them. See 88 FR at 11715. By
incentivizing noncitizens to use lawful pathways, this rule aims to
encourage migrants to either pursue options that would allow them to
avoid making the journey to the SWB, or to schedule in advance a time
for arrival at a POE, which will alleviate additional strain on DHS
resources. The Departments believe it would be inappropriate to elect
inaction on the basis of conjecture regarding U.S. economic outlook and
similar factors and the potential effects of such factors on the
impending surge of irregular migration.
In response to comments asserting that the Departments did not
consider other options before promulgating this final rule, the
Departments note that alternative approaches for managing the expected
surge in migration were discussed in the NPRM and the Departments
ultimately assessed, and continue to assess, that the rule is the best
option for responding to the current situation at the border and the
expected surge in migration after the lifting of the Title 42 public
health Order. See 88 FR at 11730-32. Concerns regarding backlogs,
government resources and funding are addressed in Sections IV.B.5.iv
and IV.C.2 of this preamble.
The Departments acknowledge commenters' suggestion that DHS
``strengthen'' its resources to respond to the anticipated surge in
migrants to the SWB. The Departments note that they have already
deployed additional personnel, technology, infrastructure, and
resources to the SWB and that continuing this ``strengthening'' of the
SWB would require additional congressional actions, including
significant additional appropriations, which are outside of the scope
of this rulemaking.
i. Concerns Regarding the Sufficiency of the Lawful Pathways
Comment: Commenters stated that in general, the available lawful
pathways are insufficient to meet the significant demand for migration
to the United States. Commenters stated that increasing legal pathways
for some should not come at the expense of restricting access for
asylum seekers seeking protection. Commenters stated that the existing
lawful pathways are ``extremely narrow and unavailable to many
people,'' and that it is fundamentally unjust to fault individuals for
seeking safety and stability in the only way possible. Commenters
stated that migrants who seek asylum in the United States rather than
another country are doing so rationally and intentionally and they
would seek asylum in a closer country if it was truly safe.
Multiple commenters stated that H-2 temporary worker visas are
insufficient substitutes for asylum. One commenter stated that the
Administration is ``misguided'' in touting its efforts in the proposed
rule to expand two of the most ``exploitative and troubled U.S. work
visa programs--H-2A and H-2B'' because these programs are ``deeply
flawed and in desperate need of reform.'' The same commenter stated
that expanding temporary work visa programs like H-2B and H-2A makes
little sense for those seeking asylum because they do not provide a
permanent pathway to remain in the United States and would put migrants
in danger by returning them to dangerous situations after the visa
certification expires. Similarly, other commenters stated that the H-2
programs do not provide or guarantee safety for migrants because they
are not permanent or durable solutions and they do not allow for family
unity in the United States.
Response: The United States is both a nation of immigrants and a
nation of laws. The Departments are charged with enforcing those laws
and endeavor to do so humanely. The rule is needed because, absent this
rule, after the termination of the Title 42 public health Order, the
number of migrants expected to travel without authorization to the
United States is expected to increase significantly, to a level that
risks undermining the Departments' ability to safely, effectively, and
humanely enforce and administer U.S. immigration law, including the
asylum system. The rule, coupled with an expansion of lawful, safe, and
orderly pathways, is expected to reduce the number of noncitizens
seeking to cross the SWB without authorization to enter the United
States.
Though the Departments acknowledge that existing lawful pathways
may not be available to every migrant, the Departments disagree with
comments stating that the existing lawful pathways are extremely
narrow. The United States Government has been working to significantly
expand access to lawful pathways and processes for migrants since
January 2021. In addition to the new processes DHS has implemented for
CHNV nationals, which are discussed at length in the NPRM, DHS has been
working with other Federal departments and agencies to increase access
to labor pathways; restart, streamline, and expand family reunification
parole programs; and significantly rebuild and expand refugee
processing in the region. See 88 FR at 11718-23.\67\
---------------------------------------------------------------------------
\67\ See also DHS, New Actions to Manage Regional Migration
(Apr. 27, 2023).
---------------------------------------------------------------------------
For example, DHS has worked with the Department of State and the
Department of Labor (``DOL'') to significantly expand access to the H-
2A and H-2B temporary agricultural and nonagricultural worker visas in
order to
[[Page 31333]]
help address labor shortages and provide safe and orderly pathways for
migrants seeking economic opportunity in the United States. On December
15, 2022, DHS and DOL jointly published a temporary final rule
increasing the total number of noncitizens who may receive an H-2B
nonimmigrant visa by up to 64,716 for the entirety of FY 2023. See
Exercise of Time-Limited Authority to Increase the Numerical Limitation
for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking to Change Employers,
87 FR 76816 (Dec. 15, 2022). In particular, the number of H-2 visas
issued to nationals of El Salvador, Honduras, and Guatemala has
increased by 250 percent between FYs 2020 and 2022: in FY 2022, the
Department of State issued 19,295 H-2 visas to those three countries,
compared to just 5,439 in FY 2020.\68\ The Departments disagree that
expanding use of these programs is misguided; although improvements are
possible, these programs are established features of the immigration
system and an appropriate mechanism to support lawful, safe, and
orderly travel to the United States. Moreover, these programs represent
two of several available lawful pathways, some of which provide
protection that is not temporary and does allow for derivative
protection for family members. For example, the United States
Government has restarted the Central American Minors Refugee and Parole
Program, which provides certain qualified children who are nationals of
El Salvador, Guatemala, and Honduras, as well as certain family members
of those children, an opportunity to apply for refugee status and
possible resettlement in the United States.\69\
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\68\ See Department of State, H-2 Visa Data for El Salvador,
Guatemala, and Honduras, FY 2015-FY2023 Mid-Year (last reviewed Feb.
24, 2023).
\69\ See USCIS, Central American Minors (CAM) Refugee and Parole
Program, https://www.uscis.gov/CAM (last visited Apr. 5, 2023).
---------------------------------------------------------------------------
The United States Government also provides durable solutions for
humanitarian protection through the U.S. Refugee Admissions Program for
qualifying applicants. In 2022, concurrent with the announcement of the
L.A. Declaration, the United States announced that it intends to refer
for resettlement at least 20,000 refugees from Latin America and the
Caribbean in FY 2023 and FY 2024, which would put the United States on
pace to more than triple refugee admissions from the Western Hemisphere
this fiscal year alone.\70\ On April 27, 2023, DHS announced that it
would commit to welcoming thousands of additional refugees per month
from the Western Hemisphere--with the goal of doubling the number of
refugees the United States committed to welcome as part of the L.A.
Declaration.\71\ The United States Government also continues to work
with our partners to expand access to refugee resettlement more broadly
throughout the Western Hemisphere. For instance, Canada recently
announced that it will take significant steps to expand safe and
orderly pathways for migrants from the Western Hemisphere to enter
Canada lawfully. Building on prior commitments, Canada will provide an
additional 15,000 migrants from Latin America and the Caribbean with
access to legal pathways to Canada; and enter into arrangements with
the United States and like-minded countries to promote lawful labor
mobility pathways.\72\
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\70\ See The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S. Government and Foreign
Partner Deliverables (June 10, 2022) (``L.A. Declaration Fact
Sheet''), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/.
\71\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
\72\ See DHS, Press Release, United States and Canada Announce
Efforts to Expand Lawful Migration Processes and Reduce Irregular
Migration (Mar. 24, 2023), https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and.
---------------------------------------------------------------------------
Comments asserting insufficiencies associated with the CHNV parole
processes and other lawful pathways identified in the rule are further
addressed in Section IV.3 of this preamble.
The rule will not impact those who use these lawful pathways that
the United States is offering for migrants to obtain entry into the
United States. Additionally, the rule will not apply to noncitizens who
enter the United States with documents sufficient for admission.
Instead, the rule is meant to promote the use of these lawful pathways
and disincentivize irregular migration.
ii. Similarity to Actions of Past Administration
Comment: Many commenters stated that the proposed rule is
functionally indistinguishable from prior asylum-related rules that
were issued by the prior Administration, particularly the TCT Bar IFR
and Final Rule, which have been enjoined, or would cause similar harm
to asylum seekers. At least one commenter criticized that the addition
of the ``rebuttable presumption'' in this rule is not enough to
distinguish it from previous rules. For example, commenters described
the rule as ``resurrect[ing] Trump-era categorical bans on groups of
asylum seekers.'' Similarly, some commenters stated that this rule is
similar to the ``asylum bans'' the past Administration attempted to
advance. Another commenter asserted that this rule operates similarly
to rules from the prior Administration because it would operate as a
ban for asylum seekers based on factors that do not relate to their
fear of return and would result in asylum denials for all who are
unable to establish that they qualify for exceptions the commenter
characterized as extremely limited. A commenter claimed that while the
Departments repeatedly assert throughout the NPRM that the rebuttable
presumption is distinguishable from the TCT Bar, the opportunity to
rebut the presumption would occur only under the most extreme scenarios
and in excess of what would ordinarily be sufficient to claim asylum.
Another commenter predicted that the proposed rule would revive
attempts to ``rig the credible fear process.'' While comparing the
rebuttable presumption standards to the non-refoulement screening
standard used under MPP, the commenter argued that the proposed rule
would impose a ``more likely than not'' screening standard that far
exceeds the standard for an asylum grant. The commenter further stated
that the ``deficient'' non-refoulement screenings carried out during
MPP foreshadow the dangers asylum seekers would face under the proposed
rule if finalized.
In comparing this rule to those issued by the prior Administration,
commenters stated that the previous rules led to asylum denials,
prolonged detention for many with bona fide claims, and family
separations. At least one commenter stated that a recent congressional
investigation found that not one person sent to Guatemala under the
prior Administration's Asylum Cooperative Agreements received asylum;
instead, migrants were forced to return to their originating country. A
commenter also stated that the rule attempts to differentiate itself
from prior policies via exceptions and alternative pathways to asylum
but that the exceptions are insufficient because they would fail to
protect the most vulnerable. Several commenters stated that asylum bans
have been proven to be ineffective at deterring noncitizens from
seeking safety. One commenter stated that calling the rule a
``rebuttable presumption'' was merely a semantic difference from prior
asylum bans, which had narrow exceptions.
Response: The Departments acknowledge these commenters'
[[Page 31334]]
concerns but disagree that the final rule is indistinguishable from
asylum-related rulemakings and policies issued by the prior
Administration. The TCT Bar IFR and Final Rule and the Proclamation Bar
IFR, for instance, categorically barred covered individuals from
certain types of relief. While the TCT Bar Final Rule only allowed
limited exceptions to its eligibility bar, including for trafficking
victims and other grounds, this rule includes a number of broader
exceptions and means for rebutting the presumption. A noncitizen can
rebut the presumption by, for example, demonstrating exceptionally
compelling circumstances by a preponderance of the evidence during a
full merits hearing. See 8 CFR 208.33(a)(3); 8 CFR 1208.33(a)(3). A
noncitizen can rebut the presumption if they establish that they or a
member of their family with whom the noncitizen is traveling meet any
of the three per se grounds for rebuttal, which provide that, at the
time of entry: (1) they faced an acute medical emergency; (2) they
faced an imminent and extreme threat to their life or safety; or (3)
they were a ``victim of a severe form of trafficking in persons'' as
defined in 8 CFR 214.11. In addition to the per se grounds for
rebuttal, a noncitizen could also rebut the presumption in other
exceptionally compelling circumstances. One exceptionally compelling
circumstance recognized by the rule is included specifically to avoid
family separations. See 8 CFR 1208.33(c). Protecting against family
separation is one example of how this rule includes appropriate
safeguards for vulnerable populations. Depending on individual
circumstances, AOs and IJs may find that certain especially vulnerable
individuals meet the exceptionally compelling circumstances standard.
The Departments acknowledge concerns about opportunities to rebut
the presumption but disagree that the rule would impose a higher
standard for rebutting the presumption than the standard to establish
asylum eligibility. The ``significant possibility'' standard is the
overall assessment applied during credible fear screenings; that
standard must be applied in conjunction with the standard of proof
required for the ultimate determination (i.e., preponderance of the
evidence that the presumption has been rebutted or an exception
established). As discussed below in Section IV.E.1 of this preamble, a
noncitizen can satisfy their burden of proof through credible testimony
alone; the rule does not require any particular evidence to rebut or
establish an exception to the presumption under 8 CFR 208.33(a)(3),
1208.33(a)(3). See INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii);
INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Accordingly, the
Departments believe that the means of rebutting or establishing an
exception to the presumption are not unduly burdensome.
The Departments have considered the approaches taken in multiple
rulemaking efforts of the last few years and now believe that the more
tailored, time-limited approach in this final rule is better suited to
address the increased migrant flows into the United States expected
after the Title 42 public health Order terminates. See 88 FR at 11728.
This rule encourages use of lawful, safe, and orderly pathways to enter
the United States and, unlike those prior rulemakings, retains a
noncitizen's ability to be found eligible for asylum should they enter
through an enumerated lawful pathway or otherwise overcome the
condition imposed by this rule. The Departments believe that the rule's
more balanced approach renders the TCT Bar Final Rule and the
Proclamation Bar IFR unnecessary, and that those rules conflict with
the approach taken in this rule.\73\ As proposed in the NPRM and
discussed at Sections IV.E.9 and IV.E.10 of this preamble, the
Departments have decided to remove those prior rules from the CFR. See
88 FR at 11728.
---------------------------------------------------------------------------
\73\ Both the TCT Bar Final Rule and the Proclamation Bar IFR
are discussed further in Sections IV.E.9 and IV.E.10 of this
preamble.
---------------------------------------------------------------------------
The Departments disagree with some commenters that this final rule
will cause harms similar to those attributed to the TCT Bar Final Rule
and the Proclamation Bar IFR, which commenters allege include asylum
denials, prolonged detention, and family separation. This rule's scope
and effect are significantly different from the TCT Bar Final Rule.
Unlike the TCT Bar Final Rule, the presumption would not completely bar
asylum eligibility based on the availability of protection in a third
country. First, while this rule takes into account whether individuals
sought asylum or other forms of protection in third countries while
traveling to the United States, the rule would not require that all
noncitizens make such an application to be eligible for asylum, unlike
the TCT Bar Final Rule. For example, if the noncitizen received
authorization to travel to the United States to seek parole or
scheduled an appointment through the CBP One app to present themselves
at a POE, then the condition on asylum eligibility would not apply to
that noncitizen regardless of whether the noncitizen sought protection
in a third country. Second, while the TCT Bar Final Rule only allowed
limited exceptions to its eligibility bar, including for trafficking
victims and other grounds, this rule includes a number of exceptions
and means for rebutting the presumption, including an exception for
trafficking victims. This rule encourages noncitizens to use orderly,
lawful pathways to enter the United States, and it will only become
relevant whether the noncitizens applied for protection in a third
country through which they traveled in cases in which noncitizens do
not avail themselves of one of the pathways.
The Departments acknowledge commenters' concerns with the
effectiveness of Safe Third Country Agreements (``STCA'') or asylum
cooperative agreements. The Departments acknowledge that negotiating
such agreements is a lengthy and complicated process that depends on
the agreement of other nations. See 88 FR at 11732. The Departments
note that the only such agreement in effect is the Canada-U.S. STCA.
See generally Implementation of the 2022 Additional Protocol to the
2002 U.S.-Canada Agreement for Cooperation in the Examination of
Refugee Status Claims from Nationals of Third Countries, 88 FR 18227
(Mar. 28, 2023). The rule does not implement or change the framework
for negotiating STCAs, which involves extensive diplomatic
negotiations. As discussed more in Section IV.E.3.iv of this preamble,
the safe-third-country provision in section 208(a)(2)(A) of the INA, 8
U.S.C. 1158(a)(2)(A), indicates that a noncitizen may be removed,
pursuant to ``a safe-third-country agreement,'' and the noncitizen may
not apply for asylum ``unless the Attorney General finds that it is in
the public interest for the alien to receive asylum in the United
States.'' This rule operates differently. Under this rule, noncitizens
may apply for asylum and other protection in the United States. While
the rule would create a rebuttable presumption, it specifies
circumstances in which that presumption is necessarily rebutted as well
as other exceptions. By encouraging noncitizens seeking to travel to
the United States, including those intending to seek asylum, to use
lawful pathways and processes, the Departments expect the rule to
promote orderly processing, reduce the anticipated surge that is
expected to strain DHS resources, reduce the number of individuals who
would be placed in lengthy removal proceedings pursuant to section 240
of
[[Page 31335]]
the INA and released into the United States pending such proceedings,
allow for the expeditious removal of noncitizens who failed to avail
themselves of a safe and lawful pathway to seek protection, and reduce
incentives for noncitizens to cross the border using dangerous
smuggling networks. See 88 FR at 11736. Regarding comments about the
ineffectiveness of the rule to deter migrants from seeking safety, the
rule does not discourage migrants with valid claims from applying for
asylum or other protection. The rule encourages those with meritorious
claims to either apply for asylum or other protection in the first safe
country they find or pursue available lawful pathways, such as the U4U
and CHNV parole processes--which early data indicate are deterring
irregular migration from those countries, see 88 FR at 11706--or
presenting at a POE at a pre-scheduled time and place.
Comment: Some commenters noted the rise in recidivist encounters
following the end of the prior Administration despite many efforts to
restrict asylum access and stated that removals under this rule would
increase rates of recidivism.
Response: The Departments disagree that removals under this rule
will increase the rate of recidivism. The Departments note that a range
of external considerations (such as the COVID-19 pandemic, litigation
resulting in injunctions or vacatur of those rules prior to or during
initial stages of their implementation,\74\ and differences in the
operation of the Title 42 public health Order and this rule) prevent
the Departments from drawing any firm conclusions applicable to this
rulemaking based solely on recidivism numbers following the end of the
prior Administration. The application of the Title 42 public health
Order at the border has had unpredictable impacts on migration. Because
Title 42 expulsions have no consequence, aside from the expulsion
itself, DHS has seen a substantial increase in recidivism for
individuals processed under Title 42 as compared to those processed
under Title 8 authorities. In March 2023, for example, 26 percent of
encounters at the SWB involved individuals who had at least one prior
encounter during the previous 12 months, compared to an average 1-year
re-encounter rate of 14 percent for FYs 2014-2019.\75\
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\74\ Federal courts have either vacated or enjoined the
Departments from implementing the TCT Bar IFR and Final Rule,
Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202
(Oct. 21, 2020) (``Criminal Asylum Bars Rule''), and Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (December 11, 2020) (``Global Asylum Rule'').
See, e.g., Capital Area Immigrants' Rights Coal. v. Trump, 471 F.
Supp. 3d 25 (D.D.C. 2020) (vacating the TCT Bar IFR); E. Bay
Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East
Bay I'') (affirming injunction of the TCT Bar IFR); E. Bay Sanctuary
Covenant v. Barr, 519 F. Supp. 3d 663 (N.D. Cal. 2021) (``East Bay
II'') (enjoining the TCT Bar Final Rule); Pangea Legal Servs. v.
DHS, 501 F. Supp. 3d 792 (N.D. Cal. 2020) (enjoining the Criminal
Asylum Bars Rule) (``Pangea I''); Pangea Legal Servs. v. U.S. Dep't
of Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021)
(``Pangea II'') (preliminarily enjoined the Departments ``from
implementing, enforcing, or applying the [Global Asylum Rule] . . .
or any related policies or procedures.''); E. Bay Sanctuary Covenant
v. Biden, 993 F.3d 640, 681 (9th Cir. 2021) (``East Bay III''); see
O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting the
history of the litigation over the Proclamation Bar IFR and vacating
it).
\75\ Including CBP enforcement encounters at or between ports of
entry. OIS Persist based on data through March 31, 2023.
---------------------------------------------------------------------------
Overall, since the start of the pandemic and the initiation of
Title 42 expulsions, 39 percent of all Title 42 expulsions have been
followed by a re-encounter of the same individual within 30 days versus
a 9 percent 30-day re-encounter rate for Title 8 repatriations.\76\
Similarly, the 12-month re-encounter rates are 51 percent for Title 42
expulsions versus 20 percent for Title 8 repatriations.\77\ While a
portion of the overall gap between Title 42 and Title 8 re-encounter
rates is likely explained by the fact that many Title 42 expulsions are
to Mexico and almost all Title 8 repatriations are to individuals'
countries of citizenship, it is notable that a large gap between Title
42 and Title 8 re-encounter rates is also observed in the case of
Mexican nationals, all of whom are repatriated to Mexico.\78\
---------------------------------------------------------------------------
\76\ Title 8 repatriation, as used here, refers to both removals
(noncitizen required to depart based on a removal order) and returns
(noncitizen required to depart leaves without a formal order of
removal).
\77\ OIS analysis of OIS Enforcement Lifecycle based on data
through December 31, 2022.
\78\ For Mexican nationals, since the start of the pandemic, the
30-day re-encounter rates are 44 percent for Title 42 expulsions
versus 15 percent for Title 8 repatriations, and the 12-month re-
encounter rates are 55 percent for Title 42 expulsions versus 26
percent for Title 8 repatriations. OIS analysis of OIS Enforcement
Lifecycle based on data through December 31, 2022.
---------------------------------------------------------------------------
This gap is likely, in part, because a removal under Title 8
carries with it at least a five-year bar to admission, among other
legal consequences. As a result, it is the Departments' assessment that
a return to Title 8 processing of all noncitizens will likely reduce
recidivism at the border. Moreover, the Departments believe it would be
unwarranted to conclude that, based on recidivist apprehensions while
the Title 42 public health Order has been in place, conditions on
asylum eligibility do not discourage attempts to enter the United
States unlawfully. This rule, which will take effect upon the lifting
of the Title 42 public health Order, anticipates that those who receive
negative credible fear determinations will be removed upon issuance of
final orders of removal and be subject to at least a five-year bar on
admission in addition to having the rebuttable presumption apply to any
subsequent asylum application the noncitizen may file in the future.
iii. Unnecessary Given the Asylum Processing IFR
Comment: Some commenters questioned why this proposed rule is
necessary given that the Asylum Processing IFR was adopted less than
one year ago. See Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (``Asylum
Processing IFR''). In referencing the Asylum Processing IFR, one
commenter noted that this rule is an ``abrupt change in reasoning from
less than a year ago,'' which, according to the commenter, indicates
that the rule is ``political'' rather than based on reasoned decision
making. Some commenters noted that in the Asylum Processing IFR, the
Departments explained that applying the TCT Bar Final Rule at the
credible fear stage as proposed by the past Administration was
inefficient and consumed considerable resources so there is ``no basis
to suddenly reverse course again.'' A commenter argued that the
proposal would depart from conclusions DHS reached within the last year
in the Asylum Processing IFR recommitting agencies to the statutory
``significant possibility'' standard for asylum claims. One commenter
asserted that while the proposed rule is premised on the idea that
applying a higher ``reasonable possibility'' standard can weed out non-
meritorious asylum cases, the Departments recently acknowledged in the
Asylum Processing IFR that the higher standard is not effective at
screening out such claims. The same commenter expressed concern that
the Government's ``abrupt about-face'' is not based on new data, but
rather on the lack of evidence that the reasonable possibility standard
is not effective in the context in which it is currently used. Another
commenter similarly wrote that the application of the reasonable
possibility standard at the credible fear screening stage represents a
``stark reversal'' from DHS's position in the Asylum Processing IFR
that asylum eligibility bars should not be applied at the initial
screening stage and
[[Page 31336]]
that the ``significant possibility'' standard should be applied when
screening for all protection claims (i.e., asylum, withholding of
removal, and CAT protection). A commenter stated that the proposed rule
introduces conflict with the Asylum Processing IFR and expressed
concern that implementation of the new rule would be difficult for AOs.
One commenter stated that the Departments should make greater use of
the recent 2022 asylum merits interview process, which would provide a
solution to the problems the Departments asserted in the NPRM.
Response: The Departments recognize that under the Asylum
Processing IFR issued in March 2022, certain noncitizens determined to
have a credible fear are referred to an AO, in the first instance, for
further review of the noncitizen's asylum application. See 87 FR at
18078. For noncitizens subject to that IFR, following a positive
credible fear determination, AOs conduct an initial asylum merits
interview instead of referring the case directly for removal
proceedings pursuant to section 240 of the INA. If USCIS does not grant
asylum, the individual is referred to EOIR for streamlined removal
proceedings pursuant to section 240. In issuing the Asylum Processing
IFR, the Departments concluded that protection determinations during
the expedited removal process could be made more efficient. See 87 FR
at 18085. The purpose of the Asylum Processing IFR was to
simultaneously increase the promptness, efficiency, and fairness of the
process by which noncitizens who enter the United States without
appropriate documentation are either removed or, if eligible, granted
relief or protection. Id. at 18089. Additionally, the Asylum Processing
IFR enables meritorious cases to be resolved more quickly, reducing the
overall asylum system backlog, and using limited AO and IJ resources
more efficiently. Id. at 18090. The entire process is designed to take
substantially less time than the average of over four years it takes to
adjudicate asylum claims otherwise. See 88 FR at 11716. This final rule
builds upon this existing system while implementing changes, namely
that AOs will apply the lawful pathways rebuttable presumption during
credible fear screenings.
The Departments disagree with commenters' suggestion that the
proposed rule was political and not based on reasoned decisions.
Rather, the rule's primary purpose is to incentivize migrants,
including those intending to seek asylum, to use lawful, safe, and
orderly pathways to enter the United States, or seek asylum or other
protection in another country through which they travel. The rule
establishes procedures for AOs and IJs to follow when determining
whether the rebuttable presumption applies to a noncitizen and, if it
does, whether the noncitizen has established any exceptions to or
rebutted the presumption. See 8 CFR 208.33(b). In addition, for
noncitizens found to be ineligible for asylum under 8 CFR 208.33, the
rule establishes procedures for AOs to further consider a noncitizen's
eligibility for statutory withholding of removal or protection under
the regulations implementing the CAT. See 8 CFR 208.33(c)(2).
Individuals subject to the lawful pathways condition will still be
placed into removal proceedings under section 240 if they meet the
``reasonable possibility'' of persecution or torture standard. One of
the goals of the Asylum Processing IFR is to streamline the expedited
removal process, and this rule is complementary to that goal, but is
also necessary to incentivize lawful, safe, and orderly migratory
flows. This rule does not foreclose processing noncitizens through the
process established by the Asylum Processing IFR.
The Departments acknowledge that the approach in this rule is
different in certain respects from that articulated in the Asylum
Processing IFR issued in March 2022. However, the Departments believe
the current and impending situation on the ground along the SWB
warrants departing in some respects from the approach generally applied
in credible fear screenings. See 88 FR at 11742. The Asylum Processing
IFR was designed for non-exigent circumstances. However, as noted in
the NPRM, encounters of non-Mexican nationals at the SWB between POEs
have reached a 10-year high of 1.5 million in FY 2022,\79\ driven by
smuggling networks that enable and exploit this unprecedented movement
of people. This heightened migratory flow has overburdened the current
asylum system, resulting in a growing backlog of cases awaiting review
by AOs and IJs. See 88 FR at 11705. The exigent circumstances giving
rise to this rule arose after the Asylum Processing IFR was issued and
require departing from the general approach in the Asylum Processing
IFR in specific ways--i.e., applying the condition on eligibility
during credible fear screenings, applying the ``reasonable
possibility'' standards to individuals who cannot show a ``significant
possibility'' of eligibility for asylum based on the presumption
established in the rule, requiring an affirmative request for IJ review
of a negative credible fear determination, and limiting requests for
reconsideration after IJ review and instead providing for
reconsideration based only on USCIS's discretion.
---------------------------------------------------------------------------
\79\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
---------------------------------------------------------------------------
The Departments believe that the condition on eligibility and this
rule's departures from the Asylum Processing IFR are reasonable and
necessary for the reasons discussed in the NPRM. See 88 FR at 11744-47.
The rule will help achieve many of the goals outlined in the Asylum
Processing IFR, including improving efficiency; streamlining the
adjudication of asylum, statutory withholding of removal, and CAT
protection claims; and reducing the strain on the immigration courts by
screening out and removing those with non-meritorious claims more
quickly. See 87 FR 18078.
The Departments note that the rule does not apply a higher
``reasonable possibility'' standard to asylum claims; rather, the rule
applies the statutory ``significant possibility'' standard to asylum
claims, as explained elsewhere in this preamble. The rule only applies
the ``reasonable possibility'' standard to statutory withholding and
CAT claims, and only if a noncitizen is subject to and has not
established an exception to or rebutted the presumption at the credible
fear screening. Additionally, the Asylum Processing IFR did not
conclude that the higher standard was ``not effective'' at screening
out non-meritorious statutory withholding and CAT claims, but rather
made a policy determination that the higher standard was inefficient
given the circumstances of that particular rule. See 87 FR at 18092.
The Departments reached a different policy conclusion after the Asylum
Processing IFR was issued and believe that this rule is necessary to
address the current and exigent circumstances described throughout the
NPRM. See 88 FR at 11744-47.
The Departments appreciate commenters' support for the asylum
merits interview process, but the Departments reiterate the discussion
from the NPRM that the asylum merits interview process should not be
used for noncitizens subject to the presumption. See 88 FR at 11725-26.
This is because each such proceeding, in which the noncitizen would
only be eligible for forms of protection that the AO cannot grant
(withholding of removal or CAT protection), would have to ultimately be
adjudicated by an IJ. Further, the Departments note that the processes
relating to management of those who have already established a credible
fear
[[Page 31337]]
are different from the processes for migrants seeking entry into the
United States who are making an initial claim of fear.
iv. Unnecessary Given Parole Processes
Comment: Some commenters objected that although the Departments
stated that they anticipate a surge in CHNV individuals claiming fear
at the SWB after the termination of the Title 42 public health Order,
the proposed rule also claims that the parole processes for these
populations are working to limit irregular migration from these
countries.
Response: In an effort to address the significant increase in CHNV
migrants at the SWB, the United States has taken significant steps to
expand safe and orderly processes for migrants from these countries to
lawfully come to the United States. Specifically, these processes
provide a lawful and streamlined way for eligible CHNV nationals and
their family members to apply to come to the United States without
having to make the dangerous journey to the SWB.\80\ Individuals can
request an advance authorization to travel to the United States to be
considered on a case-by-case basis for a grant of temporary parole by
CBP. Noting the success of the CHNV parole processes coupled with
enforcement measures in limiting irregular migration of CHNV nationals,
the Departments also recognize that there are a number of factors that
could prevent the same level of success after the lifting of the Title
42 public health Order absent additional policy changes. See 88 FR at
11706. These factors include the presence of large CHNV populations
already in Mexico and elsewhere in the hemisphere as a result of past
migratory flows and the already large number of migrants from these
countries in the proximity of the SWB after they were expelled to
Mexico under the Title 42 public health Order. See id. In addition, as
the Departments noted in the NPRM, the incentive structure created by
the CHNV parole processes relies on the availability of an immediate
consequence, such as the application of expedited removal under this
rule, for those who do not have a valid protection claim or lawful
basis to stay in the United States. See 88 FR at 11731. The parole
processes thus work with this rule in a complementary manner to address
the expected surge in migration after the Title 42 public health Order
is lifted.
---------------------------------------------------------------------------
\80\ See DHS, Press Release, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
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v. Unnecessary Given Lack of Access to Asylum
Comment: Some commenters stated that the rule would not succeed at
meeting its goal of deterring irregular immigration since migrants are
already aware, even without the rule, that there is a low chance of
actually receiving asylum in the United States.
Response: The Departments reiterate that the rule's primary goal is
to incentivize migrants, including those intending to seek asylum, to
use lawful, safe, and orderly pathways to enter the United States, or
seek asylum or other protection in another country through which they
travel. The rule is intended to reduce the level of irregular migration
to the United States without discouraging migrants with valid claims
from applying for asylum or other protection. Even assuming migrants
are aware of the relative likelihood of success of their asylum claims,
the Departments do not believe the low ultimate approval rate for
asylum and other forms of protection, which has long been the status
quo, has served as a strong disincentive against making protection
claims given the comparatively high chance of receiving a positive
credible fear determination (83 percent for FYs 2014-19, see 88 FR at
11716) after which migrants are able to wait in the United States to
present their claims, the multi-year backlog of immigration court
cases,\81\ and the fact that many migrants who are denied asylum are
not ultimately removed, see id. Additionally, many noncitizens who are
encountered at the border and released pending their immigration
proceedings will spend years in the United States, regardless of the
outcome of their cases. See id. Indeed, most noncitizens who receive a
positive credible fear determination will be able to live and work in
the United States for the duration of their removal proceedings--which,
on average, take almost 4 years.\82\ This reality provides a powerful
incentive for noncitizens to make protection claims. Therefore, a low
approval rate for asylum applications does not necessarily offer much
disincentive against making protection claims.
---------------------------------------------------------------------------
\81\ See TRAC, Immigration Court Asylum Backlog through February
2023, https://trac.syr.edu/phptools/immigration/asylumbl/ (last
visited Mar. 14, 2023) (average 1,535 days from I-589 filing to
merits hearing).
\82\ OIS analysis of DOJ EOIR data based on data through March
31, 2023.
---------------------------------------------------------------------------
vi. Ineffective Without Changes to Withholding of Removal or CAT
Adjudications
Comment: Some commenters stated that if the process for applying
for statutory withholding of removal or CAT protection stays the same,
the rule would not be an effective deterrent for people who do not have
a meritorious claim for asylum who are seeking to delay their removal
from the United States. One commenter suggested that because those
subject to the rule can seek protection through statutory withholding
of removal and CAT, even with this rule in place, they will likely
continue to arrive without using a lawful pathway. The commenter
further stated that people fleeing unlivable conditions at home, the
overwhelmingly majority of whom have no real knowledge of U.S.
immigration law, are unlikely to carefully dissect the rule's subtle
changes to eligibility standards. And as long as migrants know there is
the possibility of protection in the United States--no matter whether
through asylum or another form of relief--they will likely continue to
make the dangerous trek to the border, where they will then cross.
Response: The Departments note that the rule would implement
changes to the existing credible fear screening process. Specifically,
if noncitizens cannot make a sufficient showing that the lawful
pathways condition on eligibility for asylum is inapplicable or that
they are subject to an exception or rebuttal ground, then the AO will
screen the noncitizen for statutory withholding of removal and
protection under the CAT using the higher ``reasonable possibility''
standard. See 8 CFR 208.33(b)(2)(i). This ``reasonable possibility''
standard is a change from the practice currently applied for statutory
withholding of removal and CAT protection in the credible fear process.
As explained in the NPRM, the Departments have long applied--and
continue to apply--the higher ``reasonable possibility'' of persecution
or torture standard in reasonable-fear screenings because this standard
better predicts the likelihood of succeeding on the ultimate statutory
withholding of removal or CAT protection application than does the
``significant possibility'' of establishing eligibility for the
underlying protection standard, given the higher burden of proof for
statutory withholding of removal and CAT protection. See 88 FR at
11746-47. The Departments also assess that applying the ``reasonable
possibility'' of persecution or torture standard where the lawful
pathways condition renders
[[Page 31338]]
the noncitizen ineligible for asylum will result in fewer individuals
with non-meritorious claims being placed into removal proceedings under
section 240 of the INA, and more such individuals being quickly
removed. The Departments believe that using the ``reasonable
possibility'' standard to screen for statutory withholding and CAT
protection in this context, and quickly removing individuals who do not
have a legal basis to remain in the United States, may serve as a
disincentive for migrants who would otherwise make the perilous journey
to the United States without first attempting to use a lawful pathway
or seeking protection in a country through which they travel.
vii. Ineffective Because Exceptions Will Swallow the Rule
Comment: Some commenters raised concerns that the rebuttable
presumption of ineligibility could be too easily overcome or perceived
as easy to overcome, due to the number of exceptions and means of
rebuttal. One commenter referred to the proposed rule as ``a facially
stricter threshold'' than under current practice and said that the
rebuttable presumption was ``a tougher standard in name only.'' Another
commenter opined that the proposed rule would be largely ineffective
and urged the Departments to eliminate exceptions to the presumption
against asylum eligibility, which they said are overbroad, easy to
exploit, and threaten to swallow the rule. Similarly, other commenters
stated that there should be no exceptions to the condition on asylum.
Commenters stated that migrants would quickly learn the various
exceptions to the presumption and how to fraudulently claim them to
obtain asylum. One commenter alleged, without evidence, that various
NGOs and legal organizations coach people on which ``magic words'' they
must utter to gain entry into the United States. One commenter stated
that noncitizens may falsely claim to be Mexican nationals to
circumvent the rule.
One commenter proposed that the rule's exceptions be limited to (1)
those who received a final judgment denying them protection in at least
one country through which they transited; (2) victims of a severe form
of trafficking; (3) those who have transited only through countries
that are not parties to the Refugee Convention, the Refugee Protocol,
or CAT; and (4) UCs. Another commenter proposed that the Departments
should eliminate the CBP One app exception and should apply the
presumption to UCs. One commenter stated that the rule should require,
not encourage, migrants to use lawful, safe, and orderly pathways.
Response: The Departments acknowledge these concerns but believe it
is necessary to maintain the exceptions to and means of rebutting the
presumption of ineligibility for asylum to prevent undue hardship. The
Departments have limited the means of rebutting the presumption to
``exceptionally compelling circumstances,'' where it would be
unreasonable to require use of the DHS appointment scheduling system or
pursuit of another lawful pathway. The rule lists three examples of
exceptionally compelling circumstances that would be considered at both
the credible fear and merits stages: acute medical emergencies,
imminent and extreme threats to life or safety, and victims of severe
forms of human trafficking. See 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). AOs and IJs will assess the noncitizen's testimony,
along with any other evidence in the record, to determine whether the
noncitizen meets an exception to or rebuts the presumption against
asylum eligibility. INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B); INA
240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B); 8 CFR 208.30.
The Departments do not believe that the rule creates significant
incentive for migrants to falsely pose as Mexican nationals. Even if
successful, this would only be a plausible strategy for migrants who
are hoping to voluntarily return to Mexico instead of being placed in
expedited removal. Once in expedited removal, any incentive to pose as
a Mexican national dissipates quickly. It will likely be difficult for
the noncitizen to establish a credible fear of persecution or torture
in Mexico, a country with which they are less familiar than their
actual country of nationality. The noncitizen will not be able to seek
any assistance from their consulate without disclosing their true
country of nationality. And it will become very difficult for the
noncitizen to qualify for asylum or other protection before an IJ,
where they will need to prove identity.\83\ Noncitizens who falsify
their nationality could face serious consequences, as any such false
pretenses would be likely to have an adverse effect on their
credibility and could result in a permanent bar from all future
immigration benefits.\84\
---------------------------------------------------------------------------
\83\ See Matter of O-D-, 21 I&N Dec. 1079, 1081 (BIA 1998) (``A
concomitant to such claim is the burden of establishing identity,
nationality, and citizenship.''); INA 208(d)(5)(A)(i), 8 U.S.C.
208(d)(5)(A)(i) (``[A]sylum cannot be granted until the identity of
the applicant has been checked.''); 8 CFR 1003.47 (Identity, law
enforcement, or security investigations or examinations relating to
applications for immigration relief, protection, or restriction on
removal).
\84\ See INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii)
(credibility determinations in asylum proceedings); INA 208(d)(6), 8
U.S.C. 1158(d)(6) (frivolous asylum applications); 8 CFR 1003.47(g)
(preventing IJs from granting asylum applications until they can
consider complete and current identity, law enforcement, and
security investigations).
---------------------------------------------------------------------------
3. Concerns Related to Impacts on Asylum Seekers or Conflicts With
Humanitarian Values
i. Belief That the Rule Is Motivated by Unlawful Intent and
Inconsistent With U.S. Values
Comment: Some commenters generally asserted that the rule targets
certain nationalities, groups, or types of claims and that it was
motivated by racial animus; that it has discriminatory effects; and
that it was intended to address political issues or to mollify those
harboring racial animus. Commenters stated that issuing this rule would
advance the agendas of anti-immigration groups. At least one commenter
stated that the proposed rule could fuel existing anti-immigrant and
anti-Latinx sentiments in the United States by sensationalizing
immigration. Another commenter expressed opposition to the proposed
rule stating that it would continue to uphold an ``ableist, xenophobic,
and white supremacist'' notion of accessibility into the United States.
One commenter urged DHS to consider the impact that previous white
supremacist and race-based policies have had on the U.S. immigration
system. Furthermore, a commenter opposed the rule concluding that it
continues a ``legacy of structural racism'' in U.S. immigration policy.
Commenters compared the rule to race-based historical immigration
laws in the United States, such as the Chinese Exclusion Act and other
past immigration actions, including actions of the prior
Administration. Another commenter compared the rule to nationality-
based quotas instituted by the Immigration Act of 1924 and stated that
the rule serves a similar purpose of excluding ``undesirable'' migrant
populations, while others compared the rule to limits on migration
before, during, and after World War II, including turning away Jewish
refugees seeking protection on the ship the St. Louis. At least one
commenter stated that asylum seekers from countries located
geographically further away would have a higher burden for no reason
beyond their national origin. Further, commenters stated that
differentiating between the ``types'' of people admitted to the United
States or
[[Page 31339]]
detained at the border is akin to authoritarian regime policies that
have prohibited entry to ``undesirables'' and ``other inconvenient
group[s].''
Some commenters stated that the proposed rule is inhumane,
xenophobic, and against everything the current Administration is
supposed to stand for. Other commenters noted that the rule would only
affect migrants seeking to enter at the SWB, but that migrants crossing
the northern border from Canada are excluded, which the commenter
called ``inequitable'' and evidence of racism. Some commenters stated
that limiting who to help in the time of a ``global crisis'' is
``shameful'' because the United States is one of the richest countries
in the world. Some commenters stated that with all the terrible things
happening in the world we should be making it easier and not harder to
seek asylum. An advocacy group expressed further concern that the rule
may instead reinforce a notion that immigrants are unwelcome or
otherwise do not belong in the United States. Another advocacy group
expressed disappointment that words like ``surge'' in the NPRM could
frame asylum seekers as a problem that needs to be mitigated or
reduced. Some commenters stated that the rule was only written in
response to political pressure by political opponents to address the
situation at the SWB, thus placing migrants in danger for the sake of a
political agenda. One commenter stated that they expected the United
States to ``treat migrants as human beings rather than playing pieces
that could affect political outcomes.''
Response: The Departments reject these commenters' claims
concerning the Departments' basis for promulgating the rule. As
explained in the NPRM, 88 FR at 11704, the Departments are promulgating
the rule to address the following considerations. First, the reality of
large numbers of migrants crossing the SWB has placed a substantial
burden on the resources of Federal, State, and local governments. See
88 FR 11715. While the United States Government has taken extraordinary
steps to address this burden, the current level of migratory movements
and the anticipated increase in the numbers of individuals seeking
entry into the United States following the lifting of the Title 42
public health Order, without policy changes, threaten to exceed the
capacity to maintain the safe and humane processing of noncitizens who
cross the SWB without authorization. See id at 11704. Second, this
reality allows pernicious smuggling networks to exploit migrants--
putting migrants' lives at risk for the smugglers' financial gain.
Finally, the unprecedented migratory flow of non-Mexican migrants, who
are far more likely to apply for protection,\85\ has contributed to a
growing backlog of cases awaiting review by AOs and IJs. As a result,
those who have a valid claim to asylum may have to wait years for their
claims to be granted, while individuals who will ultimately be found
ineligible for protection may spend years in the United States before
being ordered removed. None of these considerations are racially
motivated, inhumane, or xenophobic.
---------------------------------------------------------------------------
\85\ For noncitizens encountered at the SWB in FYs 2014-2019 who
were placed in expedited removal, 6 percent of Mexican nationals
made fear claims that were referred to USCIS for adjudication
compared to 57 percent of people from Northern Central America and
90 percent of all other nationalities. OIS analysis of Enforcement
Lifecycle data as of December 31, 2022.
---------------------------------------------------------------------------
The Departments reiterate that the United States Government has
implemented, and will continue to implement, a number of measures
designed to enhance and expand lawful pathways and processes for
noncitizens who may wish to apply for asylum to come to the United
States. DHS has recently created new processes for up to 30,000 CHNV
nationals per month to apply for advance authorization to seek parole
into the United States, enabling them to travel by air to the United
States.\86\ DHS and its interagency partners have also increased H-2B
nonimmigrant visa availability and refugee processing for countries
within the Western Hemisphere. See 88 FR at 11718. Noncitizens who are
not eligible for these pathways can schedule an appointment to present
at a southwest land border POE through the CBP One app and be exempted
from the rule. Finally, the rule does not apply to migrants crossing
into the United States from Canada because, as discussed in more detail
below, the STCA between the United States and Canada, along with the
Additional Protocol of 2022, announced March 24, 2023, already enable
sufficient management of migration from Canada.\87\ The Additional
Protocol expands the STCA to apply to migrants who claim asylum or
other protection after crossing the U.S.-Canada border between POEs,
thus providing another disincentive for irregular migration.\88\
---------------------------------------------------------------------------
\86\ See 87 FR 63507 (Oct. 19, 2022); DHS, Implementation of a
Parole Process for Haitians, 88 FR 1243 (Jan. 9, 2023); DHS,
Implementation of a Parole Process for Nicaraguans, 88 FR 1255 (Jan.
9, 2023); DHS, Implementation of a Parole Process for Cubans, 88 FR
1266 (Jan. 9, 2023).
\87\ See DHS, Press Release, United States and Canada Announce
Efforts to Expand Lawful Migration Processes and Reduce Irregular
Migration (Mar. 24, 2023), https://www.dhs.gov/news/2023/03/24/united-states-and-canada-announce-efforts-expand-lawful-migration-processes-and.
\88\ See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h); Implementation of
the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for
Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries, 88 FR 18227 (Mar. 25, 2023).
---------------------------------------------------------------------------
Comment: Other commenters stated that there is a disconnect between
President Biden's remarks in Poland in February 2023 regarding
accepting and welcoming refugees and this rule. Some commenters stated
that the proposed rule is not in line with the American value of
welcoming refugees and asylum seekers. Many commenters referenced the
Statue of Liberty and the American tradition of welcoming the poor and
other vulnerable immigrants and quoted Emma Lazarus' poem. Commenters
stated that the ability to seek asylum is a legally recognized right
and that the proposed rule would effectively deny that right to many
asylum seekers, as well as that the United States should instead live
up to its legal responsibilities and ideals. Commenters stated that the
need to reduce strain at the border is an insufficient reason to
support the reduction in asylum access that would result from the rule.
Response: The Departments acknowledge that the United States has a
long tradition of accepting and welcoming refugees and note that in the
past two years, the United States Government has taken steps to
significantly expand refugee admissions from Latin America and the
Caribbean. However, simply welcoming migrants into the United States
without a policy in place to ensure lawful, safe, and orderly
processing of those migrants would exceed DHS's already limited
resources and facilities--especially given the anticipated increase in
the numbers of migrants who will attempt to enter the United States
following the lifting of the Title 42 public health Order.
The Departments underscore that the rebuttable presumption will not
apply to noncitizens who availed themselves of safe, orderly, and
lawful pathways to enter the United States or sought asylum or other
protection in a third country and were denied. The rule lists three per
se grounds for rebuttal: if a noncitizen demonstrates that, at the time
of entry, they or a member of their family as described in 8 CFR
208.30(c) with whom the noncitizen is traveling faced an acute medical
emergency; faced an imminent and extreme threat to their life or
safety; or were a ``victim of a severe form of trafficking in persons''
as defined in 8 CFR 214.11. See 8 CFR 208.33(a)(3), 1208.33(a)(3). The
rule also
[[Page 31340]]
contains a specific exception to the rebuttable presumption for
unaccompanied children. See 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i).
Noncitizens who are subject to the lawful pathways condition on
eligibility for asylum and who do not qualify for an exception or rebut
the presumption of the condition's applicability, remain eligible to
apply for CAT protection or for statutory withholding of removal, which
implements U.S. non-refoulement obligations under the 1967 Protocol.
See, e.g., Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun
v. U.S. Att'y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017).
Exceptionally compelling circumstances will also be found if,
during section 240 removal proceedings, the noncitizen is found
eligible for statutory withholding of removal or CAT withholding, they
would be granted asylum but for the presumption against asylum, and
their accompanying spouse or child does not independently qualify for
asylum or other protection against removal or the noncitizen has a
spouse or child who would be eligible to follow to join them as
described in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A),
if they were granted asylum. See 8 CFR 1208.33(c). As discussed in the
NPRM, the Departments have determined that applying the lawful pathways
condition on eligibility for asylum is necessary to ensure the
Departments' continued ability to safely, humanely, and effectively
enforce and administer U.S. immigration laws and to reduce the role of
exploitative and dangerous smuggling and human trafficking networks.
Comment: Many commenters stated that if the United States cannot be
a safe place for people being persecuted, then it is not living up to
constitutional and moral values. A commenter stated that anyone not of
Native American ancestry is here because our relatives came here for a
better life for themselves and their family. Some commenters stated
that America is a nation of immigrants, while others stated that we
should remember our ancestors, as many were immigrants too, and invoked
their family's migration to the United States as examples. A commenter
stated that it is inherently evil to ignore, mistreat, or in any way
harm desperate people fleeing their homes because they would likely
suffer or even die if they stay. Commenters described the rule as
inhumane, not in alignment with Christian or Judeo-Christian morals,
and immoral and contrary to American values. A commenter stated that
the use of the term ``humane'' in connection with the proposed rule was
cynical and cruel. Another commenter stated that the rule would
inevitably lead to unnecessary harm and death. One commenter stated
that the rule would cause survivors and victims of crime to distrust
systems.
Many commenters cited the harms resulting from the United States'
failure to provide protection for those fleeing Nazi persecution, which
commenters said led to the development of the modern asylum system.
Multiple commenters stated that, as a wealthy country that claims to be
a leader in democracy, the United States has a special obligation to
make it easy to seek asylum here, and that the proposed rule would put
barriers in the way of desperate people. Commenters stated that the
Departments should not forget the contributions of immigrants to the
United States' workforce and diversity and should not deny protection
to people in need. Some commenters stated that the asylum seekers who
would be denied under the rule would be contributing members of society
that the country needs. One commenter stated the rule conflicts with
the American tradition of ``innocent until proven guilty,'' another
protested ``the presumption of guilt of undocumented immigrants which
underlies this proposed rule,'' and others stated that refugees should
not be treated as criminals. At least one commenter stated that the
rule would amount to ``cruel and unusual punishment'' and other
commenters described it as ``cruel'' or ``wrong'' and ``un-American.''
One commenter stated that the rule imposes an arbitrary punishment on
the very individuals whom the asylum laws were intended to protect. At
least one commenter stated that the rule should have a presumption in
favor of applicants. Another commenter said that one of America's
principles is that ``all men are created equal,'' noting that it says
``men'' and does not refer to U.S. citizens only.
Response: The Departments disagree that this rule is inhumane or
contrary to morals and values. For decades, U.S. law has protected
vulnerable populations from return to a country where they would be
persecuted or tortured. The Departments note that the rule is designed
to safely, effectively, and humanely process migrants seeking to enter
the United States, and to reduce the influence and role of the lawless
and pernicious human smuggling organizations that put migrants' lives
in peril for profit. See 88 FR at 11713-14. The Departments considered
the dangerous journeys made by migrants who put their lives at risk
trying to enter the United States without authorization. The rule is
designed to disempower criminal enterprises that seek to take advantage
of desperate migrants, leading to untold human suffering and far too
many tragedies. See id. The rule pursues this goal by encouraging
migrants to seek protection in other countries in the region and to use
lawful pathways and processes to access the U.S. asylum system,
including pathways and processes that do not require them to take a
dangerous journey. In order to ensure that particularly vulnerable
migrants are not unduly affected by the rule, the Departments have
included exceptions and multiple ways that migrants may rebut the
presumption and thereby remain eligible for asylum, as well as access
to other protection. A noncitizen who seeks to apply for asylum can
also schedule their arrival at a land border POE through the CBP One
app and be exempted from the rule.
Regarding comments stating that the rule conflicts with ``innocent
until proven guilty,'' or that the rule attaches a presumption of guilt
to migrants, or that the rule amounts to ``cruel and inhumane
treatment,'' the Departments note that this rule is not intended to
ascribe guilt or innocence or punishment to anyone but rather to
encourage the use of lawful, safe, and orderly pathways to enter the
United States. The rule also does not subject anyone to ``cruel and
inhumane treatment,'' and indeed ensures that individuals who fear
torture or persecution can seek statutory withholding of removal or CAT
protection. Similarly, the Departments disagree with comments
recommending a presumption in the rule that favors eligibility for
asylum. The Departments note that asylum eligibility requirements set
forth in section 208(b)(1) of the INA place the burden on the
noncitizen. Creating a presumption in the rule to favor eligibility for
asylum would remove that burden from the noncitizen and would not
achieve the Departments' goals of disincentivizing migrants from
crossing the SWB without authorization. Finally, as explained in
Section IV.D.1.ii of this preamble, the rule is fully consistent with
the Departments' legal authority and obligations on asylum eligibility
pursuant to section 208 of the INA, 8 U.S.C. 1158.
Comment: Commenters described this rule as a ``broken promise'' to
fix the asylum system and stated that President Biden had criticized
the Title 42 public health Order and indicated that he would pursue
policies that reflect the United States' commitment to asylum seekers
and refugees. A commenter urged the Departments to withdraw the
[[Page 31341]]
rule, reasoning that it would contravene the Biden Administration's
values by putting vulnerable migrants at greater risk for violence
without shelter or protection. Another commenter expressed concern that
the proposed rule would be antithetical to President Biden's prior
promises to reduce migrants' reliance on smuggling networks, to reduce
overcrowding in migrant detention facilities, and to provide effective
humane processing for migrants seeking protections in the United
States. Other commenters stated that the rule would contravene
President Biden's promise to uphold U.S. laws humanely and to preserve
the dignity of ``immigrant families, refugees, and asylum seekers.''
One commenter stated that during the presidential election, President
Biden campaigned to ``restore the soul of America'' and cutting off
asylum seekers is not part of that promise. Another commenter urged
that President Biden be held accountable for the ``promises he made
before his election.'' A commenter likewise stated that the proposed
rule would fail to uphold the Biden Administration's commitments to
promote regional cooperation and shared migration management.
Response: Political and economic instability, coupled with the
lingering adverse effects of the COVID-19 global pandemic, have fueled
a substantial increase in migration throughout the world. This global
increase is reflected in the trends on the SWB, where the United States
has experienced a sharp increase in encounters of non-Mexican nationals
over the past two years, and particularly in the final months of 2022.
See 88 FR at 11708. DHS was encountering an average of approximately
8,800 noncitizens per day during the first ten days of December 2022--a
new record--and expects that encounter numbers could increase to 11,000
per day following the termination of the Title 42 public health
Order.\89\ The rule is a response to the even more urgent situation
that the Departments could face after the lifting of the Title 42
public health Order. The Departments believe that these circumstances
warrant this policy, which will encourage those migrants who wish to
seek asylum to avail themselves of lawful, safe, and orderly pathways
into the United States.
---------------------------------------------------------------------------
\89\ See DHS Post-Title 42 Planning Model generated April 18,
2023; see also OIS analysis of CBP UIP data downloaded January 13,
2023.
---------------------------------------------------------------------------
Consistent with the principle of establishing a fair, orderly, and
humane asylum system, the United States Government has implemented a
multi-pronged approach to managing migration throughout North and
Central America. The United States Government is working closely with
international organizations and the governments in the region to
establish a comprehensive strategy for addressing the causes of
migration in the region; build, strengthen, and expand Central and
North American countries' asylum systems and resettlement capacity; and
increase opportunities for vulnerable populations to apply for
protection closer to home. See E.O. 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 (Feb. 2, 2021). These commitments were further enshrined and
expanded beyond Central and North America in the June 2022 L.A.
Declaration endorsed by the United States and 19 nations in the Western
Hemisphere.\90\ Indeed, the L.A. Declaration specifically outlines
``the need to promote the political, economic, security, social, and
environmental conditions for people to lead peaceful, productive, and
dignified lives in their countries of origin'' and states that
``addressing irregular international migration requires a regional
approach.'' \91\ At the same time, the United States is expanding
efforts to protect refugees by increasing refugee admissions and
expanding refugee processing within the Western Hemisphere. In fact, on
April 27, 2023, DHS announced that it would commit to welcoming
thousands of additional refugees each month from the Western
Hemisphere--with the goal of doubling the number of refugees the United
States committed to welcome as part of the L.A. Declaration.\92\
Therefore, the United States is enhancing lawful pathways for migration
to this country while improving efficiencies within the U.S. asylum
system.
---------------------------------------------------------------------------
\90\ The White House, Los Angeles Declaration on Migration and
Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
\91\ Id.
\92\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
---------------------------------------------------------------------------
Comment: Commenters stated that the United States should welcome
and not punish asylum seekers because the United States is responsible
for creating the conditions and other problems that have caused many of
the migrants seeking asylum to leave their countries, such as through
American military, intelligence, political, or economic actions.
Commenters also stated that the United States should not limit access
to asylum for migrants coming from countries where the United States
Government supported a regime change that created the circumstances
that the migrants are fleeing. For example, one commenter referenced
the United States' support in prior conflicts in Guatemala and El
Salvador and the current support for the controversial leadership in El
Salvador as reasons the commenter believed the United States was the
cause of migration. One commenter stated that the United States has
played a role in creating the political instability that cause many
Central American refugees to flee and seek asylum in the United States.
Other commenters expressed a belief that many migrants are fleeing
because of climate change, to which the United States has greatly
contributed, or because of challenging conditions in some countries,
including Haiti. Another commenter argued that the U.S. war on drugs
has contributed to the circumstances from which migrants are fleeing to
seek asylum at the SWB.
Response: The Departments recognize commenters' concerns that
numerous factors may have contributed to migrants seeking asylum. As
noted in the preceding comment response, political and economic
instability, coupled with the lingering adverse effects of the COVID-19
global pandemic, have fueled a substantial increase in migration
throughout the world. This global increase is reflected in the trends
on the SWB, where the United States has experienced a sharp increase in
encounters of non-Mexican nationals over the past two years, and
particularly in the final months of 2022. See 88 FR at 11708. This rule
addresses the Departments' continued ability to safely, effectively,
and humanely enforce and administer U.S. immigration law, including the
asylum system, in anticipation of a potential further surge of
migration at the SWB, regardless of any factors that may have
contributed to migration flows. The Departments have sought to address
this situation by increasing lawful pathways while also imposing
consequences for not using those pathways. The Departments further note
that the United States has worked closely with its regional partners to
prioritize and implement a strategy that advances safe, orderly, legal,
and humane migration, including taking measures to address the root
causes of migration, expand access to lawful pathways, improve the U.S.
asylum system, and address the pernicious role of smugglers. For
[[Page 31342]]
instance, the United States Government has implemented new parole
processes for CHNV nationals that have created a strong incentive for
these individuals to wait where they are to access an orderly process
to come to the United States.\93\ Additionally, the United States has
expanded refugee processing in the region which provides another
orderly option for refugees to lawfully enter the United States. See 88
FR at 11719. Consistent with these processes, this rule would further
incentivize noncitizens to avail themselves of other lawful, safe, and
orderly means for seeking protection in the United States or elsewhere.
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\93\ See DHS, Press Release, DHS Continues to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
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Comment: Some commenters stated that the United States is applying
inconsistent policy by ending expulsions of noncitizens under the Title
42 public health Order while simultaneously creating new restrictions
on asylum. Commenters stated that the United States Government should
not use the end of the Title 42 public health Order as an excuse to
resurrect asylum restrictions. Commenters stated that the United States
has expelled individuals from ``Central America, Haiti, and . . .
Venezuela,'' nearly 2.5 million times while the Title 42 public health
Order has been in place, which, according to commenters, has led to
increasing numbers of deaths along the border. One commenter stated
that it is ``ludicrous'' that the Government has acted as if the
pandemic is over except in the context of welcoming asylum seekers.
Conversely, some commenters stated that the ending of Title 42 is
within the Administration's control and is not a necessary
justification for the rule, and further critiqued the recent actions of
the Departments to prepare for the termination as causative of the
recent border crisis.
Response: The Departments respectfully disagree that this action is
inconsistent with the lifting of the Title 42 public health Order. It
is important to note that the CDC's April 2022 decision to terminate
the Title 42 public health Order and HHS's separate decision to not
renew the public health emergency after May 11, 2023, resulting in the
impending termination of the Title 42 public health Order, were based
on considerations of public health, not immigration policy. HHS and CDC
exercise authority under Title 42 of the U.S. Code to make public
health determinations for a range of purposes. See 42 U.S.C. 265, 268;
section 319 of the Public Health Service Act; 42 CFR 71.40. Throughout
the COVID-19 pandemic, DHS and DOJ have relied and will continue to
rely on the public health expertise of CDC and HHS, and DHS will
implement relevant CDC orders to the extent that they remain in effect.
After the Title 42 public health Order is lifted, migrants will be
subject to Title 8 processing. The Departments anticipate that in the
absence of this rulemaking, a significant further surge in irregular
migration would then occur. Such a surge would risk (1) overwhelming
the Departments' ability to effectively process, detain, and remove, as
appropriate, the migrants encountered; and (2) placing additional
pressure on States, local communities, and NGO partners both along the
border and in the interior of the United States. This rule will
disincentivize irregular migration and instead incentivize migrants to
take safe, orderly, and lawful pathways to the United States or to seek
protection in a third country.
ii. Ports of Entry Should Be Open to Anyone To Make an Asylum Claim
Comment: Commenters stated that everyone escaping persecution
should be able to seek safety in the United States by presenting at a
POE, and that migrants should not be required to make appointments to
present themselves or to seek asylum in third countries where they may
face harm. Another commenter stated that the rule would limit asylum to
the ``privileged and connected'' despite longstanding legal precedent
holding that individuals should be able to access asylum regardless of
manner of entry. One commenter stated that even if migrants have a
relatively low chance of approval, they have a right to enter the
United States and apply for asylum, because some claims will be
successful. Commenters stated that the United States denies visas to
many people who face persecution, so those same people should not be
denied asylum for failing to travel with a visa. For example, at least
one commenter stated that an average person from Central America would
struggle to get a tourist, student, or other visa. Another commenter
stated that everyone, regardless of manner of entry, manner of transit,
nationality, or other arbitrary restriction, should have the right to
seek asylum in the United States.
Response: As discussed in more detail in Section IV.D.1 of this
preamble, this rule does not deny anyone the ability to apply for
asylum or other protection in the United States; instead, the
Departments have exercised their authority to adopt additional
conditions for asylum eligibility by adopting a rebuttable presumption
of ineligibility for asylum in certain circumstances. The Departments
acknowledge and agree that any noncitizen who is physically present in
the United States may apply for asylum, but note that there is no
freestanding right to enter or to be processed in a particular manner.
See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 357, 452 (1950) (``At
the outset we wish to point out that an alien who seeks admission to
this country may not do so under any claim of right. Admission of
aliens to the United States is a privilege granted by the sovereign
United States Government''). Importantly, under this rule, any
noncitizen will be able to present at a POE, and no individual--
regardless of manner of entry into the United States--will be turned
away or denied the opportunity to seek protection in the United States
under this rule. Noncitizens who lack documents appropriate for
admission to the United States are encouraged and incentivized, but not
required, to make an appointment using the CBP One app to present
themselves at a POE for inspection.
The use of the CBP One app will contribute to CBP's efforts to
expand its SWB POE migrant processing capacity well beyond the 2010-
2016 daily POE average,\94\ resulting in increased access for
noncitizens to POEs. Those who arrive at a POE without an appointment
via the CBP One app may be subject to longer wait times for processing
at the POE depending on daily operational constraints and
circumstances. And this rule does not preclude such noncitizens, or
other noncitizens who cross the southwest land border or adjacent
coastal borders, from filing an asylum application. Indeed, in all
cases, any noncitizen who is being processed for expedited removal may
express or indicate a fear of return during the expedited removal
process, and will be referred to USCIS for a credible fear interview,
as appropriate. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii).
Also, noncitizens in section 240 removal proceedings have the
opportunity to present information asserting fear or concern of
potential removal. See INA 240(c)(4), 8 U.S.C. 1229a(c)(4). Although
such individuals
[[Page 31343]]
may be presumptively ineligible for asylum under this rule, they may
seek to establish that they are subject to an exception or to rebut
that presumption, and they may also still seek statutory withholding of
removal and CAT protection in the United States, as outlined in Section
IV.E.8 of this preamble. The Departments also note that a purpose of
this rule is to facilitate safe and orderly travel to the United
States. Individuals who lack a visa are generally inadmissible to the
United States, see INA 212(a)(7), 8 U.S.C. 1182(a)(7), and will remain
so under this rule.
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\94\ See CBP STAT Division, U.S. Customs and Border Protection
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of
Field Operations (OFO) Daily Average (internal data report,
retrieved Apr. 13, 2023).
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iii. Belief That the Rule Will Result in Denial of Valid Asylum Claims
Comment: Commenters stated that the rule would result in the denial
of valid asylum claims and described the right to seek asylum as a
human right. One commenter emphasized that, when Congress created the
credible screening process, the premise of the screening was for
adjudicators to err on the side of protection. Multiple commenters
expressed concern that implementing the proposed rule would increase
the likelihood that asylum seekers would be refouled or migrants
returned to harmful conditions. One commenter said that denying a bona
fide asylum claim and putting a would-be applicant at risk of danger is
a greater mistake than making a positive credible fear determination
that does not result in asylum. At least one commenter disagreed with
the proposed rule's assertion that noncitizens who forgo certain lawful
or orderly procedures are less likely to have a well-founded fear than
those who do and stated that this assertion is unsupported.
Commenters stated that the rule imposes conditions on noncitizens'
access to asylum that have nothing to do with the merits of their
asylum claims and merely puts up bureaucratic hurdles. One commenter
stated that people often have no control or choice in how they get to
the United States, which is a matter of survival. Another commenter
stated that rushed procedure created by this rule would result in what
the commenter describes as false negatives, as asylum seekers subjected
to this process would be disoriented from their days in CBP's holding
facilities, especially after undergoing a harrowing journey to the
United States that likely included violence, persecution, and trauma.
Commenters stated that instead of filtering out migrants with weak
asylum claims, the rule would stop the most vulnerable from being able
to apply for asylum. One commenter stated that it may be necessary for
asylum seekers to cross the border by unscrupulous means to escape
their persecutors and that this bolsters their case for asylum rather
than detracts. Commenters stated that the exceptions to the proposed
rule do little to provide meaningful safeguards for asylum seekers and
would result in erroneous denials and forced return to countries where
the noncitizen would face danger. Commenters stated that asylum seekers
who are otherwise eligible for asylum but banned by the rule would
likely be deported to danger. Other commenters stated that the
framework of the rebuttable presumption would have negative effects and
de facto be dispositive of asylum eligibility before noncitizens have a
``fair shot at making their case.'' One commenter wrote that,
concerning the one-year asylum filing deadline, numerous reports have
shown the impact of such bars on returning individuals to harm.
Response: The Departments disagree that the rule creates an
unwarranted risk of denial of valid asylum claims. The U.S. asylum
system is governed by statute and implementing regulations. To receive
asylum, noncitizens must establish that (1) they meet the definition of
a ``refugee,'' under section 101(a)(42) of the INA, 8 U.S.C.
1101(a)(42), (2) they are not subject to a bar to applying for asylum
or a bar to the granting of asylum, and (3) they merit a favorable
exercise of discretion. See INA 208(a)(2), 8 U.S.C. 1158(a)(2); INA
208(b)(1), 8 U.S.C. 1158(b)(1); INA 240(c)(4)(A), 8 U.S.C.
1229a(c)(4)(A); 8 CFR 1240.8(d); see also Moncrieffe v. Holder, 569
U.S. 184, 187 (2013) (describing asylum as a form of ``discretionary
relief from removal''); Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.
2007) (``Asylum is a discretionary form of relief . . . . Once an
applicant has established eligibility . . . it remains within the
Attorney General's discretion to deny asylum.''). Because asylum is a
discretionary form of relief from removal, the assumption that this
rule will result in the risk of denial of valid asylum claims is
incorrect because the noncitizen bears the burden of showing both
eligibility for asylum and why the Attorney General or Secretary should
exercise the discretion to grant relief. See INA 208(b)(1), 8 U.S.C.
1158(b)(1); INA 240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A)(ii); 8 CFR
1240.8(d); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).
The Departments acknowledge that despite the protections preserved
by the rule and the availability of lawful pathways, the rebuttable
presumption adopted in the rule will result in the denial of some
asylum claims that otherwise may have been granted, but the Departments
believe that the rule will generally offer opportunities for those with
valid claims to seek protection through asylum, statutory withholding
of removal, or protection under the CAT. Moreover, the Departments have
determined that the benefits to the overall functioning of the system,
including deterrence of dangerous irregular migration and smuggling,
justify the rule.
The rule encourages those with meritorious claims to either apply
for asylum or other protection in the first safe country they reach or
pursue available lawful pathways as set forth in the rule. Noncitizens
who apply for and are denied protection in a third country are not
barred from asylum eligibility under this rule. The rule will preserve
core asylum protections by permitting noncitizens subject to the
presumption of asylum ineligibility to rebut it by showing
exceptionally compelling circumstances that excuse their failure to
pursue lawful pathways or processes. Furthermore, under the rule,
noncitizens who are ineligible for asylum due to the lawful pathways
condition remain eligible for protections from persecution and torture.
Indeed, noncitizens who establish a reasonable possibility of
persecution or torture are placed in section 240 removal proceedings
where they can apply for asylum, statutory withholding of removal, and
protection under CAT. 8 CFR 1208.33(b)(2)(ii), (b)(4). Thus, the rule
does not prevent noncitizens from pursuing asylum nor does the rule
create an unwarranted risk of denial of valid asylum claims.
iv. Belief That the Rule Will Increase Smuggling or Trafficking
Comment: Commenters agreed that human trafficking is a serious
concern, but asserted that this rule would make the problem worse.
Commenters stated the proposed rule will not result in asylum seekers
relying less on smuggling networks, but will actually increase their
reliance on smugglers and increase their vulnerability to trafficking.
One stated that desperate people turn to traffickers because they fear
being turned away by authorities, and that the most effective way to
remove traffickers' leverage is to open safe and legal pathways for
immigration. Another commenter stated that the United States should
make it easier to legally enter for work as a way to discourage
trafficking by smugglers rather than implement the proposed rule. Some
commenters stated human smuggling and trafficking were
[[Page 31344]]
problems of the Government's own making, and by discouraging migrants
from coming to the border in a legal manner, the rule would increase
the interactions between migrants and smugglers, as well as increasing
the number of noncitizens without lawful immigration status in the
United States. Commenters also stated that closing off the SWB and
trapping migrants in dangerous parts of Mexico for a prolonged time
exposes them to greater violence, exploitation, and other dangers, and
heightens their risk of being trafficked. One commenter stated that in
the event that people are unable to get an appointment through the CBP
One app and are blocked from access to asylum, smuggling operations and
organized crime in Mexico will only gain more power, take individuals
on more treacherous routes to evade detection, and cause USBP to invest
more resources to detain individuals. Another commenter stated that the
rule would further embolden organized crime, corrupt state actors, and
criminals, making migrants even more of a target and placing them at
greater risk of being trafficked. One commenter stated, without
evidence, that the TCT Bar Final Rule advantaged drug cartels and
criminal organizations that target vulnerable populations, and asserted
that this rule would have the same result.
Commenters said that technical difficulties associated with the CBP
One app have opened new avenues for exploitation; for example,
traffickers claiming an ability to obtain appointments, or scams
charging fees for completing a CBP One app registration. Similarly, one
commenter said that individuals who lack access to stable Wi-Fi may
seek Wi-Fi in dangerous places, including cities controlled by cartels.
Another commenter wrote that the need for migrants to borrow a
smartphone from a third party could create an opportunity to take
advantage of migrants trapped at the U.S.-Mexico border to target them
for extortion, sexual violence, or other harm. In contrast, based on
its field monitoring, a different commenter stated that the CBP One app
has led to a reduction in instances of fraud and abuse of migrants who
previously relied on local actors to get on lists to request an
exception to the Title 42 public health Order.
Another commenter expressed concern that the proposed rule may
discourage migrants from contacting U.S. law enforcement for fear of
deportation, increasing the likelihood of trafficking and smuggling.
One comment stated that the rule would continue the Administration's
shameful legacy of facilitating mass trafficking and smuggling of
vulnerable noncitizens because it is ``all bark and no bite'' due to
its ``numerous loopholes and exceptions,'' unlike the TCT Bar
rulemaking, which the commenter described as part of a multi-pronged
strategy to secure the border.
Response: The Departments acknowledge the commenters' concerns
about smuggling and trafficking, but disagree with the either/or
approach urged by some commenters. To prevent migrants from falling
victim to smugglers and traffickers, the Departments believe it is
necessary to both increase the availability of lawful pathways for
migration and discourage attempts to enter the United States without
inspection. The Departments anticipate that the newly expanded lawful
pathways to enter the United States, in conjunction with the rule's
condition on asylum eligibility for those who fail to exercise those
pathways, will ultimately decrease attempts to enter the United States
without authorization, and thereby reduce reliance on smugglers and
human traffickers.
DHS has recently created alternative means for migrants to travel
to the United States via air through the CHNV parole processes,
increased refugee processing in the Western hemisphere, and increased
admissions of nonimmigrant H-2 workers from the region. 88 FR at 11718-
20. DHS also recently announced that it plans to create new family
reunification parole processes for nationals of El Salvador, Guatemala,
Honduras, and Colombia, and to modernize the existing Haitian Family
Reunification Parole process and the Cuban Family Reunification Parole
process.\95\ In addition, noncitizens' use of the CBP One app to
schedule appointments to present at land border POEs is expected to
enhance DHS's ability to process such individuals in a safe, orderly
manner. As discussed later in Section IV.E.3.ii.a of this preamble, CBP
anticipates processing several times more migrants each day at SWB POEs
than the 2010-16 daily average,\96\ including through the use of the
CBP One app. While the CBP One app provides noncitizens access to
schedule arrivals at a POE, no CBP officer will dissuade or prevent any
noncitizen who lacks a scheduled appointment from applying for
admission to the United States. See INA 235(a)(4), U.S.C. 1225(a)(4); 8
CFR 235.1, 235.4 (decision to withdraw application for admission must
be made voluntarily).
---------------------------------------------------------------------------
\95\ See DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
\96\ See CBP STAT Division, U.S. Customs and Border Protection
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of
Field Operations (OFO) Daily Average (internal data report,
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec.
Ass't Comm'r, Off. of Field Operations, from Troy A. Miller, Acting
Comm'r, CBP, Re: Guidance for Management and Processing of
Undocumented Noncitizens at Southwest Border Land Ports of Entry
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------
The Departments disagree that the CBP One app or accessibility
issues associated with the CBP One app will increase reliance on
smugglers and traffickers. The CBP One app is a free, public-facing
application that can be downloaded on a mobile phone. 88 FR at 11717.
As noted in the received comments, the International Organization for
Migration (``IOM'') has, during its recent field monitoring, observed
that the CBP One app has led to a reduction in instances of fraud and
abuse of migrants who previously relied on local actors to get on lists
to request an exception to the Title 42 public health Order, and
recommended that CBP further develop the CBP One app to prevent
glitches and incorporate improvements suggested by IOM and other
stakeholders. CBP is continuing to improve the CBP One app and engage
with stakeholders on potential improvements. The rule also contains an
exception for situations where it was not possible to access or use the
app due to language barrier, illiteracy, significant technical failure,
or other ongoing and serious obstacle. 8 CFR 208.33(a)(2)(B),
1208.33(a)(2)(B).
The Departments also disagree with the assertion that, due to its
exceptions and means of rebuttal, the rule will facilitate mass
trafficking and smuggling of vulnerable noncitizens. The recently
expanded lawful pathways are designed to allow migrants to travel
directly to the United States without having to travel through Central
America, where they might rely on smugglers or traffickers. In
addition, some of the specific examples of exceptionally compelling
circumstances are designed to protect victims or those at risk of
trafficking. See 8 CFR 208.33(a)(3)(i)(B) and (C), 1208.33(a)(3)(i)(B)
and (C).
Finally, the Departments do not believe that the rule will
discourage migrants from contacting U.S. law enforcement due to fear of
deportation, and thereby place them at further risk of trafficking and
smuggling. Migrants who enter the United States without inspection or
apprehension by CBP are already subject to removal, see INA
212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A), and victims of severe forms of
trafficking or other crimes may be eligible to apply for
[[Page 31345]]
T or U nonimmigrant status, see INA 101(a)(15)(T) and (U), 8 U.S.C.
1101(a)(15)(T) and (U).
4. Negative Impacts and Discrimination Against Particular Groups
i. General Comments on Discrimination
Comment: Commenters raised concerns that the proposed rule could
have a disproportionate impact on certain populations that may be
vulnerable, including those without legal representation, those with
limited English proficiency (``LEP''), families and children, victims
of domestic and gender-based violence, victims of human trafficking,
women, the LGBT community, those with mental impairments and associated
competency issues, elderly individuals, those with limited
technological literacy, those with physical disabilities, those with
health problems or who are otherwise in need of medical attention,
people of color, indigenous groups, survivors of persecution or
torture, and those with post-traumatic stress disorder (``PTSD''),
among others.
For example, commenters stated that those without legal
representation or with limited English proficiency may have difficulty
understanding and complying with the process proposed by the rule,
which commenters claimed requires access to technology, technological
proficiency, and an understanding of the requirements prior to
attempting entry at the SWB. Likewise, commenters suggested that groups
including survivors of persecution or torture, the LGBT community,
victims of domestic and gender-based violence, women, and noncitizens
with mental impairments and associated competency issues may have
difficulty applying for relief in a third country, as those countries
may not have sufficiently robust humanitarian-relief systems to
accommodate the particular issues faced by these and similar groups.
For instance, many such individuals may have difficulty recounting the
harms they suffered in their home countries without specialized
procedures, and some third countries may not recognize their harms as
qualifying for asylum in the same way that U.S. asylum law does.
Similarly, commenters stated, some groups may also face particular
discrimination or violence in third countries based on the same
immutable characteristics for which they were persecuted in their home
countries. Other commenters highlighted anecdotally that membership in
one group has often intersected with membership in another, compounding
the harm noncitizens have experienced in transit.
Response: The Departments are committed to the equal treatment of
all persons. This rule is intended to promote lawful, safe, and orderly
pathways to the United States and is intended to benefit particularly
vulnerable groups by removing the incentive to make a dangerous
irregular migration journey and reducing the role of exploitative
transnational criminal organizations and smugglers. See 88 FR at 11707.
As detailed in the NPRM, irregular migration journeys can be
particularly fraught for vulnerable groups, including those discussed
in the following sections. See 88 FR at 11713 (explaining that women
and children are ``particularly vulnerable to attack and injury'' as
well as illness along an important migratory route). The incentivizing
of the lawful pathways described in the NPRM is intended in part to
encourage vulnerable groups to avoid such journeys while simultaneously
preserving their ability to apply for asylum consistent with existing
law and regulations. See, e.g., 88 FR at 11718 (explaining that the
United States has taken ``meaningful steps'' to enhance lawful pathways
for migrants to access protection). In addition, depending on
individual circumstances, AOs and IJs may find that certain especially
vulnerable individuals meet the exceptionally compelling circumstances
standard.
ii. Children and Families
Comment: Commenters raised concerns about the proposed rule's
impact on children and families. In general, commenters stated that the
United States has a legal and moral obligation to act in the best
interest of children by preserving family unity and should be doing
whatever it can to protect children seeking asylum, especially after
prior family separation policies at the border. Commenters generally
asserted that the proposed rule would expose children and families to
continued violence and danger, limit their right to seek asylum, and
deny children the opportunity to be safe and protected. Commenters
provided anecdotal examples of migrant families and children who had
been harmed or killed while waiting at the border to secure an
appointment through the CBP One app or while attempting to travel to
POEs with available appointments. Commenters asserted that the proposed
rule would prevent accompanied children from presenting their own
asylum claims independent of a claim presented by their parent or
guardian. Commenters were concerned that the asylum ineligibility
presumption would encourage families to separate at the SWB and prevent
noncitizens from petitioning for their eligible derivatives, which
commenters claimed would be a form of family separation, and described
potential attendant negative consequences for children and families,
such as trauma, familial instability, developmental delays,
vulnerability to harm and exploitation, detention, placement in
orphanages, and detention in inhumane conditions.
Further, commenters asserted that all children, because of their
unique needs and challenges, deserve additional procedural protections
and child-sensitive considerations not included in the proposed rule.
Commenters highlighted the vulnerability of children, the fact that
children process trauma differently than adults do, and children's
varied ability to understand complex immigration requirements, stating
that the law recognizes the need for additional protections for
children and to account for their best interests. Commenters also
suggested that the proposed rule and any detention that it may require
would re-traumatize children who have already experienced trauma,
including trauma from their journey to the SWB. Other commenters
suggested that any required detention may have serious ramifications on
a child's well-being, mental health, and development.
Additionally, commenters posited that the proposed rule could
incentivize entire families to make a potentially dangerous journey to
the United States together. Commenters stated that prior to the
proposed rule, one family member might have journeyed alone to the
United States to seek asylum with the understanding that they would be
able to petition for family members upon being granted asylum. But
under the proposed rule, those commenters stated, many families may be
incentivized by what commenters consider a lack of asylum availability
to undertake an unsafe journey to the SWB together rather than risk
permanent family separation. Relatedly, commenters indicated that
children compelled to wait at the SWB with a member of their family, so
as not to be subject to the NPRM's condition on eligibility, may be
deprived of access to other forms of status for which they may be
eligible in the United States, such as Special Immigrant Juvenile
classification. Commenters urged the Departments to prioritize
processing family unit applications to keep families together and
expressed that families deserve a chance to live together in the
[[Page 31346]]
United States to escape violence in their home countries.
One commenter stated that children have little control over whether
their parents can pre-schedule their arrival at a POE or choose to
apply for protection in transit countries, but the proposed rule would
condition asylum eligibility for the child on whether their parent did
so. Similarly, other commenters stated that the proposed rule failed to
consider or make an exception for the fact that children and young
people generally have less control and choice with respect to their
movement and may depend on the assistance of a parent, who may have
been jailed or killed by persecutors, or who may themselves have harmed
the child or young person, to apply and be approved for a visa.
Response: The Departments share commenters' concerns about the
vulnerability of children and note that UCs are entitled to special
protections under the law. See 88 FR at 11724 (citing INA 208(a)(2)(E),
8 U.S.C. 1158(a)(2)(E) (providing that safe-third-country bar does not
apply to UCs); INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) (stating that
an AO has initial jurisdiction over the asylum claims of UCs); and 8
U.S.C. 1232(d)(8) (``Applications for asylum and other forms of relief
from removal in which an unaccompanied alien child is the principal
applicant shall be governed by regulations which take into account the
specialized needs of unaccompanied alien children and which address
both procedural and substantive aspects of handling unaccompanied alien
children's cases.'')). The Departments also recognize commenters'
concerns that children may be at risk for exploitation by criminal
actors at and around the SWB, and the Departments note that UCs are of
particular concern.
Because of UCs' unique vulnerability and the special protections
granted to them by law, the rule contains a provision categorically
excepting UCs from the rebuttable presumption of ineligibility for
asylum. 8 CFR 208.33(a)(2)(i), 1208.33(a)(2)(i). Accordingly, because
UCs will not be subject to the rebuttable presumption of ineligibility
for asylum created by this rule, the Departments emphasize that UCs do
not need to wait, potentially vulnerable, in Mexico before seeking
entry to the United States or rely on smugglers to undertake a
potentially dangerous journey across the SWB. Further, the Departments
expect that the rule, by creating efficiencies and freeing up resources
due to non-UC migrants pre-scheduling their arrival at SWB POEs, will
allow for faster, smoother processing of UCs presenting at the SWB. See
88 FR at 11719-20 (describing anticipated efficiencies from
implementation of pre-scheduling through the CBP One app). The
Departments believe that the rule sufficiently recognizes the unique
situation of UCs and provides appropriate safeguards. For discussion of
the exception to the condition on asylum eligibility for UCs, and
comments suggesting a similar exception for accompanied children,
please see Section IV.E.3.v of this preamble.
The Departments acknowledge commenter concerns that children may
not have the autonomy to make decisions about their transit or manner
of entry into the United States. With those important realities in
mind, the Departments have amended the language proposed in the NPRM to
ensure that the presumption of asylum ineligibility will not apply to
certain noncitizens who entered as children and who file asylum
applications after the date range set forth in 8 CFR 208.33(a)(1)(i)
and 1208.33(a)(1)(i)--specifically, those who are applying as principal
applicants. See 8 CFR 1208.33(d)(2). Further, the Departments recognize
that some children could be traveling with an adult but still meet the
definition of UC at 6 U.S.C. 279(g)(2), for example, where the adult is
not the child's parent or legal guardian. Such children would also be
excepted from the presumption against asylum eligibility as UCs. See 8
CFR 208.33(a)(2)(i), 1208.33(a)(2)(i). The Departments believe that the
aforementioned provisions of the rule prevent those who entered as
children from facing a continuing impact on asylum eligibility based
upon decisions that others likely made for them.
As discussed in more detail in Section IV.E.3.ii.b of this
preamble, the Departments emphasize that family units traveling
together should schedule their appointments together through the CBP
One app. Families or groups traveling together who do not register
together on one CBP One app account may not be accommodated at the same
POE or date. Further, as stated in the NPRM, when family units are
subject to a credible fear screening, USCIS will find that the entire
family passes the screening if one family member establishes a credible
fear. 88 FR at 11724; see 8 CFR 208.30(c). Likewise, when the
reasonable possibility standard applies, USCIS will continue to process
claims from family units in this way. 88 FR at 11724 (``USCIS will
continue to process family claims in this manner even when applying the
reasonable possibility standard.'').
The Departments also acknowledge commenter concerns related to the
impact that any potential detention may have on children and families,
as well as the effects of trauma on children. However, this rule
neither addresses nor expands detention policies, and therefore
specific concerns related to detention are outside the scope of this
rule. Further, with respect to the effects of trauma on children and
concerns about re-traumatization, the Departments are confident in the
ability of AOs and IJs to follow appropriate safeguards available for
children in processing with USCIS and the immigration courts and note
that adjudicators receive training and guidance related to special
considerations in cases involving children.\97\
---------------------------------------------------------------------------
\97\ See, e.g., Department of Justice, EOIR, OPPM 17-03:
Guidelines for Immigration Court Cases Involving Juveniles,
Including Unaccompanied Alien Children (Dec. 20, 2017), https://www.justice.gov/eoir/file/oppm17-03/download (recognizing unique
circumstances presented by immigration cases involving children and
providing guidance for those cases); USCIS, RAIO Directorate--
Officer Training: Children's Claims (last revised Dec. 20, 2019),
https://www.uscis.gov/sites/default/files/document/foia/Childrens_Claims_LP_RAIO.pdf [hereinafter USCIS, Children's Claims]
(providing guidelines for adjudicating children's claims).
---------------------------------------------------------------------------
However, the Departments disagree with commenters' contention that
children waiting for an appointment to present at a POE together with
their family unit will be deprived of Special Immigrant Juvenile
classification. Whether a noncitizen enters alone or with a family unit
is not dispositive to the statutory definition of a ``special
immigrant.'' See INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J) (defining
``special immigrant,'' in part, as an immigrant who is present in the
United States ``who has been declared dependent on a juvenile court
located in the United States or whom such a court has legally committed
to, or placed under the custody of, an agency or department of a State,
or an individual or entity appointed by a State or juvenile court
located in the United States,'' and whose reunification with one or
both of the immigrant's parents ``is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law''). Further, the
Departments highlight that nothing in this rulemaking prevents a
noncitizen child from obtaining Special Immigrant Juvenile
classification after entering the United States, provided that they are
otherwise eligible for such status.
Moreover, the Departments disagree with the characterization of
this rule as contributing to family separation rather
[[Page 31347]]
than focusing on family unity. The Departments drafted this rule with
the goal of eliminating the risk of separating families. As explained
above, the rule has several provisions to ensure that family units are
processed together. For example, if any noncitizen in a family unit
traveling together meets an exception to, or is able to rebut, the
asylum ineligibility presumption, the presumption will not apply to
anyone in the family unit traveling together. 8 CFR 1208.33(a).
Similarly, the rule contains an explicit family unity provision
applicable in removal proceedings. Id. 1208.33(c). The provision states
that if a principal applicant for asylum is eligible for statutory
withholding of removal or withholding of removal under the CAT and
would be granted asylum but for the rebuttable presumption created by
this rule, the presumption ``shall be deemed rebutted as an
exceptionally compelling circumstance'' where an accompanying spouse or
child does not independently qualify for asylum or other protection or
the principal asylum applicant has a spouse or child who would be
eligible to follow to join that applicant as described in section
208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), if the applicant were
granted asylum. Id. This provision is intended to prevent the
separation of families. Additionally, this provision is intended to
avoid incentivizing families to engage in irregular migration together,
so as not to risk that the principal applicant be prevented from later
applying for their family members to join them. This may involve making
a dangerous journey with vulnerable family members such as children.
Further, the rule incentivizes families, as well as individuals
traveling without their families, to take advantage of the lawful
pathways outlined in this rule, rather than rely on smugglers or
criminal organizations to facilitate a potentially dangerous journey.
The rebuttable presumption is intended to disincentivize making such
irregular journeys. See, e.g., 88 FR at 11730 (``The proposed rule aims
to achieve that shift in incentives by imposing a rebuttable
presumption of asylum ineligibility.''). The Departments believe that
the meaningful pathways detailed in the rule, combined with the
exceptions and rebuttals to the presumption, provide sufficient
opportunities for individuals to meet an exception to or rebut the
presumption, which could preclude asylee status and the ability to
later petition for eligible derivatives. Finally, commenter concerns
related to placing separated children in orphanages are outside the
scope of this rulemaking, but the Departments emphasize that nothing in
this rule would authorize such a process.
For additional discussion of concerns related to due process, see
Section IV.B.5 of this preamble. For more discussion of the family
unity provision applicable in removal proceedings, please see Section
IV.E.7.ii of this preamble.
iii. Individuals With LEP
Comment: Commenters expressed the belief that the proposed rule
would function as a complete ban on asylum for noncitizens who are not
sufficiently proficient or literate in the languages they would need to
use to successfully navigate available lawful pathway options. As a
foundational issue, commenters voiced the opinion that due to language
and literacy barriers, many noncitizens, particularly those who speak
rare languages and those with limited literacy in their native
languages, would not be able to understand what lawful pathways are
available to them or the consequences that may result from not pursuing
a lawful pathway under the proposed rule. For example, some commenters
stated that many asylum seekers who are unfamiliar with U.S.
immigration law may not know what steps to take to preserve their
eligibility for asylum.
Commenters also indicated that many noncitizens would be unable to
meaningfully access the CBP One app due to inadequate proficiency or
literacy in the app's supported languages and therefore would be unable
to pre-schedule their appearance at a POE, making them subject to the
rule's presumption of asylum ineligibility. Commenters provided
examples of individuals who they asserted would be disproportionately
impacted by the rule and face particular challenges, including those
who speak an Afghan dialect of the Persian language, monolingual
speakers of indigenous languages, and members of the Asian-Pacific
Islander community whose primary languages do not utilize the Latin
script.
