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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T or U nonimmigrant status, see INA
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