Response: Due to the safeguards crafted into the rule and the
success of similar, recently implemented parole processes, the
Departments disagree with commenters' contentions that language and
literacy barriers will prevent many noncitizens from foundationally
understanding what lawful pathway options are available to them.
The Departments acknowledge commenters' concerns that some
noncitizens who wish to use the lawful pathway of pre-scheduling their
arrival may have language and literacy-related difficulty with
accessing and using the CBP One app. Accordingly, the rule provides an
exception to application of the rebuttable presumption of asylum
ineligibility for noncitizens who present at a POE without a pre-
scheduled appointment who can demonstrate through a preponderance of
the evidence that, because of a language barrier or illiteracy, it was
not possible for them to access or use the DHS scheduling system to
pre-schedule an appointment. 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). AOs will follow established procedures for
interviewing individuals to determine applicability of this exception.
Similarly, IJs will follow established procedures for soliciting
testimony and developing the record, as appropriate.
The Departments also believe the processes highlighted in this
rulemaking will be navigable for noncitizens--regardless of language
spoken--as evidenced by the success of the recent, similar U4U and CHNV
parole processes, both of which are offered to noncitizens from
countries where the primary language is one other than English. See,
e.g., 88 FR at 11706-07 (noting that the U4U and CHNV parole processes
resulted in vastly fewer irregular border crossings, demonstrating that
noncitizens from Ukraine, Cuba, Haiti, Nicaragua, and Venezuela were
able to take advantage of the U4U and CHNV parole processes). The
success of the U4U and CHNV parole processes suggests that these
noncitizens are broadly aware of changes to U.S. immigration processes,
that such information is being communicated to noncitizens outside the
United States, and that noncitizens are changing migration behaviors in
response. In addition, the Departments intend to engage in robust
regional public awareness campaigns to promote understanding of the
rule, building on ongoing efforts to encourage intending migrants to
avail themselves of lawful pathways and publicize the perils of
irregular migration. Therefore, the Departments believe that,
irrespective of language spoken, noncitizens outside of the United
States will become apprised of the lawful pathway options laid out in
this rule.
iv. Individuals With Mental Impairments and Associated Mental
Competency Issues
Comment: Commenters raised concerns about the proposed rule's
effect on noncitizens who have mental impairments and associated mental
competency issues. Commenters stated
[[Page 31348]]
that some mental impairments result in symptoms that would impact an
individual's ability to apply for asylum under any circumstances,
especially if access to medical services is unavailable. Moreover,
commenters stated that downloading, registering for, and using the CBP
One app may be too difficult for some noncitizens with mental
impairments and associated mental competency issues. Thus, commenters
recommended exempting such persons from the rule.
Response: The Departments recognize the difficulties faced by
noncitizens with mental impairments and associated competency issues.
Under this rule, AOs and IJs may consider, on a case-by-case basis,
whether a noncitizen's or accompanying family member's mental
impairments or associated competency issues presented an ``ongoing and
serious obstacle'' to accessing the DHS scheduling system. 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). In addition, depending on
the noncitizen's or accompanying family member's particular
circumstances, any serious mental impairments or associated competency
issues may qualify as an ``exceptionally compelling circumstance''
sufficient to rebut the presumption of ineligibility for asylum. 8 CFR
208.33(a)(3)(i), 1208.33(a)(3)(i). Notably, the ``acute medical
emergency'' ground for rebutting the presumption of asylum
ineligibility is not limited to physical medical ailments but could
include mental health emergencies. 8 CFR 208.33(a)(3)(i)(A),
1208.33(a)(3)(i)(A).
Procedurally, DHS has discretion to place noncitizens in expedited
removal proceedings or refer noncitizens to EOIR for section 240
removal proceedings. Matter of E-R-M- & L-R-M, 25 I&N Dec. 520 (BIA
2011). Therefore, DHS may choose to refer noncitizens who exhibit
indicia of mental incompetency to EOIR for removal proceedings under
section 240 of the INA, where an IJ may more fully consider whether the
noncitizen shows 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).
v. Low-Income Individuals
Comment: Commenters asserted that the proposed rule discriminates
against noncitizens who cannot afford to arrive in the United States by
air or sea and favors individuals with more financial resources. In
general, commenters stressed that a noncitizen's method of arrival in
the United States--whether by land, air, or sea--should not dictate
their eligibility for asylum and stated that asylum laws should not
have a ``wealth test'' for access to protection from persecution.
Pointing to the fact that the proposed rule would only apply to
noncitizens arriving by land at the SWB, commenters said that the
proposed rule would have a disparate impact on individuals,
particularly working-class, non-white migrants, who do not have the
economic means to purchase a plane ticket or obtain a visitor visa or
passport and may not have existing supportive relationships within the
United States. Commenters stated that the lawful pathways identified in
the proposed rule--including parole programs and use of DHS scheduling
technology--prioritize individuals with financial means over those who
are indigent.
At least one commenter stated that the proposed rule would cause
migrants financial hardship, as not all migrants have the financial
resources to travel to a third country to seek asylum before attempting
to cross the SWB. Commenters also suggested that the proposed rule
would privilege migrants with the economic means to maintain a working
smartphone capable of operating the CBP One app and either pay for data
roaming capability or remain in an area with internet access.
Commenters also stated that the proposed rule unfairly benefits
wealthier noncitizens who are more likely to be able to use an approved
parole process because such noncitizens may be immediately eligible for
employment authorization while low-income noncitizens who are not able
to use such a parole process remain without immediate employment
authorization. Commenters concluded that the proposed rule would amount
to a de facto ban on asylum that targets economically disadvantaged
noncitizens without options other than arriving at the SWB.
Response: As explained in the NPRM, the Departments are issuing
this rule specifically to address an anticipated surge of migration at
the SWB following the lifting of the CDC's Title 42 public health
Order. 88 FR at 11704. Through this rule, the Departments have decided
to address such a surge one step at a time, beginning with the SWB,
where the Departments expect a surge to focus most intensely and
immediately. So, tailoring the rule to apply exclusively to migrants
arriving from Mexico at the southwest land border or adjacent coastal
borders \98\ who meet certain conditions but not to migrants arriving
via other means is appropriate based on existing and anticipated
conditions at the SWB, many of which the Departments outlined in the
NPRM. See id. at 11705-07. Where conditions necessitate, the
Departments can reevaluate the scope of the rule. Cf. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 522, 129 S. Ct. 1800, 1815
(2009) (stating that ``[n]othing prohibits federal agencies from moving
in an incremental manner''); City of Las Vegas v. Lujan, 891 F.2d 927,
935 (D.C. Cir. 1989) (explaining that ``agencies have great discretion
to treat a problem partially'' including through a ``step toward a
complete solution''). Indeed, as stated above, the Departments intend
that the rule will be subject to review to determine whether the entry
dates provided in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i) should be
extended, modified, or remain as provided in the rule.
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\98\ As explained in Section II.C.3 of this preamble, the
Departments have decided to apply this rule to migrants arriving
from Mexico not only at the southwest land border but also at
``adjacent coastal borders,'' which matches the geographic scope of
the CDC's Title 42 public health Order.
---------------------------------------------------------------------------
Commenters who expressed concerns that this rule would cause
financial hardship to migrants by requiring them to travel to a third
country to seek asylum before arriving at the SWB misunderstand the
terms of this rule. The rule does not require any migrant to travel to
a third country to overcome the rebuttable presumption--indeed, the
rebuttable presumption does not apply to those who did not travel
through a third country--and seeking protection in a third country is
merely one of several means to qualify for an exception to or rebut the
presumption. Moreover, this rule is intended in part to address
existing conditions impacting low-income individuals by reducing
opportunities for smugglers to recruit migrants to participate in
``expensive and dangerous human smuggling schemes.'' 88 FR at 11705.
Further, except for those for whom Mexico is their country of
nationality or last habitual residence, individuals arriving at the
southwest land border or adjacent coastal borders, whether they have
traveled by land, air, or sea, to arrive there, necessarily travel
through another country--and, often, more than one other country--en
route to the United States. Also, while individuals traveling from
their country of nationality or last habitual residence to the United
States may arrive directly in the United States without transiting
another country, they generally are not permitted to board an aircraft
or vessel to a U.S. location without first demonstrating that they have
the travel documents required for entry into the United States. See,
e.g., INA 211, 8 U.S.C. 1181 (setting forth requirements for immigrant
admission); see also INA
[[Page 31349]]
217, 8 U.S.C. 1187 (visa waiver requirements); INA 221 through 224, 8
U.S.C. 1201 through 1204 (visas); INA 231, 8 U.S.C. 1221 (establishing
air and vessel manifest requirements including mandating the collection
of passport numbers); see also 8 CFR 212.5(f) (providing that DHS may
issue ``an appropriate document authorizing travel'' for those seeking
to travel to the United States without a visa).
This rule does not intend to penalize migrants based on economic
status, a lack of travel documents, lack of phone or internet access,
or exigent circumstances, nor does it do so in effect. Indeed, the
Departments recognize that many individuals are only able to enter the
United States via the SWB due to just such circumstances and, in
recognition of this reality, have identified several pathways and
processes through which such individuals may travel to the SWB in a
safe and orderly fashion and, once present, seek asylum or other
protection. One such pathway or process includes pre-scheduling their
arrival, which at this time can be accomplished via the CBP One app.
Without a pre-scheduling system, migrants seeking to travel to the SWB
may have to wait for an indeterminate amount of time for CBP to have
resources available to process them. See 88 FR at 11720. Pre-scheduling
provides noncitizens seeking to present at a SWB POE with a clear
understanding of when CBP expects to process them, which allows them to
plan for safer transit and reduces opportunities for smugglers and
criminal organizations. See id. at 11707. Moreover, the rule excepts
from application of the condition on asylum eligibility those
noncitizens who presented at a POE and can establish, based on the
preponderance of the evidence, that it was not possible for them to
access or use the DHS scheduling system, including because they had
insufficient phone or internet access. See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B) (providing the presumption does not apply ``if the
alien demonstrates by a preponderance of the evidence that it was not
possible to access or use the DHS scheduling system due to . . .
significant technical failure, or other ongoing and serious
obstacle'').
In response to commenters' concerns about differences in
eligibility for employment authorization depending on whether a migrant
entered the United States following use of the CBP One app, a DHS-
approved parole process, or some other means, the Departments
acknowledge that the employment authorization rules may vary depending
on the pathway that a noncitizen uses to enter the United States and
how the noncitizen is processed. This has always been the case, and
although this rule recognizes certain lawful pathways as a basis to
avoid the rebuttable presumption, such pathways would exist
irrespective of this rulemaking. The Departments also note that
individuals in expedited removal proceedings, including those
determined to have a credible fear who are then paroled from custody,
remain ineligible to apply for employment authorization on the basis of
this exercise of parole. 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). The NPRM
did not propose to revise any regulations governing employment
authorization eligibility, and the final rule does not make any such
changes either.
vi. Allegations of Discrimination on Race, Ethnicity, or Nationality
Grounds
Comment: Commenters raised concerns that the proposed rule would
have a discriminatory impact based on nationality and effectively deny
protection to migrants from certain countries. For example, commenters
alleged that the proposed rule would have a disproportionately negative
impact on noncitizens from countries in Africa, the Caribbean, Central
America, and Latin America who do not currently fall under any large-
scale parole initiatives and are more likely to seek asylum via arrival
at the SWB, with some commenters describing the rule as a de facto ban
for these populations. Commenters also stated that noncitizens from
China specifically, and Asia more generally, would be
disproportionately impacted by the rule as a result of lasting effects
from reduced refugee admissions under the prior Administration, which,
commenters said, increased the number of individuals from these
countries seeking entry to the United States at the SWB. Likewise,
commenters noted that noncitizens from Afghanistan would be
disproportionately impacted by the rule due to potential danger in
third countries.
Further, commenters noted that the Administration has created
special immigration programs for citizens of certain countries--
including Cuba, Haiti, Nicaragua, Ukraine, and Venezuela--in response
to various political and humanitarian conditions in those countries,
but has not done so for citizens of certain other countries. Commenters
questioned why citizens from these countries are offered special
programs to enter the United States while citizens from other countries
do not have the same opportunities, which commenters claimed was
discriminatory and raised equal protection concerns.
Commenters also raised equal protection concerns because
noncitizens subject to the rule's rebuttable presumption would be
treated differently from those not subject to the rule based on the
date, location, and manner of their entry into the United States. As a
result, commenters argued that the rule would have a disparate impact
on asylum applicants from less affluent countries, who do not have easy
access to air travel or nonimmigrant visas.
Additionally, commenters asserted that the rule discriminates based
on race and ethnicity and would have a disproportionate impact on
persons of certain races and ethnicities for equal protection purposes.
Commenters pointed to the Government's response to Ukrainian refugees
as evidence that the United States is capable of accepting asylum
seekers and refugees and stated that the difference in treatment
between Ukraine and other countries was racially motivated.
Lastly, commenters suggested that it was facially discriminatory to
require migrants from countries other than Mexico to first apply for
asylum in transit countries, as it would result in their quick removal
and force them to wait for a number of years before they could reapply
for asylum in the United States.
Response: The rule does not classify noncitizens based on race,
ethnicity, nationality, or any other protected trait. Nor, as
elaborated below, are the Departments issuing the rule with
discriminatory intent or animus. As the Departments explained in the
NPRM, the rule is intended to address an anticipated increase in
migrants arriving at the SWB following the lifting of the Title 42
public health Order and the resultant strain the anticipated surge
would put on DHS and DOJ resources. See 88 FR at 11728. As such, the
rule's scope and applicability are intended to address this anticipated
migration surge. See generally id.
Additionally, although the rule imposes a rebuttable presumption of
ineligibility if noncitizens seek to enter the United States at the SWB
outside of an established lawful pathway and do not seek protection in
a third country through which they travel en route to the United
States, that presumption does not constitute a ``de facto ban'' on
asylum for noncitizens of any race, ethnicity, or nationality, given
the opportunities to avoid the presumption and, for those unable to do
so, to establish an exception to or rebut it. Irrespective of race,
ethnicity, or
[[Page 31350]]
nationality, noncitizens will not be subject to the presumption if they
apply for and are denied asylum or other protection in a third country
they transit while en route to the United States, but no noncitizen is
required to do so. See 8 CFR 208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C).
Likewise, regardless of race, ethnicity, or nationality, noncitizens
will not be subject to the presumption if they schedule an appointment
to present at a POE using the CBP One app. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). In addition, irrespective of
race, ethnicity, or nationality, noncitizens who are subject to the
rule's presumption will have the opportunity to rebut it in certain
circumstances, including if at the time of their entry they or a family
member with whom they traveled was experiencing an acute medical
emergency, an imminent and extreme threat to life or safety, a severe
form of trafficking, or another exceptionally compelling circumstance.
8 CFR 208.33(a)(3), 1208.33(a)(3). Further, noncitizens of every race,
ethnicity, and nationality may apply for other relevant immigration
processes that are applicable to them. The rule's approach balances the
needs to address current and expected circumstances at the SWB, to
avoid unduly negative consequences for noncitizens, to avoid unduly
negative consequences for the U.S. immigration system, and to provide
ways for individuals to seek protection in the United States and other
countries in the region. 88 FR at 11730.
The Departments disagree that the rule violates the Equal
Protection Clause \99\ to the extent that the rule applies to
noncitizens who arrive in the United States at a particular location,
by a particular method, or after a particular date. Noncitizens who
utilize a lawful pathway, meet an exception to the rule's presumption,
or rebut the presumption will not be subject to the rule's condition on
eligibility, irrespective of their country of origin or the method by
which they arrive. The ability to afford a plane ticket or qualify for
a visa is not a requirement to meet an exception to or rebut the
presumption of ineligibility under the rule. And with respect to
concerns about dates of entry, the Departments note that Federal
immigration laws, including regulations that impose conditions on
asylum, routinely apply to migrants who arrive or file their
application for relief after, but not before, a particular effective
date. See, e.g., INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B); 8 CFR
208.4(a) (imposing filing deadline on asylum applications filed after
April 1, 1997, and tying that deadline to the applicant's date of
arrival in the United States); 8 CFR 208.13(b)(3), 1208.13(b)(3) (2020)
(imposing conditions related to internal relocation, applied per 8 CFR
208.1(a) to applications filed after the regulatory effective date of
April 1, 1997).\100\
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\99\ Although the Equal Protection Clause of the Fourteenth
Amendment does not apply to the United States Government, the
Supreme Court in Bolling v. Sharpe, 347 U.S. 497, 499 (1954), held
that while `` `equal protection of the laws' is a more explicit
safeguard of prohibited unfairness than `due process of law,' . . .
discrimination may be so unjustifiable as to be violative of due
process.'' The Court concluded that ``[i]n view of [its] decision
that the Constitution prohibits the states from maintaining racially
segregated public schools, it would be unthinkable that the same
Constitution would impose a lesser duty on the Federal Government.''
Id. at 500.
\100\ This provision was amended by a prior rulemaking,
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 80274, 80281 (Dec. 11, 2020), which
was preliminarily enjoined and its effectiveness stayed before it
became effective. See Pangea II, 512 F. Supp. 3d at 969-70
(preliminarily enjoining the rule). The district court's order
remains in effect, and thus the 2020 version of this provision--the
version immediately preceding the enjoined amendment--is currently
effective.
---------------------------------------------------------------------------
Further, as detailed in the NPRM, the United States previously has,
and is still, committed to taking significant steps to expand pathways
and processes for migrants to enter the country in a safe and lawful
way. 88 FR at 11718-20. In addition to creating parole processes for
citizens of certain countries, the United States has announced
``significant increases to H-2 temporary worker visas and refugee
processing in the Western Hemisphere'' and worked closely with other
countries in the region ``to prioritize and implement a strategy that
advances safe, orderly, legal, and humane migration, including access
to international protection for those in need, throughout the Western
Hemisphere.'' Id. at 11718, 11720. Moreover, the Departments remain
committed to continuing to work with foreign partners on expanding
their legal options for migrants and expanding the Departments' own
mechanisms for processing migrants who lawfully arrive in the United
States. Id. at 11720, 11722, 11729.
As to certain commenters' concerns that the rule discriminates
among noncitizens based on whether their country of nationality has a
parole process, the Departments did not promulgate the rule, or design
its applicability and scope, with a discriminatory purpose or intent.
Instead, the rule is designed to ``encourage migrants to avail
themselves of lawful, safe, and orderly pathways into the United
States, or otherwise to seek asylum or other protection in countries
through which they travel, thereby reducing reliance on human smuggling
networks that exploit migrants for financial gain.'' Id. at 11704. As
elaborated on later in this preamble, lawful pathways are available to
noncitizens from all countries, and country-specific processes are
available without regard to race or ethnicity. See, e.g., id. at 11704,
11706 (listing and explaining processes and programs). Thus, the
existence of special processes and programs for qualifying noncitizens
from certain countries does not demonstrate that the rule was
promulgated ``for a discriminatory purpose or intent,'' as required to
show a violation of the Equal Protection Clause. United States v.
Barcenas-Rumualdo, 53 F.4th 859, 864 (5th Cir. 2022) (citing Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66
(1977)). Moreover, Congress regularly makes laws that distinguish among
individuals on the basis of nationality; indeed, the ``whole of Title 8
of the United States Code, regulating aliens and nationality, is
founded on'' such distinctions. Mathews v. Diaz, 426 U.S. 67, 78 n.12,
80 (1976). Yet, ``such disparate treatment'' is not by itself
```invidious.''' Id. at 80.
vii. Other Underserved or Vulnerable Populations
a. Women, Domestic Violence Survivors, and LGBT Individuals
Comment: Commenters raised concerns that the rule would have a
disproportionate impact on certain particularly vulnerable populations,
such as women, including domestic violence and sexual assault survivors
and younger, pregnant, and indigenous women, as well as the LGBT
community, and those noncitizens who are disabled, elderly, or HIV
positive, among others. Commenters stated that these populations would
face discrimination, violence, extortion, and persecution in transit
countries. Commenters also asserted that applying for a parole process
and waiting for approval in one's home country may not be a viable
option for such groups who need to leave a dangerous situation
immediately. As a result, commenters stated that such groups should be
exempted from the rule.
Commenters asserted, for example, that women and girls would be at
high risk for sexual and gender-based violence in transit countries or
if forced to wait in Mexico for their scheduled SWB POE appointments.
Similarly, commenters raised concerns that the LGBT community would
face persecution, violence, and inadequate
[[Page 31351]]
access to medical care, among other harms, in transit countries,
particularly if required to wait to schedule an SWB POE appointment
through the CBP One app or apply for asylum in those countries.
Commenters also noted that it is unclear if claims related to
persecution based on sexual orientation and gender identity would be
recognized in many common transit countries. Additionally, commenters
stated that the rule, particularly the family unity provision, would
exclude LGBT families, as legal protections such as marriage or LGBT-
inclusive family protections are unavailable or inaccessible to LGBT
individuals and families in many countries.
Further, commenters noted that many of these groups, including
domestic violence survivors, torture survivors, and those with PTSD,
may, as a result of psychological trauma, have difficulty recounting
traumatic events underlying their claims during credible fear
screenings--a difficulty that commenters said would be exacerbated if
members of such groups must also present evidence about the rebuttable
presumption of asylum ineligibility. As a result, commenters stated
that traumatized noncitizens would not have sufficient time to gather
their thoughts or collect relevant evidence. Moreover, commenters
stated that recounting such incidents may risk retraumatizing such
individuals. Similarly, commenters asserted that such groups are often
reluctant to speak about what happened to them and may not express
their fear of return to someone in a third country who could inform
them of their right to apply for asylum.
Response: The Departments recognize that certain populations may be
particularly vulnerable during transit to the United States.
Accordingly, the purpose of the rule is to encourage migrants,
including those who may be seeking asylum, to pursue safe, orderly, and
lawful pathways to the United States rather than attempt irregular
migration journeys, which often subject migrants to dangerous human
smuggling networks. See, e.g., 88 FR at 11713-14 (noting that women
face particular vulnerabilities along certain portions of the irregular
migration route to the SWB). The rule details multiple potential
pathways and processes available to many migrants, including those who
seek protection, that do not involve a dangerous journey to the United
States. See id. at 11718-23. Notably, amongst those options, the rule
does not require noncitizens to apply for asylum in third countries
where they may also face persecution or other harm. Moreover, applying
for asylum in a third country is only one of multiple options migrants
may pursue. For a more in-depth examination of third-country safety for
migrants, please see the further discussion of specific third countries
later in this preamble in Section IV.E.3.iv (``Third Countries''). See
also 88 FR at 11720-23 (NPRM discussing ``Increased Access to
Protection and Other Pathways in the Region''). Additionally, the
Departments note that the rule provides that its presumption of asylum
ineligibility can be rebutted by noncitizens, including those with
particular vulnerabilities, who do not utilize a lawful pathway but who
face imminent and extreme threats to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder, or who were
victims of a severe form of trafficking in persons. See 8 CFR
208.33(a)(3)(i)(B) and (C), 1208.33(a)(3)(i)(B) and (C).
The Departments also recognize that migrants' protection claims may
be premised on past traumatic events in their home countries, which can
be difficult to recount. However, the rule does not change the credible
fear process that Congress has instituted, which involves detailing
these events to a DHS officer so that the officer can make a credible
fear determination. See generally INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); 8 CFR 208.30(d) and (e). The rule merely adds a
condition on asylum eligibility in the form of a rebuttable
presumption. During the credible fear screening, noncitizens may
demonstrate why they believe that the presumption is inapplicable or an
exception or rebuttal ground exists. The rule does not impose an
infeasible requirement for noncitizens with meritorious claims to show
that the presumption does not apply, or that they qualify for an
exception or rebuttal to the presumption, during the credible fear
screening process. See 8 CFR 208.30(d)(4). In addition, AOs and IJs
have conducted credible fear assessments for many years and are well-
trained in accounting for any potential trauma that may be relevant.
b. Unrepresented Individuals
Comment: Commenters raised concerns that unrepresented noncitizens
would not understand the rule's requirements, particularly the need to
take affirmative steps outside of the United States, such as through
applying for protection in a third country or scheduling an SWB POE
appointment through the CBP One app. Commenters also expressed that the
proposed rule did not explain how information about the rule's
requirements would be disseminated. Similarly, commenters stated that
unrepresented noncitizens may have received little or no information
during the screening process and may not understand their rights during
the process or the consequences of failing to assert them. Commenters
also asserted that unrepresented individuals may not understand the
burdens of proof in the rule and may be unable to present a legal
argument sufficient to overcome its presumption of ineligibility.
Additionally, commenters were concerned that the rule would
dramatically increase the likelihood of denials for relief for
unrepresented noncitizens who are subject to the asylum ineligibility
presumption and stated that individuals with meritorious claims are no
less deserving of asylum because they do not have counsel. Further,
commenters pointed to various statutory provisions that they claimed
showed a recognition by Congress that unrepresented noncitizens need
assistance to present their claims. As a result, commenters suggested
that unrepresented noncitizens should be exempted from the rule or be
provided more resources to navigate the immigration system.
Response: The Departments recognize that unrepresented noncitizens
can have additional difficulties navigating the U.S. immigration
system, as compared to those with counsel. This is to be expected with
respect to any unrepresented individuals in a legal setting. As a
general matter, the Departments strongly support efforts for
noncitizens to obtain or confer with counsel in immigration
proceedings.\101\
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\101\ See, e.g., EOIR Director's Memorandum (``DM'') 22-01,
Encouraging and Facilitating Pro Bono Legal Services (Nov. 5, 2021),
https://www.justice.gov/eoir/book/file/1446651/download.
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However, for those noncitizens who do not retain counsel, the
Departments do not believe that the rule presents an overly complicated
process for migrants seeking protection, including asylum. The rule
does not change the right to confer with a person or persons of the
noncitizen's choosing in the existing expedited removal and credible
fear screening processes. See 8 CFR 208.30(d)(4). Rather, the rule
simply adds a determination about the asylum ineligibility presumption
to the credible fear screening. As such, the Departments decline to
create a wholesale exception from the rule for unrepresented
noncitizens, which would significantly reduce the incentives for using
the lawful pathways described in the rule, as well as disincentivize
obtaining counsel as needed.
[[Page 31352]]
The rule is intended to provide clear options for migrants,
including asylum seekers, to follow, such as applying for asylum in a
third country or presenting at an SWB POE at a pre-scheduled time and
place. See generally 8 CFR 208.33(a)(2), 1208.33(a)(2). Noncitizens may
also be able to pursue other pathways to the United States that would
not trigger the rule's presumption, such as an employment-based visa or
refugee admission through the United States Refugee Admissions Program
(``USRAP''). 88 FR at 11719 (describing expansions of labor pathways
and increases in USRAP processing). If unrepresented noncitizens choose
to forgo such options and instead unlawfully enter the United States,
they will be subject to the rule's rebuttable presumption of asylum
ineligibility, with an opportunity to establish an exception to or
rebut the presumption, including for exceptionally compelling
circumstances. See 8 CFR 208.33(a)(3), 1208.33(a)(3). For instance,
such noncitizens who present at a POE without a pre-scheduled
appointment may be excepted from the presumption if they can
demonstrate that they were unable to access or use the DHS scheduling
system due to ongoing and serious obstacles, such as a language
barrier, illiteracy, or a significant technical failure. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
The Departments believe these processes will be navigable for
unrepresented noncitizens based on the significant usage and success of
other recent processes for Cuban, Haitian, Nicaraguan, Ukrainian, and
Venezuelan nationals. See, e.g., 88 FR at 11706, 11711-12 (explaining,
for example, that the Venezuela process has had a ``profound impact''
and that, in one measured period, there was an over 95 percent decrease
in SWB unlawful encounters with Venezuelan migrants). These statistics,
along with the success of the U4U and CNHV parole processes, show that
noncitizens outside the United States are broadly aware of information
about changes to U.S. immigration processes and that noncitizens alter
migration behaviors accordingly, regardless of their representation
status. As for commenters' desire for additional information about how
the rule's requirements will be communicated, the Departments note that
they have numerous, non-regulatory tools at their disposal that they
may use to disseminate information to the public, as appropriate,
including press releases,\102\ policy memoranda, web-based tools,\103\
and other statements in public fora, among others. The Departments
further describe their efforts to communicate the rule's requirements
to the public in Section IV.B.5.iv of this preamble.
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\102\ See EOIR, Communications and Legislative Affairs Division,
https://www.justice.gov/eoir/communications-and-legislative-affairs-division (last visited Apr. 25, 2023) (``The Communications and
Legislative Affairs Division (CLAD) serves as the Executive Office
for Immigration Review's liaison with Congress, the news media, and
other interested parties by communicating accurate and timely
information about the agency's activities and programs.'').
\103\ See, e.g., EOIR, Immigration Court Online Resource,
https://icor.eoir.justice.gov/en/ (last visited Apr. 25, 2023)
(providing information about immigration processes in Chinese,
Haitian Creole, Portuguese, Punjabi, and Spanish).
---------------------------------------------------------------------------
c. Climate Migration
Comment: Commenters noted that global migration is increasingly
driven in part by the effects of climate change and that governments of
many migrants' home countries are unable to stop or redress such
effects. As such, commenters expressed concerns that the proposed rule
would unlawfully deny noncitizens from countries disproportionately
affected by climate change the right to be meaningfully heard on their
asylum claims. Commenters also asserted that ecological disasters
resulting from climate change, such as famine and flooding, would
prevent noncitizens from countries experiencing such disasters from
being able to pursue a lawful pathway so as not to be subject to the
rule's rebuttable presumption. As a result, commenters recommended
expanding asylum eligibility to account for displacement caused by
climate change.
Response: Comments related to climate change are generally outside
the scope of this rulemaking, which focuses on incentivizing migrants
to use lawful pathways to pursue their claims. To the extent that
commenters raised concerns about the effects of climate change--such as
a severe environmental disaster--creating a necessity for noncitizens
to enter the United States outside of the lawful pathways described in
the rule, the Departments note that the rule includes an exception to
its asylum ineligibility presumption for ``exceptionally compelling
circumstances.'' See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Evidence
of exceptionally compelling circumstances will be considered on a case-
by-case basis.\104\
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\104\ The Departments note that, to the extent commenters have
substantive comments related to the interaction of climate change
and immigration or asylum law, such as how adjudicators should
consider the effects of climate change in making asylum
determinations, commenters may raise those concerns as relevant in
response to future potential Departmental rulemakings that address
other substantive asylum provisions. See, e.g., Introduction to the
Unified Agenda of Federal Regulatory and Deregulatory Actions--Fall
2022, 88 FR 10966, 11054, 11088-89 (Feb. 22, 2023) (including a
future rulemaking addressing particular social groups and related
definitions and interpretations for asylum and withholding of
removal).
---------------------------------------------------------------------------
To the extent that commenters argued that the rule's application in
the context of the alleged exigencies of climate change migration would
violate the due process rights of noncitizens, the Supreme Court has
held that the rights of noncitizens applying for admission at the U.S.
border are limited to ``only those rights regarding admission that
Congress has provided by statute.'' DHS v. Thuraissigiam, 140 S. Ct.
1959, 1983 (2020).
d. Indigenous People and People of Color
Comment: Commenters raised concerns that the rule would have a
particularly detrimental impact on members of indigenous communities
and people of color. As a result, commenters recommended exempting
these groups from the rule and for the Departments to articulate
actions taken to mitigate any disparate impacts on such groups.
Commenters stated that such populations would face discrimination,
racism, persecution, prolonged detention, medical neglect,
homelessness, erasure of indigenous identity, and other harms in
transit countries. Commenters also believed that these groups would
face difficulty applying for asylum or related protection in a third
country, due to discrimination and insufficiently robust asylum
systems, among other reasons. Additionally, commenters asserted that
persons from predominantly Black countries had higher rates of visa
denials, which limit their lawful pathways when compared to other
groups. In support of these contentions, commenters stated that
immigration court asylum denial rates increased for these groups while
the TCT Bar Final Rule was in effect.
Further, commenters maintained that the proposed rule would
disproportionately impact indigenous migrants and people of color
because such groups often lack the means or ability to enter the United
States other than by land through the SWB and, therefore, would be more
likely to be subject to the rule's rebuttable presumption of
ineligibility. Relatedly,
[[Page 31353]]
commenters maintained that these populations have disproportionately
low access to the technology commenters stated is mandated by the rule,
thereby precluding such groups from taking advantage of the available
lawful pathways. Similarly, commenters raised a number of concerns with
the CBP One app and its use by indigenous migrants and people of color,
including language barriers and difficulties experienced by those with
darker skin tones in taking valid pictures.
Response: As previously stated, the rule includes various
exceptions to the rebuttable presumption--including for instances where
noncitizens have been denied asylum or other protection in a third
country or show, by a preponderance of the evidence, that it was not
possible to access or use the CBP One app--and the rule allows
noncitizens to rebut the presumption where they face certain safety
issues. See 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). For
additional material addressing commenter concerns about the CBP One app
and indigenous migrants and people of color, please see Section
IV.E.3.ii.a of this preamble.
Further, if any noncitizens, including members of indigenous
communities and people of color, do not believe that they will be able
to meaningfully access protection in a third country, then those
noncitizens may be excepted from the presumption of ineligibility by
availing themselves of other lawful pathways to enter the United
States, such as by pre-scheduling an appointment to present themselves
at a POE, or by obtaining appropriate authorization to travel to the
United States to seek parole pursuant to a DHS-approved parole process.
See 8 CFR 208.33(a)(2)(ii), 1208.33(a)(2)(ii). Such noncitizens may
also be able to pursue other pathways to entering the United States
that would not trigger the rule's application, such as an employment-
based visa or refugee admission through USRAP. 88 FR at 11719
(describing expansions of labor pathways and increases in USRAP
processing). Accordingly, the Departments believe that the rule
provides sufficient flexibility to account for issues identified by
commenters as related to indigenous communities and people of color.
5. Due Process and Procedural Concerns
i. General Due Process and Procedural Concerns
Comment: Commenters voiced general concerns that the rule violates
due process and is thus unconstitutional or arbitrary. One commenter
argued that due process standards for asylum cases should be consistent
with criminal procedure in the United States. At least one commenter
said that the proposed rule would violate due process in that it would
separate families, restrict access to asylum, and prohibit the granting
of asylum to those who travel by land through a safe third country.
Specifically, one commenter argued that for family members whose asylum
cases are connected, separation obstructs family members' opportunities
to present necessary corroborating witness testimony or access critical
evidence in presenting their claims for relief, which may violate their
constitutional and statutory rights to present evidence and can result
in inconsistent case timelines and outcomes that permanently sever
family relationships. Another commenter said that the rule would make
it easier for the United States Government to simply deny entry to
asylum seekers and deport migrants without due process. Other
commenters stated that no asylum seekers should be prevented from
presenting their case to a judge. Further, commenters said that the
rule would violate due process by requiring asylum seekers to
affirmatively request IJ review of negative credible fear findings and
eliminating USCIS reconsideration of such findings. Commenters also
stated that due process concerns would be magnified because of the plan
to conduct credible fear interviews within days or hours of an asylum
seeker's arrival in custody in what commenters characterized as
notoriously difficult conditions, such as where they lack food, water,
showers, sleep, and access to counsel. Another commenter echoed these
concerns regarding conditions for individuals in CBP custody and stated
that poor conditions were not conducive to asylum seekers being able to
clearly articulate their claims. Commenters asserted that these
obstacles are so high as to render success unachievable for most
noncitizens, regardless of the merits of their claims. Finally, one
commenter stated that the rule would raise the standard from
``credible'' to ``reasonable'' fear and would thereby give rise to a
procedural due process violation, as it would alter the intended
purpose of the screening interview.
Response: The Departments disagree that the rule would violate the
Due Process Clause of the Fifth Amendment or impermissibly restrict
access to asylum. With respect to application of the rule in the
expedited removal process, the Departments note that the rule does not
have any impact on where noncitizens may be detained pending credible
fear interviews. Additionally, noncitizens who are encountered in close
vicinity to and immediately after crossing the border and are placed in
expedited removal proceedings, including those in the credible fear
screening process, have ``only those rights regarding admission that
Congress has provided by statute.'' \105\ Thuraissigiam, 140 S. Ct. at
1983; see also Mendoza-Linares v. Garland, 51 F.4th 1146, 1148 (9th
Cir. 2022) (concluding that ``an arriving immigrant caught at the
border . . . `has no constitutional rights regarding his application'
for asylum'' (quoting Thuraissigiam, 140 S. Ct. at 1982)). Regarding
arguments by commenters that the due process standards that apply in
criminal proceedings should also apply in the context of asylum and
credible fear interviews, the Departments first note that Congress has
created, by statute, a process applicable to individuals in expedited
removal that is significantly different from the process that applies
in criminal cases. The Departments decline to use this rule to change
the due process rights of noncitizens, and the rule ensures that
noncitizens receive a fair process consistent with the law.
---------------------------------------------------------------------------
\105\ Courts also have held that noncitizens do not have an
independently cognizable substantive due process interest in the
receipt of asylum because asylum is a discretionary form of relief.
See, e.g., Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (holding
that ``an alien who has already filed one asylum application, been
adjudicated removable and ordered deported, and who has nevertheless
remained in the country illegally for several years, does not have a
liberty or property interest in a discretionary grant of asylum'');
Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (``Due process
rights do not accrue to discretionary forms of relief, . . . and
asylum is a discretionary form of relief.''); Mudric v. Att'y Gen.,
469 F.3d 94, 99 (3d Cir. 2006) (holding that an eight-year delay in
processing the petitioner's asylum application was not a
constitutional violation because the petitioner ``had no due process
entitlement to the wholly discretionary benefits of which he and his
mother were allegedly deprived''); cf. Munoz v. Ashcroft, 339 F.3d
950, 954 (9th Cir. 2003) (``Since discretionary relief is a
privilege created by Congress, denial of such relief cannot violate
a substantive interest protected by the Due Process clause.'').
---------------------------------------------------------------------------
As to the allegation that the rule raises the standard in expedited
removal proceedings from ``credible'' fear to ``reasonable'' fear, the
Departments note that the rule does not change the standard except to
the extent that a noncitizen cannot show a significant possibility of
establishing eligibility for asylum due to operation of the rule's
condition on asylum eligibility. In that circumstance, the AO or IJ
will determine whether the noncitizen has a reasonable fear of
persecution or torture in the country or countries of removal, as has
long been the process for other
[[Page 31354]]
noncitizens who are screened for eligibility for statutory withholding
of removal and CAT protection and who are not eligible for asylum, as
discussed in more detail in Section IV.D.1.iii of this preamble.
Moreover, although the rule changes some procedures, as discussed
throughout the rule, it leaves much of the process unaltered.
Individuals in the credible fear process maintain the right to consult
with an attorney or other person or persons of their choosing prior to
their interview, and such persons may be present for the interview
itself. 8 CFR 208.30(d)(4). Asylum seekers also may present evidence
relevant to their claim during the interview. Id. Additionally, USCIS
provides interpreter services to noncitizens who are unable to proceed
effectively in English at the agency's expense. 8 CFR 208.30(d)(5). And
noncitizens may request review of a negative fear determination before
an IJ. Compare 8 CFR 208.30(g)(1) (providing the standard process for
requesting IJ review in credible fear proceedings), with 8 CFR
208.33(b)(2)(iii) through (v) (explaining the process for requesting IJ
review for those subject to and unable to rebut the rule's
presumption). Although the rule amends the standard process so that
noncitizens must affirmatively request such review when asked, rather
than the review being granted upon a failure to respond, IJ review
remains available in all cases with a negative credible fear
determination. 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)(2). These
procedural safeguards are therefore not undermined by the rule, which
is fully consistent with the Departments' legal authority and
obligations.
Furthermore, the rule does not violate any procedural due process
rights noncitizens may have in section 240 removal proceedings. The
rule's condition on eligibility will be litigated in those proceedings
before an IJ with all the attendant procedural rights that apply in
section 240 removal proceedings. In addition, the rule provides several
procedural protections to ensure that asylum applicants receive a full
and fair hearing before an IJ and that the condition on eligibility
applies only to noncitizens properly within the scope of 8 CFR
208.33(a) and 1208.33(a). If an AO finds a noncitizen is subject to the
rule's condition on eligibility, the noncitizen may request review of
that determination, and an IJ will evaluate de novo whether the
noncitizen is subject to the presumption and, if so, whether the
noncitizen has established any exceptions to or rebutted the
presumption. 8 CFR 208.33(b)(2)(iii) through (v), 1208.33(b).
Furthermore, even where an IJ denies asylum because the presumption
applies and has not been rebutted and no exception applies, if the
noncitizen has demonstrated a reasonable possibility of persecution or
torture in the country or countries of removal, they will have an
opportunity to apply for statutory withholding of removal, protection
under the CAT regulations, or any other form of relief or protection
for which the noncitizen is eligible in section 240 removal
proceedings. 8 CFR 208.33(b)(2)(ii) and (v)(B), 1208.33(b)(4). These
standards help to ensure--in contrast to commenters' concerns--that the
outcome of the process delineated in the rule is not predetermined and
that noncitizens potentially subject to the condition on eligibility
receive a full and fair hearing that satisfies any due process rights
they may have.
To the extent commenters raised due process concerns related to
arguments that the rule would result in separation of families, these
arguments are addressed above in Section IV.B.4.ii of this preamble. As
elaborated there, for example, the rule includes provisions designed to
prevent the separation of families. Moreover, to the extent that
commenters argued that the rule would separate families and thereby
raise due process concerns by preventing individuals from presenting
evidence, the Departments note that the rule does not change the
provision on the treatment of family units with respect to credible
fear screenings, found at 8 CFR 208.30(c), which provides that when
family units are subject to a credible fear screening, USCIS will find
that the entire family passes the screening if one family member
establishes a credible fear. Further, the rule contains provisions to
promote family unity both by making exceptions and providing rebuttal
grounds applicable to family units traveling together, and by providing
a family unity provision for those in removal proceedings. See 8 CFR
208.33(a)(2)(ii) and (3)(i), 1208.33(c).
To the extent commenters argued that these concerns implicate the
constitutional rights of specific groups of noncitizens, the rule does
not deprive any group of the rights that Congress provided by statute,
and the rule is one of equal application that does not bar any
particular classes of noncitizens from seeking asylum or other
protection due to the nature of the harm the noncitizen has suffered or
their race, religion, nationality, political opinion, or membership in
a particular social group. See 8 CFR 208.33(a)(1) through (3),
1208.33(a)(1) through (3) (defining scope of rule's application and
creating condition on eligibility and a rebuttable presumption rather
than a bar). Additionally, to the extent that commenters claimed there
would be due process implications because of the language and certain
technical limitations of the CBP One app, the same commenters
acknowledged that due process rights are limited to individuals located
on U.S. soil. Because users of the CBP One app will, by definition, be
located outside of the United States, the commenters' CBP-One-app-
related due process concerns are misplaced. Moreover, these commenters
provided no specific citations to show that the CBP One app's limited
set of foreign languages or technical limitations violate any other
Federal law. For instance, the Departments note that Executive Order
13166, Improving Access to Services for Persons with Limited English
Proficiency, 65 FR 50121 (Aug. 11, 2000), ``does not create any right
or benefit, substantive or procedural, enforceable at law or equity by
a party against the United States, its agencies, its officers or
employees, or any person.'' Id. at 50121-22.
In addition, notwithstanding the above, the rule contains multiple
means for particularly vulnerable noncitizens to potentially overcome
the presumption against eligibility for asylum where applicable,
depending on the individual's circumstances. To the extent that
commenters are concerned about the ability of noncitizens who have a
language barrier, disability, mental incompetence, or past trauma to
pre-schedule a time and location to appear at a POE, these noncitizens
may be able to establish an exception to the presumption if they
present at a POE and establish that ``it was not possible to access or
use the DHS scheduling system due to a language barrier, illiteracy,
significant technical failure, or other ongoing and serious obstacle.''
See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). And among the
``exceptionally compelling circumstances'' that may rebut the
presumption against eligibility, the rule includes acute medical
emergencies and other situations where the noncitizen faces an imminent
and extreme threat to life or safety at the time of entry. See 8 CFR
208.33(a)(3)(i)(A) and (B), 1208.33(a)(3)(i)(A) and (B). Furthermore,
the Departments note that even if a noncitizen is found ineligible for
asylum, if they fear persecution on account of a protected ground, or
torture in another country that has been
[[Page 31355]]
designated as a country of removal, they may seek statutory withholding
of removal or CAT protection to avoid being returned to that country.
Finally, to the extent that commenters expressed concerns about how
the fact of noncitizens' detention, the conditions in DHS facilities,
and the timing of credible fear screenings allegedly impact such
screenings and the ability of noncitizens to meet their burden to show
a credible fear, those concerns are predominantly addressed below in
Section IV.D.1.iii of this preamble, where the Departments discuss the
nature of the evidence that may be available to the AO during credible
fear interviews. As to commenters' concerns about the timing of the
credible fear process and where noncitizens are detained pending
credible fear interviews, these concerns are misplaced, as the rule
does not have any impact on the steps in the credible fear process or
where noncitizens may be detained pending credible fear interviews. To
the extent that commenters have concerns about detention and conditions
in CBP custody, such concerns are beyond the scope of this rule, as
discussed further in Section IV.B.5.v of this preamble.
Comment: Commenters expressed a range of other concerns that the
rule does not establish sufficient procedural protections for
noncitizens subject to the presumption against eligibility for asylum.
Some commenters expressed concern that AOs are likely to make errors in
assessing whether applicants are subject to the rule's condition on
asylum eligibility. Commenters likewise asserted that credible fear
interviews are quick screenings, during which individuals usually lack
documentary evidence for their claims, and that migrants would not be
able to present evidence of country conditions in connection with such
interviews. Further, one commenter stated that expedited removal denies
children the opportunity to make a claim for protection independent of
their parent or legal guardian, and specifically raised concerns about
CBP agents questioning children.
Response: The Departments acknowledge the commenters' concerns but
disagree that there are insufficient procedural protections for
individuals subject to the rule. All AOs are trained in non-adversarial
interview techniques to elicit relevant and useful information. 8 CFR
208.1(b). A noncitizen's testimony and evidence available to the AO may
be sufficient to establish an exception to or rebut the condition on
asylum. AOs are trained to consult country conditions information. Id.
All credible fear determinations are reviewed by a Supervisory AO. 8
CFR 208.30(e)(8). Those who receive negative determinations may request
review from an IJ. See 8 CFR 208.33(b)(2)(iii) through (v). If the IJ
affirms a negative credible fear determination, USCIS may also
reconsider the determination at its own discretion. See 8 CFR
208.33(b)(2)(v)(C). For those who are initially found subject to the
rule's condition on asylum eligibility but who establish a reasonable
possibility of persecution or torture upon removal, the IJ will make a
de novo determination of whether the noncitizen is subject to the
condition on asylum eligibility during removal proceedings. See 8 CFR
208.33(b)(2)(v).
The Departments disagree that the rule denies children the
opportunity to make a claim for protection independent of their parent
or legal guardian. As explained above, the rule does not change the
provision on treatment of family units with respect to credible fear
evaluations, found at 8 CFR 208.30(c). The rule further provides at 8
CFR 208.33(c)(2) and 1208.33(d)(2) that its ineligibility presumption
does not apply to an asylum application filed by a noncitizen after the
two-year period in 8 CFR 208.33(a)(1)(i) and 1208.33(a)(1)(i), if the
noncitizen was under the age of 18 at the time of the entry referenced
in 8 CFR 208.33(a)(1) and 1208.33(a)(1), respectively, and the
noncitizen is applying as a principal applicant.
ii. Concerns Regarding Access to Counsel, Unrepresented Applicants, and
the Ability or Time To Obtain Evidence and Prepare
Comment: Some commenters stated that the rule raises serious
questions about access to counsel during the credible fear process. In
addition to the general comments regarding due process described and
addressed above, commenters also expressed specific concerns that the
rule violates the Fifth Amendment's Due Process Clause because it
allegedly deprives noncitizens of access to counsel or decreases their
already limited access to counsel. For instance, some commenters
expressed concern that individuals in CBP detention facilities lack
meaningful access to counsel to prepare for their credible fear
interviews because it takes time to find counsel and the rule will
amplify the problems of a fast-tracked removal process, and because
there is a lack of free or low-cost attorneys in border areas where
credible fear interviews take place. Other commenters stated that
individuals awaiting their CBP One app appointments abroad lack
meaningful access to counsel to prepare for their credible fear
interviews. These commenters stated that attorneys located in the
United States face obstacles to representing individuals outside the
United States due to ethics concerns and liability insurance coverage,
while asylum seekers awaiting appointments would be unable to meet with
counsel in person prior to their appointments, allegedly leading to
representation deficiencies and difficulty obtaining assistance in
navigating the CBP One app. For example, citing data from the Human
Trafficking Institute, one commenter wrote that 80 percent of migrants
awaiting their asylum hearings in the United States can find
representation, compared to 7.6 percent of migrants waiting in Mexico.
Other commenters characterized the rule's provisions as complicated
and punitive, making access to counsel even more important and
exacerbating the access-to-counsel issues commenters identified above.
Commenters who are legal services providers said that the rule would
increase the time and resources needed to provide adequate legal advice
and representation to asylum seekers, leading to diversion of limited
resources and increased pressure on staff. Some commenters recommended
that the United States Government increase funding for representation
of asylum seekers or provide migrants with legal counsel and release
them swiftly rather than detain them, stating that it would assist with
backlogs and protect due process rights.
Multiple commenters remarked that a person who could retain an
attorney is far more likely to succeed in immigration court. Commenters
said concerns relating to fast-tracked immigration proceedings, known
as the ``Dedicated Docket,'' would be amplified by the addition of a
new evaluation of a rebuttable presumption against asylum eligibility.
Commenters claimed that those individuals subject to the rebuttable
presumption who pass the heightened ``significant possibility''
screening standard applied under the rule and are placed on the
Dedicated Docket during the resulting section 240 removal proceeding
would find it even more difficult to obtain counsel because of its
accelerated timelines.
Finally, some commenters alleged that the United States Government
currently restricts access to counsel for noncitizens in credible fear
proceedings. Commenters similarly claimed that EOIR's Immigration Court
Practice Manual (``ICPM'') denies asylum seekers
[[Page 31356]]
the right to counsel in credible fear review hearings before IJs.
Response: The rule does not deprive noncitizens of access to
counsel in violation of the Fifth Amendment's Due Process Clause. As
explained above, the Supreme Court has held that the rights of
individuals seeking asylum at the border are limited to ``only those
rights regarding admission that Congress has provided by statute.''
Thuraissigiam, 140 S. Ct. at 1983. And the INA provides only that a
noncitizen ``may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, according to
regulations prescribed by the Attorney General,'' and the statute
specifies that ``[s]uch consultation shall be at no expense to the
Government and shall not unreasonably delay the process.'' INA
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv). Thus, due process and the
INA do not guarantee that every noncitizen in expedited removal
proceedings will have counsel, for example, if a noncitizen involved in
such proceedings cannot find an attorney who is willing and able to
provide representation. The rule does not bar noncitizens in expedited
removal proceedings from exercising their statutory rights under the
INA, and therefore cannot violate such noncitizens' rights to due
process. See Guerrier v. Garland, 18 F.4th 304, 313 (9th Cir. 2021)
(Thuraissigiam clarified that ``the due process rights of noncitizens
who have not `effected an entry' into the [United States] are
coextensive with the statutory rights Congress provides'').
Nor does the rule deprive noncitizens of access to counsel in
violation of the Fifth Amendment's Due Process Clause insofar as it
allegedly creates additional matters for attorneys and noncitizens to
discuss prior to a noncitizen's credible fear interview, including when
the noncitizen is outside the United States. The statutory right to
consult, described above, does not attach until a noncitizen becomes
eligible for a credible fear interview. See INA 235(b)(1)(B)(iv), 8
U.S.C. 1225(b)(1)(B)(iv) (``An alien who is eligible for such interview
may consult with a person or persons of the alien's choosing prior to
the interview or any review thereof, according to regulations
prescribed by the Attorney General.''). And the regulations that
implement expedited removal elaborate that ``[s]uch consultation shall
be made available in accordance with the policies and procedures of the
detention facility where the alien is detained[.]'' 8 CFR
235.3(b)(4)(ii). ``Read together, the text of these provisions provides
noncitizens with a right to consultation while they are detained
pending expedited removal, but also plainly establish that the
consultation right is subordinate to the expedition that this removal
process is designed to facilitate, and that the scope of the right to
consult is determined by the facility in which these noncitizens are
detained.'' Las Americas Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d
1, 25 (D.D.C. 2020) (Jackson, J.). Thus, the INA does not guarantee,
and the Constitution does not require, that noncitizens who have not
entered the United States must have an opportunity to consult with any
other individual concerning an anticipated asylum application.
The Departments decline to amend existing practices with respect to
credible fear proceedings around a noncitizen's ability to obtain and
consult with counsel, including with regard to the availability of
counsel or time it takes to secure counsel in areas near the SWB. The
Departments disagree with any implication by commenters that the
Departments have control over where free or low-cost immigration
attorneys choose to locate their practices within the United States. In
any event, nothing in the rule alters a noncitizen's existing ability
to consult with persons of their choosing prior to the credible fear
interview, see INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv), or
prior to IJ review of a negative credible fear determination, see 8 CFR
1003.42(c). The Departments acknowledge commenters' concerns but do not
believe that the rule makes it more challenging for detained
noncitizens to access legal representation. To the extent that
commenters seek improved access to counsel during the credible fear
process in general, that issue lies outside the scope of this
rulemaking. Commenters' concerns regarding the Dedicated Docket
similarly fall beyond the scope of the rulemaking. As discussed later
in Section IV.B.5.iv of this preamble, the Departments do not believe
that the rule greatly adds to the complexity of U.S. asylum law or that
noncitizens in the credible fear process will require the assistance of
an attorney to establish an exception to or rebut the rule's
presumption against asylum eligibility. During the credible fear
process, AOs will elicit relevant testimony in a non-adversarial manner
to determine whether the rebuttable presumption against asylum
eligibility applies and, if so, whether the presumption is rebutted or
any exception exists.\106\ Therefore, noncitizens will not need to be
familiar with every aspect of the rule to overcome the presumption.
---------------------------------------------------------------------------
\106\ See, e.g., USCIS, RAIO Directorate--Officer Training:
Interviewing: Eliciting Testimony 12 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Eliciting_Testimony_LP_RAIO.pdf [hereinafter USCIS, Eliciting
Testimony] (``In cases requiring an interview, although the burden
is on the applicant to establish eligibility, equally important is
your obligation to elicit all pertinent information.''); USCIS, RAIO
Directorate--Officer Training: Interviewing: Introduction to the
Non-Adversarial Interview 13 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf [hereinafter
USCIS, Non-Adversarial Interview] (``You control the direction,
pace, and tone of the interview and have a duty to elicit all
relevant testimony.''); Comment Submitted by National Citizenship
and Immigration Services Council 119 at 16 (Mar. 27, 2023), https://www.regulations.gov/comment/USCIS-2022-0016-12267.
---------------------------------------------------------------------------
With regard to commenter claims that EOIR's ICPM restricts the
right to counsel during credible fear review, the Departments first
note that the contents of the ICPM are outside of the scope of this
rulemaking. In any event, the ICPM is consistent with the INA and
regulations, all of which make clear that noncitizens have the right to
consult with a person or persons of their choosing prior to a credible
fear interview and any subsequent review. See ICPM, Chapter
7.4(d)(4)(C) (Nov. 14, 2022); INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv); 8 CFR 1003.42(c). Beyond such consultation, any
ability of such persons to attend or participate in a credible fear
proceeding is fully within the discretion of the IJ. See 8 CFR
1003.10(b) (describing IJs' discretion to take any action consistent
with their authorities under the INA and regulations that is
appropriate and necessary for the disposition of a case).
Comment: Commenters said that represented individuals receive
relief more frequently than non-represented individuals, and expressed
concern that many asylum seekers who lack counsel would not be able to
pass their credible fear screenings. One commenter claimed, without
specific evidence, that AOs are less thorough when adjudicating
credible fear cases of unrepresented noncitizens. Commenters argued
that unrepresented individuals may not receive meaningful notice about
the CBP One app, asylum procedures, or the exceptions to the rule's
condition on eligibility that may apply in their cases. One commenter
wrote that the rule's preponderance of the evidence standard for
rebutting the presumption against asylum eligibility would create
another hurdle for asylum seekers who lack counsel.
Response: To the extent that commenters expressed concern that
unrepresented individuals might face difficulty understanding the
credible
[[Page 31357]]
fear process, the INA provides that ``[t]he Attorney General shall
provide information concerning the asylum interview . . . to aliens who
may be eligible.'' INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8
CFR 235.3(b)(4)(i). The rule does not change that obligation. As for
commenters' concerns that noncitizens may not receive adequate notice
regarding the CBP One app or other aspects of the rule, ``the general
rules concerning adequacy of notice through publication in the Federal
Register apply in the immigration context.'' Williams v. Mukasey, 531
F.3d 1040, 1042 (9th Cir. 2008) (holding that publication of CAT
regulations in the Federal Register provided notice that due process
required).
As discussed earlier and in Section IV.B.5.iv of this preamble, the
rule does not affect noncitizens' current access to counsel during
credible fear proceedings or significantly increase the complexity of
U.S. asylum law, and noncitizens should not require the assistance of
an attorney to establish an exception to or rebut the presumption
against asylum eligibility. Prior to conducting a credible fear
interview, an AO must verify that the noncitizen ``has received in
writing the relevant information regarding the fear determination
process'' and ``has an understanding of'' that process. 8 CFR
208.30(d)(2); see also USCIS, Form M-444, Information About Credible
Fear Interview (May 31, 2022). AOs are trained to conduct interviews in
a non-adversarial manner and elicit relevant testimony,\107\ and they
will ask relevant questions to determine whether the rebuttable
presumption against asylum eligibility applies, so noncitizens need not
be familiar with the rule to remain eligible for asylum. Regarding the
standard of proof for rebutting the presumption against asylum
eligibility during credible fear proceedings, as discussed later in
Section IV.D.1.iii of this preamble, the overall standard remains the
significant possibility standard, but that standard must be applied in
conjunction with the standard of proof required for the ultimate
determination on eligibility for asylum (i.e., preponderance of the
evidence that an exception to the presumption applies or that the
presumption has been rebutted). Other concerns about rebutting the
rule's presumption of ineligibility are addressed in Section IV.E.1 of
this preamble.
---------------------------------------------------------------------------
\107\ See USCIS, Non-Adversarial Interview; USCIS, Eliciting
Testimony; Comment Submitted by National Citizenship and Immigration
Services Council 119 at 16 (Mar. 27, 2023), https://www.regulations.gov/comment/USCIS-2022-0016-12267.
---------------------------------------------------------------------------
iii. CBP Official, AO, and IJ Conduct and Training
a. CBP Official Conduct and Training
Comment: Some commenters expressed concerns about the actions of
CBP officials, including with respect to the use of the CBP One app.
Regarding the CBP One app generally, one commenter stated that migrants
are often unable to seek asylum at a POE due to metering policies and
that migrants have no other option to access safety than to cross the
SWB without permission. Another commenter stated that the requirement
to use the CBP One app would effectively cap the number of people who
may seek asylum based on the number of appointments available.
Commenters also stated that the CBP One app equates to another metering
system imposed by CBP officials, including causing turnbacks of
children, which Federal courts have found to be illegal. In particular,
one commenter stated that, even with appointments, some families are
not able to cross the border, or they receive appointments at a POE far
from their current location, requiring them to travel long distances
within Mexico. Various commenters alleged that requiring use of the CBP
One app raises concerns that access to the system will be based not on
wait time but on luck, technological skills, or resources to secure an
appointment. Other commenters similarly stated that the CBP One app has
very limited appointment slots and turns asylum access into a lottery.
And at least one commenter expressed concern that the CBP One app does
not ask if a migrant is seeking asylum in the United States, nor are
migrants interviewed by CBP officials upon arrival to determine if they
have any vulnerabilities that may show eligibility for asylum.
As for alleged misconduct by CBP officials, one commenter expressed
concern that CBP officials at POEs have turned away many asylum seekers
without cause, been affirmatively hostile to claims of protection, or
only allowed a handful of individuals per day to present themselves for
processing. The commenter also suggested that there would not be a
meaningful opportunity under the rule for asylum seekers to present
themselves and demonstrate that they were unable to use the CBP One app
to request an appointment. Similarly, another commenter stated that the
rule would allow CBP officers to turn away individuals without a
smartphone.
Additionally, commenters alleged that CBP officials regularly fail
to protect the rights of individuals in expedited removal proceedings,
including through failing to ask questions related to fear claims,
failing to refer individuals for credible fear interviews, and
subjecting individuals to harassment, directly or indirectly.
Other commenters raised concerns that there are inadequate
protections against rogue CBP officer behavior more generally, noting
that individuals with appointments in February 2023 were rejected at
POEs, including those with Title 42 exception appointments being
rejected even though they had valid appointments. One commenter
asserted that when families expressed concern about the Title 42
exception process, CBP officials threatened to call Mexican police and
urged people to depart. Another commenter noted that CBP officers use
abuse, threats and intimidation, coercion, and misrepresentations, make
unfounded claims about capacity restrictions, use waitlists, and
illegally deny access to the asylum process. Some commenters alleged
that CBP officers harassed and physically and sexually abused
noncitizens at POEs, stole their documents, and failed to record
statements by noncitizens expressing a fear of return. Another
commenter expressed concerns that Mexican officials, at the request of
the United States Government, improperly intercepted individuals at its
own southern border so that those individuals would not come to the
United States.
Response: As an initial matter, the Departments note that migrants
do not apply for asylum with CBP at a POE. At POEs, CBP is responsible
for the inspection and processing of all applicants for admission,
including individuals who may intend to seek asylum in the United
States. 8 CFR 235.1(a) (concerning all applicants for admission at
POEs), 235.3(b)(4) (concerning individuals processed for expedited
removal and claiming fear of persecution or torture). CBP's ability to
process undocumented noncitizens in a timely manner at land border POEs
is dependent on CBP resources, including infrastructure and personnel;
CBP is committed to continuing to increase its capacity to process
undocumented noncitizens at SWB POEs.\108\ The CBP
[[Page 31358]]
One app is one key way that CBP is streamlining and increasing its
capacity to process undocumented noncitizens.\109\ Noncitizens are able
to schedule appointments through the CBP One app at one of eight POEs
along the SWB, providing noncitizens with options to choose the POE
that works best for them geographically. The app is not a method of
seeking asylum in the United States, and CBP officers do not determine
the validity of any claims for protection. Noncitizens are not required
to make an appointment in the CBP One app to present at a POE, and CBP
policy provides that in no instance will an individual be turned away
from a POE. All noncitizens who arrive at a POE will be inspected for
admission into the United States. See 8 CFR 235.1(a). That said, those
noncitizens who arrive at a POE without a pre-scheduled appointment
will be subject to the rule's presumption of asylum ineligibility
unless they establish the applicability of an exception to or a ground
for rebutting the presumption.
---------------------------------------------------------------------------
\108\ Memorandum for William A. Ferrara, Exec. Ass't Comm'r,
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP,
Re: Guidance for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021),
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
\109\ See id.
---------------------------------------------------------------------------
The Departments disagree that the CBP One app is a ``metering
system,'' and CBP and DHS have rescinded all previous metering
policies. Following the termination of the Title 42 public health
Order, CBP will process noncitizens without documents sufficient for
admission who present at an SWB land POE in accordance with its
November 2021 memorandum ``Guidance for Management and Processing of
Undocumented Noncitizens.'' Moreover, as noted, CBP remains committed
to processing as many noncitizens at POEs as is operationally
feasible.\110\
---------------------------------------------------------------------------
\110\ See id.
---------------------------------------------------------------------------
To the extent that commenters' reference to metering policies
relates to any allegation of misconduct by CBP officers, and with
respect to any other commenter concerns about such alleged misconduct,
the Departments note that CBP takes allegations of employee misconduct
very seriously. Under a uniform system, allegations of misconduct are
documented and referred to the DHS Office of Inspector General
(``OIG'') for independent review and assessment.\111\ Cases are either
retained by the DHS OIG for investigation or referred to CBP's Office
of Professional Responsibility (``OPR'') for further handling.
Allegations of misconduct by a CBP employee or contractor can be sent
to CBP OPR's Joint Intake Center via email at [email protected]
or via phone at 1-877-2INTAKE (246-8253) Option 5.\112\ Such
allegations can also be sent to the DHS OIG Hotline via OIG's website,
https://www.oig.dhs.gov/hotline, or via phone at 1-800-323-8603. Upon
completion of an investigation, CBP management reviews all evidence,
the CBP Standards of Conduct, the CBP Table of Offenses and Penalties,
and how the agency has handled similar misconduct in the past, in order
to determine what, if any, disciplinary action is appropriate.\113\
---------------------------------------------------------------------------
\111\ See, e.g., DHS OIG, Hotline Poster, https://www.oig.dhs.gov/sites/default/files/DHS_OIG_Hotline-optimized_without_fax.jpg (last visited Apr. 17, 2023); CBP, DHS/
CBP/PIA-044, Privacy Impact Assessment for the Joint Integrity Case
Management System (JICMS) at 1-2 (July 18, 2017), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp044-jicms-july2017.pdf; CBP, CBP Pub. No. 1686-0322, Report on Internal
Investigations and Employee Accountability--Fiscal Year 2021 at 11-
12 (Mar. 2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-May/fy21-cbp-opr-internal-investigation-accountability_1.pdf.
\112\ CBP, How to Make a Report, https://www.cbp.gov/about/care-and-custody/how-make-report (last visited Apr. 17, 2023).
\113\ See CBP, CBP Pub. No. 1686-0322, Report on Internal
Investigations and Employee Accountability Fiscal Year 2021 at 17
(2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-May/fy21-cbp-opr-internal-investigation-accountability_1.pdf.
---------------------------------------------------------------------------
Commenter concerns about the processing of individuals seeking
exceptions to the Title 42 public health Order at POEs are misplaced.
As an initial matter, the rule will take effect only once the Title 42
public health Order is lifted, at which time CBP will inspect and
process all noncitizens who arrive at a POE under Title 8. Title 42 is
a statutory scheme that operates separate from Title 8. Thus, concerns
about the Title 42 exception process in and of itself are not relevant
to this rulemaking. While noncitizens seeking to enter a POE under
Title 8 may experience some wait times, those wait times are not
equivalent to rejections; CBP policy provides that in no instance will
an individual be turned away or ``rejected'' from a POE.
Comment: One commenter stated that the use of the CBP One app to
schedule an appointment to present at a POE conflicts with the
inspection requirement in 8 U.S.C. 1225(a)(3), requiring that all
applicants for admission be inspected by CBP officers. The commenter
specifically referred to the district court's order in Al Otro Lado,
Inc. v. McAleenan, 394 F. Supp. 3d 1168 (S.D. Cal. 2019), holding that
this provision applies to migrants who are approaching a POE but have
not yet entered the United States. The commenter stated that, because
the number of appointments provided does not approach the demand, the
CBP One app is functionally a system of metering. Another commenter
also asserted that it was not clear whether noncitizens without an
appointment who approach a POE would, in fact, be inspected and
processed, or whether they would be turned away in violation of CBP's
mandatory duty to inspect and process noncitizens at POEs.
Response: The Departments respectfully disagree that the use of the
CBP One app to schedule an appointment to present at a POE conflicts
with CBP's duties under 8 U.S.C. 1225(a)(3), unlawfully withholds
access to the asylum process, or operates as a form of metering (though
the Departments maintain that DHS's prior metering policies are
lawful). The Departments acknowledge the district court's holding in Al
Otro Lado--which the Government has appealed--but the use of CBP One
app appointments as contemplated by this rule does not implicate that
holding. CBP's policy is to inspect and process all arriving
noncitizens at POEs, regardless of whether they have used the CBP One
app. In other words, the use of the CBP One app is not a prerequisite
to approach a POE, nor is it a prerequisite to be inspected and
processed under 8 U.S.C. 1225(a)(3). Individuals without appointments
will not be turned away. CBP is committed to increasing the number of
noncitizens processed at POEs and to processing noncitizens in an
expeditious manner.\114\
---------------------------------------------------------------------------
\114\ See Memorandum for William A. Ferrara, Exec. Ass't Comm'r,
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP,
Re: Guidance for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021),
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------
In addition, any noncitizen who is inspected and processed for
expedited removal upon arrival at a POE and who expresses a fear of
return, whether or not they use the CBP One app, will be referred to
USCIS for a credible fear interview with an AO. See INA
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). The AO will determine
whether the presumption applies or whether the individual can rebut or
establish an exception to the presumption. CBP officers do not
determine or evaluate the merits of any claim of fear, nor do they make
determinations on whether the rule's presumption applies. See id.
(providing that credible fear interviews are conducted by AOs).
[[Page 31359]]
b. AO Conduct and Training
Comment: Several commenters expressed concern that the rule would
lead to erroneous asylum decisions made by AOs, given alleged
deficiencies in AO conduct and training. Commenters asserted that the
rule would lead to asylum decisions that are too swift. Multiple
commenters also expressed concern that AOs have conducted inadequate
credible fear screenings and made erroneous decisions in such
screenings, resulting in errors in adjudicating asylum claims. For
instance, citing an investigation by the DHS Office for Civil Rights
and Civil Liberties, one commenter alleged that AOs have misapplied or
failed to apply existing asylum law, ignored relevant portions of
asylum seekers' testimony, failed to perform pattern and practice
analysis and consider country conditions, failed to ask relevant
follow-up questions and develop the record, and failed to take accurate
notes. In addition, the same commenter said some AOs can be hostile and
belligerent, and even the best trained and most effective AOs have
limited time for credible fear interviews. Another commenter stated
that AOs are ill-equipped to conduct the additional analysis required
by the rule, given alleged deficiencies in the credible fear lesson
plan, failure of AOs to apply current legal standards, failure to
provide appropriate language interpretation, failure to interview
vulnerable populations within agency guidelines, and interference with
access to counsel.
Some commenters also stated that AOs are not medical experts and
lack the required expertise to evaluate whether something is or is not
an acute medical emergency. Another commenter stated that DHS should
train all staff who interact with LGBT asylum seekers. Some commenters
likewise stated that the rule should explicitly instruct AOs to
affirmatively elicit information about whether a person could qualify
for an exception to the rule or rebut its ineligibility presumption,
such as details about any family or personal medical emergencies,
threats of violence, difficulties using the CBP One app, and other
matters that bear on the exceptions and grounds for rebuttal.
One commenter expressed concerns that noncitizens who are subject
to the rule's rebuttable presumption of asylum ineligibility would be
deprived of the right to be meaningfully heard on their claims because
adjudicators applying the presumption would understand the rule to
favor overall deterrence of asylum seeking, such that decisionmakers
would allegedly err on the side of denying asylum or making negative
credible fear determinations. This commenter also argued that the
expedited removal system leads to a systemic, unjustified skepticism
amongst adjudicators toward meritorious claims.
Response: The Departments acknowledge these commenter concerns but
disagree that AOs lack the competence, expertise, or training to make
determinations on whether the presumption of ineligibility for asylum
applies or an exception or rebuttal ground has been established. AOs
frequently assess physical and psychological harm when adjudicating
asylum applications and are trained to do so in a sensitive
manner.\115\ AOs already evaluate harm resulting from the
unavailability of necessary medical care or specific medications when
assessing ``other serious harm'' under 8 CFR 208.13(b)(1)(iii)(B).\116\
Additionally, all AOs receive specific training on adjudicating asylum
claims of LGBT individuals.\117\ As for commenters' requests that the
rule explicitly instruct AOs to affirmatively elicit information about
the presumption, such an instruction is unnecessary, as AOs conducting
credible fear interviews are already required to specifically ask
questions to elicit all relevant testimony in a non-adversarial
manner.\118\ This will necessarily include information related to
whether the rule's presumption applies or an exception or rebuttal
ground has been established, regardless of whether the noncitizen
affirmatively raises these issues.
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\115\ For example, AOs adjudicate cases involving forms of
persecution like female genital mutilation, forced abortion, or
forced sterilization. See Matter of Kasinga, 21 I&N Dec. 357 (BIA
1996); INA 101(a)(42)(B), 8 U.S.C. 1101(a)(42)(B); see also USCIS,
RAIO Directorate--Officer Training, Gender-Related Claims at 24-28
(Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Gender_Related_Claims_LP_RAIO.pdf.
\116\ See USCIS, RAIO Directorate--Officer Training: Definition
of Persecution and Eligibility Based on Past Persecution, Supp. B at
60 (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Persecution_LP_RAIO.pdf.
\117\ See generally USCIS, RAIO Directorate--Officer Training:
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and
Intersex (LGBTI) Refugee and Asylum Claims (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/LGBTI_Claims_LP_RAIO.pdf.
\118\ See generally USCIS, Non-Adversarial Interview; USCIS,
Eliciting Testimony.
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USCIS takes any allegations of AO misconduct seriously and is aware
of the ongoing investigation by the DHS Office of Civil Rights and
Civil Liberties cited by commenters. However, the Departments strongly
disagree with any claims that AOs systematically exhibit an unjustified
skepticism or insensitivity toward asylum claims, that they routinely
fail to follow law or procedure, or that they would do so when applying
this rule. AOs are career government employees and are selected based
on merit. They undergo special training on non-adversarial interview
techniques, cross-cultural communication, interviewing children, and
interviewing survivors of torture and other severe trauma.\119\ While
the Departments disagree with the commenters' premise, the Departments
also note that government officials are entitled to the presumption of
official regularity in the way they conduct their duties. See United
States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). Commenters
failed to provide persuasive evidence of systematic bias or
misapplication of the law or procedure by AOs.
---------------------------------------------------------------------------
\119\ See 8 CFR 208.1(b); see also USCIS, Non-Adversarial
Interview; USCIS, Eliciting Testimony; USCIS, RAIO Directorate--
Officer Training: Cross-Cultural Communication and Other Factors
that May Impede Communication at an Interview (Dec. 20, 2019),
https://www.uscis.gov/sites/default/files/document/foia/CrossCultural_Communication_LP_RAIO.pdf; USCIS, Children's Claims;
USCIS, RAIO Directorate--Officer Training: Interviewing Survivors of
Torture and Other Severe Trauma (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Survivors_of_Torture_LP_RAIO.pdf [hereinafter USCIS, Interviewing
Survivors of Torture].
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c. IJ Conduct and Training
Comment: Several commenters expressed concern with IJ conduct and
their training vis-[agrave]-vis application of the rule's condition on
asylum eligibility. One commenter expressed concerns that noncitizens
who are subject to the rule's rebuttable presumption of asylum
ineligibility would be deprived of the right to be meaningfully heard
on their claims because adjudicators applying the presumption would
understand the proposed rule to favor overall deterrence, such that IJs
would allegedly err on the side of denial or negative credible fear
findings. The commenter argued that the expedited removal system and
prior hiring practices within EOIR lead to a systemic inclination
toward unjustified skepticism among IJs with respect to meritorious
claims.
Commenters also averred that IJs are not medical experts with the
required expertise to evaluate medical issues implicated by the
rebuttable presumption. Commenters stated that a significant number of
IJs hired in the past several years lacked prior immigration law
experience, yet, as IJs, they make complex legal determinations in
brief credible fear proceedings. Commenters also asserted that some IJs
have engaged in unprofessional and
[[Page 31360]]
hostile behavior toward asylum seekers and noted that some IJs have
asylum denial rates of 90 percent or higher. Additionally, commenters
expressed concern about potential IJ bias or lack of sufficient
training for IJs related to, in particular, asylum claims of LGBT
individuals.
Response: The Departments respectfully disagree with commenters'
concerns about IJs' conduct and training. IJs, like AOs, are career
employees who are selected through a competitive process. Likewise, IJs
receive ``comprehensive, continuing training and support'' directed at
``promot[ing] the quality and consistency of adjudications.'' 8 CFR
1003.0(b)(1)(vii). Relatedly, the Chief Immigration Judge has the
authority to ``[p]rovide for appropriate training of the immigration
judges and other OCIJ staff on the conduct of their powers and
duties.'' 8 CFR 1003.9(b)(2). Regulations also require IJs to ``resolve
the questions before them in a timely and impartial manner consistent
with the [INA] and regulations.'' 8 CFR 1003.10(b).
The Departments likewise do not share commenters' concerns
regarding newly hired IJs' professional experience or ability to make
appropriate legal determinations in the context of credible fear
reviews or section 240 removal proceedings. The Departments believe
that IJs' diverse professional backgrounds contribute to their ability
to address complex legal issues in all cases arising before them.
Notably, 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. Upon entry on
duty, new IJs receive extensive training, and throughout their tenure,
all IJs receive both annual and periodic training on specialized topics
as necessary. IJs are also expected to maintain professionalism and
competence in the law.\120\
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\120\ See EOIR, Ethics and Professionalism Guide for Immigration
Judges 2 (Jan. 31, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf.
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Moreover, the Departments disagree with commenter concerns about
IJs' ability to assess medical records. Nothing in the rule requires
adjudicators to make a formal medical diagnosis to determine whether a
noncitizen is exempt from or has rebutted the rule's condition on
eligibility. Rather, adjudicators will make a factual determination
regarding whether certain exigencies, such as an acute medical
emergency, caused a noncitizen to enter the United States outside of an
available lawful pathway. 8 CFR 208.33(a)(2), 1208.33(a)(2). Given the
IJ's role as the finder of fact in proceedings before EOIR, IJs are
well-equipped to make such fact-based determinations.
Further, to the extent that commenters' concerns amount to
allegations that IJs are biased or fail to comport themselves in a
manner consistent with their duties, the Departments note that IJs are
attorneys, 8 CFR 1003.10(a), and must comply with all ethical conduct
and training requirements for DOJ attorneys. See, e.g., 5 CFR
2635.101.\121\ Additionally, as evidenced by the existence and work of
EOIR's Judicial Conduct and Professionalism Unit (``JCPU''),
``[a]lleged misconduct by [IJs] is taken seriously by [DOJ] and
[EOIR].'' \122\ EOIR strives to adjudicate every case in a fair manner
and to treat all parties involved with respect. Individuals or groups
who believe that an IJ or other EOIR adjudicator has engaged in
misconduct may submit a complaint to EOIR's JCPU via mail at Executive
Office for Immigration Review, attn.: Judicial Conduct and
Professionalism Unit, 5107 Leesburg Pike, Suite 2600, Falls Church, VA
22041 or via email at [email protected]. Additionally, JCPU
may launch its own investigation if information related to potential
misconduct comes to JCPU's attention by other means, including through
news reports, Federal court decisions, and routine reviews of agency
proceedings.\123\ JCPU will review all complaints, docket cases
alleging judicial misconduct, gather relevant materials, and forward
the complaint, relevant documents, and a summary of JCPU's preliminary
fact-gathering to the IJ's supervisor for investigation and
resolution.\124\ Complaints can be resolved by dismissal, conclusion,
corrective action, or disciplinary action, and JCPU will provide
written notice to the complainant when the matter is closed.\125\
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\121\ See also ICPM, Chapter 1.3(c) (Nov. 14, 2022)
(``Immigration judges strive to act honorably, fairly, and in
accordance with the highest ethical standards, thereby ensuring
public confidence in the integrity and impartiality of immigration
court proceedings.'').
\122\ See id.
\123\ See EOIR, Judicial Complaint Process (Feb. 2023), https://www.justice.gov/eoir/page/file/1100946/download (explaining the
steps of the judicial complaint process).
\124\ Id.
\125\ Id.; see also EOIR, Statistics and Reports, https://www.justice.gov/eoir/statistics-and-reports (last visited Apr. 19,
2023) (providing IJ complaint statistics).
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While the Departments disagree with the commenters' premise,
moreover, the Departments also note that government officials are
entitled to the presumption of official regularity in the way they
conduct their duties, Chem. Found., 272 U.S. at 14-15, and commenters
failed to provide persuasive evidence of systematic bias amongst IJs.
iv. Concerns Regarding Confusion, Delays, Backlog, and Inefficiencies
Comment: Commenters described the rule as ``convoluted,''
``elaborate,'' or ``unclear,'' and expressed concerns that it would be
confusing to migrants and make it difficult for legal services
organizations to advise clients, partner organizations, and the
communities that they serve. Commenters said that the proposed rule
would impose a two-tier approach and additional fact-intensive queries
for credible fear interviews, thereby increasing interview times and
complexity of credible fear cases and adding to the burden and
confusion of AOs. Additionally, commenters stated that prior asylum
policy changes have led to confusion amongst attorneys and migrants and
resulted in erroneous deportations. Moreover, one commenter stated that
a confusing legal framework does not prevent and sometimes promotes an
increase of irregular migration. Another commenter recommended that the
Government provide guidance or an FAQ document to accompany and explain
the rule's exceptions and means of rebuttal.
In addition, commenters expressed concern that, by adding to the
evidentiary requirements, complexity, and length of asylum
adjudications, the rule would exacerbate delays and backlogs,
inefficiently prolong the asylum process for legitimate asylum seekers,
increase erroneous denials, decrease the number of attorneys available
to help clear backlogs, and strain limited government resources.
Commenters also pointed to previous instances where changes in
procedure led to an increased backlog, citing the Citizenship and
Immigrant Services Ombudsman 2022 annual report to highlight this
dynamic. Another commenter stated that cases wrongly referred to the
immigration court by the Asylum Office due to erroneous applications of
the rule would unnecessarily add to immigration court backlogs. And
commenters stated that the NPRM failed to provide any evidence or
explanation that the proposed rule would mitigate backlogs. In response
to these efficiency concerns, one commenter suggested that the
Departments should pursue alternate solutions for addressing the USCIS
and
[[Page 31361]]
EOIR backlogs, such as more dedicated dockets, smarter prioritization
of cases, expanded use of administrative closure or deferred action, or
establishing an independent immigration court. One commenter likewise
maintained that the Departments, in their efforts to help the
immigration court system function more efficiently and effectively must
still respect the due process rights of asylum seekers.
Response: The Departments do not believe that the rule's provisions
are unduly confusing or complex. However, as described in Section
II.C.7 of this preamble, the Departments have streamlined the
regulatory text significantly to improve clarity, and the Departments
believe this final rule publication should provide much of the guidance
sought by commenters. Substantively, the rule simply outlines a
circumstance in which a noncitizen will be presumed ineligible for
asylum, and includes a list of exceptions to and means of rebutting the
presumption. As explained in Section IV.B.5.iii.a of this preamble, AOs
conducting credible fear interviews will specifically ask questions to
elicit all relevant testimony in a non-adversarial manner, including
with respect to whether the presumption applies or any exception or
rebuttal ground is applicable in a given case, regardless of whether
the noncitizen affirmatively raises these issues. Furthermore,
noncitizens who are found by an AO to be subject to the condition on
eligibility may request review of that determination, and an IJ will
evaluate de novo whether the noncitizen is subject to the presumption,
and if so, whether the noncitizen has established an exception to or
rebutted the presumption. 8 CFR 208.33(b)(1), (2). And even where the
presumption applies and no exception or rebuttal ground has been
established at the credible fear stage, if the noncitizen has
demonstrated a reasonable possibility of persecution or torture, they
will have an opportunity to apply for asylum, statutory withholding of
removal, CAT protection, or any other form of relief or protection for
which the noncitizen is eligible in removal proceedings under section
240 of the INA. See 8 CFR 208.33(b)(2)(ii), (b)(2)(v)(B); id.
1208.33(b)(4).
In relation to the concern that the rule's provisions are unclear
or that additional public-facing materials may be necessary to clarify
and raise awareness about provisions of the rule, the Departments
intend to execute a robust communications plan to notify and inform the
public of the rule's requirements. This plan entails engagement with
stakeholders, including NGOs, international organizations, legal
services organizations, and others. The Departments also plan to mount
communications campaigns as appropriate throughout the Western
Hemisphere in coordination with interagency partners and partner
governments in order to educate potential migrants about the rule's
requirements, including consequences of failing to use available lawful
pathways.
These efforts are in addition to preexisting and ongoing
communications efforts, including publicization of removal and
enforcement statistics, English-, Spanish-, Portuguese-, and Haitian
Creole-language interviews with media outlets in the region, and
regularly updated Web resources on which the Departments can provide
additional information in response to demand from the public.
The Departments acknowledge concerns regarding delays, backlogs,
and limited government resources, but believe that these concerns are
outweighed by the anticipated benefits of the rule. The rule is
expected to ultimately reduce the number of cases pending before the
immigration courts and reduce ancillary benefit requests to USCIS. See
8 CFR 208.7 (employment authorization for pending asylum applicants).
This would also alleviate the burden on ICE of removing non-detained
noncitizens who receive final orders of removal at the conclusion of
removal proceedings under section 240 of the INA but who do not comply
with their orders. See, e.g., 8 CFR 241.4(f)(7) (in considering whether
to recommend further detention or release of a noncitizen, an
adjudicator must consider ``[t]he likelihood that the alien is a
significant flight risk or may abscond to avoid removal''). The
Departments also anticipate that the rule will redirect migratory flows
towards lawful, safe, orderly pathways in ways that make it easier to
process their requests for admission. 88 FR at 11729. The Departments
believe that this will ultimately result in fewer credible fear cases
than would otherwise be processed, and that these improvements in
efficiency would outweigh a potential increase in credible fear
interview times. The Departments do not anticipate that the rule will
be applied frequently in affirmative asylum cases decided by the Asylum
Office, since only a small percentage of these applicants enter the
United States from Mexico across the southwest land border or adjacent
coastal borders, apart from UCs who are not subject to the rule.\126\
When all the effects are considered on balance, this rule will serve
one of the key goals of the U.S. asylum system, which is to efficiently
and fairly provide protection to noncitizens who are in the United
States and have meritorious claims, while also efficiently denying and
ultimately removing those who are not deemed eligible for discretionary
forms of protection and do not qualify for statutory withholding of
removal or protection under the CAT. See 88 FR at 11729.
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\126\ The annual percentage of affirmative asylum applicats who
entered between POEs and were not UCs has steadily declined over the
past two decades. The percentage for 2020-22 have been 16.00
percent, 14.85 percent, and 13.92 percent, respectively. So far in
fiscal year 2023, the percentage has been 9.06 percent. USCIS Data
Collection, Apr. 13, 2023.
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Comments advocating for other immigration policy changes or
statutory reforms that could potentially create efficiencies in
immigration proceedings are outside the scope of this rulemaking.
However, as stated in the NPRM, the Departments note that EOIR has
created efficiencies by reducing barriers to access immigration courts.
See 88 FR at 11717. In that regard, EOIR has expanded the Immigration
Court Helpdesk program to several additional courts, issued guidance on
using the Friend of the Court model to assist unrepresented
respondents, and reconstituted its pro bono liaison program at each
immigration court. The above measures promote efficiency as, where a
noncitizen is represented, the IJ is less likely to have to engage in
time-consuming discussions at hearings to ascertain whether the
noncitizen is subject to removal and potentially eligible for any
relief. In addition, a noncitizen's counsel can assist the noncitizen
in gathering evidence, can prepare the noncitizen to testify, and can
work with DHS counsel to narrow the issues the IJ must decide. While
critically important, these process improvements are not, on their own,
sufficient to respond to the significant resource needs associated with
the increase in migrants anticipated following the lifting of the Title
42 public health Order.
To the extent commenters argued that adjudication timeline concerns
implicate the due process rights of noncitizens, as explained above,
the Supreme Court has held that the due process rights of noncitizens
applying for admission at the border are limited to ``only those rights
regarding admission that Congress has provided by statute.''
Thuraissigiam, 140 S. Ct. at 1983. However, upon referral of a fear
[[Page 31362]]
claim, USCIS seeks to issue credible fear determinations for detained
noncitizens in a timely manner. Furthermore, the statute that governs
expedited removal provides that upon a noncitizen's request for review
of an AO's negative credible fear determination, an IJ will review the
determination ``in no case later than 7 days after the date of the
determination.'' INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). In any event, because there is no statute
guaranteeing any noncitizen that their expedited removal or credible
fear process will be completed in a given amount of time, any failure
to meet this obligation is not in the nature of a due process
violation. See Thuraissigiam, 140 S. Ct. at 1983.
Comment: Commenters expressed concerns that a lack of notice about
the rule for asylum seekers could lead to confusion and due process
violations. Some expressed concern that noncitizens who are traveling
to the United States when the rule becomes effective would not have
sufficient notice about the CBP One app or the need to schedule an
appointment in order to seek asylum without being subject to a
rebuttable presumption of ineligibility. Commenters expressed concern
that individuals who had contracted with smugglers in transit would
receive disinformation from the smugglers about lawful pathways,
thereby preventing them from using a lawful pathway to enter the United
States. Other commenters said that noncitizens should receive notice of
the rebuttable presumption prior to their credible fear interviews.
Response: The Departments believe that comments about lack of
notice are misguided for several reasons. First, as just discussed, the
rule's requirements are not unduly confusing or complex, and the
Departments intend to implement a robust communications plan to notify
and inform the public of requirements under the rule, minimizing any
potential confusion. Second, the Departments provided advance notice of
the potential issuance of this policy by issuing the NPRM on February
23 of this year, and by announcing the impending issuance of such
proposed rule in January.\127\ Third, any lack of notice would not
constitute a violation of the Fifth Amendment's Due Process Clause. As
explained above, the Supreme Court has held that the rights of
noncitizens applying for admission at the border are limited to ``only
those rights regarding admission that Congress has provided by
statute.'' Thuraissigiam, 140 S. Ct. at 1983. The Departments are aware
of no statutory requirement that notice regarding any of the INA's
provisions be provided to individuals outside the United States,
including those who may be subject to expedited removal provisions or
conditions on asylum eligibility upon arrival. Finally, courts have
long held that ``ignorance of the legal requirements for filing an
asylum application'' is ``no excuse'' for failing to comply with such
requirements, particularly where, as here, the enactment of such
requirements is published in the Federal Register. Alquijay v. Garland,
40 F.4th 1099, 1103 (9th Cir. 2022) (quotation marks omitted) (citing,
e.g., Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.
573, 581 (2010)); see Williams v. Mukasey, 531 F.3d 1040, 1042 (9th
Cir. 2008).
---------------------------------------------------------------------------
\127\ See DHS, Press Release, DHS Continues to Prepare for End
of Title 42; Announces New Border Enforcement Measures and
Additional Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
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v. Other Procedural Concerns
Comment: Commenters stated that it would be extremely challenging
or impossible for many asylum seekers to show that the rule does not
apply to them or to establish an exception to or rebut the presumption
of ineligibility, despite having bona fide claims. According to these
commenters, the expedited removal process is extremely flawed and rife
with erroneous removals due to a number of factors. Asylum seekers are
detained in remote areas (in abusive and dangerous conditions of
confinement), where attorney access is limited and they have no chance
to gather evidence. Credible fear screenings typically occur over the
phone (often with poor call quality and sporadic connection, with
little or no privacy). The commenters also stated that the lack of
privacy during these screenings makes it more difficult and potentially
retraumatizing for applicants to share their stories and make their
cases. One commenter stated that, although the noncitizen may be in a
private room, there is often a lot of noise and commotion in the
passageways that can be distracting. One commenter wrote that trauma
severely impacts a survivor's ability to coherently and compellingly
present an asylum claim by negatively affecting memory and emotional
state and causing them to behave in ways that untrained people may read
as indicating a lack of credibility. Another commenter stated that
credible fear screenings can trigger increased traumatic response,
rather than increased disclosure about the circumstances of persecution
or torture. The presence of noncitizens' children during the interview
can be distracting or deter the person from disclosing sensitive
elements of their persecution story. Commenters also stated that
language barriers, including English-only availability for written
notices, make the process more difficult. One commenter also stated
that translators may be unfamiliar with certain dialects and slang.
Commenters stated that these alleged factors would worsen if the
Administration were to pursue its reported plan to conduct credible
fear interviews within days of asylum seekers' arrival in CBP custody,
based on the conditions in CBP custody and lack of access to counsel,
as shown by the increase in negative credible fear determinations
during the Prompt Asylum Case Review (``PACR'') program and the
Humanitarian Asylum Review Program (``HARP'').
Response: To the extent commenters argued that conditions in which
credible fear interviews take place, such as location, interview
procedures, and surrounding circumstances, implicate the due process
rights of noncitizens, as explained above, the Supreme Court has held
that the due process rights of noncitizens applying for admission at
the border are limited to ``only those rights regarding admission that
Congress has provided by statute.'' Thuraissigiam, 140 S. Ct. at 1983.
As further explained above, the statute that governs expedited removal
provides only that the noncitizen may ``consult with a person or
persons of the alien's choosing prior to the interview or any review
thereof, according to regulations prescribed by the Attorney General.
Such consultation shall be at no expense to the Government and shall
not unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8 U.S.C.
1225(b)(1)(B)(iv).
In any event, the Departments disagree with these characterizations
of credible fear interviews. With regard to commenter concerns about
lack of privacy during credible fear interviews, the Departments note
that these interviews are conducted ``separate and apart from the
general public.'' 8 CFR 208.30(d). The Departments are mindful of their
duties under 8 CFR 208.6 and 1208.6 to prevent unauthorized disclosure
of records pertaining to any credible fear determination, and AOs are
required to explain these confidentiality requirements to noncitizens
prior to credible fear interviews.\128\ Noncitizens in credible
[[Page 31363]]
fear proceedings are also informed that interpreters are sworn to keep
their testimony confidential.\129\ All AOs receive training on working
with interpreters, which includes assessing competency and recognizing
other factors that may affect the accuracy of interpretation.\130\
Credible fear interviews are conducted ``in a nonadversarial manner,
separate and apart from the general public.'' 8 CFR 208.30(d). AOs are
trained to elicit all relevant testimony during credible fear
interviews,\131\ and will not preemptively issue negative credible fear
determinations due to phone connectivity issues. All AOs receive
training on interviewing survivors of torture and other severe
trauma.\132\
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\128\ See USCIS, Non-Adversarial Interview; see also Form M-444,
Information About Credible Fear Interview 1 (May 31, 2022) (``U.S.
law has strict rules to prevent the government from telling others
about what you say in your credible fear interview.'').
\129\ Form M-444, Information About Credible Fear Interview 2
(May 31, 2022) (``The interpreter will be sworn to keep the
information you discuss confidential.'').
\130\ USCIS, RAIO Directorate--Officer Training, Interviewing--
Working with an Interpreter (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Working_with_an_Interpreter_LP_RAIO.pdf.
\131\ USCIS, Eliciting Testimony 12 (``In cases requiring an
interview, although the burden is on the applicant to establish
eligibility, equally important is your obligation to elicit all
pertinent information.''); USCIS, Non-Adversarial Interview 13
(``You control the direction, pace, and tone of the interview and
have a duty to elicit all relevant testimony.'').
\132\ USCIS, Interviewing Survivors of Torture.
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Finally, commenters' concerns related to the potential for
conducting credible fear interviews while noncitizens are in CBP
custody are outside the scope of this rule. This rule does not specify
where noncitizens may be held in custody during credible fear
proceedings. Any decision to conduct credible fear interviews while the
noncitizen is in CBP custody will take into account a range of factors,
including operational limitations associated with the facility,
staffing, and throughput. Additionally, to the extent that commenters
have concerns about conditions in CBP custody, such comments are
outside the scope of this rule. DHS notes, however, that it is
committed to providing safe, sanitary, and humane conditions to all
individuals in custody, and that it is committed to transferring
individuals out of CBP custody in an expeditious manner. The
Departments further note that one anticipated effect of this rule is to
alleviate overcrowding in DHS detention facilities. See 88 FR at 11704.
6. Recent Regional Migration Initiatives
Comment: Commenters stated that the rule conflicts with several
migration declarations and other compacts into which the United States
has recently entered. For example, at least one commenter stated that
the rule conflicts with the L.A. Declaration, in which the United
States committed ``to promote access to protection and complementary
pathways for asylum seekers, refugees, and stateless persons in
accordance with national legislation and with respect for the principle
of non-refoulement.'' \133\ One commenter stated the former presidents
of Colombia and Costa Rica object to the proposed rule on the basis
that it is not in line with the L.A. Declaration.
---------------------------------------------------------------------------
\133\ The White House, Los Angeles Declaration on Migration and
Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
---------------------------------------------------------------------------
Response: The Departments disagree that the rule conflicts with any
recent regional migration initiatives. The Departments' rule is fully
consistent with the United States' commitments under the L.A.
Declaration, including our responsibility as a signatory country to
``manage mixed movements across international borders in a secure,
humane, orderly, and regular manner.'' \134\ As described in the NPRM,
political and economic instability, coupled with the lingering adverse
effects of the COVID-19 global pandemic, have fueled a substantial
increase in migration throughout the world. See, e.g., 88 FR at 11708-
14.
---------------------------------------------------------------------------
\134\ Los Angeles Declaration.
---------------------------------------------------------------------------
Current DHS encounter projections and planning models suggest that
encounters at the SWB could rise to 11,000 encounters per day after the
lifting of the Title 42 public health Order.\135\ Absent policy
changes, most non-Mexicans processed for expedited removal under Title
8 would likely establish credible fear and remain in the United States
for the foreseeable future despite the fact that many of them will not
ultimately be granted asylum, a scenario that would likely incentivize
an increasing number of migrants to the United States and further
increase the likelihood of sustained high encounter rates.
---------------------------------------------------------------------------
\135\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023.
---------------------------------------------------------------------------
The Departments' promulgation of this rule is an attempt to avert
this scenario in line with the United States and other signatory
nations' responsibility to manage migration responsibly and humanely as
described in the L.A. Declaration. Contrary to commenters' assertion,
the rule is consistent with the Collaborative Migration Management
Strategy (``CMMS'') \136\ and the L.A. Declaration's support for a
collaborative and regional approach to migration and forced
displacement, pursuant to which countries in the hemisphere commit to
implementing programs to stabilize communities hosting migrants and
asylum seekers, providing increased regular pathways and protections
for migrants and asylum seekers who reside in or traveled through their
countries, and humanely enforcing existing immigration laws.
---------------------------------------------------------------------------
\136\ See The White House, Collaborative Migration Management
Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf.
---------------------------------------------------------------------------
The rule works in combination with several other policy actions to
secure the SWB while upholding the principles enshrined in the L.A.
Declaration. These policy actions include resumption of the Cuban and
Haitian Family Reunification Parole Programs, the plans to streamline
those programs and extend them to nationals of certain other countries,
the establishment of regional processing centers, expansion of refugee
resettlement commitments globally and in the region, expansion of labor
pathways, including expanded access in the region to H-2B temporary
nonagricultural worker visas, creation of the parole processes for CHNV
nationals, the Asylum Processing IFR, and other processing improvements
geared toward expanding access to lawful pathways. 88 FR at 11716-
19.\137\ These actions are consistent with the specific goal laid out
in the L.A. Declaration to collectively ``[e]xpand access to regular
pathways for migrants and refugees.'' Together with the rule, these
policy actions will help address unprecedented migratory flows, the
systemic costs those flows impose on the immigration system, and the
ways in which a network of increasingly sophisticated human smuggling
networks cruelly exploit the system for financial gain.
---------------------------------------------------------------------------
\137\ See also DHS, New Actions to Manage Regional Migration
(Apr. 27, 2023).
---------------------------------------------------------------------------
7. Negative Impacts on the Workforce and Economy
Comment: Some commenters stated that the Departments should not
enact restrictions on immigration due to current labor shortages and
the general benefits of immigration. Commenters stated that the rule
will stifle the flow of immigration to American communities, which will
suffer because immigrants are central to community development,
economic prosperity, and maintaining a strong workforce. A commenter
stated that U.S. history has shown that immigrants, even those who
[[Page 31364]]
arrive here in the weakest of circumstances, strengthen our country in
the long run. Commenters said that the U.S. population is stagnating or
shrinking, so the United States should welcome migrants--especially
young migrants--who can support the economy, fill jobs, and contribute
to Social Security. A commenter stated that beginning in 2019, levels
of immigration to the United States dropped significantly, and that by
the end of 2021 there were close to 2 million fewer working-age
immigrants in the United States than there would have been if pre-
pandemic immigration continued unchanged, according to researchers from
the University of California, Davis.
Some commenters opposed the proposed rule on the ground that
immigrants are willing to work difficult jobs that many already in the
United States are not willing to take. Commenters stated that there is
currently a severe shortage of certain workers in the United States,
such as in the health care, agriculture, and service industries, and
that migrants who undertake an arduous overland journey to the United
States are likely to work hard and become productive members of U.S.
society. One commenter noted that immigrant-owned businesses account
for over 8 million jobs and 1.3 trillion dollars in the U.S. economy.
Another commenter stated that individuals in the asylum process who are
working with work authorization contribute about $11 billion to the
economy each year. Commenters also stated that migrants do not have a
significant negative impact on the wages of local-born residents and
that migrants contribute more to the U.S. economy than the cost of
community and government services they use. One commenter stated that
the proposed rule improperly restricts asylum seekers being integrated
into the workforces of the States and that State-funded services for
asylum seekers would be put under strain as a result.
Response: The Departments agree that immigrants make important
contributions to the U.S. economy. However, the Departments disagree
that the benefits of immigration render this rule unnecessary or
invalid. The Departments emphasize that the U.S. immigration system has
experienced extreme strain with a dramatic increase of noncitizens
attempting to cross the SWB in between POEs without authorization,
reaching an all-time high of 2.2 million encounters in FY 2022. Without
a meaningful policy change, border encounters could dramatically rise
to as high as 11,000 per day after the Title 42 public health Order is
lifted,\138\ and DHS does not currently have the resources to manage
and sustain the processing of migratory flows of this scale in a safe
and orderly manner. See 88 FR at 11712-13. This rule is therefore
designed to incentivize migrants to choose lawful, safe, and orderly
pathways to entering the United States over dangerous, irregular
pathways.
---------------------------------------------------------------------------
\138\ OIS analysis of DHS SWB Encounter Planning Model generated
April 18, 2023.
---------------------------------------------------------------------------
Over the last several months, DHS has endeavored to promote and
expand lawful, safe, and orderly pathways. For instance, in January
2023, DHS implemented new parole processes for CHN nationals that built
on the successful process for Venezuelans and created an accessible,
streamlined way for eligible individuals to travel to and enter the
United States via a lawful and safe pathway. Through a fully online
process, individuals can seek advance authorization to travel to the
United States and be considered, on a case-by-case basis, for a
temporary grant of parole for up to two years. Individuals who are
paroled through these processes can apply for employment authorization
immediately following their arrival to the United States.\139\
---------------------------------------------------------------------------
\139\ See USCIS, Frequently Asked Questions About the Processes
for Cubans, Haitians, Nicaraguans, and Venezuelans (Mar. 22, 2023),
https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.
---------------------------------------------------------------------------
Furthermore, the United States Government has significantly
expanded access to the H-2 labor visa programs to address labor
shortages and provide safe and orderly pathways for migrants seeking to
work in the United States. For example, on December 15, 2022, DHS and
the Department of Labor (``DOL'') jointly published a temporary final
rule increasing the total number of noncitizens who may receive an H-2B
nonimmigrant visa by up to 64,716 for the entirety of FY 2023. 87 FR
76816 (Dec. 15, 2022). In 2022, concurrent with the announcement of the
L.A. Declaration, the United States announced that it intends to
welcome at least 20,000 refugees from Latin America and the Caribbean
in FY 2023 and FY 2024, which would put the United States on pace to
more than triple the number of refugee admissions from the Western
Hemisphere this fiscal year alone.\140\ On April 27, 2023, DHS
announced that it would commit to referring for resettlement thousands
of additional refugees per month from the Western Hemisphere--with the
goal of doubling the number of refugees the United States committed to
welcome as part of the L.A. Declaration.\141\ The Departments also note
that the United States admitted significantly more noncitizens in
nonimmigrant status in fiscal year 2022 (96,700,000) than in previous
years.\142\
---------------------------------------------------------------------------
\140\ See L.A. Declaration Fact Sheet.
\141\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
\142\ Compare OIS, Legal Immigration and Adjustment of Status
Report Fiscal Year 2022, Quarter 4, https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration, with OIS, Annual Flow
Report: U.S. Nonimmigrant Admissions: 2021 (July 2022), https://www.dhs.gov/sites/default/files/2022-07/2022_0722_plcy_nonimmigrant_fy2021.pdf, and OIS, Annual Flow Report:
U.S. Nonimmigrant Admissions: 2018 (Oct. 2018), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2018/nonimmigrant_admissions_2018.pdf.
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The Departments believe that these new or expanded lawful pathways,
and particularly employment-based pathways, are effective ways to
address labor shortages and encourage lawful migration. The Departments
also believe that, by reducing migrants' incentives to use human
smugglers and traffickers to enter the United States, this final rule
will reduce the likelihood that newly arrived migrants will be
subjected to labor trafficking. The Departments further reiterate that
noncitizens who avail themselves of any of the lawful, safe, and
orderly pathways recognized in this rule will not be subject to the
rebuttable presumption.
8. Other Opposition
i. Encourages Migration by Sea or Other Dangerous Means
Comment: A commenter predicted that the proposed rule may increase
the number of migrants seeking to travel to the United States by sea,
which is dangerous and could lead to an increase in migrant deaths and
drownings, and another suggested that attempted immigration directly by
sea would pose a significant burden on Coast Guard and other resources.
One commenter expressed concern that the rule would incentivize
migrants to avoid detection by CBP, remarking that migrants may attempt
to enter the United States by crossing the Rio Grande River or along
the Pacific coast, where they face a high risk of drowning.
Commenters stated that the proposed rule would do nothing to stem
the flow of migrants to the United States but would instead force
people to seek out other means of coming to the United States and leave
people with few choices, including the very choices the rule purports
to wish to avoid. Some commenters stated that the rule will result in
migrants, who are in a desperate humanitarian situations or
[[Page 31365]]
fear for their lives, resorting to more dangerous routes between POEs
to enter the United States. One commenter stated that these dangerous
border crossings can result in severe injuries, dehydration,
starvation, and drownings as well as kidnappings and other violent
attacks by cartels and other organized criminal groups that exert
influence at the U.S.-Mexico border. Another commenter claimed that
data shows that CBP's ``prior metering program'' increased border
apprehensions by 36 percent, which suggests that making the CBP One app
mandatory may in fact increase border crossings and make them riskier.
Response: First, the Departments share commenters' concerns that
noncitizens seeking to avoid the rebuttable presumption may take
dangerous sea routes, leading to migrant deaths and drownings. Because
applying the rule only to those who enter the United States from Mexico
across the southwest land border would inadvertently incentivize
noncitizens without documents sufficient for lawful admission to
circumvent that land border by making a hazardous attempt to reach the
United States from Mexico by sea, the Departments have determined that
it is appropriate to apply the rebuttable presumption to those who
enter the United States from Mexico at both the southwest land border
and adjacent coastal borders. Similar considerations that led the
Departments to pursue this rulemaking with respect to land arrivals at
the SWB apply in this specific maritime context, as the anticipated
increase in migration by land could lead migrants attempting to avoid
the rebuttable presumption to make the final portion of their journey
from Mexico by sea. In light of the inherent dangers such attempts
could create for migrants and DHS personnel, and to avoid a significant
further increase in maritime interdictions and landfall by noncitizens
along the adjacent coastal borders as compared to the already
significant surge that the Departments have seen in recent years, the
Departments have extended the rebuttable presumption to apply to
noncitizens who enter the United States from Mexico at adjacent coastal
borders. 8 CFR 208.33(a)(1), 1208.33(a)(1).
Extension of the rebuttable presumption to noncitizens who enter
the United States from Mexico at adjacent coastal borders is supported
by the growing number of migrants taking to sea under dangerous
conditions, which puts lives at risk and stresses DHS's resources. The
IOM Missing Migrants Project reported at least 321 documented deaths
and disappearances of migrants throughout the Caribbean in 2022,
signaling the highest recorded number since it began tracking such
events in 2014 and a 78 percent overall increase over the 180
documented cases in 2021.\143\ Total migrants interdicted at sea by the
U.S. Coast Guard (``USCG'') increased by 502 percent between FY 2020
(2,079) and FY 2022 (12,521).\144\ Interdictions continued to rise in
FY 2023 with 8,822 migrants interdicted at sea through March, almost 70
percent of the total in FY 2022 within six months.\145\ Interdictions
occurred primarily in the South Florida Straits and the Caribbean
Sea.\146\ The USCG views its migrant interdiction mission as a
humanitarian effort to rescue those taking to the sea and to encourage
noncitizens to pursue lawful pathways to enter the United States. By
allocating additional assets to migrant interdiction operations and to
prevent conditions that could lead to a maritime mass migration, the
USCG assumes certain operational risk to other statutory missions.
Recently, some USCG assets have been reallocated from other key mission
areas, including counter-drug operations, protection of living marine
resources, and support for shipping navigation. The Departments expect
that the strategy of coupling expanded lawful, safe, and orderly
pathways into the United States with this rule's application of the
rebuttable presumption to noncitizens who make landfall at adjacent
coastal borders after traveling through Mexico, would lead to a
reduction in the numbers of migrants who would otherwise undertake a
dangerous journey to the United States by sea. By avoiding a further
increase in maritime migration, USCG can in turn avoid incurring
greater risk to its other statutory missions.
---------------------------------------------------------------------------
\143\ Int'l Org. for Migration, Missing Migrants in the
Caribbean Reached a Record High in 2022 (Jan. 24, 2023), https://www.iom.int/news/missing-migrants-caribbean-reached-record-high-2022.
\144\ OIS analysis of USCG data through March 31, 2023.
\145\ Id.
\146\ Testimony of Jonathan Miller, ``Securing America's
Maritime Border: Challenges and Solutions for U.S. National
Security'' at 4 (Mar. 23, 2023), https://homeland.house.gov/media/2023/03/3.23.23-TMS-Testimony.pdf.
---------------------------------------------------------------------------
Second, the Departments disagree with commenters' concerns that
this rule will incentivize more migrants to use other dangerous means
of entering the United States, such as concealment in a vehicle
crossing a SWB POE or crossing between POEs at remote locations. As
noted in Section IV.B.3.iv of this preamble, the Departments anticipate
that the newly expanded lawful pathways to enter to the United States,
in conjunction with the rule's condition on asylum eligibility for
those who fail to exercise those pathways, will ultimately decrease
attempts to enter the United States without authorization, and thereby
reduce reliance on smugglers and human traffickers.
The Departments further disagree with the commenter's claims that
the use of the CBP One app to schedule an appointment to present at a
POE is a ``metering program'' or that use of the CBP One app will
increase irregular migration or incentivize riskier irregular migration
routes. CBP will inspect and process all arriving noncitizens at POEs,
regardless of whether they have used the CBP One app. In other words,
the use of the CBP One app is not a prerequisite to approach a POE, nor
is it a prerequisite to be inspected and processed under the INA. CBP
will not turn away individuals without appointments. CBP is committed
to increasing the number of noncitizens processed at POEs and is
committed to processing noncitizens in an expeditious manner.\147\
---------------------------------------------------------------------------
\147\ See Memorandum for William A. Ferrara, Exec. Ass't Comm'r,
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP,
Re: Guidance for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021),
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------
Moreover, the Departments intend for this rule to work in
conjunction with other initiatives that expand lawful pathways to enter
the United States, and thereby incentivize safe, orderly, lawful
migration over dangerous, irregular forms of migration. Noncitizens who
enter the United States in vehicles without scheduling an appointment
to present at a POE and who are inadmissible under section 212(a)(7) of
the INA, 8 U.S.C. 1182(a)(7), are subject to the rebuttable
presumption. Similarly, noncitizens who attempt to cross the southwest
land border between POEs are subject to the rebuttable presumption.
Likewise, noncitizens who attempt to enter the United States from
Mexico at adjacent coastal borders are subject to the rebuttable
presumption. Additionally, DHS has changed the respective parole
processes for Cubans and Haitians, such that Cubans and Haitians who
are interdicted at sea after April 27, 2023, are ineligible for such
parole processes. See Implementation of a Change to the Parole Process
for Cubans, 88 FR 26329 (Apr. 28, 2023); Implementation of a Change to
the Parole Process for Haitians, 88 FR 26327 (Apr. 28, 2023). The
Departments anticipate that these
[[Page 31366]]
disincentives, coupled with the newly expanded pathways for lawful
migration and the rule's exceptions and means of rebuttal, will
ultimately lead fewer noncitizens to attempt to enter the United States
in an unsafe manner.
ii. Inconsistent With Actions of Other Countries and Harmful to Foreign
Relations
Comment: Commenters stated that the proposed rule would almost
completely abandon the United States' commitment to work with other
countries to meet growing refugee and asylum seeker protection needs,
instead placing the burden on transit countries. Commenters stated that
many European countries have opened their borders to millions of
immigrants, and that the United States should do the same to help
people who are facing desperate situations at home. Commenters observed
that other countries in Latin America or the Western hemisphere have
taken in many more migrants and taken on a greater burden than the
United States. One commenter expressed concern that other countries may
seek to follow in the United States' footsteps and enact similar
restrictive asylum measures. Another commenter stated the rule will not
improve foreign relations with hemispheric partner nations.
Response: The Departments acknowledge the comments and reiterate
that the purpose of this rule is to encourage migrants to choose safe,
orderly, and lawful pathways of entering the United States, while
preserving the opportunity for individuals fleeing persecution to
pursue protection-based claims consistent with the INA and
international law. The rule is needed because, absent this rule, after
the termination of the Title 42 public health Order, the number of
migrants expected to travel without authorization to the United States
is expected to increase significantly, to a level that risks
undermining the Departments' ability to safely, effectively, and
humanely enforce and administer U.S. immigration law, including the
asylum system. This rule is one policy within a broad range of actions
being implemented to ensure that there is a regional framework for
addressing and responding to historic levels of migration within the
hemisphere.\148\
---------------------------------------------------------------------------
\148\ See 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/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/; The White House,
FACT SHEET: Update on the Collaborative Migration Management
Strategy (Apr. 20, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/; L.A. Declaration Fact
Sheet.
---------------------------------------------------------------------------
The United States Government is expanding its efforts to protect
refugees, those seeking asylum, and those fleeing civil conflict. Since
FY 2020, the United States has increased its annual refugee admissions
ceiling eightfold and expanded refugee processing within the Western
hemisphere.\149\ On April 27, 2023, DHS and the Department of State
announced that they would commit to referring for resettlement
thousands of additional refugees per month from the Western
Hemisphere--with the goal of doubling the number of refugees the United
States committed to welcome as part of the L.A. Declaration.\150\
Similarly, DHS and the Department of State recently announced
enhancements to the Central American Minors Refugee and Parole Program,
which expands eligibility criteria for those who may request USRAP
access for qualifying children.\151\ DHS has also implemented
comprehensive processes to facilitate the lawful, safe, and orderly
migration of CHNV nationals by introducing the CHNV parole
processes.\152\ Additionally, DHS has recently implemented special
lawful processes for nationals of Ukraine.\153\
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\149\ Compare Presidential Determination on Refugee Admissions
for Fiscal Year 2021, 85 FR 71219 (Nov. 6, 2020) (15,000), with
White House, Memorandum on Presidential Determination on Refugee
Admissions for Fiscal Year 2023 (Sept. 27, 2022), https://www.whitehouse.gov/briefing-room/presidential-actions/2022/09/27/memorandum-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2023/ (125,000).
\150\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
\151\ Notice of Enhancements to the Central American Minors
Program, 88 FR 21694 (Apr. 11, 2023).
\152\ See USCIS, Frequently Asked Questions About the Processes
for Cubans, Haitians, Nicaraguans, and Venezuelans (Mar. 22, 2023),
https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.
\153\ See DHS, Uniting for Ukraine (Mar. 21, 2023), https://www.dhs.gov/ukraine; DHS, Operation Allies Welcome (Mar. 13, 2023),
https://www.dhs.gov/allieswelcomes.
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iii. Other
Comment: A commenter stated that the rule would allow noncitizens
who entered the United States after lying on a visa petition to remain
eligible for asylum while barring those who never submitted false
information and objected to this outcome as ``absurd.''
Response: The Departments acknowledge the commenter's concern but
reiterate that the purpose of this rulemaking is to address an
anticipated further surge of migration at the SWB following the
expiration of the CDC's Title 42 public health Order, which may
compromise the Departments' ability to process claims for asylum and
related forms of protection in a manner that is effective, humane, and
efficient. The Departments do not anticipate that noncitizens who
attempt to enter on nonimmigrant visas obtained through
misrepresentation will contribute to this surge in any substantial way.
In addition, the Departments disagree with the premise of this
comment. Willful misrepresentations in connection with a nonimmigrant
visa application may affect an applicant's eligibility for asylum or
adjustment of status. Prior misrepresentations to immigration officials
can affect credibility determinations, see INA 208(b)(1)(B)(iii), 8
U.S.C. 1158(b)(1)(B)(iii), and may be negative discretionary factors in
asylum and adjustment of status determinations.\154\ Applicants for
adjustment of status under section 209(b) of the INA, 8 U.S.C. 1159(b),
who have previously sought to obtain immigration benefits through fraud
or willful misrepresentation of material fact are inadmissible under
section 212(a)(6)(C)(i) of the INA, 8 U.S.C. 1182(a)(6)(C)(i), unless
they obtain a discretionary waiver of inadmissibility under section
209(c) of the INA, 8 U.S.C. 1159(c).
---------------------------------------------------------------------------
\154\ See Matter of Pula, 19 I&N Dec. 467, 473 (BIA 1987)
(finding that the circumvention of immigration laws can be
considered as a negative discretionary factor in asylum
adjudications); USCIS Policy Manual, Volume 7, Adjustment of Status,
Part A, Adjustment of Status Policies and Procedures, Chapter 10,
Legal Analysis and Use of Discretion [7 USCIS-PM A.10] (Apr. 21,
2023), https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10#footnote-31.
---------------------------------------------------------------------------
Comment: One commenter stated that the application of the
presumption against asylum eligibility at the credible fear stage would
lead to absurd and irrational results. As an example, the commenter
stated a noncitizen may admit to terrorism in their home country and
still receive a positive credible fear determination, whereas a
noncitizen subject to the rule who fails to rebut the presumption would
receive a negative determination.
Response: The Departments strongly dispute the commenter's
suggestion that noncitizens who admit to terrorism would receive
superior treatment than noncitizens who are subject to the rule.
Noncitizens subject to the INA's terrorism-related inadmissibility
grounds (``TRIG''), see INA 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B), may
not be ordered released by an IJ during removal proceedings
irrespective of any relief
[[Page 31367]]
from removal for which they may be eligible. INA 236(c), 8 U.S.C.
1226(c); 8 CFR 1003.19(h)(2)(i)(C); INA 241(a)(2), 8 U.S.C. 1231(a)(2);
INA 236A(a), 8 U.S.C. 1226a(a). Noncitizens subject to TRIG are
ineligible for asylum, statutory withholding of removal, or withholding
of removal under the CAT, absent a discretionary exemption from DHS,
INA 208(b)(2)(v), 8 U.S.C. 1158(b)(2)(v); INA 241(b)(3)(B)(iv), 8
U.S.C. 1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2); INA 212(d)(3)(B)(i), 8
U.S.C. 1182(d)(3)(B)(i), as are noncitizens for whom there are
reasonable grounds to regard as dangers to the security of the United
States, INA 208(b)(2)(iv), 8 U.S.C. 1158(b)(2)(iv); INA
241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv); 8 CFR 208.16(d)(2).
Comment: A local government voiced concern that the five-year re-
entry ban if the asylum seeker violates the rule creates additional
roadblocks for the most vulnerable individuals.
Response: The five-year ground of inadmissibility for those ordered
removed following expedited removal proceedings is based on statute,
INA 212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i), and cannot be changed
through administrative rulemaking. This statute applies equally to
noncitizens who are not subject to this rule. Despite prior removal,
noncitizens can still seek statutory withholding of removal or
protection under the CAT within the five-year period. See INA
241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 1208.16.
C. Alternatives and Other General or Mixed Feedback
1. Address Root Causes of Migration
Comment: A number of commenters requested additional information on
the Administration's ongoing efforts to address the root causes of
migration, and suggested that, instead of implementing this rule, the
United States should focus on providing economic, social, and political
support to the countries from which the migrants are fleeing. Another
commenter stated that long-term solutions are needed, such as investing
in regional stability and humanitarian aid that contribute to human
security, addressing the precursors of forced migration, and
diminishing the threats that put vulnerable communities at risk. Some
commenters suggested that there should be a comprehensive plan to both
improve the conditions in Latin American and Caribbean countries by
eliminating U.S. sanctions, as well as ``offering asylum to large
groups of refugees'' in the United States. Commenters also stated that
we should devote more resources to helping people from countries such
as Haiti, Venezuela, and other Central American countries. Similarly,
commenters stated that the United States should provide additional aid
to the region and promote democratic values and good governance with an
eye towards creating meaningful reforms, particularly in areas that
drive irregular migration such as corruption and lack of opportunity.
Other commenters stated that in determining eligibility for asylum, the
proposed rule would fail to consider significant dangers such as gang
violence, starvation, and natural disasters. A commenter expressed
further concern that the proposed rule attempts to control the border
by reducing the number of USBP encounters with migrants, reasoning that
this approach would not address the root cause of increased migration.
One commenter stated that, while deterrence programs may result in
temporary dips in the number of people presenting or apprehended at the
border, they have no long-term effect because they do not address the
root causes forcing people from their homes. Another commenter stated
that for many individuals, fleeing their countries in haste and without
resources is not optional and they will continue to do so unless the
situation in their countries changes. Another commenter stated that the
United States should support Latin and Central American governments'
capacity to strengthen humanitarian protections and migration
management systems by investing in technical assistance and
institutional capacity and investing in sustainable infrastructural
needs and social safety nets (including education, stable employment,
public safety, and economic support) in Mexico and Central America.
Response: The Departments agree that the United States must
consistently engage with partners throughout the Western Hemisphere to
address the hardships that cause people to leave their homes and come
to our border. The migratory trends at the SWB today will persist long
into the future if the root causes of migration are not addressed. The
United States has been engaging with regional partners to address the
root causes of migration, but this rule is nonetheless necessary to
address a potential surge of migrants at the SWB in the near term.
In June 2022, the United States partnered with 19 other countries
in the Western Hemisphere in endorsing the L.A. Declaration, which
asserts ``the need to promote the political, economic, security,
social, and environmental conditions for people to lead peaceful,
productive, and dignified lives in their countries of origin. Migration
should be a voluntary, informed choice and not a necessity.'' \155\ In
addition, nations including the United States committed to implementing
programs to stabilize communities hosting migrants and asylum seekers,
providing increased lawful pathways and protections for migrants and
asylum seekers residing in or traveling through their countries, and
humanely enforcing existing immigration laws.\156\
---------------------------------------------------------------------------
\155\ The White House, Los Angeles Declaration on Migration and
Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
\156\ Id.
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Earlier, in July 2021, the United States began working closely with
countries in Central America to prioritize and implement a strategy
that addresses the root causes of irregular migration with the desired
end-state being ``a democratic, prosperous, and safe Central America,
where people advance economically, live, work, and learn in safety and
dignity, contribute to and benefit from the democratic process, have
confidence in public institutions, and enjoy opportunities to create
futures for themselves and their families at home.'' \157\ At the same
time, the United States also presented the CMMS, which aims to advance
safe, orderly, legal, and humane migration, including access to
international protection for those in need throughout North and Central
America.\158\ On April 27, 2023, DHS and the Department of State
announced plans to establish regional processing centers and expand
refugee resettlement commitments in the region.\159\ Existing high
levels of irregular migration, however, make clear that such efforts
are, on their own, insufficient in the near term to fundamentally
influence migrants' decision-making, to reduce the risks associated
with current levels of irregular migration and the anticipated further
surge of migrants to the border after the Title 42 public health Order
is terminated, or to protect migrants from human smugglers that profit
from their vulnerability. See 88 FR at 11716. The United States will
continue to work with our regional
[[Page 31368]]
partners to manage migration across the Hemisphere.
---------------------------------------------------------------------------
\157\ See, e.g., National Security Council, U.S. Strategy for
Addressing the Root Causes of Migration in Central America 5 (July
2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
\158\ See, e.g., The White House, Fact Sheet: The Collaborative
Migration Management Strategy (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/.
\159\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
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2. Prioritize Funding and Other Resources
Comment: Many commenters urged the Government to prioritize
funding, other resources, or alternative policies, reasoning that these
would make border processing and asylum adjudications more effective
and efficient. Some commenters focused on funding, suggesting that the
Government should request additional funding from Congress, that the
Departments should be prioritizing funding and staffing for the HHS,
Office of Refugee Resettlement, USCIS, and U.S. immigration courts, or
that the Government should prioritize investing in community-based
alternatives, including robust funding and expansion of asylum
processing at POEs and investment in NGOs and civil society
organizations.
Other commenters suggested more generally that the Government
devote other resources to immigrant arrivals. For example, one
commenter said that DHS should focus on ``increasing the number of
resources at the SWB to safely and fairly process the influx of
migration at the border itself,'' including creating shelters near the
southern border for noncitizens without family and friends to support
them while they await processing of their claim. Another commenter,
however, instead suggested that asylum seekers be transferred to
communities throughout the United States, along with resources to
ensure that asylum seekers and receiving communities are supported. One
commenter stated that, instead of the proposed rule, DHS should train
border officials to identify asylum claims or assess credible fear.
Conversely, another commenter stated that more AOs, not CBP officers,
are needed to interview asylum seekers. Commenters also stated the
Departments should address significant failures in structure,
functioning, and processing through staffing, budget review, training
for AOs and judges to reduce appeals, training for DHS attorneys about
docket management, and other means.
Another commenter requested that DHS consider ``improving border
infrastructure for high volume facilities,'' and noted that DHS did not
explain why it lacked the infrastructure, personnel, and funding to
sustain processing levels of high numbers of migrants. One commenter
expressed concern that CBP does not have sufficient resources in
sectors along the SWB to patrol the border and detain migrants and
expressed concern about the number of migrants who successfully evade
USBP and enter the country.
Some commenters suggested alternative policy proposals to pursue
instead of the proposed rule. For example, commenters recommended that
DHS widely advertise the need for sponsors for asylum seekers and
facilitate their applications for sponsorship. One commenter suggested
providing additional resources to Mexico and other transit countries to
improve their asylum-processing capacities.
Response: The Departments acknowledge commenters' suggestions for
increasing resources, both financial and otherwise, to account for
migrant arrivals at the SWB. The Departments first note that they have
already deployed additional personnel, technology, infrastructure, and
resources to the SWB and that additional financial support would
require additional congressional actions, including significant
additional appropriations, which are outside of the scope of this
rulemaking. The Departments agree with commenters that additional
resources would provide benefits for managing the border. The
Departments have, for example, significantly increased hiring of AOs
and IJs over the past decade.\160\ AOs and IJs possess experience in
handling asylum and related adjudications; receive regular trainings on
asylum-related country conditions and legal issues, as well as non-
adversarial interviewing techniques; and have ready access to country-
conditions experts.\161\ However, it is not feasible for the
Departments to quickly hire sufficient qualified personnel or increase
other resources to efficiently, effectively, and fairly handle the
volume of encounters projected by May 2023, when a further surge of
migrants to the SWB is expected following the lifting of the Title 42
public health Order.
---------------------------------------------------------------------------
\160\ EOIR, Adjudication Statistics: Immigration Judge Hiring
(Jan. 2023), https://www.justice.gov/eoir/page/file/1242156/download; Citizenship and Immigration Services Ombudsman, Annual
Report 2020 at 45 (June 30, 2020), https://www.dhs.gov/sites/default/files/publications/20_0630_cisomb-2020-annual-report-to-congress.pdf.
\161\ See 8 CFR 208.1(b).
---------------------------------------------------------------------------
Furthermore, the Departments note that they are leading ongoing
Federal Government efforts to support NGOs and local and state
governments as they work to respond to migratory flows impacting their
communities. As noted in the NPRM, FEMA spent $260 million in FYs 2021
and 2022 on grants to non-governmental and state and local entities
through the EFSP-H to assist migrants arriving at the SWB with shelter
and transportation. See 88 FR at 11714. In November 2022, FEMA released
$75 million through the program, consistent with the Continuing
Appropriations and Ukraine Supplemental Appropriations Act, 2023.\162\
In addition, the Bipartisan Year-End Omnibus, which was enacted on
December 29, 2022, directed CBP to transfer $800 million in funding to
FEMA to support sheltering and related activities for noncitizens
encountered by DHS. The Omnibus authorized FEMA to utilize this funding
to establish a new Shelter and Services Program and to use a portion of
the funding for the existing EFSP-H, until the Shelter and Services
Program is established.\163\ On February 28, 2023, DHS announced a $350
million funding opportunity for EFSP-H.\164\ This is the first major
portion of funding that is being allocated for humanitarian assistance
under the Omnibus funding approved in December.\165\ For the new
Shelter and Services Program, FEMA and CBP have held several public
listening sessions and are developing plans to release a Notice of
Funding Opportunity prior to September 2023 for the second major
portion of funding allocated by Omnibus to assist migrants encountered
by DHS.
---------------------------------------------------------------------------
\162\ Public Law 117-180, Division A, sec. 101(6), 131 Stat.
2114, 2115.
\163\ Public Law 117-328, Division F, Title II, Security
Enforcement, and Investigations, U.S. Customs and Border Protection,
Operations and Support.
\164\ See DHS, Press Release, The Department of Homeland
Security Awards $350 Million for Humanitarian Assistance Through the
Emergency Food and Shelter Program (Feb. 28, 2023), https://www.dhs.gov/news/2023/02/28/department-homeland-security-awards-350-million-humanitarian-assistance-through; DHS Grant Opportunity DHS-
23-DAD-024-00-03, Fiscal Year 2023 Emergency Food and Shelter
National Board Program--Humanitarian (EFSP) ($350M) (Feb. 28, 2023),
https://www.grants.gov/web/grants/view-opportunity.html?oppId=346460.
\165\ Id.
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Additionally, on April 27, 2023, DHS announced that it has awarded
more than $135 million to communities to date this fiscal year and will
award an additional $290 million in the coming weeks.\166\ The
Departments are also ramping up coordination between state and local
officials and other Federal agencies to provide resources, technical
assistance, and support, including through regular information sessions
with stakeholders to ensure that the program is broadly understood and
the funds are accessible.\167\ The Departments will continue to
mobilize
[[Page 31369]]
faith-based and non-profit organizations supporting migrants, including
those providing temporary shelter, food, transportation, and
humanitarian assistance as individuals await the outcome of their
immigration proceedings.\168\
---------------------------------------------------------------------------
\166\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
\167\ See id.
\168\ See id.
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With regard to CBP resources at the border, CBP continues to
increase facility capacity and to look to new facilities to further
expand capacity. See 88 FR at 11714. In addition, CBP continues to take
steps to facilitate more efficient processing of encountered migrants
so that agents are able to remain in the field and patrol the border.
For example, USBP has deployed non-uniformed Border Patrol Processing
Coordinators (``BPPCs''), who can provide crucial support to USBP
facilities, including humanitarian care to individuals in custody,
transportation, and processing assistance.\169\ As of March 15, 2023,
USBP had hired 961 BPPCs, with more individuals in the hiring
process.\170\ Additionally, CBP has invested in virtual and mobile
processing technologies, which enables USBP agents and officers to
assist SWB sectors without needing to be physically present in these
locations.\171\ All of these steps enable USBP agents to return to the
field to conduct their law enforcement duties, while ensuring safe
conditions for individuals in custody. However, as noted in the NPRM,
the increased numbers of migrants entering the United States--and the
anticipated surge following the lifting of the Title 42 public health
Order--will continue to strain CBP resources. See 88 FR at 11706. Thus,
the Departments believe that this rule is necessary to disincentivize
migrants from attempting to enter the United States without
authorization.
---------------------------------------------------------------------------
\169\ Testimony of Raul Ortiz, ``Failure by Design: Examining
Sec'y Mayorkas' Border Crisis'' (Mar. 15, 2023), https://www.cbp.gov/about/congressional-resources/testimony/Ortiz-CHS-15MAR23.
\170\ Id.
\171\ Id.
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The Departments do not agree with commenters' suggestions that
alternative policies should be pursued in place of this rule. For
example, advertising the need for asylum sponsors would not
sufficiently address the anticipated influx of migration at the SWB.
The Departments have created, and continue to expand, lawful pathways
to enter the United States, which will be available alongside this rule
to encourage the use of all lawful pathways and discourage irregular
migration to the United States. In contrast, were the Departments to
take a hiring-only approach that does not expand lawful pathways or
consequences for unlawful entry, the Departments estimate that
irregular arrivals would likely increase after the expiration of the
Title 42 public health Order, adding to the current backlog of asylum
cases. Such a policy would likely have no immediate effect on arrivals
at the SWB, necessitating continued surges of DHS resources to POEs and
the SWB to support processing.
The Departments note that the rule requires collaboration across
the Departments. CBP, USCIS, and DOJ are all part of the whole-of-
government approach necessary to address irregular migration and ensure
that the U.S. asylum system is fair, orderly, and humane. The
Departments acknowledge comments suggesting that CBP officials should
be trained to conduct credible fear screenings. The Asylum Processing
IFR clarified that a ``USCIS asylum officer'' will conduct the credible
fear interview. 8 CFR 208.30(d). This is consistent with the INA, which
specifies that only AOs (as opposed to immigration officers) conduct
credible fear interviews, see INA 235(b)(1)(B)(i), 8 U.S.C.
1225(b)(1)(B)(i); 8 CFR 208.30(d), and make those determinations, see
INA 236(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii); see also 8 CFR
208.30(c) through (e); 87 FR at 18136. AOs 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 non-adversarial interviewing techniques; and have
ready access to country conditions experts. See 87 FR at 18136. As
noted above, hiring of additional AOs is ongoing, and DHS recently
announced that it is surging AOs to complete credible fear interviews
at the SWB more quickly.\172\
---------------------------------------------------------------------------
\172\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
---------------------------------------------------------------------------
Comment: Some commenters suggested that DHS should better utilize
or increase its detention capacity to account for the anticipated
migratory flow, as an alternative to the approach adopted in this rule.
One commenter suggested that DHS increase its detention capacity to
account for the mandatory detention requirements at section
235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), and to better
use the capacity it has, citing unused detention space in the summer of
2021. The same commenter noted that section 212(d)(5)(A) of the INA, 8
U.S.C. 1182(d)(5)(A), allows DHS to parole noncitizens into the United
States in limited circumstances, but claimed that the proposed rule
makes parole the default and detention the exception, contrary to
statute. The commenter argued that expanded use of detention would
serve as a greater deterrent than this rule and objected to a reduction
in detention capacity it identified in the Administration's FY 2024
budget. Similarly, another commenter stated that the Departments should
request from Congress the resources necessary to expand detention
centers' capacity to handle the current migratory flow.
Response: To the extent that the commenters are contending that DHS
is capable of obtaining bedspace sufficient for detaining all
inadmissible noncitizens predicted to enter the United States who could
potentially be subject to detention pursuant to section
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), following the lifting of
the Title 42 public health Order, the Departments strongly disagree.
DHS's ability 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. In addition, there are capacity restrictions at
individual facilities imposed for a variety of reasons ranging from
public health requirements to court-ordered limitations that also
constrain the availability of detention space.
The Departments also disagree with the commenter's assertion that
this rule makes parole the default. This rule does not address parole
or change DHS's detention practices. Rather, this rule creates a
rebuttable presumption regarding eligibility for asylum.
3. Further Expand Refugee Processing or Other Lawful Pathways
Comment: Several commenters suggested increasing access to
protection and improving processes to encourage noncitizens to seek
asylum in lawful and orderly ways, but without imposing a condition on
eligibility for asylum for noncitizens who fail to do so. Commenters
suggested that the United States should expand regional refugee
processing, increase asylum processing and humanitarian programs, and
expand and create new lawful pathways, in lieu of pursuing the proposed
rule. One commenter said the Administration should use Temporary
Protected Status broadly, including for the countries focused on in the
proposed rule and other countries
[[Page 31370]]
where safe return is impossible. Others recommended creating viable
alternatives to asylum for lawful admission to the United States,
including decreasing waits for family-based immigration or increasing
and streamlining migration opportunities based on skilled labor, citing
the Canadian Federal Skilled Worker Express Entry policy as a
successful example. Another commenter stated that the Departments
should consider policies facilitating fast-track arrival in the United
States, including quickly approved in-country visas and widely
available humanitarian parole, and streamlining asylum regulations to
more broadly encompass the types of dangers and persecution migrants
are fleeing today.
Response: The United States has made and will continue to make
extensive efforts to expand refugee processing and lawful pathways
generally. See Section IV.B.2.i of this preamble. For example, on April
27, 2023, DHS and the Department of State announced they will establish
regional processing centers in several countries in the Western
Hemisphere, including Guatemala and Colombia, ``to reduce irregular
migration and facilitate safe, orderly, humane, and lawful pathways
from the Americas.'' \173\ Individuals from the region will be able to
make an appointment to visit the nearest regional processing center
before traveling, receive an interview with immigration specialists,
and if eligible, be processed rapidly for lawful pathways to the United
States, Canada, and Spain, including USRAP.\174\ Existing levels of
unlawful migration, however, make clear that such efforts are, on their
own, insufficient in the near term to change the incentives of
migrants, reduce the risks associated with current levels of irregular
migration and the anticipated surge of migrants to the border, and
protect migrants from human smugglers that profit from their
vulnerability. See 88 FR at 11716. The Departments' recent experience
has shown that an increase in lawful pathways coupled with consequences
for not using such pathways can significantly--and positively--affect
behavior and undermine smuggling networks, as described in Section II.A
of this preamble. The Departments also note that while they will
consider the commenters' specific suggestions for other lawful pathways
or alternatives for entry to the United States, this rule does not
create, expand, or otherwise constitute the basis for any lawful
pathways.
---------------------------------------------------------------------------
\173\ DHS, New Actions to Manage Regional Migration (Apr. 27,
2023).
\174\ See id.
---------------------------------------------------------------------------
4. Require Migrants To Wait in Mexico or Other Countries
Comment: Some commenters stated that the United States should
reimplement the MPP, with one stating that MPP caused a drop in border
crossings. A commenter argued that reinstating MPP would have all the
benefits that the Departments are seeking to achieve via the proposed
rule, but without the rule's downsides, which the commenter argued
include increasing incentives for irregular migration. The commenter
also stated that the Departments' justifications for ending MPP,
including a lack of infrastructure and cooperation from Mexico, are
insufficient, arguing that if attempted border crossings are deterred
by MPP then many fewer resources will be required, and that the
Administration has not sufficiently explained why Mexico would not be
willing to cooperate with a reimposition of MPP when it agreed to do so
in the recent past. Another commenter suggested that MPP should be
restarted and the United States pay for safe housing and food for
migrants who are waiting in Mexico during their legal proceedings.
Response: The Departments disagree with commenters' contentions
that the explanation given in the NPRM regarding why the Departments
are not reinstituting MPP is insufficient. See 88 FR at 11731. The
Secretary of Homeland Security weighed the full range of MPP's costs
and benefits, explaining, among other things, that MPP is not the best
tool for deterring unlawful migration; that MPP exposes migrants to
unacceptable risks to their physical safety; and that MPP detracts from
the Executive's efforts to manage regional migration. Moreover, given
the Departments' knowledge and understanding of their own resources and
infrastructure constraints, as well as the Government of Mexico's
statement on February 6, 2023, affirming its willingness to cooperate
in international agreements relating to refugees (including the L.A.
Declaration) and endorsing lawful pathways, including the CHNV
processes,\175\ the Departments continue to believe that promulgation
of this rule is the appropriate response to manage and avoid a
significant further surge in irregular migration after the Title 42
public health Order is lifted.
---------------------------------------------------------------------------
\175\ Government of Mexico, SRE rechaza reimplementaci[oacute]n
de estancias migratorias en M[eacute]xico bajo la secci[oacute]n
235(b)(2)(C) de la Ley de EE.UU. (Feb. 6, 2023), https://www.gob.mx/sre/prensa/sre-rechaza-reimplementacion-de-estancias-migratorias-en-mexico-bajo-la-seccion-235-b-2-c-de-la-ley-de-inmigracion-y-nacionalidad-de-eeuu.
---------------------------------------------------------------------------
As explained in the NPRM, programmatic implementation of the
contiguous-territory return authority requires Mexico's concurrence and
ongoing support and collaboration. See 88 FR at 11731. When DHS was
previously under an injunction requiring it to re-implement MPP, the
Government of Mexico would only accept the return of MPP enrollees
consistent with available shelter capacity in specific regions, and
indeed had to pause the process at times due to shelter constraints.
Notably, Mexico's shelter network is already strained from the high
volume of northbound irregular migration happening today. In February
2023, the Government of Mexico publicly announced its independent
decision that it would not accept the return of individuals pursuant to
section 235(b)(2)(C) of the INA, 8 U.S.C. 1225(b)(2)(C).\176\
---------------------------------------------------------------------------
\176\ Id.
---------------------------------------------------------------------------
Additionally, the resources and infrastructure necessary to use
contiguous-territory return authority at the scale that would be
required given current and anticipated flows are not currently
available. To employ the contiguous-territory return authority at a
scale sufficient to meaningfully address the anticipated migrant flows,
the United States would need to rebuild, redevelop, and significantly
expand infrastructure for noncitizens to be processed in and out of the
United States and attend immigration court hearings throughout the
duration of their removal proceedings. This would require, among other
things, the construction of substantial additional court capacity along
the border. It would also require the reassignment of IJs and ICE
attorneys to conduct the hearings and CBP personnel to receive and
process those who are corning into and out of the country to attend
hearings.
Comment: Other commenters suggested numerous ideas that would
require migrants to wait for cases to be heard outside the United
States or to create additional opportunities to apply for asylum from
outside of the United States. One commenter suggested that the United
States allow asylum seekers to present themselves at embassies, refugee
camps, or U.S. military bases to make their claims without the need to
undertake the dangerous journey to the U.S. border. A commenter
suggested setting up a controlled process to allow a fixed number of
migrants into the United States this year, managed through embassies
abroad, and stated
[[Page 31371]]
that it is inhumane to allow migrants to travel to the border only to
turn them down. The same commenter also stated that such a controlled
process would stop trafficking, drugs, and criminals from entering the
country.
Commenters suggested implementing remote teleconferencing
technology so that credible fear interviews could be conducted over
Zoom or another platform from outside the United States in lieu of
using the CBP One app to make appointments, with at least one
suggesting that if the migrant's credible fear claim is accepted, they
be sent an email stating that the migrant can be granted humanitarian
parole into the United States for a final asylum hearing. Another
commenter suggested that, instead of implementing this rule, DHS should
create a virtual application and video hearing system that would allow
migrants to apply and be processed for asylum while still abroad. At
least one commenter suggested that migrants be given a temporary work
card and ID and be required to pay a penalty tax and U.S. taxes to
cover the expenses of managing immigration services. At least one
commenter suggested creating a single border crossing dedicated to
processing asylum claims, similar to the historical practice at Ellis
Island.
Response: Pursuant to section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1), only noncitizens who are ``physically present in the United
States or who arrive[] in the United States'' can apply for asylum.
Similarly, the expedited removal provisions in section 235(b)(1) of the
INA, 8 U.S.C. 1225(b)(1), apply only to noncitizens within the United
States. Thus, while credible fear interviews may be conducted remotely
(i.e., telephonically), such interviews cannot be conducted for those
who are abroad and have not--as required for such interviews--entered
the United States, been processed for expedited removal, and asserted a
fear of persecution or torture or of return to their country or an
intention to apply for asylum.\177\ In any event, the intent of this
rule is to address the expected surge of migration following the
lifting of the Title 42 public health Order on May 11, 2023.
Commenters' suggestion that the Departments should create opportunities
for noncitizens who have not entered the United States to apply for
asylum at U.S. embassies, military bases, a virtual application abroad,
or other locations, even if legally available, would not be available
in the short-term or at the scale that would be required given current
and anticipated flows. Similarly, creating a single border crossing
dedicated to processing asylum claims, even if legally permissible,
would not be operationally feasible, particularly in the short term.
---------------------------------------------------------------------------
\177\ See INA 235(b)(1), 8 U.S.C. 1225(b)(1).
---------------------------------------------------------------------------
However, as noted elsewhere in this document, USRAP is expanding
its operations in the Western Hemisphere, which is the appropriate
pathway for noncitizens outside the United States to seek admission as
a refugee. See INA 207, 8 U.S.C. 1157. On April 27, 2023, DHS and the
Department of State announced that the United States Government in
cooperation with other countries of the L.A. Declaration will establish
regional processing centers in several locations throughout the Western
Hemisphere to reduce irregular migration.\178\ The United States
Government will commit to welcoming thousands of additional refugees
per month from the Western Hemisphere--with the goal of doubling the
number of refugees the United States as part of the L.A.
Declaration.\179\ The Departments also note that Congress has provided
that asylum applicants may receive employment authorization no less
than 180 days subsequent to the filing of their asylum application. See
INA 208(d)(2), 8 U.S.C. 1158(d)(2). Additionally, it is not within the
Departments' authority to impose taxes.
---------------------------------------------------------------------------
\178\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
\179\ See id.
---------------------------------------------------------------------------
5. Additional Measures
Comment: Commenters suggested that the United States adopt more
restrictive measures instead of this rule, such as requiring all SWB
arrivals to seek asylum in Mexico first; requiring all migrants to be
returned to their country of origin for two years to wait for their
cases to be heard; or creating a bar to asylum for those who are denied
asylum in other countries. Another commenter recommended that the rule
require that a migrant must seek and be denied protection in each
country through which they travel, rather than just one country.
One commenter suggested that the President should use the authority
provided by section 212(f) of the INA, 8 U.S.C. 1182(f), to suspend the
entry of migrants in order to address the border crisis. This commenter
also suggested that DHS make efforts to enforce all deportation orders,
expand the use of expedited removal to the fullest extent authorized by
Congress, and post ICE agents in courtrooms to immediately enforce
removal orders.
Another commenter suggested the rule should also apply to the
Northern border and the maritime borders of the United States.
Response: The Departments acknowledge the commenters' suggestions
but do not believe the alternatives proposed by the commenters are
suitable to address operational concerns or meet the Departments'
policy objectives.
As an initial matter, a categorical requirement that all
individuals arriving at the SWB seek asylum in Mexico first would be
inconsistent with the United States' ongoing efforts to share the
responsibility of providing asylum and other forms of protection with
the United States' regional partners. The United States Government
remains committed to working with regional partners to jointly address
historic levels of migration in the hemisphere and will continue to
engage with the governments of Mexico and other regional partners to
identify and implement solutions. Furthermore, there may be individuals
for whom Mexico is not a safe alternative.
The Departments disagree with the commenter's suggestion that
noncitizens be required to seek and be denied protection in each
country through which they travel. Mexico or other countries through
which certain individuals travel en route to the United States may not
be a safe alternative for particular individuals, as discussed
elsewhere in this preamble, see Sections IV.B.4.vii and IV.E.3.iv.d-
(e). The rule therefore strikes a balance: It provides an exception
from its presumption of ineligibility for individuals who seek and are
denied protection in a third country, but it recognizes that for some
individuals, particular third countries--or even all third countries--
may not be a viable option. The rule therefore provides additional
exceptions and rebuttal grounds for the presumption of ineligibility it
creates.
Additionally, U.S. obligations under international and domestic law
prohibit returning noncitizens to a country where their life or freedom
would be threatened because of a protected ground, or where they would
be subject to torture.\180\ DHS cannot remove a
[[Page 31372]]
noncitizen without first obtaining a removal order and cannot remove a
noncitizen to a country about which the noncitizen has expressed fear
of return without first determining whether they are entitled to
protection pursuant to the withholding of removal statute and the
regulations implementing the CAT.
---------------------------------------------------------------------------
\180\ INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.16,
1208.17. The Departments note that 8 CFR 208.16(b)(3), 1208.16(b)(3)
were amended by the by Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274
(December 11, 2020), which was preliminarily enjoined and its
effectiveness stayed before it became effective. See Pangea Legal
Servs. v. U.S. Dep't of Homeland Sec., 512 F. Supp. 3d 966, 969-70
(N.D. Cal. 2021) (``Pangea II'') (preliminarily enjoining the rule).
Similarly, 8 CFR 208.16(e), 1208.16(e) were removed by the Criminal
Asylum Bars Rule, Procedures for Asylum and Bars to Asylum
Eligibility, 85 FR 67202 (Oct. 21, 2020), which was also
preliminarily enjoined. Pangea Legal Servs. v. U.S. Dep't of
Homeland Sec., 501 F. Supp. 3d 792, 827 (N.D. Cal. 2020). These
orders remain in effect, and thus the 2020 version of these
provisions--the version immediately preceding the enjoined
amendments--are currently effective. The current version of 8 CFR
208.16 is effective with regard to all other provisions of that
section.
---------------------------------------------------------------------------
The Departments disagree with the recommendation to establish a bar
to asylum for those who are denied asylum in other countries. Those
denials may be due to a variety of factors unrelated to the applicant's
underlying claim, such as the foreign country's unique restrictions on
asylum. Furthermore, such a proposal could discourage asylum seekers
from applying for asylum in other countries, since a denial from other
countries would result in the harsher consequence of also being
ineligible for asylum in the United States.
Regarding the suggestion to suspend entry pursuant to section
212(f) of the INA, 8 U.S.C. 1182(f), the Departments note that
suspension of entry requires a presidential proclamation, which is
beyond the Departments' authorities. With this rule, which is fully
consistent with domestic and international legal obligations, the
Departments are exercising their authorities to address current and
expected circumstances at the SWB, to avoid unduly negative
consequences for noncitizens, to avoid unduly negative consequences for
the U.S. immigration system, and to provide ways for individuals to
seek protection in the United States and other countries in the region.
88 FR at 11730.
Separate from this rulemaking, DHS has been increasing and
enhancing the use of expedited removal for those noncitizens who cannot
be processed under the Title 42 public health Order.\181\ The
Departments have been dedicating additional resources, optimizing
processes, and working with the Department of State and countries in
the region to increase repatriations.\182\ On April 27, 2023, DHS
announced that the United States, in coordination with regional
partners, has dramatically scaled up the number of removal flights per
week, which will double or triple for some countries.\183\ With this
increase in removal flights, migrants who cross the U.S. border without
authorization and who fail to qualify for protection should expect to
be swiftly removed and subject to at least a five-year bar to returning
to the United States.\184\ Regarding the suggestion to expand the use
of expedited removal, the Departments note that this rule works in
conjunction with expedited removal, as the rebuttable presumption will
be applied during credible fear interviews for noncitizens placed in
expedited removal after claiming a fear. To the extent that the
commenter is suggesting that the Secretary should exercise his ``sole
and unreviewable discretion'' to extend expedited removal proceedings
to certain other categories of noncitizens who have not shown that they
have been physically present in the United States for two years, that
suggestion lies outside the scope of this rulemaking. See INA
235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).\185\ Finally, the
Departments note the process for taking noncitizens into custody for
the execution of removal orders also is beyond the scope of this rule.
---------------------------------------------------------------------------
\181\ DHS, Press Release, DHS Continue to Prepare for End of
Title 42; Announces New Border Enforcement Measures and Additional
Safe and Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
\182\ See id.
\183\ See DHS, New Actions to Manage Regional Migration (Apr.
27, 2023).
\184\ See id.
\185\ Section 235 of the INA continues to refer to the Attorney
General, but the Homeland Security Act of 2002 (HSA), Public Law
107-296, 116 Stat. 2135, transferred immigration enforcement
authorities to the Secretary of Homeland Security and provided that
any reference to the Attorney General in a provision of the INA
describing functions that were transferred from the Attorney General
or other Department of Justice officials to DHS by the HSA ``shall
be deemed to refer to the Secretary'' of Homeland Security. 6 U.S.C.
557 (codifying HSA sec. 1517); see also 6 U.S.C. 542 note; 8 U.S.C.
1551 note.
---------------------------------------------------------------------------
With respect to a commenter's suggestion that the rule apply to the
Northern border, the Departments do not currently assess that
application of the rebuttable presumption to such entries is necessary
at the U.S.-Canada land border. With limited exceptions, these
noncitizens are ineligible to apply for asylum in the United States due
to the safe-third-country agreement with Canada, see INA 208(a)(2)(A),
8 U.S.C. 1158(a)(2)(A); 8 CFR 208.30(e)(6), and the United States is
implementing other measures to address irregular migration at that
border, such as the Additional Protocol of 2022 to the STCA between the
United States and Canada. The Additional Protocol expands the STCA to
apply to migrants who claim asylum or other protection after crossing
the U.S.-Canada border between POEs. Under the STCA, migrants who cross
from Canada to the United States, with limited exceptions, cannot
pursue an asylum or other protection claim in the United States and are
instead returned to Canada to pursue their claim.\186\
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\186\ See 8 CFR 208.30(e)(6); 8 CFR 1003.42(h); 88 FR 18227;
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum
Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
69480 (Dec. 29, 2004).
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With respect to a commenter's suggestion that the rule apply to
maritime borders, the Departments have determined it is appropriate to
extend the application of the rebuttable presumption not only to the
U.S.-Mexico southwest land border, but also to adjacent coastal
borders. The term ``adjacent coastal borders'' refers to any coastal
border at or near the U.S.-Mexico border. This modification therefore
means that the rule's rebuttable presumption of ineligibility for
asylum applies to noncitizens who enter the United States at such a
border after traveling from Mexico and who have circumvented the U.S.-
Mexico land border. Moreover, the Departments are also considering and
requesting comment on whether to apply the rebuttable presumption to
noncitizens who enter the United States at a maritime border without
documents sufficient for lawful admission during the same temporary
time period, whether or not they traveled through a third country, see
Section V of this preamble.
Comment: A commenter also suggested pursuing STCAs with transit
countries as an alternative to the rule, stating that the proposed
rule's reasoning on that point was insufficient. The commenter noted
that the proposed rule stated that STCAs require long negotiations, but
that the proposed rule itself is time-limited to noncitizens who enter
within a two-year period. The commenter also stated that the proposed
rule's claim that STCAs would provide lesser protection to noncitizens
failed to account for the costs to states of allowing such noncitizens
to have their claims adjudicated in the United States.
Response: The Departments agree that STCAs can be an important tool
for managing the border. For example, on March 28, 2023, the
Departments announced an update to the preexisting STCA between the
United States and Canada. See 88 FR at 18227. That rule implemented a
supplement to the U.S.-Canada STCA to extend its application to
individuals who cross between the POEs along the U.S.-Canada shared
border, including certain bodies of water as determined by the United
States and Canada, and make an asylum or other protection claim
relating to fear
[[Page 31373]]
of persecution or torture within 14 days after such crossing. Id.
However, as noted in the NPRM, development of an STCA is a lengthy
process. 88 FR at 11731. The recent supplement to the U.S.-Canada STCA
aptly demonstrates this point; the negotiations that led to the
supplement began in early 2021, over two years prior to its eventual
publication. Id. at 18232. For this reason, the Departments find that
the enactment of this rule is preferable to pursuing additional STCAs
at this time because the Departments need a solution in the immediate
short-term to manage the significant increase in the number of migrants
expected to travel without authorization to the United States after the
termination of the Title 42 public health Order.
Regarding commenters' belief that an STCA could be preferable to
this rule because a STCA would prevent affected noncitizens from having
their claims adjudicated in the United States, the Departments
reiterate that the goal of this rule is to incentivize migrants,
including those intending to seek asylum, to use lawful, safe, and
orderly pathways to enter the United States, or seek asylum or other
protection in another country through which they travel, and they
expect it to reduce the number of noncitizens seeking to cross the SWB
without authorization.
Comment: A commenter suggested amending the rule to prioritize the
cases of noncitizens who follow the lawful pathways outlined in the
NPRM, rather than implementing the rebuttable presumption against those
who do not. This commenter argued that doing so would encourage use of
lawful pathways but not risk returning noncitizens to countries where
they may be persecuted or tortured.
Response: The Departments agree that prioritizing the cases of
those noncitizens who follow lawful, safe, and orderly pathways to
entering the United States may result in some noncitizens with valid
claims to asylum more quickly being granted asylum. However,
noncitizens who do not follow such lawful, safe, and orderly pathways,
including those noncitizens ultimately found ineligible for asylum or
other protection, would continue to wait years for a decision on their
claim for asylum or other protection. As previously noted in this
preamble, the expectation that noncitizens will remain in the United
States for a lengthy period during the adjudication of their claims for
asylum or other protection may drive even more migration to the United
States. Under this rule, such noncitizens, however, will remain in the
United States for less time before a final order is entered in their
case. Furthermore, prioritization alone will not address the need for
quick processing of those who arrive at the SWB and the lack of
resources to do so safely and efficiently. Moreover, the success of the
CHNV parole processes demonstrates that the United States can
effectively discourage irregular migration by coupling incentives for
use of lawful pathways with disincentives to cross the SWB irregularly.
Comment: One commenter recommended the United States advance
dissuasive messaging, including announcements of legal action, against
relatives, friends, and criminal organizations that may promote and
finance migration to the United States. Another commenter recommended
that an education and awareness campaign across the Western Hemisphere
and a clearer definition of the ``significant possibility'' standard
could prove a potent combination of policies to restore the integrity
and manageability of the U.S. asylum system at the SWB, while also
preserving the country's long-standing commitment to humanitarian
values.
Response: The Departments understand and agree with the need for
robust messaging relating to the dangers of irregularly migrating to
the United States SWB. Strengthening regional public messaging on
migration is one of the eight lines of effort outlined in the
CMMS.\187\ In addition, the Departments regularly publicize law
enforcement action and efforts against human trafficking, smuggling,
and transnational criminal organizations that profit from irregular
migration, often in conjunction with partners in the region.\188\ The
Departments intend to continue these efforts once the rule is in place.
---------------------------------------------------------------------------
\187\ The White House, FACT SHEET: The Collaborative Migration
Management Strategy (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/.
\188\ See, e.g., L.A. Declaration Fact Sheet (``The United
States will announce a multilateral `Sting Operation' to disrupt
human smuggling networks across the Hemisphere.'').
---------------------------------------------------------------------------
The Departments acknowledge the commenter's concern regarding the
``significant possibility'' standard but disagree that there is a need
for clarifying regulations on the statutory standard at section
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v). In the context
of the condition established by this rule, however, the Departments
have provided additional clarification regarding the ``significant
possibility'' standard in Section IV.D.1.iii of this preamble.
D. Legal Authority and Background
1. Immigration and Nationality Act
i. Section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1)
Comment: Commenters claim that the proposed rule would violate both
the Refugee Act and the INA. Specifically, commenters cited the Refugee
Act, which they say both contains principles of non-refoulement and
bars any distinction, including based on nationality, for noncitizens
who are ``physically present in the United States or at a land border
or port of entry.'' Refugee Act of 1980, 94 Stat. at 105. Additionally,
commenters stated this proposed rule goes further by adding additional
requirements that did not exist in the Refugee Act and do not exist in
the INA. While some commenters acknowledge and agree that the proposed
rule is within the scope of the Departments' authority and is
consistent with the INA, other commenters expressed concern that the
proposed rule would be contrary to the plain language of section
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), which states, ``Any alien
who is physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival and
including an alien who is brought to the United States after having
been interdicted in international or United States waters),
irrespective of such alien's status, may apply for asylum in accordance
with this section or, where applicable, section 1225(b) of this
title.'' Commenters asserted that the INA does not require those
seeking protection to apply before entering or at a POE or to schedule
an appointment through a website or app in order to make an
application, but instead allows applications from anywhere along the
border. Some commenters described a fundamental right to apply for
asylum for anyone inside the United States. Commenters asserted that
entering the United States either through a POE or across the SWB and
asking for asylum constitutes a ``lawful pathway.'' Another asserted
that the proposed rule effectively creates a new legal framework by
which to evaluate asylum claims in conflict with the statutory process
provided by Congress, while another commenter stated that the proposed
rule will cause confusion among asylum seekers. Commenters stated that
the proposed rule would result in migrants who seek refuge at the SWB
being turned away. At least one commenter asserted that the proposed
rule violates the Refugee Act because it violates the right to uniform
treatment.
[[Page 31374]]
Another commenter described the proposed rule as disparate treatment
based on manner of entry, with particular concern for those who entered
between POEs. Commenters stated that Congress clearly intended to allow
noncitizens to apply for asylum regardless of manner of entry without
requiring that a noncitizen first apply for asylum elsewhere while in
transit. Commenters further asserted that analyzing an asylum
application should focus on the applicant's reasonable fear of
persecution rather than their manner of entry. Commenters similarly
stated that the Departments should not and cannot categorically deny
asylum for reasons unrelated to the merits of the claim itself.
Commenters also asserted that, under Matter of Pula, 19 I&N Dec. 467
(BIA 1987), manner of entry may not be the dispositive factor in
deciding whether a noncitizen is eligible for asylum. Similarly,
commenters argued that Matter of Pula is binding precedent and
precludes consideration of manner of entry over all other factors.
Response: This rule is consistent with U.S. law. As a threshold
response, the rule does not require the Departments to turn away
migrants at the SWB or to categorically deny all asylum applications
filed by migrants who enter the United States from Mexico at the
southwest land border or adjacent coastal borders. Nor does the rule
prohibit any noncitizen from seeking protection solely because of the
manner or location of entry into the United States. Rather, the rule is
a lawful condition on eligibility for asylum, as authorized by section
208(b)(2)(C), (d)(5)(B) of the INA, 8 U.S.C. 1158(b)(2)(C), (d)(5)(B).
In response to comments that the rule violates the non-refoulement
provision of the Refugee Act, as stated elsewhere in this preamble, the
United States has implemented its non-refoulement obligations through
section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and the regulations
implementing CAT protections at 8 CFR 208.16(c), 208.17, 208.18,
1208.16(c), 1208.17, 1208.18, and the conditions provided by this rule
are not a penalty in violation of international law.
Regarding comments that the Refugee Act and subsequent amendments
to the INA provide access to applying for asylum for any noncitizen
``physically present in'' or arriving in the United States, ``whether
or not at a designated port of arrival'' and regardless of status, the
Departments respond that this rule is not inconsistent. INA 208(a)(1),
8 U.S.C. 1158(a)(1); see Refugee Act of 1980, 94 Stat. at 105
(providing that the Attorney General establish ``a procedure for an
alien physically present in the United States or at a land border or
port of entry, irrespective of such alien's status, to apply for
asylum''); Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (``IIRIRA''), Public Law 104-208, 110 Stat. 3009, 3009-690
(amending INA 208(a)(1), 8 U.S.C. 1158(a)(1), to permit any noncitizen
``who is physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival . . .)''
to apply for asylum ``irrespective of'' the noncitizen's immigration
status). Critically, the rule does not prevent anyone from applying for
asylum. IIRIRA separated and distinguished the ability to apply for
asylum from the conditions for granting asylum. Compare INA 208(a)(1),
8 U.S.C. 1158(a)(1), with INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see
also INA 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A) (establishing procedures
for consideration of asylum applications). Section 208(a)(1) of the
INA, 8 U.S.C. 1158(a)(1) retains the ability for most noncitizens who
are physically present in the United States to apply for asylum
irrespective of whether they arrived in the United States at a POE,
except that Congress created three categories of noncitizens who are
barred from making an application. INA 208(a)(2)(A) through (C), 8
U.S.C. 1158(a)(2)(A) through (C).\189\ Separately, Congress provided
``[c]onditions for granting asylum,'' which include six statutory
exceptions to demonstrating eligibility for asylum as well as authority
for the Departments to promulgate additional conditions and limitations
on eligibility for asylum. INA 208(b)(2)(A)(i) through (vi), (C), 8
U.S.C. 1158(b)(2)(A)(i) through (vi), (C).\190\ As some commenters
noted, by creating exceptions to who is eligible to receive asylum and
by authorizing the Departments to create new exceptions to eligibility,
Congress saw nothing inconsistent in barring some individuals who may
apply for asylum from receiving that relief.\191\ See R-S-C v.
Sessions, 869 F.3d 1176, 1187 (10th Cir. 2017).
---------------------------------------------------------------------------
\189\ See INA 208(a)(2)(A) through (C), 8 U.S.C. 1158(a)(2)(A)
through (C) (enumerating: (A) noncitizens who may be removed to a
safe third country pursuant to a bilateral or multilateral
agreement; (B) noncitizens who did not file for asylum within one
year after arriving in the United States unless they demonstrate the
existence of extraordinary or materially changed circumstances; and
(C) noncitizens who previously applied for asylum and had that
application denied unless they demonstrate the existence of
extraordinary or materially changed circumstances).
\190\ See INA 208(b)(2)(A)(i) through (vi), 8 U.S.C.
1158(b)(2)(A)(i) through (vi) (barring asylum for individuals who:
participate in the persecution of others, have been convicted of a
particularly serious crime, have committed a serious nonpolitical
crime outside the United States, are regarded as a danger to the
security of the United States, have engaged in certain terrorism-
related activities, or were firmly resettled in another country
prior to arriving in the United States).
\191\ One important distinction between the exceptions
enumerated in subsection 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2),
and those enumerated in 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), is
that noncitizens who may apply for asylum but may be ineligible due
to a (b)(2)(A) bar on eligibility may seek work authorization while
their application is being adjudicated. 8 CFR 208.7(a)(1). A
noncitizen who is barred from applying, i.e., someone subject to a
subsection (a)(2) bar, cannot obtain work authorization during this
time. Because this rule does not create a bar on applying for asylum
under section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), there is no
inconsistency with the provision of immediate work authorization to
noncitizens who use one of the provided lawful parole processes to
enter the United States and apply for asylum. 88 FR at 11707 n.26.
---------------------------------------------------------------------------
Additionally, under this rule and contrary to commenter assertions,
manner of entry, standing alone, is never dispositive. Cf. E. Bay
Sanctuary Covenant v. Biden (``East Bay III''), 993 F.3d 640, 669-70
(9th Cir. 2021) (enjoining the Proclamation Bar IFR as ``effectively a
categorical ban on migrants who use a method of entry explicitly
authorized by Congress in section 1158(a)''). Rather, the rule provides
that a subset of noncitizens seeking asylum--i.e., those who travel
through a specified third country, enter the United States during a
two-year period after the effective date of the rule, and are not
subject to one of four enumerated categories of excepted individuals,
including those who use an identified lawful pathway to enter the
United States--are subject to a rebuttable presumption of
ineligibility. 8 CFR 208.33(a)(1) through (3), 1208.33(a)(1) through
(3); 88 FR at 11707. This presumption is not categorical, but rather
involves a case-by-case consideration of facts and factors. Indeed, as
discussed in Sections IV.B.2.ii and IV.D.2 of this preamble, the
narrower application and numerous exceptions and methods of rebutting
the presumption demonstrate the differences between the prior,
categorical bars that are now enjoined, and one of which is vacated.
See also Sections IV.E.9 and IV.E.10 of this preamble (removing the TCT
Bar Final Rule and the Proclamation Bar IFR from the CFR).
Furthermore, the rule is within the scope of the Departments'
authority because it adds a condition on eligibility for asylum
permitted under section 208(b)(2)(C), (d)(5)(B) of the INA, 8 U.S.C.
1158(b)(2)(C), (d)(5)(B), not a sweeping categorical bar that would
preclude a grant of asylum solely based
[[Page 31375]]
on manner of entry, which some courts have found to conflict with
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). 88 FR at 11735,
11740. Cf. East Bay III, 993 F.3d at 669-70 (concluding that the
Proclamation Bar was ``effectively a categorical ban'' on migrants
based on their method of entering the United States, and that such a
categorical bar is in conflict with section 208(a)(1) of the INA, 8
U.S.C. 1158(a)(1)). Section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), provides that the Attorney General and Secretary ``may
by regulation establish additional limitations and conditions,
consistent with [section 208], under which an alien shall be ineligible
for asylum.'' Similarly, section 208(d)(5)(B) of the INA, 8 U.S.C.
1158(d)(5)(B), specifies that the Attorney General and Secretary ``may
provide by regulation for any other conditions or limitations on the
consideration of an application for asylum,'' so long as those
conditions or limitations are ``not inconsistent with this chapter.''
See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (establishing certain procedures
for consideration of asylum applications). As the Tenth Circuit
explained, ``carving out a subset of'' noncitizens seeking asylum and
placing a condition or limitation on their asylum applications falls
within the limitations allowed by section 208(b)(2)(C), (d)(5)(B) of
the INA, 8 U.S.C. 1158(b)(2)(C), (d)(5)(B), and is not inconsistent
with section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). R-S-C, 869 F.3d
at 1187 n.9. Precluding such a regulation would ``render 1158(b)(2)(C)
[and (d)(5)(B)] meaningless, disabling the Attorney General from
adopting further limitations while the statute clearly empowers him to
do so.'' Id.
Consistent with this authority, the Departments have promulgated
other limitations or conditions on asylum eligibility, including some
provisions that Congress later adopted and codified in the INA. See
Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392,
37392 (June 2, 1980) (imposing firm resettlement bar); Aliens and
Nationality; Asylum and Withholding of Deportation Procedures, 55 FR
30674, 30678, 30683 (July 27, 1990) (promulgating 8 CFR 208.14(c)
(1990), which provided for mandatory regulatory bars to asylum for
those who have been convicted in the United States of a particularly
serious crime and who constitute a danger to the security of the United
States while retaining a prior regulatory bar to asylum for noncitizens
who have been firmly resettled); Asylum Procedures, 65 FR 76121, 76127
(Dec. 6, 2000) (including internal relocation); see also, e.g., Afriyie
v. Holder, 613 F.3d 924, 934-36 (9th Cir. 2010) (discussing internal
relocation). Restraining the Departments' authority to promulgate
additional limitations and conditions on the ability to establish
eligibility for asylum would be contrary to congressional intent. See
Thuraissigiam, 140 S. Ct. at 1966 (recognizing that the ``theme'' of
IIRIRA ``was to protect the Executive's discretion from undue
interference by the courts'') (alteration and quotation marks omitted);
R-S-C, 869 F.3d at 1187 (reasoning that the ``delegation of authority''
in section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), ``means
that Congress was prepared to accept administrative dilution'' of
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1)); see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 444-45 (1987); 88 FR at 11740.
Regarding comments that the condition created by the rule is
inconsistent with the statute because it does not relate to whether a
noncitizen qualifies as a refugee, the Departments respond that bars,
limitations, and conditions on asylum do not necessarily and need not
directly relate to whether a noncitizen satisfies the definition of a
``refugee'' within the meaning of section 101(a)(42)(A) of the INA, 8
U.S.C. 1101(a)(42)(A), but instead can embrace policy considerations
that justify a finding of ineligibility. See, e.g., Zheng v. Mukasey,
509 F.3d 869, 871 (7th Cir. 2007) (noting that IIRIRA enacted several
provisions, including the one-year bar, ``intended to reduce delays and
curb perceived abuses in removal proceedings''); Ali v. Reno, 237 F.3d
591, 594 (6th Cir. 2001) (recognizing that asylum law ``was never
intended to open the United States to refugees who had found shelter in
another nation and had begun to build new lives'') (internal marks and
quotation omitted); Matter of Negusie, 28 I&N Dec. 120, 125 (A.G. 2020)
(discussing the history of the persecutor bar, and noting that Congress
intended to make ``certain forms of immigration relief,'' including
asylum, ``unavailable to persecutors'').
This rule also does not, contrary to commenter concerns, violate
the Refugee Act by establishing a non-uniform procedure for applying
for asylum. The rule, consistent with the Refugee Act's objective to
provide systematic and comprehensive procedures, establishes procedures
and conditions to support the lawful, orderly processing of asylum
applications. 88 FR at 11704, 11728; see Refugee Act, sec. 101(b), 94
Stat. at 102 (``The objectives of this Act are to provide a permanent
and systematic procedure for the admission to this country of refugees
of special humanitarian concern to the United States, and to provide
comprehensive and uniform provisions for the effective resettlement and
absorption of those refugees who are admitted.''). To be sure, the rule
will not lead to the same result for each noncitizen: For example, the
rebuttable presumption will not apply to noncitizens who enter the
United States using a lawful pathway but will apply to noncitizens who
enter the United States from Mexico at the southwest land border or
adjacent coastal borders and do not establish an exception to the
presumption or otherwise rebut the presumption. But the rule will apply
in a uniform way to all asylum applications filed by noncitizens who
are subject to its terms during the applicable time period.
The rule is likewise within the Departments' broad authority,
within existing statutory bounds, to establish procedures that are
tailored to different situations. INA 208(d)(1), 8 U.S.C. 1158(d)(1)
(requiring the Attorney General to ``establish a procedure for the
consideration of asylum applications''). Notably, asylum applicants
navigate several procedurally different paths depending on their
arrival in the United States and timing of their applications; some
noncitizens file affirmative applications with USCIS after arriving in
the United States, and others file defensive applications after being
placed in expedited removal proceedings and found to have a credible
fear of persecution. Others submit defensive applications while in
section 240 removal proceedings. Contrary to commenter concerns, the
lawful pathways to enter the United States outlined in this rule do not
eliminate any of these existing procedures or categorically bar any of
these applications for asylum.
Furthermore, it is not inconsistent with the INA to provide a
lawful pathway that relies on use of the CBP One app. The Departments
note that it is not uncommon to implement policies that encourage the
use of new technologies as they become available to create efficiencies
in processing, including with respect to asylum applications, such as
new forms, e-filing, the use of video teleconference hearings, and
digital audio recording of hearings.\192\ See, e.g., Executive Office
[[Page 31376]]
for Immigration Review Electronic Case Access and Filing System, 86 FR
70708 (Dec. 13, 2021) (implementing EOIR's electronic case management
system); Immigration Court Practice Manual, Chapter 4.7 (Apr. 10, 2022)
(providing guidance for video teleconference hearings); id. at Chapter
4.10(a) (providing for electronic recording of hearings). In this rule,
the Departments are implementing a rebuttable presumption of
ineligibility that will encourage the use of lawful pathways, including
use of the CBP One app, which the Departments expect will enable POEs
to manage migratory flows in a safe and efficient manner. Importantly,
those who present at a POE without a CBP One appointment and
demonstrate that it was not possible to access or use the CBP One app
due to language barrier, illiteracy, significant technical failure, or
other ongoing and serious obstacle will not be subject to the
presumption. 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). Further,
using the app is not required in order to qualify for an exception from
or to rebut the presumption, such as where a noncitizen applied for
asylum or other protection in a third country and received a final
decision denying that application or where the noncitizen shows
exceptionally compelling circumstances. Thus, although the rule
encourages increased use of the CBP One app, which is expected to
facilitate more efficient and streamlined processing along the SWB, use
of the app is not required.
---------------------------------------------------------------------------
\192\ In 1998, Congress passed the Government Paperwork
Elimination Act, which requires federal agencies to provide the
public with the ability to conduct business electronically, when
practicable, with the Federal government. See Public Law 105-277,
1701-10, 112 Stat. 2681, 2681-749 to -751 (1998). Similarly, in
2002, Congress passed the E-Government Act of 2002, which promotes
electronic government services and requires agencies to use
internet-based technology to increase the public's access to
government information and services. See Public Law 107-347, 116
Stat. 2899 (2002).
---------------------------------------------------------------------------
In response to commenters' assertions that crossing the SWB and
applying for asylum is in itself a ``lawful pathway,'' the Departments
reiterate that this rule does not bar a noncitizen from entering the
United States from Mexico at the southwest land border or adjacent
coastal borders and subsequently seeking asylum. 88 FR at 11707.
However, crossing the southwest land border or adjacent coastal borders
without authorization is not one of the lawful pathways provided to
encourage and increase safe, orderly transit to the United States.
Thus, noncitizens who choose to cross the southwest land border or
adjacent coastal borders without making an appointment to present at a
POE during the period covered by this rule, and who do not otherwise
qualify for an exception enumerated in 8 CFR 208.33(a)(2),
1208.33(a)(2), will have to address the rebuttable presumption as part
of establishing eligibility for relief, but they will nevertheless be
able to apply for asylum.
As to commenters' statements that the Departments' reliance on
Matter of Pula is misplaced, the Departments respond that the rule is
consistent with historical consideration of manner of entry as a
relevant factor in considering an asylum application. In Matter of
Pula, the BIA identified--as relevant factors as to whether a
noncitizen warrants the favorable exercise of discretion in granting
asylum--the noncitizen's ``circumvention of orderly refugee
procedures,'' including their ``manner of entry or attempted entry'';
whether they ``passed through any other countries or arrived in the
United States directly''; ``whether orderly refugee procedures were in
fact available to help'' in any transit countries; and whether they
``made any attempts to seek asylum before coming to the United
States.'' Matter of Pula, 19 I&N Dec. at 473-74. The BIA explained that
section 208(a) of the INA, 8 U.S.C. 1158(a), required the Attorney
General to establish procedures for adjudicating applications filed by
any noncitizen, ``irrespective of such alien's status,'' but the BIA
did not preclude consideration of the manner of entry in assessing
whether to grant asylum. Id. at 472. The BIA also stated that while the
manner of entry could ``be a serious adverse factor, it should not be
considered in such a way that the practical effect is to deny relief in
virtually all cases.'' Id. at 473. The BIA cautioned against placing
``too much emphasis on the circumvention of orderly refugee
procedures'' because ``the danger of persecution should generally
outweigh all but the most egregious of adverse factors.'' Id. at 473-
74.
The Departments acknowledge that this rule places more weight on
manner of entry than the Board did in Matter of Pula. 88 FR at 11736.
But in line with Matter of Pula, the rule also considers factors other
than manner of entry, including providing a categorical rebuttal ground
for noncitizens who faced an imminent and extreme threat to life or
safety at the time of entry. Id.; 8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B). And like Matter of Pula, this rule provides for
consideration of manner of entry in assessing eligibility for some
asylum seekers, but this factor is not considered in ``a way that the
practical effect is to deny relief in virtually all cases.'' 19 I&N
Dec. at 473. Rather, the manner of entry is only impactful for
individuals who do not enter the United States using a lawful pathway,
do not establish an exception to the rebuttable presumption, and do not
rebut the presumption. 88 FR at 11707, 11735-36.
The Departments also recognize that the specific analysis discussed
in Matter of Pula (considering manner of entry in the discretionary
decision of whether to grant asylum) is distinct from how the rule
considers manner of entry (as part of provisions governing eligibility
for asylum). See Matter of Pula, 19 I&N Dec. at 472. Nevertheless,
Matter of Pula supports the proposition that it is lawful to consider,
and in some cases rely on, manner of entry for asylum applicants.
Moreover, adjudicators are not precluded from considering the same
facts when evaluating both eligibility and discretion. Indeed, it is
possible for a single fact to be relevant to both determinations but
dispositive as to only one. See Kankamalage v. INS, 335 F.3d 858, 864
(9th Cir. 2003) (concluding that a conviction did not render a
noncitizen ineligible for asylum, but stating that the Board was ``not
prohibited from taking into account Kankamalage's robbery conviction
when it decides whether or not to grant asylum as a matter of
discretion''); Matter of Jean, 23 I&N Dec. 373, 385 (A.G. 2002)
(concluding that even a noncitizen who ``qualifies as a `refugee' ''
and whose criminal conviction did ``not preclude her eligibility'' for
asylum could nevertheless be ``manifestly unfit for a discretionary
grant of relief'').
Moreover, the Departments, in exercising their broad discretion to
issue regulations adopting additional limitations and conditions on
asylum eligibility, are not bound to consider manner of entry only as a
factor contributing to whether a particular noncitizen warrants a
favorable exercise of discretion. The Departments similarly disagree
with the commenter who stated that the Departments are seeking to
``excuse themselves from complying with long-established Board
precedent simply because the `regulatory regime' in place today is
different than the regime at the time the Board decided Matter of
Pula.'' This rule is not in conflict with Matter of Pula, which remains
the applicable standard for discretionary determinations. And the rule
takes Matter of Pula as providing support for the proposition that it
is lawful to consider, and in some cases rely on, manner of entry for
asylum applicants. 88 FR at 11735-36.
In sum, as with other conditions and limitations imposed by section
208(b)(2) of the INA, 8 U.S.C. 1158(b)(2), this rule is grounded in
important policy objectives, including providing those
[[Page 31377]]
with valid asylum claims an opportunity to have their claims heard in a
timely fashion, preventing an increased flow of migrants arriving at
the SWB that will overwhelm DHS's ability to provide safe and orderly
processing, and reducing the role of exploitative transnational
criminal organizations and smugglers. 88 FR at 11704. In seeking to
enhance the overall functioning of the immigration system and to
improve processing of asylum applications, the Departments are, in the
exercise of the authority to promulgate conditions and limitations on
eligibility for asylum, placing greater weight on manner of entry to
encourage migrants to seek protection in other countries in the region
and to use lawful pathways and processes to enter the United States and
access the U.S. asylum system.
ii. Statutory Bars to Asylum
Comment: Commenters stated that the proposed rule would be
inconsistent with the statutory firm-resettlement and safe-third-
country bars. See INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). Commenters argued that Congress
intended for these two bars to be the sole means by which a noncitizen
may be denied asylum based on a relationship with a third country.
Commenters disagreed with the proposed rule, asserting it would bar
asylum for anyone who travels through what the United States deems a
``safe third country.'' Similarly, another commenter stated that the
proposed rule would penalize migrants who do not live adjacent to a
safe third country to which they could travel directly in order to seek
protection.
Response: This rule is within the Departments' broad authority to
create new conditions on eligibility for asylum, and the Departments
disagree that the rule conflicts with any of the exceptions to a
noncitizen's ability to apply for asylum or a noncitizen's eligibility
for asylum under sections 208(a)(2) or (b)(2) of the INA, 8 U.S.C.
1158(a)(2) or (b)(2). The INA's safe-third-country provision prohibits
a noncitizen from applying for asylum if the noncitizen ``may be
removed, pursuant to a bilateral or multilateral agreement'' to a safe
third country in which the noncitizen would not be subject to
persecution and ``would have access to a full and fair procedure for
determining a claim to asylum or equivalent temporary protection.'' INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The firm-resettlement provision
precludes a noncitizen who ``was firmly resettled in another country
prior to arriving in the United States'' from demonstrating eligibility
for asylum. INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); see also
8 CFR 208.15 (2020), 1208.15 (2020).\193\ The two provisions provide
categorical bars to asylum for noncitizens who have available,
sustained protection in another country, and help protect against forum
shopping. Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per
curiam) (noting that the policy behind the safe-third-country statutory
bar includes the principle that ``[t]he United States offers asylum to
refugees not to provide them with a broader choice of safe homelands,
but rather, to protect those arrivals with nowhere else to turn.'');
Rosenberg v. Yee Chien Woo, 402 U.S. 49, 55, 56 (1971) (noting that the
concept of firm resettlement is historically rooted in the notion of
providing ``a haven for the world's homeless people'' while encouraging
``other nations to do likewise.''); see also Maharaj v. Gonzales, 450
F.3d 961, 988-89 (9th Cir. 2006) (en banc) (O'Scannlain, J.,
concurring, in part) (recognizing that the firm-resettlement bar
protects against forum shopping, an issue ``that our immigration laws
have long sought to avoid.''); United States v. Malenge, 294 F. App'x
642, 645 (2d Cir. 2008) (noting that a purpose of the safe-third-
country agreement with Canada was to prevent forum shopping).
---------------------------------------------------------------------------
\193\ These provisions were amended by Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85
FR 80274 (December 11, 2020), which was preliminarily enjoined and
its effectiveness stayed before it became effective. See Pangea
Legal Services v. U.S. Dep't of Homeland Security (Pangea II), 512
F. Supp. 3d 966, 969-70 (N.D. Cal. 2021). This order remains in
effect, and thus the 2020 version of these provisions--the version
immediately preceding the enjoined amendment--is currently
effective.
---------------------------------------------------------------------------
The Departments disagree with commenters because the INA permits
the Attorney General and Secretary to create new eligibility conditions
and does not limit this authority based on the content of the existing
statutory conditions. See Trump, 138 S. Ct. at 2411-12 (recognizing
that the INA ``did not implicitly foreclose the Executive from imposing
tighter restrictions'' in ``similar'' areas); E. Bay Sanctuary Covenant
v. Garland, 994 F.3d 962, 979 (9th Cir. 2020) (``East Bay I '')
(acknowledging that the INA does not limit the Departments' ``authority
to the literal terms of the two safe-place statutory bars''); R-S-C,
869 F.3d at 1187 (noting that Congress's delegation of authority in
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C) ``means that
Congress was prepared to accept administrative dilution'' of the right
to seek asylum). Indeed, section 208(b)(2)(C), (d)(5)(B) of the INA, 8
U.S.C. 1158(b)(2)(C), (d)(5)(B), provides no subject-matter limit,
other than requiring any regulation be ``consistent with'' section 208
of the INA, 8 U.S.C. 1158. See R-S-C, 869 F.3d at 1187 n.9. The
condition created by this rule is consistent with section 208 of the
INA, 8 U.S.C. 1158, as a whole, and it is consistent with the safe-
third-country and firm-resettlement bars in particular. 88 FR at 11736.
Critically, unlike the safe-third-country bar, the rule does not
consider whether the noncitizen could now safely relocate to a third
country, and unlike the firm-resettlement bar, this rule does not
categorically preclude a noncitizen from demonstrating eligibility for
asylum because they are no longer in flight from persecution. Cf. Ali,
237 F.3d at 594 (noting that the firm-resettlement bar does not
conflict with Congress's intent in providing for asylum relief
``[b]ecause firmly resettled aliens are by definition no longer subject
to persecution'') (marks and citation omitted). Rather, as discussed in
the NPRM, the rule encourages use of lawful pathways for migrants
seeking to come to the United States, including noncitizens wishing to
seek asylum in the United States. 88 FR at 11707. The rule is designed
to improve processing of such asylum applications. Id. at 11704, 11706-
07. Noncitizens will not be subject to the rebuttable presumption if
they travel through a third country and seek entry into the United
States through a lawful, safe, and orderly pathway. Id. at 11707; 8 CFR
208.33(a)(2)(ii), 1208.33(a)(2)(ii). They also will not be subject to
the rebuttable presumption if they seek and are denied asylum or other
protection in a third country. 88 FR at 11707; 8 CFR
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). And unaccompanied children
are excepted from the presumption. 8 CFR 208.33(a)(2)(i),
1208.33(a)(2)(i). Moreover, even if a noncitizen is subject to the
presumption of ineligibility under 8 CFR 208.33(a)(1), 1208.33(a)(1),
the noncitizen may rebut that presumption in any of several ways that
account for protecting the safety of those fleeing imminent harm. 88 FR
at 11707; 8 CFR 208.33(a)(3), 1208.33(a)(3). Accordingly, the rule
encourages noncitizens seeking to enter the United States, including
those seeking asylum who have transited through a third country before
arriving in the United States, to enter through lawful, safe, and
orderly pathways by imposing an additional condition on the asylum
eligibility of individuals who did not avail
[[Page 31378]]
themselves of such pathways. 88 FR at 11706-07. The rule does not
preclude noncitizens who have transited through third countries without
applying for protection in those countries from obtaining asylum in the
United States. Id. at 11706-07. In addition, the rule expressly
accounts for migrants who have been denied a safe haven elsewhere; if
an applicant seeks asylum in a third country and is denied, the
rebuttable presumption does not apply. 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C).
Comment: Commenters stated that the proposed rule would conflict
with the firm-resettlement bar to asylum eligibility or render the
firm-resettlement bar superfluous because it would negate the need to
determine whether the noncitizen has firmly resettled or whether any
potential or obtained status in a third country would not be reasonably
available or reasonably retained due to issues such as processing
backlogs in the third country. Commenters were also concerned that the
proposed rule would not account for the risk of harm that the
noncitizen might face in the third country. Commenters stated that the
proposed rule would ignore congressional intent that the noncitizen
have a more significant relationship with the third country--i.e., be
firmly resettled in that country rather than be merely transiting
through the country--to be effectively rendered ineligible for asylum.
Commenters asserted that requiring individuals to apply for protection
in a third transit country would create a new hurdle for them because
it could subject them to the firm-resettlement bar.
Response: As discussed above, the INA does not limit the
Departments' authority regarding eligibility conditions relating to a
noncitizen's conduct in third countries to the boundaries of the firm-
resettlement statutory bar. Trump, 138 S. Ct. at 2411-12 (recognizing
that the INA ``did not implicitly foreclose the Executive from imposing
tighter restrictions'' in ``similar'' areas); see also East Bay I, 994
F.3d at 979 (noting that the INA does not limit the Departments'
``authority to the literal terms of the two safe-place statutory
bars''). The Departments disagree that the rule conflicts with the
firm-resettlement bar, which focuses on protecting against forum
shopping when a migrant has already found a safe refuge. INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); Bonilla v. Mukasey, 539
F.3d 72, 80 (1st Cir. 2008); Ali, 237 F.3d at 594. This rule focuses on
encouraging migrants to use safe, orderly, and lawful pathways to enter
the United States. 88 FR at 11707, 11736. Accordingly, the relevant
facts and analysis for considering firm resettlement and the
application of the rebuttable presumption are materially different.
Additionally, the rule does not overlook commenter concerns about
the accessibility to or processing times of applications in third
countries. Even if noncitizens determine that protection in a third
country is inaccessible or would take more time than the noncitizens
believe they can wait, the rule provides other ways that the noncitizen
can seek protection. Seeking protection in a third country and
receiving a denial excepts a noncitizen from the presumption but is not
a requirement--the noncitizen may still either enter using a lawful
pathway, pre-schedule an appointment to present themselves at a POE, or
show one of several other circumstances that allow an individual to be
excepted from the rule's rebuttable presumption. 8 CFR 208.33(a)(2),
1208.33(a)(2). The rule also explicitly protects family unity by
providing that if one member of a family traveling together is excepted
from the presumption of asylum ineligibility or has rebutted the
presumption then the other members of the family are similarly treated
as excepted from the presumption or having rebutted the presumption. 8
CFR 208.33(a)(2)(ii), (3), 1208.33(a)(2)(ii), (3); 88 FR at 11730. And
if during removal proceedings a principal applicant is eligible for
statutory withholding of removal or CAT withholding and would be
granted asylum but for the presumption and has either an accompanying
spouse or child who would not qualify for asylum or protection from
removal or a spouse or child who would be eligible to follow to join
them as described in section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), if the principal applicant were granted asylum, the
applicant will be deemed to have established an exceptional
circumstance that rebuts the presumption. 8 CFR 1208.33(c).
Additionally, any principal asylum applicants who enter the United
States during the two-year period of the rebuttable presumption while
under the age of eighteen and apply for asylum after the two-year
period are not subject to the presumption. 8 CFR 208.33(c)(2),
1208.33(d)(2). Furthermore, the rule does not affect a noncitizen's
ability to apply for statutory withholding of removal and CAT
protection. 88 FR at 11730.
The rule also does not render the firm-resettlement bar
superfluous; instead, this rule and the firm-resettlement bar apply
independently. The operative firm-resettlement regulations provide that
a noncitizen is barred from receiving asylum in the United States if
they have received an offer of safe, established permanent resettlement
that is not substantially and consciously restricted. 8 CFR 208.15,
1208.15 (2020). The firm-resettlement bar is divorced from any inquiry
into how or when a noncitizen enters the United States. INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); 8 CFR 208.15, 1208.15
(2020). Put differently, the firm-resettlement bar applies with equal
force to noncitizens who enter the United States using an identified
lawful pathway and those who do not. Abdalla v. INS, 43 F.3d 1397, 1400
(10th Cir. 1994) (``The pertinent regulations specifically focus on
resettlement status prior to the alien's entry into this country . . .
. ''). Conversely, this rule does not turn exclusively on whether the
noncitizen received an offer of permanent resettlement in a third
country. 88 FR at 11723. Under the rule, a migrant's time in a third
country is primarily relevant in two circumstances: (1) when a
noncitizen travels through a third country and does not enter the
United States through established lawful pathways, or (2) if the
noncitizen applied for protection in the third country and was denied.
8 CFR 208.33(a)(1)(iii), (2)(ii)(C), 1208.33(a)(1)(iii), (2)(ii)(C). In
the first circumstance, the noncitizen is subject to the rule's
condition on asylum eligibility unless they can demonstrate an
applicable exception or successfully rebut the presumption. 8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and (3). In the second
circumstance, the noncitizen is categorically not subject to the
rebuttable presumption of asylum ineligibility regardless of whether
they entered the United States through established lawful pathways. 8
CFR 208.33(a)(2)(ii)(C),1208.33(a)(2)(ii)(C). But neither circumstance
involves determining whether the noncitizen was firmly resettled, as
defined in 8 CFR 208.15, 1208.15 (2020), before traveling to the United
States.\194\ Thus, the firm-resettlement bar and this rule are simply
different conditions with different scopes.
---------------------------------------------------------------------------
\194\ Indeed, the firm-resettlement bar, if applicable to a
particular noncitizen, would not be applied by an AO in credible
fear proceedings and would be applied only if the noncitizen's
application is considered by an IJ in section 240 removal
proceedings or an AO during an asylum merits interview. 8 CFR
208.30(e)(5)(i).
---------------------------------------------------------------------------
In addition, the rule properly accounts for the risk of harm a
noncitizen might face in the third country. As at least one commenter
in favor of the rule noted, not all migrants
[[Page 31379]]
who travel through third countries are actively fleeing persecution and
some choose to come to the United States for other reasons. But should
the noncitizen be fleeing harm, one of the enumerated grounds that will
necessarily rebut the presumption of asylum ineligibility is that the
noncitizen faced an imminent and extreme threat to life or safety at
the time of entry into the United States. 8 CFR 208.33(a)(3)(i)(B),
1208.33(a)(3)(i)(B); 88 FR at 11704, 11707, 11736. In response to the
comment that requiring a noncitizen to seek protection in a transit
country would add a hurdle to obtaining asylum in the United States
insofar as that noncitizen may need to address the firm-resettlement
bar, the Departments note that noncitizens subject to the firm-
resettlement bar are not in need of protection in the United States.
See Ali, 237 F.3d at 594 (recognizing that asylum law ``was never
intended to open the United States to refugees who had found shelter in
another nation and had begun to build new lives'' (quoting Rosenberg v.
Yee Chien Woo, 402 U.S. 49, 56 (1971)); East Bay I, 994 F.3d at 977
(recognizing ``the `core regulatory purpose of asylum,' which is `to
protect [refugees] with nowhere else to turn,' because `by definition'
an applicant barred by a safe-place provision has somewhere else to
turn'' (quoting Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013),
overruled on other grounds by Zepeda-Lopez v. Garland, 38 F.4th 315,
326 (2d Cir. 2022)); Constitution of the International Refugee
Organization, ch. V, sec. (D)(c), Dec. 15, 1946, 18 U.N.T.S. 20
(determining that a refugee or displaced person ``will cease to be the
concern of the Organization . . . when they have . . . become otherwise
firmly established''). Likewise, the rule does not deny asylum to a
noncitizen who obtained asylum in a third country (and therefore
presumably has a cognizable claim to refugee status) but thereafter
comes to the United States and seeks asylum. That person may seek to
enter through a lawful pathway and file an asylum application like any
other migrant, at which point they would likely need to address the
firm-resettlement bar. Should they enter the United States from Mexico
at the southwest land border or adjacent coastal borders without
authorization or at a POE without an appointment and not otherwise be
covered by an exception, they, like any other noncitizen in that
situation, will be able to address the rebuttable presumption.
Finally, the Departments disagree that the rule ignores
congressional intent underlying the firm-resettlement bar. As explained
above, this rule has the policy objective of encouraging the use of
safe, orderly, and lawful pathways by noncitizens, including those
seeking asylum, to enter the United States to present their claims, 88
FR at 11704, 11707, and is distinct from the firm-resettlement bar,
which is grounded in the policy objective of protecting against forum
shopping by migrants who have already found a safe refuge, East Bay I,
994 F.3d at 977; Bonilla, 539 F.3d at 80; Ali, 237 F.3d at 595.
Comment: Commenters stated that the proposed rule would be
inconsistent with or would circumvent the safe-third-country bar to
applying for asylum because the safe-third-country bar was intended to
ensure that any third country was safe and had a fair procedure for
asylum or temporary protection before requiring that a noncitizen avail
themselves of protection in that country. Commenters asserted that the
proposed rule essentially or implicitly declares Mexico, Guatemala, or
other transit countries to be safe third countries without obtaining
the requisite bilateral or multilateral agreements. Commenters also
claimed that this proposed rule, which would apply regardless of
whether the United States has an agreement with the transit country,
would not adequately consider or require an individualized
determination as to whether a third country is ``safe'' for asylum
seekers or has an adequate system for granting protection against
persecution and torture. Instead, commenters explained that this
proposed rule relies on a third country being a party to specified
international accords, which commenters stated are not sufficient to
ensure the noncitizen's safety and, therefore, would result in refugees
being returned to the countries where they will be persecuted--in
conflict with the non-refoulement principles of the Refugee Act. One
commenter specified that the asylum structures in Mexico, El Salvador,
Honduras, and Guatemala do not meet the international standard for
refugee protection and thus cannot constitute a safe third country.
Response: As a threshold matter, the Departments distinguish the
categorical safe-third-country bar found in section 208(a)(2)(A) of the
INA, 8 U.S.C. 1158(a)(2)(A), from this rule because this rule, unlike
the safe-third-country bar, is neither a categorical bar on the ability
to apply for asylum nor does it hinge exclusively on the availability
of protection in a third country. 88 FR at 11723, 11736. While the
Departments believe that protection is available for many noncitizens
in third countries through which they transit before arriving in the
United States from Mexico at the southwest land borders or adjacent
coastal borders, the Departments have carefully refrained from making
asylum eligibility in the United States turn exclusively on whether the
noncitizen could have sought protection in any third country. Nor does
this rule act as or constitute a third-country agreement for purposes
of section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A). 88 FR at
11732. Critically, the purpose behind this rule is to encourage
noncitizens to take advantage of existing and expanded safe, orderly,
and lawful pathways for noncitizens to enter the United States to
present asylum claims. 88 FR at 11704, 11719. And the rule does not,
contrary to commenters' suggestions, require a noncitizen to return to
or go to a third country without evaluating the safety of that country
simply because of their method of entering the United States. Cf. East
Bay I, 994 F.3d at 977. Rather, the rule is more limited. The rule
provides that noncitizens who have traveled through a third country and
enter the United States through a provided lawful pathway may seek
asylum through an orderly and directed process. 88 FR at 11707, 11723;
see 8 CFR 208.33(a)(2)(ii), 1208.33(a)(2)(ii). Noncitizens who travel
through a third country that is a party to the Refugee Convention or
Protocol and do not enter the United States through a provided lawful
pathway, and who do not first seek (and are denied) protection in that
third country, may still present a claim for relief and protection
based on fear of persecution--but, in order to be eligible for asylum,
they must first establish an exception to or rebut a presumption of
ineligibility for asylum. 88 FR at 11707, 11723; see 8 CFR
208.33(a)(3), 1208.33(a)(3). And even if the noncitizen is subject to
the presumption of ineligibility for asylum, the noncitizen may still
seek and be eligible for statutory withholding of removal or CAT
protection. 88 FR at 11737; see 8 CFR 208.33(b)(2)(i) and (ii),
1208.33(b)(2)(i) and (ii). Simply put, the rule imposes a condition on
asylum (and only asylum) eligibility relating to whether the noncitizen
availed themselves of a lawful pathway, but the rule does not direct an
inquiry as to whether the noncitizen can or should return to a third
country. 88 FR at 11737-38.
iii. Expedited Removal
Comment: Some commenters stated that the proposed rule creates a
higher standard of proof (preponderance of the evidence) for rebutting
the presumption
[[Page 31380]]
against asylum, as compared to the ``significant possibility'' standard
for establishing a credible fear. Commenters expressed a belief that
the rule requires noncitizens ``to actually establish, at their
credible fear interview, that they are eligible for asylum'' (emphasis
in original), not simply that they have a significant possibility of
demonstrating eligibility. These commenters expressed concern that the
rule could be read to require AOs to make a finding that a noncitizen
is ineligible for asylum without assessing the presumption under the
``significant possibility'' standard. These commenters further argued
that the touchstone of the ``significant possibility'' standard was
whether a noncitizen ``could show, after a full hearing with factual
development,'' that the presumption does not apply.
Response: The ``significant possibility'' standard is required by
statute, and the rule does not impose a different standard during the
credible fear process.\195\ The INA mandates that, when determining
whether a noncitizen has a ``credible fear,'' the AO must determine
whether there is a ``significant possibility . . . that the alien could
establish eligibility for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). When it comes to the rebuttable presumption, the AO
will determine whether there is a significant possibility that the
noncitizen would be able to show at a full hearing by a preponderance
of the evidence that the presumption does not apply or that they meet
an exception to or can rebut the presumption. 8 CFR 208.33(a)(2),
(3)(i), 1208.33(a)(2), (3)(i). In other words, the ``significant
possibility'' standard is the overall assessment applied at the
credible fear stage, but that standard must be applied in conjunction
with the standard of proof required for the ultimate merits
determination. Although the ``significant possibility'' standard
applies when determining the presumption's applicability and whether it
has been rebutted, the Departments expect that noncitizens rarely would
be found exempt from or to have rebutted the presumption for credible
fear purposes and subsequently be found not to be exempt from or to
have rebutted the presumption at the merits stage. The ``significant
possibility'' standard asks a predictive question: whether there is a
``significant possibility'' that the noncitizen ``could establish''
asylum eligibility at a merits hearing. INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). And given the nature of the inquiry under this rule's
presumption, the Departments expect that AOs or IJs will almost always
be able to determine based on the evidence before them at the credible
fear stage whether a noncitizen would be unable to establish asylum
eligibility at the merits stage.
---------------------------------------------------------------------------
\195\ Previous limitations on asylum eligibility have used
similar regulatory language that does not explicitly include the
phrase ``significant possibility'' while also stating in the rules'
preambles that the ``significant possibility'' standard applied to
those limitations. See, e.g., Security Bars and Processing, 85 FR
84160, 84175 (Dec. 23, 2020) (``Security Bars Rule'') (explaining
that ``[t]he rule does not, and could not, alter the standard for
demonstrating a credible fear of persecution, which is set by
statute''); Asylum Eligibility and Procedural Modifications, 84 FR
33829, 33837 (July 16, 2019) (``TCT Bar IFR'') (providing that
``[t]he asylum officer will ask threshold questions to elicit
whether an alien is ineligible for a grant of asylum pursuant to the
third-country-transit bar. If there is a significant possibility
that the alien is not subject to the eligibility bar (and the alien
otherwise demonstrates that there is a significant possibility that
he or she can establish eligibility for asylum), then the alien will
have established a credible fear.''); Aliens Subject to a Bar on
Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934, 55943 (Nov. 9, 2018) (``Proclamation
Bar'') (providing that ``[t]he asylum officer will ask threshold
questions to elicit whether an alien is ineligible for a grant of
asylum pursuant to a proclamation entry bar. If there is a
significant possibility that the alien is not subject to the
eligibility bar (and the alien otherwise demonstrates sufficient
facts pertaining to asylum eligibility), then the alien will have
established a credible fear.'').
---------------------------------------------------------------------------
First, the evidence necessary to determine whether a person is
excepted from or can rebut the presumption should generally be
available to the AO at the time of the credible fear interview, whether
from the noncitizen or otherwise. Unlike some of the more complex
factual inquiries required for other elements of asylum eligibility,
such as nexus or particular social group, which often require evidence
about country conditions or other evidence, and often regard events
that did not happen recently, AOs will--except in exceptional
circumstances--be able to assess eligibility for such exceptions or
rebuttal circumstances at the credible fear interview through
consideration of the noncitizen's credible testimony and available
evidence, including government records relating to their circumstances
at the time of their entry into the United States.
For instance, a noncitizen should not generally need testimony from
a witness in their home country or evidence of country conditions to
show that they faced an acute medical emergency at the time of entry or
that it was not possible to access or use the CBP One app due to
language barrier, illiteracy, significant technical failure, or other
ongoing and serious obstacle. See 8 CFR 208.33(a)(2)(ii)(B), (3)(i)(A),
1208.33(a)(2)(ii)(B), (3)(i)(A). In some cases, the absence of
documentation and DHS records--such as a record that a noncitizen was
provided appropriate authorization to travel to the United States to
seek parole--may make it unlikely that the noncitizen could make the
requisite showing at a full merits hearing. In other situations, the
noncitizen's credible testimony may be sufficient to prove the
noncitizen's claims, although AOs also may consider any evidence
noncitizens have with them at the time they entered the United States
from Mexico at the southwest land border or adjacent coastal borders,
and evidence regarding the State in which they were encountered at or
near the border. Thus, AOs should have all the necessary evidence
before them during the credible fear interview to determine whether a
noncitizen will be exempt from or able to rebut the presumption, and
additional evidence is not likely to change whether an exception to or
rebuttal of the presumption applies.
Second, as with factual determinations, the legal analysis for
determining whether a person is exempt from or can rebut the
presumption is straightforward because most of the enumerated grounds
for those determinations are narrow and clearly defined. There is
little gray area in determining whether a noncitizen transited through
a third country, and the rule provides clear examples of the types of
threats that constitute an imminent and extreme threat to life or
safety--that is, an imminent threat of rape, kidnapping, torture, or
murder. See 8 CFR 208.33(a)(1)(iii), (3)(i)(B), 1208.33(a)(1)(iii),
(3)(i)(B). As a result, the question of whether a noncitizen has a
``significant possibility'' of meeting these standards should not
require much legal analysis after the AO has considered the evidence
before them. That again differs from other questions that may arise
during a credible fear inquiry--such as whether the noncitizen is a
member of a cognizable particular social group--which can be quite
complex; AOs or IJs may reasonably defer such difficult questions by
finding credible fear. See 8 CFR 208.30(e)(4) (``In determining whether
the alien has a credible fear of persecution . . . or a credible fear
of torture, the asylum officer shall consider whether the alien's case
presents novel or unique issues that merit a positive credible fear
finding . . . in order to receive further consideration of the
application for asylum and withholding of removal.''). Hence, in this
unique context, applying the ``significant possibility'' standard will
almost always
[[Page 31381]]
lead to a similar conclusion as applying the ultimate eligibility
standard.
However, the Departments acknowledge that in some rare cases the
outcome from applying the ``significant possibility'' standard may
differ from application of the ultimate merits standard, such that a
noncitizen who is found to have met the ``significant possibility''
standard may ultimately be found after a merits hearing to be subject
to the presumption of ineligibility. It is the Departments' expectation
that such cases will be rare, and that applying the ``significant
possibility'' standard will not differ meaningfully from application of
the ultimate merits standard in this context.
Comment: Commenters stated that Congress intended to set a low
screening standard for the credible fear process and alleged that the
proposed rule raised the screening standard for statutory withholding
of removal and CAT protection during this process without providing a
justification for doing so. Commenters argued that Congress intended
the plain language of the statute, which uses a ``significant
possibility'' standard for asylum, to also apply to related fear
claims, such as statutory withholding of removal and CAT protection.
Response: As a preliminary matter, this rule does not change the
screening standard for asylum claims. Instead, it imposes an additional
condition on asylum eligibility: a rebuttable presumption of asylum
ineligibility for certain noncitizens who neither avail themselves of a
lawful, safe, and orderly pathway to the United States nor seek asylum
or other protection in a country through which they travel. 88 FR at
11750; INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). AOs will
continue to apply the statutory ``significant possibility'' standard to
determine credible fear. Id. In considering whether a noncitizen can
establish a significant possibility of eligibility for asylum, the AO
will be required to consider whether the noncitizen has shown a
significant possibility that they could establish that the presumption
does not apply or that they meet an exception to or can rebut the
presumption. 88 FR at 11750. Only after determining that a noncitizen
could not demonstrate a ``significant possibility'' of eligibility for
asylum would the AO apply the long-established ``reasonable
possibility'' standard to assess whether further proceedings on a
possible statutory withholding or CAT protection claim are warranted.
Id. at 11746, 11750.
In contrast to the establishment of a statutory ``significant
possibility'' standard to screen for asylum, Congress did not specify a
statutory standard for screening statutory withholding of removal or
CAT protection claims in expedited removal proceedings. See INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v) (referencing only
``asylum''). Since 1999, AOs have applied the ``reasonable
possibility'' standard to statutory withholding of removal and CAT
protection claims in streamlined proceedings for reinstatement and
administrative removal where noncitizens are statutorily ineligible for
asylum. See 8 CFR 208.31, 1208.31 (2020) \196\ (implementing the
reasonable fear process for noncitizens subject to administrative
removal orders); 8 CFR 241.8(e) (implementing the reasonable fear
process for noncitizens subject to reinstatement of a prior order of
removal). While the ``reasonable possibility'' standard is lower than
the ``clear probability'' standard required to demonstrate eligibility
for statutory withholding or CAT protection, it is a more demanding
standard than the ``significant possibility'' standard used in credible
fear proceedings to screen for asylum. Regulations Concerning the
Convention Against Torture, 64 FR 8474, 8485 (Feb. 19, 1999). At the
time the CAT regulations were implemented, the goal of the reasonable
fear process was to ensure that the United States complied with its
non-refoulement obligations under the CAT ``without unduly disrupting
the streamlined removal processes applicable.'' Id. at 8479. The
justification for using the reasonable possibility standard was also
explained at the time the reasonable fear proceedings were created:
``[b]ecause the standard for showing entitlement to these forms of
protection (a probability of persecution or torture) is significantly
higher than the standard for asylum (a well-founded fear of
persecution), the screening standard adopted for initial consideration
of withholding and deferral requests in these contexts is also
higher.'' Id. at 8485.
---------------------------------------------------------------------------
\196\ These provisions were amended by the Global Asylum Rule,
which was preliminarily enjoined and its effectiveness stayed before
it became effective. See Pangea II, 512 F. Supp. 3d at 969-70. This
order remains in effect, and thus the 2020 version of these
provisions--the version immediately preceding the enjoined
amendments is currently effective.
---------------------------------------------------------------------------
For the purpose of this rule, the Departments have judged that, in
those cases where an applicant cannot establish a significant
possibility of eligibility for asylum due to the lawful pathways
condition, the use of the ``reasonable possibility'' standard to assess
statutory withholding of removal and CAT claims better reflects the
goals of the rule as a whole. As explained in the NPRM, while this is a
different judgment than what was made by the Asylum Processing IFR, the
application of the heightened standard is in line with the goal of
identifying non-meritorious claims at the screening stage, allowing the
heavily burdened immigration courts to focus on those claims most
likely to warrant protection. 88 FR at 11742. The Departments believe
that applying the ``reasonable possibility'' standard, which is
tailored to statutory withholding of removal and CAT claims, ``better
predicts the likelihood of succeeding'' on an application for statutory
withholding of removal or CAT protection because it appropriately
accounts for the higher burden of proof. 88 FR at 11746-47. The use of
the standard specific to statutory withholding and CAT claims, since
its inception, has allowed the United States to meet its obligations
under international law while simultaneously balancing the need to
expeditiously identify non-meritorious claims. Moreover, as stated in
the NPRM, the Departments seek to protect those who have viable claims
while also considering the ``downstream effects'' on immigration
courts. 88 FR at 11746. The application of standards tailored to the
type of relief for which the noncitizen is eligible is designed to
accomplish that goal.
2. TCT Bar and Proclamation Bar Litigation
Comment: Several commenters argued that the proposed rule is no
different than the TCT Bar Final Rule and the Proclamation Bar IFR.
Many commenters submitted only a general reference to precedent issued
in litigation regarding the Proclamation Bar IFR and the TCT Bar rules,
without any discussion or consideration of the distinctions provided in
the proposed rule. Some asserted that the proposed rule conflicts with
or violates the injunctions issued regarding those rules, or that the
existing injunction should apply to the proposed rule. Commenters also
asserted that the proposed rule is similar to the TCT Bar rules and
Proclamation Bar IFR and will cause confusion. An organization
expressed concern that members of a certified class for purposes of
injunctive relief, see Al Otro Lado, Inc. v. McAleenan, No. 17-CV-
02366-BAS-KSC, 2022 WL 3142610 (S.D. Cal. Aug. 5, 2022), would be
subject to the rebuttable presumption. The commenter stated that
application of the rebuttable presumption to such class members would
likely violate the injunction in that case because that injunction
[[Page 31382]]
requires that the Departments apply ``pre-Asylum Ban practices for
processing the asylum applications'' of class members. See id.
Response: The Departments reiterate that this rule is materially
different from the TCT Bar IFR and Final Rule and Proclamation Bar IFR.
88 FR at 11738-39; see also Section IV.B.2.ii of this preamble. And
contrary to commenter concerns, there is no risk of confusion because
neither the TCT Bar nor the Proclamation Bar is in effect. Capital Area
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020)
(vacating the TCT Bar IFR); East Bay Sanctuary Covenant v. Barr, 964
F.3d 832 (9th Cir. 2020) (enjoining the TCT Bar IFR); E. Bay Sanctuary
Covenant v. Barr (``East Bay II''), 519 F. Supp. 3d 663, 668 (N.D. Cal.
2021) (enjoining the TCT Bar Final Rule); East Bay III, 993 F.3d at
681; see O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting
the history of the litigation over the Proclamation Bar IFR and
vacating it).\197\ As discussed later in Sections IV.E.9 and IV.E.10 of
this preamble, removal of provisions implementing the TCT Bar Final
Rule and the Proclamation Bar IFR is warranted. But even separate from
the removal of provisions implementing those rules, the Departments
respond that the litigation surrounding those rules does not mean that
this distinct rule is invalid, unenforceable, or arbitrary and
capricious.
---------------------------------------------------------------------------
\197\ The district court in O.A. vacated the Proclamation Bar
IFR for similar substantive reasons to those articulated in East Bay
III. O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019). O.A. v. Trump
is subject to a pending appeal that is presently held in abeyance.
O.A. v. Biden, No. 19-5272 (D.C. Cir. Oct. 11, 2019). Similarly, in
Al Otro Lado, Inc. v. Mayorkas, No. 17-cv-2366, 2022 WL 3970755
(S.D. Cal. Aug. 23, 2022), a different district court issued an
injunction relating to application of the TCT Bar rules that the
Departments disagree with and have appealed. Al Otro Lado, Inc. v.
Mayorkas, Nos. 22-55988, 22-56036 (9th Cir. Nov. 7, 2022).
---------------------------------------------------------------------------
The Departments also disagree with the generalized comparisons
between this rule and the Proclamation Bar IFR and the TCT Bar rules.
88 FR at 11736. As stated in the NPRM, this rule is substantively
distinct from the eligibility bars in those rules. The TCT Bar rules
focused exclusively on the noncitizen's travel prior to entering the
United States, see 85 FR at 82261-62, and the Proclamation Bar IFR
imposed a strict eligibility bar for anyone entering outside a POE, see
83 FR at 55935. In comparison, this rule is not a categorical bar on
asylum eligibility, but instead is a rebuttable presumption, including
several exceptions that are adjudicated on a case-by-case basis, for
certain noncitizens who enter the United States without availing
themselves of any of numerous lawful pathways during a temporary period
of time. 88 FR at 11707, 11739-40; 8 CFR 208.33(a)(2) and (3),
1208.33(a)(2) and (3). Notably, and contrary to claims by some
commenters, the rule does not block access to asylum for those who need
it most. Cf. East Bay I, 994 F.3d at 980. The rule contains exceptions
to and ways to rebut the presumption, including several ways to avoid
the presumption that account for protecting the safety of those fleeing
imminent harm. In addition, the rule is intended to better manage
already-strained resources, thereby protecting against overcrowding in
border facilities and helping to ensure that the processing of migrants
seeking protection in the United States is done in an effective,
humane, and efficient manner. 88 FR at 11704, 11713-16, 11730. In that
vein, as discussed in Sections IV.E.9 and IV.E.10 of this rule, the TCT
Bar IFR and Final Rule and Proclamation Bar IFR pursued approaches and
policies that differ in important respects from this rule. Compare TCT
Bar IFR, 84 FR at 33831, and Proclamation Bar IFR, 83 FR at 55935, with
88 FR at 11706-07. Moreover, this rule is designed to address a
specific exigency that did not exist when the TCT Bar rules and
Proclamation Bar IFR were promulgated. 88 FR at 11705-06.
Second, this rule is not in conflict with or precluded by existing
injunctions and court precedent relating to litigation surrounding
those rules. See United States v. Cardales-Luna, 632 F.3d 731, 735 (1st
Cir. 2011) (recognizing that ``a decision dependent upon its underlying
facts is not necessarily controlling precedent as to a subsequent
analysis of the same question on different facts and a different
record'') (marks and citation omitted); Overseas Shipholding Group,
Inc. v. Skinner, 767 F. Supp. 287, 296 (D.D.C. 1991) (noting that
neither the law of the case nor stare decisis doctrines applied in ``an
entirely separate rulemaking process''); cf. Associated Builders and
Contractors, Inc. v. Brock, 862 F.2d 63, 67 (3d Cir. 1988) (considering
the adequacy of notice of proposed rulemaking and concluding that an
argument was foreclosed because a prior panel ``applied the law'' to
facts that had ``not changed''). Procedurally, the injunctions issued
against the TCT Bar rules and Proclamation Bar IFR were limited to the
specific facts and specific rules at issue in those cases and do not
bar the issuance of this materially distinct rule. See E. Bay Sanctuary
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019) (enjoining
the Departments ``from taking any action continuing to implement'' the
TCT Bar IFR), affirmed by East Bay I, 994 F.3d at 988; East Bay II, 519
F. Supp. 3d at 668 (enjoining the Departments ``from taking any action
continuing to implement the [TCT Bar] Final Rule''); E. Bay Sanctuary
Covenant v. Trump, 349 F. Supp. 3d 838, 868 (N.D. Cal. 2018), affirmed
by East Bay III, 993 F.3d at 680-81; see also California v. Texas, 141
S. Ct. 2104, 2115 (2021) (noting that remedies ``do not simply operate
on legal rules in the abstract'') (quotation marks and citation
omitted). Substantively, the opinions in those cases were limited to
categorical eligibility bars premised on manner of entry or whether a
noncitizen first sought asylum in another country, and this rule
creates no such categorical bar. The more nuanced approach in this rule
will have different effects and is premised on different factual
circumstances and new reasoning, including an increased focus on
available lawful pathways. 88 FR at 11739.
Regarding the application of the proposed rule to Al Otro Lado
injunction class members, as noted in the NPRM, the Departments do not
view the permanent injunction in the Al Otro Lado litigation--see Al
Otro Lado, Inc. v. Mayorkas, No. 17-CV-02366-BAS-KSC, 2022 WL 3970755
(S.D. Cal. Aug. 23, 2022)--which they have appealed to the Ninth
Circuit,\198\ as limiting the Departments' discretionary authority to
apply new asylum limitations conditions consistent with section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), to the injunction
class. See, e.g., Milliken v. Bradley, 433 U.S. 267, 281-82 (1977)
(``The well-settled principle that the nature and scope of the remedy
are to be determined by the violation means simply that federal-court
decrees must directly address and relate to the [alleged wrongful
conduct] itself.''); Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1480
(9th Cir. 1994); see also, e.g., Thomas v. Cty. of Los Angeles, 978
F.2d 504, 509 (9th Cir. 1992) (reversing injunction that ``fail[ed] to
specify the act or acts sought to be restrained as required by''
Federal Rule of Civil Procedure 65(d)).\199\ In any
[[Page 31383]]
event, certain injunction class members whose cases are reopened or
reconsidered under the Al Otro Lado injunction because they were
removed following application of the TCT Bar may follow a DHS-
established process to request ``appropriate authorization to travel to
the United States to seek parole, pursuant to a DHS-approved parole
process,'' as outlined in 8 CFR 208.33(a)(2)(ii)(A),
1208.33(a)(2)(ii)(A), to participate in renewed removal proceedings.
Injunction class members who follow those procedures would thus not be
subject to the rebuttable presumption.
---------------------------------------------------------------------------
\198\ See Al Otro Lado, Inc. v. Mayorkas, Nos. 22-55988, 22-
56036 (9th Cir. Oct. 25, 2022)
\199\ Further, the commenter's position that the Al Otro Lado
injunction applies to this rule is inconsistent with Al Otro Lado
Class Counsel's website: ``[T]he Biden Administration proposed a
similar rule in February 2023, but the Al Otro Lado v. Mayorkas
court order does not cover the new rule. The court order only
applies to the rule implemented on July 16, 2019. See American
Immigration Council, Your Rights Under Al Otro Lado v. Mayorkas,
https://www.americanimmigrationcouncil.org/al-otro-lado-mayorkas
(last visited Apr. 21, 2023).
---------------------------------------------------------------------------
Comment: Many commenters noted that the courts, in addressing the
TCT Bar rules and the Proclamation Bar IFR, held that the Departments
could not promulgate a regulation that restricts access to asylum based
on manner or location of entry into the United States or transit
through a third country. Commenters similarly asserted, citing the
Ninth Circuit's decision in East Bay III, that the proposed rule is not
``consistent with'' section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1),
and also violates international law.
Response: The holdings relating to the TCT Bar rules and the
Proclamation Bar IFR do not undermine this rule. As discussed in
Section IV.D.1.ii of this preamble, this rule does not conflict with
the INA's safe-third-country and firm-resettlement bars. 88 FR at
11736; see R-S-C, 869 F.3d at 1187 n.9. While the applicability of the
rebuttable presumption of ineligibility turns in part on transit
through a third country, 8 CFR 208.33(a)(1)(iii), 1208(a)(1)(iii), the
ultimate eligibility decision requires case-by-case evaluation of
whether an exception applies and whether the noncitizen rebutted the
presumption. 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3); cf.
East Bay I, 994 F.3d at 982-83 (indicating that the Departments cannot
rely ``solely'' on a noncitizen's decision not to seek asylum in a
third country in denying their asylum application in the United
States).
Regarding the Proclamation Bar, East Bay III enjoined a categorical
entry bar as inconsistent with the statutory provision allowing
``migrants arriving anywhere along the United States's border'' to
apply for asylum. 993 F.3d at 669. Unlike the Proclamation Bar IFR,
this rule involves a rebuttable presumption that includes consideration
of numerous factors unrelated to the manner of entry, including transit
through a third country. 88 FR at 11707; 8 CFR 208.33(a)(1)(iii), (2)
and (3), 1208.33(a)(1)(iii), (2) and (3). And, as discussed in Section
IV.D.1.i of this preamble, the rule is consistent with INA section 208,
8 U.S.C. 1158. See 88 FR at 11707, 11740; 8 CFR 208.33(a)(2),
1208.33(a)(2) (providing for exceptions to applicability of the
rebuttable presumption); 8 CFR 208.33(a)(3), 1208.33(a)(3) (providing
ways to rebut the presumption of ineligibility). The provided lawful
pathways, third country transit components, exceptions to the
presumption, and the fact-intensive, case-by-case analysis for
rebutting the presumption demonstrate that the condition imposed by
this rule is distinct from the ``categorical ban'' enjoined in East Bay
III, 993 F.3d at 669-70. Notwithstanding this distinction, the
Departments reiterate that they disagree with the holding in East Bay
III that the Proclamation Bar IFR was inconsistent with section 208(a)
of the INA, 8 U.S.C. 1158(a). 88 FR at 11739; see E. Bay III, 993 F.3d
at 670; see also Section IV.D.1.i of this preamble.
The rule also does not violate the United States' obligations under
international treaties. As discussed in Section IV.D.3 of this
preamble, the rule is not a penalty based on manner of entry and does
not violate treaty commitments regarding non-refoulement. The
Departments also disagree with the decision in East Bay III on this
point as applied to the Proclamation Bar IFR. 88 FR at 11739; see East
Bay III, 993 F.3d at 672-75. In any event, East Bay III does not render
this rule unlawful. In East Bay III, the Ninth Circuit determined that
the Proclamation Bar IFR ``ensure[d] neither'' ``the safety of those
already in the United States'' nor ``the safety of refugees,'' which
were the purposes behind the asylum bars in the INA and in the Refugee
Convention. 993 F.3d at 673. Conversely, as explained in the NPRM, a
purpose of this rule is to reduce reliance on dangerous routes to enter
the United States used by criminal organizations and smugglers, thus
protecting the safety of refugees. 88 FR at 11707. Furthermore, one of
the enumerated categories for rebutting the presumption in the rule is
demonstrating that the noncitizen faced an imminent and extreme threat
to life or safety at the time of entry into the United States. 8 CFR
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Ninth Circuit's concerns
are therefore not present in this rule.
Comment: Relying on cases enjoining the TCT Bar rules and the
Proclamation Bar IFR, commenters asserted that the proposed rule is
invalid because the condition in the proposed rule is unrelated to the
merits of the asylum claim.
Response: The Departments disagree that the cases involving the TCT
Bar rules demonstrate that this rule is invalid. As discussed in
Section IV.D.1.i of this preamble, the INA provides the Departments
with the authority to impose limitations or conditions on asylum
eligibility. INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C),
(d)(5)(B). But the statute neither qualifies what types of limitations
or conditions may be imposed--except insofar as such limitations or
conditions must be consistent with the INA--nor states that any such
limitations or conditions must relate to whether the noncitizen has
demonstrated or can demonstrate that they meet the definition of a
refugee under section 101(a)(42)(A) of the INA, 8 U.S.C.
1101(a)(42)(A). Indeed, several of the statutory restrictions on asylum
eligibility are unrelated to whether the noncitizen has established
that they are a refugee within the meaning of section 101(a)(42)(A) of
the INA, 8 U.S.C. 1101(a)(42)(A). See, e.g., INA 208(b)(2)(A)(i), 8
U.S.C. 1158(b)(2)(A)(i) (participating in the persecution of others);
INA 208(b)(2)(A)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) (reasonable grounds
for considering the noncitizen a danger to the security of the United
States). And section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C),
provides for the promulgation of ``additional limitations and
conditions.'' (emphasis added). The existence of exceptions and
conditions that are unrelated to the refugee definition both
demonstrates that it is lawful for the Departments to promulgate this
condition on asylum eligibility and undermines the Ninth Circuit's
limitation on scope of any regulatory condition. E. Bay I, 994 F.3d at
979. There is no basis to assume that Congress intended to circumscribe
the scope of limitations or conditions that the Departments can
promulgate when the statute does not do so and Congress itself provided
for exceptions unrelated to the meaning of ``refugee'' in section
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). R-S-C, 869 F.3d at 1187 n.9
(rejecting a statutory construction that would circumscribe the type of
limitations or conditions promulgated under section 208(b)(2)(C) of the
INA, 8 U.S.C. 1158(b)(2)(C), because such restrictions ``would render
[section] 1158(b)(2)(C) meaningless, disabling the Attorney General
from adopting further
[[Page 31384]]
limitations while the statute clearly empowers him to do so.'').
In addition, the rule is not precluded by either East Bay I or East
Bay III. Neither of these decisions require that a condition on asylum
eligibility relate to the definition of refugee under section
101(a)(42)(A), 8 U.S.C. 1158(a)(42)(a). Accordingly, the injunctions
and vacatur decisions relating to the TCT Bar rules and the
Proclamation Bar do not render this rule unlawful.
3. International Law
Comment: Commenters expressed concern that the NPRM, if finalized,
would violate the United States' non-refoulement obligations under
international law, including Article 33 of the Refugee Convention,
which the commenters generally explained as prohibiting the return of
asylum seekers to a country where their lives or freedom would be
threatened on account of a protected ground. Specifically, commenters
voiced apprehension that the NPRM would ``bar'' most protection-seeking
noncitizens from being eligible for asylum, leaving them able to apply
only for statutory withholding of removal or CAT protection. Commenters
predicted that many noncitizens would not be able to satisfy the
comparatively higher standards of proof for statutory withholding and
CAT claims and that, in turn, would lead to the refoulement of persons
who, if not for the NPRM's ``bar'' to asylum eligibility, would have
been granted asylum.
Applying similar reasoning, some commenters raised that the
proposed rule may violate Article 3 of the CAT, which prohibits state
parties from returning people to a country where there is sufficient
likelihood that they would be tortured. One commenter stated that
conditioning asylum based on manner of entry would be in violation of
the CAT.
Commenters also argued the rule conflicted with other provisions of
the Refugee Convention and Protocol. Commenters noted that Article 31
of the Refugee Convention prohibits states from imposing improper
penalties for irregular entry, which commenters argued included
administrative penalties and limits on access to asylum. Commenters
also stated the proposed rule would violate Article 3, which prohibits
non-discrimination, and Article 16, which protects refugees' access to
the courts. One commenter stated that the proposed rule is more
expansive than the Refugee Convention's exclusion for migrants who
secured residency or status in another country.
Relatedly, several commenters pointed to United Nations High
Commissioner for Refugees (``UNHCR'') statements and guidance
interpreting the Refugee Convention and the Refugee Protocol.
Specifically, commenters pointed to UNHCR guidance interpreting those
documents as providing that asylum seekers are not required to apply
for protection in the first country where protection is available.
Further, commenters noted that UNHCR interprets those documents as not
requiring refugees to be returned to a country through which they
transited. Commenters further noted UNHCR's positions that asylum
should not be refused only on the basis that it could have been sought
in another country and that asylum seekers should not be required to
seek protection in a country to which they have no established links. A
commenter also noted that UNHCR has repeatedly denounced attempts to
impose similar bans, and that such rules undermine international human
rights and refugee law, because the right to seek asylum is a human
right regardless of the person's origin, immigration status, or manner
of arrival at the border.
Several commenters also argued that the rule violated the United
States' obligations under other international documents. Some
commenters simply made a general assertion that the rule would violate
international treaties and degrade the United States' international
standing. Several commenters stated that the proposed rule is contrary
to the Universal Declaration of Human Rights (``UDHR''). Commenters
argued that the UDHR protects the right to seek asylum, and that any
restriction or limitation to access asylum is a violation of the letter
and spirit of the UDHR. Other commenters stated that the rule violated
the United Nations Convention on the Rights of the Child (``CRC'')
because it did not provide for a robust, individualized assessment of a
child's asylum claim. One commenter stated that the rule would place
migrant children and their families at a higher risk of exploitation
and trafficking, in contravention of obligations pursuant to the
Optional Protocol on the Sale of Children and the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and
Children (``The Palermo Protocol''). Another commenter contended the
rule violates Article 7 of the International Covenant on Civil and
Political Rights (``ICCPR''), which forbids subjecting individuals to
``torture or to cruel, inhuman or degrading treatment or punishment,''
and violates Article 12, which confirms the rights of individuals to
leave any country. Several commenters claimed that the rule would
violate anti-discrimination principles in a variety of agreements and
declarations including the ICCPR, International Convention on the
Elimination of All Forms of Racial Discrimination (``ICERD''), the
American Declaration on the Rights and Duties of Man, Vienna
Declaration, and San Jose Action Statement. Another commenter stated
the proposed rule violates the right to life, human dignity, and
equality before the law in the ICCPR because the proposed rule was
``discriminatory'' and establishes ``great inequality.'' Commenters
also claimed conflicts with treaties including Article 6 of the Rome
Statute of International Criminal Court, which prohibits genocide, and
Article 32 of the Geneva Convention.
Response: This rule is consistent with the United States'
obligations under international law. Three primary documents govern the
rights of refugees and corresponding obligations of states in
international law: the Refugee Convention; the Refugee Protocol, which
incorporates Articles 2 through 34 of the Refugee Convention; and the
CAT. Together, these documents provide a framework for states to
provide protection to migrants fleeing persecution or torture and
establish the principle of non-refoulement, which prohibits states from
returning refugees to territories in specific circumstances. While the
United States is a party to the Refugee Protocol and the CAT, these
treaties are not directly enforceable in U.S. law. See INS v. Stevic,
467 U.S. 407, 428 & n.22 (1984); Al-Fara v. Gonzales, 404 F.3d 733, 743
(3d Cir. 2005) (``The 1967 Protocol is not self-executing, nor does it
confer any rights beyond those granted by implementing domestic
legislation.''). Instead, the United States has implemented its
obligations through domestic legislation and implementing regulations,
and the Protocol ``serves only as a useful guide in determining
congressional intent in enacting the Refugee Act.'' Barapind v. Reno,
225 F.3d 1100, 1107 (9th Cir. 2000). The Refugee Convention's non-
refoulement obligation is contained in Article 33.1, which prohibits
contracting states from returning a refugee to a territory ``where his
life or freedom would be threatened'' on account of an enumerated
ground. The United States has implemented the non-refoulement
provisions of Article 33.1 of the Refugee Convention through the
withholding of removal provisions at section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), rather than through the
[[Page 31385]]
asylum provisions at section 208 of the INA, 8 U.S.C. 1158. See
Cardoza-Fonseca, 480 U.S. at 429, 440-41. The CAT's non-refoulement
provision is in Article 3, which prohibits the return of a person to a
country where there are ``substantial grounds for believing'' the
person will be tortured. The United States implemented its obligations
under the CAT through regulations. See Foreign Affairs Reform and
Restructuring Act of 1998 (``FARRA''), Public Law 105-277, sec.
2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note); 8 CFR
208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, 1208.18. The rule does
not change or limit eligibility for statutory withholding of removal or
CAT protection. Instead, applicants subject to the rule's rebuttable
presumption will be screened for eligibility for statutory withholding
of removal and CAT protection under a reasonable possibility standard.
As explained earlier in Section IV.D.1.iii of this preamble, the
reasonable possibility standard is the same standard that has been used
to ensure the United States complies with its non-refoulement
obligations under international law in withholding-only proceedings for
decades.
The rule's rebuttable presumption will limit asylum eligibility for
some noncitizens. But as the Supreme Court has explained, asylum ``does
not correspond to Article 33 of the Convention, but instead corresponds
to Article 34,'' which provides that contracting countries ``shall as
far as possible facilitate the assimilation and naturalization of
refugees.'' Cardoza-Fonseca, 480 U.S. at 441 (quotation marks omitted).
Article 34 ``is precatory; it does not require the implementing
authority actually to grant asylum to all those who are eligible.'' Id.
Because application of the presumption does not affect eligibility for
statutory withholding of removal or protection under the CAT
regulations, the rule is consistent with U.S. non-refoulement
obligations under the Refugee Protocol (incorporating, inter alia,
Article 33 of the Refugee Convention) and the CAT. See R-S-C, 869 F.3d
at 1188 n.11 (explaining that ``the Refugee Convention's non-
refoulement principle--which prohibits the deportation of aliens to
countries where the alien will experience persecution--is given full
effect by the Attorney General's withholding-only rule''); Cazun v.
U.S. Att'y Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia
v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016).
The Departments agree that asylum is an important protection in
international law and acknowledge that the right to seek asylum has
been recognized under the UDHR, Art. 14, G.A. Res. 217A (III), U.N.
Doc. A/810 (1948). The UDHR is a non-binding human rights resolution of
the UN General Assembly, and thus it does not impose legal obligations
on the United States. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35
(2004) (``[T]he [UDHR] does not of its own force impose obligations as
a matter of international law.''). Instead, the right enshrined in the
UDHR--``to seek and to enjoy in other countries asylum from
persecution,'' UDHR, Art. 14, G.A. Res. 217A (III), U.N. Doc. A/810
(1948)--is also reflected in the non-refoulement provisions of the
Refugee Protocol and the CAT. As previously explained, the rule does
not impact eligibility for statutory withholding of removal or CAT
protection, and accordingly does not implicate the United States' non-
refoulement obligations. Moreover, the rebuttable presumption in the
rule does not prohibit any person from seeking asylum, statutory
withholding of removal, or CAT protection. Instead, the rule creates a
condition on eligibility for asylum by creating a rebuttable
presumption of ineligibility for those who neither avail themselves of
a lawful pathway to the United States nor apply for asylum or seek
other protection, and await a decision thereon, in a country they
travel through. The rule similarly does not bar those seeking asylum
from procedures that protect them from refoulement. All noncitizens
processed for expedited removal who express a fear of return are
entitled to a credible fear interview. As with any eligibility
criteria, the presumption will apply in some cases to limit eligibility
for noncitizens based on the individual circumstances presented,
including at the credible fear stage. Even in those cases where the AO
determines that the noncitizen cannot demonstrate a significant
possibility of being granted asylum because the presumption has not
been rebutted, the noncitizen may still demonstrate credible fear by
showing a reasonable possibility of persecution or torture. Similarly,
after applying for asylum before an IJ, if the presumption has not been
rebutted, noncitizens may still demonstrate eligibility for statutory
withholding of removal or CAT protection.
The rule is also consistent with the Refugee Convention and the
corresponding obligations under international law, including specific
provisions cited by commenters. The rule does not violate the non-
discrimination requirement in Article 3 of the Refugee Convention.
Article 3 prohibits discrimination on the basis of ``race, religion or
country of origin.'' The rule does not discriminate on the basis of any
of these protected characteristics. Instead, it is a rule of equal
application based on the actions of the noncitizen. The application of
the rule is limited to those circumstances where the noncitizen who is
not excepted from its coverage has neither utilized an available lawful
pathway nor sought protection and received a decision denying
protection in a country traveled through, and cannot demonstrate that
the failure to do was excusable under the rule or otherwise rebut the
presumptive ineligibility. For the same reason, the rule does not
violate other anti-discrimination requirements in international law,
including the ICERD, Dec. 21, 1965, 660 U.N.T.S. 195, 212, and the
ICCPR, Dec. 16, 1966, 999 U.N.T.S. 171.
Neither is the rule inconsistent with Article 16 of the Refugee
Convention. Article 16 establishes that refugees should be given ``free
access to the courts,'' and in the country of a refugee's habitual
residence, access should be equivalent to that of a national. This
enshrines the right of the refugee to sue and be sued in practice--not
merely in name--by removing barriers to participating in court such as
access to government-provided counsel (where the government otherwise
provides it), ensuring court fees are not higher for refugees than
nationals, and prohibiting cautio judicatum solvi, the practice of
requiring a bond for the costs of litigation as a pre-requisite to
filing a complaint. See Refugee Convention, Art. 16, Travaux
Pr[eacute]paratoires & Commentaries. These rights are not implicated by
the rule.
Similarly, the rule is not inconsistent with Article 31 of the
Refugee Convention, which prohibits states from ``impos[ing]
penalties'' on refugees based on ``illegal entry or presence.'' As the
commentary to the Refugee Convention explains, the term ``penalties''
in Article 31 refers ``to administrative or judicial convictions on
account of illegal entry or presence, not to expulsion.'' Refugee
Convention Art. 31, commentary; see Cazun v. Att'y Gen. U.S., 856 F.3d
249, 257 & n.16 (3d Cir. 2017) (rejecting argument that the
reinstatement bar to asylum was a ``penalty'' within the meaning of
Article 31). The rule does not change any rules or policies relating to
detention or convictions for unlawful entry or presence. The
Departments acknowledge that the Ninth Circuit concluded in East Bay
III, 993 F.3d at 674, that the bar to asylum at issue in that case
violated Article 31 of the
[[Page 31386]]
Refugee Convention because it imposed a ``penalty.'' As described in
the NPRM, the rule here does not create a categorical bar to asylum,
but instead a rebuttable presumption, and East Bay III accordingly does
not address the lawfulness of this rule. 88 FR at 11739. Moreover, the
Ninth Circuit's conclusion was erroneous because the denial of
discretionary relief is not a penalty within the meaning of Article 31.
Id.
Some commenters correctly observed that the Refugee Convention does
not require refugees to apply for asylum in the first country they pass
through. This rule, however, does not require noncitizens to apply for
asylum in the first--or any--country through which they travel.
Instead, the rule applies a rebuttable presumption to certain
noncitizens who failed to avail themselves of a lawful pathway. One
such pathway is to apply for asylum and receive a final denial in a
transit country, but it is not the sole lawful pathway available.
Noncitizens who fail to avail themselves of a lawful pathway may still
rebut the presumption of ineligibility for asylum. Regardless, the
Convention does not require the United States to grant asylum to every
person who qualifies as a ``refugee'' under the INA; instead, the
United States implements the Convention's prohibitions on refoulement
through statutory withholding of removal. UNHCR has stated that ``the
primary responsibility to provide protection rests with the State where
asylum is sought.'' \200\ But UNHCR also acknowledges that ``refugees
do not have an unfettered right to choose their `asylum country.' ''
\201\
---------------------------------------------------------------------------
\200\ UNHCR, Guidance Note on bilateral and/or multilateral
transfer arrangements of asylum-seekers, para. 3(i) (May 2013),
https://www.refworld.org/docid/51af82794.html.
\201\ UNHCR, Legal Considerations Regarding Access to Protection
and a Connection Between the Refugee and the Third Country in the
Context of Return or Transfer to Safe Third Countries, at 1 (Apr.
2018), https://www.refworld.org/pdfid/5acb33ad4.pdf.
---------------------------------------------------------------------------
In any event, UNHCR's interpretations of or recommendations
regarding the Refugee Convention and Refugee Protocol are ``not binding
on the Attorney General, the BIA, or United States courts.'' INS v.
Aguirre-Aguirre, 526 U.S. 415, 427 (1999). ``Indeed, [UNHCR's Handbook
on Procedures and Criteria for Determining Refugee Status] itself
disclaims such force, explaining that `the determination of refugee
status under the 1951 Convention and the 1967 Protocol . . . is
incumbent upon the Contracting State in whose territory the refugee
finds himself.' '' Id. at 427-28 (quoting Cardoza-Fonseca, 480 U.S. at
439 n. 22). Such guidance ``may be a useful interpretative aid,'' id.
at 427, but it does not create obligations for the United States.
The rule similarly does not violate the United States' obligations
under other international laws and treaties, including the Geneva
Conventions, the Rome Statute, the ICCPR, the CRC, or customary
international law. First, the Geneva Conventions, a series of treaties
that regulate the conduct of armed conflict, have no bearing on the
rule. Commenters pointed to Articles 32 and 33 of the Fourth Geneva
Convention, which prohibit corporal punishment or mass punishment
against protected persons. Geneva Convention Relative to the Protection
of Civilian Persons in Time of War (``Fourth Geneva Convention''), 12
Aug. 1949, 75 UNTS 287. Under Article 4, ``protected persons'' are
limited to those who, during a conflict or occupation, are ``in the
hands of a Party to the conflict or Occupying Power.'' As the rule does
not implicate a conflict or occupation, there is no conflict with the
Geneva Conventions. While at least one commenter pointed to the
definition of genocide in Article 6 of the Rome Statute, the United
States is not a party to and has no obligations pursuant to the Rome
Statute. In any event, the rule plainly does not constitute or involve
genocide in any way. See Rome Statute of the International Criminal
Court, United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, July 17, 1998, U.N.
Doc. A/CONF.183/9 (1998). Similarly, the United States has not ratified
the CRC and thus has no obligations under that instrument, 1577
U.N.T.S. 3, reprinted in 28 I.L.M. 1448, 1456 (Nov. 20, 1989).\202\
Again, even if considered customary international law--although the
United States maintains that it is not--the CRC requires only that
States take appropriate measures to protect children who are refugees.
See CRC, Article 22. The rule accounts for the interests of children
through creating robust screening procedures, exempting unaccompanied
children from the application of the rule, having a family unity
exception, and exempting certain noncitizens who enter as children from
ongoing application of the presumption after the two-year period.
Additionally, the adjudicator may consider on a case-by-case basis
whether the child's situation presents exceptionally compelling
circumstances, including considering the circumstances surrounding the
child's manner of entry, thus rebutting the presumption.
---------------------------------------------------------------------------
\202\ See Status of Ratification, Office of the High
Commissioner for Human Rights, https://indicators.ohchr.org/.
---------------------------------------------------------------------------
4. Recent Executive Orders
Comment: Some commenters stated without explanation that the rule
is contrary to 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). Other commenters stated
that to restore faith in the U.S. asylum system as the Executive Order
aims to do, the ``government'' should take various steps, including
``adequately fund[ing] a fair asylum system'' rather than ``wast[e]
money on immigration enforcement that separates families, traumatizes
children, and tears our communities apart.'' Commenters further stated
that the Administration should end the use of expedited removal,
increase the scale and pace of refugee admissions, and expand lawful
pathways for people ``fleeing from countries with failed government and
uncontrolled violence.'' On the other hand, some commenters were
critical of the rule because they believed it was not strict enough
and, accordingly, averred that the rule is consistent with the
Executive Order because it will ``remov[e] barriers to immigration.''
Response: As a threshold matter, Executive Order 14012 does not
require DOJ or DHS to adopt any specific policies but rather to (1)
identify barriers that impede access to immigration benefits and fair,
efficient adjudications of these benefits and make recommendations on
how to remove these barriers; (2) identify any agency actions that fail
to promote access to the legal immigration system and recommend steps,
as appropriate and consistent with applicable law, to revise or rescind
those agency actions; (3) submit a plan describing the steps they will
take to advance these policies; and (4) submit reports regarding
implementation of those plans. 86 FR 8277. Because Executive Order
14012 does not require the adoption of specific policies, the actions
taken here do not violate that Executive Order.
To the extent commenters believe that the rule is inconsistent with
Executive Order 14012, the Departments disagree. Consistent with
Executive Order 14012's promotion of removing barriers to accessing
immigration benefits and access to the legal immigration system, DHS
has created multiple parole processes to provide certain migrants with
pathways to temporarily enter and remain in the United States. During
[[Page 31387]]
those periods of stay, those noncitizens may seek asylum and related
protection or other benefits for which they may be eligible. The rule
furthers the policy discussed in the Executive Order by encouraging
noncitizens to use those parole processes, as well as the CBP One app
to enter the United States through a safe, orderly process. This rule
also discourages unlawful border crossings that overwhelm limited
government resources along the SWB. The Departments believe that there
will be efficiency gains from having noncitizens pre-register for
appointments--saving considerable processing time--and from decreased
encounters between POEs with persons who claim a fear of persecution or
torture, the processing of whom requires more resources than processing
noncitizens who pursue a lawful pathway. It is correct that
implementing the rule will increase the duration of some credible fear
screenings. However, the Departments expect that fewer individuals with
non-meritorious claims will receive positive screening determinations,
which will result in a more efficient asylum system overall.
The Departments acknowledge commenters' recommendations to provide
additional funding for the asylum system and end expedited removal.
Both of those actions are outside the Departments' authority and would
require congressional action. Ending the use of expedited removal in
the absence of congressional action is outside the scope of this
rulemaking. The Departments have considered commenters' recommendation
of adding lawful pathways for people leaving countries with failed
governments. This rule does not create any lawful pathways and thus the
comment is outside the scope of this rulemaking.
Comment: Commenters expressed concern that the rule is inconsistent
with Executive Order 14010, 86 FR 8267, because they believe it
contradicts the instruction to develop policies and procedures for the
safe and orderly processing of asylum claims at the U.S. land borders.
Commenters stated that rather than developing policies for the safe and
orderly processing of asylum claims, the rule instead would restrict
the availability of asylum in a way that would make it impossible for
most asylum seekers to access the asylum system. Commenters further
asserted that rather than restoring faith in the U.S. asylum system,
the rule attempts to ``deport refugees to danger based on manner of
entry and transit in circumvention of existing refugee law and treaty
obligations.'' Commenters also suggested that the rule resurrects the
PACR and HARP programs that the Executive Order ended.
Commenters also criticized the Departments for not following ``the
collaborative process called for in'' the Executive Order.
Specifically, commenters stated that Departments have failed to
``follow Executive Order 14010's mandate to consult with affected
organizations'' as they are unaware of any ``consultation or planning''
that has occurred between when the Executive Order was issued and the
publication of the NPRM.
Response: The Departments disagree with these commenters because
the rule, as directed by Executive Order 14010, encourages use of
lawful pathways to enter the United States, which will foster safe,
orderly, and more efficient processing of asylum claims for those
individuals seeking asylum, while discouraging unlawful border
crossings that overwhelm limited resources and unfairly delay the
adjudication of meritorious claims for asylum and other forms of
protection. The rule is designed to incentivize noncitizens to avail
themselves of a lawful pathway to enter the United States, which allows
for more efficient use of DHS resources. By incentivizing the pursuit
of lawful pathways, the Departments are promoting safe and orderly
processing along the SWB as Executive Order 14010 instructs--processing
that seeks to minimize the role of criminal organizations that
prioritize profits over migrants' lives.
The Departments disagree with commenters that the rule resurrects
PACR and HARP. Those programs were developed by DHS to promptly address
credible fear claims of single adults and family units while the
noncitizens remained in CBP custody.\203\ This rule, in contrast, does
not change the timeline for credible fear screenings. Nor does it
affect where noncitizens are located during such screenings. Thus,
commenters' comparisons to PACR and HARP are misplaced.
---------------------------------------------------------------------------
\203\ See Mem. of Law in Opp'n to Pls.'s Mot. for Summ. J. & in
Supp. of Defs.' Cross-Mot. for Summ. J. at 8-11, Las Ams. Immigrant
Advoc. Ctr. v. Wolf, No. 19-cv-3640 (D.D.C. Feb. 6, 2020).
---------------------------------------------------------------------------
Commenters are similarly mistaken regarding DHS's responsibilities
under the Executive Order. Commenters are correct that the Executive
Order instructed the Secretary and Director of the CDC, ``in
coordination with the Secretary of State, . . . [to] 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,
consistent with public health and safety and capacity constraints.'' 86
FR at 8269. DHS has worked with NGOs to implement the exceptions to the
Title 42 public health Order and continues to seek collaboration
through seeking comment on this rule.
Comment: Some commenters stated that the rule violates Executive
Order 14011, Establishment of Interagency Task Force on the
Reunification of Families, 86 FR 8273 (Feb. 2, 2021), and amounts to
the legalization of family separation, in contravention of that
Executive Order.
Response: In Executive Order 14011, President Biden announced the
creation of a task force to identify children who were separated from
their families between January 20, 2017, and January 20, 2021, and,
among other things, to the greatest extent possible, facilitate and
enable the reunification of those children with their families. 86 FR
at 8273. In doing so, President Biden stated that his Administration
``will protect family unity and ensure that children entering the
United States are not separated from their families, except in the most
extreme circumstances where a separation is clearly necessary for the
safety and well-being of the child or is required by law.'' Id. The
rule is consistent with this policy statement. The rule includes
multiple provisions aimed at ensuring that families who enter the
United States from Mexico at the SWB or adjacent coastal borders are
not inadvertently separated. For example, where an exception or
rebuttal circumstance applies to one member of a family, it is applied
to all members of the family. See 8 CFR 208.33(a)(2)(ii), (3)(i),
1208.33(a)(2)(ii), (3)(i). And where asylum is denied to a noncitizen
because of the presumption of ineligibility but one member of the
noncitizen's family who traveled with the noncitizen obtains protection
from removal through statutory withholding of removal or CAT, the
circumstance will be deemed exceptionally compelling for the noncitizen
denied such relief, allowing the family to remain together. See 8 CFR
1208.33(c). Finally, as described in Section IV.E.7.ii of this
preamble, the Departments have expanded the family unity provision to
cover spouses and children who would be eligible to follow to join the
applicant if that applicant were granted asylum, as described in
section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A). 8 CFR
1208.33(c). Such measures were adopted in accordance with Executive
Order 14011 to ensure that family units will not be separated as a
result of this rule.
[[Page 31388]]
Comment: Commenters stated that the Departments should take into
account Executive Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(Jan. 20, 2021), and the more recent Executive Order 14091, Further
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government, 88 FR 10825 (Feb. 16, 2023), and stated that
the agencies have not considered these underserved populations and that
this rule is evidence that these Executive Orders were not considered
in the rule-making process. Commenters more broadly criticized the rule
as ``betraying promises'' made in the Executive Orders because they
believe the rule will have a disproportionate effect on certain groups
of noncitizens and argued that the rule is generally out of line with
the Executive Orders. Commenters also suggested that ``[o]verly relying
on the [CBP One] app . . . will significantly thwart the Biden
administration's stated commitment to racial justice and equity.''
Commenters further stated that the rule undermines the commitment in
the Executive Orders and ``will endanger Black, Brown, and Indigenous
asylum seekers.'' Commenters asserted that the rule ``will perpetuate
systemic and institutional racism and injustice,'' noting concerns
about the accessibility of the CBP One app for those who speak
languages other than English, Spanish, and Haitian Creole; ``the app's
widely reported misidentification of people of color''; the
exacerbation of ``existing discrepancies in outcome[s] for individuals
without legal representation''; and the ``further solidif[ication of]
inequities and injustice in our immigration system.''
Response: On President Biden's first day in office, January 20,
2021, he issued Executive Order 13985. On February 16, 2023, he issued
Executive Order 14091, which reiterated the policy goals detailed in
Executive Order 13985 and discussed the ways in which those policy
goals had been furthered since that Executive Order. Both Executive
Orders describe President Biden's policy of ``advancing equity for all,
including communities that have long been underserved, and addressing
systemic racism in our Nation's policies and programs.'' 88 FR at
10825. As discussed throughout this preamble, the Departments have
designed the rule to include a tailored rebuttable presumption in order
to address a specific problem along the SWB. As discussed in Section
IV.B.4.vi of this preamble, the Departments do not have any
discriminatory purpose in adopting the rule. The Departments have
addressed concerns about the disparate impact of the rule on various
communities in Section IV.B.4 of this preamble, the concerns relating
to the CBP One app's liveness software are addressed in Section
IV.E.3.ii of this preamble, and concerns about pro se individuals are
discussed in Section IV.B.5.ii of this preamble. Finally, as discussed
in Section IV.E.3 of this preamble, the rule provides an exception to
the application of the rebuttable presumption for those who appear at a
POE without a pre-scheduled appointment and for whom scheduling an
appointment was impossible due to a language barrier. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
5. Other Comments on Legal Authority
Comment: One commenter noted that the proposed rule ``is not a
legislative act'' and is instead subject to the Administrative
Procedure Act, but ``the persons to whom the rule applies are excluded
from appearing within the USA to challenge the administrative
requirement for exhaustion of remedies.''
Response: The Departments agree that this rule is not a legislative
act but instead the promulgation of agency regulations pursuant to the
APA. The Departments disagree that the rule implicates or changes the
exhaustion requirements in administrative law. The Departments note
that the rule does not apply to noncitizens in other countries; the
rule only applies to noncitizens who enter the United States and
thereafter file applications for asylum. Put differently, it will only
apply to noncitizens within the United States, who are not precluded
from filing an APA challenge by virtue of being outside of the United
States, but who may be limited in the types of challenges they can
bring to its application during the credible fear process under section
242(e) of the INA, 8 U.S.C. 1252(e). The Departments further note that
noncitizens who avail themselves of a lawful pathway to enter the
United States will not otherwise need to address the provisions of this
rule, as any subsequently filed asylum application will not be subject
to the rebuttable presumption. Any noncitizen subject to the rebuttable
presumption will be able to address its application to them and any
applicable exceptions or rebuttal grounds before an AO or IJ, and in
any available administrative appeal. Thus, the commenter's concern
about being able to bring an APA challenge from a foreign jurisdiction
are unfounded.
Comment: Commenters stated that litigation over and injunctions
against the rule would only exacerbate the confusion at the SWB.
Response: As explained previously in Section IV.D of this preamble,
the Departments believe this rule is lawful and that it should not be
subject to an injunction or otherwise halted in litigation. To the
extent it is possible that the rule will be halted or enjoined, the
Departments believe the risks are outweighed by the need to ensure safe
and orderly processing at the SWB.
Comment: Commenters stated that the proposed rule was silent as to
retroactive applicability and urged the Departments to ``make an
affirmative pronouncement'' that the rule will not apply retroactively.
Commenters were specifically concerned about the rule applying to
``anyone whose latest entry into the United States was prior to the
effective date(s) of the rule,'' which commenters stated is required by
section 551(4) of the APA, 5 U.S.C. 551(4). Commenters further raised
concerns that application of the rule to those who enter before its
effective date would ``infringe upon due process rights.''
Response: As written, the rule will not apply to anyone who enters
the United States before the rule is effective. The Departments believe
the NPRM's proposed language and the final language in this rule
clearly provide that the rebuttable presumption may only be applied to
those who enter the United States between the rule's effective date and
a date 24 months later. See 8 CFR 208.13(f), 208.33(a)(1)(i),
1208.13(f), 1208.33(a)(1)(i). The Departments decline to address the
applicability or requirements of due process or the APA in this regard
because the rule is explicit that it is only potentially triggered by
entries that take place after its effective date.
Comment: A commenter argued that the proposal fails to account for
``refugees''' reliance interests. The commenter wrote that refugees
have an interest and right against refoulement and in the United States
upholding domestic and international refugee law generally. The
commenter argued that the Departments only have ``circumscribed''
discretion in administering asylum, citing INA 208, 8 U.S.C. 1158, and
case law on establishing refugee status, and thus that refugees have a
cognizable reliance interest in asylum.
Response: As described earlier in Section IV.D.3 of this preamble,
the United States implements its non-
[[Page 31389]]
refoulement obligations through statutory withholding of removal, not
asylum. Thus, it is incorrect to suggest that the non-refoulement
obligations can raise a reliance interest in asylum. Additionally,
asylum is a discretionary form of relief to which no applicant is
entitled. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (``The Secretary
of Homeland Security or the Attorney General may grant asylum . . .
.''). Although ``longstanding policies may have `engendered serious
reliance interests that must be taken into account,''' Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016) (quoting Fox
Television, 556 U.S. at 515), the commenter does not explain in what
way noncitizens who are outside the United States have relied upon U.S.
asylum law. To the extent noncitizens outside the United States have
any cognizable reliance interests in the current rules governing
asylum, the Departments believe those interests would be outweighed by
the interest in incentivizing noncitizens to pursue safe, orderly, and
lawful pathways to seek protection, and preventing a potential surge of
migration at the southern border that threatens to overwhelm the
Departments' ability to process asylum claims in a safe and orderly
manner.
Comment: Commenters stated that the rule would violate the Pangea
injunction. See Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966 (N.D.
Cal. 2021).
Response: The court's order preliminarily enjoining the
implementation of Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, 85 FR 80274 (December 11,
2020) (``Global Asylum Rule'') and related policies in Pangea II, 512
F. Supp. 3d 966, does not prohibit the Departments from issuing this
rule or otherwise limit the Departments' discretionary authority to
adopt new asylum limitations consistent with section 208(b)(2)(C) of
the INA, 8 U.S.C. 1158(b)(2)(C). See, e.g., Milliken v. Bradley, 433
U.S. 267, 281-82 (1974) (``The well-settled principle that the nature
and scope of the remedy are to be determined by the violation means
simply that federal-court decrees must directly address and relate to
the [alleged wrongful conduct] itself.''); Meinhold v. U.S. Dep't of
Def., 34 F.3d 1469, 1480 (9th Cir. 1994); see also Thomas v. Cty. of
Los Angeles, 978 F.2d 504, 509 (9th Cir. 1992) (reversing injunction
that ``fail[ed] to specify the act or acts sought to be restrained as
required by'' Federal Rule of Civil Procedure 65(d)).
E. Comments on the Rule Provisions
1. General Feedback on the Rebuttable Presumption of Ineligibility
Comment: Commenters expressed concern that the requirements to
overcome the presumption would deprive asylum seekers of a meaningful
opportunity to seek protection, subject them to removal if they could
not meet the elevated standard for statutory withholding of removal,
and put them at risk of violence or other harmful conditions.
Commenters said that the proposed rule would require noncitizens to
gather evidence and present arguments to rebut the presumption against
asylum eligibility, establish an exception, or prove that they are not
subject to the rule. Some said it would be difficult or impossible for
noncitizens arriving at the SWB to do so, given that most are detained
during credible fear proceedings; that they may lack access to
supporting documentation; that CBP officers may confiscate their
property; and that the determination is made in a single interview.
Therefore, commenters stated, the rule would categorically deny relief,
bar asylum, or result in ``automatic ineligibility'' for most or all
noncitizens who would be subject to it. Commenters stated that
noncitizens would be at the mercy of the AOs' credibility assessment
and discretion. Some commenters said there was no indication that AOs
would have to elicit relevant testimony and suggested this requirement
should be included in the rule. One commenter wrote that individuals
who have previously experienced any of the per se exemptions for
rebuttal may still be experiencing long-lasting effects that limit
their ability to rebut the presumption in the present. A commenter
stated that children and families would be unable to rebut the
presumption due to limited language access, absence of legal counsel,
and having their belongings confiscated.
Some commenters said that the grounds for rebutting the presumption
against asylum eligibility were too narrow, limited, or extreme and did
not relate to the merits of an asylum claim; they recommended that the
grounds be expanded. One commenter stated that the current examples of
exceptionally compelling circumstances would not protect the vast
majority of refugees who would qualify for asylum under U.S. law,
including many who enter the United States without an appointment due
to safety risks, medical issues, and other protection needs. Some
stated that narrow terms like ``exceptionally compelling,'' ``imminent
and extreme,'' and ``severe'' made the presumption too difficult to
rebut, while others expressed concern about the perceived vagueness of
these terms and said the rule provided inadequate guidance on them. One
commenter wrote that the nature of the grounds and exceptions make them
inherently difficult to corroborate with physical evidence. One
commenter expressed concerns that the proposed means of rebuttal do not
reference a subjective component, such as where the asylum seeker
believed they faced an acute medical emergency or imminent and extreme
threat. A legal services provider compared the proposed rule to the
one-year deadline to apply for asylum and stated that the one-year
deadline allows for even greater opportunities for rebuttal by allowing
an individual to show a number of exceptional circumstances beyond
those in the NPRM. Some commenters expressed concern about possible
lack of clarity in the evidentiary requirements to rebut the
presumption against asylum eligibility. Some stated that the lack of
definitions and documentary evidence requirements in the NPRM would
leave the adjudicator with an inordinate amount of discretion to decide
whether the presumption had been rebutted. Some commenters urged the
Departments to reverse the presumption or apply a rebuttable
presumption of eligibility for torture survivors.
Response: The Departments acknowledge these concerns but disagree
with them. As discussed throughout Section IV.B.5 of this preamble, AOs
conducting credible fear interviews have an affirmative duty to elicit
all testimony relevant to assessing eligibility for protection, which
will necessarily include testimony relevant to the rebuttable
presumption.\204\ Similarly, credible fear review by an IJ ``include[s]
an opportunity for the alien to be heard and questioned by the [IJ].''
INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). In
section 240 proceedings, IJs have a duty to develop the record, which
again will necessarily include facts and testimony relevant to the
rebuttable presumption. 8 CFR 1003.10(b) (``[IJs] shall administer
oaths, receive evidence, and interrogate, examine, and cross-examine
aliens and any witnesses.''); Quintero v. Garland, 998 F.3d 612, 626
(4th Cir. 2021). A noncitizen may be able to satisfy their burden of
proof through credible testimony alone, INA 208(b)(1)(B)(ii), 8
[[Page 31390]]
U.S.C. 1158(b)(1)(B)(ii), and the rule does not require any particular
evidence, including documentary evidence, to rebut or establish an
exception to the presumption under 8 CFR 208.33(a) and 1208.33(a).
---------------------------------------------------------------------------
\204\ USCIS, Eliciting Testimony; USCIS, Non-Adversarial
Interview 13 (``You control the direction, pace, and tone of the
interview and have a duty to elicit all relevant testimony.'').
---------------------------------------------------------------------------
The Departments believe that the exceptions to and means of
rebutting the presumption are appropriate in scope and detail and that
they need not be expanded by, for example, incorporating means of
rebuttal similar to the exceptions to the one-year deadline for
applying for asylum. To the extent that, at the time of entry, a
noncitizen reasonably believed that they faced an acute medical
emergency or imminent and extreme threat to life or safety, the rule
permits adjudicators to consider whether this situation may constitute
an ``exceptionally compelling circumstance[.]'' 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). As to concerns about disparate application amongst
AOs, all credible fear determinations undergo supervisory review to
ensure consistency, 8 CFR 208.30(e)(8), and noncitizens can request IJ
review of a negative determination, 8 CFR 208.33(b), 1208.33(b).
Determinations made by IJs in section 240 proceedings, including
determinations about the presumption, are subject to review by the BIA.
See 8 CFR 1003.1(b). Comments regarding AO and IJ conduct and training
are further addressed in Section IV.B.5.iii of this preamble. The
Departments decline to ``reverse'' the presumption of ineligibility for
certain cases, which would function as an additional exception to the
rule and undermine the rule's goal of incentivizing migrants, including
those intending to seek asylum, to use lawful, safe, and orderly
pathways to enter the United States or seek asylum or other protection
in another country through which they travel. However, even if
ineligible for asylum due to the presumption against asylum
eligibility, noncitizens who establish a reasonable possibility of
persecution or torture, 8 CFR 208.33(b)(2)(i), 1208.33(b)(2)(ii),
remain eligible to apply for statutory withholding of removal and
protection under the CAT. 8 CFR 208.16.
Comment: Commenters expressed opposition to the proposed
requirement that noncitizens satisfy the preponderance of the evidence
standard to rebut the presumption of ineligibility. Commenters stated
that using the preponderance of the evidence standard violates section
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v), by imposing a
different, higher standard than the ``significant possibility''
standard. Citing a 1996 statement from U.S. Senator Orrin Hatch, one
commenter stated that the application of the ``preponderance of the
evidence'' standard during the credible fear stage was considered and
rejected by Congress and that the Departments lack the authority to
resurrect and implement that standard through regulation. Some
commenters emphasized that the ``significant possibility'' standard is
an intentionally low screening standard for credible fear interviews
established by Congress. Some commenters stated that the
``preponderance of the evidence'' standard is even higher than the
``reasonable possibility'' standard to show a well-founded fear, which
in turn is higher than the ``significant possibility'' standard. Some
commenters stated that the ``preponderance of the evidence'' standard
imposes too high a burden on noncitizens in credible fear proceedings.
Commenters said it would be particularly difficult for detained,
unrepresented individuals to satisfy this burden or that the rule would
be hardest on disadvantaged noncitizens. One commenter recommended that
this heightened standard of proof not be implemented and that the
existing standard of proof be revised for consistency with
international norms to exclude only cases that are ``manifestly
unfounded or clearly abusive.''
Response: Commenters' concerns are based on an incorrect premise.
At the credible fear stage, AOs will apply the ``significant
possibility'' standard in assessing whether a noncitizen may ultimately
rebut the presumption of asylum ineligibility by a preponderance of the
evidence during a full merits adjudication. Because the ``significant
possibility'' standard is set by statute, see INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v), the Departments lack the authority to alter it
through rulemaking. For further discussion of this issue, see Section
IV.D.1.iii of this preamble.
Comment: Commenters stated that applying the rule's presumption of
ineligibility at the credible fear stage is different from how other
eligibility bars function in credible fear determinations. Some
commenters stated that the complex means of rebuttal would require a
lengthy, fact-based interview and ``intensive factual analysis,'' which
they claimed are not appropriate for credible fear interviews because
those interviews offer insufficient procedural protections. Another
commenter stated that the Departments recently recognized due process
problems with this approach when they rescinded the requirement that
certain mandatory bars to asylum be considered at the credible fear
screening stage.
One commenter expressed concern with the perceived discretion of
border officials during the proposed rebuttable presumption process,
asserting that the NPRM gave no clear indication of how, when, or in
front of whom the asylum seeker will have to present their evidence.
One commenter stated that DHS has a poor track record of making similar
determinations in the past, citing instances where noncitizens were
erroneously enrolled in the MPP, and stated that DHS has historically
failed to effectively screen asylum seekers for certain characteristics
and processes. One commenter stated that, under the NPRM, AOs would
determine whether individuals presented at the SWB without documents
sufficient for lawful admission pursuant to section 212(a)(7) of the
INA, 8 U.S.C. 1182(a)(7), but that AOs do not receive the same training
as CBP officers regarding that section.
Response: The Departments acknowledge that statutory bars to asylum
eligibility have not historically applied at the credible fear stage.
However, the Departments have authority to apply conditions on asylum
eligibility at that stage. The INA authorizes AOs to assess whether
there is a significant possibility that the noncitizen could establish
eligibility for asylum, INA 235(b)(1)(v), 8 U.S.C. 1225(b)(1)(v), which
may include additional eligibility conditions that the Departments
establish by regulation, see 88 FR at 11742. Moreover, the Departments
believe that the rebuttable presumption of ineligibility under this
rule is less complex than the mandatory bars provided in section
208(b)(2)(A) of the INA, 8 U.S.C. 1158(b)(2)(A) (barring from asylum
eligibility noncitizens (1) who have participated in persecution; (2)
who have been convicted of a particularly serious crime; (3) for whom
there are serious reasons to believe committed a serious nonpolitical
crime; (4) for whom there are reasonable grounds to regard as a danger
to the United States; (5) who are described under certain provisions
relating to terrorist activity; or (6) who were firmly resettled before
coming to the United States). Also, most of the facts relevant to the
applicability of, exceptions to, and means of rebutting the presumption
involve circumstances at or near the time of the noncitizen's entry.
Because credible fear interviews occur near the time of entry when the
events and circumstances giving rise to the presumption's exceptions
and rebuttal grounds occur, the Departments believe noncitizens will
have a sufficient opportunity to provide testimony regarding such
events and
[[Page 31391]]
circumstances while they are fresh in noncitizens' minds. Furthermore,
delaying application of the presumption against asylum eligibility
until the final merits stage would undermine the Departments' goals of
incentivizing migrants, including those intending to seek asylum, to
use lawful, safe, and orderly pathways to enter the United States or
seek asylum or other protection in another country through which they
travel.
This rule provides that AOs and IJs, not CBP officers, will assess
whether noncitizens are subject to the rule's presumption of asylum
ineligibility and can rebut the presumption. 8 CFR 208.33(b),
1208.33(b). Also, the Departments note that the ``significant
possibility'' standard applied at the credible fear stage is lower than
the ``more likely than not'' standard that was used by DHS to assess
whether a noncitizen could be returned to Mexico pursuant to the
MPP.\205\ The Departments disagree that the rule requires AOs to assess
whether noncitizens are inadmissible under section 212(a)(7) of the
INA, 8 U.S.C. 1182(a)(7), and subject to expedited removal. CBP
officers will continue to determine whether a noncitizen is subject to,
and will be placed in, expedited removal.
---------------------------------------------------------------------------
\205\ USCIS, PM 602-0169, Policy Memorandum: Guidance for
Implementing Section 235(b)(2)(C) of the Immigration and Nationality
Act and the Migrant Protection Protocols (Jan. 28, 2019), https://www.uscis.gov/sites/default/files/document/memos/2019-01-28-Guidance-for-Implementing-Section-35-b-2-C-INA.pdf.
---------------------------------------------------------------------------
Comment: Commenters stated that the term ``rebuttable presumption''
as used in the rule is misleading and inaccurate and that the rule
instead creates an outright bar with exceptions.
Response: The Departments believe that the description of the
rule's main provision as a rebuttable presumption accurately reflects
the operation of that provision, including the availability of
exceptions and bases to rebut the presumption. Unlike the TCT Bar Final
Rule, which included only narrow, categorical exceptions to its
application, under this rule, if the noncitizen is not exempted from
this rule's application, the lawful pathways condition may be rebutted
where the noncitizen demonstrates to the adjudicator's satisfaction
that exceptionally compelling circumstances are present. See 8 CFR
208.33(a)(3), 1208.33(a)(3). Because a noncitizen to whom the condition
applies and for whom an exception is not available under 8 CFR
208.33(a)(2), 1208.33(a)(2), may nevertheless avoid its effect in
certain non-categorical circumstances, the Departments believe that
referring to it as a ``rebuttable presumption'' is accurate.
2. Grounds for Rebutting the Presumption
i. Acute Medical Emergency
Comment: Commenters expressed concerns regarding the acute medical
emergency means of rebuttal. One commenter asserted that this was a
novel concept under immigration law and that the NPRM's description of
this ground of rebuttal made clear that this standard is designed to be
impossible to meet. Some commenters stated that the proposed rule
failed to provide definitions or guidance to inform assessments of what
constitutes an acute medical emergency. Some commenters wrote that this
means of rebuttal should include non-life-threatening and other non-
medical needs. One commenter, who is a doctor, stated that the
definition of ``medical emergency'' should include curable conditions
that would be fatal in the short term and conditions that could be
commonly treated in the United States to restore health and function,
assuming that sufficient care would not be available in the originating
country. Commenters expressed concern regarding how people living with
HIV will be assessed under this provision, given that their condition
could lead to a life-threatening emergency without treatment.
Commenters also expressed concern that the proposed rule gave
inadequate consideration to the unique attributes of children's
physical and mental health and noted that signs differentiating a child
with illness from one with severe illness are quite subtle. Some
commenters also expressed concern that the proposed rule would not
require that children be assessed by trauma-informed physicians.
Another commenter expressed concerns that the rule would not account
for potential emergencies for pregnant women.
Some commenters stated that the ``preponderance of the evidence''
standard for establishing an acute medical emergency is too high.
Commenters said that the rule did not explain how an individual would
prove that their medical issue was ``acute,'' and one stated that this
determination is possible only after medical care is already being
provided. Some commenters stated that noncitizens may lack medical
documentation or knowledge of the severity of their condition and that
AOs and IJs are not medical experts with the required expertise to
evaluate these types of medical issues. Other commenters stated that
the proposed rule does not specify which officials will be making this
determination or whether any medical training or expertise would be
required. Commenters expressed concerns that asking immigration
officials to make medical assessments would yield inconsistent
application of the rebuttable presumption and undermine the welfare of
asylum seekers. Commenters expressed concern that this means of
rebutting the presumption would require noncitizens to share private
details about their medical histories and bodies with a stranger on the
phone. One commenter said that an individual may not know that they are
suffering an acute medical emergency, while another stated that a
noncitizen's medical condition could worsen by the time that the AO
decides whether the presumption has been rebutted. Some commenters
added that the rule should specify what would occur in scenarios where
families rebut the presumption based on the acute medical emergency
ground and the individual with the medical emergency subsequently dies
or the individual lacks access to medical care to address their medical
emergency.
Commenters said that CBP had denied Title 42 health exceptions to
those with acute medical needs, despite extensive documentation of
their conditions, which raised the concern that the term ``acute
medical emergency'' would also be applied stringently under the rule.
Another commenter stated that the rule would ``restrict access to
medical care and humanitarian aid if asylum seekers are denied by
CBP,'' which would impede the gathering of evidence needed to rebut the
presumption of asylum ineligibility.
Another commenter expressed concern that an acute medical emergency
may also be easy to feign or fabricate, though the commenter did not
provide any example of how that could be done.
Response: The Departments believe the acute medical emergency means
of rebuttal at 8 CFR 208.33(a)(3)(i)(A) and 1208.33(a)(3)(i)(A), is
drafted so that those noncitizens with acute medical emergencies can
rebut the condition on asylum eligibility. In general, as stated in the
NPRM, acute medical emergencies include situations in which someone
faces a life-threatening medical emergency or faces acute and grave
medical needs that they cannot adequately address outside of the United
States. See 88 FR at 11723. If a noncitizen rebuts the presumption
based on the acute medical emergency of a family member with whom they
were traveling, the noncitizen's
[[Page 31392]]
eligibility for asylum will not change if the family member who faced
the medical emergency subsequently passes away; this is because the
language of the rebuttal circumstance focuses on whether the family
member faced an acute medical emergency ``at the time of entry.'' 8 CFR
208.33(a)(3)(i), 1208.33(a)(3)(i).
The Departments believe that, in general, broadening this means of
rebuttal would undermine the purpose of the rule, which is to
incentivize noncitizens to utilize lawful, safe, and orderly pathways
of migration. A medical condition that is not an acute emergency would
not ordinarily or necessarily justify failing to pursue a lawful
pathway. However, while an acute medical emergency is a per se example
of an exceptionally compelling circumstance to rebut the presumption of
ineligibility, AOs and IJs may determine, on a case-by-case basis,
whether less severe health-related situations also qualify as
``exceptionally compelling circumstances.'' See 8 CFR 208.33(a)(3),
1208.33(a)(3).
The Departments also disagree with comments concerning the ability
of AOs and IJs to properly assess this rebuttal ground and the ability
of noncitizens to establish it. As discussed in Section IV.D.1.iii of
this preamble, AOs will apply the ``significant possibility'' standard
during credible fear interviews to determine whether a noncitizen would
be able to rebut the presumption because they faced an acute medical
emergency at the time of entry. Again, the Departments emphasize that
noncitizens may be able to rebut the presumption of asylum
ineligibility through testimony alone, and the rule does not require
any particular evidence to rebut the presumption under 8 CFR
208.33(a)(3) and 1208.33(a)(3). AOs are trained to elicit all relevant
testimony in a non-adversarial manner, which will necessarily include
testimony related to this ground for rebuttal.\206\ As discussed
earlier in Section IV.B.5.iii.a of this preamble, AOs frequently assess
physical and psychological harm when adjudicating asylum applications
and are trained to do so in a sensitive manner. As discussed in Section
IV.B.5.iii.c of this preamble, the rule does not require adjudicators
to make a formal medical diagnosis or analyze whether a noncitizen
meets specific medical criteria to determine whether a noncitizen has
rebutted the rule's condition on eligibility. Instead, adjudicators
will make a factual determination of whether an acute medical emergency
existed at the time of entry. 8 CFR 208.33(a)(3)(i)(A),
1208.33(a)(3)(i)(A). To the extent that a noncitizen experienced such a
medical emergency during their time in CBP custody, AOs may be able to
consult CBP records. Specifically, if a noncitizen experiences a
medical issue during their time in CBP custody, CBP medical staff will
evaluate the noncitizen, and, if appropriate based on the severity of
the issue, refer them to a local medical facility. This treatment would
be documented.\207\ Regarding the concerns raised about sharing private
medical details, noncitizens in credible fear proceedings, as discussed
in Section IV.B.5.v of this preamble, are advised of the confidential
nature of the interview. As noted earlier in Sections IV.B.5.i and
IV.E.1 of this preamble, credible fear determinations undergo multiple
levels of review to ensure consistency, and decisions made in section
240 proceedings are subject to administrative appeal.
---------------------------------------------------------------------------
\206\ USCIS, Eliciting Testimony 12 (``In cases requiring an
interview, although the burden is on the applicant to establish
eligibility, equally important is your obligation to elicit all
pertinent information.''); USCIS, Non-Adversarial Interview 13
(``You control the direction, pace, and tone of the interview and
have a duty to elicit all relevant testimony.'')
\207\ CBP, Directive 2210-004, Enhanced Medical Support Efforts
(Dec. 31, 2019), https://www.cbp.gov/document/directives/directive-2210-004-cbp-enhanced-medical-efforts.
---------------------------------------------------------------------------
The Departments note that, like all exceptionally compelling
circumstances, AOs in credible fear proceedings or IJs in immigration
court, not CBP officers at POEs, will determine whether a noncitizen
faced an acute medical emergency. Accordingly, to the extent commenters
are concerned by how CBP officers have considered medical issues in the
context of the application of the Title 42 public health Order, such
concerns are inapplicable to this rule. Additionally, CBP will process
all noncitizens who arrive and seek admission at a POE without regard
to whether the presumption may ultimately be found to apply.
Regarding concerns of fraud, the commenter did not provide any
explanation or example of how an acute medical emergency would be easy
to fabricate, and AOs and IJs will assess the credibility of any claims
that the noncitizen faced an acute medical emergency. INA
208(b)(1)(B)(2), 8 U.S.C. 1158(b)(1)(B)(2); INA 240(c)(4)(B), 8 U.S.C.
1229a(c)(4)(B); 8 CFR 208.30(e)(2).
ii. Imminent and Extreme Threat to Life and Safety
Comments: Commenters expressed concern over the high level of risk
required to rebut the presumption based on an imminent and extreme
threat to life and safety. Some commenters stated this means of
rebuttal requires a higher degree of risk than is required for
eligibility for asylum or statutory withholding of removal. One
commenter stated that it would require migrants to ``predict the
future'' in deciding whether to wait for an appointment at the border,
which can be dangerous because violence happens randomly and
unexpectedly. Some said that, if an asylum seeker is forced to remain
in Mexico until a threat is imminent, it may well be too late to avoid
such harm, thus putting the person in a ``catch-22.'' A commenter
stated that the rule appears to exclude anyone who has already been
gravely harmed while in Mexico but who cannot prove that another harm
is ``imminent,'' while others recommended that if an individual
circumvents other pathways to cross the U.S.-Mexico border due to the
severity of past threats or harms, the ``imminent and extreme threat''
ground should automatically apply. Another commenter stated that, due
to the complicated and lengthy regulatory definition of torture, that
term should be replaced with ``severe pain or suffering.''
Commenters also expressed concern about the ability for specific
populations to meet this rebuttal ground. Commenters stated that the
rule forces LGBT and HIV-positive people, who already face significant
hostility in Mexico, to put themselves in even worse danger to satisfy
the imminence requirement of the ``imminent and extreme'' ground for
rebuttal. Commenters wrote that this rebuttal ground should be
broadened so that adjudicators may favorably consider circumstances
involving threats to life or safety that might not necessarily be
considered imminent or extreme. For example, one commenter noted that
there are many forms of gender-based harm that are unlikely to meet the
requirement that the threat to life or safety is ``imminent and
extreme'' because such forms of harm are not always highly violent
acts. One commenter wrote that pervasive discrimination or physical
abuse--as, for example, experienced by LGBT individuals in Mexico,
where discrimination against such persons is still commonplace--would
not meet the threshold of ``imminent and extreme threat to life and
safety'' if experienced in either a transit country or their home
country. The commenter also stated that individuals forced to hide
their identity
[[Page 31393]]
to avoid discrimination would be hindered in their ability to meet this
ground for rebuttal.
Commenters expressed concern that noncitizens would not have
sufficient evidence to show an ``imminent and extreme'' threat to rebut
the presumption. Similar to their comment regarding the ``acute medical
emergency'' means of rebuttal, one commenter asserted that the
``imminent and extreme'' threat means of rebuttal is a novel concept
under immigration law and that the description of this ground of
rebuttal in the NPRM made clear that this standard is designed to be
impossible to meet. One commenter stated that proving a specific threat
may be near impossible because individualized threats are frequently
made orally and in person, not in writing, and hence are not amenable
to proof in a formalized setting. The commenter also stated that such
threats are usually directly followed by the harm itself. One commenter
wrote that the most deserving individuals in the asylum process will be
hard-pressed to produce evidence of an ``imminent threat'' because
persecution frequently does not leave documentary evidence. A few
commenters emphasized that survivors of sexual assault would face
extreme difficulty in obtaining documentation to meet the evidentiary
burden from another country unless they had others assisting them; some
survivors, for example, may have only their own account of the assault.
A legal services provider expressed concern that survivors of violence
would not necessarily have the proof, language, or support needed to
explain what imminent danger they faced, leading to the denial of bona
fide asylum claims and the refoulment of individuals facing extreme
persecution.
Commenters expressed concerns that the lack of definition of an
``extreme and imminent threat to life or safety'' left adjudicators
with an inordinate amount of discretion. One commenter stated that
asylum seekers in Mexican border regions so often face a serious risk
to their safety that it is unclear what an asylum seeker would need to
show to establish an ``imminent and extreme'' threat to life.
Commenters expressed concern that this ground of rebuttal calls for a
subjective assessment of the temporality and qualitative extremity of
the threats faced by asylum seekers, which may exclude many genuine
refugees.
Other commenters stated concerns that this means of rebuttal was
overly broad or would lead to fraud. One commenter said that AOs and
IJs would have difficulty determining whether someone has fabricated
evidence to support a claim that they faced an imminent threat to life
or safety, especially when strong evidence exists that migrants who
travel to the U.S.-Mexico border by way of smuggling networks are
frequently subject to such violence. Another commenter stated that the
journey to the southwest border of the United States is inherently a
journey where migrants will face extreme threats to life and safety
from beginning to end; adding this means of rebuttal would thus exempt
the entire population of migrants who have traveled with the assistance
of smugglers and other criminal enterprises.
Response: The Departments acknowledge these concerns but believe
that only imminent and extreme threats to life or safety should
constitute a per se ground to rebut the presumption of asylum
ineligibility. For threats that are less imminent or extreme,
noncitizens may attempt to demonstrate on a case-by-case basis that
they otherwise present ``exceptionally compelling circumstances'' that
overcome the presumption of ineligibility. Including lesser threats in
the per se grounds for rebuttal would undermine the Departments' goal
of incentivizing migrants to use lawful, safe, and orderly pathways to
enter the United States or seek asylum or other protection in another
country through which they travel.
As noted in the NPRM, threats cannot be speculative, based on
generalized concerns about safety, or based on a prior threat that no
longer posed an immediate threat at the time of entry. 88 FR at 11707
n.27. The term ``extreme'' refers to the seriousness of the threat; the
threat needs to be sufficiently grave, such as a threat of rape,
kidnapping, torture, or murder, to trigger this ground for rebuttal.
Id. Where the noncitizen is a member of a particularly vulnerable group
(e.g., LGBT or HIV-positive people), their membership in such a group
may be a relevant factor in assessing the extremity and immediacy of
the threats faced at the time of entry. In response to the
recommendation that the word ``torture'' be replaced with ``severe pain
and suffering,'' the Departments note that the imminent and extreme
threats to life and safety listed in the rule are not exhaustive and
that this means of rebuttal may in certain circumstances encompass
imminent and extreme threats of severe pain and suffering.
The Departments disagree that noncitizens will have to ``predict
the future'' to rebut the presumption against asylum in this manner.
For this per se rebuttal ground to apply, the noncitizen must
demonstrate there was an imminent and extreme threat to life or safety,
not that the feared harm was actively taking place or certain to occur.
See 8 CFR 208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Departments also
note that ``imminent'' and ``extreme'' are standards that are commonly
used in asylum adjudications. See, e.g., Fon v. Garland, 34 F.4th 810,
813 (9th Cir. 2022) (``[P]ersecution is an extreme concept'' (quoting
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995))); Li v. Att'y Gen. of
U.S., 400 F.3d 157, 164 (3d Cir. 2005) (``[U]nfulfilled threats must be
of a highly imminent and menacing nature in order to constitute
persecution'' (citing Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir.
1997))). As already discussed in Section IV.E.1 of this preamble,
noncitizens may be able to rebut the presumption against asylum
eligibility through credible testimony alone. In response to commenter
concerns about inconsistent application of the rule, the Departments
note that an AO's decision is subject to supervisory and potentially IJ
review, and determinations made in section 240 proceedings may be
administratively appealed.
The Departments acknowledge commenters' concern about fraud, but
during credible fear screenings, AOs will assess the credibility of a
noncitizen's testimony regarding dangers faced at the time of entry,
which will necessarily include an evaluation of the whether a claimed
threat is fraudulent. As discussed earlier in Section IV.D.1.iii of
this preamble, whether a noncitizen is able to establish an exception
to the rule or rebut the presumption will generally involve a
straightforward analysis, and the Departments expect that, except in
rare cases, application of the ``significant possibility'' standard
will not meaningfully differ from application of the ultimate merits
standard. The Departments believe that this ground of rebuttal is
sufficiently narrow to prevent broad application to all citizens who
attempt to enter the United States from Mexico across the SWB or
adjacent coastal borders.
iii. Other Exceptionally Compelling Circumstances
Comment: Some commenters stated that the provision allowing a
noncitizen to show ``exceptionally compelling circumstances'' to rebut
the presumption was not sufficiently defined and hence that applying it
would lead to disparate results amongst adjudicators. One commenter
stated that
[[Page 31394]]
the rule does not clarify whether the exceptionally compelling
circumstance must be one that prevented the asylum seeker from
scheduling an appointment or whether it may be an equitable factor that
mitigates in favor of granting humanitarian protection. Another
commenter expressed concerns that the adverb ``exceptionally'' is
redundant or excessive and would result in different interpretations by
adjudicators. The same commenter stated that applying the term
``exceptionally compelling circumstances'' would also be difficult
because the term is rarely used in immigration law and is restrictively
defined by the Departments.
While some commenters expressed concern that requiring noncitizens
to show ``exceptionally compelling circumstances'' by a preponderance
of the evidence would be too demanding of a standard, which they
asserted renders the provision inaccessible to many asylum seekers and
will result in unfair denials, other commenters claimed that the
standard would, in practice, allow for any official to create an
exemption for any reason.
Response: The Departments respectfully disagree with commenters'
concerns about the ``exceptionally compelling circumstances'' standard
being insufficiently defined or not amenable to consistent
determinations. The rule provides that a noncitizen necessarily
demonstrates exceptionally compelling circumstances if, at the time of
entry, they or a family member with whom they were traveling (1) had an
acute medical emergency; (2) faced an imminent and extreme threat to
life or safety; or (3) satisfied the definition of ``victim of a severe
form of trafficking in persons'' provided in 8 CFR 214.11. See 8 CFR
208.33(a)(3), 1208.33(a)(3). The non-exhaustive nature of this list
preserves flexibility and ensures that the rule does not foreclose
adjudicators from considering facts giving rise to exceptionally
compelling circumstances.
The Departments emphasize that exceptionally compelling
circumstances are not limited to the examples enumerated in 8 CFR
208.33(a)(3)(i) and 1208.33(a)(3)(i). In fact, the rule recognizes
additional per se exceptionally compelling circumstances in section 240
removal proceedings to, along with other provisions in the rule,
eliminate the possibility that this rule will cause separation of
family members who traveled together or long-term separation that would
result by preventing family members from following to join principal
applicants who would be granted asylum but for the presumption. 8 CFR
1208.33(c).
The Departments also note that AOs and IJs regularly apply various
standards in the course of their adjudications, such as the
``extraordinary circumstances'' standard to determine whether an asylum
applicant qualifies for an exception to the one-year filing deadline,
see INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), and the discretionary
``compelling reasons'' standard to determine whether an applicant who
has suffered past persecution but lacks a well-founded fear of future
persecution should be granted asylum in the exercise of discretion, see
8 CFR 208.13(b)(1)(iii)(A); 1208.13(b)(1)(iii)(A). Hence, although the
Departments acknowledge the concerns of some commenters about
noncitizens' ability to demonstrate ``exceptionally compelling
circumstances,'' the Departments believe that the best way to assess
the variety of fact patterns presented by noncitizens is to use a fact-
specific approach on a case-by-case basis. Using this fact-specific
approach on a case-by-case basis is consistent with other aspects of
asylum adjudication, such as establishing an exception to the one-year
filing deadline, see INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D),
determining whether harm rises to the level of persecution, see Stevic,
467 U.S. at 423 n.18, or determining whether an individual was harmed
on account of a protected ground, see 8 CFR 208.13(b)(1).
AOs receive extensive training that is designed to enable them to
conduct non-adversarial interviews, assess testimony, and exercise
their judgment in a fair and impartial manner.\208\ Likewise, IJs have
extensive experience and training in applying such concepts to
individual cases.\209\ Accordingly, the Departments strongly believe
that IJs and AOs will fairly and competently examine the facts and
circumstances of an individual's case to determine whether they
demonstrated exceptionally compelling circumstances to rebut the lawful
pathways presumption of asylum ineligibility. In response to commenter
concerns about consistency of determinations, credible fear
determinations, as noted above, are subject to review by a Supervisory
AO, and determinations made in section 240 proceedings are subject to
administrative appeal.
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\208\ See USCIS, Non-Adversarial Interview.
\209\ See 8 CFR 1003.0(b)(1)(vii) (EOIR Director's authority to
``[p]rovide for comprehensive, continuing training and support'' for
IJs); 8 CFR 1003.9(b)(1) and (2) (Chief Immigration Judge's
authority to issue ``procedural instructions regarding the
implementation of new statutory or regulatory authorities'' and
``[p]rovide for appropriate training of the [IJs] . . . on the
conduct of their powers and duties''); DOJ EOIR, Legal Education and
Research Services Division (Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``The Legal
Education and Research Services Division (LERS) develops and
coordinates headquarters and nationwide substantive legal training
and professional development for new and experienced judges,
attorneys, and others within EOIR who are directly involved in
EOIR's adjudicative functions. LERS regularly distributes new
information within EOIR that includes relevant legal developments
and policy changes from U.S. government entities and international
organizations.'').
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iv. Victim of Severe Form of Trafficking in Persons
Comment: A number of commenters stated concern about noncitizens'
ability to rebut the presumption by satisfying the definition of a
``victim of a severe form of trafficking in persons.'' Some commenters
stated that trafficking victims cannot be expected to have evidence
prepared to demonstrate, by a preponderance of the evidence, that they
were trafficked. A few commenters expressed concern that it would be
very difficult for the population that is vulnerable to trafficking to
rebut the presumption due to lack of evidence and the exemption being
narrowly applied. Others stated that the NPRM's reference to 8 CFR
214.11, which defines victims of severe forms of trafficking, was not
sufficiently specific. Some commenters wrote that this ground of
rebuttal should be broadened to apply to circumstances in which
individuals may be at risk of trafficking and to apply regardless of
severity. One commenter stated that the victims of trafficking rebuttal
ground is very narrow and fails to take into account the many other
forms of gender-based persecution, including domestic violence, sexual
assault, stalking, female genital cutting, and forced marriage. A few
other commenters expressed concerns that officials may retraumatize
individuals in the process of validating a claim for rebutting the
presumption and may end up returning them to their traffickers if they
find that the noncitizen did not rebut the presumption of asylum
ineligibility. One commenter wrote that, because the severity of human
trafficking is hard to ``grade,'' it is important to apply the broadest
understanding of new trends and definitions provided under the
universal human rights instruments to prevent underreporting and
insufficient identification of victims of this human rights violation.
One commenter wrote that the definition of ``victim of a severe
form of trafficking'' is highly technical and requires a thorough
analysis of several components usually (in the T nonimmigrant status
context, from
[[Page 31395]]
which the definition derives) completed after review of a complete
application package, including extensive supporting evidence and
briefing prepared by legal counsel. The same commenter added that a
survivor presenting at the border under the circumstances described
above is unlikely to be able to meet this standard. Some commenters
stated that the rule would force trafficking victims to rebut the
presumption at a higher legal standard--preponderance of the evidence--
rather than ``any credible evidence'' as would be required if they were
already in the United States and applying for T nonimmigrant status.
One commenter stated that the Departments should remove the
trafficking rebuttal ground because migrants who voluntarily utilized
smugglers would falsely claim to have been trafficked to qualify for
the exception.
Response: The Departments acknowledge commenters' concerns about
victims of human trafficking but disagree that the existing rebuttal
ground should be revised or expanded.
As described in the NPRM, see 88 FR at 11730, the presumption in
this rule is necessarily rebuttable in certain circumstances, including
if, at the time of entering the United States, the noncitizen satisfied
the definition of ``victim of a severe form of trafficking in persons''
provided in 8 CFR 214.11. See 8 CFR 208.33(a)(3)(i)(C),
1208.33(a)(3)(i)(C). The Departments disagree with the premise that
this rule's reference to the definition of ``victim of a severe form of
trafficking in persons'' found in 8 CFR 214.11 is insufficiently
specific. This final rule relies upon, and is consistent with, the
definition used in the T nonimmigrant status context, which itself is
consistent with the applicable statutory definition.\210\
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\210\ See 8 CFR 214.11(b) (cross-referencing INA
101(a)(15)(T)(i), 8 U.S.C. 1101(a)(15)(T)(i)).
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The Departments also emphasize that they are not applying the
``preponderance of the evidence'' standard to trafficking victims who
are initially seeking to rebut the lawful pathways presumption during
credible fear screenings. The standard of proof applied in credible
fear screening is a ``significant possibility . . . that the alien
could establish eligibility for asylum,'' INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), which also applies to ``exceptionally compelling
circumstances.'' During credible fear screenings, then, a noncitizen
would have to show a significant possibility that they could satisfy
the definition of victim of a severe form of trafficking by a
preponderance of the evidence in a full hearing. The Departments
recognize that many victims of trafficking are unlikely to possess
written evidence of their trafficking; however, the credible fear
screening process involves eliciting testimony from individuals seeking
protection and does not require noncitizens to provide written
statements or other documentation. See INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B); 8 CFR 208.30(d). Moreover, the Departments note that, in
addition to receiving extensive training in substantive law and
procedure, AOs are also trained to identify and interview vulnerable
individuals, including victims of trafficking.\211\ For merits
adjudications, both AOs \212\ and IJs \213\ receive training and have
experience assessing evidence and the credibility of noncitizens who
appear before them for interviews or hearings, even in the absence of
other documentation. Indeed, the INA explicitly provides that
``testimony of the applicant may be sufficient to sustain the
applicant's burden without corroboration.'' INA 208(b)(1)(B)(ii), 8
U.S.C. 1158(b)(1)(B)(ii).
---------------------------------------------------------------------------
\211\ See USCIS, RAIO Directorate--Detecting Possible Victims of
Trafficking Lesson Plan (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Trafficking_LP_RAIO.pdf; see also
USCIS, Asylum Division Training Programs (Dec. 19, 2016), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/asylum-division-training-programs.
\212\ USCIS, RAIO Directorate--Officer Training: Decision Making
(Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Decision_Making_LP_RAIO.pdf.
\213\ See 8 CFR 1003.0(b)(1)(vii) (EOIR Director's authority to
``[p]rovide for comprehensive, continuing training and support'' for
IJs); 8 CFR 1003.9(b)(1) and (2) (Chief Immigration Judge's
authority to issue ``procedural instructions regarding the
implementation of new statutory or regulatory authorities'' and
``[p]rovide for appropriate training of the [IJs] . . . on the
conduct of their powers and duties''); DOJ EOIR, Legal Education and
Research Services Division (Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``[LERS]
develops and coordinates headquarters and nationwide substantive
legal training and professional development for new and experienced
judges, attorneys, and others within EOIR who are directly involved
in EOIR's adjudicative functions. LERS regularly distributes new
information within EOIR that includes relevant legal developments
and policy changes from U.S. government entities and international
organizations.'').
---------------------------------------------------------------------------
With respect to the commenter's suggestion that the Departments
should remove the trafficking-victims ground for rebuttal because the
commenter believed that noncitizens who are smuggled will falsely claim
they are trafficked, the Departments strongly believe it is important
to treat trafficking as an exceptionally compelling circumstance. The
Departments included this provision to allow this vulnerable population
to rebut the lawful pathways presumption and seek protection in the
United States. The Departments note that the commenter did not include
any reliable evidence or data to support their allegation that
individuals who are smuggled will falsely claim to be trafficked. In
addition, the TCT Bar IFR also included a limited exception for victims
of severe forms of trafficking, and the Departments are unaware of
evidence that it was abused while that IFR was in effect.
Commenters' suggestions regarding broadening the grounds to rebut
the presumption are addressed below in Section IV.E.3 of this preamble.
3. Exceptions to the Presumption
i. Proposed Exceptions for Migrants Facing Danger in Third Countries
Comment: Commenters expressed concern that the rule contains no
exceptions for asylum seekers who would face danger in transit
countries even though many asylum seekers are at serious risk in common
transit countries. Multiple commenters suggested that the exemption for
imminent threat of rape, kidnapping, torture, or murder should be
expanded to include general threats of violence, as many individuals
within the asylum process would be forced to stay in Mexico or other
countries where general threats of violence are much more common and
put their lives or safety at risk. Another commenter stated that, when
asylum seekers are waiting in some of the most dangerous towns and
cities in the world, they face real threats that the rule should
recognize as an exception to the presumption.
Several commenters noted that the members of one family, when using
the Title 42 exception process, tried to travel more than 1200 miles
across Mexico and were kidnapped and taken hostage during that travel,
only to be expelled from the United States when they sought help from
the USBP. Another commenter noted that movement along the U.S.-Mexico
border is notoriously difficult and unsafe. In contrast, one commenter
stated that reports of localized violence in certain areas of Mexico
are not indicative of the conditions in Mexico as a whole.
Response: The Departments acknowledge the concerns raised by
commenters and reiterate that noncitizens who face an extreme and
imminent threat to life or safety in Mexico at the time of entry can
rebut the presumption of asylum ineligibility, see 8 CFR
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B), without needing to
[[Page 31396]]
qualify for any additional exception. In addition, the rule provides
that they may rebut the presumption by showing that, at the time of
entry, they faced an acute medical emergency or were victims of a
severe form of trafficking. See 8 CFR 208.33(a)(3)(i)(A) and (C),
1208.33(a)(3)(i)(A) and (C). However, the Departments decline to
enumerate additional, broader ways to rebut the presumption, such as a
ground based on general threats of violence; and the Departments
likewise believe that they need not enumerate additional exceptions to
the presumption. In the absence of other exceptionally compelling
circumstances, see 8 CFR 208.33(a)(3)(i), 1208(a)(3)(i), the
Departments believe that danger in Mexico generally would justify
failing to pre-schedule a time and place to appear at a POE and
eschewing lawful and orderly pathways for entering the United States
only when it amounts to an extreme and imminent threat to life or
safety. For noncitizens who face dangers in other countries besides
Mexico, or who face less imminent and extreme threats in Mexico, there
ordinarily remain reasonable opportunities to take advantage of other
lawful pathways contemplated by the rule. To the extent a noncitizen's
individual circumstances make lawful pathways unavailable, or otherwise
warrant rebuttal of the presumption, noncitizens may attempt to
demonstrate as much on a case-by-case basis under the ``exceptionally
compelling circumstances'' means of rebuttal. Noncitizens may choose to
apply for asylum or other protection in a different country where they
do not face dangers or schedule appointments to appear at a SWB POE
using the CBP One app. CHNV nationals may also apply for advanced
authorization for parole while outside their country of nationality.
With regard to concerns about traveling along the U.S.-Mexico border to
access available CBP One app appointments, CBP intends to increase the
number of available appointments when the Title 42 public health Order
is lifted, as detailed in Section IV.E.3.ii.a of this preamble. As
detailed in Section IV.E.3.ii.b of this preamble, CBP is implementing
updates to the CBP One app process that will enable noncitizens to
request a preferred POE to schedule an appointment, thus helping
noncitizens avoid unpredictable travel along the U.S.-Mexico border.
ii. Concerns About the Exception for Scheduled Arrivals at Ports of
Entry
a. General Comments Regarding the CBP One App
Comment: One commenter, a legal services provider, expressed
concern about the future impact of the CBP One app based on their
experiences with the use of the app in the context of seeking Title 42
exceptions. Specifically, the commenter stated that the use of the app
had barred ``thousands'' from seeking exceptions to the Title 42 public
health Order. This commenter stated that, before January 2023, it was
able to schedule appointments for its clients with POEs directly,
without using the app. The organization said that this process was
``orderly and calm'' and that clients rarely waited more than four to
six weeks for an appointment. The organization stated that, following
the implementation of the scheduling capability, many of their clients
had been unable to secure appointments, and the process takes longer.
The organization stated that CBP did not provide notice that the CBP
One app would be the sole way to seek exceptions to Title 42.
Response: To the extent that commenters have concerns about the
processing of individuals seeking exceptions to the Title 42 public
health Order at POEs, including concerns about the number of
appointments available under the Title 42 exception process, these
concerns are outside the scope of this rule. This rule is designed to
manage the anticipated increase in the number of individuals expected
to travel to the United States without documents sufficient for lawful
admission following the termination of the Title 42 public health Order
and will take effect once the Title 42 public health Order is lifted.
At that time, CBP will inspect and process all noncitizens who arrive
at a POE under Title 8 authorities, which include the INA, as required
by statute. Title 42 is a separate statutory scheme that operates
separately from Title 8.
Additionally, following the termination of the Title 42 public
health Order, CBP intends to increase the number of available
appointments in the CBP One app and is committed to processing as many
noncitizens as is operationally feasible. Further, in no instance will
CBP turn a noncitizen away from a POE, regardless of whether they
utilize the CBP One app.
Comment: Commenters expressed concern about the security of the
personally identifiable information (``PII'') that users submit through
the CBP One app. A commenter asserted that the CBP One app poses
serious privacy concerns regarding the collection, storage, and use of
private personal information and alleged that requiring use of the CBP
One app is ``another means of enlarging what is an already expansive
surveillance infrastructure that relentlessly targets immigrant
communities.'' A commenter also stated that, while the Departments have
previously indicated that use of the CBP One app is voluntary, the rule
will significantly expand use of the app, with the result that it will
be the only way for certain noncitizens to seek asylum in the United
States and thus that ``many people do not have a genuine choice in
whether to consent.'' Commenters questioned the wisdom of encouraging
migrants to disclose personal details while in transit in temporary
shelters and non-secure settings.
Particularly in light of a recent ICE data breach, commenters
expressed concern about what measures CBP and DHS will take to secure
the PII that applicants will have to provide in order to secure an
appointment through the CBP One app. The commenters expressed concern
that a similar breach regarding CBP One app data could place applicants
waiting for appointments outside the United States at a greater risk
than individuals affected by the recent breach, who were primarily in
the United States. Commenters alleged that this risk could have a
chilling effect on otherwise meritorious applications.
Commenters expressed a range of PII-related concerns regarding the
use of the CBP One app in the context of asylum seekers and asylum
applications. For example, a commenter expressed concern that use of
the CBP One app and the need to rely on publicly accessible internet
connections may violate 8 CFR 208.6, which establishes limits on the
disclosure to third parties of information contained in or pertaining
to records related to credible fear determinations, asylum
applications, and similar records. Another commenter similarly noted
that use of the app may be tracked by government officials or
persecutors, placing migrants in further danger.
A commenter also expressed concern that the lack of privacy may be
particularly harmful for those fleeing domestic violence and that use
of a smart device to access the CBP One app may permit GPS tracking and
put the noncitizen at heightened risk of being located by their abuser,
as well as put them at risk of financial abuse. A commenter expressed
concern that information provided by migrants through the CBP One app
could be
[[Page 31397]]
shared with law enforcement agencies beyond CBP, which are not bound by
CBP privacy and information-sharing policies. A few commenters
expressed concern with requiring the use of a Login.gov account because
the underlying provider for that site has a history of data breaches.
Response: The Departments disagree with the statement that migrants
must use, or are unable to meaningfully consent to using, the CBP One
app. While noncitizens who present at a POE without scheduling an
appointment using the CBP One app will be subject to the rebuttable
presumption unless otherwise excepted, noncitizens are not required to
use the app in order to be processed at a POE.\214\ The Departments
note that the rebuttable presumption does not apply to noncitizens who
either were provided authorization to travel to the United States to
seek parole pursuant to a DHS-approved parole process or who sought
asylum or other protection in a country through which they traveled and
received a final decision denying that application. 8 CFR
208.33(a)(2)(ii)(A) and (C), 1208.33(a)(2)(ii)(A) and (C). The
presumption also does not apply to noncitizens who arrive at a port of
entry without scheduling an appointment if the scheduling system was
not possible to access or use due to language barrier, illiteracy,
significant technical failure, or other ongoing and serious obstacle. 8
CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
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\214\ See, e.g., CBP, DHS/CBP/PIA-076, Privacy Impact Assessment
for the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 18 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
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For those who choose to utilize the CBP One app to schedule an
appointment, CBP has taken steps to protect users' information. First,
in accordance with DHS policy, apps developed by DHS--including the CBP
One app--must meet certain baseline privacy and security
requirements.\215\ These requirements include app-specific privacy and
notice policies; limitations on the collection of sensitive content,
including PII; and appropriate encryption for the transmission of
data.\216\ The app was reviewed for compliance prior to development and
is reviewed again every time a change is made that impacts the
collection and use of PII.\217\ All CBP systems have undergone
comprehensive testing and evaluation to assess the respective security
features and have been granted an Authority to Operate (``ATO'').\218\
In particular, the app serves only as a tool for the collection of
information.\219\ Once the information is received, CBP temporarily
retains the submitted CBP One app photographs of undocumented
individuals within the Automated Targeting System (``ATS''). Upon an
individual's arrival at a POE, the advance information is imported into
a Unified Secondary (``USEC'') event.\220\ The information is then
verified by an officer and stored as part of standard CBP
processes.\221\ All data in ATS and USEC is treated and retained in
accordance with the relevant retention schedules.\222\ These systems
are subject to continuous evaluation of security protocols so that CBP
may quickly respond if there is a change in the risk posture in any of
the systems. The information CBP collects via the CBP One app and
transmits to downstream systems is the same information CBP already
collects when a noncitizen encounters a CBP officer at a POE--it is
simply collected earlier to make processing at the POE more orderly and
efficient.\223\ CBP has published a Privacy Impact Assessment (``PIA'')
for the CBP One app generally and a standalone, function-specific PIA
for the collection of advance information from certain undocumented
noncitizens.\224\
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\215\ See DHS, Instruction 047-01-003 (Rev. 00.1), Privacy
Policy for DHS Mobile Applications 7-10 (Dec. 14, 2018), https://www.dhs.gov/publication/privacy-policy-dhs-mobile-applications.
\216\ Id.
\217\ See id. at 10.
\218\ See DHS, DHS 4300A Sensitive Systems Handbook 47 (Nov. 15,
2015), https://www.dhs.gov/publication/dhs-4300a-sensitive-systems-handbook.
\219\ See CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for
CBP OneTM Mobile Application 4 (Feb. 19, 2021), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf. CBP has updated this impact
assessment multiple times since February 19, 2021.
\220\ See id. at 15.
\221\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for
the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 11-12, 21 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
\222\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for
the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 10, 13 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
\223\ See id. at 17-18.
\224\ CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for CBP
OneTM Mobile Application (Feb. 19, 2021), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf; CBP, DHS/CBP/PIA-076, Privacy
Impact Assessment for the Collection of Advance Information from
Certain Undocumented Individuals on the Land Border (Jan. 19, 2023),
https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
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With regard to the commenters' concerns regarding privacy notices
related to biometrics and facial recognition technology, CBP takes such
concerns seriously. In the referenced GAO audit, GAO-20-568, GAO made
five recommendations to CBP, with which CBP concurred. Three of the
recommendations were related to privacy considerations, including (1)
ensuring privacy notices are complete and current, (2) ensuring notices
are available at all locations using facial recognition technology, and
(3) developing and implementing a plan to audit its program partners
for privacy compliance.\225\ At the time of the publication of the
NPRM, all of these privacy-related recommendations had been
implemented, and the recommendations were closed by GAO.\226\ CBP has
since created a new website that outlines the locations (air, land, and
seaports) where CBP uses facial comparison technology, and CBP
continues to take steps to ensure that appropriate notice is provided
to travelers.\227\
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\225\ See GAO, Facial Recognition: CBP and TSA are Taking Steps
to Implement Programs, but CBP Should Address Privacy and System
Performance Issues 72-73 (Sept. 2020), https://www.gao.gov/assets/gao-20-568.pdf.
\226\ GAO, Facial Recognition: CBP and TSA are Taking Steps to
Implement Programs, but CBP Should Address Privacy and System
Performance Issues, https://www.gao.gov/products/gao-20-568
(reporting on the changes that CBP made that resulted in closure of
the recommendations).
\227\ CBP, Say Hello to the New Face of Speed, Security and
Safety: Introducing Biometric Facial Comparison, https://biometrics.cbp.gov/ (last visited May 1, 2023).
---------------------------------------------------------------------------
With regard to commenters' concerns about Login.gov, the
Departments note that Login.gov is owned and operated by the General
Services Administration (``GSA''),\228\ and thus the Departments have
no control over the data privacy or data security considerations of
that platform. However, the Departments note that GSA has a system
security plan for Login.gov, and Login.gov has an ATO.\229\
---------------------------------------------------------------------------
\228\ See GSA, Privacy Impact Assessment for Login.gov 1, 5
(Mar. 17, 2023), https://www.gsa.gov/cdnstatic/Logingov_PIA_March2023.pdf.
\229\ See id. at 27.
---------------------------------------------------------------------------
Comment: At least one commenter raised a concern that the CBP One
app is an untested pilot program.
Response: The Departments respectfully disagree. The CBP One app
was initially launched in October 2020 to serve as a single portal to
access CBP services.\230\ In May 2021, CBP updated the app to provide
the ability for certain NGOs to submit information to CBP on
[[Page 31398]]
behalf of an undocumented noncitizen and schedule a time for such
undocumented noncitizens to present at a POE to be considered for an
exception from the Title 42 public health Order.\231\ This
functionality included submitting individuals' information in advance,
including a photo, and scheduling a date and time to present at a
POE.\232\ In April 2022, CBP expanded the ability for noncitizens to
directly submit information and schedule appointments to present at a
land border POE to noncitizens seeking to enter the United States under
the U4U process.\233\ To further expand the accessibility of the CBP
One Title 42 exception process, in January 2023, the advance
information submission and scheduling process was made publicly
available to all undocumented noncitizens seeking to travel to a land
POE to be considered for an exception to the Title 42 public health
Order.\234\ Significant enhancements and changes to the CBP One app
have been and will continue to be made in response to user and
stakeholder feedback.\235\
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\230\ CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
\231\ CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for the
Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 4 (Jan. 19, 2023), https://www.dhs.gov/publication/dhscbppia-076-collection-advance-information-certain-undocumented-individuals-land.
\232\ Id.
\233\ CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for CBP
OneTM Mobile Application 16-17 (Feb. 19, 2021), https://www.dhs.gov/publication/dhscbppia-068-cbp-one-mobile-application.
\234\ Id. at 17-18.
\235\ CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
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Comment: Commenters stated that the CBP One app is not workable.
For example, commenters stated that there are more migrants seeking
asylum than there are appointments available, that the number of
appointments was entirely too limited, that the rule does not provide
for a minimum number of appointments, and that after a final rule is
issued, demand for appointments would only increase. Another commenter
noted that the INA does not limit the number of people who may arrive
at a POE, nor does the rule provide information about how the
government will apportion daily appointments. This commenter also noted
that the number of appointments at the border is currently ``capped,''
but that this limitation is not legally binding and could be increased.
At least one commenter said it would be ``inherently unjust to demand''
that individuals use an information system that cannot handle the
number of people expected to use it. Commenters argued that requiring
use of this system will create a backlog and require people to wait for
their appointments for a significant period of time in Mexico.
Other commenters raised concerns about flaws in the CBP One app and
suggested it would empower smugglers. Commenters noted that the CBP One
app was created for other purposes and not as an appointment system for
asylum seekers. A commenter noted that some individuals have to create
a new account every day because of flaws in the app. Another commenter
asserted that there is a significant risk that appointments will be
resold, pointing to a lack of security within the app that would permit
such resale. Commenters also stated that CBP indicated that criminal
groups were creating fraudulent appointments to obtain information and
funds from asylum seekers seeking entry to the United States. A
commenter stated that requiring use of the CBP One app has already led
to increased exploitation by criminal groups and others who seek to
take advantage of migrants and is likely to push individuals to travel
by more dangerous routes. Another commenter noted that the availability
of appointments only at certain POEs had led to migrants traversing
dangerous parts of Mexico to travel to a POE for their appointment. The
commenter stated that traversing Mexico was particularly difficult
because transportation companies and Mexican authorities impede
migrants' ability to travel through Mexico. Another commenter
recommended the creation of a process parallel to the CBP One app
process for highly vulnerable migrants to be considered for entry into
the United States in an expedited manner. At least one commenter stated
that the CBP One app should allow for prioritization based on
vulnerability. Another commenter stated that smugglers will have more
power because of the limited number of appointments, as people will pay
smugglers to find alternate routes into the United States.
Response: The Departments acknowledge that there are currently many
migrants waiting to present at a POE and that demand for CBP One app
appointments may exceed the number of appointments that can reasonably
be made available on a given day. However, CBP is committed to
processing as many individuals at POEs as operationally feasible, based
on available resources and capacity, while executing CBP's mission to
protect national security and facilitate lawful trade and travel.\236\
While the Title 42 public health Order remains in effect, the CBP One
app is being used to schedule appointments for individuals who are
seeking to present at a land POE to be considered for an exception from
the Title 42 public health Order. During this time, the number of
appointments available has been limited. However, when the Title 42
public health Order is lifted, CBP intends to increase the number of
available appointments and anticipates processing several times more
migrants each day at SWB POEs than the 2010 through 2016 daily average,
including through use of the CBP One app.\237\ While CBP recognizes and
acknowledges that demand for appointments may exceed the number of
appointments that can reasonably be made available on a given date,
there has been a large number of migrants waiting in Mexico to enter
the United States since long before the introduction of the app, and
CBP expects that use of the app will help facilitate the processing of
such individuals. The CBP One app is a scheduling tool that provides
efficiencies and streamlines processing at POEs. Additionally, while
CBP acknowledges that some noncitizens who are unable to schedule an
appointment might conceivably turn to smuggling or more dangerous
routes, CBP is implementing changes to the CBP One app to permit
noncitizens to select a preferred arrival POE in an effort to mitigate
any perceived need to travel to another location. Additionally, CBP is
transitioning scheduling in the CBP One app to a daily appointment
allocation process to allow noncitizens additional time to complete the
process. This process change will allow noncitizens to submit a request
for an appointment, and available appointments will then be allocated
to those who made such a request, and the app will now provide a 23-
hour period
[[Page 31399]]
for individuals allotted appointments to complete the scheduling
process and confirm their appointments. In addition to the increased
number of appointments made available after the end of the Title 42
public health Order, it is anticipated that these changes will reduce
the likelihood of noncitizens seeking to travel by alternate routes.
---------------------------------------------------------------------------
\236\ Memorandum for William A. Ferrara, Exec. Ass't Comm'r,
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP,
Re: Guidance for Management and Processing of Undocumented
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021),
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
\237\ See CBP STAT Division, U.S. Customs and Border Protection
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of
Field Operations (OFO) Daily Average (internal data report,
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec.
Ass't Comm'r, Off. of Field Operations, from Troy A. Miller, Acting
Comm'r, CBP, Re: Guidance for Management and Processing of
Undocumented Noncitizens at Southwest Border Land Ports of Entry
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
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The capacity to process migrants at POEs and the utilization of the
CBP One app to secure appointments are separate and distinct issues.
Officers will process all individuals who present at a POE regardless
of a CBP One app appointment. Although a noncitizen who presents at a
POE without an appointment may be subject to the rebuttable presumption
under this rule, they will be able to present any protection claims, as
well as any evidence to rebut the presumption or establish an exception
to its application--including evidence related to their inability to
access the CBP One app due to language barrier, illiteracy, significant
technical failure, or other ongoing and serious obstacle--during either
expedited removal or section 240 removal proceedings, with an AO or IJ,
as applicable. Processing times will vary based on capacity and
available resources, and those without a CBP One app appointment may be
subject to longer wait times before being processed by a CBP officer.
With regard to commenters' suggestions regarding the prioritization
of vulnerable individuals, the Departments decline to adopt such a
process. As an initial matter, the Departments reiterate that the CBP
One app is a method of facilitating entry into the United States. Once
individuals are present in the United States at a POE, CBP must inspect
and process all noncitizens, regardless of vulnerability. See, e.g.,
INA 235(a)(3), 8 U.S.C. 1225(a)(3); 8 CFR 235.1(a). While in some cases
an individual who is particularly vulnerable may warrant more
expeditious processing, such prioritization and processing does not
occur until the individual is physically present in the United States.
In other words, while an individual's vulnerability may, in some cases,
be a factor in the noncitizen's processing disposition at the time of
processing, this vulnerability is not validated or taken into account
prior to a migrant's arrival in the United States in the context of the
CBP One app.
Comment: Commenters raised concerns about limitations on where and
when an appointment can be made using the CBP One app. One commenter
noted that the geofencing portion of the app does not perform
accurately, as indicated by individuals who are present in Mexico
receiving error messages saying they are not. Another commenter noted
that, since the geofencing limits where people can be to make
appointments, they have no option but to make a dangerous journey
before they even begin a lawful process; the commenter urged instead
that individuals be permitted to schedule appointments prior to
embarking on their journey to ensure that appointments are provided in
a fair manner. At least one commenter expressed concern that
individuals would use Virtual Private Networks to do an end run around
the geofencing. Another commenter stated that the app allows for
scheduling appointments up to 13 days in advance, but that individuals
accessing the app from their home countries may not be able to make it
to the United States in 13 days. Similarly, a commenter stated that,
although the rule contemplated expanding CBP One access to locations
beyond the SWB, such an expansion would not alleviate the risk of harm
that migrants face, as it would not be possible for the migrant to
schedule a date and time to present at a POE before leaving their home
country, and migrants seeking to access the app from their home
countries would lack access to NGOs and other entities at the SWB that
could provide assistance.
Response: At this time, the ability to schedule an appointment
through the CBP One app is available only to migrants located in
central and northern Mexico.\238\ The geofenced area allows migrants to
remain in shelters and other support networks instead of congregating
at the border in unsafe conditions, facilitating a safe and orderly
presentation at POEs. The app does not facilitate travel to Mexico in
order to schedule an appointment to present at a POE. Individuals
outside northern and central Mexico are encouraged to use various
pathways available to lawfully travel to the United States, and they
will be able to use the app once they are in the geofenced area and
thus closer to the United States.
---------------------------------------------------------------------------
\238\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for
the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 6 n.24 (Jan. 19, 2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
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CBP is aware of reports of users attempting to circumvent the
geofenced area and has taken steps to prevent this from occurring. CBP
has also received reports of users who were in Mexico in close
proximity to the SWB, but whose phones were showing that they were
within the United States, thus generating error messages. To address
this issue, CBP adjusted the geofencing to accommodate individuals
located in Mexico in close proximity to the SWB.
Comment: Some commenters stated that requiring people to wait in
Mexico until their appointment date is dangerous, as indicated, for
example, by the number of violent attacks on migrants who have been
turned back under the Title 42 public health Order since President
Biden took office and the dangers that individuals faced in Mexico
during MPP. One commenter expressed concern that the rule included no
exception to the rebuttable presumption for asylum seekers' inability
to secure a timely opportunity to present themselves, even though CBP
One appointments have been ``extremely difficult to access'' and have
taken weeks or months to secure. Another commenter noted that the
first-come, first-served scheduling design is haphazard, and that there
is no priority for migrants who have been waiting for longer periods of
time.
Another commenter cited a Human Rights First study that found that
there were 1,544 reported cases of violence against asylum seekers--
including two murders--during the first two years of MPP. One commenter
stated that the delays caused by the CBP One app increase the dangers
for those waiting for a POE appointment in Mexico. Commenters stated
that asylum seekers who are unable to secure appointments through the
CBP One app will be forced to remain indefinitely at the border in
dangerous conditions, including conditions where they have no access to
or must rely on third parties for safe housing, food, electricity,
internet, or stable income, all while continuing to try to make an
appointment. One commenter noted that this was particularly problematic
for those with chronic or serious health problems because access to
health care in areas where individuals must wait is limited. Commenters
expressed concern that criminal organizations, including cartels, could
exploit individuals during the period that they must remain in northern
Mexico waiting for an appointment. Another commenter expressed concern
that those individuals in Mexico awaiting an appointment are at risk of
deportation to their home countries, where they could experience
persecution.
A commenter also stated that the United States Government should
engage with the Government of Mexico to ensure that noncitizens waiting
in Mexico for a CBP One app appointment have documents authorizing a
[[Page 31400]]
temporary stay in Mexico for that purpose and that the lack of official
documents regarding status in Mexico leaves noncitizens at risk of
fraud and abuse. Another commenter recommended that CBP provide
instruction on the use of the app to personnel in Mexico.
Response: The Departments acknowledge that individuals seeking to
make an appointment to present at a POE will generally need to wait in
Mexico prior to their appointment. The Departments also acknowledge
that, in some cases, the conditions in which such individuals wait may
be dangerous. However, noncitizens are currently waiting in northern
Mexico, and, as addressed in the NPRM, the Departments anticipate that
larger numbers of individuals will seek to enter the United States
after the lifting of the Title 42 public health Order. See 88 FR at
11705. Therefore, as noted in the NPRM, the Departments have concluded
that this anticipated influx warrants the implementation of a more
transparent and efficient system for facilitating orderly processing
into the United States. Although the use of the CBP One app may, as
commenters noted, sometimes cause delays, the Departments believe that,
on balance, the benefits of the more transparent and efficient system
created by use of the app outweigh the drawbacks and that use of the
app will ultimately inure to noncitizens' benefit by allowing the
Departments to more expeditiously resolve their claims. CBP has
conducted extensive outreach and communication with stakeholders who
may be able to assist noncitizens in accessing the CBP One app to
register and schedule an appointment, including shelters and other
entities in Mexico.
The Departments also note that migrants are not categorically
required to preschedule an appointment to present at a POE, and all
migrants who arrive at a POE, regardless of whether they have an
appointment, will be inspected and processed. Migrants who present
without an appointment may be subject to the presumption, but, among
other exceptions, the presumption will not apply for those for whom it
was not possible to access or use the DHS scheduling system due to
language barrier, illiteracy, significant technical failure, or other
ongoing and serious obstacle. 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). Additionally, migrants who demonstrate
``exceptionally compelling circumstances,'' such as an imminent and
extreme threat to their life or safety, an acute medical emergency, or
status as a victim of a severe form of trafficking, may rebut the
presumption, in accordance with 8 CFR 208.33(a)(3)(i)(A) through (C),
1208.33(a)(3)(i)(A) through (C).
b. CBP One App Accessibility
Comment: Commenters expressed a range of concerns regarding the
accessibility of the CBP One app for migrants seeking to enter the
United States.
Many commenters stated the CBP One app is not available to all
migrants, especially those who do not have smartphones, reliable
internet access, or passports, and that all appointments are claimed
almost immediately because the supply is insufficient. Multiple
commenters suggested that many low-income individuals do not have
access to a working phone or the internet in their home country, making
use of the CBP One app infeasible. Commenters stated that many
oppressive regimes limit access to the internet and asked how the
Departments planned to provide access to the CBP One app to migrants in
such countries. Relatedly, at least one commenter conveyed,
anecdotally, that some migrants with limited economic means are
forgoing food so that they can purchase enough data to attempt to make
an appointment on the CBP One app to cross the SWB and seek asylum in
the United States. Some commenters noted that many migrants become
victims of crime while traveling to the United States, and their phones
may be stolen, lost, or broken. Another commenter pointed out that some
individuals may have phones but cannot afford to pay for telephone
services for the phone. A commenter stated that it was unreasonable to
place the burden on migrants to obtain internet and broadband access,
as some migrants must choose between ``sustenance and digital access.''
The commenter stated that this requirement perpetuated the crisis of
unequal access to justice. At least one commenter noted that
individuals may dispose of their cell phones out of concern that those
they fear could track them using that phone and so no longer have a
smartphone to use the CBP One app. One commenter suggested finding
donors to provide phones for families to schedule appointments.
Others stated concerns with relying on a web and mobile application
because technology can fail. At least one commenter stated that the
Departments should not rely only on the CBP One app because cellular
signals along the SWB are inconsistent and Wi-Fi options are limited,
and some migrants, such as Afghans who travel through South and Central
America, do not have local connectivity. At least one commenter asked
how having a cell phone with good coverage so a migrant can obtain an
appointment relates to the merits of their asylum claim, while another
stated that migrants without internet access would effectively be held
to a higher standard than those with internet access, which many would
not be able to overcome due to the lack of legal representation in
initial screenings.
Another commenter stated that the rule did not provide sufficient
information on how the Government conducted a study of the number of
migrants who may have smartphones. Another asserted that the study had
a sampling bias since it only surveyed individuals seeking a Title 42
exception, which they claimed required the use of the CBP One app. A
commenter provided data comparing the percentages of smartphone
ownership in Mexico, Cuba, Haiti, Nicaragua, and Venezuela, which, they
stated, showed that while Mexico and Haiti had a high percentage of
users, Nicaragua and Venezuela did not. On the other hand, at least one
commenter noted that cell phones, including smartphones, are very
common and that as a result people should be able to apply for CBP One
app appointments.
Other commenters noted that people who cannot use the application
would be at a serious risk of being turned away at the border and
disagreed with the Departments' statements to the contrary.
A commenter claimed that CBP has yet to implement a desktop version
of the app and has provided little clarity on whether and when such a
version would be available. The commenter also stated that many
migrants lack regular access to desktop computers.
Response: The Departments disagree that the CBP One app is a
barrier to seeking asylum. The Departments also disagree with the
contention that this rule sets up a linkage between access to an
adequate cell phone or internet and the merits of an individual's
asylum claim. Rather, the CBP One app is a tool that DHS has
established to process the flow of noncitizens seeking to enter the
United States in an orderly and efficient fashion. CBP intends to
increase the number of available appointments when the Title 42 public
health Order is lifted and anticipates processing several times more
migrants each day at the SWB POEs than the 2010-2016 daily average,
including through use of the CBP One app.\239\ Further, noncitizens who
[[Page 31401]]
present at a POE without using the CBP One app are not automatically
barred from asylum.\240\ The determination of whether the rebuttable
presumption applies will be determined by an AO during the credible
fear process or by an IJ in section 240 removal proceedings, at which
time the noncitizen can demonstrate it was not possible to use the CBP
One app due to language barrier, illiteracy, significant technical
failure, or other ongoing and serious obstacle. CBP officers will not
be making determinations about whether the rebuttable presumption is
applicable.
---------------------------------------------------------------------------
\239\ See CBP, CBP STAT, U.S. Customs and Border Protection
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of
Field Operations (OFO) Daily Average (internal data report,
retrieved Apr. 13, 2023); Memorandum for William A. Ferrara, Exec.
Ass't Comm'r, Off of Field Operations, CBP, from Troy A. Miller,
Acting Comm'r, CBP, Guidance for Management and Processing of
Undocumented Noncitizens at Southwest Border Land Ports of Entry
(Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
\240\ In addition, under this rule, any noncitizen will be able
to present at a POE, and CBP will not turn away any individuals--
regardless of manner of entry into the United States--or deny them
the opportunity to seek admission to the United States. However,
those who arrive at a POE without an appointment via the CBP One app
may be subject to longer wait times for processing depending on
daily operational constraints and circumstances.
---------------------------------------------------------------------------
The CBP One app is free to use and publicly available. As noted in
the NPRM, a limited study conducted at two POEs in December 2022 found
that individuals had a smartphone in 93 out of 95 Title 42 exception
cases. At the time of this survey, migrants were not required to
utilize the CBP One app to schedule an appointment to be considered for
a Title 42 exception; that requirement was implemented in January
2023.\241\ Additionally, independent studies demonstrate that
approximately two-thirds of individuals worldwide had smartphones by
2020.\242\ The Departments acknowledge that other studies provided by
commenters show varying rates of smartphone access among migrants, that
not all migrants may have access to a smartphone or be able to easily
use the CBP One app, and that lack of smartphone access may hinder a
migrant's ability to use the CBP One app. However, individuals who do
not have a smartphone or who have other phone-related problems can seek
assistance from trusted partners, who may be able to share their phones
or provide translation or technical assistance if needed to submit
information in advance. In addition, CBP has conducted extensive
engagement with NGOs and stakeholders and has received feedback and
information about the challenges associated with the use of the CBP One
app. Throughout these engagements, access to smartphones has been
raised, although not as a significant concern for most individuals. CBP
is aware that NGOs provide support and assistance with access to mobile
devices and internet connectivity. CBP notes that from January 12,
2023, when appointment scheduling launched, through the end of March
2023, over 74,000 noncitizens have scheduled an appointment via the CBP
One app.\243\
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\241\ See CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
\242\ Allan Jay, Number of Smartphone and Mobile Phone Users
Worldwide in 2022/2023: Demographics, Statistics, Predictions (Mar.
16, 2023), https://financesonline.com/number-of-smartphone-users-worldwide/.
\243\ CBP, CBP Releases March 2023 Monthly Operational Update
(Apr. 17, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-march-2023-monthly-operational-update.
---------------------------------------------------------------------------
Nevertheless, CBP acknowledges there can be connectivity gaps and
unreliable Wi-Fi in central and northern Mexico. CBP reiterates that
the use of the app to schedule an appointment to present at a POE is
geofenced to only those migrants who are present in central and
northern Mexico, and so commenters' concerns regarding internet
censorship in other countries are misplaced. However, in response to
feedback about connectivity issues, on February 18 and 23, 2023, CBP
released updates to the CBP One app to improve the submission and
scheduling process for individuals with lower bandwidth. In addition,
based on user and stakeholder feedback, CBP will transition CBP One
scheduling to a daily appointment allocation process to allow
noncitizens additional time to complete the process. This process
change will allow noncitizens to submit a request for an appointment,
and then available appointments will be allocated to those who made
such a request. Individuals who are issued an appointment will have a
23-hour period to complete the scheduling process and confirm their
appointment. Each day, unconfirmed appointments will be reallocated
among the current pool of registrations. This change will reduce the
burden on the noncitizen to have connectivity at the precise moment of
the daily appointment release, as is currently the case. This process
will also enable noncitizens to request a preferred POE at which to
schedule an appointment. Future and ongoing enhancements to the app are
expected based on user and stakeholder feedback to ensure equity in the
scheduling process.
The Departments acknowledge concerns about the availability of a
desktop app for scheduling appointments. There is currently a desktop
version of the CBP One app,\244\ but it is not currently available for
noncitizens to submit advance information. CBP is updating the desktop
capability to provide the ability for undocumented noncitizens to
register via the desktop version. This update is expected to be
available in summer 2023. However, CBP does not have plans to enable
users to schedule an appointment using the desktop version of the CBP
One app because the desktop version does not allow for specific
requirements that CBP has determined are needed such as geofencing and
a live photo. This scheduling functionality will only be available via
a mobile device.
---------------------------------------------------------------------------
\244\ See CBP, DHS/CBP/PIA-068, Privacy Impact Assessment for
CBP OneTM Mobile Application 15 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf.
---------------------------------------------------------------------------
CBP notes that commenters' concerns about access to the CBP One app
are misplaced. Noncitizens seeking to schedule an appointment to
present at a land POE are not required to have a passport.\245\ Other
functions of the CBP One app, including the Advance Travel
Authorization (``ATA'') functionality used as part of the CHNV parole
processes, require an individual to provide their passport
information.\246\
---------------------------------------------------------------------------
\245\ See id. at 15 n.18.
\246\ See id. at 21-22.
---------------------------------------------------------------------------
Comment: One commenter expressed concerns that the Departments
relied on use of the CBP One app among the Venezuelan population as
part of the CHNV parole processes to justify use of the CBP One
exception in this rule. In particular, the commenter asserted that the
use of the app among the Venezuelan population seeking to travel to the
United States to seek parole was not a good indicator of the app's use
among other populations of migrants, many of whom were less technically
savvy and required more assistance with the app.
Response: This commenter's concern is misplaced because the
Departments have not relied on any data regarding Venezuelan migrants'
access to CBP One in this rule. The Departments acknowledge and agree
that use of the CBP One app in the ATA context is not comparable to the
use of the app to seek an appointment to present at a POE and note that
the ATA process is separate and distinct from the use of the CBP One
app to schedule an appointment to present at a POE.
Comment: Commenters also stated that use of the CBP One app is
particularly difficult for families who
[[Page 31402]]
may be unable to make appointments together. Another commenter stated
that families may not have time to register together before all of the
appointments are taken. Other commenters noted that family separation
may occur because of both stress and confusion. Another commenter noted
that CBP officers told individuals that they had the option of leaving
children behind, trying to get another appointment, or sending children
alone, underscoring that the CBP One app increases the likelihood that
families will separate themselves in order to get appointments or to
enter the United States. At least one commenter noted that there should
be an adequate number of appointments set aside for families.
Commenters also stated that the CBP One app is insufficient as a lawful
pathway because it does not allow families to register together. One
commenter, a legal services provider, stated that it had raised
concerns to CBP about the length of time that families were waiting to
seek an appointment. The commenter stated that CBP told the entity that
the delay for families was likely a result of criminal groups making
fraudulent appointments, which the commenter concluded was evidence
that expansion of the CBP One app would increase exploitation of
migrants. One legal services clinic stated that it had been informed by
a CBP Field Office on the SWB in March 2023 that officers had not
interviewed any families with more than six members, which was
concerning given the number of larger families waiting to enter. A
commenter stated that children should not be held responsible, through
their eligibility for asylum, for whether their parents used the CBP
One app to enter. One commenter noted that in February 2023 a family
was not permitted to enter because the appointment did not list the
children's names.
Response: CBP acknowledges the concerns regarding the ability of
families to submit appointments together and has been working to
address such concerns. Following the initial implementation, CBP
received feedback that the app was timing out during the registration
process of families with babies or young children and determined that
this was caused by delays in the third-party liveness verification
(that is, the process to verify that each person listed is, in fact, a
live person). In February 2023, CBP updated the workflow in the app to
address this issue by removing liveness detection as part of the
registration process. Users are now only required to take a still photo
of each traveler at the time of registration, the same action as if
taking any photo from a mobile device, which only takes a few seconds.
Following this update to remove liveness detection from the
registration process, CBP has received feedback from NGOs that there
are fewer reported errors.
CBP has also consolidated appointment slots to increase the number
of available appointments at the same time, where feasible, making it
easier for family units to get an appointment together. For example, if
a POE previously had two separate appointment times with 10
appointments each, they might have been combined to create one
appointment time with 20 slots, making it easier to accommodate larger
groups.
CBP continues to advise users and NGOs that one member of the
family should create a registration on behalf of the entire family.
While each member of a family must have a unique appointment, one
member of a family can create the submission on behalf of the entire
family group and complete the scheduling process, including the photo
capture, to secure appointments for all registered family members.
Functionally, this is similar to buying airline tickets. A designated
person accesses the website, the website ensures there are seats for
the indicated number of people, and the designated person provides the
details for each individual to complete the purchase. At this stage,
only the individual submitting the registration on the family's behalf
is required to provide a live photograph.
Following the rollout of these enhancements, as of April 18, 2023,
CBP data show that, for appointments scheduled from March 8, 2023,
through May 1, 2023, groups make up an average of 83 percent of the CBP
One scheduled appointments. Families or groups who do not register
together on one CBP One account may not be accommodated at the same POE
or on the same date. The Departments acknowledge that challenges remain
for larger families, but the Departments believe that these changes
have significantly ameliorated the concerns raised by commenters that
family groups have been unable to obtain appointments.
CBP shares commenters' concerns about fraud and exploitation and
has taken several steps to try to mitigate such issues. Specifically,
the app uses 1-to-1 facial matching, meaning that it compares still
photos submitted by users during the registration process to subsequent
photos submitted by the same users while scheduling an appointment.
This photo matching helps to ensure that the individual making an
appointment is the same person who registered for the appointment.
Additionally, the app's liveness detection verifies that a person
submitting an appointment is, in fact, a live person. Finally, users
have a limited number of submissions per Login.gov authenticated
identity, helping to prevent one individual from submitting bulk
appointment requests.
With respect to the comment stating that children should not be
held responsible for whether their parents used the CBP One app to
enter, the Departments note that they have exempted from this ongoing
application of the rebuttable presumption noncitizens who entered the
United States during the two-year period while under the age of 18 and
who later seek asylum as principal applicants after the two-year
period. 8 CFR 208.33(c)(2), 1208.33(d)(2).
Comment: Commenters noted that the app is only available in
English, Spanish, and Haitian Creole, which limits accessibility for
many, such as speakers of indigenous languages or other languages
outside this limited list. A commenter referred to a study that, in
January 2021, identified more than forty different languages spoken by
individuals with pending MPP proceedings, which, according to the
commenter, rendered it ``alarming'' that the app was available in only
three. One commenter stated that, as of January 2023, the app was not
available in Creole. Other commenters expressed concern about those who
may be illiterate who are still seeking to access the app, including
those who may not be literate in one of the languages available on the
app. At least one commenter noted that Login.gov is also only available
in English, Spanish, and French, noting that based on at least one
report these are not the most common languages and that third party
assistance does not adequately address this concern. Another commenter
stated that due to limited resources and high demand, it is not clear
whether non-profit service providers will be able to help asylum
seekers overcome the CBP One app's language barriers.
Commenters also expressed concern about specific portions of the
CBP One app that they stated are only available in English.
Specifically, commenters stated that the CBP One app's advisals
regarding the terms and conditions of use and the repercussions of
fraud or willful misrepresentation are presented exclusively in
English. Other commenters said that all answers entered into the app
must be in English, resulting in many individuals requiring assistance,
including Spanish and Haitian Creole speakers, even though
[[Page 31403]]
the CBP One app is available in their native language. Other commenters
noted that the app's error messages are only in English, even if the
user selects a different language, which makes using the app difficult
for asylum seekers who cannot understand English. Commenters expressed
that the limited availability of interpreters and the time required to
enter information using interpreters added to difficulties in obtaining
appointments through the CBP One app for non-English speakers.
Commenters maintained that translating the CBP One app into additional
languages would not resolve access issues for individuals with no or
limited literacy.
Commenters also expressed concern about migrants' ability to meet
the language barrier exception. One commenter stated that asylum
seekers will struggle to meet the language barrier exception because
the rule does not provide a clear process for how they can demonstrate
that they were unable to use the CBP One app due to language issues.
The commenter stated it is unclear whether the asylum seekers must show
that they sought help from a third party before presenting themselves
at a POE. One commenter stated that the rule does not explain how
noncitizens with language, literacy, or technology issues can access
this exception.
Response: As commenters noted, the CBP One app is currently
available in English, Spanish, and Haitian Creole. The addition of
Haitian Creole, on February 1, 2023, was based on stakeholder feedback.
The translation of terms and conditions into all three languages was
added on April 6, 2023. Initial analysis conducted in March 2023
indicated the current three languages account for 82 percent of the
application users, with the next most common language being Russian, at
9 percent. Currently, CBP has not received any requests to make the app
available in Russian. However, CBP will continue to consider the
inclusion of additional primary languages, which will be made available
based on analysis of populations encountered at the border and user
feedback. Additionally, outside entities, including NGOs, or other
persons may provide assistance with the appointment scheduling process
in the CBP One app.
CBP is also implementing the translation of all drop-down menus as
well as allowing for special characters, which is expected to be
complete by May 11, 2023. This update will also allow users to input
answers in the three available languages. While most of the error
messages are translated, CBP acknowledges that not all messages are
translated, as a few system errors stem from different sources that do
not have translation capabilities. However, CBP also has detailed user
guides--which are available in English and Spanish (and Haitian Creole
by the end of May 2023)--fact sheets--which are available in English,
Spanish, Haitian Creole, Portuguese, and Russian--and video
introductions available for free on the CBP.gov website, which provide
visual overviews on how to submit information in advance.\247\
---------------------------------------------------------------------------
\247\ CBP, CBP OneTM Mobile Application, https://www.cbp.gov/about/mobile-apps-directory/cbpone.
_____________________________________-
With regard to Login.gov, that website is an independent
authentication service for government mobile applications, and
therefore CBP has no authority to make changes to it. However, CBP has
submitted a request to GSA to consider adding Haitian Creole as an
additional language.
The Departments acknowledge commenters' concerns about application
of the exception to the rebuttable presumption of asylum ineligibility
for those who can demonstrate that it was not possible to access or use
the CBP One app due to language barrier, illiteracy, or another serious
and ongoing obstacle, 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B),
and such concerns are discussed further in Section IV.E.3.ii.d of this
preamble.
Comment: Commenters stated that the CBP One app is inaccessible for
many migrants, particularly the most vulnerable. A commenter stated
that they had done volunteer work with asylum seekers from a few
African countries and from many Spanish-speaking countries, and that
reliance on the CBP One app is unfair because it assumes that migrants
have a level of literacy, electricity, and time that are often
unavailable to those desperately seeking safety. Another commenter
noted that those with mental impairments or physical impairments,
including arthritis, may not be able to use the CBP One app. One
commenter stated that there is no rebuttal available for people with
educational, mental, or psychological disabilities or who are unable to
secure a timely appointment. One commenter stated that the proposed
rule does not provide reasonable accommodations related to difficulties
of using the CBP One app for people with disabilities, which the
commenter asserted violated section 504 of the Rehabilitation Act, 29
U.S.C. 701 et seq.
Response: CBP acknowledges that certain individuals may have
difficulty accessing the CBP One app. However, CBP has taken several
steps to facilitate awareness of and access to the app. In particular,
CBP has conducted extensive engagement with NGOs and stakeholders and
has provided several opportunities to non-profit and advocacy
organizations to provide feedback and receive information about the use
of the CBP One app. Such entities may also serve as a resource for
technological, humanitarian, and other assistance to migrants accessing
the app. Management at POEs where the app is being utilized are also in
regular contact with these support organizations to address any issues
and concerns in real time.
Additionally, the CBP One app is undergoing a compliance review
under section 508 of the Rehabilitation Act of 1973, which is expected
to be completed by the end of May 2023. CBP expects a final
certification by the end of August 2023. There are also several
assistive technologies that can be utilized to translate the app
independently, such as free apps that provide screen readers,
magnification, and translation.
c. CBP One Technological Issues and Functionality
Comment: Commenters expressed concerns that the CBP One app has
multiple glitches and problems, most notably that it allegedly does not
capture or register darker skin tones and does not allow some
individuals to upload their photos, instead displaying error messages.
Some commenters referred to studies that demonstrated racial bias in
facial recognition technology. One commenter stated that certain
disabilities or conditions, including blindness and autism, prevented
users from effectively capturing a live photograph for the app. A
commenter expressed concern that transgender individuals may present
differently at the border than they did at the time their photograph
was taken.
Response: The Departments are committed to equal access to the CBP
One app for individuals of all races and ethnicities. At this time, CBP
has not found any indication of meaningful discrepancies in app
functionality based on skin tone. The predominant reason for error
messages during the photo process was the volume of submissions at one
time with low connectivity and bandwidth of other technological
platforms that supported the app. To ensure equity for all
nationalities in the photo process, CBP is continuing to assess and
study the software's performance.
For additional context, there are two photo capture technologies
utilized in the CBP One process: the Traveler Verification Service
(``TVS'') and
[[Page 31404]]
``liveness detection.'' TVS is a facial recognition technology that
allows a CBP One submitter's photo to be compared against subsequent
submitted photos to ensure it is the same individual each time a photo
is submitted.\248\ This system is utilized at two different points in
the process: (1) during the process of scheduling an appointment, to
verify that the photo submitted matches the photo previously provided
during registration; and (2) upon a noncitizen's arrival at a POE,
where officers take another photo of the individual as part of the
inspection process and verify that that photo matches the photograph
submitted at the time of scheduling. However, there are alternative
methods to verify that the individual presenting at the POE matches the
individual who scheduled through CBP One if facial matching is not
possible. For example, an officer can enter the unique confirmation
number provided by the CBP One application or biographic data.\249\
Additionally, CBP has partnered with the National Institute of
Standards and Technology, the DHS Science and Technology Directorate,
and the DHS Office of Biometric Identity Management to assess and test
facial recognition technology and algorithms as part of efforts to
improve the effectiveness of the process.\250\ Additional information
is publicly available in the TVS Privacy Impact Assessment.\251\
---------------------------------------------------------------------------
\248\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for
the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 10 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf; CBP, DHS/CBP/PIA-056,
Privacy Impact Assessment for the Traveler Verification Service
(2018), https://www.dhs.gov/publication/dhscbppia-056-traveler-verification-service.
\249\ See CBP, DHS/CBP/PIA-076, Privacy Impact Assessment for
the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 10-11 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf.
\250\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for
the Traveler Verification Service 15-16 (2018), https://www.dhs.gov/publication/dhscbppia-056-traveler-verification-service.
\251\ See generally id.
---------------------------------------------------------------------------
CBP One also relies on ``liveness detection.'' The vast majority of
feedback CBP has received regarding issues identifying people of color
were identified as related to liveness detection during the
registration process. As explained in more detail below, CBP One
previously utilized liveness detection during both the registration and
scheduling processes. For context, the CBP One app utilizes third-party
software to verify ``genuine presence'' or ``liveness'' during
registration and scheduling an appointment.\252\ The liveness
verification confirms the user is a live person and is not taking a
photo of a photo or video.\253\ Such verification ensures that
appointments are given to bona fide individuals and family groups,
rather than brokers or middlemen who might seek to book appointments in
bulk and then sell them to migrants.
---------------------------------------------------------------------------
\252\ See, e.g., CBP, DHS/CBP/PIA-076, Privacy Impact Assessment
for the Collection of Advance Information from Certain Undocumented
Individuals on the Land Border 23 (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf; see also DHS, News Release:
DHS S&T Awards IPROOV $198K to Pilot Genuine Presence Detection and
Anti-Spoofing Capability (Nov. 6, 2020), https://www.dhs.gov/science-and-technology/news/2020/11/06/news-release-st-award-genuine-presence-detection-and-anti-spoofing.
\253\ DHS, News Release: DHS S&T Awards IPROOV $198K to Pilot
Genuine Presence Detection and Anti-Spoofing Capability (Nov. 6,
2020), https://www.dhs.gov/science-and-technology/news/2020/11/06/news-release-st-award-genuine-presence-detection-and-anti-spoofing.
---------------------------------------------------------------------------
When the scheduling capability was initially implemented in January
2023, CBP originally required users to take a live photograph at the
time they input their biographic information to register for the app,
and, if they were unable to schedule an appointment at the same time,
they were required to take a live photograph again at the time they
scheduled an appointment. This requirement took significant bandwidth,
which resulted in many users experiencing difficulty. However, based on
feedback from users and stakeholders, and consistent with its security
protocols, CBP has determined the liveness check is no longer required
during the registration process and implemented this change in February
2023. Therefore, while users are required to submit a photo at the time
of registration, this photo does not need to be a live photo. Rather,
the user is only required to submit a live photo at the time of
scheduling an appointment, so that the liveness check and facial
matching only occur during the scheduling of the appointment. When
scheduling an appointment on behalf of a family or group, only one
member of that family group is required to submit a live photograph. At
that time, the CBP One app utilizes the live photo and facial matching
technology to match the photo submitted during scheduling to the
original photo submitted upon initial registration to verify that both
photos are of the same person. Thus, an individual must only present
similarly in photographs at the time of registration and the time of
submission. Following this change, as well as others made during
February 2023 to increase bandwidth, CBP has received feedback that
there are fewer errors.
In addition, with regard to concerns about disparities based on
skin tone, the third-party vendor has conducted their own equality
study, which was provided to CBP, and concluded that across their
global platform, differences in performance between ethnicities are on
the order of tenths of a percent. As of the end of March 2023, Haitians
are one of the top three nationalities using the CBP One app.\254\
Regarding concerns about the ability of the app to capture a live
photograph from individuals with certain disabilities or conditions,
including blindness and autism, such individuals are not required to
submit a live photograph if they are part of a family or group, as
another member of that family or group can submit the live photograph
on their behalf. In the event that an individual is unable to submit a
live photograph as part of the submission process, they are encouraged
to seek assistance from another person to take the photo for them. In
addition, CBP consistently evaluates the registration and scheduling
process, including the use of live photographs, and will continue to
make enhancements and adjust the process based on feedback and
operations.
---------------------------------------------------------------------------
\254\ See CBP, CBP Releases March 2023 Monthly Operational
Update (Apr. 17, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-march-2023-monthly-operational-update.
---------------------------------------------------------------------------
Comment: Commenters noted a range of technology-related concerns
with the CBP One app. Commenters described the CBP One app as very
difficult to use, stating that it often crashes or is prone to
glitches. Another commenter stated that there have been reports of the
CBP One app freezing when noncitizens try to send confirmation of their
interview dates. Some commenters noted that those seeking to enter the
United States may not have the technical ability to navigate the app. A
commenter noted that, although the Departments stated in the NPRM that
CBP had conducted ``extensive testing'' of the app's technical
capabilities, such statement was not supported by any publicly
available studies or information. Commenters also recommended that CBP
develop timely and effective mechanisms to receive and address reports
of errors in the CBP One app.
Response: The Departments recognize commenters' frustration with
the CBP One app. As noted above in Section IV.E.3.ii.a of this
preamble, CBP systems
[[Page 31405]]
undergo comprehensive testing and evaluation to assess the respective
security features as part of the process of being granted an ATO.\255\
The advanced information and scheduling capabilities addressed in this
rule in particular have undergone various rounds of testing prior to
and post deployment. CBP also conducted limited user testing both
internally and in partnership with an NGO partner. The primary issues
identified by users since the app's implementation have been caused by
issues that cannot be fully identified in a testing environment.
---------------------------------------------------------------------------
\255\ See DHS, DHS 4300A Sensitive Systems Handbook 47 (2015),
https://www.dhs.gov/publication/dhs-4300a-sensitive-systems-handbook.
---------------------------------------------------------------------------
CBP continues to make improvements to the app based on stakeholder
feedback, including updates to enhance usability in low bandwidth and
connectivity scenarios, and to streamline the submission and scheduling
process. CBP primarily receives reports of errors or other concerns
through three mechanisms. The first and primary mechanism is the CBP
One email inbox,\256\ to which users may send an inquiry or concern
about any capability within the CBP One app. Since CBP One has many
capabilities and functionalities, and is available to a diverse
audience, the inbox initially responds by asking the author to select
the appropriate topic pertaining to their specific issue. Emails
related to the ability to schedule appointments at POEs are addressed
by one of three teams: CBP Customer Service, CBP's Office of
Information Technology, or the CBP One team within CBP's Office of
Field Operations. CBP also receives reports of errors or issues through
recurrent briefings and sessions with NGOs. Third, CBP personnel both
at local POEs and within CBP Headquarters receive direct email
communications from NGOs.
---------------------------------------------------------------------------
\256\ See CBP, CBP OneTM Mobile Application (Apr. 10,
2023), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
---------------------------------------------------------------------------
The reported issues are a result of the volume of activity and the
strain this may put on local bandwidth and connectivity. In an effort
to improve app performance in low or limited bandwidth and connectivity
situations, CBP determined the live photo could be removed as part of
the registration process. This change was implemented in February 2023,
and based on feedback from NGOs and stakeholders, it has reduced the
number of reported errors users experienced. CBP is actively working to
improve application hang-up-error logging and reporting to better
inform on user complaints and application improvements.
d. Exception for Certain Failures To Pre-Schedule a Time and Place To
Present at a POE \257\
---------------------------------------------------------------------------
\257\ This section describes comments and responses related to
the exception to the rebuttable presumption for noncitizens who
present at a POE without having pre-scheduled a time and place for
an appointment. 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
Currently, as explained in the NPRM, the only available system for
scheduling such an appointment is the CBP One app. 88 FR at 11723.
Accordingly, this section's comments and responses are focused on
the use of the CBP One app for this exception, although the
exception would apply similarly to any other scheduling system
developed for this purpose.
---------------------------------------------------------------------------
Comment: Commenters provided comments on the proposed exception to
the presumption for individuals who present at a POE and demonstrate
that it was not possible to access or use the CBP One app due to
language barrier, illiteracy, significant technical failure, or another
serious and ongoing obstacle.
Regarding the ``illiteracy'' and ``language barrier'' provisions,
commenters questioned how noncitizens would prove that they cannot
understand any of the languages offered by the CBP One app, and whether
testimony about their language proficiency would suffice as evidence
for an exemption. One commenter said the proposed rule does not provide
a standard for how officials will determine asylum seekers' language
proficiency, which could lead to erroneous denials. Another commenter
said it is unclear whether asylum seekers with language barriers must
show that they sought help from a third party before presenting
themselves at a POE. A commenter expressed concern that refugees who
have basic communication skills in English or Spanish, but who cannot
read or write proficiently in either of those languages, would wrongly
be found to not have a language barrier that would exempt them from the
requirement to use the app. Another commenter wrote that the exemptions
based on illiteracy and language barriers are reasonably clear but the
rule should clarify that literacy in the dominant language of a country
should not be presumed for citizens of that country because, for
example, many indigenous people in Guatemala do not speak Spanish. One
commenter expressed concern that individuals with limited English
proficiency would face difficulty establishing this exception due to
the unavailability of qualified interpreters and recommended that if
the Government cannot obtain interpreters for individuals, they should
be placed directly in section 240 removal proceedings.
Multiple commenters said the proposed rule fails to clearly define
what constitutes a ``significant technical failure.'' Several
commenters said the proposed rule did not outline how individuals could
document technical difficulties such as app malfunctions or
inaccessibility. A commenter said it may not be possible to screenshot
the app to document a glitch if the app is frozen and producing this
evidence would be hard for migrants in detention where they may not
have access to their phones. Another commenter asked if this exception
would include inability to afford a smartphone, having a phone stolen
or broken, or inability to access stable Wi-Fi. Another commenter
stated that additional usage of the CBP One app after the Title 42
public health Order is terminated would likely exacerbate technical
problems, leading migrants to irregularly cross the border and claim
that the rebuttable presumption does not apply due to technical
difficulties.
One commenter stated that the Departments should update the
regulatory text to specify that ``significant technical failure''
refers to an inability of the DHS scheduling system to provide, on the
date that the noncitizen attempted to use it, an appointment for entry
within the two weeks after such attempt, together with the failure of
that system, when access to it is sought at the POE at which the
noncitizen has presented, to provide an appointment at that POE within
the following two weeks. A commenter similarly recommended that, for
the first 12-18 months after the lifting of the Title 42 public health
Order, the Departments should assess the application of the exception
based on a ``more liberal'' standard than the preponderance of the
evidence, based on an assumption that the CBP One app is likely to have
numerous technical failures.
Commenters stated that the proposed rule failed to clearly define
what constitutes an ``ongoing and serious obstacle.'' Commenters
questioned whether a failed attempt to make an appointment using the
CBP One app is likely to be considered sufficient. A commenter also
stated that the Departments should specify certain foreseeable
obstacles in the regulations as ongoing and serious obstacles, such as
mental impairments or physical conditions that affect one's ability to
use a smartphone. One commenter questioned whether the dangers that
marginalized asylum seekers face in parts of central and northern
Mexico
[[Page 31406]]
would be deemed an ongoing and serious obstacle. Another commenter said
the Departments should provide a list of anticipated obstacles to
prevent arbitrary and inconsistent determinations and recommended that
the list ``include, for example, mental impairments; physical
impairments such as severe arthritis of the hands that prevent the use
of a cell phone or other device to access the CBP One app; lack of
access to such a device coupled with poverty such that the noncitizen
could not reasonably purchase such a device; and a continuing lack of
appointments in the near future to enter at the POE at which the
noncitizen has presented.''
One commenter recommended that if the app is crashing or the
available appointments are so limited near where the asylum seeker is
located that they cannot promptly obtain an appointment, then the
affected asylum seeker should not have the burden of proving the
impossibility of accessing the system. That commenter proposed that
USCIS should assign an official to monitor the app and capacity of
processing facilities and post on a public website whether the app was
functioning and the availability of appointments. According to that
commenter, this public information, showing that the app was
functioning and that prompt entry appointments were available, would
create a presumption that no significant failure had occurred.
Similarly, another commenter suggested that the exception should also
take into account the potential for human error, specifically referring
to a situation in which a migrant believes they have an appointment,
the app failed to register that appointment, and a CBP officer permits
the individual to enter the POE. The commenter stated that, in such a
case, the migrant ``should not be punished when they are following the
rules'' and should not be required to show that there were significant
technical failures. The commenter suggested amending the regulatory
text so that the rebuttable presumption would not apply if the
noncitizen shows ``that it was not possible to access or use the DHS
scheduling system due to language barrier, illiteracy, significant
technical failure, or human error.'' The commenter also recommended
amending the regulatory text to include a statement that ``such
evidence may include data on the performance of the CBP One app which
DHS will make publicly available as well as records of problems
reported by users.''
Commenters also noted potential procedural concerns with
application of this exception. Some commenters stated that it will be
difficult for noncitizens to meet the burden of demonstrating this
exception, since the issue will arise in credible fear interviews when
people are not likely to be represented. One commenter said it was
impossible for asylum seekers to show they meet this exception because
it would require them to prove a negative. Another commenter stated
that CBP often confiscates people's phones while they are in CBP
custody or people may have borrowed phones to access the app, meaning
that they would not have access to the evidence they need to prove they
encountered obstacles using the CBP One app.
Commenters said it is unclear who will determine if this exception
applies and expressed concern that some individuals would be turned
away without the chance to seek asylum. One commenter wrote that it was
unclear if the failure of an individual to indicate that they qualify
for an exemption would be counted against them when an AO reviews their
case. Another commenter recommended the creation of a standardized form
of questions for officials to use when determining whether individuals
should be exempted from the CBP One appointment requirement. One
commenter wrote that the NPRM failed to consider the practicality of
conducting the analysis for this exception at the credible fear
interview stage.
Some commenters expressed concern that the exception is too broad
or easy to exploit. One commenter stated that applying the significant
possibility standard for this exception could result in ``carte
blanche'' acceptance of testimony that such an obstacle was present and
thereby undermine the intent of the rulemaking. Others said that this
exception was broad and easy to exploit because it could encompass a
wide variety of difficult-to-verify claims, such as losing one's mobile
phone, losing access to cell service, and being unable to pay for a new
mobile phone or data plan. One commenter also said that the CBP One
app's publicized technical issues would make it easy to claim the
exception. Another commenter stated that, based on the app's rating in
the app store, the app almost appeared to be ``designed to fail,'' to
permit noncitizens to take advantage of the exception. Another
commenter expressed general support for the inclusion of exceptions but
predicted confusion and that migrants would prefer to present at a POE
with an exception given the frequency of instances where it is not
possible to access or use the DHS scheduling system. One commenter
disagreed with the proposed exception relating to language barriers to
accessing the CBP One app, asserting that migrants would take advantage
of this exception to appear at a POE without an appointment. Another
commenter stated that the rule ``impermissibly'' shifts the burden onto
DHS to refute a noncitizen's assertion that it was not possible to use
the app and therefore expressed concern about ``exploitation'' of the
standard.
Some commenters recommended that the Departments should expand the
exception for failure to use the CBP One app when it is not possible to
do so to include noncitizens who enter the United States without
inspection, rather than only applying to noncitizens who present at a
POE.
Response: The rule provides the same exception set forth in the
NPRM to the applicability of the rebuttable presumption if the
noncitizen presented at a POE and demonstrates by a preponderance of
the evidence that it was not possible to access or use the CBP One app
due to language barriers, illiteracy, significant technical failure, or
other ongoing and serious obstacle. See 8 CFR 208.33(a)(2)(ii)(B),
1208.33(a)(2)(ii)(B). This exception captures a narrow set of
circumstances in which it was truly not possible for the noncitizen to
access or use the CBP One app. See 88 FR at 11723 n.173.
The Departments appreciate the commenters' suggestions about the
scope of the exceptions in 8 CFR 208.33(a)(2)(ii)(B) and
1208.33(a)(2)(ii)(B). With regard to the ``illiteracy'' exception, the
Departments acknowledge and agree that citizenship is not necessarily a
proxy for literacy in a particular language, and there is no
presumption in the CBP One app or in this rule regarding a particular
migrant's language. The Departments note, however, that individuals may
seek assistance, including translation assistance, in using the app.
And, to the extent that an individual is unable to access the app due
to their language barriers, they may be excepted from the presumption,
as discussed earlier in this preamble. The Departments decline to
specify precise ways by which a noncitizen must prove, or particular
language standards by which an AO or IJ must assess, that the
noncitizen qualifies for a language barrier or illiteracy exception.
This is to preserve flexibility and account for the unique
circumstances of certain noncitizens who are illiterate or who face
language barriers. Exceptions under this part of the rule will be
assessed on a case-by-case basis.
[[Page 31407]]
The Departments also acknowledge that the parameters of the
exception do not include a specific definition of ``significant
technical failure'' and thank the commenter for their suggested
definition. However, the Departments decline to add this definition to
the regulatory text, as the Departments believe that there may be any
number of ways that an individual could show a ``significant technical
failure.'' The Departments also note that this exception is intended to
cover technical failures of the app itself--e.g., the app is not
available due to a CBP network or server issue causing it to crash--
rather than a situation in which a migrant is unable to schedule an
appointment due to high demand or one where there is a fleeting,
temporary technical error. In such a situation, the Departments
encourage noncitizens to continue seeking to schedule an appointment,
but, to the extent that they are prevented from doing so because of
exigent circumstances, they may be able to show that they have
experienced another ``ongoing and serious obstacle,'' such that they
are excepted from the presumption. The Departments likewise decline to
amend the regulatory text to take into account human error or specific
data on the performance of the CBP One app. As noted above, there may
be any of number of ways to show a significant technical issue, or, as
described in more detail below, an ``ongoing and serious obstacle,''
which may be specific to the individual user. As noted below, the
determination of whether the presumption applies will be made on a
case-by-case basis.
The Departments appreciate commenters' concerns about what
constitutes an ``ongoing and serious obstacle.'' The Departments agree
that an individual with a mental or physical impairment may have
difficulty accessing the app but decline to add a new categorical
exception to the regulatory text for individuals with mental or
physical impairment. This is in part because the Departments do not
intend to limit the exception to a specified category or group of
conditions, and AOs and IJs will determine the application of the
exception on an individualized basis. The Departments also decline to
create further rules regarding which situations will generally or
categorically qualify for this exception, including on the basis of
failed attempts to make an appointment through the CBP One app. This
will preserve flexibility and account for the unique circumstances that
noncitizens may face while attempting to schedule an appointment to
appear at different POEs at different times. Exceptions under this part
of the rule will be assessed on a case-by-case basis.
The Departments respectfully disagree with commenters' concerns as
to noncitizens' ability to establish this exception. First, with regard
to the commenters' concerns about access to counsel in credible fear
interviews, that issue is discussed earlier in Section IV.B.5.ii of
this preamble. The Departments decline to alter the burden of proof
required for a migrant to show that it truly was not possible for them
to access the CBP One app. As an initial matter, the Departments note
that noncitizens outside of the United States have no freestanding
right to enter, and no right to enter in a particular manner or at a
particular time. See, e.g., Shaughnessy, 338 U.S. at 542. The CBP One
app does not alter this longstanding principle, but rather is intended
to incentivize and facilitate an orderly flow of travel into the United
States. Thus, the Departments decline to change the burden of proof
from the noncitizen to the Government or adopt a more liberal standard
for noncitizens who enter the United States during the initial months
after the rule takes effect.
Concerns about who will assess whether the exception applies are
misguided. The rule tasks AOs and IJs, not CBP officers, with
determining whether a noncitizen meets this exception to the rule. 8
CFR 208.33(b)(1) (``The asylum officer shall first determine whether
the alien is covered by the presumption . . . .''); id. 1208.33(b)(2)
(``The immigration judge shall first determine whether the alien is
covered by the presumption . . . .''). So too are concerns as to an
inability to access physical evidence to prove the exception while in
custody. Noncitizens may be able to establish that they meet the
exception through testimony so long as it is credible, persuasive, and
refers to specific facts to establish the exception. INA
208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). A noncitizen also does
not need to affirmatively raise this issue to qualify for the
exception; adjudicators are trained to elicit testimony relevant to
establishing a credible fear, as described in Section IV.B.5 of this
preamble. However, if a noncitizen fails to disclose a technical
failure or other obstacle when questioned about their failure to
schedule an appointment using the CBP One app, this could potentially
affect the credibility of their testimony if they later claim an
exception in subsequent proceedings.
The Departments also disagree with commenters who claimed this
exception is too broad or easy to exploit. The Departments disagree
with the assertion that this exception will cause noncitizens to appear
at a POE without an appointment. Noncitizens are not required to make
an appointment in the CBP One app to present at a POE, and in no
instance will an individual be turned away from a POE. All noncitizens
who arrive at a POE will be inspected for admission into the United
States. 8 CFR 235.1(a). Those, however, who present at a POE without
making an appointment in the CBP One app, and do not meet another
exception, will be subject to the presumption. For the exception to
apply, the noncitizen must do more than merely assert that they could
not access the scheduling system for one of the identified reasons,
without further explanation. Rather, AOs and IJs will assess whether
the noncitizen has demonstrated that they meet the exception on a case-
by-case basis as part of the credible fear process or in section 240
removal proceedings. Additionally, the Departments note the app is not
intended or designed to ``fail,'' and that AOs and IJs will evaluate on
a case-by-case basis whether a noncitizen has shown that it was not
possible to access the app due to language barriers, illiteracy,
significant technical failure, or other ongoing serious obstacle.
Finally, the Departments decline to expand this exception to
noncitizens to enter the United States without inspection instead of
presenting at a POE. The Departments believe this would undermine the
rule's purpose of incentivizing migrants to use lawful, safe, and
orderly pathways to enter the United States. In cases where it was
truly not possible for a noncitizen to access or use the CBP One app
due to one of the rule's enumerated reasons, the Departments believe it
would be preferrable to incentivize that noncitizen to seek admission
at a POE rather than attempt a potentially dangerous entry between
POEs. The latter could require the assistance of smugglers or
traffickers and could place further strain on DHS resources in
apprehending the noncitizen and commencing removal proceedings.
iii. Adequacy of Parole
Comment: While many commenters expressed support for the parole
processes referenced in the NPRM, many also expressed a range of
concerns about the role of the parole processes in the rule's
rebuttable presumption. A commenter stated that the parole processes
only account for small numbers of potential asylum seekers. One
commenter stated that the parole programs have little bearing on asylum
[[Page 31408]]
access at the SWB or the Departments' stated goal to reduce border
apprehensions. The commenter also stated that those who have the time
and means to use these parole programs are not the same people who flee
and approach the SWB. Another stated that the parole processes should
not be the only way for migrants to come to the United States and
petition for asylum. Another commenter stated that while Afghan
migrants might be able to apply for humanitarian parole, the wait for
the applications to be processed is too long for those who are living
in danger in their country, and alleged that nearly 90 percent of
humanitarian parole applications filed from outside the United States
in the last year were denied.
Commenters stated that the CHNV parole processes are flawed because
(1) they are limited to CHNV nationals; (2) they have a monthly cap,
limiting the number of people who may enter the United States each
month; (3) they require applicants to hold unexpired passports, which
is uncommon for most citizens of Latin America and the Caribbean
because of financial constraints; (4) they require a U.S.-based contact
with the financial wherewithal to sponsor the applicant, which favors
wealthy applicants and those with a broader network of support in the
United States; (5) the applicant will need additional financial
resources to afford a plane ticket and to meet vaccination and other
requirements; and (6) humanitarian parole is not a substitute for
asylum. Commenters stated that government officials may confiscate
passports or target passport applicants at government offices, and
noncitizens may not be able to wait for a passport or for receipt of
advanced authorization due to the risk of harm or death. One commenter
stated that huge backlogs related to the parole program have
overwhelmed Haiti's passport system.
One commenter stated that the rule's impact on those who have been
pre-approved by CBP to present for parole at POEs under section
212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), due to urgent humanitarian
reasons or significant public benefit is unknown because the rule does
not clarify whether those pre-approved to present for parole by port
officials will face the presumption of asylum ineligibility.
Another commenter expressed concern that the CHNV parole processes
would simply add to the population of migrants present in the United
States without status, which according to the commenter would impose a
burden on American taxpayers, and that the parole processes simply
``kicks the can down the road.''
Response: The parole processes established for CHNV nationals are
available lawful pathways--though not the only available lawful
pathways--for qualifying individuals seeking to come to the United
States. Each month, DHS issues advance travel authorizations for up to
30,000 CHNV nationals to travel to the United States to be considered
by CBP on a case-by-case basis for a temporary grant of parole for a
period of up to two years. Once the individuals have arrived in the
United States, they may apply for immigration benefits for which they
may be eligible, including asylum and other humanitarian protections.
The Departments recognize that the parole processes are not universally
available, even to the covered populations; in addition, the parole
processes established for CHNV nationals and Ukrainians are distinct
from applying for asylum and are not a substitute for applying for
asylum. Although noncitizens who are eligible for these processes may
apply for asylum after being paroled into the United States, there is
no requirement that they do so. These processes do, however, represent
one lawful, safe, and orderly pathway available to certain CHNV
nationals seeking to enter the United States.
Similarly, while DHS recognizes that several commenters have raised
concerns about the adequacy of the parole processes, this rule's
reference to the parole processes is not intended to suggest that the
parole processes are an alternative to or replacement for asylum.
Rather, the parole processes are lawful, safe, and orderly pathways
that the Departments wish to encourage in light of the urgent
circumstances presented. Eligible noncitizens may use these processes
to seek entry into the United States, and, thereafter, apply for asylum
if desired. Moreover, with respect to the commenters' concern about the
ongoing status of CHNV parolees--including obstacles they face in
seeking parole and the impact that allowing parolees into the country
will have on taxpayers--such concerns are outside the scope of this
rulemaking because the parole processes exist separate and apart from
this rule. To the extent that this rulemaking encourages noncitizens to
use those parole processes and thereafter apply for asylum, rather than
migrating irregularly, parolees who do so may remain in the United
States to await the adjudication of any pending asylum application, and
during that time may be eligible for employment authorization. See 8
CFR 274a.12(c)(11) (employment authorization available for duration of
parole); id. 274a.12(c)(8) (employment authorization available for
asylum applicants).
With respect to the commenter's suggestion that the CHNV parole
processes have little bearing on the Departments' goal of reducing
irregular migration, the Departments note that these processes have
substantially reduced the number of encounters between POEs. For
instance, between the announcement of the CHN processes on January 5,
2023, and January 21, 2023, the number of daily encounters between POEs
of CHN nationals dropped from 928 to 73, a 92 percent decline.\258\ CHN
encounters between POEs continued to decline to an average of fewer
than 17 per day in March 2023.\259\ The Departments offer further
metrics in support of these processes' efficacy in Section II of this
preamble.
---------------------------------------------------------------------------
\258\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\259\ Id.
---------------------------------------------------------------------------
While CHNV and Ukrainian nationals who lack a supporter cannot take
advantage of these parole processes, such individuals can present at a
POE by using a DHS scheduling mechanism to schedule a time to arrive at
POEs at the SWB and not be subject to the presumption of ineligibility.
See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). If the noncitizen
can establish that the scheduling mechanism is not possible to access
or use due to a language barrier, illiteracy, significant technical
failure, or other ongoing and serious obstacle, then the noncitizen can
present at a POE to seek asylum without a pre-scheduled appointment,
and not be subject to the presumption of ineligibility. Id. This
process is available to all noncitizens seeking protection, regardless
of their nationality.
With respect to the commenters' concern about individuals ``pre-
approved'' by CBP to present at the SWB, the Departments note that the
rebuttable presumption does not apply to any noncitizen who presents at
a land POE, pursuant to a pre-scheduled time and place. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33 (a)(2)(ii)(B). This is not limited to
those who schedule a time through the CBP One app. Therefore, in the
rare circumstance that noncitizens have scheduled a time to present at
such a POE through another means, they would not be subject to the
rebuttable presumption. Additionally, the Departments reiterate that
the presumption does not apply to a noncitizen who has been provided
appropriate authorization to travel to seek parole pursuant to a DHS-
approved parole process, including the CHNV
[[Page 31409]]
processes. See 8 CFR 208.33(a)(2)(ii)(A), 1208.33 (a)(2)(ii)(A).
Comment: Commenters recognized that the parole processes had
positive results in the decrease of CHNV nationals encountered at the
SWB, but predicted that the deterrence would decrease as more
applicants are denied.
Commenters also stated that the requirement to travel directly to
the United States by air may for some noncitizens be more challenging
than traveling to the SWB, and raised the concern that the rebuttable
presumption would apply to individuals who have received advance travel
authorization under the CHNV processes, if those individuals arrive at
the SWB rather than traveling directly by air. A commenter asserted
that such a ``disqualification'' would be based on a ``technicality,''
not on any material facts.
Commenters cited statistics stating that since January 2023,
Haitian nationals had 11,300 approved paroles, but only 5,100 of those
traveled to the United States. Commenters noted that parolees would add
to the backlog of asylum applicants.
Response: With respect to commenters' caution that the magnitude of
the CHNV processes' impact on unauthorized arrivals at the SWB may
change over time, as discussed in Section II of this preamble, the CHNV
parole processes have remained effective since the rollout of the
Venezuela process in October. The Departments disagree that this will
necessarily change as more applicants are denied, because any intending
migrant who cannot access the CHNV parole processes may still be
dissuaded from migrating irregularly because even those applicants who
are denied authorization to travel under those processes may respond to
the disincentives to irregular migration made possible by those
processes and this rule. The Departments acknowledge, however, that
since mid-April, there has been an increase in Venezuelan migrants
crossing between POEs at the SWB, while others continue making the
treacherous journey through the Dari[eacute]n Gap to reach the United
States--even as encounters of Cubans, Nicaraguans, and Haitians remain
near their lowest levels this year.\260\ The Departments believe that
this increase in Venezuelan migration has been driven in part by the
current limited availability of CBP One appointments and misinformation
campaigns by smugglers, in the aftermath of the fire in a Mexican
government facility that killed a number of Venezuelan migrants in
March.\261\ Although the number of CBP One app appointments available
has been limited while the Title 42 public health Order has been in
place, as detailed in Section IV.E.3.ii.a of this preamble, when the
Title 42 public health Order is lifted, CBP intends to increase the
number of available appointments. In addition, as discussed in more
detail in Section II.A of this preamble, DHS and the Department of
State announced new measures on April 27, 2023, that are expected to
significantly expand lawful pathways, which, along with the expanded
ability to present at a land POE pursuant to a pre-scheduled time and
place, are expected to further reduce the overall volume of irregular
migration. The Departments also note that there has not been a similar
rise in encounters of CHN nationals, and believe that the rule's
approach of incentivizing the use of safe, orderly, and lawful pathways
while imposing a meaningful consequence for those who fail to do so and
cannot otherwise rebut the presumption against asylum eligibility will
reduce the number of noncitizens seeking to cross the SWB without
authorization.
---------------------------------------------------------------------------
\260\ See Reyes Mata III & Nick Miroff, Surge of Migrants
Strains U.S. Capacity Ahead of May 11 Deadline, Wash. Post. Apr. 28,
2023, https://www.washingtonpost.com/nation/2023/04/28/border-migrants-biden-title-42/.
\261\ See, e.g., id.; Nicole Acevedo & Albinson Linares,
Misinformation Fuels False Hopes Among Migrants after Deadly Fire in
Mexico, NBC News, Mar. 30, 2023, https://www.nbcnews.com/news/latino/misinformation-fuels-false-hopes-migrants-mexico-fire-rcna77398 (``Over 1,000 migrants lined up outside international
bridges to El Paso, Texas, on Wednesday afternoon [March 29, 2023]
after false information spread on social media and by word of mouth
that the U.S. would allow them to enter the country.'').
---------------------------------------------------------------------------
With respect to commenters' objection regarding the CHNV parole
processes' stated requirements with respect to air travel to an
interior POE, the Departments are aware that some noncitizens may have
trouble securing air travel, but also note the potentially significant
costs associated with irregular migration, including substantial fees
that some migrants pay to smugglers and cartels to facilitate such
travel.\262\ The specific requirements for participation in the CHNV
parole processes are outside the scope of this rulemaking, but DHS is
actively monitoring the effects of the processes and may make
adjustments as necessary.
---------------------------------------------------------------------------
\262\ See, e.g., Ariel G. Ruiz Soto et al., Charting a New
Regional Course of Action: The Complex Motivations and Costs of
Central American Migration (Nov. 2021), https://www.migrationpolicy.org/sites/default/files/publications/mpi-wfp-mit_migration-motivations-costs_final.pdf.
---------------------------------------------------------------------------
The Departments also acknowledge that parolees who apply for asylum
will add to the number of pending asylum applications; however, as
discussed in Section II of this preamble, the net effect of the CHNV
parole processes has been to significantly reduce rates of irregular
migration and avoid a corresponding increase in the immigration court
backlog.
Comment: A commenter stated that the Departments must consider how
they would ensure that those migrants who use a parole program to enter
the United States, such as Venezuelans or Nicaraguans, are not falling
prey to scams. The commenter stated that there is reporting that those
who do not have friends or relatives in the United States are going
online to try to find sponsors, and stated that ``there are posts
online demanding up to $10,000.00 USD for financial sponsorship.'' The
commenter stated that if the Departments require use of the parole
processes, the Departments should make efforts to ``end the financial
abuse of potential parolees,'' similar to efforts to end human
smuggling.
Response: As an initial matter, the specific requirements for
participation in the CHNV parole processes are outside the scope of
this rulemaking. In any event, the Departments recognize that
immigration processes can be complex and that applicants, petitioners,
and requestors are at risk of becoming victims of scams or fraud. The
United States Government takes immigration scams and fraud seriously
and is engaged in regular efforts to combat such behavior.\263\
Additionally, the Departments conduct public-facing communications to
advise all applicants to ensure that they only accept legal advice on
immigration matters from an attorney or an accredited representative
working for a DOJ-recognized organization.\264\ The Departments also
provide information to help applicants avoid immigration scams.\265\
---------------------------------------------------------------------------
\263\ See, e.g., USCIS, Fraud Detection and National Security
Directorate (last updated June 15, 2022), https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate.
\264\ See, e.g., USCIS, Find Legal Services (last updated Mar.
27, 2023), https://www.uscis.gov/scams-fraud-and-misconduct/avoid-scams/find-legal-services.
\265\ See, e.g., USCIS, Avoid Scams (last updated Feb. 17,
2023), https://www.uscis.gov/scams-fraud-and-misconduct/avoid-scams.
---------------------------------------------------------------------------
DHS notes in public communications that access to the parole
processes is free; neither the U.S.-based supporter nor the beneficiary
is required to pay the United States Government a fee to
[[Page 31410]]
file the Form I-134A or to be considered for travel authorization, or
parole.\266\ DHS also provides a list of resources for victims of
abuse, violence, or exploitation, as well as advice for protecting
against immigration scams.\267\
---------------------------------------------------------------------------
\266\ See USCIS, Processes for Cubans, Haitians, Nicaraguans,
and Venezuelans (last updated Mar. 22, 2023), https://www.uscis.gov/CHNV.
\267\ Id.
---------------------------------------------------------------------------
Comment: One commenter noted the pending litigation regarding the
CHNV parole processes and stated that the proposed rule presumes that
the processes will continue to exist. If the parole processes are
ultimately found to be unlawful, the commenter asserted that an
injunction would nullify a central premise of the rule. The commenter
also noted that the rule extends into the first several months of the
next administration, which may end the parole processes. Another
commenter argued that the parole processes are overbroad and contrary
to statute, and that it is ``improper'' for the Departments to cite the
parole processes as effective tools in support of the rule.
Response: The parole processes that DHS established in 2022 and
2023 for Ukrainian and CHNV nationals provide lawful pathways for
individuals seeking to enter the United States. The Departments
recognize that there is currently litigation over the CHNV parole
processes. See Texas v. DHS, No. 6:23-cv-00007 (S.D. TX filed Jan. 24,
2023). The Departments are vigorously defending the processes as
permitted under section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), and
believe that the CHNV parole processes are permitted under the statute,
for the reasons described in the Federal Register notices announcing
each process. Should this litigation result in an injunction or other
hold on any parole process, the Departments do not believe that such an
injunction or hold would affect the application of this rule.
The parole processes established for CHNV nationals do not
represent the only available options for noncitizens seeking entry to
the United States. If these parole processes are enjoined, Ukrainian
and CHNV nationals would still be able to avoid the rebuttable
presumption if they present at a POE pursuant to a pre-scheduled time
and place. See 8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B).
Moreover, if the noncitizen establishes that the mechanism for
scheduling was not possible to access or use due to a language barrier,
illiteracy, significant technical failure, or other ongoing and serious
obstacle, then the noncitizen can present at a POE without a pre-
scheduled appointment and would not be subject to the presumption of
ineligibility for asylum. Id. Similarly, these noncitizens would also
be excepted from the presumption of ineligibility if they sought asylum
or other protection in a country through which they traveled and
received a final decision denying that application. 8 CFR
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). The Departments believe that
these alternative pathways for a noncitizen to be excepted from or
rebut the presumption against asylum eligibility are sufficient, such
that the rule would be justified even if the CHNV parole processes were
to end. The rule incentivizes migrants, including those intending to
seek asylum, to use lawful, safe, and orderly pathways, not simply the
CHNV parole processes, to enter the United States, or seek asylum or
other protection in another country through which they travel and thus
reduce the number of noncitizens seeking to cross the SWB without
authorization to enter the United States.
As stated at 8 CFR 208.33(d) and 1208.33(e), the Departments intend
for the provisions of this rule to be severable from each other such
that if a court holds that any provision is invalid or unenforceable as
to a particular person or circumstance, the presumption will remain in
effect as to any other person or circumstance. See also 88 FR 11726-27.
This intention for maximum severability extends to the parole processes
themselves, which are authorized separate from this rulemaking and
would exist even in the absence of 8 CFR 208.33(a)(2)(ii)(A),
1208.33(a)(2)(ii)(A).
iv. Third Countries
a. 1951 Convention and 1967 Protocol Signatories Alone Insufficient
Comment: A commenter stated that migrants may not be able to apply
for protection in third countries if such countries do not have
functioning asylum systems. A commenter suggested that the Departments
revise the rule to except noncitizens who demonstrate that the country
or countries through which the noncitizen traveled, that are party to
the 1951 Convention or 1967 Protocol, did not provide a minimally safe,
orderly, expeditious, and effective protection process in the
noncitizen's circumstances. Another noted that while many countries in
South and Central America are taking on a significant portion of the
burden of migration in the Western Hemisphere, many of these countries
cannot be considered ``safe'' for asylum seekers. Numerous commenters
expressed a belief that the conditions and options in most or all third
countries are insufficient to provide true or reasonable alternatives
to seeking protection in the United States. Commenters stated that
government records and NGO reports both make it clear that ``these
countries have not developed working asylum systems and that, for many
migrants, it would be pointless and life-threatening to stay and
apply.'' Commenters noted that these conditions are the reason many
migrants are fleeing and seeking to come to the United States in the
first place. Further, some commenters noted that while Costa Rica has a
successful asylum system, Costa Rica has significantly more asylum
seekers per capita than the United States, and expressed a belief that
Costa Rica is unlikely to be able to absorb more.
Response: The Departments do not agree with the commenter's
suggestion to add an exception for noncitizens who demonstrate that a
country did not provide an adequate protection process in that
noncitizen's circumstances. First, the rule provides for several
exceptions to, and means to rebut, the condition on asylum eligibility
beyond having sought and been denied asylum or other protection in a
third country. Second, the rule does not require that a noncitizen seek
protection in any particular country. Finally, a noncitizen who seeks
protection in a country through which they traveled, believes that the
protection process was unfair in that country, and receives a final
decision denying asylum or other protection from that country would
still qualify for an exception to the presumption against asylum
ineligibility.
The Departments do not agree with the generalizations that the
nations through which a noncitizen might transit, including Mexico and
countries in South and Central America, lack functioning asylum systems
and invariably cannot be considered safe for those who apply for asylum
in those countries. Many of these countries have taken substantial and
meaningful steps in recent years that demonstrate their willingness to
provide protection to those who need it, which is reflected in their
international commitments and their efforts as described later in this
response. To be relevant for the rebuttable presumption analysis, the
country through which the noncitizen transited must be a party to the
Refugee Convention or Protocol. Noncitizens traveling through the
Western
[[Page 31411]]
Hemisphere have many options in this regard; of the countries in North,
Central, and South America, only one is not party to the Convention or
the Protocol.\268\ Several countries through which noncitizens may
transit have also joined the non-binding Cartagena Declaration on
Refugees (``Cartagena Declaration'').\269\ Delegations from Belize,
Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico,
Nicaragua, Panama, and Venezuela joined the Declaration on November 22,
1984.\270\ Among other things, the Cartagena Declaration includes a
pledge to promote the adoption of national laws and regulations
facilitating the application of the 1951 Convention and the 1967
Protocol.\271\ The Cartagena Declaration also expands the definition of
``refugee'' to include those fleeing ``generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or
other circumstances which have seriously disturbed public order.''
\272\ This ``refugee'' definition is more expansive than that in U.S.
law, see 8 U.S.C. 1101(a)(42)(A), thus providing some who may apply for
protection, such as asylum, with more grounds on which to make their
claim than they would have in the United States.
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\268\ See Maja Janmyr, The 1951 Refugee Convention and Non-
Signatory States: Charting a Research Agenda, 33 Int'l J. Refugee L.
188, 189 (2021); UNHCR, States Parties, Including Reservations and
Declarations, to the 1951 Refugee Convention, https://www.unhcr.org/us/media/38230 (last visited Apr. 25, 2023).
\269\ See Cartagena Declaration on Refugees, Colloquium on the
International Protection of Refugees in Central America, Mexico and
Panama, Nov. 19-22, 1984, https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.
\270\ Id.
\271\ Id.
\272\ Id.
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Nations throughout the Hemisphere are continuously demonstrating
their commitment to providing protection to refugees, migrants, and
asylum seekers. Colombia, Belize, and Mexico have made significant
strides in developing their asylum systems and expanding protections
for migrants. In 2021, Colombia adopted legislation that allows
Venezuelans to apply for temporary protection status, which grants
Venezuelans 10-year residency and allows them to access public
education, health care, and employment.\273\ By February 2022, about
2.4 million Venezuelans had applied for that status, and Colombian
migration authorities had approved nearly 1.4 million by July
2022.\274\ Belize offers an amnesty program for registered asylum
seekers and certain irregular migrants that provides permanent
residence and a path to citizenship.\275\ The Government of Mexico has
made exceptional strides to improve conditions for asylum seekers,
migrants, and refugees within its borders. Mexico's Federal Public
Defender's Office offers legal counseling and support to asylum seekers
and migrants who have filed claims with Mexico's Commission for Refugee
Assistance (``COMAR'') and has increased both its specialized staff and
visits to migration stations.\276\ Mexico has also committed to
integrating 20,000 refugees into the Mexican labor market over the next
three years and is expanding labor opportunities for Central American
workers.\277\
---------------------------------------------------------------------------
\273\ Int'l Crisis Group, Hard Times in a Safe Haven: Protecting
Venezuelan Migrants in Colombia (Aug. 2022), https://www.crisisgroup.org/latin-america-caribbean/andes/colombia-venezuela/hard-times-safe-haven-protecting-venezuelan.
\274\ Id.
\275\ Government of Belize, Amnesty Background Information (Dec.
7, 2022), https://immigration.gov.bz/amnesty-background-information.
\276\ Comprehensive Regional Protection and Solutions Framework,
MIRPS in Mexico (Aug. 2022), https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico.
\277\ Government of Mexico, Secretary of External Relations,
Mexico to Expand Labor Mobility Programs and Integrate Refugees into
its Labor Market (June 10, 2022), https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en.
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Comment: Commenters stated that it is inhumane to require asylum
seekers to first seek protection in third countries because they are
particularly vulnerable in those countries to harms like exploitation,
kidnapping, assault, rape, robbery, or extortion. Commenters noted that
many transit countries struggle with high levels of violence,
corruption, and ineffective judicial or political systems, citing a
range of facts to illustrate political and other concerns in many
transit countries, including the trial of Mexican officials for
conspiracy with cartels and the extradition of the former Honduran
president to face charges in the United States. One commenter asserted
that requiring victims of persecution to expose their personal
information to possibly corrupt or hostile governments is ``an
extension of the persecution they fled in the first place,'' while
another stated that the act of applying for asylum in a third country
would make migrants targets of the governments they are fleeing.
Commenters also noted that most immigrants to the United States only
travel through countries that also have a large number of emigrants
seeking to enter the United States, which the commenter believes
demonstrates that those countries are not safe.
Response: The Departments recognize that certain noncitizens may
feel unsafe seeking protection in certain nations through which they
might transit, including Mexico and countries in South and Central
America, due to the concerns commenters describe. However, as discussed
above, the Departments do not agree with generalizations that these
countries are universally unsafe and cannot provide protection to
asylum seekers. The Departments also note that the rule does not
require any noncitizen to seek protection in a country where they do
not feel safe. Applying for, and being denied, asylum or other
protection in a third country is one exception to the rebuttable
presumption, but noncitizens who choose not to pursue this path may
instead seek authorization to travel to the United States to seek
parole pursuant to a DHS-approved process, or present at a POE at a
pre-scheduled time or place (or demonstrate that it was not possible to
do so for a reason covered by the rule). See 8 CFR 208.33(a)(2)(ii),
1208.33(a)(2)(ii).
Noncitizens may also rebut the presumption by showing that
exceptionally compelling circumstances exist, including an acute
medical emergency or an imminent and extreme threat to life or safety
at the time of entry. 8 CFR 208.33(a)(3), 1208.33(a)(3). Although the
Departments expect that many migrants seeking protection will be able
to access asylum or other protection in at least one transit country,
they recognize that not every country will be safe for every migrant
and have provided other exceptions and means for rebutting the
presumption to account for those circumstances. Although noncitizens
may prefer to apply for asylum in the United States, it is not
unreasonable to expect that they would pursue other safe options.\278\
---------------------------------------------------------------------------
\278\ See UNHCR, Legal Considerations Regarding Access to
Protection and a Connection Between the Refugee and the Third
Country in the Context of Return or Transfer to Safe Third Countries
1 (Apr. 2018), https://www.refworld.org/pdfid/5acb33ad4.pdf
(``[R]efugees do not have an unfettered right to choose their
`asylum country.' '').
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b. Concerns About Length of Process and Documentation Provided by Third
Countries
Comment: Several commenters stated that third countries are not
efficient in providing proper documentation for asylum seekers, thus
increasing wait times and creating additional issues in overcoming the
presumption at the SWB. Another raised concerns that
[[Page 31412]]
requiring migrants to first apply and be rejected for asylum in a third
country could force them to wait for that third country's asylum
adjudication for months before they can continue their journey to the
SWB. One commenter stated that the proposed regulations require a
noncitizen to produce documentation (paper or electronic) to show
denial of asylum in a third country, which the commenter stated is
contrary to the INA's specification that noncitizens may establish
asylum eligibility though testimony alone. One commenter expressed
concern that the Departments have given no assurances that a denial of
asylum in another country will not be used against an asylum applicant
here in the United States, where our asylum eligibility guidelines are
many times more stringent.
Response: To determine if an applicant has met their burden to
demonstrate that they sought asylum or protection in a third county and
were denied, adjudicators may weigh an applicant's credible testimony
with other evidence. See INA 208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). Even when an applicant's testimony is credible, an
adjudicator may, where appropriate, request evidence to corroborate
this credible testimony, including documentation of the final denial.
In that case, the applicant is not required to provide the evidence if
they do not have the evidence and cannot reasonably obtain it. Id.
Regarding commenters' statements that requiring migrants to seek
asylum in third countries will increase wait times, the Departments
believe that wait times would likely be significantly longer in the
absence of this rulemaking. For those who are unwilling or unable to
seek asylum or other protection in a third country and wait for a final
decision, the Departments note that there are multiple ways to avoid or
rebut the rule's presumption of ineligibility, only one of which
involves seeking asylum or other protection in a third country. See 8
CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). Noncitizens who do not
feel comfortable or safe applying for asylum outside the United States
may avoid the rebuttable presumption by seeking parole under one of the
authorized parole processes or using the CBP One app to present
themselves at a pre-scheduled time at a POE. See id.
208.33(a)(2)(ii)(A) and (B), 1208.33(a)(2)(ii)(A) and (B).
Additionally, noncitizens may rebut the presumption in exceptionally
compelling circumstances, including where they faced an immediate and
extreme threat to life and safety at the time of their entry into the
United States. 8 CFR 208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). Those who
are not excepted from and are unable to rebut the presumption of
ineligibility may still pursue statutory withholding of removal and
protection under the CAT.
With respect to the comment the Departments have given no
assurances that a denial of asylum in another country will not be used
against an asylum applicant here in the United States, the Departments
note that AOs and IJs will consider the noncitizen's fear of returning
to their country of origin on a case-by-case basis through the
noncitizen's credible testimony and other relevant evidence
demonstrating a fear of persecution.
c. Concerns About Differential Treatment of Migrants
Comment: Commenters raised concerns about unintended inequitable
treatment of migrants under the rule. For example, commenters raised
concerns that the rule arbitrarily disfavors migrants who live farther
away, stating that it would be unfair to penalize those who do not have
the good fortune of living in a nation close enough to the United
States that they do not have to pass through a third country in their
journey to the SWB. Another commenter noted that migrants who travel
through third countries en route to the United States have necessarily
traveled a lengthy distance, which may suggest that their claims are in
fact more likely than others' to be meritorious. Similarly, commenters
noted that a migrant who does not live close to a country that provides
strong protections may not realize until after they passed through a
third country that they should have applied for asylum in that country,
and that many migrants cannot afford what may be a months-long process
of applying for protection in a third country.
Some commenters stated that the United States should not summarily
deny asylum claims based on whether migrants have passed through
another ``safe third country,'' as the third country may not have been
safe for each individual migrant, especially for vulnerable
populations. At least one commenter stated that requiring migrants to
seek asylum in third countries on their journey to the SWB is
counterintuitive if the migrant has relatives or another support system
in the United States. One commenter also noted that individuals with
conditions that may cause cognitive difficulties or deficits, such as
post-traumatic stress disorder, depression, or head trauma, may not be
able to find the medical services that would allow them to participate
in the asylum process of a country through which they transited, even
if those countries had a functioning asylum system.
Response: The rule's primary purpose is to incentivize migrants,
including those intending to seek asylum, to use lawful, safe, and
orderly pathways to enter the United States, or seek asylum or other
protection in another country through which they travel. Migrants who
do not avail themselves of such a lawful pathway or seek protection in
a country through which they travel will be subject to a rebuttable
presumption of ineligibility for asylum. That said, the Departments
recognize that many migrants face challenging circumstances in their
home countries and en route to the United States, and appreciate that
not every country will be viable for every migrant, including those who
may apply for asylum or other protection, depending upon their
individual circumstances. With regards to concerns that migrants may
not receive sufficient notice of the exception to seek and be denied
asylum or other protection in a transit country, the Departments note
that this is only one of multiple exceptions and means of rebuttal that
the rule allows. As discussed in Section IV.B.5.iv of this preamble,
the rule does not deprive noncitizens of notice in violation of the
Fifth Amendment Due Process Clause.
With respect to concerns about ``requiring'' migrants to seek
protection in a third country when they have relatives already in the
United States, the Departments reiterate that the rule does not require
any migrant to seek protection elsewhere; there are multiple ways to
avoid or rebut that presumption of ineligibility, only one of which
involves seeking asylum or other protection in a third country.
Eligible noncitizens who cannot safely apply for asylum outside the
United States may (while residing in any country) seek parole under an
authorized parole process. Alternatively, they may use the CBP One app
to present themselves at a pre-scheduled time at a POE. Additionally,
the presumption may be rebutted in exceptionally compelling
circumstances, such as by demonstrating that one faces an acute medical
emergency or imminent and extreme threat to life or safety at the time
of entry, or by satisfying the definition of a victim of a severe form
of trafficking in persons under 8 CFR 214.11(a). 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). Those who are not excepted from and are unable to
rebut the presumption of ineligibility may still pursue statutory
withholding of
[[Page 31413]]
removal and protection under the CAT. The Departments are not aware,
however, of any evidence establishing a direct link between distance
traveled and validity of protection claims.
Finally, the Departments note that a location that may be unsafe
for one person may not only be safe for, but may offer a much-needed
refuge to, others. For example, some countries in the region may have a
larger number of individuals who leave the country to seek protection
elsewhere than who seek protection in the country, perhaps because
those specific individuals experience a targeted threat of violence or
fear of persecution in that country. At the same time, such a country
may demonstrably provide protection for other individuals or groups of
individuals, particularly those originating from third countries, who
consider the country to be a safe option where they can be free from
persecution or torture. To the extent commenters raise concerns about
the ability of certain individuals to participate in the asylum
processes of third countries, the Departments note that, as discussed
above, many regional partners have protection frameworks that are in
some respects more expansive than those of the United States. As
detailed in the preamble to the NPRM, see 88 FR at 11720-23, many
countries in the region have significantly increased protection options
to address the unprecedented movement of migrants throughout the
hemisphere. Finally, humanitarian protection is not the only available
lawful pathway to intending migrants. In some instances, employment-
based migration may be the best option for migrants for whom economic
issues are a key factor motivating them (which studies have shown are a
high percentage of those moving through the region).\279\
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\279\ See, e.g., Ariel G. Ruiz Soto et al, Charting a New
Regional Course of Action: The Complex Motivations and Costs of
Central American Migration, 18 (Nov. 2021), https://www.migrationpolicy.org/sites/default/files/publications/mpi-wfp-mit_migration-motivations-costs_final.pdf (reporting that 92 percent
of respondents to a UN World Food Programme household survey ``cited
economic reasons related to their livelihoods as being key
motivating factors'' for migration).
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Further discussion of the potential effects of this rule with
respect to specific groups is contained in Section IV.B.4 of this
preamble.
d. Concerns About Conditions and Asylum Process in Third Countries
Generally
Comment: Commenters stated that lawful pathways in third countries
do not necessarily promote family unity, and that opportunities for
family unity depend on the specific pathway.
Response: The Departments acknowledge that countries in the region
have differing asylum systems and requirements. However, this rule does
not require that noncitizens apply for asylum or other protection in a
specific third country in order to preserve family unity. Rather, such
an application is one of multiple options for noncitizens under the
rule. DHS-approved parole processes represent another set of options
available to some noncitizens. Additionally, any noncitizen may present
at a POE via an appointment that includes a pre-scheduled time and
place or may present at a POE without a pre-scheduled time and place
and be excepted from the presumption if the noncitizen demonstrates by
a preponderance of the evidence that it was not possible to access or
use the DHS scheduling system due to language barrier, illiteracy,
significant technical failure, or other ongoing and serious obstacle.
The Departments also note the discussion in Section IV.E.3.ii.b of this
preamble of CBP's ongoing efforts to improve CBP One app functionality
for families.
Comment: Numerous commenters stated that the third country
exception would cause serious bodily harm to noncitizens, lengthening
the amount of time noncitizens spend in unsafe transit countries, and
exposing them to further risks of persecution, torture, and death in
third countries. Multiple commenters expressed concern that the rule
ignores the realities asylum seekers face, including violence,
persecution, and inadequacy of asylum systems in third countries, and
reflects a misunderstanding of the conditions of noncitizens fleeing
persecution. Multiple other commenters stated that applying for asylum
and awaiting a subsequent denial in a third country is nearly
impossible for noncitizens. Several commenters argued that requiring
noncitizens to apply for asylum in third countries and wait for a
decision would prolong their journey to safety. Another commenter
stated that it was unreasonable to require noncitizens to wait for
extended periods of time in third countries and suggested that the
Departments revise the rule to except noncitizens who waited for six
months or more without a decision. Similarly, a commenter stated that
the third country exception was a way to delay the safety and stability
of noncitizens. A commenter also stated that prior ``safe third
country'' policies relating to Guatemala, among other places, forced
asylum seekers into dangerous situations in third countries. A
commenter said that although the NPRM states that preventing human
trafficking is a consideration for the rule, the third country
exception would drive people further into traffickers' hands. Numerous
commenters provided narrative examples of noncitizens who had
successfully gained asylum in the United States, and added that it
would not have been possible for them to gain asylum if the third
country exception was enacted.
Response: Regarding comments stating that ``safe third country''
and similar policies force those who might otherwise apply for asylum
in the United States into dangerous situations in third countries, the
Departments recognize that not all third countries will be safe for all
noncitizens seeking asylum and acknowledge that some migrants may feel
that the dangers noted by commenters, or the risk that a particular
country's asylum system would be unduly delayed or leave them
vulnerable to refoulement, make applying for protection in that country
untenable. However, the rule does not require any noncitizen to seek
protection in any particular country and therefore the Departments
likewise decline to add an exception for noncitizens who waited for a
certain period of time in a third country without a final decision.
The Departments also strongly disagree that the third country
exception will heighten risks of human trafficking. Rather, the
Departments expect that the rule will reduce reliance on dangerous
human smuggling networks that exploit migrants for financial gain,
including via human trafficking. If a noncitizen does not believe it
would be safe to apply for asylum or related protection in any third
country, they may avoid the presumption against asylum eligibility by
availing themselves of any of the other available lawful pathways, or,
if applicable, they may be able to rebut the presumption of
ineligibility by demonstrating exceptionally compelling circumstances.
Comment: Some commenters oppose the rule because they believe it
encourages individuals to remain in countries where they may not be
safe and are closer to their feared persecutor(s) to avoid being
disqualified from asylum should they try to enter at the SWB. For
example, one commenter cited the experiences of individuals who are
being imminently threatened by gangs and have to flee and therefore are
unable to remain in their country to apply for a lawful pathway to the
United States. Similarly, many
[[Page 31414]]
commenters stated that it was unfair and unrealistic to expect
noncitizens to seek asylum in areas that are unsafe and do not have
meaningful protections for refugees.
Response: The Departments disagree that the rule encourages
noncitizens to remain in dangerous conditions or remain close to their
feared persecutors so as to preserve their chance to be eligible for
asylum in the United States. The Departments understand that in some
cases it would be dangerous for a noncitizen to remain in their home
country while they seek a safe, orderly, and lawful pathway into the
United States, but note that eligible migrants who have already left
their country of origin may apply for the CHNV processes, and all
migrants may, if within the appropriate area in Mexico, schedule an
appointment to present at a POE. Moreover, the Departments note that
lawful pathways such as applying for asylum in a country they transited
through or scheduling an appointment through the CBP One app to present
at a POE are recognized by the rule and are available to migrants who
have already left their country of origin. The Departments do not agree
that this rule creates a strong incentive for those facing danger to
remain in their home countries.
e. Concerns About Conditions and Asylum Process in Mexico Specifically
Comment: Several commenters expressed concerns about the adequacy
of the asylum process in Mexico in particular. For example, one
commenter stated that they had worked as a lawyer with migrants in
Mexico for a year, and that COMAR is extremely overwhelmed and lacks
the staff and funds to process the hundreds of thousands of asylum
applications they have received from people in Mexico in the past few
years. The commenter stated that they had personally witnessed the
inability to receive a timely decision, or even to get access to COMAR
in order to file an application in many parts of Mexico. The commenter
also stated that Mexican civil society cannot meet the legal and social
service needs of hundreds of thousands of asylum seekers, because such
organizations are underfunded and under-resourced and cannot begin to
meet the basic humanitarian and legal needs of the many people in need
of protection who transit through Mexico. Other commenters stated that
COMAR is underfunded and that immigration advocates have documented
mismanagement and instances of denials of meritorious claims.
One commenter stated that Mexico's asylum system is not prepared to
actually grant asylum to refugees from South and Central American
countries, stating that conditions for refugees in Mexico are ``harsh''
and that Mexico does not provide refugees with ``legal residence or
adequate legal rights to keep them free of exploitation.''
A commenter stated that unless an applicant is granted a transfer
request by COMAR, they cannot leave the geographical area where they
applied for asylum. The commenter added that many applicants move due
to safety or economic concerns, and as a result, their cases are
considered abandoned. The commenter stated that an abandoned case would
not be considered a denial under Mexican law, and that a person who
abandoned their application would not qualify under the NPRM. A
commenter stated that they have not seen evidence that the Departments
have reviewed the ability of asylum seekers to obtain protection in
Mexico and that failure to do so would lead to arbitrary and capricious
rulemaking.
Response: The Departments recognize that managing migration is a
collective responsibility and, as part of a whole-of-government
approach, requires working closely with countries throughout the region
to prioritize and implement a strategy that advances safe, orderly,
legal, and humane migration throughout the Western Hemisphere. With
regard to Mexico's ability to handle asylum claims, as stated in the
NPRM, 88 FR at 11721, Mexico is the third highest recipient of asylum
claims in the world; in 2022, COMAR reported receiving 118,478
applicants for refugee status.\280\ Of applications completed in 2021,
COMAR granted asylum in 72 percent of cases; an additional two percent
of applicants were granted complementary protection (a form of
protection available to those who are not eligible for refugee
status).\281\ Of applications completed in 2022, COMAR granted asylum
in 61 percent of cases; an additional two percent of applicants were
granted complementary protection.\282\ The average case takes 8-12
months to adjudicate.\283\ With United States Government funding and
the support of international organizations, Mexico has also
substantially increased its Local Integration Program, which relocates
individuals granted asylum to safe areas of Mexico's industrial
corridor and integrates them into such areas. These individuals are
then matched with jobs and provided apartments, and their children are
enrolled in local schools. In May 2022, the program reached the
milestone of reintegrating 20,000 asylum seekers in Mexico.\284\ And in
June 2022, Mexico committed to support local labor integration for an
additional 20,000 asylees over the next three years.\285\ The
Government of Mexico has announced substantial increases to its labor
visa programs over the past two years to help those seeking protection
enter the labor market.\286\ The Departments acknowledge that, like the
United States, Mexico has a significant asylum backlog. Nonetheless, it
remains a viable option for many seeking protection in Mexico.\287\
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\280\ Government of Mexico, La COMAR en N[uacute]meros,
Diciembre 2022 (Jan. 16, 2023), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf.
\281\ See id.; UNHCR, Asylum Capacity Support Group, Mexico:
Granting Complementary Protection, https://acsg-portal.org/tools/mexico-granting-complementary-protection/ (last visited Apr. 26,
2023).
\282\ Government of Mexico, La COMAR en N[uacute]meros,
Diciembre 2022 (Jan. 16, 2023), https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf.
\283\ Refugees Int'l, Mexico's Use of Differentiated Asylum
Procedures: An Innovative Approach to Asylum Processing (July 20,
2021), https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5.
\284\ UNHCR, M[aacute]s de 20.000 Reubicaciones como Parte de
los Esfuerzos de Integraci[oacute]n de Personas Refugiadas en
M[eacute]xico (May 25, 2022), https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html.
\285\ See L.A. Declaration Fact Sheet.
\286\ See id.
\287\ See Global Compact on Refugees, Mexico, https://globalcompactrefugees.org/gcr-action/countries/mexico (last visited
Mar. 9, 2023); Government of Mexico, Law on Refugees, Complementary
Protection, and Political Asylum, Article 28, January 27, 2011,
https://www.diputados.gob.mx/LeyesBiblio/pdf/LRPCAP.pdf.
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As it relates to the comment regarding abandoned claims, the
Departments note that, as discussed in Section IV.E.3.iv.f of this
preamble, under this rule, a final decision does not include a
determination by a foreign government that the noncitizen abandoned the
claim. See 8 CFR 208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). A
noncitizen who has abandoned their asylum claim in Mexico would not
qualify, on that basis, for an exception to the rebuttable presumption.
Such noncitizens may nonetheless qualify for another exception to the
rebuttable presumption or be able to rebut the presumption. For these
reasons, the Departments have declined to revise the rule in response
to this comment.
Comment: Other commenters stated that towns along Mexico's northern
border are not equipped to provide food, shelter, health care, and
sanitation services to migrants waiting for an
[[Page 31415]]
asylum hearing. Commenters also stated that migrant camps in Mexico are
dangerous, unsanitary, and negatively impact migrants' mental health. A
commenter stated that organized crime operates across Central America
and Mexico with impunity, and that a target of organized crime fleeing
one location would likely be found and targeted in Mexico as well.
Another commenter stated that persecutors have followed asylum seekers
into Mexico and harmed them there.
Commenters also stated conditions in Mexico are unsafe, especially
for asylum seekers. Specifically, commenters stated that the proposed
rule would cause additional harm for migrants forced to wait in Mexico
before applying for asylum in the United States due to the risk of
rape, murder, kidnapping, extortion, robbery, and other violence;
violent detention by Mexican government officials; denial of medical
care for serious illnesses; displacement and homelessness;
discrimination or harassment due to race, gender, and sexual
orientation; abusive employment arrangements; and denial of access to
basic services and protections due to language barriers. One commenter
expressed concern that migrants in Mexico face discrimination from drug
cartels and other criminals as well as from Mexican authorities,
including police and immigration officials. Some commenters pointed to
advisories issued by the U.S. Department of State warning U.S. citizens
not to travel to areas in Mexico, and stated that there are many
examples of migrants being seriously harmed while waiting for asylum in
Mexico or for the chance to enter the United States.
Commenters also stated that these risks were further heightened for
members of vulnerable groups, such as women and children, Black, brown,
and indigenous persons, and LGBT persons.
Response: The Departments recognize commenters' concerns about
potential harm to migrants in Mexico, particularly for members of
vulnerable groups, but again note that more than 100,000 individuals
felt safe enough to apply for asylum in Mexico in 2022. The Departments
also emphasize that the rule does not require any noncitizen to apply
for asylum or other protection in Mexico or any other country. Applying
for and being denied protection in Mexico is only one of multiple ways
to be excepted from or rebut the presumption of ineligibility for
asylum. See 8 CFR 208.33(a)(2) and (3), 1208.33(a)(2) and (3). The rule
also provides that the presumption of asylum ineligibility can be
rebutted by noncitizens who do not utilize a lawful pathway but who
face an imminent and extreme threat to life or safety, such as an
imminent threat of rape, kidnapping, torture, or murder or who were
victims of a severe form of trafficking in persons. See 8 CFR
208.33(a)(3)(i)(A) through (C), 1208.33(a)(3)(i)(A) through (C).
For further discussion of this rule and vulnerable populations,
please see Section IV.B.4 of this preamble.
Comment: A commenter expressed concern that Mexican asylum seekers
would have to wait for an appointment with CBP in the same country
where they are experiencing persecution.
Response: This concern is based on a misunderstanding of the rule.
The rebuttable presumption only applies to noncitizens who travel
through a country other than their country of citizenship, nationality,
or, if stateless, last habitual residence, and that is a party to the
Refugee Convention or Protocol, and thereafter enter the United States
from Mexico at the SWB or adjacent coastal borders without documents
sufficient for lawful admission. See 8 CFR 208.33(a)(1), 1208.33(a)(1).
Mexican nationals would not have traveled through a country other than
Mexico en route to the SWB, and therefore are not subject to the
rebuttable presumption. See 8 CFR 208.33(a)(1)(iii),
1208.33(a)(1)(iii).
f. Final Decision of Foreign Government is Undefined
Comment: Commenters asked how U.S. officials would know the
adjudication and appeal processes of third countries, such that they
could confirm that a noncitizen's application for asylum or other
protection in a third country had been denied in a final decision.
Commenters stated that a requirement for a final decision could
introduce years of uncertainty depending on the backlogs and resources
of third countries. One commenter stated that proving the denial of
protection in a third country may be entirely impossible in the context
of a credible fear interview.
Response: The Departments agree that further clarity on the meaning
of the term ``final decision'' will help noncitizens understand, and
IJs and AOs apply, this provision. The Departments are therefore
revising 8 CFR 208.33(a)(2)(ii)(C) and 1208.33(a)(2)(ii)(C) to except
from the rebuttable presumption noncitizens who ``[s]ought asylum or
other protection in a country through which the noncitizen traveled and
received a final decision denying that application. A final decision
includes any denial by a foreign government of the applicant's claim
for asylum or other protection through one or more of that government's
pathways for that claim. A final decision does not include a
determination by a foreign government that the noncitizen abandoned the
claim.''
The Departments also acknowledge that, like the United States, many
countries have asylum backlogs that contribute to significant wait
times for applicants. However, this rule does not require noncitizens
to apply for asylum in a third country and wait for a final decision
before applying for asylum in the United States; rather, that is simply
one of the lawful pathways recognized by the rule. As an alternative to
applying for asylum in a third country and seeking a final decision
before migrating to the United States, noncitizens can utilize the CBP
One app to pre-schedule an appointment to present at a POE or seek
parole pursuant to a lawful parole process (such as the CHNV parole
processes). See 8 CFR 208.33(a)(2)(ii)(A) and (B), 1208.33(a)(2)(ii)(A)
and (B). The rule also allows noncitizens to whom the presumption
applies to rebut it in exceptionally compelling circumstances. 8 CFR
208.33(a)(3), 1208.33(a)(3).
The Departments acknowledge that each of the lawful pathways
outlined in the rule is subject to limitations, including, e.g.,
capacity constraints, limitations on eligibility, and geographic
availability. The Departments further acknowledge that the pathways'
combined limitations could constrain some individuals' ability to
access pathways at a given time or place, and that some of those
individuals may also not be able to establish an exception to, or
rebut, the presumption. However, the Departments have concluded that
the interests of migrants and the immigration system as a whole,
including the asylum system, are best promoted by incentivizing
noncitizens to pursue safe, orderly, and lawful pathways to enter the
United States rather than failing to take adequate actions to respond
to a potential further surge of irregular migrations at the SWB that
threatens to overwhelm the immigration system and prevent orderly
processing of claims for protection.
Comment: Commenters stated that the proposed exception for those
who sought and were denied asylum or ``other protection'' was unduly
vague, because the term ``other protection'' is undefined. Commenters
stated that if a migrant applied for and was denied an immigration
status other than asylum, they would not necessarily know such
[[Page 31416]]
denial would qualify them for an exception to the rebuttable
presumption. Commenters further stated that the absence of a definition
would result in inconsistent application of the exception.
Response: The preamble of the NPRM described the United States'
efforts throughout the region to prioritize and implement a strategy
that advances safe, orderly, legal, and humane migration, including
access to international protection. Such efforts are put forward in
three policy-setting documents: the U.S. Strategy for Addressing the
Root Causes of Migration in Central America; \288\ the CMMS; \289\ and
the L.A. Declaration. The NPRM provided a detailed discussion of
increased access to protection and other pathways in the region,
specifically identifying available programs and processes in Mexico,
Guatemala, Belize, Costa Rica, Colombia, Ecuador, and Canada. See 88 FR
at 11720-23. While these countries provide an opportunity for
individuals to apply for asylum or refugee status, they also offer
other protection that is not dependent on the applicant meeting the
definition of a refugee as provided by the Refugee Convention. For
example, Mexico offers protection to individuals whose lives are in
danger or where there are well-founded reasons to believe that they
would be in danger of being subjected to torture or other cruel,
inhuman, or degrading treatment or punishment.\290\ Colombia, Costa
Rica, and Ecuador have also offered other protection via regularization
programs for individuals of specific nationalities.\291\
---------------------------------------------------------------------------
\288\ The White House, U.S. Strategy for Addressing the Root
Causes of Migration in Central America (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
\289\ The White House, Collaborative Migration Management
Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf?utm_medium=email&utm_source=govdelivery.
\290\ Government of Mexico, Law on Refugees, Complementary
Protection, and Political Asylum, Article 28, January 27, 2011,
https://www.diputados.gob.mx/LeyesBiblio/pdf/LRPCAP.pdf.
\291\ UNHCR, Temporary Protection Status in Colombia (November
2021) (Dec. 3, 2021), https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0; Costa Rica,
Special Temporary Category for Nationals of Cuba, Costa Rica and
Nicaragua with Pending or Denied Refugee Claims (Apr. 17, 2023),
https://www.migracion.go.cr/Paginas/Categor%C3%ADa%20Migratorias%20(Extranjer%C3%ADa)/Categor%C3%ADa-
Especial-Temporal.aspx; Reuters, Ecuador Begins Regularization
Process for Thousands of Venezuelan Migrants Sept. 1, 2022, https://www.reuters.com/world/americas/ecuador-begins-regularization-process-thousands-venezuelan-migrants-2022-09-01/.
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Because such protection and other pathways in the region are
country-specific and, as exemplified by the increased access to
protection in the region as a result of the CMMS and L.A. Declaration,
are subject to change, the Departments have determined that appropriate
pathways and other protections are best determined on a case-by-case
basis, considering the evidence presented relating to the nature and
basis of the noncitizen's application for protection in the third
country. Nevertheless, the Departments note that the ``final decision
denying asylum or other protection'' is intended to include denials of
asylum and other forms of humanitarian protection related to fear of
returning to one's home country as well as other temporary protections
akin to that of temporary protected status under section 244 of the
INA, 8 U.S.C. 1254a.
Comment: Commenters stated that the proposed rule gives preference
to applicants who were denied asylum by another country over those who
did not apply or who did apply and received asylum. Commenters stated
that the proposed rule would not filter out people with weak asylum
claims, as commenters believe the Departments intend, but would rather
prevent the most vulnerable people from seeking asylum altogether.
Response: The Departments disagree with the assertions that this
rule necessarily gives preference to applicants who were denied asylum
by another country over those who do not apply and disagree that the
rule would prevent the most vulnerable people from seeking asylum
altogether. The rule imposes consequences on certain noncitizens who
enter the United States without availing themselves of a lawful pathway
for entering the United States. Seeking protection and receiving a
final decision in a country through which a noncitizen traveled is one
of the lawful pathways recognized by the rule, but it is not the only
lawful pathway available. A noncitizen who does not seek protection in
a third country may nonetheless establish an exception to the
presumption--just as a noncitizen who has sought and been denied such
protection would--by presenting at a POE at a pre-scheduled time, or by
pursuing a DHS-approved parole process.
The rule incentivizes intending migrants to pursue lawful pathways
as part of a regional approach to migration management, including by
incentivizing migrants to seek protection in countries through which
they travel. With respect to any concern that noncitizens denied
protections in a third country are less deserving of protection here,
the Departments do not agree that a denial in a third country
necessarily means that the applying individual would not merit
protection under U.S. law.
In addition, the Departments do not agree that the rule necessarily
gives preference to applicants who have been denied asylum in another
country. Rather, the rule incentivizes migrants to avail themselves of
lawful alternatives to irregular migration and see them through to
completion (e.g., receiving a final decision in another country). Those
noncitizens meeting that requirement who are ultimately granted asylum
or other protections in other countries would have no need to continue
on to the United States and may, in many cases, be subject to the firm
resettlement bar to asylum, and thus, in the Departments' view, such
noncitizens need not be excepted from the rebuttable presumption.
However, those who have been denied may still have a need for
protection in the United States. Therefore, the Departments believe
that maintaining asylum eligibility in the United States for those who
have been denied asylum in third countries is appropriate and supports
the larger goal of incentivizing noncitizens to pursue available lawful
pathways, as part of an effort to build a regional approach to
migration management.
Moreover, as noted above, there are additional lawful pathways to
which noncitizens could avail themselves to avoid application of the
rebuttable presumption as well as multiple circumstances in which the
presumption of asylum ineligibility could be rebutted. See 8 CFR
208.33(a)(2) and (3), 1208.33(a)(2) and (3). The Departments
acknowledge that each of the lawful pathways outlined in the rule is
subject to limitations and that the pathways' combined limitations
could constrain any individual's ability to access them at a given time
or place. However, the Departments have concluded as a matter of policy
that the interests of migrants and the immigration system as a whole
are best promoted by incentivizing noncitizens to pursue safe, orderly,
and lawful pathways to enter the United States rather than failing to
take adequate actions to respond to a potential further surge of
irregular migration at the SWB that threatens to overwhelm the
immigration system and prevent orderly processing of claims for
protection.
g. Pursuit of Lawful Pathways May be Improperly Used as Evidence
Comment: Some commenters expressed concern that taking time to
[[Page 31417]]
pursue lawful pathways may be used as evidence that noncitizens who do
not flee their country immediately do not have a legitimate well-
founded fear of persecution.
Response: The Departments disagree that the rule will increase the
likelihood of adverse determinations against those noncitizens who
choose to remain in their home countries while seeking access to one of
the enumerated lawful pathways. As noted elsewhere in this section,
this rule does not discourage any person from fleeing a dangerous
circumstance, and in fact highlights the options potentially available
to persons who do so. Moreover, such migrants may still provide
relevant evidence to support their eligibility for asylum, including a
well-founded fear of future persecution, notwithstanding their decision
to remain in their country to seek a lawful pathway to the United
States. See 88 FR at 11737; see also 8 CFR 208.13. In short, despite
assertions made by some commenters, this rule will not result in the
elimination of claims for asylum based on a well-founded fear of future
persecution, even for applicants who spend some amount of time in their
country of origin attempting to access an orderly and lawful pathway to
the United States. AOs and IJs will still consider the noncitizen's
fear of returning to their country of origin on a case-by-case basis
through the noncitizen's credible testimony and other relevant evidence
demonstrating a fear of persecution.
v. Unaccompanied Children
Comment: Commenters disagreed with the exception for UCs, stating
that children need their parents to keep them safe during their journey
to the SWB and that the proposed rule would discourage whole families
from seeking asylum together. Some commenters stated that the UC
exception would encourage family separation, arguing that families
often separate as a perceived means to obtain protection for their
children. Specifically, commenters stated that excepting UCs from the
rebuttable presumption would incentivize families to send their
children on a dangerous journey to the SWB unaccompanied, leading to a
surge in the number of UCs arriving at the SWB. Similarly, commenters
expressed that in lieu of waiting together in Mexico, many families may
choose, or be ``forced'' by the lack of sufficient appointment slots
for family members or concerns related to their children's safety, to
send their children unaccompanied to the SWB while waiting to schedule
their own appointment through the CBP One app. Commenters pointed to
reports of such voluntary separations under MPP and the Title 42 public
health Order and said that the proposed rule would lead to similar
outcomes, and that implementing a policy that would foment such
separations would be inhumane and unacceptable. Commenters stated that
family separations can cause severe emotional trauma to children and
may increase the risk that a child will be exploited or trafficked.
Some commenters suggest that the Departments should remove the UC
exception and instead award a higher priority to family unit
applications, as this would keep family units together, grant asylum to
those that qualify, and disincentivize sending UCs to the SWB. Other
commenters asserted that accompanied children should also qualify for
an exception, since the exception for UCs creates a perverse incentive
to send children alone to the border if families are not first
successful together. Another noted that children arriving with their
families do not choose where to cross the border or whether to first
obtain an appointment, nor do they choose whether to first apply for
asylum in another country, especially when fleeing danger.
Response: The Departments fully agree with commenters that keeping
families unified and avoiding family separation and the associated
trauma is an important goal, but disagree that the rule, including the
exception for UCs, will increase separations of families and result in
more UCs arriving in the United States. See, e.g., E.O. 14011,
Establishment of Interagency Task Force on the Reunification of
Families, 86 FR 8273 (Feb. 5, 2021). As noted in the preamble of the
NPRM, applicability of the rebuttable presumption will be considered
during the credible fear process for those noncitizens processed for
expedited removal, as well as applied to merits adjudications. 88 FR at
11707. Pursuant to section 235 of the Trafficking Victims Protection
Reauthorization Act of 2003 (``TVPRA''), UCs whom DHS seeks to remove
cannot be processed for expedited removal and, thus, are never subject
to the credible fear process. 8 U.S.C. 1232(a)(5)(D). As UCs are
already excluded from expedited removal, the Departments do not
expect--based on their experience implementing current law concerning
expedited removal and asylum--that this exclusion of UCs from the
rebuttable presumption would serve as a significant incentive for
families to send their children unaccompanied to the United States.
In addition, under this rule, families may avail themselves of
lawful pathways and processes to enter the United States to avoid
application of the rebuttable presumption. The rule also states that if
one member of a family travelling together, including both parents and
children, is excepted from the presumption or has rebutted the
presumption, all members of the family are treated as excepted from or
as having rebutted the presumption. 8 CFR 208.33(a)(2)(ii) and (3)(i),
1208.33(a)(2)(ii) and (3)(i); 88 FR at 11730 (providing that ``if one
member of a family traveling together is excepted from the presumption
that the condition applies or has rebutted the presumption, then the
other members of the family as described in 8 CFR 208.30(c) are
similarly treated as excepted from the presumption or as having
rebutted the presumption''); see 8 CFR 208.30(c)(2) (``The asylum
officer in the officer's discretion may also include other accompanying
family members who arrived in the United States concurrently with a
principal [applicant] in that [applicant's] positive fear evaluation
and determination for purposes of family unity.'').
To the extent commenters suggest that all children, including those
traveling with a parent or legal guardian, be excluded from
applicability of the rule, the Departments agree that children may have
limited agency in their manner of arrival in the United States. The
Departments have therefore added a provision to the rule that allows
principal asylum applicants who were under the age of 18 at the time of
entry to avoid the condition on asylum eligibility for applications if
they file as principal applicants after May 11, 2025, as discussed in
more detail at Section II.C.2 of this preamble. 8 CFR 208.33(c)(2),
1208.33(d)(2). However, the Departments do not wish to create an
incentive for adults to arrive at the border with children falsely
claiming to be a family unit in order to be excepted from the rule or
for parents or legal guardians to bring their children with them on the
dangerous journey to the United States when they otherwise would not do
so, and therefore decline to add an exception for all accompanied
minors. The Departments seek to encourage families that may choose to
travel to the United States together to travel via a lawful pathway
rather than by entrusting smugglers or criminal organizations to
facilitate a potentially dangerous journey.
[[Page 31418]]
vi. Other General Comments on Exceptions
Comment: Several commenters stated that the exceptions to the
rebuttable presumption are too narrow and, therefore, would preclude
many noncitizens from obtaining asylum. One commenter suggested
creating a broad fourth exception that would exempt particularly
vulnerable demographics from the rebuttable presumption, much like the
proposed rule already exempts unaccompanied children. Another commenter
suggested creating an exception for the elderly, who are significantly
less likely to be repeat unauthorized crossers.
Response: The Departments believe that the rule will generally
offer opportunities for those with valid claims to seek protection, and
decline to add additional exceptions to the rule. The Departments
believe that the existing exceptions to application of the rebuttable
presumption against asylum eligibility at 8 CFR 208.33(a)(2) and
1208.33(a)(2) provide the desired incentive for noncitizens seeking to
enter the United States do so via safe, orderly, and lawful pathways,
and that additional exceptions, particularly broad exceptions such as
those suggested by commenters, would be contrary to the purpose of the
rule. Regardless of whether certain populations may be more or less
likely to be repeat, unauthorized border crossers, the Departments
believe that all noncitizens seeking to enter the United States should
do so via safe, orderly, and lawful pathways if possible.
The Departments also note that in addition to the enumerated
exceptions, the rule includes means of rebutting the presumption
against asylum eligibility at 8 CFR 208.33(a)(3) and 1208.33(a)(3)
where exceptionally compelling circumstances exist, including where at
the time of entry the noncitizen or a member of their family with whom
they are traveling faced an acute medical emergency, faced an imminent
and extreme threat to life or safety, or were a victim of a severe form
of trafficking in persons. The Departments believe that together, the
exceptions and grounds for rebuttal strike the correct balance between
incentivizing use of safe, orderly, and lawful pathways for entry into
the United States while also recognizing that in certain limited
circumstances use of these pathways may not be feasible.
4. Other General Comments on the Rebuttable Presumption
Comment: At least one commenter suggested that the Departments
should permit an applicant to override the lawful pathways condition if
they establish a reasonable possibility of persecution or torture.
Response: To best effectuate the policy aims underpinning this
rulemaking, the Departments believe that even those noncitizens who
establish a reasonable fear of persecution or torture generally should
remain subject to this asylum eligibility condition. Such noncitizens
remain eligible for statutory withholding of removal or for CAT
protection, consistent with U.S. non-refoulement obligations under the
Refugee Convention and Protocol and Article 3 of the CAT. See Mejia v.
Sessions, 866 F.3d 573, 588 (4th Cir. 2017); Cazun v. U.S. Att'y Gen.,
856 F.3d 249, 257 n.16 (3d Cir. 2017). Additionally, as discussed in
Section IV.E.7.ii of this preamble, the Departments have included
protections for family members of principal asylum applicants who are
eligible for statutory withholding of removal or CAT protection and
would be granted asylum but for the lawful pathways rebuttable
presumption, where an accompanying spouse or child would not qualify
for asylum or other protection from removal on their own or where the
principal asylum applicant has a spouse or child who would be eligible
to follow to join that applicant as described in section 208(b)(3)(A)
of the INA, 8 U.S.C. 1158(b)(3)(A), if the applicant were granted
asylum. In that context, the Departments have determined that the
possibility of separating the family would constitute an exceptionally
compelling circumstance that rebuts the lawful pathways presumption of
ineligibility for asylum. See 8 CFR 1208.33(c).
Comment: One commenter stated that the United States and Mexico
should establish certain parameters for non-Mexicans waiting in Mexico
for an appointment or for entry by other means, which must take into
account safety, security, and humanitarian conditions in the locations
where asylum seekers may be forced to wait. The commenter suggested
that those parameters should include permission to remain lawfully in
Mexico while awaiting appointments and ensuring relevant standards of
protection and treatment under the Refugee Convention and international
human rights standards.
Response: It would be the Government of Mexico's prerogative to
establish any such parameters. The Departments remain committed to
continuing to work with foreign partners on expanding their legal
options for migrants and expanding the Departments' mechanisms for
processing migrants who lawfully arrive in the United States. See 88 FR
at 11720.
5. Screening Procedures and Review
i. Requests for Reconsideration
Comment: Some commenters opposed eliminating noncitizens' ability
to seek reconsideration of a negative fear determination by USCIS and
contended that the proposed rule would eliminate AO reconsideration of
negative credible fear determinations. Commenters stated that the use
of reconsiderations is needed to safeguard the rights of and due
process for asylum seekers where the AO in the first instance issues an
erroneous decision. Commenters stated that reconsideration has shielded
asylum seekers from deportation to persecution and torture for decades,
and observed that between FYs 2019-21 requests for reconsideration
resulted in 569 reversals of negative credible fear determinations. One
commenter stated that even one reversal in the request for
reconsideration process is significant enough. One commenter wrote
that, contrary to the proposed rule's ``theory that'' requests for
reconsideration ``are a waste of resources because so few are
granted,'' their experience was that so few are granted because
migrants cannot adequately state their fear in the initial interview
nor access assistance with the process. Another commenter said the
elimination of the possibility of reconsideration leaves an applicant's
fate entirely to the quality and circumstances of the initial
interview. Another commenter stated that the Departments should not use
USCIS's ``abysmal grant rate to justify eliminating this critical
opportunity for justice and to right a wrong in an asylum seeker's
application for protection.'' Another commenter expressed concern that
this proposed rule would apply only to people who receive negative
credible fear determinations due to this proposed rule, thereby
creating different sets of procedural rules for asylum seekers denied
under this proposed rule and those denied for other reasons.
Response: At the outset, the Departments note that contrary to some
commenters' assertions, the rule does not eliminate reconsideration of
negative credible fear determinations. If the IJ upholds the AO's
negative
[[Page 31419]]
determination, USCIS can still exercise its discretion to reconsider a
negative determination. See 8 CFR 208.33(b)(2)(v)(C). The rule does
eliminate the ability to request such reconsideration for noncitizens
deemed ineligible for asylum by operation of the rebuttable
presumption. While the Departments acknowledge concerns about
eliminating a noncitizen's ability to request reconsideration in this
context, they believe it is important to efficiently resolve credible
fear cases that are subject to the rebuttable presumption against
asylum eligibility. The rule's effectiveness in channeling migration
into safe and orderly pathways depends in part on the efficient
resolution of credible fear cases, and the inclusion of further review
procedures in this context would unnecessarily prolong the credible
fear process.
In response to concerns about fairness, the Departments note that
there remain multiple safeguards to ensure that the process is fair and
to guard against inadvertent error for those subject to the rule. All
credible fear determinations undergo initial review by a Supervisory
AO. 8 CFR 208.30(e)(8). If the supervisor concurs with the negative
determination, the noncitizen can request review of that determination
by an IJ. See 8 CFR 208.33(b)(2)(iii) through (v). Those who are found
subject to the presumption against asylum eligibility but who are still
placed in section 240 removal proceedings can seek a de novo decision
regarding the presumption. See 8 CFR 1208.33(b)(4). Furthermore, the
Departments note that few requests for review of negative credible fear
determinations ultimately result in the reversal of those
determinations. See 87 FR at 18132; 88 FR at 11747. The Departments
assess that, in light of the safeguards in place and the low rate of
reversal, efficiency interests outweigh the interest in providing
further opportunity to request reconsideration; the Departments
therefore respectfully disagree with the commenter stating that even
one reversal would be significant enough to warrant the ability to
request reconsideration. Regarding the claim that few requests for
reconsideration are granted due to noncitizens' lack of opportunity to
state their fear during the initial interview and lack of assistance
with the process, the commenter offered only anecdotal evidence for
this. Moreover, this assertion does not change the Departments'
assessment that providing further opportunity to request
reconsideration carries insufficient benefits to justify its costs. To
the extent that commenters argued that these limits on reconsideration
implicate the due process rights of noncitizens, as explained
previously in Section IV.B.5.i of this preamble, the Supreme Court has
held that the due process rights of noncitizens applying for admission
at the border are limited to ``only those rights regarding admission
that Congress has provided by statute.'' Thuraissigiam, 140 S. Ct. at
1983 (citing INA 235(b)(1)(B)(ii) and (v), 8 U.S.C. 1225(b)(1)(B)(ii)
and (v)). The INA provides no statutory right to reconsideration of an
AO's negative credible fear determination. See INA 235(b)(1), 8 U.S.C.
1225(b)(1).
The Departments acknowledge that noncitizens who are not subject to
the presumption are subject to different rules for reconsideration. See
8 CFR 208.30(g)(1)(i). However, the Departments note that the decision
to reconsider a negative credible fear determination under that rule is
still subject to USCIS discretion and is also time limited. Id. By
contrast, there are no time limits for USCIS to reconsider negative
determinations in cases subject to this rule. 8 CFR 208.33(b)(2)(v)(C).
And due to the exigent circumstances discussed throughout this rule,
including in Sections II.A and IV.B.2 of this preamble, the Departments
believe it necessary to limit requests for reconsideration in cases
subject to this rule.
ii. ``Significant Possibility'' Standard and Mechanisms for Evaluating
Asylum and Withholding of Removal
Comment: Some commenters alleged that the rule would elevate the
``significant possibility'' standard established by Congress to the
``reasonable possibility'' standard, which is much harder for asylum
seekers to meet. One commenter stated that the complexity of the
presumption of ineligibility will require ``intensive factual
analysis'' during credible fear interviews and stated that application
of the reasonable possibility standard for screenings for withholding
of removal or CAT protection violates the Global Asylum Rule
injunction. Other commenters suggest that it will be ``an extremely
onerous undertaking'' for the Departments to apply a ``reasonable
fear'' standard in cases where the lawful pathways condition applies,
which could lead to more complex and resource-intensive credible fear
screening interviews with a ``high risk of error that would send bona
fide refugees back to danger.'' Another commenter stated that, by
applying the ``reasonable possibility'' standard to cases subject to
the rule, the rule would essentially turn the credible fear interview,
which is intended to be a low-bar screening, into an asylum merits
hearing for these individuals. One commenter said that procedural and
judicial errors are likely to increase as AOs are asked to apply the
more onerous ``reasonable possibility'' standard.
A commenter stated that the rule may not be necessary as long as
statutory withholding of removal and protection under CAT are
available, as migrants would not distinguish between asylum,
withholding, and CAT protection and instead would arrive at the SWB
with the intention of seeking whatever relief is available to them.
Other commenters expressed concern that those who cannot rebut the
presumption would then be forced to meet a more difficult standard to
be able to present a claim to lesser protections in the form of
statutory withholding of removal or CAT protection. One commenter
stated that the fact that the Departments have long applied the higher
standard in reasonable fear screenings is ``inapposite,'' reasoning
that the rule is not about reasonable fear screenings, which impact
those who were previously ordered removed and then re-entered without
inspection.
Response: To the extent commenters suggest that the ``reasonable
possibility'' standard will apply at the credible fear stage to asylum
claims under this rule, they are incorrect. The statutory ``significant
possibility'' standard will continue to apply to such asylum claims.
See Section IV.D.1.iii of this preamble. The rule would apply a
``reasonable possibility'' standard only to screen for claims of
withholding of removal and CAT protection, and only where a noncitizen
has failed to establish a significant possibility that they would be
able to show at a full hearing by a preponderance of the evidence that
the presumption does not apply or that they meet an exception to or can
rebut the presumption of ineligibility. See 88 FR at 11724.
That said, the Departments acknowledge commenters' concerns that
certain noncitizens will be subject to a higher burden of proof for
statutory withholding of removal and CAT protection. The Departments
acknowledge that use of the ``reasonable possibility'' standard is a
change from the practice currently applied in the expedited removal
context as articulated in the Asylum Processing IFR; however, it is the
same standard used in other protection screening contexts. See 8 CFR
208.31; see also 88 FR 11742-44. Notably, this higher screening
standard
[[Page 31420]]
accords with the higher standard a noncitizen must meet for statutory
withholding of removal and protection under CAT in section 240 removal
proceedings, 8 U.S.C. 1229a. See INS. v. Cardoza-Fonseca, 480 U.S. 421
(1987). As explained in the NPRM, the Departments therefore believe
that the ``reasonable possibility'' standard ``better predicts the
likelihood of succeeding on the ultimate statutory withholding or CAT
protection application than the `significant possibility' of
establishing eligibility for the underlying protection standard, given
the higher burden of proof.'' 88 FR at 11746-47. The application of
standards tailored to the type of relief or protection that the
noncitizen is eligible for will not foreclose an opportunity for those
with meritorious claims to seek protection.
While the INA specifies the ``significant possibility'' standard
for the purpose of screening for potential asylum eligibility in
credible fear proceedings, INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), the INA does not specify a standard to be used in
screening for potential eligibility for statutory withholding of
removal or CAT protection. Congress did not require the same
eligibility standards for asylum, statutory withholding of removal, and
protection under the CAT in the ``credible fear'' screening process.
See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also The Foreign
Affairs Reform and Restructuring Act of 1998 (``FARRA''), Public Law
105-277, 112 Stat. 2681-822. Thus, the Departments have determined
that, where the rebuttable presumption of asylum ineligibility applies
and has not been rebutted, applying the ``reasonable possibility'' of
persecution or torture standard to screen claims for statutory
withholding of removal and CAT protection would better advance the
Departments' systemic goal of processing protection claims in a manner
that is efficient, orderly, and safe.
The Departments acknowledge that in multiple rulemaking efforts in
recent years, the Departments promulgated divergent standards for
screening for potential eligibility for asylum as compared with
statutory withholding of removal and CAT protection, along with
variable standards for individuals barred from certain types of
protection, which are currently not in effect.\292\ In June 2020, the
Departments published the Global Asylum Rule, which amended provisions
relating to the expedited removal and credible fear screening process,
including raising the standards of proof for screening all claims for
statutory withholding of removal and CAT protection to a ``reasonable
possibility'' of persecution or torture and applying all mandatory bars
to asylum and statutory withholding of removal during the credible fear
screening. See Global Asylum Rule, 85 FR at 80277-78. The Global Asylum
Rule continues to be the subject of lawsuits challenging the rule on
multiple grounds.\293\ Most of the changes to the credible fear process
in expedited removal made by the Global Asylum Rule were superseded by
the Asylum Processing IFR. As explained in the NPRM, the considerations
that led to those decisions do not apply here. See 88 FR at 11744. This
rule implements the new condition on eligibility in credible fear
screenings through a stand-alone provision rather than a catch-all as
the Departments sought to do through the Global Asylum Rule. Moreover,
the Departments have determined that it would be appropriate to apply
the lawful pathways condition on asylum eligibility during the credible
fear screening stage such that the ``reasonable possibility'' of
persecution or torture standard would then be used to screen the
remaining applications for statutory withholding of removal and CAT
protection. See id.
---------------------------------------------------------------------------
\292\ See Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934, 55939, 55943 (Nov. 9, 2018) (``Proclamation Bar IFR'');
Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July
16, 2019) (``Third Country Transit (TCT) Bar IFR''); Asylum
Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17,
2020) (``TCT Bar Final Rule''); Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85
FR 36264 (June 15, 2020) (``Global Asylum NPRM''); Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 FR 80274 (Dec. 11, 2020) (``Global Asylum Rule'');
Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020)
(``Security Bars Rule'').
\293\ See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.,
501 F. Supp. 3d 792 (N.D. Cal. 2020); Immigration Equality v. U.S.
Dep't of Homeland Sec., No. 3:20-cv-09258 (N.D. Cal. filed Dec. 21,
2020); Human Rights First v. Mayorkas, No. 1:20-cv-3764 (D.D.C.
filed Dec. 21, 2020); Tahirih Justice Ctr. v. Mayorkas, No. 1:21-cv-
00124 (D.D.C. filed Jan. 14, 2021).
---------------------------------------------------------------------------
The Departments disagree with commenters' assertions that applying
a higher burden of proof to screen for statutory withholding of removal
and CAT protection where the presumption of asylum ineligibility
applies and is not rebutted will result in errors. AOs and IJs have
long applied, and continue to apply, the ``reasonable possibility'' of
persecution or torture standard successfully to noncitizens who are
subject to administrative removal orders under section 238(b) of the
INA, 8 U.S.C. 1228(b), or reinstated orders under section 241(a)(5) of
the INA, 8 U.S.C. 1231(a)(5). See generally 8 CFR 208.31 and 1208.31.
There is therefore no reason to conclude that AOs and IJs will not be
able to appropriately apply that standard successfully in the context
of this rule.
The Departments disagree with commenters' suggestion that the rule
will increase irregular migration because noncitizens will still travel
to the United States to pursue any avenue of relief available to them.
The rule's primary purpose is to incentivize migrants, including those
intending to seek asylum, to use lawful, safe, and orderly pathways to
enter the United States, or seek asylum or other protection in another
country through which they travel. The rule, coupled with an expansion
of lawful, safe, and orderly pathways, is expected to reduce the number
of noncitizens seeking to cross the SWB without authorization to enter
the United States. The rule is intended to reduce the level of
irregular migration to the United States without discouraging migrants
with valid claims from applying for asylum or other protection. The
Departments believe the rule will generally offer opportunities for
those with valid claims to seek protection.
The Departments' application of a higher standard for statutory
withholding and CAT protection in ``reasonable fear'' screenings, see 8
CFR 208.31 and 1208.31, is not inapposite in the context of this rule,
where a noncitizen does not meet an exception to or rebut the
presumption of asylum ineligibility. As in the ``reasonable fear''
context, this standard would be applied only where noncitizens are
ineligible for asylum--and because the standard for showing entitlement
to statutory withholding and CAT protection (a probability of
persecution or torture) is significantly higher than the standard for
asylum (well-founded fear of persecution), the Departments have
determined that the screening standard adopted for initial
consideration of withholding and deferral requests in these contexts
should also be higher.
In promulgating this rule, the Departments considered and drew upon
the established framework for considering the likelihood of a grant of
statutory withholding of removal or CAT protection in the reasonable-
fear context. See 88 FR at 11743. The Departments have authority to
establish screening procedures and standards for statutory withholding
of removal and CAT protection. See INA 103(a)(1), 8 U.S.C. 1103(a)(1).
The Departments have frequently invoked these authorities to
[[Page 31421]]
establish or modify procedures in expedited removal proceedings. See
id. Noncitizens who establish a reasonable fear of persecution or
torture would still be able to seek protection in proceedings before
IJs. See CFR 1208.33(b)(2)(ii).
Comment: One commenter supported the Departments' assessment that
applying the higher standard would lead to fewer noncitizens with non-
meritorious claims being placed in section 240 removal proceedings, and
that using this standard would further systemic goals without violating
statutory or international obligations. However, the commenter
recommended that DHS raise the screening standard from ``significant
possibility'' to ``reasonable possibility'' for statutory withholding
of removal and CAT protection during all credible fear interviews. The
commenter reasoned that such an approach would be consistent with the
INA, the FARRA, and U.S. non-refoulement obligations, and would reduce
``historic and unsustainable strains'' on the U.S. asylum system by
deterring unauthorized immigration into the United States.
Response: The Departments decline to apply the ``reasonable
possibility'' standard to screen all withholding of removal and CAT
claims. The Departments believe that continuing to use the
``significant possibility'' standard to screen for all three types of
claims--asylum, statutory withholding of removal, and CAT protection--
when the noncitizen is excepted from or has overcome the presumption
would avoid AOs and IJs applying divergent standards to the same sets
of facts in a credible fear interview, thus simplifying the screening
process for those noncitizens.
The commenter did not provide any explanation or evidence regarding
how applying a higher standard during the credible fear screening to
all claims for protection will reduce fraudulent claims. While the
Departments acknowledge the commenter's concern, the Departments
emphasize that the rule's primary intent is not to identify fraudulent
asylum claims, but rather to reduce the level of irregular migration to
the United States without discouraging migrants with valid claims from
applying for asylum or other protection.
6. Effective Date, Temporary Period, and Further Action
Comments: Commenters raised concerns regarding the effective date
of the rule and the two-year temporary duration of the rule. Several
commenters expressed a concern that the two-year period is unexplained.
Some commenters argued that two years was too short of a time period to
assess the effectiveness of the program. Another commenter stated that
the two-year temporary duration of the rule allowed for sufficient time
to assess the effects of the rule and to deter migrants. Some
commenters questioned why the rule would expire after two years and
requested further explanation, stating that if the Departments believe
it is sound policy, it is not clear why the changes are not permanent.
Others stated that the two-year period was too long for a ``temporary''
program designed to address ``exigent circumstances,'' and stated that
the Departments should have considered a much shorter duration, such as
30 days or 90 days, reconsideration every 6 months, or a sunset before
the end of 2025. Another commenter stated that the Departments should
specify conditions that would trigger the expiration of the rule.
Commenters also expressed concern that the rule does not sufficiently
lay out the criteria for determining whether the rule should be
extended at the end of the 24-month period, or that the criteria are
highly subjective. Commenters also noted that previous immigration
policies, including MPP and those stemming from the Title 42 public
health Order, have been difficult to sunset.
Response: The Departments intend for the rule to address the surge
in migration that is anticipated to follow the lifting of the Title 42
public health Order. For that reason, and consistent with the
Departments' initial assessment as stated in the NPRM, see 88 FR at
11727, the rule will only cover those who enter during a specific time
period, applying to those who enter the United States at the SWB during
the 24-month period following the rule's effective date. The
Departments believe that a 24-month period provides sufficient time to
implement and assess the effects of the policy contained in this rule.
In addition, the Departments believe that a 24-month period is
sufficiently long to impact the decision-making process for noncitizens
who might otherwise pursue irregular migration and make the dangerous
journey to the United States, while a shorter duration, or one based on
specified conditions, would likely not have such an effect.
During this time, the United States will continue to build on the
multi-pronged, long-term strategy with our foreign partners throughout
the region to support conditions that would decrease irregular
migration, work to improve refugee processing and other immigration
pathways in the region, and implement other measures as appropriate,
including continued efforts to increase immigration enforcement
capacity and streamline processing of asylum seekers and other
migrants. Recognizing, however, that there is not a specific event or
demarcation that would occur at the 24-month mark, the Departments will
closely monitor conditions during this period in order to review and
make a decision, consistent with the requirements of the APA, whether
additional rulemaking is appropriate to modify, terminate, or extend
the rebuttable presumption and the other provisions of this rule. Such
review and decision would consider all relevant factors, including the
following: current and projected migration patterns, including the
number of migrants seeking to enter the United States or being
encountered at the SWB; resource limitations, including whether the
number of noncitizens seeking or expected to seek to enter the United
States at the SWB exceeds or is likely to exceed the Departments'
capacity to safely, humanely, and efficiently administer the
immigration system, including the asylum system; the availability of
lawful, safe, and orderly pathways to seek protection in the United
States and partner nations; and foreign policy considerations. The
Departments expect to consider their experience under the rule to that
point, including the effects of the rebuttable presumption on those
pursuing asylum claims. In addition, the Departments expect to consider
changes in policy views and imperatives, including foreign policy
objectives, in making any decision regarding the future of the rule.
The Departments do not believe that establishment of specific metrics
for renewal ex ante would be appropriate, given the dynamic nature of
the circumstances at the SWB and the multifaceted domestic and foreign
policy challenges facing the Departments.
Comment: Commenters expressed concern about the rationale for
adopting the two-year duration and potential extensions of the rule in
subsequent administrations. Some commenters stated that the
Departments' rationale for the two-year temporary duration was
pretextual, with the true motivations being political and partisan in
nature. One commenter disagreed with allowing the rule to be effective
after the end of the current presidential term because it could be
indefinitely extended, and another similarly stated that the fact that
the rule is ``temporary'' does not mean that a subsequent presidential
administration could not renew it.
[[Page 31422]]
Commenters stated that, by sunsetting the rule after the end of the
current presidential term, the Departments were inviting such a result.
Response: The Departments disagree that the rationale for the 24-
month duration of the rule is political, partisan, or pretextual in
nature. The rule's primary purpose is to incentivize migrants,
including those intending to seek asylum, to use lawful, safe, and
orderly pathways to enter the United States, or seek asylum or other
protection in another country through which they travel. The rule is
needed because, absent this rule, after the termination of the Title 42
public health Order, the number of migrants expected to travel without
authorization to the United States is expected to increase
significantly, to a level that risks undermining the Departments'
ability to safely, effectively, and humanely enforce and administer
U.S. immigration law, including the asylum system. The 24-month
duration of the rule is discussed in more detail in Section IV.E.6 of
this preamble.
Comment: Commenters questioned how the temporary nature of the rule
would practically work, noting the range of new procedures, training,
and other Notices required to start and stop such a large program.
These commenters hypothesized that the time spent training and making
other updates for implementation would directly cut into the limited
time the rule would be in effect, reducing its effectiveness.
Response: The Departments agree that implementation of the rule
requires training and guidance, and are taking steps to ensure that it
can be implemented in a timely, fair, and efficient manner after it
goes into effect. The Departments are confident that the new procedures
required can be put into effect with minimal disruption or delay in
both merits adjudications and credible fear screenings.
Comment: Commenters stated that although the rule proposed a two-
year effective period, it would have a permanent impact. A few
commenters expressed concern about the potential for two identical
asylum seekers to be treated differently based on whether they seek
asylum before or after the sunset date of the rule. One commenter urged
the Departments to provide clarity regarding adjudications that take
place after the rule's sunset date for individuals that entered prior
to the sunset date.
Response: The Departments appreciate commenters' concerns that the
rule, which would only apply to those entering during a specified,
time-limited date range, could lead to confusion, and appreciate the
opportunity to clarify how it will be implemented. The Departments also
recognize that due to the nature of the rule, noncitizens who enter
during the specified date range will be subject to its terms while
those who enter before or after the period will not. However, the
Departments disagree that the effects of the condition should be time-
limited in duration. The rule was designed to apply to anyone who
entered during the specified time period in order to avoid the
possibility of individuals entering without documents sufficient for
lawful admission during the time period covered by the rule, then
waiting out the condition imposed by the rule before applying for
asylum, thereby contributing to the existing immigration court backlog
and rendering the rule ineffective in its aims of reducing unauthorized
arrivals to the SWB and encouraging utilization of available lawful
pathways. To clarify to noncitizens and adjudicators that the
rebuttable presumption has continuing effect, the Departments added
language to the regulations stating that the rebuttable presumption
will continue to apply to all asylum applications filed by people who
enter in the specified manner during the 24-month period regardless of
when the application is filed and adjudicated. See 8 CFR 208.33(c)(1),
1208.33(d)(1). To further clarify, and in response to commenters'
concerns in relation to individuals who enter as minors in a family
unit who may have entered during the rule's effective period through no
fault or agency of their own, the Departments have added language to
the rule to ensure children brought to the United States during the 24-
month effective period are not subject to the lawful pathways
rebuttable presumption of asylum ineligibility in the rule if they file
an application for asylum as a principal applicant after expiration of
the 24-month period. 8 CFR 208.33(c)(2), 1208.33(d)(2).
Comment: Several commenters stated that the rule is contrary to
international law, and that its temporary nature, or the emergency
rationale behind it, do not justify or excuse such a violation.
Response: For discussion of the rule's compliance with
international law and U.S. treaty obligations, please see Section
IV.D.3 of this preamble.
7. EOIR Proceedings
i. EOIR IJ Credible Fear Review Procedures
Comment: Commenters objected to the provision in the proposed rule
that would require noncitizens to affirmatively request IJ review of
negative credible fear determinations, which differs from existing
procedures where review is given to those who do not affirmatively
decline review. Commenters stated that IJ review of negative credible
fear determinations is an important safeguard that is guaranteed by
statute, pointing to data detailing how many negative credible fear
determinations were overturned by IJs. Commenters stated that this
change favors expedience over access to protection in the United States
and would inevitably result in an increase in deportations to countries
where asylum seekers have a credible fear of return. Commenters stated
that negative credible fear determinations should automatically receive
IJ review unless the noncitizen affirmatively declines it, as expecting
a noncitizen to know to affirmatively ask for an IJ's review is
unrealistic and effectively denies the noncitizen the opportunity for a
judicial review. Commenters explained that many individuals may not
request review, or know to request review, even if asked whether they
wish to seek further review before an IJ, for a variety of reasons. The
provided reasons included unfamiliarity with the immigration system;
lack of counsel or education; inability to identify legal errors by the
AO; language issues; time in custody; mental health conditions;
confusion; trauma; and deference to authority; among others. Further,
commenters also stated that changing the explanations of the right to
IJ review would not serve as a sufficient safeguard.
Commenters also stated that the Departments did not give a reasoned
justification for this policy change and that the rationale in the NPRM
for requiring noncitizens to affirmatively request IJ review
contradicts the Asylum Processing IFR, which, after the Global Asylum
Final Rule implemented a requirement that noncitizens affirmatively
request review, reinstated the default rule that negative
determinations would be automatically referred for IJ review absent
explicit declination by the noncitizen. Moreover, commenters asserted
that this rule change would cause confusion as DHS officers would be
required to apply the automatic credible fear review provision
differently for asylum seekers with negative credible fear
determinations based on the rebuttable presumption in this rule, as
compared to determinations made on another basis. Commenters also
expressed concern that the NPRM did not include statistics regarding
automatic IJ credible
[[Page 31423]]
fear review, including how many asylum seekers succeeded in their
review without having articulated a desire for IJ review to the AO, or
how many IJ credible fear reviews were expeditiously resolved after the
IJ explained the asylum seeker's rights and the asylum seeker chose to
not pursue further review.
Separately, regarding credible fear reviews more generally,
commenters stated that it was unclear whether an IJ could review the
asylum ineligibility presumption during a credible fear review.
Commenters also stated that the proposed rule would cause a significant
increase in negative credible fear reviews at EOIR, and that such
reviews would require more adjudication time due to application of the
rebuttable presumption. Moreover, commenters stated that the proposed
rule would allow IJs to engage in speculation by looking outside of the
record of proceedings during the credible fear review.
Commenters also proposed an additional hearing, prior to or
concurrent with the IJ review, assessing whether a noncitizen's
documents were sufficient for lawful admission pursuant to section
212(a)(7) of the INA, 8 U.S.C. 1182(a)(7). In contrast, other
commenters proposed generally eliminating IJ review of credible fear
determinations, asserting this would reduce the backlog of cases within
the immigration system and would reduce the pull factor created by
lengthy adjudications. Similarly, other commenters stated that IJ
review is not necessary if a noncitizen knowingly declines review, so
long as the Departments provide expanded rights advisals and explain
the consequences of declining such review.
Response: As stated in the NPRM, the Departments acknowledge that
the procedure for IJ review of negative credible fear determinations
established by this rule differs from the credible fear review
procedures implemented by the Asylum Processing IFR. See 88 FR at 11744
(``[U]nlike the process adopted by the Asylum Processing IFR,
noncitizens must affirmatively elect immigration judge review of a
negative credible fear determination when that choice is presented to
them; noncitizens who fail or refuse to indicate a request for
immigration judge review will not be considered to have requested such
review.''). While the Departments believe that ``the need for
expedition under the current and anticipated exigent circumstances''
weighs in favor of requiring noncitizens to affirmatively request IJ
review of a negative credible fear determination, they will also ``seek
to ensure noncitizens are aware of the right to review and the
consequences of failure to affirmatively request such review.'' Id. at
11747.\294\
---------------------------------------------------------------------------
\294\ Regarding commenters' data requests, the Departments note
that EOIR does not maintain data regarding how many IJ credible fear
reviews were initiated after a noncitizen failed to request such
review.
---------------------------------------------------------------------------
In particular, if a noncitizen receives a negative credible fear
determination after failing to rebut the presumption or to establish a
``reasonable possibility'' of persecution or torture, the rule requires
AOs to provide noncitizens ``with a written notice of decision and
inquire whether the alien wishes to have an immigration judge review
the negative credible fear determinations.'' 8 CFR 208.33(b)(2)(iii).
The Departments believe that such notice sufficiently ensures that
noncitizens who desire IJ review have the opportunity to elect it under
this rule. Currently, USCIS explains to noncitizens that they may
request review of a negative credible fear determination with an IJ,
and that failure to do so may result in removal from the United States.
USCIS also explains to noncitizens their right to consultation during
the credible fear process, and provides noncitizens with a list of free
or low-cost legal services providers whom they may wish to
contact.\295\ To ensure that noncitizens--including, among others,
noncitizens who are unfamiliar with the immigration system, have
suffered trauma, are without counsel, or are unable to read or speak
English--understand what review is available to them, DHS ``intends to
change the explanations it provides to noncitizens subject to the . . .
rule to make clear to noncitizens that the failure to affirmatively
request review will be deemed a waiver of the right to seek such
review.'' 88 FR at 11747. These explanations will be provided by
trained asylum office staff through an interpreter in a language
understood by the noncitizen. See 8 CFR 208.30(d)(5). As a result, the
Departments believe that it is reasonable to conclude that noncitizens
who do not request IJ review after receiving sufficient notice, see 8
CFR 208.30(d)(5), and the enhanced explanations described above do not
wish for additional review. See 88 FR at 11747. The Departments note
that, at the time that the Asylum Processing IFR was being considered,
the Departments were assessing procedures that would require
affirmative requests for IJ review through the lens of the Global
Asylum Final Rule, which did not include a planned rollout of enhanced
explanations for noncitizens. Under this rule, DHS is now planning
different protocols for implementing the requirement that noncitizens
affirmatively request review by providing the above-described
explanations coupled with enhanced notice procedures. The Departments
also do not believe this change will cause unnecessary confusion for
DHS officers and staff, as they are well trained in expedited removal
and credible fear procedures. See, e.g., 8 CFR 208.1(b) (``Training of
asylum officers'').
---------------------------------------------------------------------------
\295\ See USCIS Form M-444, Information About Credible Fear
Interview.
---------------------------------------------------------------------------
Separately, in response to more general comments about the IJ
credible fear review process, the Departments clarify that IJs apply a
de novo standard during credible fear reviews, including on the
question whether the asylum ineligibility presumption applies. See 8
CFR 1208.33(b)(1) (stating that ``the immigration judge shall evaluate
the case de novo''). More generally, the Departments do not believe
that the application of the rebuttable presumption presents a risk of
creating significant inefficiencies during the IJ credible fear review
process that would warrant amending the rule, as IJs have significant
experience conducting credible fear reviews and applying asylum-related
standards. Additionally, IJs will be able to review relevant evidence
provided at the initial credible fear interview before the AO in making
any determinations regarding the rebuttable presumption. As discussed
above, the Departments anticipate that any increases in the time that
it takes to review a negative credible fear decision will be outweighed
by other efficiencies created by this rule. The Departments disagree
with commenters that the rule allows IJs to engage in ``speculation''
during credible fear reviews, as the relevant evidentiary standards in
credible fear reviews predate this regulation. See 8 CFR 1003.42(d)(1)
(explaining that the IJ may take into account ``such other facts as are
known to the immigration judge'').
In response to other commenters, the Departments also decline to
completely eliminate IJ credible fear review, which is provided by
statute and acts as an important safeguard during the expedited removal
process. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (``The Attorney General shall provide by
regulation and upon the alien's request for prompt review by an
immigration judge of a determination . . . that the alien does not have
a credible fear of persecution.''). Similarly, the Departments decline
to add additional
[[Page 31424]]
hearings regarding inadmissibility determinations, which are properly
determined within existing procedures. See INA 235(b)(1)(A)(i), 8
U.S.C. 1225(b)(1)(A)(i) (requiring DHS officer to determine document-
related inadmissibility during the expedited removal process).
Comment: Commenters raised a number of concerns about IJ credible
fear review proceedings generally, including the sufficiency and
reliability of the evidentiary record before the AO, the abbreviated
nature of IJ credible fear reviews in light of the complexity of the
issues presented, the lack of counsel or limited participation of
counsel in IJ credible fear reviews, the level of deference IJs
demonstrate towards to the AO's determination, and the lack of appeal
of an IJ negative credible fear determination, among others.
Response: As an initial matter, the Departments note that this rule
does not alter the existing IJ credible fear review process, and
comments regarding unaltered existing processes are outside the scope
of this rule. Regardless, with respect to commenters who characterized
the existing credible fear screening and review process as deficient or
contrary to due process, the Departments note that Congress has
established an expedited removal process that includes neither BIA
review nor judicial review and requires any IJ review of credible fear
determinations to be prompt. See INA 235(b)(1)(B)(iii)(III), (C), 8
U.S.C. 1225(b)(1)(B)(iii)(III), (C). Additionally, existing regulations
outline a robust process for IJ review of credible fear determinations.
See 8 CFR 1003.42, 1208.30 (describing IJ review of credible fear
determinations). Please also see discussion in Section IV.B.5 of this
preamble responding to comments on the effects of the rule on due
process.
As to the sufficiency and reliability of the record of
determination, the Departments disagree with commenter contentions that
this document does not provide a sufficient record for IJ review. The
INA sets forth that the record of determination ``shall include a
summary of the material facts as stated by the applicant, such
additional facts (if any) relied upon by the officer, and the officer's
analysis of why, in light of such facts, the [noncitizen] has not
established a credible fear of persecution.'' INA
235(b)(1)(B)(iii)(II), 8 U.S.C. 1225(b)(1)(B)(iii)(II). Further, as the
record of determination is a government-created document, it is
generally presumed to be reliable in the absence of evidence to the
contrary. See Matter of J-C-H-F-, 27 I&N Dec. 211, 212 (BIA 2018)
(citing Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995)). Should the
reliability of a record of determination be challenged before the IJ,
the IJ will consider the arguments raised as to its reliability. Cf.
id. at 215-16 (setting forth the framework for IJ review when the
reliability of a border interview is challenged); see also Ye v. Lynch,
845 F.3d 38, 45 (1st Cir. 2017) (requiring a totality-of-the-
circumstances-based inquiry as to reliability of a DHS document); Zhang
v. Holder, 585 F.3d 715, 725-26 (2d Cir. 2009) (requiring a factor-
based inquiry as to reliability of a DHS document).
Moreover, during review of a negative credible fear determination,
IJs are authorized to ``receive into evidence any oral or written
statement which is material and relevant to any issue in the review.''
8 CFR 1003.42(c). Accordingly, noncitizens who believe that their
credible fear interview is inaccurately described or who wish to
provide additional testimony, context, or explanation have the
opportunity to do so before an IJ. Furthermore, as an additional
procedural precaution for noncitizens, the IJ review of a negative
credible fear determination itself is subject to preservation-of-
records requirements, as the IJ must create a Record of Proceeding in
which to memorialize their review. See 8 CFR 1003.42(b).
As stated in the NPRM and consistent with existing practice, IJs
will continue to evaluate such credible fear determinations using a de
novo standard of review. See 8 CFR 1003.42(d)(1), 1208.33(b)(1)
(``[T]he immigration judge shall evaluate the case de novo, as
specified in paragraph (b)(2) of this section.''); 88 FR at 11726. This
includes reviewing an AO's determinations about the applicability of
the presumption of asylum ineligibility and whether the presumption was
rebutted. See 8 CFR 1208.33(b). Under 8 CFR 1208.33(b)(1), the IJ shall
review de novo ``[w]here an asylum officer has issued a negative
credible fear determination pursuant to 8 CFR 208.33(b), and the alien
has requested immigration judge review of that credible fear
determination.'' 8 CFR 208.33(b)(2)(v) (``Immigration judges will
evaluate the case as provided in 8 CFR 1208.33(b).''). In such an
instance, de novo review serves to protect noncitizens from incorrect
or unwarranted negative credible fear determinations that may have in
part relied upon the rebuttable presumption.
Further, with respect to commenter concerns about timelines in
credible fear review proceedings, the expedited removal statute
requires ``prompt review.'' INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). Additionally, the statute states that
``[r]eview shall be concluded as expeditiously as possible, to the
maximum extent practicable within 24 hours, but in no case later than 7
days after the date of the [negative credible fear] determination.''
Id.
Moreover, the Departments will not depart from existing procedures
regarding IJ review of credible fear determinations to allow appeals
from the IJs' review of such determinations. Prior to this rule, IJ
decisions at the credible fear review stage were not reviewable, and
this rule maintains that posture. See 8 CFR 1003.42(f) (2020) \296\
(``No appeal shall lie from a review of an adverse credible fear
determination made by an immigration judge.''); 208.33(b)(2)(v)(C)
(``No appeal shall lie from the immigration judge's decision and no
request for reconsideration may be submitted to USCIS.''). Such
processes are in accordance with the INA. See INA 235(b)(1)(C), 8
U.S.C. 1225(b)(1)(C) (providing that removal orders issued under this
section are not subject to administrative appeal other than review by
an IJ). However, the Departments note that per the rule, USCIS retains
the discretion to reconsider negative determinations. See 8 CFR
208.33(b)(2)(v)(C) (``Nevertheless, USCIS may, in its sole discretion,
reconsider a negative determination.''). Because noncitizens can
request IJ review of a negative credible fear determination, and USCIS
retains discretion to reconsider negative determinations, the
Departments continue to believe, as explained in the NPRM, that the
rule appropriately balances the availability of review and the
efficient use of limited agency resources. See 88 FR at 11747.
---------------------------------------------------------------------------
\296\ This provision was amended by the Global Asylum Rule,
which was preliminarily enjoined and its effectiveness stayed before
it became effective. See Pangea II, 512 F. Supp. 3d at 969-70. This
order remains in effect, and thus the 2020 version of this
provision--the version immediately preceding the enjoined
amendment--is currently effective.
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In sum, the Departments believe that the established process for IJ
review of credible fear determinations provides sufficient opportunity
for noncitizens to present the necessary evidence, including testimony,
relevant for evaluating the applicability of the presumption of asylum
ineligibility created by this rule.
ii. Section 240 Removal Proceedings
Comment: Commenters stated that the rule would create confusion in
section 240 removal proceedings, as the rule states that a noncitizen
who is subject
[[Page 31425]]
to the presumption but demonstrates a ``reasonable possibility'' of
persecution or torture may apply for asylum during subsequent removal
proceedings. Commenters also expressed concern that under the proposed
rule, an IJ might re-adjudicate the condition on eligibility in section
240 removal proceedings despite an AO initial determination during the
credible fear process that the presumption of ineligibility was not
applicable or was rebutted. Commenters stated that it would be unfair
to require asylum applicants to repeatedly demonstrate that they are
able to rebut the presumption before different adjudicators, suggesting
an AO's determination that the presumption is inapplicable should be
final for all future proceedings.
Response: The Departments reiterate that noncitizens who are
subject to the presumption of asylum ineligibility during a credible
fear determination, but who demonstrate a ``reasonable possibility'' of
persecution or torture, can apply for asylum during any subsequent
removal proceedings. See 8 CFR 1208.33(b)(4). However, the provisions
of this rule governing the presumption of asylum ineligibility will
still apply, and an IJ will apply the relevant provisions de novo
during removal proceedings. See generally 8 CFR 1208.33.
The Departments do not believe that it is unfair for IJs to
consider the presumption of asylum ineligibility de novo where the AO
already determined that the presumption did not apply or was rebutted.
The IJ's determination would be based on all available evidence after
the noncitizen is given the opportunity to present and examine such
evidence. See INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B) (explaining a
noncitizen's evidentiary rights in section 240 removal proceedings).
The Departments thus decline to deviate from existing practice in
section 240 removal proceedings requiring IJs to determine asylum
eligibility de novo once a matter is referred to EOIR after a positive
credible fear determination. See, e.g., 8 CFR 1208.13(a) (``The fact
that the applicant previously established a credible fear of
persecution for purposes of section 235(b)(1)(B) of the Act does not
relieve the alien of the additional burden of establishing eligibility
for asylum.'').
Comment: Commenters provided generally positive feedback on the
inclusion of a family unity provision but raised concerns about the
operation of the provision itself. Commenters were concerned that the
family unity provision was insufficient because it would not apply to
asylum applicants traveling without their families, including cases
where family members are unable to travel together due to immediate
danger, among other factors. Commenters stated that individual asylum
applicants would be subject to the asylum ineligibility presumption
and, as a result, would be unable to petition for eligible derivatives
outside the United States if they are only able to receive statutory
withholding of removal or CAT protection, providing anecdotal examples.
In turn, commenters stated, this would result in family separation with
spouses and children left in dangerous situations in their home
country, unable to join their family members in the United States.
Therefore, commenters suggested that the family unity provision should
be expanded to individual asylum applicants who meet the provision's
requirements if they have eligible derivatives abroad. Commenters also
proposed that the rule include ``families'' as a general exception to
application of the rebuttable presumption of ineligibility for asylum.
Commenters explained that, for the provision as currently drafted
to apply, the noncitizen would have to first qualify for statutory
withholding of removal or CAT withholding, which have higher standards
of proof than asylum. Commenters stated that this would result in
families with legitimate asylum claims being denied relief because they
may be unable to meet the higher standards required for statutory
withholding of removal or CAT withholding. Additionally, commenters
claimed that this provision would create an inefficient and costly
process, where noncitizens would be required to gather and present a
significant amount of evidence on statutory withholding of removal and
CAT withholding to meet their higher standards and IJs would have to
adjudicate those forms of relief or protection separately before
applying the exception, rather than potentially granting asylum in the
first instance. Commenters noted that in removal proceedings, the
family unity exception requires a determination that the noncitizen is
eligible for withholding of removal or CAT withholding and that they
would be granted asylum but for the presumption. Commenters also raised
concerns that many applicants will face harm while those issues are
adjudicated. Commenters raised further concerns that the family unity
provision would only apply where no members of a family qualify for
withholding of removal or CAT withholding, thus resulting in removal
orders for entire families who qualified for those forms of protection.
Lastly, commenters expressed concern that the provision does not
address family unity concerns where family members traveling together
may not qualify as derivatives due to their relationship status.
Commenters explained that this would result in the rebuttable
presumption of asylum ineligibility applying and, assuming certain non-
derivative family members cannot meet the standards for statutory
withholding of removal or CAT withholding, de facto separation.
Commenters also expressed confusion about whether the family unity
provision could work retroactively to grant asylum to individuals with
statutory withholding of removal if their spouse or child subsequently
journeyed to the United States and underwent adjudication. Further,
commenters stated that the proposed rule leaves outstanding questions
about what independent relief would disqualify families from availing
themselves of the family unity provision.
One commenter claimed that the family unity provision would
incentivize the smuggling of children and suggested eliminating it
entirely. Separately, some commenters claimed that the provision would
increase the incentives for family migration.
Response: The Departments fully agree with commenters that keeping
families unified and avoiding family separation is an important goal.
See, e.g., E.O. 14011, Establishment of Interagency Task Force on the
Reunification of Families, 86 FR 8273 (Feb. 5, 2021). This rule has
been designed to eliminate the possibility that the rule's presumption
will result in the separation of families.
With respect to family units traveling together, if any noncitizen
in that family unit traveling together meets an exception to or is able
to rebut the asylum ineligibility presumption, the presumption will not
apply to anybody in the family traveling together. 8 CFR
208.33(a)(2)(ii), 208.33(a)(3)(i); see also 88 FR at 11749.
Additionally, even where no family members that are traveling together
meet an exception or are able to rebut the presumption, the rule
includes a family unity provision that sets forth a unity-based
``exceptionally compelling circumstance'' to rebut the asylum
ineligibility presumption for certain noncitizens in order to avoid
separating asylum applicants from potential derivative beneficiaries. 8
CFR 1208.33(c). More specifically, under this family unity provision,
where a principal asylum applicant is subject to the presumption but is
eligible for
[[Page 31426]]
statutory withholding of removal or CAT withholding,\297\ and would be
granted asylum but for the presumption, and where an accompanying
spouse or child does not independently qualify for asylum or other
protection from removal, the presumption shall be deemed rebutted as an
exceptionally compelling circumstance. See 8 CFR 1208.33(c). Such
principal applicants and their accompanying derivatives can then
proceed with their asylum claims consistent with general asylum
procedures. See INA 208(b)(3), 8 U.S.C. 1158(b)(3).
---------------------------------------------------------------------------
\297\ The family unity provision at 8 CFR 1208.33(c) is not
triggered by eligibility for deferral of removal under the CAT
because a noncitizen only eligible for that form of CAT must be
subject to a bar to CAT withholding, which would also bar the
noncitizen from asylum. See 8 CFR 1208.17(a) (providing that someone
who is eligible for CAT withholding but who is subject to the
mandatory bars to statutory withholding of removal at 8 CFR
1208.16(d)(2) and (3) shall be granted CAT deferral); 8 CFR
1208.16(d)(2) (providing that an application for CAT withholding
will be denied if the noncitizen is subject to a bar to statutory
withholding of removal under section 241(b)(3)(B) of the INA, 8
U.S.C. 1231(b)(3)(B)). Compare INA 241(b)(3)(B), 8 U.S.C.
1231(b)(3)(B) (providing mandatory bars to statutory withholding of
removal), with INA 208(b)(2), 8 U.S.C. 1158(b)(2) (providing
mandatory bars to asylum). Thus, such a noncitizen would never be
ineligible for asylum solely due to the rebuttable presumption.
---------------------------------------------------------------------------
Additionally, in light of commenters' concerns, the Departments
have expanded this provision to also cover principal applicants who
have a spouse or children who would be eligible to follow to join that
applicant as described in section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A). 8 CFR 1208.33(c). As commenters noted, excluding asylum
applicants who travel without their families may inadvertently
incentivize families to engage in irregular migration together so as
not to risk that the principal applicant would be prevented from later
applying for their family members to join them. This may involve making
a dangerous journey with vulnerable family members, such as children.
The expansion to the provision would apply only to migrants who are
subject to the presumption, who are ultimately found eligible for
statutory withholding of removal or CAT withholding, and who have
spouses or children who would be eligible to follow to join them in the
United States.
However, the Departments decline to modify the rule to
categorically exempt families from the rebuttable presumption of asylum
eligibility. Given the existing and expanded protections in the rule,
such a change is not necessary to ensure family unity. And the
Departments have determined that making such a change would
significantly diminish the effectiveness of the rule and incentivize
families to migrate irregularly. See 88 FR at 11708-09 (describing the
significant increase in families seeking asylum in the United States).
Further, the Departments do not want to create an incentive for adults
to present at the SWB with children fraudulently claiming to be a
family unit.\298\
---------------------------------------------------------------------------
\298\ See Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media (July 26, 2022),
https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of social
media groups and pages identified by migrants showed . . . dubious
offers of coyote or legal services, false claims about conditions
along the route, misinformation about points of entry at which
officials waive the rules, and baseless rumors about changes to
immigration law.''); ICE, Press Release, ICE HSI El Paso, USBP
Identify More than 200 `Fraudulent Families' in Last 6 Months (Oct.
17, 2019), https://www.ice.gov/news/releases/ice-hsi-el-paso-usbp-identify-more-200-fraudulent-families-last-6-months.
---------------------------------------------------------------------------
Overall, the Departments have designed the family unity provision
at 8 CFR 1208.33(c) and the other protections against family separation
to ensure that the rule does not cause the separation of families. With
regard to the family unity provision, the Departments believe that
requiring the lead asylum applicant to first establish eligibility for
protection under the higher standards of proof for statutory
withholding of removal or CAT withholding before qualifying for the
family unity provision serves as an incentive to choose a lawful
pathway. Choosing a lawful pathway would enable applicants to remain
eligible for asylum, which requires a lower burden of proof and
includes the ability to include derivatives on their application or
utilize follow-to-join procedures set forth in section 208(b)(3)(A) of
the INA, 8 U.S.C. 1158(b)(3)(A).
To the extent that commenters claim that some family members who
traveled together may have, but for the presumption, qualified for
asylum but not statutory withholding of removal, and therefore would
not qualify for the family unity exception if subject to the rebuttable
presumption of asylum ineligibility, the Departments reiterate that the
family unity provision in 8 CFR 1208.33(c) is but one protection for
family units included in this rule. For example, the rule includes
options for families to stay together if any member of a family
traveling together: uses an available lawful pathway (8 CFR
208.33(a)(2)(ii), 1208.33(a)(2)(ii)); establishes an exception from or
rebuts the presumption of ineligibility (8 CFR 208.33(a)(2) and (3),
1208.33(a)(2) and (3)); or, if they do not pursue a lawful pathway and
are unable to establish an exception from or rebut the presumption,
meets the higher standard required for statutory withholding of removal
or CAT withholding. Notably, exceptions from and rebuttals to the
presumption consider circumstances involving both the noncitizen and
members of the noncitizen's family with whom they are traveling, for
example, whether the noncitizen or a member of the noncitizen's family
faced an acute medical emergency at the time of entry. See 8 CFR
1208.33(a)(2) and (3), 208.33(a)(2) and (3). To reiterate, the rule
also includes options for family members who do not pursue a lawful
pathway and are unable to rebut the presumption to stay together or
reunite if a principal asylum applicant is eligible for statutory
withholding of removal or CAT withholding and would be granted asylum
but for the presumption, if either (1) an accompanying spouse or child
does not also independently qualify for asylum or other protection from
removal, or (2) if the principal asylum applicant has a spouse or child
who would be eligible to follow to join that applicant if granted
asylum. These protections together ensure that the rule does not lead
to the separation of families. The Departments strongly encourage
noncitizens, including asylum-seeking families, to choose lawful
pathways.
However, to the extent that some families may not use a lawful
pathway, and are unable to rebut the presumption, the Departments
believe that many noncitizens with approvable asylum claims would
present claims for statutory withholding of removal or CAT protection
on the same set of underlying facts, although the standards that apply
to asylum, statutory withholding of removal, and CAT protection each
differ from one another in some respects. See Regulations Concerning
the Convention Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999)
(``Additionally, use of the Form I-589 will obviate the need for two
separate forms that, in many cases, will elicit similar information. In
many cases in which the alien applies both for asylum and withholding
of removal under the Act and for withholding under the Convention
Against Torture, the underlying facts supporting these claims will be
the same.''); Yousif v. Lynch, 796 F.3d 622, 629 (6th Cir. 2015) (``An
asylum claim and a withholding claim require consideration of `the same
factors' and proof of the same underlying facts about an applicant's
probable persecution.'').
Separately, the Departments disagree with commenters that the
family unity provision would encourage family
[[Page 31427]]
migration or child smuggling. The strong incentives of the lawful
pathways described in the rule, coupled with the disincentive of the
rebuttable presumption of asylum ineligibility, are designed to
encourage noncitizens, including families, to pursue lawful pathways.
For example, after implementation of the Venezuelan parole process for
eligible Venezuelan nationals and their families, migratory flows with
respect to this group fell dramatically. See 88 FR at 11712, 11718.
Based on this trend and the implementation of other initial parole
processes implementations discussed in the NPRM, the Departments
believe that the rule will reduce irregular family migration as well as
child smuggling as part of an overall reduction in irregular migration.
To the extent that commenters raised concerns that the family unity
provision is inefficient in operation, the Departments believe that the
benefits from inclusion of the provision outweigh any potential
inefficiencies. The Departments also note that asylum, statutory
withholding of removal, and CAT withholding are forms of relief and
protection that generally rely on the same set of underlying facts. See
Yousif, 796 F.3d at 629. Therefore, IJs who determine that a noncitizen
is eligible for statutory withholding of removal or CAT withholding
will be able to apply the family unity provision and efficiently
consider whether to exercise their discretion to grant asylum on the
same facts. Additionally, in response to commenter concerns about
noncitizens facing harm while the family unity exception is being
adjudicated, the Departments note that this rule does not amend
existing follow-to-join procedures.
8. Adequacy of Withholding of Removal and CAT
Comment: Commenters stated that statutory withholding of removal
and CAT protection are insufficient alternative forms of protection for
individuals who would be ineligible for asylum pursuant to the proposed
rule, asserting that these forms of protection are more difficult to
obtain and provide fewer benefits than asylum.
For example, commenters stated that such forms of protection are
not sufficiently available to all those who require protection.
Specifically, commenters stated that statutory withholding of removal
and CAT protection require applicants to meet a higher burden of proof
than asylum, as they would need to demonstrate that it is ``more likely
than not'' that they would face persecution or torture. Commenters
stated that, because of this higher burden of proof, an applicant may
be otherwise eligible for asylum, but be removed because they are
unable to meet the burden for statutory withholding of removal or CAT
protection. As a result, commenters alleged that an individual may be
returned to a country where they would face persecution or death.
Commenters also stated that, even if an applicant were able to meet
the higher burden of proof for statutory withholding of removal or CAT
protection, the individual would not then be accorded the same benefits
as asylees. For example, commenters expressed concern regarding the
prohibition on international travel for recipients of statutory
withholding of removal and CAT protection. Commenters noted that,
unlike recipients of asylum, these individuals do not have access to
travel documents and are unable to travel abroad.
Commenters also noted that recipients of statutory withholding of
removal and CAT protection remain in a tenuous position because they
are not granted lawful status, or any path to citizenship, to remain in
the United States indefinitely. Commenters explained that recipients of
statutory withholding of removal or CAT protection remain permanently
subject to a removal order and may have their status terminated at any
time. Commenters stated that the constant prospect of deportation or
removal creates uncertainty for recipients of statutory withholding of
removal or CAT protection, which can lead to community instability in
the United States. Commenters stated that this uncertainty would
prevent such noncitizens from processing the trauma that predicated
their migration to the United States.
Similarly, commenters stated that recipients of statutory
withholding of removal or CAT protection may be limited from fully
participating in U.S. society. Commenters raised specific concerns
about statutory withholding and CAT protection recipients' lack of
access to public benefits, services, and healthcare. Commenters were
also concerned about such individuals' need to apply annually and pay
for work authorization and the impact that this requirement may have on
related benefits, such as the ability to obtain a driver's license.
Commenters also claimed that granting statutory withholding of
removal or CAT protection instead of asylum under the proposed rule
would fail to ensure family unity. Commenters alleged that individuals
who are granted statutory withholding of removal or CAT protection
would be unable to reunite with family in the United States because
these forms of relief do not allow the recipient to petition for
derivative beneficiaries. Due to this, commenters stated that the
proposed rule would institute another policy of family separation that
permanently separates noncitizens from their family members. Commenters
also stated that family members applying for statutory withholding of
removal are not able to request that their cases be consolidated and
adjudicated together like asylum applicants can and stated that moving
separately through the legal system makes them more likely to have
uneven results for different family members, which may result in some
members being ordered removed while others remain protected in the
United States. Some commenters stated that they have experience with
clients who have been permanently separated from family members,
including young children, because they were granted statutory
withholding of removal or CAT protection instead of asylum.
Commenters further raised concerns about the effect the proposed
rule would have on availability of bond to those subject to the
presumption of asylum ineligibility. Commenters asserted that
adjudicators are less likely to grant bond to those who are eligible
only for statutory withholding of removal or CAT protection as overly
high flight risks due to the comparatively higher standards of proof.
Commenters also expressed confusion over whether, under the proposed
rule, individuals subject to the presumption of ineligibility will be
treated as having entered without inspection, leaving them eligible for
bond, or as arriving aliens, leaving them ineligible for bond.
Response: As described in the NPRM, the purpose of this rule is to
discourage irregular migration by encouraging migrants, including those
who may seek asylum, to use lawful, safe, and orderly pathways to the
United States. See generally 88 FR at 11706-07. To do so, the rule
includes a number of exceptions to the rebuttable presumption of
ineligibility for asylum for prospective asylum applicants outside the
United States, including whether they or a member of their family with
whom they traveled (1) sought asylum or other protection in third
countries through which they first transit, to avoid the need to
continue an often-perilous journey to the United States in pursuit of
protection unless absolutely necessary; (2) obtained appropriate
authorization to travel to the United States to seek parole pursuant to
a DHS-approved parole
[[Page 31428]]
process; or (3) presented at a POE pursuant to a pre-scheduled date and
time or presented at the POE without an appointment but established
that it was not possible to access or use the DHS scheduling system for
a specified reason. See 8 CFR 208.33(a)(2), 1208.33(a)(2). In other
words, this rule provides numerous ways in which noncitizens covered by
this rule may pursue asylum. And to the extent that a noncitizen may
not be able to pursue a lawful pathway due to exceptionally compelling
circumstances, they may be able to rebut the presumption. See 8 CFR
208.33(a)(3), 1208.33(a)(3).
With respect to noncitizens, or family members with whom they
traveled, who do not avail themselves of a lawful pathway or otherwise
rebut the presumption, the Departments recognize that the standards for
eligibility for statutory withholding of removal and CAT protection are
each higher than that for asylum, as they require demonstrating it is
more likely than not that noncitizens will be persecuted or tortured in
another country, whereas asylum requires a lesser well-founded
fear.\299\ See 64 FR at 8485. Indeed, that difference in standards
aligns with several objectives of this rule: to encourage noncitizens
to avail themselves of the lawful pathways described above, where
possible, as well as to discourage irregular migration, promote orderly
processing at POEs, and ensure that protection from removal is still
available for those who satisfy the applicable standards for mandatory
protection under statutory withholding of removal or the regulations
implementing CAT. See, e.g., 88 FR at 11729 (``The Departments assess
that the Government can reduce and redirect such migratory flows by
coupling an incentive for migrants to pursue lawful pathways with a
substantial disincentive for migrants to cross the land border
unlawfully.''). The higher ultimate standards of proof for statutory
withholding of removal and CAT protection therefore serve as a
disincentive for noncitizens to forgo the lawful pathways detailed in
this rule, as noncitizens would risk having to satisfy those
comparatively higher standards in the first instance if the presumption
applied to their case and were unrebutted.\300\
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\299\ As a general matter, the Departments note that this rule
does not change any of the long-time standards relating to statutory
withholding of removal and CAT protection outside of the initial
credible fear screening stage.
\300\ In response to commenters, the Departments note that they
cannot quantify how many noncitizens subject to the asylum
ineligibility presumption can qualify for statutory withholding of
removal or CAT protection, as those are case-by-case, fact-specific
determinations.
---------------------------------------------------------------------------
Similarly, the Departments recognize the comparatively fewer
benefits of statutory withholding of removal and CAT protection as
compared to asylum, including the following: (1) no permanent right to
remain in the United States; (2) the inability to adjust status to
become a lawful permanent resident and, relatedly, later naturalize as
a U.S. citizen; (3) the inability to travel abroad; and (4) the need to
affirmatively apply for, and annually renew, work authorization
documents.\301\ However, as explained above, the Departments
promulgated this rule with the intention to encourage noncitizens to
utilize a lawful pathway rather than a pathway that may limit them to
statutory withholding of removal or CAT protection and their more
limited benefits. The Departments also note the lack of derivative
protection for statutory withholding of removal and CAT protection
recipients.\302\ Compare INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A)
(providing for derivative asylum status for spouses and children), with
INA 241(b)(3), 8 U.S.C. 1231(b)(3) (no derivative status for spouses
and children under statutory withholding of removal), and 8 CFR
1208.16(c)(2) (no derivative status for spouses and children under the
CAT).\303\ The Departments are cognizant of these limitations and
acknowledge the importance of family unity. See, e.g., E.O. 14011,
Establishment of Interagency Task Force on the Reunification of
Families, 86 FR 8273 (Feb. 5, 2021) (``It is the policy of my
Administration to respect and value the integrity of families seeking
to enter the United States.''). To that end, as discussed in further
detail at Section IV.E.7.ii in this preamble, this rule contains
numerous measures to avoid the separation of family members, including
applying any exceptions or rebuttals to the presumption to the entire
family unit traveling together, as well as a ``family unity'' provision
applicable in removal proceedings to ensure that the rule does not
result in family separations when granting relief in the United States.
See 8 CFR 1208.33(c) (``Family unity and removal proceedings.'').
---------------------------------------------------------------------------
\301\ See, e.g., American Immigration Council, The Difference
Between Asylum and Withholding of Removal at 2 (Oct. 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf; 8 CFR
274a.12(a) (explaining need for withholding recipients to
affirmatively apply for work authorization).
\302\ The Departments note that, although there is no derivative
protection under statutory withholding of removal or CAT, certain
U.S.-based qualifying parents or legal guardians, including those
granted withholding of removal, may petition for qualifying children
and eligible family members to be considered for refugee status and
possible resettlement in the United States. See USCIS, Central
American Minors (CAM) Refugee and Parole Program, https://www.uscis.gov/CAM (last visited Apr. 5, 2023).
\303\ The Departments note that applicants will not be prevented
from petitioning for family members because of this rule. Under the
expanded family unity provision at 8 CFR 1208.33(c), any applicant
who is found eligible for statutory withholding of removal or CAT
withholding and who would be granted asylum but for the presumption
will be deemed to have rebutted the presumption if they have a
spouse or child who would be eligible to follow to join them, as
described in section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), and may pursue follow-to-join procedures if granted
asylum.
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Separately, because this rule does not impact procedures for bond
eligibility or consideration, commenter concerns with respect to these
issues are outside of the scope of this rulemaking. Nevertheless, the
Departments note that bond determinations will continue to be made on a
case-by-case basis in accordance with the governing statutes and
regulations. Similarly, this rulemaking does not impact determinations
of whether to consolidate cases, although the Departments note that
consolidation of cases is not limited to those who are pursuing or are
eligible for asylum, and that such determinations are made at the IJ's
discretion. See ICPM, Chapter 4.21(a) and (b) (Nov. 14, 2022) (``The
immigration court may consolidate cases at its discretion or upon
motion of one or both of the parties, where appropriate. For example,
the immigration court may grant consolidation when spouses or siblings
have separate but overlapping circumstances or claims for relief.'').
9. Removal of Provisions Implementing the TCT Bar Final Rule
i. Support for Removal of Provisions Implementing the TCT Bar Final
Rule
Comment: The Departments received several comments expressing
opposition to the TCT Bar Final Rule and supporting removal of
regulatory provisions implementing that rule. Some commenters expressed
opposition to the TCT Bar Final Rule without explanation, while others
asserted that the TCT Bar Final Rule conflicts with the INA and that
the Departments lacked authority to promulgate the TCT Bar Final Rule.
Commenters also objected to the TCT Bar as inconsistent with
fundamental protections of refugee law, including the right to seek
asylum, the principle of non-refoulement, and the prohibition against
penalties for irregular entry. Commenters supporting the removal of
provisions implementing
[[Page 31429]]
that rule also faulted the Departments for not including proposed
regulatory text removing the TCT Bar from the CFR. Many commenters who
urged the Departments to withdraw the proposed rule did so while
requesting that the Departments rescind the TCT Bar Final Rule.
Commenters suggested that the TCT Bar Final Rule is inconsistent
with the INA because it conflicts with the safe-third-country exception
to applying for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C.
1158(a)(2)(A), and noted that courts have enjoined the rule, finding it
inconsistent with the INA. Commenters further noted that the court in
East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 945 (N.D.
Cal. 2019), concluded that ``Congress requires reasonable assurances
that any so-called `safe' third country is actually safe, in line with
the long-held understanding that categorical bars on asylum must be
limited to people who have somewhere else to turn.''
Commenters also objected to the TCT Bar as inconsistent with
fundamental protections of refugee law, including the right to seek
asylum, the principle of non-refoulement, and the prohibition against
penalties for irregular entry. Commenters agreed with removal of
provisions implementing that rule and expressed concern that the TCT
Bar Final Rule imposes a sweeping, categorical ban on asylum.
Commenters further raised concerns that, while in effect, the TCT Bar
disproportionately impacted people of color and Black and brown
migrants. At least one commenter claimed that the TCT Bar Final Rule
discourages noncitizens from reporting crimes. Many commenters
expressed concern over the TCT Bar Final Rule's effect on children,
both accompanied and unaccompanied, and some commenters stated that the
TCT Bar Final Rule does not adequately explain why the Departments
omitted an exemption for UCs.
Response: The Departments acknowledge these commenters' support.
Although the Departments did not include proposed regulatory text in
the NPRM, the Departments have included amendatory text in this final
rule, which will result in the TCT Bar's removal from 8 CFR 208 and
1208.
Since the TCT Bar Final Rule was promulgated and then enjoined, the
Departments have reconsidered its approach and have determined that
they prefer the tailored approach of the rebuttable presumption enacted
by this rule to the categorical bar that the TCT Bar IFR and Final Rule
adopted. Even if the rebuttable presumption had not been adopted, the
Departments would seek to remove provisions implementing the TCT Bar
Final Rule as the Departments no longer agree with the approach taken
in that rule. Additionally, in order to use the TCT Bar Final Rule, the
Departments would have to continue litigating various appeals defending
the policy, which the Departments now disagree with. Thus, the
Departments consider the removal of provisions implementing that rule
to be severable from the provisions of 8 CFR 208.13(f), 208.33,
1208.13(f), and 1208.33.
As discussed in Section IV.D.2 of this preamble, the TCT Bar IFR
and Final Rule were enacted to address circumstances along the SWB. In
the TCT Bar IFR, the Departments stated that increases in the number of
noncitizens encountered along or near the SWB corresponds with an
increase in the number of noncitizens claiming fear of persecution or
torture, and that the processing of credible fear and asylum
applications in turn ``consumes an inordinate amount of the limited
resources of the Departments.'' 84 FR at 33831. The Departments also
stated that the increase in credible fear claims has been complicated
by a demographic shift in the noncitizen population crossing the
southwest border from Mexican single adult males to predominantly
Central American family units and UCs. See id. at 33838. The
Departments explained that while Mexican single adults who are not
eligible to remain in the United States can be immediately repatriated
to Mexico, often without requiring detention or lengthy court
proceedings, it is more difficult to expeditiously repatriate family
units and UCs who are not from Mexico or Canada. See id. The
Departments also explained that, over the past decade, the overall
percentage of noncitizens subject to expedited removal who, as part of
the initial screening process, were referred for a credible fear
interview on claims of a fear of return has jumped from approximately 5
percent to more than 40 percent, and that the number of cases referred
to DOJ for proceedings before an IJ also rose sharply, more than
tripling between 2013 and 2018. See id. at 33831. In the TCT Bar IFR,
the Departments further stated that the growing number of noncitizens
seeking protection in the United States and changing demographics
created an untenable strain on agency resources. See id. at 33838-39.
The TCT Bar IFR stated that in FY 2018, USCIS received 99,035 credible
fear claims, a 175 percent increase from five years earlier and an
1,883 percent increase from ten years earlier. See id. at 33838. In an
attempt to address these increases in fear claims, the TCT Bar IFR
reduced the availability of asylum to non-Mexicans entering or
attempting to enter at the SWB by requiring most asylum seekers who
transited through a third country to first seek protection in that
transit country, subject to limited exceptions, and without recognizing
other avenues for allowing migrants to access the U.S. asylum system.
In response to the TCT Bar IFR, the Departments received 1,847
comments. The commenters who expressed support for that rule indicated
that it was an appropriate tool for processing noncitizens arriving at
the SWB and would help close ``loopholes'' they asserted exist in the
asylum process. See TCT Bar Final Rule, 85 FR at 82262. Those who
expressed opposition to that rule raised concerns that the rule (1) was
in conflict with the INA and U.S. obligations under international law;
(2) imposed a sweeping and categorical ban on asylum; and (3)
effectively denied asylum seekers the right to be meaningfully heard
with respect to their asylum claims. See id. at 82263, 82270, 82275.
The Departments subsequently issued the TCT Bar Final Rule to
address the comments received on the TCT Bar IFR. See id. at 82260. In
the TCT Bar Final Rule, the Departments affirmed that they promulgated
the IFR based on several policy objectives, including the following:
(1) directing prompt relief to noncitizens who are unable to obtain
protection from persecution elsewhere and noncitizens who are victims
of a severe form of trafficking in persons; (2) the need to reduce the
incentive for noncitizens with ``meritless or non-urgent asylum
claims'' to seek entry to the United States; (3) relieving stress on
immigration enforcement and adjudicatory authorities; (4) curtailing
human smuggling; (5) strengthening the negotiating power of the United
States regarding migration issues, including the flow of noncitizens
into the United States; and (6) addressing humanitarian and security
concerns along the SWB. See id. at 82285.
As also discussed in Section IV.D.2 of this preamble, a Federal
district court vacated the TCT Bar IFR on June 30, 2020, in Capital
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C.
2020). Additionally, in parallel litigation, on July 6, 2020, the Ninth
Circuit Court of Appeals upheld an order enjoining the IFR. See E. Bay
Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020). After the TCT
Bar Final Rule was issued, in February 2021, the U.S. District Court
for the
[[Page 31430]]
Northern District of California also enjoined the Departments from
implementing the TCT Bar Final Rule in its entirety. See East Bay II,
519 F. Supp. 3d at 668 (``Defendants are hereby ordered and enjoined .
. . from taking any action continuing to implement the Final Rule and
ordered to return to the pre-Final Rule practices for processing asylum
applications.''). Thus, the TCT Bar Final Rule is not in effect. As
discussed in Section IV.D.2 of this preamble, the injunction rested on
a finding that the final rule is inconsistent with both the safe-third-
country and firm-resettlement provisions of section 208 of the INA. See
id. at 667-68; INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A); INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The court also stated
that the TCT Bar Final Rule exacerbated the risk that asylum seekers
and migrants would suffer violence and deprived asylum seekers of
procedural safeguards meant to protect them from arbitrary denials of
their asylum claims. See East Bay II, 519 F. Supp. 3d at 664.
The Departments have removed regulatory text implementing the TCT
Bar Final Rule from the CFR because the Departments no longer support
the TCT Bar Final Rule as a means of addressing capacity and other
issues at the SWB. Throughout the NPRM and this rule, the Departments
have explained that, absent this rule, the lifting of the Title 42
public health Order is expected to lead to a surge of migration at the
SWB. At the same time, the Departments recognize the opportunity
afforded to migrants via the provided lawful pathways, as well as the
unique vulnerabilities of asylum applicants, the high stakes involved
in the adjudication of applications for asylum, and the fundamental
importance of ensuring that noncitizens with a fear of return have
access to the U.S. asylum system, subject to certain exceptions. See,
e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (explaining that
removing a noncitizen to their home country ``is all the more replete
with danger when the [noncitizen] makes a claim that [the noncitizen]
will be subject to death or persecution if forced to return. . . .'');
Quintero, 998 F.3d at 632 (``[N]eedless to say, these cases per se
implicate extremely weighty interests in life and liberty, as they
involve [noncitizens] seeking protection from persecution, torture, or
even death.''); 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.''). These concerns are echoed in
E.O. 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. See, e.g., E.O. 14010, 86 FR at 8267 (Feb.
5, 2021) (``Securing our borders does not require us to ignore the
humanity of those who seek to cross them.''). Accordingly, the
Departments believe that when evaluating changes to the asylum system,
as well as processing at the POEs, the potential adverse impacts to
legitimate asylum seekers should be carefully considered, as they have
been in this rule. The Departments believe that this rule is better
suited to address current circumstances than the TCT Bar Final Rule's
categorical ban on asylum for nearly anyone who traveled through a
third country without applying for asylum in that third country.
The Departments recognize that the TCT Bar was in effect for nine
months, and although multiple factors influence migration trends over
time, the Departments' review does not indicate that the bar had a
dramatic effect on the number of noncitizens seeking to cross the SWB
between POEs.\304\ Given the success of the CHNV parole processes,
which paired lawful pathways with consequences for not pursuing such
pathways, in decreasing encounters, the Departments believe that the
TCT Bar's lack of such alternative pathways may have contributed to its
failure to dramatically decrease encounters between POEs. This informs
the Departments' reasoning for adopting the more tailored approach in
this rule--that is, pairing safe, orderly, and lawful pathways for
entering the United States with negative consequences for forgoing
those pathways, along with exceptions and means of rebutting the
presumption against asylum eligibility where certain circumstances are
present. Additionally, the fact that the TCT Bar has not been in effect
for approximately three years undermines any assertion of reliance
interests on the bar.
---------------------------------------------------------------------------
\304\ The Departments note that apprehensions along the SWB did
not dramatically decrease while the TCT Bar IFR was in effect
between September 11, 2019, and June 30, 2020. See CBP, Southwest
Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019 (last visited Mar. 22, 2023); CBP,
Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited Mar. 22, 2023).
Encounters along the SWB increased dramatically starting in January
2019 until early May 2019, when they began to fall significantly.
CBP, Southwest Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019 (last visited Mar. 22,
2023). The TCT Bar IFR, although issued on July 16, 2019, did not go
into full effect until September 11, 2019, after encounters had
already dropped from a high of 144,116 in May to 52,546 in
September. Id. Encounters continued to trend downward more slowly
from October 2019 to March 2020 when concerns over COVID-19 led to
the suspension of MPP and the Title 42 public health Order and a
steep decline of encounters to a low in April 2020. CBP, Southwest
Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited Mar. 22, 2023).
Thereafter, encounters increased steadily for the rest of the FY
with no noticeable change after the TCT Bar IFR was enjoined and
stopped being applied on June 30, 2020. Given this data, the
Departments have no reason to believe that the TCT Bar IFR had any
noticeable impact on encounters along the SWB while it was in
effect.
---------------------------------------------------------------------------
ii. Opposition To Removal of Provisions Implementing the TCT Bar Final
Rule
Comment: Some commenters expressed general opposition to the
removal of provisions implementing the TCT Bar Final Rule. Commenters
stated that ``the concepts of limiting eligibility for asylum based on
means of entry and criteria surrounding that entry are appropriate
methods of controlling migrant flows at the southwest border'' and that
the TCT Bar achieved this without including ``myriad of exceptions to
effectively render it meaningless.'' Some commenters maintained the TCT
Bar Final Rule was legally permissible and politically warranted based
on factual conditions at the SWB. Commenters similarly urged the
Departments to adopt on a permanent basis an amended version of the
rule that would mirror the TCT Bar Final Rule's provisions, stating
that this would better serve the NPRM's stated goal of ``distribut[ing]
the asylum burden to countries that are able to provide protection
against persecution within the Western Hemisphere.'' Commenters averred
that this would limit asylum eligibility to those with the greatest
need for protection and that the ``maintenance of effective deterrence
policies is essential to stemming the flow of illegal immigration into
the United States.''
Response: The Departments note these commenters' general opposition
to rescinding the TCT Bar and their support for enforcing the Nation's
immigration laws. The Departments believe that this rule results in the
right incentives to avoid a significant further surge in irregular
migration after the Title 42 public health Order is lifted, and that
the approach taken in this rule is substantially more likely to succeed
than the approach taken in the TCT Bar Final Rule. Specifically, the
successful implementation of the CHNV parole processes has demonstrated
that an increase in lawful pathways, when paired with consequences for
migrants who do not avail themselves of such
[[Page 31431]]
pathways, can positively affect migrant behavior and undermine
transnational criminal organizations, such as smuggling operations.
This rule, which is fully consistent with domestic and international
legal obligations, provides the necessary consequences to maintain this
incentive under Title 8 authorities. In short, the rule aims to
disincentivize irregular migration and instead incentivize migrants to
take safe, orderly, and lawful pathways to the United States or to seek
protection in a third country.
As compared to the TCT Bar Final Rule, this rule has been more
carefully tailored to mitigate the potential for negative impact of the
rule on migrants to the extent feasible while also recognizing the
reality of unprecedented migratory flows, the systemic costs that those
flows impose on the immigration system, and the ways in which
increasingly sophisticated smuggling networks cruelly exploit the
system for financial gain. The Departments remain committed to ensuring
that those who apply for asylum or seek protection who most urgently
need protection from persecution are able to have their claims
adjudicated in a fair, impartial, and timely manner and believe that
this rule, including the removal of provisions implementing the TCT Bar
Final Rule, will be a more effective and efficient means of doing so.
Comment: Commenters averred that the rule would be too lenient in
comparison to the TCT Bar Final Rule and would lead to ``open
borders.'' They claimed that the presumption of asylum ineligibility is
not sufficiently stringent and therefore would be far less effective at
disincentivizing unlawful migration.
Response: The Departments believe that the rule strikes the right
balance in terms of incentivizing the use of lawful, safe, and orderly
pathways to enter the United States while imposing negative
consequences on a failure to do so. As has been shown with the CHNV
parole processes, pairing such policies together can lead to meaningful
decreases in the flow of irregular migration to the SWB.
10. Declining to Permanently Adopt the Proclamation Bar IFR
In addition to the 51,952 comments on this NPRM, the Departments
received a total of 3,032 comments on the Proclamation Bar IFR and
posted 3,000 of those comments. Of the 32 comments not posted, 30 were
commenters' duplicates, one was untimely and did not address
substantive or novel issues not already covered by other timely
comments, and one was an internal test comment. Most of the comments
came from one of three mass-mail campaigns, containing the same or
closely related variations of the same standard language. While 18
comments supported the IFR specifically or the prior Administration's
efforts generally, the vast majority of the comments opposed the IFR.
Below, the Departments address these comments in addition to the
comments relating to removal of provisions implementing the
Proclamation Bar IFR received in response to the NPRM.
i. Support for Not Permanently Adopting the Proclamation Bar
Comment: Many commenters expressed general opposition to the
Proclamation Bar IFR or support for removing provisions implementing
that rule without providing any reasoning. Some commenters simply
stated that their comments ``express [their] strong opposition to the
new Interim Final Rule.'' Some commenters, in stating their general
opposition to the Proclamation Bar IFR, also made unrelated, general
criticisms regarding the prior administration's immigration policies.
Commenters supporting the removal of provisions implementing the
Proclamation Bar IFR also faulted the Departments for not including
proposed regulatory text removing that rule from the CFR. Many
commenters who urged the Departments to withdraw the proposed rule did
so while requesting that the Departments rescind the Proclamation Bar
IFR.
Commenters expressed concern that the Proclamation Bar IFR violates
multiple laws. Specifically, commenters stated that the Proclamation
Bar IFR violates multiple sections of the Act: INA 208(a), 8 U.S.C.
1158(a) (eligibility to apply for asylum); INA 235(b)(1), 8 U.S.C.
1225(b)(1) (inspection of noncitizens arriving in the United States and
certain other noncitizens who have not been admitted or paroled); INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C) (additional limitations on
granting asylum); INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C) (previous
asylum exception to authority to apply for asylum); INA 208(b)(3)(C), 8
U.S.C. 1158(b)(3)(C) (codifying the TVPRA). Some commenters asserted
that only Congress may act to amend the law and that the prior
administration circumvented the legislative process by issuing the
Proclamation Bar IFR. Commenters also argued that the Proclamation Bar
IFR violates 5 U.S.C. 706(2)(A) in that it was promulgated in a manner
inconsistent with the APA, and that it violates multiple provisions of
the U.S. Constitution. In particular, commenters argued that the
Proclamation Bar IFR violates due process rights, equal protection, and
separation of powers; exceeds Executive authority; was promulgated with
discriminatory intent; is similar to deterrence-focused policies that
have been held unconstitutional; and is unlawful on the basis that the
appointment of the then-Acting Attorney General violated the
Appointments Clause. Commenters contended that the Proclamation Bar IFR
also violates the APA by being arbitrary and capricious, in that it
conditions asylum on a factor unrelated to persecution. Numerous
commenters claimed that the Proclamation Bar IFR violates the APA's
notice-and-comment requirements and that the good cause and foreign
affairs exceptions do not apply. One commenter claimed that the
Proclamation Bar IFR would, in fact, have federalism impacts, contrary
to the Departments' federalism impact assessment, and some commenters
disagreed with the Departments' position that it is not subject to the
Congressional Review Act because its effect is less than $100 million.
Commenters also expressed concern that the Proclamation Bar IFR
violates international law, customary international law, and the
Refugee Act.
Commenters noted that the court in East Bay III held that the
Proclamation Bar directly conflicts with section 208(a) of the INA, 8
U.S.C. 1158(a), because ``[i]t is effectively a categorical ban on
migrants who use a method of entry explicitly authorized by Congress.''
Commenters further noted the Ninth Circuit's holding in East Bay III
that the fact ``[t]hat a refugee crosses a land border instead of a
port-of-entry says little about the ultimate merits of her asylum
application.'' They further cited East Bay I as holding that there is
``no basis to support `categorically disbelieving' non-citizens, or
declaring them `not credible,' simply because of their manner of
entry'' when applying the ``reasonable possibility'' standard to those
who are determined ineligible for asylum.
Commenters voiced numerous policy concerns about the Proclamation
Bar IFR. Specifically, commenters criticized the Proclamation Bar IFR
as they believe that it relies on insufficient data or improperly
interpreted data; exacerbates trauma by forcing migrants to remain
indefinitely outside of the U.S. border in inhumane conditions;
punishes those who lack the means to access designated POEs and the
luxury to choose how and when they enter the United States; potentially
increases risk of harm to children by narrowing safe options;
forecloses legitimate asylum claims by
[[Page 31432]]
imposing an initial higher standard of proof on individuals who enter
between POEs; fails to address the root causes of migration, for which
some commenters believe the United States is at least in part
responsible; violates religious and moral obligations; and is a
``shameful abdication of the United States' obligation to serve as a
haven for those individuals who meet the internationally agreed upon
definition of a refugee.'' Further, commenters stated that, contrary to
its purpose, the Proclamation Bar IFR would not encourage admission at
POEs due to safety and procedural concerns at the SWB and would impede
state and local services and non-governmental organizations by
undermining policies and programs, imposing substantial additional
costs, and discouraging engagement. Commenters also voiced concern that
the Proclamation Bar IFR would harm U.S. diplomatic efforts and
undermine the United States' international credibility by inflaming
tensions and hindering diplomatic relations with Mexico and other
nations, as well as encouraging other nations to abandon their
humanitarian protection practices. Commenters expressed their belief
that the Proclamation Bar IFR is cruel, unnecessary, and overly harsh
and was issued ``under the guise of streamlining the asylum process''
but was actually intended to intimidate asylum seekers from entering
the United States ``out of fear that their presence in the United
States guarantees inadmissibility.'' Additionally, commenters indicated
that statutory withholding of removal and CAT protection are
insufficient forms of relief.
Response: The Departments appreciate the commenters' submissions
and agree that removal of provisions implementing the Proclamation Bar
IFR is sound policy and accords with this Administration's priorities.
Although the Departments did not include proposed regulatory text in
the NPRM, the Departments have included amendatory text in this final
rule, which will result in the Proclamation Bar's removal from 8 CFR
208 and 1208.
Since the Proclamation Bar IFR was promulgated, the Departments
have reconsidered their approach and have determined that they prefer
the tailored approach of the rebuttable presumption enacted by this
rule to the categorical bar that the Proclamation Bar IFR adopted. Even
if the rebuttable presumption were not paired with the decision not to
adopt the Proclamation Bar permanently, the Departments would decline
to permanently adopt the Proclamation Bar IFR and would remove the
bar's language from the regulatory text as the Departments no longer
view it as their preferred policy choice and are not inclined to
continue defending the Proclamation Bar IFR in court in order to be
able to implement it at some indeterminate point in the future. Thus,
the Departments consider the decision not to adopt the Proclamation Bar
on a permanent basis and to remove the bar's language from the CFR to
be severable from the provisions of 8 CFR 208.13(f), 208.33,
1208.13(f), and 1208.33.
The Proclamation Bar IFR was promulgated to address circumstances
along the SWB. In the Proclamation Bar IFR, the Departments stated that
``[i]n recent weeks, United States officials have each day encountered
an average of approximately 2,000 inadmissible aliens at the southern
border.'' 83 FR at 55935. They further noted ``large caravans'' of
noncitizens, primarily from Central America, attempting to make their
way to the United States, ``with the apparent intent of seeking asylum
after entering the United States unlawfully or without proper
documentation.'' Id. The Departments noted that nationals of Central
American countries were more likely to enter between POEs rather than
present at a POE. Id. The Departments enacted the Proclamation Bar IFR
to ``channel inadmissible aliens to ports of entry, where such aliens
could seek to enter and would be processed in an orderly and controlled
manner.'' Id. The Departments also stated that the Proclamation Bar IFR
would ``facilitate the likelihood of success in future negotiations''
with Mexico. Id. at 55951.
Rather than barring entry on its own, the Proclamation Bar IFR only
barred entry between POEs when a presidential proclamation or other
presidential order under section 212(f) or 215(a)(1) of the INA, 8
U.S.C. 1182(f) or 1185(a)(1), suspended entry along the SWB. 83 FR at
55952-53. Any exceptions to the operation of the bar would be set out
in the presidential proclamation or order and were not within the
Departments' control. Id. at 5934 (``It would not apply to a
proclamation that specifically includes an exception for aliens
applying for asylum, nor would it apply to aliens subject to a waiver
or exception provided by the proclamation.'').
The Proclamation Bar IFR was preliminarily enjoined soon after it
became effective and was eventually vacated. See generally O.A. v.
Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (recounting the history of the
litigation over the Proclamation Bar IFR and vacating it). The
Departments appealed the vacatur, and that case has been stayed since
February 24, 2021, to allow for rulemaking by the agencies. O.A. v.
Biden, No. 19-5272 (DC Cir. filed Oct. 11, 2019).
As stated in the NPRM, the Departments have reconsidered the
Proclamation Bar IFR and decline to adopt it permanently. See 88 FR at
11728. As an initial matter, the Proclamation Bar IFR conflicts with
the tailored approach taken in this rule because, in combination with
the proclamation the President issued, the Proclamation Bar IFR barred
from asylum all individuals who entered the United States along the SWB
unless they presented themselves at a POE. See 83 FR at 55935 (``The
interim rule, if applied to a proclamation suspending the entry of
aliens who cross the southern border unlawfully, would bar such aliens
from eligibility for asylum and thereby channel inadmissible aliens to
ports of entry, where such aliens could seek to enter and would be
processed in an orderly and controlled manner.''). The Departments do
not believe barring all noncitizens who enter between POEs along the
SWB is the proper approach in the current circumstances and have
instead decided to pair safe, orderly, and lawful pathways for entry
into the United States with negative consequences for not taking those
pathways, with exceptions and means of rebutting the presumption
against asylum eligibility.
Even if the rule's rebuttable presumption were not finalized and
given effect, the Departments would nevertheless remove provisions
implementing the Proclamation Bar IFR. The bar's categorical nature did
not allow for case-by-case judgments to determine whether it should
apply, which the Departments consider important to ensure that such
bars are applied fairly. The Departments believe that this
consideration further supports removing the regulatory language
implementing the Proclamation Bar IFR. Finally, U.S. negotiations with
Mexico have changed, and the Departments no longer believe that the
Proclamation Bar IFR is necessary for those negotiations.
ii. Opposition to Not Adopting the Proclamation Bar IFR Permanently
Comment: Some commenters expressed general support for the
Proclamation Bar IFR. Commenters stated that the prior Administration
had not done enough to deter irregular migration, resulting in the
undermining of compliance with U.S. laws, the rule of law, and national
security and safety.
Response: The Departments acknowledge commenters' concerns
regarding national security and safety
[[Page 31433]]
and note the commenters' support for the Proclamation bar IFR.
Nevertheless, the Departments, after due consideration, believe this
rule to be more appropriate as a matter of policy and law. This rule
serves to encourage the safe and orderly processing of migrants at the
SWB and is consistent with the United States' legal obligations under
the INA, international treaties, and all relevant legal sources.
Because these particular comments failed to articulate specific
reasoning underlying expressions of general support for the
Proclamation Bar IFR, the Departments are unable to provide a more
detailed response.
F. Statutory and Regulatory Requirements
1. Administrative Procedure Act
i. Length of Comment Period
Comment: Commenters raised concerns that this rule violated the
APA's requirements, as set forth in 5 U.S.C. 553(b) through (d).
Commentors stated that the 30-day comment period was not sufficient,
arguing that the Departments should extend the comment period to at
least 60 days or should reissue the rule with a new 60-day comment
period. Numerous commenters requested additional time to comment,
citing the complex nature of the NPRM, its length, and the impact of
the rule on asylum-seekers and commenters. Other commenters, such as
legal services organizations, noted that they have a busy workload and
that 30 days was not a sufficient period to prepare the fulsome comment
they would have prepared had the comment period provided more time. For
example, a legal services organization indicated that it would have
provided additional information about asylum seekers the organization
has assisted in the past and data about the population the organization
serves but that it did not have time to do so. Other organizations
stated they also would have included information on issues such as
their clients' experiences with the CBP One app and experiences in
third countries en route to the United States and would have consulted
with experts. Another organization stated that it had to choose between
providing comments on the rule and helping migrants prepare for the
rule's implementation, and another organization stated that it was
unable to provide fulsome comments because the comment period coincided
with the implementation of the CBP One app as a means by which its
clients could seek exceptions to the Title 42 public health Order.
Commenters argued that the Departments selected a 30-day comment period
to reduce the volume of negative comments that will be filed in order
to justify disregarding national sentiment against the rule.
Commenters asserted that the 30-day comment period is ``risking
that public comments will not be seriously considered before the rule
is implemented,'' and additional time is needed to meet APA
requirements that agencies provide the public with a ``meaningful
opportunity'' to comment. These comments referenced Executive Orders
12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993) and
13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 18,
2011), which recommend a comment period of not less than 60 days ``in
most cases,'' and case law, such as Prometheus Radio Project v. FCC,
652 F.3d 431 (3d. Cir. 2011), and Centro Legal de la Raza v. EOIR, 524
F. Supp. 3d 919 (N.D. Cal. 2021).
Commenters disagreed with the Departments' reliance on the
impending termination of the Title 42 public health Order in May 2023
and the expected potential surge in migration that would result as
justification for the 30-day comment period. These commenters
emphasized that the Administration itself sought to formally end the
Title 42 public health Order nearly a year ago and stated that the
Departments have had sufficient time to prepare for the policy's end.
For example, commenters cited to the December 13, 2022, statement
issued by Secretary Mayorkas regarding the planning for the end of the
Title 42 public health Order.\305\
---------------------------------------------------------------------------
\305\ DHS, Statement by Secretary Mayorkas on Planning for End
of Title 42 (Dec. 13, 2022), https://www.dhs.gov/news/2022/12/13/
statement-secretary-mayorkas-planning-end-title-
42#:~:text=%E2%80%9CNonetheless%2C%20we%20know%20that%20smugglers,Uni
ted%20States%20will%20be%20removed.
---------------------------------------------------------------------------
Some commenters requested extension of the comment period due to
reported technical difficulties with submitting comments and stated
that technical problems had effectively shortened the comment period to
less than 30 days or reduced the public's ability to fully participate
in the rulemaking process. For example, one commenter stated that they
had learned that there was a technical outage or other error in the
application programming interface (``API'') technology used to allow
third-party organizations to submit comments through regulations.gov.
This commenter expressed a belief that an unknown number of comments
had been ``discarded'' without the commenters' knowledge. Another
commenter referenced an individual who had technical errors when trying
to submit a comment online.\306\ This commenter also noted that there
was an alert banner on regulations.gov at 9:30 a.m. eastern time on
March 27, 2023, that stated ``Regulations.gov is experiencing delays in
website loading. We apologize for the inconvenience. While we are
working on a fix, please try to refresh when you encounter slow
responses or error messages.'' Overall, these commenters referenced
possible technical errors with the submission of comments from as early
as March 20, 2023, through the close of the comment period on March 27,
2023.
---------------------------------------------------------------------------
\306\ This commenter also referenced a second individual who was
able to eventually submit a timely comment but who posted a photo on
twitter that the commenter described as a screenshot of an error
screen from regulations.gov. https://twitter.com/argrenier/status/1639989637413490689/photo/1. The Departments note that this photo is
actually a screenshot from a different website (federalregister.gov)
and not regulations.gov, which is the website the instructions in
the NPRM told the public to use to submit a comment. Id.
---------------------------------------------------------------------------
Finally, commenters further stated that the comment period for the
USCIS fee schedule NPRM \307\ (from January 4, 2023, through March 13,
2023) overlapped with the comment period for the NPRM in this
rulemaking, which caused challenges for commenting on this rule in the
30-day comment period. In addition, commenters stated that the 30-day
comment period did not provide commenters who do not regularly work in
immigration law with sufficient time to fully analyze the effects of
the rule, and that the Departments should extend the 30-day comment
period to provide sufficient time for respectful observance of Ramadan,
which began during the comment period.\308\
---------------------------------------------------------------------------
\307\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 88 FR 402 (Jan. 4, 2023); U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements; Extension of Comment
Period, 88 FR 11825 (Feb. 24, 2023) (extending the comment period
until March 13, 2023).
\308\ This commenter also stated the Departments should extend
the comment period due to the holidays of Passover and Easter, but
both Passover (April 5 through April 13, 2023) and Easter (April 9,
2023 or later) do not occur in whole or in part during the rule's
comment period.
---------------------------------------------------------------------------
Response: The Departments believe the comment period was sufficient
to allow for meaningful public input, as evidenced by the almost 52,000
public comments received, including numerous detailed comments from
interested organizations.
The comment period spanned 33 days, from February 23, 2023, through
March 27, 2023. The January 5, 2023, announcement of the impending
[[Page 31434]]
issuance of the proposed rule \309\ also provided an opportunity for
public discussion of the general contours of the policy.\310\ In
addition, commenters could begin to familiarize themselves with the
rule before the rule was published during the period before the comment
period opened when the rule was on public inspection.
---------------------------------------------------------------------------
\309\ DHS, DHS Continues to Prepare for End of Title 42;
Announces New Border Enforcement Measures and Additional Safe and
Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
\310\ See, e.g., Al Jazeera, US Rights Groups Slam Bidens
`Unacceptable' Asylum Restrictions, Jan. 6, 2023, https://www.aljazeera.com/news/2023/1/6/us-rights-groups-slam-bidens-unacceptable-asylum-restrictions; UN, New US Border Measures `Not in
Line with International Standards', Warns UNHCR, Jan. 6, 2023,
https://news.un.org/en/story/2023/01/1132247.
---------------------------------------------------------------------------
The APA does not require a specific comment period length, see 5
U.S.C. 553(b), (c), and although Executive Orders 12866 and 13563
recommend a comment period of at least 60 days, a 60-day period is not
required. Much of the litigation on this issue has focused on the
reasonableness of comment periods shorter than 30 days, often in the
face of exigent circumstances. See, e.g., N. Carolina Growers' Ass'n,
Inc. v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012)
(analyzing the sufficiency of a 10-day comment period); Omnipoint Corp.
v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996) (concluding 15 days for
comments was sufficient); NW. Airlines, Inc. v. Goldschmidt, 645 F.2d
1309, 1321 (8th Cir. 1981) (finding 7-day comment period sufficient).
The Departments are not aware of any case law holding that a 30-day
comment period is categorically insufficient. Indeed, some courts have
found 30 days to be a reasonable comment period length. For example,
the D.C. Circuit has stated that, although a 30-day period is often the
``shortest'' period that will satisfy the APA, such a period is
generally ``sufficient for interested persons to meaningfully review a
proposed rule and provide informed comment,'' even when ``substantial
rule changes are proposed.'' Nat'l Lifeline Ass'n v. FCC, 921 F.3d
1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201
(D.C. Cir. 1984)). The Departments recognize, however, that some courts
have held that a 30-day comment period was likely insufficient in
certain circumstances. See, e.g., Centro Legal de la Raza v. EOIR, 524
F. Supp. 3d 919, 955 (N.D. Cal. 2021) (holding that DOJ's 30-day
notice-and-comment period was likely insufficient for a rule that
implemented extensive changes to the immigration court system and
noting, inter alia, the arguments by commenters that they could not
fully respond during the comment period, the effect of the COVID-19
pandemic, and allegations of ``staggered rulemaking''); Pangea Legal
Servs. v. DHS, 501 F. Supp. 3d 792, 818-22 (N.D. Cal. 2020) (holding
that the plaintiffs had at a minimum shown ``serious questions going to
the merits'' of whether the 30-day comment period for a different
asylum-related rulemaking was insufficient and noting, inter alia, the
``magnitude'' of the rule, that the comment period ``spanned the year-
end holidays,'' the comment periods of other rules by DHS, the number
of comments received, and allegations of ``staggered rulemaking'').
Here, even assuming these cases were correctly decided, the
Departments have concluded that the concerns raised in those
circumstances are not borne out. First, the significant number of
detailed and thorough public comments is evidence that the comment
period here was sufficient for the public to meaningfully review and
provide informed comment. See, e.g., Little Sisters of the Poor Saints
Peter & Paul Home v. Penn., 140 S. Ct. 2367, 2385 (2020) (``The object
[of notice and comment], in short, is one of fair notice.'' (citation
and quotation marks omitted)). Second, the 30-day comment period did
not span any Federal holidays, and while commenters noted that the
Muslim month of Ramadan began during the comment period, the
Departments find that there is no evidence that the occurrence of the
month of Ramadan during the comment period would substantively impact
the ability of Ramadan observants to submit a timely comment. Third,
because the Departments had not recently published other related rules
on this topic or that affect the same portions of the CFR that would
affect commenters' ability to comment, this rule does not present
staggered rulemaking concerns. The last asylum-related rulemaking, the
Asylum Processing IFR, was published on March 27, 2022, and was
effective on May 31, 2022. 87 FR 18078.\311\ Accordingly, commenters
did not have to contend with the interplay of intersecting rules and
related policy changes when drafting their comments. And though the
Departments recognize that the USCIS fee rule's comment period
partially overlapped with this rule's comment period, this overlap does
not render this rule's comment period unreasonable. The comment period
for that rule--which addresses different subjects and portions of the
CFR than this rule--opened on January 4, 2023, 50 days before opening
of this rule's comment period, and ended on March 13, 2023, 14 days
prior to the close of this comment period.
---------------------------------------------------------------------------
\311\ In addition, the Departments published a final rule
extending the U.S.-Canada STCA on March 28, 2023, but that rule did
not have any impact on the subject of this rule as it applies to the
U.S.-Canada land border. 88 FR 18227.
---------------------------------------------------------------------------
Finally, the Departments also believe that the 30-day comment
period was preferable to a longer comment period since this rule
involves concerns about the Departments' ability to safely,
effectively, and humanely enforce and administer the asylum system and
immigration laws given the surge of migrants that is expected to occur
upon the lifting of the Title 42 public health Order if this rule were
not in place. Cf., e.g., Haw. Helicopter Operators Ass'n v. FAA, 51
F.3d 212, 214 (9th Cir. 1995) (noting that the agency had good cause to
not engage in notice and comment rulemaking at all because the rule was
needed to protect public safety as demonstrated by numerous then-recent
helicopter crashes). By proceeding with a comment period shorter than
60 days, the Departments were able to receive comments, review
comments, and prepare a final rule to be promulgated in time for the
May 11, 2023, expiration of the public health emergency and the
corresponding expiration of the Title 42 public health Order. A 60-day
comment period, on the other hand, would have run until April 24, 2023,
and a final rule would have been impossible to prepare in the 17 days
from April 24 to May 11, 2023. Having this rule in place for the
expiration of the Title 42 public health Order will disincentivize the
expected surge of irregular migration and instead incentivize migrants
to take safe, orderly, and lawful pathways to the United States or to
seek protection in third countries in the region. The rule will thus
prevent a severe strain on the immigration system, as well as protect
migrants from the dangerous journey to the SWB and the human smugglers
that profit on their vulnerability. Contrary to some commenters'
allegations, the Departments did not select a 30-day comment period to
limit public involvement on the rule.
The Departments disagree with commenters' statements that the
Departments' reliance on the end of the Title 42 public health Order is
inapt because ending Title 42 was a government choice, and the
Departments should have had time to prepare without a 30-day comment
period. First, the Departments note that the Title 42 public health
Order is ending based on factual developments,
[[Page 31435]]
and the Departments do not control either those factual developments or
the decision to recognize those factual developments by terminating the
public health Order. Second, litigation and the resulting injunctions
over ending the Title 42 public health Order have made it difficult for
the Departments to predict an exact end date. See, e.g., Arizona v.
Mayorkas, 143 S. Ct. 478 (2022) (granting States' application for stay
pending certiorari and preventing the District Court for the District
of Columbia from giving effect to its order setting aside and vacating
the Title 42 public health Order); Louisiana v. CDC, 603 F. Supp. 3d
406 (W.D. La. 2022) (granting States' motion for a preliminary
injunction prohibiting enforcement of the CDC's order terminating Title
42). Accordingly, it was not until the Administration announced \312\
its plan to have the public health emergency that underpins the Title
42 public health Order extend until May 11, 2023, and then expire that
the end of the Title 42 public health Order changed from speculative to
more concrete. The Departments then published the NPRM in short order,
24 days after the Administration's statement of intent. Finally, as
discussed in the NPRM and elsewhere in this preamble, the CHNV parole
processes that the Departments developed in October 2022 (Venezuela)
and January 2023 (Cuba, Haiti, and Nicaragua) have shown significant
success in reducing encounters and encouraging noncitizens to seek
lawful pathways to enter the United States. This rule adopts a similar
design as these programs--coupling the incentives of lawful pathways
with disincentives for failing to pursue those pathways--based, in
part, on the successes of those programs in decreasing irregular
migration. Because those successes were not seen until as late as
January 2023, commenters are incorrect that the Departments could have
published it long before February 2023. Once the NPRM was published, it
was reasonable to include a 30-day comment period in light of the
impending end of Title 42 public health Order.
---------------------------------------------------------------------------
\312\ Office of Mgmt. & Budget, Exec. Office of the President,
Statement of Administration Policy (Jan. 30, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf.
---------------------------------------------------------------------------
Finally, the Departments have investigated commenters' allegations
of technical errors that led to comments being ``discarded'' or not
submitted with the eRulemaking Program at the GSA. A GSA representative
explained the following:
The API, which allows the electronic submission of
comments to regulations.gov by third-party software, was operating
normally from March 20, 2023, to March 28, 2023.
Commenters are incorrect that any submitted comments were
``discarded'' as comments that are received are not discarded.
While some users reported errors on the submission of API
comments, all unsuccessful transactions were successfully resubmitted
within a maximum of 30 minutes.
In addition, the eRulemaking Program accommodated one
commenting organization with a temporary increase to the API posting
rate limit so that the organization could submit approximately 26,000
comments by the close of the comment period.
None of the help desk call logs reflect a call related to
this rule nor a discussion indicating an unresolved error when posting
comments.
Accordingly, the Departments do not believe that any technical
errors prevented commenters from submitting comments within the 30-day
comment period.
Overall, the Departments find that the time afforded by a 30-day
comment period to prepare a final rule prior to the expiration of the
Title 42 public health Order, which would not have been possible with a
longer comment period, outweighs the arguments raised in support of a
longer comment period by commenters. Commenters have provided numerous
and detailed comments regarding the NPRM, and the Departments
appreciate their effort to provide thorough commentary for the
Departments' consideration during the preparation of this final rule.
ii. Insufficient Consideration of Public Comments
Comments: Commenters stated that the timeline for the rule risks
that the Departments will not seriously consider public comments before
implementing a final rule and gives the appearance that the Departments
have predetermined the outcome of the NPRM. Many commenters stated that
the short time span between the scheduled close of the comment period
(at the end of March 27, 2023) and the anticipated issuance of the
final rule (no later than May 12, 2023) suggested that the Departments
would not meaningfully consider public comments. Commenters stated that
the Departments should have issued a proposed rule earlier than
February 2023 to give the Departments more time to carefully consider
comments received and revise policy plans prior to the issuance of a
final rule.
Response: The Departments have included an extensive discussion of
comments received as part of this preamble. The Departments strongly
disagree with the commenters' assertions that the Departments failed to
meaningfully consider public comments in issuing this final rule. The
Departments' receptivity to public comments is demonstrated by, for
instance:
The extensive and substantive discussion of public
comments in this preamble;
Multiple revisions made by the Departments to the policy
contained in the NPRM, including clarifications of policy requested by
commenters, a reorganization of the regulatory text for clarity, and
other policy changes that are responsive to public comments; and
The Departments' choice to seek public comment in the
first instance, notwithstanding that this rulemaking involves a foreign
affairs function of the United States and addresses an emergency
situation for which the Departments would have good cause to bypass
notice and comment.\313\
---------------------------------------------------------------------------
\313\ See 5 U.S.C. 553(a)(1), (b)(B); see also Section VI.A. of
this preamble.
---------------------------------------------------------------------------
iii. Delayed Effective Date
Comments: Commenters stated that they anticipated that the
Departments would issue the final rule in violation of the APA's
requirement of a 30-day delayed effective date for substantive
rules.\314\ Commenters stated that by delaying so long in issuing the
NPRM, the Departments had forfeited any argument for ``good cause'' to
make the final rule effective immediately. Commenters noted that there
has been litigation for years over the ongoing viability of Title 42
public health Order--itself an inherently temporary measure--and the
April 2022 Title 42 termination Order. Commenters stated that the
Departments could have conducted a notice-and-comment rulemaking with a
30-day delayed effective date had they begun this rulemaking sooner.
---------------------------------------------------------------------------
\314\ See 5 U.S.C. 553(d).
---------------------------------------------------------------------------
Response: As discussed in Section V.A. of this preamble, the
Departments are invoking the foreign affairs and good cause exceptions
for bypassing a 30-day delayed effective date. See 5 U.S.C. 553(a)(1)
and (d). The Departments have determined that immediate implementation
of this rule is necessary to fortify bilateral relationships and avoid
exacerbating a projected surge in migration across the region following
the lifting of the Title 42 public health Order.
[[Page 31436]]
Case law suggesting that an agency's delay can effectively forfeit
the agency's ``good cause'' relates primarily to the separate good
cause exception applicable to notice-and-comment rulemaking
requirements under 5 U.S.C. 553(b)(B).\315\ Such case law has no
bearing on the foreign affairs exemption under 5 U.S.C. 553(a)(1). In
addition, it is not dispositive as to the good cause exception at 5
U.S.C. 553(d), which serves ``different policies'' and ``can be invoked
for different reasons.'' \316\ Specifically, the 30-day delayed-
effective-date requirement ``is intended to give affected parties time
to adjust their behavior before the final rule takes effect,'' \317\
but in this context, affected parties have been subject to the Title 42
public health Order for years, and cannot reasonably argue that they
require an additional 30 days to adjust their behavior to the new
approach taken in this rule.
---------------------------------------------------------------------------
\315\ See, e.g., Envt'l. Def. Fund v. EPA, 716 F.2d 915, 921-22
(D.C. Cir. 1983) (holding that because the agency ``failed to
demonstrate that outside time pressures forced the agency to
dispense with APA notice and comment procedures . . . the agency's
action . . . [fell] outside the scope of the good cause
exception''); Nat'l Ass'n of Farmworkers Org. v. Marshall, 628 F.2d
604, 622 (D.C. Cir. 1980) (rejecting a good cause argument for
bypassing notice and comment because the time pressure cited by the
agency ``was due in large part to the [agency's] own delays'').
\316\ Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th
Cir. 1992) (The ``30-day waiting period in no way relates to the
notice and comment requirement, but the federal courts have not
always been careful to maintain the distinction'' (internal citation
and quotation omitted)).
\317\ Id.
---------------------------------------------------------------------------
Even if the forfeiture doctrine is applied in this context,
however, the Departments have pursued this rulemaking without delay,
and in fact have proceeded as rapidly as possible under the
circumstances. As discussed at length in the NPRM, this rulemaking
addresses a range of dynamic circumstances, including major recent
shifts in migration patterns across the hemisphere, altered incentives
at the SWB created by the application of the Title 42 public health
Order (which has carried no immigration consequences and resulted in
many migrants trying repeatedly to enter the United States), and
ongoing litigation regarding the Title 42 public health Order.\318\ The
Departments have sought to address these circumstances in a variety of
ways, including the six-pillar strategy outlined in the April 2022 DHS
Plan for Southwest Border Security and Preparedness; the issuance of
the Asylum Processing IFR, 87 FR 18078; the expansion of lawful
pathways throughout the region and via the CHNV processes; and the
introduction of the CBP One app, among other measures. The Departments'
issuance of the proposed rule while the litigation over the Title 42
public health Order was ongoing, and within weeks of the
Administration's announcement regarding the impending termination of
that Order, reflects the high priority that the Departments have placed
on issuing this rulemaking promptly via a notice and comment process.
---------------------------------------------------------------------------
\318\ See 88 FR at 11708-14.
---------------------------------------------------------------------------
2. Paperwork Reduction Act (``PRA'')
Comment: A commenter stated that the Departments had not posted to
the public docket any proposed revisions to the collection of
information under Office of Management and Budget (``OMB'') Control
Number 1651-0140, Collection of Advance Information from Certain
Undocumented Individuals on the Land Border. The commenter stated that
such revision appeared particularly important given the NPRM's proposed
codification of the required use of the CBP One app to access regular
Title 8 asylum processing. The commenter stated that, as a consequence
of the failure to post the proposed revisions, they were unable to
comment on the proposed changes to the collection of information. A
commenter expressed concern that CBP sought emergency approval to
collect advance information on undocumented noncitizens and bypassed
the standard notice and comment process.
Response: With respect to commenters' stated concerns about the
public docket, the Departments note that like all proposed revisions to
collections of information, the proposed revisions described in the
NPRM were available for review throughout the comment period on OMB's
website at https://www.reginfo.gov, under the Information Collection
Review tab.\319\ The Departments did not also post these comments to
the public docket, but are unaware of any attempt by the commenter to
request a copy of the proposed changes by using the contact information
listed in the NPRM.
---------------------------------------------------------------------------
\319\ See OMB, ICR Documents: CLEAN Supporting Statement 1651-
0140 Advance Information Collection NPRM Changes, https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202302-1651-001
(last visited Mar. 29, 2023).
---------------------------------------------------------------------------
The Departments maintain that the nature of the proposed change to
the collection of information was clear to commenters, as the proposed
change was described at length in the NPRM and was the subject of many
comments. The Supporting Statement that was available on OMB's website
(and was the only document related to the information collection for
which the Departments had proposed revisions) described an NPRM that,
if finalized, ``would change the consequences, for some noncitizens and
for a temporary period of time, of not using CBP One to schedule an
appointment to present themselves at a POE.'' \320\ The Supporting
Statement explained that such noncitizens would ``be subject to a
rebuttable presumption of asylum ineligibility, unless the noncitizen
demonstrates by a preponderance of the evidence that it was not
possible to access or use CBP One due to a language barrier,
illiteracy, significant technical failure, or other ongoing and serious
obstacle; or that the noncitizen is otherwise not subject to the
rebuttable presumption.'' \321\ The Supporting Statement further
clarified that ``[t]here is no change to the information being
collected under this collection or the use of the information by CBP,
but this change would alter the consequences of not using the
collection, and thus increases the estimated annual number of responses
in the collection.'' \322\
---------------------------------------------------------------------------
\320\ Id.
\321\ Id.
\322\ Id.
---------------------------------------------------------------------------
Regarding the concern with using the emergency PRA approval process
for the collection of information via the CBP One app, CBP notes that,
although the initial collection was approved on an emergency
basis,\323\ the relevant PRA approval for the collection that is being
used for this rule (OMB Control Number 1651-0140) was subsequently done
using the normal PRA process, which included two Federal Register
notices and an opportunity for public comment.\324\ Further, this
collection is being revised again through this rule, and the public was
given additional opportunity to comment on the information collection
in this rulemaking. See 88 FR at 11749-50.
---------------------------------------------------------------------------
\323\ See OIRA, OIRA Conclusion, OMB Control No. 1651-0140,
Collection of Advance Information from Certain Undocumented
Individuals on the Land Border (May 3, 2021), https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202104-1651-001.
\324\ See 86 FR 73304 (Dec. 27, 2021); 87 FR 53667 (Sept. 28,
2021). See also OIRA, OIRA Conclusion, OMB Control No. 1651-0140,
Collection of Advance Information from Certain Undocumented
Individuals on the Land Border (Dec. 18, 2022), https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202112-1651-001. The
OIRA Conclusion includes citations and links to the notices
published in the Federal Register, as well as the comments received
in response.
---------------------------------------------------------------------------
Members of the public are welcome to submit comments to OMB on the
collection of information via https://www.reginfo.gov for a period of
30 days following issuance of this final rule.
Comment: A commenter expressed that the NPRM is not in compliance
with the APA because the CBP One app
[[Page 31437]]
has not gone through the normal notice-and-comment period required by
the APA. The commenter stated that the Departments had not clearly
described the app in a way that would provide the public with the
necessary information to understand how the app works and that a
noncitizen's failure to use the app when presenting themselves at a
port of entry has serious implications on immigration relief.
Response: The Departments disagree with the contention that the use
of the CBP One app, whether separate from or as described in this rule,
fails to comply with the APA. The CBP One app serves as a single portal
to a variety of CBP services.\325\ Because there is not an overarching
CBP One information collection, CBP has sought OMB approval under the
PRA of each information collection contained in the CBP One app,
pursuant to standard procedures. Regarding the particular use of the
CBP One app that is described in this rulemaking--i.e., the use of the
app as the current ``DHS scheduling system'' described in 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B), to collect information from
certain undocumented individuals on the land border--the PRA
information referenced above, and available to the public, provided
information sufficient to understand how the app works, and how it
would work in connection with this rulemaking. Similarly, the
Departments provided a description of the presumption and its
application, including to those who do not utilize CBP One, in the NPRM
and invited comment thereon.
---------------------------------------------------------------------------
\325\ See CBP, CBP OneTM Mobile Application, https://www.cbp.gov/about/mobile-apps-directory/cbpone (last visited Apr.
26, 2023).
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3. Impacts, Costs, and Benefits (Executive Orders 12866 and 13563)
Comment: A few commenters expressed that the Departments have not
met their obligations under Executive Order 12866 and Executive Order
13563. A commenter requested that the Departments investigate and
develop quantitative estimates regarding a range of potential
regulatory effects, such as estimates of the rule's potential impact on
family unity, the lifetime cost of work permit renewals for those who
are granted withholding of removal instead of asylum under the rule;
the impact of life-long inability to travel internationally for those
granted withholding of removal rather than asylum; and the potential
costs on States and localities of vastly increasing the class of
individuals ineligible for public benefits, services, and healthcare.
Another commenter requested that the Departments consider the
downstream impacts of the rule on other noncitizens and their U.S.
citizen family members who might be affected by additional backlogs in
immigration court. A legal services provider expressed concern with the
Departments' ``evident implication'' that the rebuttable presumption
will not impact asylum seekers beyond their loss of a path to
citizenship and inability to petition for family members to join them
in the United States; the commenter cited challenges with retaining
counsel and lost opportunities to collect evidence or consult family
before an asylum decision is made. Some commenters stated that the
rule's analysis of its costs and benefits is deficient because the rule
lacked detailed estimates or further specifics with respect to costs
for the Departments, the States, and other parties. Commenters stated
that for this reason, the regulatory analysis in Section VI.A. of the
NPRM's preamble failed to satisfy the requirements of Executive Order
12866.
Response: The Departments respectfully maintain that the regulatory
analysis accompanying the NPRM adequately described the costs and
benefits associated with this rulemaking. The concerns raised by the
commenters have been addressed qualitatively in the preambles to the
NPRM and this final rule. The Departments recognize that the rule will
result in costs and benefits for the individual noncitizens who are
subject to it, as well as a range of potential indirect effects on
other persons and entities.\326\ The Departments have further described
these costs and benefits throughout this preamble. The Departments have
also further revised the Executive Order 12866 discussion in Section
VI.B. of this preamble to address some of the concerns described by the
commenters, including concerns related to work permit renewal.\327\
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\326\ See Section VI.B of this preamble for a further discussion
of the rule's costs and benefits.
\327\ The Departments note that some, but not all, of the
commenters that pressed for additional quantitative analysis
expressed strong support for the TCT Bar IFR and Final Rule, which
did not contain an Executive Order 12866 analysis due to their nexus
to a foreign affairs function of the United States. See 84 FR at
33843 (IFR); 85 FR at 82289 (final rule).
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Although the Departments have discussed the relevant policy
considerations associated with this rulemaking at length, the
Departments note that neither Executive Order 12866, nor any other
executive order or law, requires more detailed quantitative analysis in
these circumstances. The fact that preparation of a regulatory impact
analysis under Executive Order 12866 is a matter of Executive Branch
discretion is underscored by the terms of Executive Order 12866,
section 10:
Nothing in this Executive order shall affect any otherwise
available judicial review of agency action. This Executive order is
intended only to improve the internal management of the Federal
Government and does not create any right or benefit, substantive or
procedural, enforceable at law or equity by a party against the
United States, its agencies or instrumentalities, its officers or
employees, or any other person.
Courts have recognized the internal, managerial nature of this and
other similarly worded executive orders, and have concluded that
actions taken by an agency to comply with such executive orders are not
subject to judicial review. See Cal-Almond, Inc. v. USDA, 14 F.3d 429,
445 (9th Cir. 1993) (citing State of Mich. v. Thomas, 805 F.2d 176, 187
(6th Cir. 1986)).
i. Quantitative Impacts on Federal and State Governments
Comment: A group of State Attorneys General stated that the
proposed rule ``completely ignores the increased costs to the States of
higher levels of unlawful aliens precipitated by'' the NPRM. Quoting
the proposed rule, the commenters stated that the Departments ``falsely
claim[ed] that `[t]he costs of the proposed rule primarily are borne by
migrants and the Departments.' '' See 88 FR at 11748. Commenters
further stated that States have significant reliance interests in the
Federal Government's enforcement of the immigration laws and that the
Departments should withdraw the rule because the Departments did not
consider this reliance in the proposed rule. Commenters stated that the
rule would cause additional noncitizens to enter the United States
where they would cause the States to expend additional funds on law
enforcement, education, and healthcare than the States otherwise would
have spent.
In support of this assertion, commenters stated that irregular
migration imposes significant costs on States. Commenters cited a study
that stated ``the net cost of illegal immigration to U.S. taxpayers is
now $150.7 billion.'' Commenters provided specific examples of costs
that the State of Indiana has incurred or could incur to provide
services to noncitizens, including costs to provide English Language
Learner Services and other education services. Commenters stated that
as many as 5,000 family units that had been encountered and granted
parole pursuant to the parole + ATD
[[Page 31438]]
policy settled in Indiana between July 2021 and February 2022. On the
other hand, a state administrative agency wrote that immigrants and
refugees are integral to that State's economy and generate $2.8 billion
of business income and contribute over $21.4 billion in Federal, State,
and local taxes, annually. The commenter wrote that immigrants and
refugees have successfully rebuilt their lives and made positive social
and economic contributions to the State by revitalizing neighborhoods
and adding to the cultural vitality of the State and its communities.
Response: The Departments respectfully disagree with the
characterization of the rule as precipitating higher levels of
irregular migration. As discussed in the preamble to the proposed rule,
see, e.g., 88 FR at 11705-06, and in Section I of this preamble, in the
absence of this rule, the Departments would anticipate a significant
further surge in irregular migration after the Title 42 public health
Order is lifted. This rule is expected to reduce irregular migration,
not increase it.
This rule imposes a rebuttable presumption of asylum ineligibility
for certain migrants who enter the United States at the southwest land
border or adjacent coastal borders after traveling through a third
country during a designated period. This rule excepts from its
rebuttable presumption noncitizens who enter the United States pursuant
to a lawful pathway, but the rule does not newly introduce or authorize
any lawful pathways to enter the United States. While it is true that
the rule excepts from the rebuttable presumption those who use some
lawful pathways, such pathways would exist irrespective of this rule.
Indeed, as stated in the NPRM, the term ``lawful pathways'' refers to
the ``range of pathways and processes by which migrants are able to
enter the United States or other countries in a lawful, safe, and
orderly manner and seek asylum and other forms of protection.'' 88 FR
at 11706 n.15. One such lawful pathway is entry pursuant to the CHNV
parole processes; such processes were established prior to and separate
from the publication of the NPRM. In other words, the commenters have
conflated the lawful pathways accounted for in this rule with the rule
itself.
The Departments further note the evidence that the introduction of
lawful pathways, particularly when coupled with a consequence for
failing to use such processes, has significantly reduced levels of
irregular migration. For instance, as noted in the proposed rule, in
the week prior to the announcement of the Venezuela parole process on
October 12, 2022, encounters of Venezuelan nationals between POEs at
the SWB averaged over 1,100 a day from October 5-11. About two weeks
after the announcement, encounters of Venezuelan nationals averaged
under 200 per day between October 18 and 24.\328\ The low trend
continued with a daily average of 106 in March 2023.\329\ Similarly,
the number of CHN nationals encountered dropped significantly in the
wake of the January 2023 announcement of new processes for those
countries. Between the announcement of the new processes on January 5,
2023, and January 21, the number of daily encounters between POEs of
CHN nationals dropped from 928 to 73, a 92 percent decline.\330\
Encounters between POEs of CHN nationals continued to decline to a
daily average of fewer than 17 per day in March 2023.\331\ These
reductions in encounters have been sustained for months while the Title
42 public health Order has remained in effect.
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\328\ USBP encountered an average of 225 Venezuelans per day in
November 2022 and 199 per day in December 2022. OIS analysis of OIS
Persist Dataset based on data through March 31, 2023. Data are
limited to USBP encounters to exclude those being paroled in through
POEs.
\329\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
\330\ Id.
\331\ Id.
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With respect to commenters' statement that States have significant
reliance interests in the Federal Government's enforcement of the
immigration laws, this rule does not set any policy against enforcement
of the immigrations laws. Commenters' objections to other enforcement
policies, or any lack thereof, have little relationship to this rule,
which, as previously stated, creates a rebuttable presumption of asylum
ineligibility for certain migrants who enter the United States at the
southwest land border or adjacent coastal borders after traveling
through a third country during a designated period. The Departments are
unaware of any existing policies altered by this rule in which States
have a substantial reliance interest. For example, States cannot have
substantial reliance interests in the Proclamation Bar IFR or TCT Bar
Final Rule because neither rule is being enforced.
Ultimately, the commenters' objections are not to the proposed
rule, but to the lawful pathways themselves, as well as to other
aspects of the immigration system. The Departments believe that
withdrawing the proposed rule would not achieve the Departments' or the
commenters' goals.
Comment: Another group of State Attorneys General stated that if,
as a consequence of the rule, noncitizens endure additional trauma
seeking asylum in a third country or waiting at the SWB in potentially
dangerous conditions for a CBP One appointment, such noncitizens will
require more State-funded services, such as services related to
healthcare, education, and legal assistance.
Response: The Departments acknowledge that various levels of
government provide services to noncitizens for a range of purposes. The
Departments have further revised the Executive Order 12866 discussion
in Section VI.B of this preamble to note the potential effects on such
entities.
Comment: Commenters stated that while the Departments acknowledge
the cost and other impact that irregular migration has had on DHS
operations, States and border communities, and NGOs, the Departments
did not adequately consider the costs borne by other Federal agencies
not directly associated with immigration enforcement. For example,
commenters stated that some health programs (Medicaid; the Children's
Health Insurance Program; the Supplemental Nutrition Assistance
Program; and the Women, Infants, and Children program) and tax credits
are available to noncitizens without employment authorization.
Commenters also stated that UCs are eligible for a large number of
Federal benefits immediately upon their entry. Commenters also stated
that the expanded usage of humanitarian parole results in costs
associated with providing parolees Federal benefits.
Response: The Departments agree that a high volume of irregular
migration can have significant implications for other Federal agencies
that provide services or assistance to migrants. For the reasons stated
in the first comment response in Section IV.F.3.i of this preamble,
however, the Departments do not believe it is reasonable to expect that
the rule would result in an increase in irregular migration. This rule
is designed to reduce levels of irregular migration, and to channel
migrants into lawful, safe, and orderly pathways. In the absence of
this rule, the Departments would anticipate a significant further surge
in irregular migration after the Title 42 public health Order is
lifted. This rule will reduce irregular migration and any costs
associated with such migration, rather than increasing such migration
and costs.
Comment: Some commenters also stated that the rule fails to
adequately consider and address the administrative
[[Page 31439]]
costs that the Departments would incur in order to implement the rule.
Regarding USCIS, these commenters stated that the Departments failed to
consider, for instance, the following costs: new trainings, possible
future hiring needs that could result from the rule, and possible
collateral costs to petitioners before USCIS who could have
adjudications delayed due to downstream delays. Some commenters
expressed concern that USCIS, as a fee-funded agency, might have
insufficient resources to implement the rule, and hypothesized that
USCIS might seek to ask Congress for an appropriation to cover
implementation costs, which would shift the burden of the cost to U.S.
taxpayers. These commenters cited the requirements of the Anti-
Deficiency Act and past reductions in USCIS fee revenues in support of
the commenters' prediction of an appropriations request.
Regarding CBP, commenters stated that the Departments failed to
consider, for instance, costs for training staff on the CBP One app and
for app maintenance and updates.
Regarding ICE, commenters stated that if, as a result of the rule,
more noncitizens receive negative credible fear determinations and
request IJ review, there is a risk of overcrowding and other
operational complications as bed space runs out for new arrivals. The
commenters stated that this could increase the money paid by the U.S.
taxpayer unnecessarily.
Regarding EOIR, these commenters stated that the Departments failed
to consider, for instance, the following costs: training of IJs and
staff; form updates; and an increase to the court backlog if
adjudications take longer.
Response: The Departments agree that various agencies will expend
resources to implement this rule. The discussion in Section VI.B of
this preamble explains that the rule will require additional time for
AOs and IJs, during fear screenings and reviews, respectively, to
inquire into the applicability of the presumption and whether the
presumption has been rebutted. Similarly, the rule will require
additional time for IJs during section 240 removal proceedings.
However, as discussed in the proposed rule and elsewhere in this
preamble, in the absence of this rule, the Departments would anticipate
a significant further surge in irregular migration after the Title 42
public health Order is lifted, which would require the expenditure of
significant resources. This rule is therefore anticipated to
substantially reduce net burdens on the Departments, including at the
agencies referenced by the commenters.
4. Regulatory Flexibility Act (``RFA'')
Comment: At least one commenter disagreed with the certification in
the NPRM that the proposed rule would not have a significant economic
impact on a substantial number of small entities. See 88 FR at 11748.
Some legal services providers gave examples of how the rule would
impact their organization and workloads, without objecting to the RFA
certification. But at least one commenter disputed the certification
and wrote that as a nonprofit organization that helps asylum seekers
prepare for credible fear interviews, IJ reviews, and merits hearings,
the commenter would experience a significant time and cost burden
associated with the new rule, such as the additional time spent
gathering evidence from foreign countries, appearing at interviews and
hearings, and explaining the law and outcome to clients and pro se
respondents. The commenter stated that, as a consequence of the rule,
the commenter would therefore be forced to serve fewer individuals,
significantly reducing the number of people who would have access to
legal services. The commenter further stated that due to the increased
time burden, individuals would have to pay the commenter increased fees
or donors would have to chip in more for each person.
Response: Consistent with longstanding case law, a regulatory
flexibility analysis is not required when a rule has only indirect
effects on small entities, rather than directly regulating those
entities. See, e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327,
342-43 (D.C. Cir. 1985) (``[A]n agency may properly certify that no
regulatory flexibility analysis is necessary when it determines that
the rule will not have a significant economic impact on a substantial
number of small entities that are subject to the requirements of the
rule . . . . Congress did not intend to require that every agency
consider every indirect effect that any regulation might have on small
businesses in any stratum of the national economy.'').\332\ This rule
does not directly regulate any organizations; the rule imposes a
rebuttable presumption of asylum ineligibility for certain migrants who
enter the United States at the southwest land border or adjacent
coastal borders after traveling through a third country during a
designated period. The RFA does not require the Departments to estimate
the rule's potential indirect effects on legal service organizations,
law firms, and other service providers whose clients may be subject to
the rule. Because this rule does not regulate small entities
themselves, the Departments reaffirm their conclusion that no
regulatory flexibility analysis is necessary.
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\332\ See also Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855,
869 (D.C. Cir. 2001) (``The statute requires that the agency conduct
the relevant analysis or certify `no impact' for those small
businesses that are `subject to' the regulation, that is, those to
which the regulation `will apply'. . . . The rule will doubtless
have economic impacts in many sectors of the economy. But to require
an agency to assess the impact on all of the nation's small
businesses possibly affected by a rule would be to convert every
rulemaking process into a massive exercise in economic modeling, an
approach we have already rejected.'' (citing Mid-Tex, 773 F.2d at
343)); White Eagle Co-op. Ass'n v. Conner, 553 F.3d 467, 480 (7th
Cir. 2009) (``[S]mall entities directly regulated by the proposed
[rulemaking]--whose conduct is circumscribed or mandated--may bring
a challenge to the RFA analysis or certification of an agency. . . .
However, when the regulation reaches small entities only indirectly,
they do not have standing to bring an RFA challenge.'').
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5. Other Regulatory Requirements
Comment: A group of State Attorneys General disputed the statement
in the proposed rule, made pursuant to Executive Order 13132,
Federalism, 64 FR 43255 (Aug. 4, 1999), that the proposed rule would
not have a substantial direct effect on the States, the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
See 88 FR at 11749.
Response: The Departments maintain that this rule will not have a
substantial direct effect on the States, the relationship between the
National Government and the States, or on the distribution of power and
responsibilities among the various levels of government. This rule's
only direct effects relate to asylum applicants and those being
processed at the SWB. For the same reason, this final rule will not
impose substantial direct compliance costs (indeed, any direct
compliance costs) on State and local governments, or preempt State law.
Accordingly, in accordance with section 6 of Executive Order 13132,
this rule requires no further agency action or analysis.
Comment: A group of State Attorneys General stated that the
Departments should withdraw the rule because it would impose
significant unfunded mandates on the States but the Departments did not
assess the impact on the States or their constituent local governments
under the Unfunded Mandates Reform Act of 1995 (``UMRA''). Commenters
disagreed with the Department's statement in the proposed rule that the
rule would not
[[Page 31440]]
impose an unfunded mandate because ``[a]ny downstream effects on such
entities would arise solely due to their voluntary choices, and the
voluntary choices of others, and would not be a consequence of an
enforceable duty imposed'' by the rule. 88 FR 11748. Commenters cited
cases regarding standing to sue in Federal court, such as Department of
Commerce v. New York, 139 S. Ct. 2551 (2019) and City & County of San
Francisco v. USCIS, 944 F.3d 773, 787 (9th Cir. 2019), arguing that if
the fact patterns in those cases were sufficient to establish standing,
they are sufficient to trigger the UMRA's requirements. Quoting 2
U.S.C. 1534(a), commenters stated that UMRA also requires that ``[e]ach
agency . . . develop an effective process to permit elected officers of
State, local, and tribal governments . . . to provide meaningful and
timely input in the development of regulatory proposals containing
significant Federal intergovernmental mandates.'' The comments stated
that the Departments never allowed elected leaders in their States to
provide any such input.
Response: Case law on standing does not dictate UMRA's scope. The
Departments maintain that the NPRM preamble's discussion of UMRA was
correct. This rule does not contain a Federal mandate, or a significant
Federal intergovernmental mandate, because it does not impose any
enforceable duty upon any other level of government or private sector
entity. Any downstream effects on such entities would arise solely due
to their voluntary choices, and the voluntary choices of others, and
would not be a consequence of an enforceable duty imposed by the rule.
Similarly, any costs or transfer effects on State and local governments
would not result from a Federal mandate contained in this rule, as that
term is defined under UMRA.
G. Out of Scope
Comment: Commenters submitted a number of comments that were
outside the scope of the rulemaking. For instance, some commenters
stated that the United States should create a path to citizenship for
undocumented immigrants; that the Government should otherwise engage in
legislative immigration reform; that all noncitizens with disabilities
should be eligible for asylum; that minors should not be released to
individuals without lawful status; that the Government should focus on
disparities among IJs in asylum grant rates; that the United States
should expand resources focused on the development of civil society and
governments in the Northern Triangle; that countries from which asylum
applicants flee should help fund humanitarian aid for their citizens
who resettle in the United States; that POEs are already overwhelmed so
asylum-seekers should be allowed to enter in other places; that the
Government needs to focus on granting ``Dreamers'' citizenship; that
the Government should call on the military to forcibly repel migrants
from the border; that the United States should end birthright
citizenship; that the American workforce is becoming automated, putting
American citizens out of work; that the United States should subsidize
the implementation of machinery that would fill the jobs that normally
``attract'' migrants (e.g., agricultural work); that migrant children
are being forced into child labor; that the U.S. birthrate is low and
we need more workers to maintain Social Security and Medicare; that the
United States is selling land to China, and India is buying oil from
Russia; that the United States should systematically fund research that
evaluates the racial disparities that exist in the efficiency with
which Ukrainian humanitarian parole applications have been reviewed and
evaluated versus those of Afghan applicants; that American taxpayers
are suffering the effects of the border crisis, particularly in
schools; that the United States should expand legal immigration; that
asylum seekers will receive in absentia removal orders due to
difficulties in contacting asylum seekers for court hearings; that they
objected to the number of noncitizens present in the United States
without lawful status.
Response: Such comments address matters well beyond the scope of
the proposed rule and do not require further response.
Comment: Several commenters made statements related to CBP custody
conditions, noting for instance that they are overcrowded, lack
adequate access to hygiene, lack adequate space so that families are
separated by gender, are cold, lack adequate bedding, have lights on at
night, and do not have adequate showers. At least one commentor noted
that CBP facilities should have more child friendly reception areas.
Response: The Department acknowledges the commenters' concerns.
However, this rule does not have any impact on whether or how
individuals are in custody or detained, and these comments are outside
the scope of the rulemaking.
V. Request for Comments on Proposed Extension of Applicability to All
Maritime Arrivals
In addition to the changes made in this final rule described in
Section IV.B.8.i of this preamble, the Departments are considering and
request comment on whether to apply the rebuttable presumption to
noncitizens who enter the United States without documents sufficient
for lawful admission during the same temporary time period at a
maritime border,\333\ whether or not they traveled through a third
country. Such a modification would expand the scope of the rule's
rebuttable presumption in two ways: both geographically (covering all
entries by sea, not just those entering the United States from Mexico
at coastal borders adjacent to the SWB) and with regard to the class of
persons potentially subject to the rebuttable presumption (by covering
persons who enter the United States by sea even if they did not travel
through a country other than their country of citizenship, nationality,
or, if stateless, last habitual residence, that is a party to the 1951
United Nations Convention relating to the Status of Refugees or the
1967 Protocol relating to the Status of Refugees). In addition, the
Departments are also considering and request comment on whether to
expand the scope of the rule's rebuttable presumption geographically to
noncitizens who enter the United States without documents sufficient
for lawful admission during the same temporary time period at any
maritime border, while continuing to limit the presumption's
applicability to those who traveled through another country before
reaching the United States. Finally, the Departments are considering
and request comment on whether to expand the scope of the presumption
to noncitizens who enter the United States by sea, but to limit the
scope of that expansion to noncitizens who departed from the Caribbean
or other regions that present a heightened risk of maritime crossings.
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\333\ The STCA and Additional Protocol controls and applies as
to individuals who cross the U.S.-Canada land border between POEs,
including certain bodies of water along or across the U.S.-Canada
land border, as described in 88 FR 18227, 18234. The Departments'
use of ``at a maritime border'' includes individuals who enter the
United States by sea, as in the Atlantic and Pacific coasts of the
United States.
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The Departments are considering extending the rule's rebuttable
presumption to maritime arrivals to encourage any migrants intending to
reach the United States by sea to instead avail themselves of lawful,
safe, and orderly pathways into the United States,
[[Page 31441]]
or otherwise to seek asylum or other protection in another country. As
discussed in more detail below, DHS has recently experienced high
levels of maritime interdictions, primarily of Cuban and Haitian
nationals in the Caribbean, and is concerned that rates of attempted
entries to the United States by sea may soon increase to levels that
would greatly stress DHS's available resources and may lead to
devastating loss of life and other consequences. The Departments expect
that extending the strategy of coupling an expansion of lawful, safe,
and orderly pathways into the United States with this rule's
consequence for noncitizens who do not avail themselves of one of those
options would lead to a reduction in the numbers of migrants who would
otherwise undertake a dangerous sea journey to the United States.
A. Maritime Migration Continues To Increase, With Devastating
Consequences for Migrants
Total migrants interdicted at sea by the U.S. Coast Guard
(``USCG'') increased by 502 percent between FY 2020 (2,079) and FY 2022
(12,521).\334\ Interdictions continued to rise in FY 2023 with 8,822
migrants interdicted at sea through March, almost 70 percent of the
total in FY 2022 within six months.\335\ Interdictions occurred
primarily in the South Florida Straits and the Caribbean Sea.\336\
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\334\ OIS analysis of USCG data through March 31, 2023.
\335\ Id.
\336\ Testimony of Jonathan Miller, ``Securing America's
Maritime Border: Challenges and Solutions for U.S. National
Security'' at 4 (Mar. 23, 2023), https://homeland.house.gov/media/2023/03/3.23.23-TMS-Testimony.pdf.
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Individuals departing from Cuba and Haiti make up the vast majority
of maritime interdictions. Maritime migration from Cuba increased by
nearly 600 percent in FY 2022, with 5,740 Cuban nationals interdicted
at sea, compared to 827 in FY 2021.\337\ Similarly, maritime migration
from Haiti more than tripled in FY 2022, with 4,025 Haitian nationals
interdicted at sea, compared to 1,205 in FY 2021 and 398 in FY
2020.\338\ In the first six months of FY 2023, Cuban interdictions were
nearly equal to the Cuban FY 2022 total, comprising 62 percent of all
FY 2023 interdictions at sea; Haitian interdictions were over 60
percent of the Haitian FY 2022 total, comprising around 30 percent of
all FY 2023 interdictions at sea.\339\
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\337\ OIS analysis of USCG data through March 31, 2023.
\338\ Id.
\339\ Id.
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Meanwhile, USBP apprehensions of noncitizens who made landfall in
southeast coastal sectors have also been increasing rapidly.\340\ There
were 5,978 such apprehensions in FY 2022, nearly triple the number of
apprehensions in FY 2021 (2,045). And in FY 2023 to date, there have
already been 6,364 USBP apprehensions of noncitizens who made landfall
in southeast coastal sectors, more than the total for all of FY
2022.\341\ Cuban and Haitian nationals made up 76 percent of these
apprehensions in FY 2022 and 84 percent of apprehensions so far in FY
2023.
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\340\ Includes Miami, Florida; New Orleans, Louisiana; and
Ramey, Puerto Rico sectors.
\341\ OIS analysis of OIS Persist Dataset based on data through
March 31, 2023.
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Several large group interdictions of Cubans and Haitians have
caused challenges for the USCG in recent months. On January 22, 2023,
the USCG interdicted a sail freighter suspected of illegally
transporting migrants with nearly 400 Haitians aboard, necessitating
repatriations of eligible individuals back to the Bahamas.\342\ Days
later, on January 25, the USCG interdicted and repatriated another 309
Haitians to Haiti.\343\ USCG interdicted yet another large group of
Haitians on February 15, resulting in the repatriation of all 311
Haitian migrants in that group,\344\ and another group of 206 Haitians
were repatriated on March 2 following two successive, separate
interdictions on February 22 and 28.\345\ On January 12, 2023, USCG
repatriated 177 Cubans from 7 separate interdictions.\346\ USCG
repatriated an additional 67 Cubans between February 23-24 following
prior interdictions.\347\
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\342\ David Goodhue and Jacqueline Charles, Coast Guard stops
boat with 400 Haitians off the Bahamas and likely headed to Florida,
Miami Herald, Jan. 23, 2023, https://www.miamiherald.com/news/nation-world/world/americas/haiti/article271514157.html.
\343\ USCG, Coast Guard Repatriates 309 People to Haiti (Jan.
31, 2023), https://www.news.uscg.mil/Press-Releases/Article/3281802/coast-guard-repatriates-309-people-to-haiti.
\344\ USCG, Coast Guard Repatriates 311 People to Haiti
(February 20, 2023), https://www.news.uscg.mil/Press-Releases/Article/3302743/coast-guard-repatriates-311-people-to-haiti/.
\345\ USCG, Coast Guard Repatriates 206 People to Haiti (March
2, 2023), https://www.news.uscg.mil/Press-Releases/Article/3314530/coast-guard-repatriates-206-people-to-haiti/.
\346\ USCG, Coast Guard Repatriates 177 People to Cuba (Jan. 12,
2023), https://www.news.uscg.mil/Press-Releases/Article/3265898/coast-guard-repatriates-177-people-to-cuba/.
\347\ USCG, Coast Guard Repatriates 29 People to Cuba (Feb. 23,
2023), https://www.news.uscg.mil/Press-Releases/Article/3306722/coast-guard-repatriates-29-people-to-cuba/; USCG, Coast Guard
Repatriates 38 People to Cuba (Feb. 24, 2023), https://www.news.uscg.mil/Press-Releases/Article/3306850/coast-guard-repatriates-38-people-to-cuba/.
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Interdictions in the maritime environment can pose unique hazards
to life and safety. On March 23, 2023, Rear Admiral Jo-Ann Burdian,
Assistant Commandant for Response Policy, testified before a
Congressional panel, stating: ``Over the last year and a half, the
Coast Guard observed an increase in irregular maritime migration, above
historical norms, across our southern maritime border. This is a
difficult mission for our crews. . . . For example, patrolling the
waters of the South Florida Straits can be compared to patrolling a
land area the size of Maryland with seven police cars limited to
traveling at 15 miles per hour. It requires exceptional tactical
coordination between aircraft, ships, boats, and supporting partners
ashore.'' \348\ Rear Admiral Burdian further stated that it is not
uncommon for migrants encountered at sea to be non-compliant,
threatening their own lives and those of other migrants on board to
deter a Coast Guard rescue.\349\ Additional challenges of maritime
migration operations include ensuring adequate sanitation, security,
and providing for food, medical, and shelter needs of migrants.\350\
---------------------------------------------------------------------------
\348\ Testimony of Rear Admiral Jo-Ann F. Burdian, Assistant
Commandant for Response Policy, ``Securing America's Maritime
Border: Challenges and Solutions for U.S. National Security'' (Mar.
23, 2023), https://homeland.house.gov/media/2023/03/2023-03-23-TMS-Testimony.pdf.
\349\ Id.
\350\ Id.
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Interdicting Haitian sail freighters poses unique challenges to DHS
crews and migrants. See 88 FR at 26328. These types of vessels are
often overloaded with more than 150 migrants onboard, including small
children. Id. Because these vessels do not have sufficient safety
equipment, including life jackets, emergency locator beacons, or life
rafts in the event of an emergency, there is a great risk to human life
if these vessels overturn or sink because such an overturning or
sinking would create a situation where there could be hundreds of
noncitizens in the water, many of whom may not know how to swim. Id.
Often, noncitizens interdicted on these vessels have been at sea for
several days, are dehydrated, need medical attention, or are otherwise
experiencing elevated levels of stress. Id. These factors increase the
risk to DHS personnel who rescue these migrants from these vessels
because the number of migrants outnumber DHS crews. Id. DHS encounters
with sail freighters are not uncommon, and because of sail freighter
capacity to carry several hundred migrants, they can exceed the holding
capacity of USCG cutters patrolling
[[Page 31442]]
southeastern maritime smuggling vectors, increasing the risk not only
to the migrants, but to cutter crews as well. Id. While maritime
interdictions declined somewhat in February 2023, DHS assesses that the
weather played a significant role in this reduced maritime movement in
the Caribbean. Id. Through much of February, weather conditions were
unfavorable for maritime ventures, particularly on smaller vessels. Id.
However, DHS assesses that this was only temporary. Increasing levels
of maritime interdictions put lives at risk and stress DHS's resources,
and the increase in migrants taking to sea, under dangerous conditions,
has led to devastating consequences.
Human smugglers and irregular migrant populations continue to use
unseaworthy, overly crowded vessels, piloted by inexperienced mariners,
without any safety equipment--including, but not limited to, personal
flotation devices, radios, maritime global positioning systems, or
vessel locator beacons. In FY 2022, the USCG recorded 107 noncitizen
deaths, including those presumed dead, as a result of irregular
maritime migration. In January 2022, the USCG located a capsized vessel
with a survivor clinging to the hull.\351\ USCG crews interviewed the
survivor, who indicated there were 34 others on the vessel who were not
in the vicinity of the capsized vessel and the survivor.\352\ The USCG
conducted a multi-day air and surface search for the missing migrants,
eventually recovering five deceased migrants, while the others were
presumed lost at sea.\353\ In November 2022, USCG and CBP rescued over
180 people from an overloaded boat that became disabled off of the
Florida Keys.\354\ They pulled 18 Haitian migrants out of the sea after
they became trapped in ocean currents while trying to swim to
shore.\355\
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\351\ Adriana Gomez Licon, Situation `dire' as Coast Guard seeks
38 missing off Florida, Associated Press, Jan. 26, 2022, https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019.
\352\ Id.
\353\ Adriana Gomez Licon, Coast Guard suspends search for
migrants off Florida, Associated Press, Jan. 27, 2022, https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239.
\354\ Ashley Cox, More than 180 people rescued from overloaded
vessel in Florida Keys, CBS News CW44 Tampa, Nov. 22, 2022, https://www.cbsnews.com/tampa/news/more-than-180-people-rescued-from-overloaded-vessel-in-florida-keys/.
\355\ Id.
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IOM's Missing Migrants Project reported at least 321 documented
deaths and disappearances of migrants throughout the Caribbean in 2022,
signaling the highest recorded number since they began tracking such
events in 2014.\356\ Most of those who perished or went missing in the
Caribbean were from Haiti and Cuba.\357\ This data represents a tragic
78 percent overall increase over the 180 deaths in the Caribbean
documented in 2021, underscoring the perils of the journey.\358\
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\356\ IOM, Missing Migrants in the Caribbean Reached a Record
High in 2022 (Jan. 24, 2023), https://www.iom.int/news/missing-migrants-caribbean-reached-record-high-2022.
\357\ Id.
\358\ Id.
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B. A Further Increase in Maritime Migration is Reasonably Foreseeable
The Departments assess that maritime migration is likely to
increase absent policy changes such as those being considered. For
instance, Haiti continues to experience security and humanitarian
crises caused by rampant gang violence, food and fuel shortages, a
resurgence of cholera, and an August 2021 earthquake that killed 2,000
people.\359\ And Cuba is undergoing its worst economic crisis since the
1990s \360\ due to the lingering impact of the COVID-19 pandemic,
reduced foreign aid from Venezuela because of that country's own
economic crisis, high food prices, and U.S. economic sanctions.\361\
These crises will likely continue to fuel irregular maritime migration.
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\359\ See, e.g., CRS, Haiti: Recent Developments and U.S.
Policy, R47394 (Jan. 23, 2023), https://crsreports.congress.gov/product/pdf/R/R47394.
\360\ The Economist, Cuba is Facing Its Worst Shortage of Food
Since 1990s (July 1, 2021), https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s.
\361\ CRS, Cuba: U.S. Policy in the 117th Congress (Sept. 22,
2022), https://crsreports.congress.gov/product/pdf/R/R47246.
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Although the establishment of the CHNV parole processes has
significantly reduced SWB encounters with Cuban and Haitian nationals
as described above in Section II.A, maritime interdictions of Cuban and
Haitian nationals in the Caribbean have increased in recent years and
persist at high levels, as just described. Unlike noncitizens
encountered at the SWB, noncitizens who reach the United States
directly by sea without traveling from Mexico or Canada have not been
subject to the CDC's Title 42 public health Order.\362\ Instead, they
are (and will continue to be) processed under Title 8, which as
described above may entail years spent in the United States before a
final order of removal is issued. DHS recently announced that in
response to the increase in maritime migration and interdictions, and
to disincentivize migrants from attempting the dangerous journey to the
United States by sea, individuals who have been interdicted at sea
after April 27, 2023, are ineligible for the parole processes for
Cubans and Haitians. 88 FR 26327; 88 FR 26329. The Departments expect
that this step will help but that, in light of the complicated mix of
factors driving maritime migration, more is needed to discourage
maritime migration and encourage the use of safe, lawful, orderly
processes.
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\362\ See 86 FR at 42841 (Order applies only to certain persons
``traveling from Canada or Mexico'').
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C. Effects on Resources and Operations
USCG and its partners have surged assets to address the recent
increase in maritime migration, but the increased flow of migrants
overall led to a lower interdiction effectiveness rate (that is, the
percentage of detected undocumented migrants of all nationalities who
were interdicted by USCG and partners via maritime routes).\363\
Between FY 2018 and FY 2020, USCG approached or exceeded its 75 percent
effectiveness target.\364\ In FY 2021 and FY 2022, effectiveness
dropped to 47.2 percent and 56.6 percent, respectively, despite a surge
response that resulted in 17 percent more interdictions in FY 2022 than
in FY 2021.\365\ That is, even though the USCG interdicted more
migrants overall, those interdictions were a smaller percentage of
total detected migrants on maritime routes than the USCG had
interdicted between FY 2018 and 2019. A further surge in maritime
migration risks further decreasing effectiveness (and thereby reducing
deterrence of dangerous journeys by sea) and, as described below, would
exacerbate USCG's overall capacity challenges and increase the risk to
other key mission areas, such as counter-drug operations.
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\363\ DHS, U.S. Coast Guard Budge Overview, Fiscal Year 2024
Congressional Justification, at USCG-3.
\364\ Id.
\365\ Id.
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The United States Government's response to maritime migration in
the Caribbean region is governed by executive orders, presidential
directives, and resulting framework and plans that outline interagency
roles and responsibilities. Homeland Security Task Force-Southeast
(``HSTF-SE'') is primarily responsible for DHS's response to maritime
migration in the Caribbean Sea and the Straits of Florida. Operation
Vigilant Sentry is the DHS interagency operational plan for responding
to maritime migration in the Caribbean Sea and the Straits of
[[Page 31443]]
Florida.\366\ The primary objectives of HSTF-SE are to protect the
safety and security of the United States, deter and dissuade
noncitizens from attempting the dangerous journey to the United States
by sea, achieve U.S. humanitarian objectives, maintain the integrity of
the U.S. immigration system, and prevent loss of life at sea through
mobilizing DHS resources, reinforced by other Federal, State, and local
assets and capabilities.
---------------------------------------------------------------------------
\366\ Homeland Security Task Force-Southeast, published through
the U.S. Embassy in Cuba, Homeland Security Task Force Southeast
partners increase illegal migration enforcement patrols in Florida
Straits, Caribbean (Sept. 6, 2022), https://cu.usembassy.gov/homeland-security-task-force-southeast-partners-increase-illegal-migration-enforcement-patrols-in-florida-straits-caribbean/.
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The USCG supports HSTF-SE and views its migrant interdiction
mission as a humanitarian effort to rescue those taking to the sea and
to encourage noncitizens to pursue lawful pathways to enter the United
States. By allocating additional assets to migrant interdiction
operations and to prevent conditions that could lead to maritime mass
migration, the USCG assumes certain operational risk to other statutory
missions. Some USCG assets were diverted from other key mission areas,
including counter-drug operations, protection of living marine
resources, and support for shipping navigation. See 88 FR at 26329. A
reduction in maritime migration would reduce the operational risk to
USCG's other statutory missions.
Maritime encounters also strain other DHS resources. For instance,
during times of increased encounters in the maritime environment, the
U.S. Border Patrol executes lateral decompression flights for
processing. Once the Title 42 public health Order is lifted, based on
DHS encounter projections and throughput models, southwest border
sectors will likely lose the ability to accept decompression flights
from coastal border sectors. This in turn would result in overcrowding
in coastal border sectors' short-term holding facilities and impact
local communities not prepared to receive migrants.
D. Lawful, Safe, and Orderly Pathways
As discussed in detail earlier in this preamble, the United States
has taken significant steps to expand safe and orderly options for
migrants, including migrants from the Caribbean region, to lawfully
enter the United States. The United States has, for example, increased
and will continue to increase refugee processing in the Western
Hemisphere; country-specific and other available processes for
individuals seeking parole for urgent humanitarian reasons or
significant public benefit, including the Cuba, Haiti, Nicaragua, and
Venezuela parole processes; and opportunities to lawfully enter the
United States for the purpose of seasonal employment. In addition, the
United States has resumed the Cuban Family Reunification Program and
resumed and increased participation in the Haitian Family Reunification
Program.
The Departments are also aware that many individuals migrating out
of island nations, such as Cuba and Haiti, do so via air travel.\367\
For many individuals, travel by air to a third country may be an
additional option for obtaining asylum or other protection. The
Departments acknowledge, however, that there may be individuals for
whom air travel is not an option. The Departments welcome data, other
information, or comments on access to air travel and whether any aspect
of this rule's presumption should be adjusted to account for
differences among individuals in access to air travel.
---------------------------------------------------------------------------
\367\ See, e.g., Reuters, Nicaragua eliminates visa requirement
for Cubans, Nov. 23, 2021, https://www.reuters.com/world/americas/nicaragua-eliminates-visa-requirement-cubans-2021-11-23/; Ed
Augustin, Stars align for Cuban migrants as record numbers seek
better life in US, Guardian, June 12, 2022, https://www.theguardian.com/world/2022/jun/12/cuban-migrants-us-record-numbers-migration (``The U.S. Coast Guard has intercepted nearly
2,000 Cubans since October [2021]. But far more are flying to the
Latin American mainland before journeying up to the U.S.-Mexico
border: 114,000 have crossed into the U.S. since October [2021],
according to U.S. Customs and Border Protection--1% of the island's
entire population.''); Julie Watson et al., Charter business thrives
as US-expelled Haitians flee Haiti, AP, June 14, 2022, https://apnews.com/article/covid-health-travel-caribbean-2e5f32f8781a06e74ef7ea7ec639785f; Julie Watson et al., Haitian trip
to Texas border often starts in South America, AP, Sept. 21, 2021,
https://apnews.com/article/technology-mexico-texas-caribbean-united-states-ac7f598bafd44b3f95b786d2d800f3ce (``Nearly all Haitians reach
the U.S. on a well-worn route: Fly to Brazil, Chile or elsewhere in
South America [then] move through Central America and Mexico.'').
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E. Alternatives Under Consideration
The Departments are considering whether the rebuttable presumption
should apply to noncitizens who enter the United States without
documents sufficient for lawful admission during the same temporary
time period at any maritime border, whether or not they traveled
through a third country. Under this approach, the presumption would
apply to any covered noncitizen who reached the United States by sea,
including Cuban or Haitian nationals traveling directly to the United
States from Cuba or Haiti. The Departments acknowledge, however, that
eliminating the third-country travel component for those arriving by
sea would be a departure from the rest of the rule. The Departments are
therefore considering whether this departure may be independently
justified. The Departments believe that this additional measure could
be warranted in light of the extreme hazard to both migrants and DHS
personnel associated with maritime migration; the deterrence it would
afford migrants who might undertake this dangerous journey to enter the
United States irregularly and thus supplement interdiction efforts; the
availability of lawful, safe, and orderly pathways for the primary
populations at issue; and the safeguards incorporated into the rule.
Applying the rule's rebuttable presumption of asylum ineligibility to
persons who reach the United States by sea would not impose a
categorical bar to asylum. To the contrary, the rule would still exempt
noncitizens from the presumption if, instead of making a dangerous
journey by sea, they arrived at the United States through a lawful
pathway. It would also exempt certain noncitizens who arrive by sea,
including unaccompanied children, and provide multiple ways for
noncitizens to rebut the presumption, including in circumstances
where--at the time the noncitizen entered the United States--the
noncitizen or a member of their family with whom they were traveling
faced an imminent and extreme threat to life or safety. The Departments
request comment on how the various means of rebutting the presumption--
including facing an ``acute medical emergency,'' ``imminent and extreme
threat to life and safety,'' and ``especially compelling
circumstances''--should apply to noncitizens who reach the United
States by sea. See 8 CFR 208.33(a)(3)(i); 8 CFR 1208.33(a)(3)(i).
The Departments are also considering whether to extend the
geographic scope of the rule to certain noncitizens who enter the
United States by sea, without regard to whether they departed from
Mexico, while retaining the requirement that a noncitizen have traveled
through another country on their way to the United States. This
narrower application of the rule would limit covered noncitizens to
those who, by and large, could have sought asylum or other protection
in that other country. However, this alternative would mean that Cuban
and Haitian nationals who reach the United States by sea directly from
their country of origin would not fall within the rule's compass.
As another alternative, the Departments are considering whether to
extend the scope of the presumption to certain noncitizens who enter
the
[[Page 31444]]
United States by sea, but only if they departed from the Caribbean or
another region that presents a heightened risk of maritime crossings.
This alternative may be more tailored to the specific geographic
regions that have caused the increase in maritime interdictions in
recent months, but it would not expand the rule to other regions that
could be a source of maritime crossings in the future.
Finally, if rates of maritime migration rise substantially prior to
the end of this comment period or prior to the issuance of a final rule
that responds to these comments, the Departments intend to take
appropriate action, consistent with the APA, which may include issuance
of a temporary or interim final rule that implements one of the
proposed modifications.
VI. Regulatory Requirements
A. Administrative Procedure Act
This final rule is consistent with the notice-and-comment
rulemaking requirements described at 5 U.S.C. 553(b) and (c). For the
reasons explained below, the Departments have determined that this rule
is exempt from the 30-day delayed-effective-date requirement at 5
U.S.C. 553(d).
1. Foreign Affairs Exemption
This rule is exempt from the APA's delayed-effective-date
requirement because it involves a ``foreign affairs function of the
United States.'' \368\ 5 U.S.C. 553(a)(1). Courts have held that this
exemption applies when the rule in question ``is clearly and directly
involved in a foreign affairs function.'' \369\ In addition, although
the text of the APA does not require an agency invoking this exemption
to show that such procedures may result in ``definitely undesirable
international consequences,'' some courts have required such a
showing.\370\ This rule satisfies both standards.
---------------------------------------------------------------------------
\368\ Although the Departments have voluntarily complied with
the APA's notice and comment requirements, this rule is exempt from
such requirements pursuant to the foreign affairs exception as well,
for the same reasons that are described in this section.
\369\ See, e.g., Mast Indus. v. Regan, 596 F. Supp. 1567, 1582
(C.I.T. 1984) (cleaned up).
\370\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008).
---------------------------------------------------------------------------
The United States must work with foreign partners to address
migration in the Western Hemisphere region, and this rule is clearly
and directly related to, and responsive to, ongoing discussions with
and requests by key foreign partners in the Western Hemisphere region
in two ways. First, such partners have encouraged the United States to
take action to address unlawful migration to the SWB, which is
particularly necessary now in light of the anticipated lifting of the
Title 42 public health Order.\371\ And by responding to these requests,
the rule facilitates a key foreign policy goal--fostering a hemisphere-
wide approach of addressing migration on a regionwide basis. Though the
specific details of these discussions are not appropriate for extensive
elaboration here due to the sensitive nature of government-to-
government discussions, such partners have expressed concern that the
lifting of the Title 42 public health Order--which provided an
immediate consequence for many of those attempting to cross the SWB
irregularly--may be misperceived by migrants as an indication that the
U.S. border is open, which, in turn, could spur a surge of irregular
migrant flows through their countries as migrants seek to enter the
United States. One foreign partner opined that the formation of
caravans in the spring of 2022 were spurred by rumors of the United
States Government terminating the Title 42 public health Order and then
the officially announced plans to do so. Such increases in irregular
migration would further strain limited governmental and nongovernmental
resources in partner nations. Already, partner nations have expressed
significant concerns about the ways in which recent flows are
challenging their own local communities and immigration infrastructure;
they have expressed serious concerns that a dramatic increase in
migrant flows could be overwhelming.
---------------------------------------------------------------------------
\371\ See, e.g., Am. Ass'n of Exps. & Imps. v. United States,
751 F.2d 1239, 1249 (Fed. Cir. 1985) (exemption applies where a rule
is ``linked intimately with the Government's overall political
agenda concerning relations with another country'').
---------------------------------------------------------------------------
Some partner countries also have emphasized the possibility that
criminal human smuggling organizations may seek to intentionally
misrepresent the end of the Title 42 public health Order as leading to
the opening of the U.S.-Mexico border in order to persuade would-be
migrants to participate in expensive and dangerous human smuggling
schemes. Such activity would put migrants' lives in danger and also
contribute to the above-referenced adverse consequences associated with
increased irregular migratory flows.
In connection with such discussions, a number of countries have
lauded the sharp reductions in irregular migration associated with the
aforementioned CHNV processes--which, like this rule, imposed
consequences for irregular migration alongside the availability of a
lawful, safe, and orderly process for migrants to travel directly to
the United States. Following the implementation of the Venezuela
process in October 2022, some countries requested that the United
States implement similar policies for other nationalities, which DHS
did in January 2023. At the same time, however, partner nations have
raised concerns that any changes to these processes or the
circumstances in which they operate--including the perception that
there will be no consequences for irregular entry once the Title 42
public health Order is no longer in place--will undermine their
success.\372\
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\372\ See, e.g., Alfredo Corchado, Ahead of Title 42's end,
U.S.-Mexico Negotiations called `intense,' `round-the-clock,' Dallas
Morning News, Dec. 13, 2022, https://www.dallasnews.com/news/2022/12/13/ahead-of-title-42s-end-us-mexico-negotations-called-intense-round-the-clock/.
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Implementation of this rule will therefore advance top foreign
policy priorities of the United States, by responding to the
aforementioned discussions with and feedback from foreign partners and
demonstrating U.S. partnership and commitment to the shared goals of
stabilizing migratory populations and addressing migration collectively
as a region, both of which are essential to maintaining strong
bilateral and multilateral relationships.\373\ As noted earlier in this
preamble and in the proposed rule, recent surges in irregular
migration, including overland migration through the Dari[eacute]n Gap,
have affected a range of regional neighbors, including Mexico,
Colombia, Costa Rica, Peru, Ecuador, and Panama. See, e.g., 88 FR
11710-11. A further spike in migration following the lifting of the
Title 42 public health Order risks severely straining relations with
the countries in the region, as each would be compelled to turn away
from more sustainable policy goals, and employ its limited resources to
address the humanitarian needs of a significant influx of irregular
migrants.
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\373\ See L.A. Declaration Fact Sheet.
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Further, as described above, the United States faces constraints in
removing nationals of certain countries--including Venezuela,
Nicaragua, Cuba, and Haiti--to their home countries. With limited
exceptions, such nationals can only be removed to a third country as a
result. International partners have conveyed that their willingness to
receive increased returns of migrants was contingent on expanding the
model provided by the Venezuela process, which decreased irregular
migration throughout the hemisphere by
[[Page 31445]]
increasing options for lawful pathways and adding consequences for
noncitizens who bypass those opportunities to travel irregularly to the
United States.\374\
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\374\ See The White House, Mexico and United States Strengthen
Joint Humanitarian Plan on Migration (May 2, 2023) (committing to
increase joint actions to counter human smugglers and traffickers,
address root causes of migration, and continue to combine expanded
lawful pathways with consequences for irregular migration).
---------------------------------------------------------------------------
In short, delaying issuance and implementation of this rule,
including for purposes of incorporating a 30-day delayed effective
date, would be inconsistent with the foreign policy imperative to act
now. Such delay would not only forfeit an opportunity to fortify
bilateral relationships, but would fail to address, and potentially
exacerbate, DHS's projections of a surge in migration across the region
following the lifting of the Title 42 public health Order. From a U.S.
foreign policy perspective, such outcomes would have undesirable
international consequences.
The Departments' invocation of the foreign affairs exemption here
is consistent with recent precedent. For example, in 2017, DHS
published a notice eliminating an exception to expedited removal for
certain Cuban nationals, which explained that the change in policy was
consistent with the foreign affairs exemption because the change was
central to ongoing negotiations between the two countries.\375\ DHS
similarly invoked the foreign affairs exemption more recently, in
connection with the CHNV parole processes.\376\
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\375\ See DHS, Eliminating Exception To Expedited Removal
Authority for Cuban Nationals Encountered in the United States or
Arriving by Sea, 82 FR 4902 (Jan. 17, 2017).
\376\ See 88 FR 1266 (Jan. 9, 2023); 88 FR 1243 (Jan. 9, 2023);
88 FR 1255 (Jan. 9, 2023); DHS, Implementation of Changes to the
Parole Process for Venezuelans, 188 FR 1282 (Jan. 9, 2023); 87 FR
63507 (Oct. 19, 2022).
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2. Good Cause
This rule is also exempt from the APA's delayed-effective-date
requirement because the Departments have for good cause found that a
delay associated with that requirement would be impracticable and
contrary to the public interest.\377\ The Title 42 public health Order
is ending due to developments over which the Departments do not
exercise any direct control. It would be impossible to incorporate a
30-day delayed effective date and issue a rule prior to the expiration
of the Title 42 public health Order in that abbreviated time frame. As
described above, such a delay would greatly exacerbate an urgent border
and national security challenge that DHS has already taken multiple
additional measures to address, and would miss a critical opportunity
to reduce and divert the additional flow of irregular migration that is
expected following lifting of the Title 42 public health Order.\378\
---------------------------------------------------------------------------
\377\ 5 U.S.C. 553(d)(3). Although the Departments have
voluntarily complied with the APA's notice and comment requirements,
this rule is exempt from such requirements pursuant to the good
cause exception at 5 U.S.C. 553(b)(B) as well, for reasons that are
described in this section.
\378\ The good cause exception to the 30-day effective date
requirement is easier to meet than the good cause exception for
forgoing notice and comment rulemaking. See Riverbend Farms, Inc. v.
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992) (noting ``good cause
[is] more easily found as to [the] 30-day waiting period'' than the
exception to notice and comment procedures)); Am. Fed'n of Gov't
Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); U.S.
Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An agency
can show good cause for eliminating the 30-day delayed effective
date when it demonstrates either urgent conditions the rule seeks to
correct or unavoidable time limitations. U.S. Steel Corp., 605 F.2d
at 290; United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir.
1977).
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First, a 30-day delay of the effective date would be impracticable
and contrary to the public interest because it would likely result in a
significant further increase in irregular migration. As noted above, in
recent years, the Departments, in coordination with other Executive
Branch agencies and regional neighbors, have undertaken numerous
measures to address such increases, which have been implemented via
rulemakings,\379\ voluntary processes paired with incentives against
irregular migration,\380\ and a wide range of significant resource
surges and operational changes. A significant further increase in
irregular migration, exacerbated by an influx of migrants from
countries such as Venezuela, Nicaragua, and Cuba, with limited removal
options, and coupled with DHS's limited options for processing,
detaining, or quickly removing such migrants, would unduly impede DHS's
ability to fulfill its critical and varied missions.
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\379\ See, e.g., 87 FR 18078 (Mar. 29, 2022) (amending
regulations to allow U.S. immigration officials to more promptly
consider the asylum claims of individuals encountered at or near the
SWB while ensuring the fundamental fairness of the asylum process);
87 FR 30334 (May 18, 2022) (authorizing an additional 35,000
supplemental H-2B visas for the second half of FY 2022, of which
11,500 were reserved for nationals of Central American countries and
Haiti); 87 FR 4722 (Jan. 28, 2022) (authorizing an additional 20,000
H-2B visas for FY 2022, of which 6,500 were reserved for nationals
of Central American countries, with the addition of Haiti); 87 FR
76818 (Dec. 15, 2022) (authorizing nearly 65,000 additional visas,
of which 20,000 are reserved for nationals of Central American
countries and Haiti).
\380\ See, e.g., DHS, Implementation of a Parole Process for
Venezuelans, 87 FR 63507 (Oct. 19, 2022) (parole process for certain
Venezuelan nationals and their immediate family members); DHS,
Implementation of the Uniting for Ukraine Parole Process, 87 FR
25040 (Apr. 27, 2022) (parole process for certain Ukrainian
nationals and their immediate family members).
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Such challenges were evident in the days following the November 15,
2022, court decision vacating the Title 42 public health Order.\381\
Within two days of the court's decision, total encounters at the SWB
reached 9,583 in a single day on November 17, 2022, a 17 percent
increase from the day before.\382\ The baseline number of encounters
decreased in March 2023, from April 2022, and also consisted of a much
lower share of nationals from countries that have stopped or limited
returns of their own nationals.\383\ A delayed effective date could
result in a substantial increase in irregular migration across multiple
national borders, including our own.\384\ As detailed above, these
levels of irregular migration risk overwhelming DHS's ability to
effectively process, detain, and remove, as appropriate, the migrants
encountered. This, in turn, would result in potentially dangerous
overcrowding at CBP facilities. The attendant risks to public safety,
health, and welfare provide good cause to issue this rule without
delay.\385\
---------------------------------------------------------------------------
\381\ See Huisha-Huisha v. Mayorkas, --- F. Supp. 3d ----, 2022
WL 16948610 (D.D.C. Nov. 15, 2022).
\382\ OIS analysis of Persist Dataset based on data through
March 31, 2023.
\383\ Id.
\384\ DHS SWB Encounter Planning Model generated April 18, 2023.
\385\ See, e.g., Hawaii Helicopter Operators Ass'n v. FAA, 51
F.3d 212, 214 (9th Cir. 1995) (concluding agency's ``concern about
the threat to public safety'' justified notice and comment waiver).
---------------------------------------------------------------------------
The Departments expect that this effect would be particularly
pronounced if noncitizens know that there is a specific 30-day period
between the termination of the Title 42 public health Order and the
effective date of this rule. That gap would incentivize even more
irregular migration by those seeking to enter the United States before
the process would take effect. It has long been recognized that
agencies may use the good cause exception where significant public harm
would result from using standard APA procedures.\386\
[[Page 31446]]
If, for example, advance notice of a coming price increase would
immediately produce market dislocations and lead to serious shortages,
advance notice (and comment) need not be given.\387\ A number of cases
follow this logic in the context of economic regulation.\388\
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\386\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94-95
(D.C. Cir. 2012) (noting that the ``good cause'' exception ``is
appropriately invoked when the timing and disclosure requirements of
the usual procedures would defeat the purpose of the proposal--if,
for example, announcement of a proposed rule would enable the sort
of financial manipulation the rule sought to prevent [or] in order
to prevent the amended rule from being evaded'' (cleaned up));
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct.
App. 1975) (``[W]e are satisfied that there was in fact `good cause'
to find that advance notice of the freeze was `impracticable,
unnecessary, or contrary to the public interest' within the meaning
of Sec. 553(b)(B). . . . Had advance notice issued, it is apparent
that there would have ensued a massive rush to raise prices and
conduct `actual transactions'--or avoid them--before the freeze
deadline.'' (cleaned up)).
\387\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp.
Emer. Ct. App. 1975) (``[W]e think good cause was present in this
case based upon [the agency's] concern that the announcement of a
price increase at a future date could have resulted in producers
withholding crude oil from the market until such time as they could
take advantage of the price increase.'').
\388\ See, e.g., Chamber of Commerce of U.S. v. SEC., 443 F.3d
890, 908 (D.C. Cir. 2006) (``The [`good cause'] exception excuses
notice and comment in emergency situations, where delay could result
in serious harm, or when the very announcement of a proposed rule
itself could be expected to precipitate activity by affected parties
that would harm the public welfare.'' (citations omitted)); Mobil
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct.
App. 1983) (``On a number of occasions . . . this court has held
that, in special circumstances, good cause can exist when the very
announcement of a proposed rule itself can be expected to
precipitate activity by affected parties that would harm the public
welfare.'').
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The same logic applies here, where the Departments are responding
to exceedingly serious challenges at the border, and a gap between the
termination of the Title 42 public health Order and the implementation
of this rule would significantly increase the incentive, on the part of
migrants and others (such as smugglers), to engage in actions that
would compound those very challenges. The Departments' experience has
been that in some circumstances when public announcements have been
made regarding changes in our immigration laws and procedures that
would restrict access to immigration benefits to those attempting to
enter the United States along the U.S.-Mexico land border, there have
been dramatic increases in the numbers of noncitizens who enter or
attempt to enter the United States. Smugglers routinely prey on
migrants using perceived changes in domestic immigration law.\389\ And
those sudden influxes overload scarce government resources dedicated to
border security.\390\
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\389\ See Nick Miroff and Carolyn Van Houten, The Border is
Tougher to Cross Than Ever. But There's Still One Way into America,
Wash. Post (Oct. 24, 2018); See Tech Transparency Project, Inside
the World of Misinformation Targeting Migrants on Social Media (July
26, 2022), https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media (``A review of
social media groups and pages identified by migrants showed . . .
dubious offers of coyote or legal services, false claims about
conditions along the route, misinformation about points of entry at
which officials waive the rules, and baseless rumors about changes
to immigration law.'').
\390\ Declaration of Enrique Lucero ]] 6-8, Dkt. 95-3,
Innovation Law Lab v. Wolf, No. 19-15716 (9th Cir. Mar. 3, 2020);
Declaration of Robert E. Perez, ] 15, Dkt. 95-2, Innovation Law Lab,
No. 19-15716.
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For instance, on February 28, 2020, the Ninth Circuit lifted a stay
of a nationwide injunction of MPP, a program implementing the
Secretary's contiguous return authority under 8 U.S.C.
1225(b)(2)(C).\391\ Almost immediately, hundreds of migrants began
massing at POEs across the SWB attempting to immediately enter the
United States, creating a severe safety hazard that forced CBP to
temporarily close POEs in whole or in part.\392\ Many others requested
immediate entry into the country through their counsel, while others
overwhelmed Border Patrol agents by attempting to illegally cross the
SWB, with only some being apprehended successfully.\393\ Absent the
immediate and resource-intensive action taken by CBP, the number of
migrants gathered at the border, whether at or between the POEs, could
have increased dramatically, especially considering there were
approximately 25,000 noncitizens who were in removal proceedings
pursuant to MPP without scheduled court appearances, as well as others
in Mexico that could have become aware of CBP's operational limitations
and sought to exploit them.\394\ And while CBP officers took action to
resolve the sudden influx of migrants at multiple ports and prevent
further deterioration of the situation at the border, they were
diverted away from other critical missions, including detecting and
confiscating illicit materials, and guarding efficient trade and
travel.\395\
---------------------------------------------------------------------------
\391\ See Innovation Law Lab v. Wolf, 951 F.3d 1073, 1095 (9th
Cir. 2020), vacated as moot sub nom. Innovation Law Lab v. Mayorkas,
5 F.4th 1099 (9th Cir. 2021).
\392\ See Declaration of Robert E. Perez, ]] 4-15, Dkt. 95-2,
Innovation Law Lab, No. 19-15716.
\393\ Id. ]] 4, 8.
\394\ Id. ] 14.
\395\ Id. ] 15.
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By contrast, as detailed above, immediate implementation of the
parole process for Venezuelans was associated with a drastic reduction
in irregular migration by Venezuelans. Had the parole process, and the
consequence that accompanied it (i.e., the return to Mexico of
Venezuelan nationals encountered irregularly entering the United States
without authorization between POEs) been announced weeks prior to its
implementation, it likely would have had the opposite effect, resulting
in many hundreds and thousands of Venezuelan nationals attempting to
cross the border between the POEs before the process went into effect.
See 87 FR at 63516.
The Departments' determination here is consistent with past
practice. For example, in addition to the parole process for
Venezuelans described above, DHS concluded in January 2017 that it was
imperative to give immediate effect to a rule designating Cuban
nationals arriving by air as eligible for expedited removal because
``[p]re-promulgation notice and comment would . . . endanger[ ] human
life and hav[e] a potential destabilizing effect in the region.'' \396\
DHS cited the prospect that ``publication of the rule as a proposed
rule, which would signal a significant change in policy while
permitting continuation of the exception for Cuban nationals, could
lead to a surge in migration of Cuban nationals seeking to travel to
and enter the United States during the period between the publication
of a proposed and a final rule.'' \397\ DHS found that ``[s]uch a surge
would threaten national security and public safety by diverting
valuable Government resources from counterterrorism and homeland
security responsibilities. A surge could also have a destabilizing
effect on the region, thus weakening the security of the United States
and threatening its international relations.'' \398\ DHS concluded that
``a surge could result in significant loss of human life.'' \399\ Here,
the Departments announced the proposed rule while a prior restrictive
policy remained in place, but given the impending termination of the
Title 42 public health Order, there is insufficient time for a delayed
effective date.
---------------------------------------------------------------------------
\396\ DHS, Eliminating Exception to Expedited Removal Authority
for Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17,
2017).
\397\ Id.
\398\ Id.
\399\ Id.; accord, e.g., Department of State, Visas:
Documentation of Nonimmigrants Under the Immigration and Nationality
Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (finding the good
cause exception applicable because of similar short-run incentive
concerns).
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Second, a delayed effective date is contrary to the public interest
given that the anticipated termination of the Title 42 public health
Order has drastically altered the framework governing processing of
migrants. Courts find good cause satisfied where the immediate issuance
of a rule is necessary to prevent public harm where a previously
existing regulatory structure has been set aside by the courts.\400\ A
similar
[[Page 31447]]
circumstance exists here: the Title 42 public health Order is ending
based on factual developments, and the Departments do not control
either those factual developments or the decision to recognize those
factual developments by terminating the public health Order. Until May
11, 2023, the Title 42 public health Order requires DHS to expel
hundreds of thousands of migrants without processing them under Title
8. Once the Title 42 public health Order is lifted, however, the
Government must pivot, quickly, to process all migrants under its Title
8 authorities, at a time when the number of migrants seeking to cross
the SWB without lawful authorization to do so is expected to surge
significantly. The Departments therefore find good cause to forgo a
delayed effective date in order to prevent the adverse consequences
resulting from the termination of the Title 42 public health Order.
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\400\ See, e.g., United States v. Dean, 604 F.3d 1275, 1277-80
(11th Cir. 2010); Mid-Tex Elec. Coop., Inc. v. FERC, 822 F.2d 1123,
1124 (D.C. Cir. 1987), Nat'l Fed'n of Fed. Emps. v. Devine, 671 F.2d
607, 608 (D.C. Cir. 1982), Block, 655 F.2d at 1154; Bayou Lawn &
Landscape Servs. v. Johnson, 173 F. Supp. 3d 1271, 1284 (N.D. Fla.
2016) (collecting cases).
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The Departments reiterate that they have only invoked the foreign
affairs and good cause exceptions for the delayed-effective-date
requirement. The Departments have solicited public comments and have
given careful attention to comments that were received during the
comment period, as reflected in Section III of this preamble.
B. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
Executive Order 12866, Executive Order 13563, and Executive Order
14094, Modernizing Regulatory Review, 88 FR 21879 (Apr. 6, 2023) direct
agencies to assess the costs, benefits, and transfers of available
alternatives, and, if regulation is necessary, to select regulatory
approaches that maximize net benefits, including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
The Office of Information and Regulatory Affairs of OMB reviewed
the rule as a significant regulatory action under section 3(f)(4) of
Executive Order 12866, as amended.
The expected effects of this rule are discussed above. The rule is
expected to result in significantly reduced incentives for irregular
migration and illegal smuggling activity, and will help avert a
significant further surge in irregular migration after the Title 42
public health Order is lifted. The rule will likely decrease the number
of asylum grants and likely reduce the amount of time that noncitizens
who are ineligible for asylum and who lack a reasonable fear of
persecution or torture would be present in the United States.
Noncitizens who establish a reasonable fear of persecution or torture
would still be able to seek protection in proceedings before IJs.
The benefits of the rule are expected to include large-scale
reductions in strains on limited national resources; preservation of
the Departments' continued ability to safely, humanely, and effectively
enforce and administer the immigration laws; a reduction in the role of
exploitative transnational criminal organizations and smugglers; and
improved relationships with, and enhanced opportunities to coordinate
with and benefit from the migration policies of, regional neighbors.
Some of these benefits accrue to migrants who wish to pursue safe,
orderly, lawful pathways and processes, such as the ability to schedule
a time to apply for admission at a POE. These migrants' ability to
present their claims might otherwise be hampered by the severe strain
that a further surge in irregular migration would impose on the
Departments.
The direct costs of the rule are borne by migrants and the
Departments. To the extent that any migrants are made ineligible for
asylum under the presumptive condition established by the rule but
would have received asylum in the absence of this rule, such an outcome
would entail the denial of asylum and its attendant benefits, although
such persons may continue to be eligible for statutory withholding of
removal and withholding under the CAT. Unlike asylees, noncitizens
granted these more limited forms of protection do not have a path to
citizenship and cannot petition for certain family members to join them
in the United States.\401\ Such migrants may also be required to apply
for work authorization more frequently than an asylee would. Migrants
who choose to wait in Mexico for a CBP One appointment, rather than
migrating irregularly across the southwest land border or adjacent
coastal borders, also may incur some costs that are discussed earlier
in this preamble, including potential safety risks for some migrants.
The Departments note, in this regard, that noncitizens who establish
``exceptionally compelling circumstances,'' including an imminent and
extreme threat to life or safety or an acute medical emergency, can
rebut the presumption against asylum eligibility. 8 CFR
208.33(a)(3)(i)(B), 1208.33(a)(3)(i)(B). The Departments further note
that there are also potential benefits for migrants who choose to wait
in Mexico for a CBP One appointment (for instance, avoiding a dangerous
cross-border journey and interactions with smugglers).
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\401\ As discussed previously in Section IV.E.7.ii of this
preamble, the rule includes a specific provision to ensure that
applicants who in section 240 removal proceedings who have a spouse
or child who would be eligible to follow to join them under section
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A), will be able to rebut the
presumption if the presumption is the only reason for denying their
asylum application.
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The rule will also require additional time for AOs and IJs, during
fear screenings and reviews, respectively, to inquire into the
applicability of the presumption and whether the presumption has been
rebutted. Similarly, the rule will require additional time for IJs
during section 240 removal proceedings. However, as discussed
throughout this preamble, the rule is expected to result in
significantly reduced irregular migration. Accordingly, the Departments
expect the additional time spent by AOs and IJs on the rebuttable
presumption to be mitigated by a comparatively smaller number of
credible fear cases than AOs and IJs would otherwise have been required
to handle in the absence of the rule.
Other entities, such as legal service organizations and private
attorneys, will also incur some indirect costs as a result of the rule,
such as familiarization costs and costs associated with assisting
noncitizens who may be subject to the rule. There are other potential
downstream effects of the rule, including effects on NGOs and state and
local entities that interact with noncitizens, such as by providing
services to such persons or receiving tax revenues from them. The
nature and scale of such effects will vary by entity and should be
considered relative to the baseline condition that would exist in the
absence of this rule. As compared to the baseline condition, this rule
is expected to reduce irregular migration.
The lawful, safe, and orderly pathways described earlier in this
preamble are authorized separately from this rule but are expected to
yield significant benefits for noncitizens who might otherwise seek to
migrate irregularly to the United States. For instance, the ability to
schedule a time to arrive to apply for admission at POEs
[[Page 31448]]
is expected to significantly improve CBP's ability to process
noncitizens at POEs, and available parole processes allow prospective
irregular migrants to avoid a dangerous and expensive overland journey
in favor of an arrival by air to the United States. To the extent that
such pathways and this rule result in a substantial reduction in
irregular migration, the benefits of such pathways may also accrue to
the various entities that incur costs as a consequence of irregular
migration.
C. Regulatory Flexibility Act
The RFA requires Federal agencies to consider the potential impact
of regulations on small entities during the development of their rules.
See 5 U.S.C. 601 et seq. ``Small entities'' are small businesses, not-
for-profit organizations that are not dominant in their fields, and
governmental jurisdictions with populations of less than 50,000. Id.
601(6). This rule does not directly regulate small entities and is not
expected to have a direct effect on small entities. Rather, the rule
regulates individuals, and individuals are not defined as ``small
entities'' by the RFA. Id. While some employers could experience costs
or transfer effects, these impacts would be indirect. In the proposed
rule, the Departments certified that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
The Departments nonetheless welcomed comments regarding potential
impacts on small entities. The Departments discuss comments from small
entities earlier in the preamble, including in connection with the RFA.
No such comments identified small entities that are subject to the rule
within the meaning of the RFA. Accordingly, and for the same reasons
stated in the proposed rule, the Departments certify that this rule
will not have a significant economic impact on a substantial number of
small entities.
D. Unfunded Mandates Reform Act of 1995
UMRA is intended, among other things, to curb the practice of
imposing unfunded Federal mandates on State, local, and Tribal
governments. Title II of UMRA requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a
proposed or final agency rule that may directly result in a $100
million or more expenditure (adjusted annually for inflation) in any
one year by State, local, and Tribal governments, in the aggregate, or
by the private sector. 2 U.S.C. 1532(a). The inflation-adjusted value
of $100 million in 1995 was approximately $177.8 million in 2021 based
on the Consumer Price Index for All Urban Consumers (CPI-U).\402\
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\402\ See BLS, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. City Average, All Items by Month (Dec.
2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf.
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The term ``Federal mandate'' means a Federal intergovernmental
mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1),
658(6). A ``Federal intergovernmental mandate'' in turn is 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 id.
658(5). And the term ``Federal private sector mandate'' refers to 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 id. 658(7).
This rule does not contain a Federal 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 the entity's voluntary choices, and the voluntary
choices of others, and would not be a consequence of an enforceable
duty imposed by this proposed rule. Similarly, any costs or transfer
effects on State and local governments would not result from a Federal
mandate as that term is defined under UMRA. The requirements of title
II of UMRA, therefore, do not apply, and the Departments have not
prepared a statement under UMRA.
E. Congressional Review Act
OMB has determined that this rule is not a major rule as defined by
section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
The rule will be submitted to Congress and GAO consistent with the
Congressional Review Act's requirements no later than its effective
date.
F. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Departments believe that this proposed
rule would not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, 61 FR 4729
(Feb. 5, 1996).
H. Family Assessment
The Departments have reviewed this rule in line with the
requirements of section 654 of the Treasury and General Government
Appropriations Act, 1999, enacted as part of the Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999. The Departments
have reviewed the criteria specified in section 654(c)(1), by
evaluating whether this regulatory action (1) impacts the stability or
safety of the family, particularly in terms of marital commitment; (2)
impacts the authority of parents in the education, nurture, and
supervision of their children; (3) helps the family perform its
functions; (4) affects disposable income or poverty of families and
children; (5) only financially impacts families, if at all, to the
extent such impacts are justified; (6) may be carried out by State or
local governments or by the family; or (7) establishes a policy
concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the agency
determines a regulation may negatively affect family well-being, then
the agency must provide an adequate rationale for its implementation.
The Departments have determined that the implementation of this
rule will not impose a negative impact on family well-being or the
autonomy or integrity of the family as an institution. Under the rule,
adjudicators would consider the circumstances of family members
traveling together when determining whether noncitizens are not subject
to the presumption in Sec. Sec. 208.33(a)(1) and 1208.33(a). The
presumption will not apply to a noncitizen if the noncitizen or a
member of the noncitizen's family who is traveling with the noncitizen
establishes one of the conditions in Sec. 208.33(a)(1)(i) through
(iii). Similarly, the presumption in paragraph (a)(1) of those sections
would be rebutted if the noncitizen demonstrates that, at the
[[Page 31449]]
time of entry, the noncitizen or a member of the noncitizen's family
who is traveling with the noncitizen was subject to one of the
circumstances enumerated in paragraph (a)(3).
Additionally, to protect against family separation, the Departments
have determined that a principal applicant establishes an exceptionally
compelling circumstance that rebuts the presumption of ineligibility
for asylum where the principal asylum applicant is eligible for
statutory withholding of removal or CAT withholding and would be
granted asylum but for the lawful pathways rebuttable presumption, and
where denial of asylum on that ground alone would lead to the
applicant's family being or remaining separated because an accompanying
spouse or child would not qualify for asylum or other protection from
removal on their own, or the principal asylum applicant has a spouse or
child who would be eligible to follow to join that applicant if the
applicant were not subject to the presumption. See E.O. 14011,
Establishment of Interagency Task Force on the Reunification of
Families, 86 FR 8273, 8273 (Feb. 5, 2021) (``It is the policy of my
Administration to respect and value the integrity of families seeking
to enter the United States.'').
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule does not have ``tribal implications'' because it does not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. E.O. 13175, Consultation and Coordination
With Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000).
Accordingly, Executive Order 13175 requires no further agency action or
analysis.
J. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
the Departments must submit to OMB, for review and approval, any
collection of information contained in a rule, unless otherwise exempt.
See Public Law 104-13, 109 Stat. 163 (May 22, 1995). The proposed rule
proposed a revision to a collection of information under OMB Control
Number 1651-0140, Collection of Advance Information from Certain
Undocumented Individuals on the Land Border. Comments pertinent to the
collection of information are discussed earlier in this preamble.
As discussed in Section IV.E.3.ii.b of this preamble, CBP will
transition CBP One scheduling to a daily appointment allocation process
to allow noncitizens additional time to complete the process. CBP has
revised the burden estimate for this collection consistent with this
change. CBP continues to make improvements to the app based on
stakeholder feedback.
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Collection of Advance Information
from Certain Undocumented Individuals on the Land Border.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: CBP.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Individual undocumented noncitizens. Under this
collection, CBP collects certain biographic and biometric information
from undocumented noncitizens prior to their arrival at a POE, to
streamline their processing at the POE. The requested information is
that which CBP would otherwise collect from these individuals during
primary and/or secondary processing. This information is provided by
undocumented noncitizens, directly or through NGOs and International
Organizations. Providing this information reduces the amount of data
entered by CBP officers and the corresponding time required to process
an undocumented noncitizen.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: This
information collection is divided into three parts. The estimated
annual number of respondents for the registration in the CBP One app is
500,000 and the estimated time burden per response is 12 minutes. The
estimated annual number of respondents for the daily opt-in for
appointments is 500,000 and the estimated time burden per response is 1
minutes. The estimated annual number of respondents for the
confirmation of appointment in the app is 456,250 and the estimated
time burden per response is 3 minutes.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 372,813 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $7,605,385.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Regulatory Amendments
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR part 208 as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Amend Sec. 208.13 by removing and reserving paragraphs (c)(3), (4),
and (5); adding and reserving paragraph (e); and adding paragraph (f),
to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(3)-(5) [Reserved]
* * * * *
(e) [Reserved]
(f) Lawful pathways condition. For applications filed by aliens who
entered the United States between May 11, 2023, and May 11, 2025, also
refer to the provisions on asylum eligibility described in Sec.
208.33.
Sec. 208.30 [Amended]
0
3. Amend Sec. 208.30(e)(5) by:
0
a. Amending paragraph (e)(5)(i) by removing the phrase ``paragraphs
(e)(5)(ii) through (iv), or'' from the first sentence;
0
b. Removing paragraphs (e)(5)(ii) and (iii); and
0
c. Redesignating paragraph (e)(5)(i) as (e)(5).
0
4. Add subpart C, consisting of Sec. 208.33, to read as follows:
[[Page 31450]]
Subpart C--Lawful Pathways and Asylum Eligibility for Certain
Aliens Who Entered Between May 11, 2023, and May 11, 2025
Sec. 208.33 Lawful pathways condition on asylum eligibility.
Notwithstanding any contrary section of this part, including
Sec. Sec. 208.2, 208.13, and 208.30--
(a) Condition on eligibility. (1) Applicability. A rebuttable
presumption of ineligibility for asylum applies to an alien who enters
the United States from Mexico at the southwest land border or adjacent
coastal borders without documents sufficient for lawful admission as
described in section 212(a)(7) of the Act and whose entry was:
(i) Between May 11, 2023, and May 11, 2025,
(ii) Subsequent to the end of implementation of the Title 42 public
health Order issued on August 2, 2021, and related prior orders issued
pursuant to the authorities in sections 362 and 365 of the Public
Health Service Act (42 U.S.C. 265, 268) and the implementing regulation
at 42 CFR 71.40, and
(iii) After the alien traveled through a country other than the
alien's country of citizenship, nationality, or, if stateless, last
habitual residence, that is a party to the 1951 United Nations
Convention relating to the Status of Refugees or the 1967 Protocol
relating to the Status of Refugees.
(2) Exceptions to applicability of the rebuttable presumption. The
rebuttable presumption described in paragraph (a)(1) of this section
does not apply if:
(i) The alien was, at the time of entry, an unaccompanied alien
child as defined in 6 U.S.C. 279(g)(2); or
(ii) The alien, or a member of the alien's family as described in
Sec. 208.30(c) with whom the alien is traveling:
(A) Was provided appropriate authorization to travel to the United
States to seek parole, pursuant to a DHS-approved parole process;
(B) Presented at a port of entry, pursuant to a pre-scheduled time
and place, or presented at a port of entry without a pre-scheduled time
and place, if the alien demonstrates by a preponderance of the evidence
that it was not possible to access or use the DHS scheduling system due
to language barrier, illiteracy, significant technical failure, or
other ongoing and serious obstacle; or
(C) Sought asylum or other protection in a country through which
the alien traveled and received a final decision denying that
application. A final decision includes any denial by a foreign
government of the applicant's claim for asylum or other protection
through one or more of that government's pathways for that claim. A
final decision does not include a determination by a foreign government
that the alien abandoned the claim.
(3) Rebuttal of the presumption. (i) An alien subject to the
presumption described in paragraph (a)(1) of this section can rebut the
presumption by demonstrating by a preponderance of the evidence that
exceptionally compelling circumstances exist, including if the alien
demonstrates that, at the time of entry, the alien or a member of the
alien's family as described in Sec. 208.30(c) with whom the alien is
traveling:
(A) Faced an acute medical emergency;
(B) Faced an imminent and extreme threat to life or safety, such as
an imminent threat of rape, kidnapping, torture, or murder; or
(C) Satisfied the definition of ``victim of a severe form of
trafficking in persons'' provided in Sec. 214.11(a) of this chapter.
(ii) An alien who demonstrates by a preponderance of the evidence
any of the circumstances in paragraph (a)(3)(i) of this section shall
necessarily rebut the presumption in paragraph (a)(1) of this section.
(b) Application in credible fear determinations--(1) Initial
determination. The asylum officer shall first determine whether the
alien is covered by the presumption in paragraph (a)(1) of this section
and, if so, whether the alien has rebutted the presumption in
accordance with paragraph (a)(3) of this section.
(i) If the alien is covered by the presumption in paragraph (a)(1)
of this section and fails to rebut the presumption in accordance with
paragraph (a)(3) of this section, then the asylum officer shall enter a
negative credible fear determination with respect to the alien's asylum
claim and continue to consider the alien's claim under paragraph (b)(2)
of this section.
(ii) If the alien is not covered by the presumption in paragraph
(a)(1) of this section or has rebutted the presumption in accordance
with paragraph (a)(3) of this section, the asylum officer shall follow
the procedures in Sec. 208.30.
(2) Additional procedures. (i) In cases in which the asylum officer
enters a negative credible fear determination under paragraph (b)(1)(i)
of this section, the asylum officer will assess whether the alien has
established a reasonable possibility of persecution (meaning a
reasonable possibility of being persecuted because of their race,
religion, nationality, membership in a particular social group, or
political opinion) or torture, with respect to the identified country
or countries of removal identified pursuant to section 241(b) of the
Act.
(ii) In cases described in paragraph (b)(2)(i) of this section, if
the alien establishes a reasonable possibility of persecution or
torture with respect to the identified country or countries of removal,
the Department will issue a Form I-862, Notice to Appear.
(iii) In cases described in paragraph (b)(2)(i) of this section, if
an alien fails to establish a reasonable possibility of persecution or
torture with respect to the identified country or countries of removal,
the asylum officer will provide the alien with a written notice of
decision and inquire whether the alien wishes to have an immigration
judge review the negative credible fear determinations.
(iv) The alien must indicate whether he or she desires such review
on a Record of Negative Fear Finding and Request for Review by
Immigration Judge.
(v) Only if the alien requests such review by so indicating on the
Record of Negative Fear shall the asylum officer serve the alien with a
Notice of Referral to Immigration Judge. The record of determination,
including copies of the Notice of Referral to Immigration Judge, the
asylum officer's notes, the summary of the material facts, and other
materials upon which the determination was based shall be provided to
the immigration judge with the negative determination. Immigration
judges will evaluate the case as provided in 8 CFR 1208.33(b). The case
shall then proceed as set forth in paragraphs (b)(2)(v)(A) through (C)
of this section.
(A) Where the immigration judge issues a positive credible fear
determination under 8 CFR 1208.33(b)(2)(i), the case shall proceed
under 8 CFR 1208.30(g)(2)(iv)(B).
(B) Where the immigration judge issues a positive credible fear
determination under 8 CFR 1208.33(b)(2)(ii), DHS shall issue a Form I-
862, Notice to Appear, to commence removal proceedings under section
240 of the Act.
(C) Where the immigration judge issues a negative credible fear
determination, the case shall be returned to DHS for removal of the
alien. No appeal shall lie from the immigration judge's decision and no
request for reconsideration may be submitted to USCIS. Nevertheless,
USCIS may, in its sole discretion, reconsider a negative determination.
(c) Continuing applicability of condition on eligibility. (1)
Subject to
[[Page 31451]]
paragraph (c)(2) of this section, the condition on asylum eligibility
in paragraph (a)(1) of this section shall apply to any asylum
application filed by an alien who entered the United States during the
time and in the manner specified in paragraph (a)(1) of this section
and who is not covered by an exception in paragraph (a)(2) of this
section, regardless of when the application is filed and adjudicated.
(2) The conditions on asylum eligibility in paragraph (a)(1) of
this section shall not apply to an asylum application filed by an alien
described in paragraph (c)(1) of this section if the asylum application
is filed after May 11, 2025, the alien was under the age of 18 at the
time of the entry referenced in paragraph (c)(1) of this section, and
the alien is applying for asylum as a principal applicant.
(d) Severability. The Department intends that any provision of this
section held to be invalid or unenforceable by its terms, or as applied
to any person or circumstance, should be construed so as to continue to
give the maximum effect to the provision permitted by law, unless such
holding is that the provision is wholly invalid and unenforceable, in
which event the provision should be severed from the remainder of this
section and the holding should not affect the remainder of this section
or the application of the provision to persons not similarly situated
or to dissimilar circumstances.
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, the
Attorney General amends 8 CFR parts 1003 and 1208 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
5. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
Sec. 1003.42 [Amended]
0
6. Amend Sec. 1003.42 by removing paragraphs (d)(2) and (3) and
redesignating paragraph (d)(1) as paragraph (d).
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
7. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.
0
8. Amend Sec. 1208.13 by removing and reserving paragraphs (c)(3),
(4), and (5), and by adding paragraph (f), to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(3)-(5) [Reserved]
* * * * *
(f) Lawful pathways condition. For applications filed by aliens who
entered the United States between May 11, 2023, and May 11, 2025, also
refer to the provisions on asylum eligibility described in Sec.
1208.33.
Sec. 1208.30 [Amended]
0
9. Amend Sec. 1208.30 by removing and reserving paragraph (g)(1).
0
10. Add subpart C, consisting of Sec. 1208.33, to read as follows:
Subpart C--Lawful Pathways and Asylum Eligibility for Certain
Aliens Who Entered Between May 11, 2023, and May 11, 2025
Sec. 1208.33 Lawful pathways condition on asylum eligibility.
Notwithstanding any contrary section of this part, including
Sec. Sec. 1208.2, 1208.13, and 1208.30--
(a) Condition on eligibility. (1) Applicability. A rebuttable
presumption of ineligibility for asylum applies to an alien who enters
the United States from Mexico at the southwest land border or adjacent
coastal borders without documents sufficient for lawful admission as
described in section 212(a)(7) of the Act and whose entry was:
(i) Between May 11, 2023, and May 11, 2025,
(ii) Subsequent to the end of implementation of the Title 42 public
health Order issued on August 2, 2021, and related prior orders issued
pursuant to the authorities in sections 362 and 365 of the Public
Health Service Act (42 U.S.C. 265, 268) and the implementing regulation
at 42 CFR 71.40, and
(iii) After the alien traveled through a country other than the
alien's country of citizenship, nationality, or, if stateless, last
habitual residence, that is a party to the 1951 United Nations
Convention relating to the Status of Refugees or the 1967 Protocol
relating to the Status of Refugees.
(2) Exceptions to applicability of the rebuttable presumption. The
rebuttable presumption described in paragraph (a)(1) of this section
does not apply if:
(i) The alien was, at the time of entry, an unaccompanied alien
child as defined in 6 U.S.C. 279(g)(2); or
(ii) The alien, or a member of the alien's family as described in
Sec. 208.30(c) with whom the alien is traveling:
(A) Was provided appropriate authorization to travel to the United
States to seek parole, pursuant to a DHS-approved parole process;
(B) Presented at a port of entry, pursuant to a pre-scheduled time
and place, or presented at a port of entry without a pre-scheduled time
and place, if the alien demonstrates by a preponderance of the evidence
that it was not possible to access or use the DHS scheduling system due
to language barrier, illiteracy, significant technical failure, or
other ongoing and serious obstacle; or
(C) Sought asylum or other protection in a country through which
the alien traveled and received a final decision denying that
application. A final decision includes any denial by a foreign
government of the applicant's claim for asylum or other protection
through one or more of that government's pathways for that claim. A
final decision does not include a determination by a foreign government
that the alien abandoned the claim.
(3) Rebuttal of the presumption. (i) The presumption in paragraph
(a)(1) of this section can be rebutted if an alien demonstrates by a
preponderance of the evidence that exceptionally compelling
circumstances exist, including if the alien demonstrates that, at the
time of entry, the alien or a member of the alien's family as described
in Sec. 208.30(c) with whom the alien is traveling:
(A) Faced an acute medical emergency;
(B) Faced an imminent and extreme threat to life or safety, such as
an imminent threat of rape, kidnapping, torture, or murder; or
(C) Satisfied the definition of ``victim of a severe form of
trafficking in persons'' provided in 8 CFR 214.11(a).
(ii) An alien who demonstrates by a preponderance of the evidence
any of the circumstances in paragraph (a)(3)(i) of this section shall
necessarily rebut the presumption in paragraph (a)(1) of this section.
(b) Application in credible fear determinations. (1) Where an
asylum officer has issued a negative credible fear determination
pursuant to 8 CFR 208.33(b), and the alien has requested
[[Page 31452]]
immigration judge review of that credible fear determination, the
immigration judge shall evaluate the case de novo, as specified in
paragraph (b)(2) of this section. In doing so, the immigration judge
shall take into account the credibility of the statements made by the
alien in support of the alien's claim and such other facts as are known
to the immigration judge.
(2) The immigration judge shall first determine whether the alien
is covered by the presumption at 8 CFR 208.33(a)(1) and 1208.33(a)(1)
and, if so, whether the alien has rebutted the presumption in
accordance with 8 CFR 208.33(a)(3) and 1208.33(a)(3).
(i) Where the immigration judge determines that the alien is not
covered by the presumption, or that the presumption has been rebutted,
the immigration judge shall further determine, consistent with Sec.
1208.30, whether the alien has established a significant possibility of
eligibility for asylum under section 208 of the Act, withholding of
removal under section 241(b)(3) of the Act, or withholding of removal
under the Convention Against Torture. Where the immigration judge
determines that the alien has established a significant possibility of
eligibility for one of those forms of relief or protection, the
immigration judge shall issue a positive credible fear finding. Where
the immigration judge determines that the alien has not established a
significant possibility of eligibility for any of those forms of relief
or protection, the immigration judge shall issue a negative credible
fear finding.
(ii) Where the immigration judge determines that the alien is
covered by the presumption and that the presumption has not been
rebutted, the immigration judge shall further determine whether the
alien has established a reasonable possibility of persecution (meaning
a reasonable possibility of being persecuted because of their race,
religion, nationality, political opinion, or membership in a particular
social group) or torture. Where the immigration judge determines that
the alien has established a reasonable possibility of persecution or
torture, the immigration judge shall issue a positive credible fear
finding. Where the immigration judge determines that the alien has not
established a reasonable possibility of persecution or torture, the
immigration judge shall issue a negative credible fear finding.
(3) Following the immigration judge's determination, the case will
proceed as indicated in 8 CFR 208.33(b)(2)(v)(A) through (C).
(4) If, under 8 CFR 208.33(b)(2), DHS issues a Form I-862, Notice
to Appear, to commence removal proceedings under section 240 of the
Act, the alien may apply for asylum, withholding of removal under
section 241(b)(3) of the Act, withholding of removal under the
Convention Against Torture, or any other form of relief or protection
for which the alien is eligible during those removal proceedings.
(c) Family unity and removal proceedings. In removal proceedings
under section 240 of the Act, where a principal asylum applicant is
eligible for withholding of removal under section 241(b)(3) of the Act
or withholding of removal under Sec. 1208.16(c)(2) and would be
granted asylum but for the presumption in paragraph (a)(1) of this
section, and where an accompanying spouse or child as defined in
section 208(b)(3)(A) of the Act does not independently qualify for
asylum or other protection from removal or the principal asylum
applicant has a spouse or child who would be eligible to follow to join
that applicant as described in section 208(b)(3)(A) of the Act, the
presumption shall be deemed rebutted as an exceptionally compelling
circumstance in accordance with paragraph (a)(3) of this section.
(d) Continuing applicability of condition on eligibility. (1)
Subject to paragraph (d)(2) of this section, the condition on asylum
eligibility in paragraph (a)(1) of this section shall apply to any
asylum application filed by an alien who entered the United States
during the time and in the manner specified in paragraph (a)(1) of this
section and who is not covered by an exception in paragraph (a)(2) of
this section, regardless of when the application is filed and
adjudicated.
(2) The conditions on asylum eligibility in paragraph (a)(1) of
this section shall not apply to an asylum application filed by an alien
described in paragraph (d)(1) of this section if the asylum application
is filed after May 11, 2025, the alien was under the age of 18 at the
time of the entry referenced in paragraph (d)(1) of this section, and
the alien is applying for asylum as a principal applicant.
(e) Severability. The Department intends that any provision of this
section held to be invalid or unenforceable by its terms, or as applied
to any person or circumstance, should be construed so as to continue to
give the maximum effect to the provision permitted by law, unless such
holding is that the provision is wholly invalid and unenforceable, in
which event the provision should be severed from the remainder of this
section and the holding should not affect the remainder of this section
or the application of the provision to persons not similarly situated
or to dissimilar circumstances.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Dated: May 8, 2023.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2023-10146 Filed 5-10-23; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P
